
    CHARLES D. KEEP, Plaintiff and Respondent, v. ABRAHAM KAUFFMAN, Defendant and Appellant.
    I. Joinder op Causes op Action.—Demurrer.
    1. Landlord and Tenant.
    
    1. A cause of action for breach of covenant for quiet enjoyment, in that after the commencement of the term the lessor (being the defendant) refused to deliver a part of the demised premises, deprived the lessor of the use of certain demised privileges, refused to perform certain covenants, and shut out the lessor from the demised premises, thereby depriving him of the use thereof, and compelling him to remain on the public street.
    CANNOT BE JOINED WITH
    
      a cause of action founded on allegations that the defendant, while the plaintiff had been denied admission to his premises, had by false keys obtained entrance to the premises, and had broken a lock securing a trunk which was in said premises, belonging to and containing property of the plaintiff’s, and had wilfully, maliciously, and feloniously taken and removed goods of plaintiff from the said premises.
    
      a. The use of the words “said apartment,” “so as aforesaid denied admission,” and the averment “that when he had made frequent application to defendant in a friendly way to secure admission to his said apartments and be permitted to obtain for necessary use his said wearing apparel, and defendant had persisted in refusing the same, plaintiff was compelled to institute legal proceedings for the possession of his said property,” contained in the statement of the latter cause of action, do not so refer to the first cause of action, as to show that the pleader meant to treat the tortious acts complained of in the second cause of action as a breach of the contract set out in the first cause.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.
    
      Decided May 31, 1873.
    Appeal from judgment.
    The complaint sets forth as follows :
    “ The plaintiff, "by J. Worden Gredney, his attorney, complaining of the defendant, respectfully shows to this court:
    First.—For a first cause of action.
    1. That on or about the 30th day of August, 1872, plaintiff and the defendant entered into an agreement whereby the plaintiff hired, and the defendant leased, for the term of one year from said date, at the rent then and there agreed upon between the parties of seven dollars per week, payable in advance, a part of the second floor of the premises then and now occupied by the defendant, known as No. 321 East Seventeenth Street, in the city of New York.
    2. That the said defendant, at the time of said hiring, promised and agreed with this plaintiff that he should peaceably and quietly occupy and enjoy the premises aforesaid for the said term of one year.
    3. That at the time of said hiring it was mutually understood and agreed by and between the parties hereto, that in consideration of the payment of the rent aforesaid the plaintiff should have and enjoy the use and benefit of the heat furnished by the furnace of defendant, and that defendant would cause to be done and performed sundry household matters and things for the benefit of the plaintiff and family.
    4. That at the time of said hiring it was further mutually agreed Tby and between the parties hereto, that upon the payment of three dollars per month by this plaintiff, in addition to the rent aforesaid, said plaintiff should have the use and benefit of the gas furnished from the meter of said defendant for cooking purposes and for light, but that subsequently defendant informed ■plaintiff that he thought three dollars per month was not sufficient for the supply furnished, and plaintiff voluntarily paid thereafter four dollars per month for use •of said gas.
    
      5. That upon the conditions and agreements herein-before mentioned, this plaintiff entered in and upon said •premises, and paid to the defendant the rent as aforesaid, .and in every way fully and faithfully performed each and every his part of said contract.
    6. That the plaintiff has not been permitted to occupy and enjoy the possession of said premises, or to enjoy the use and benefit of said heat and light; but, on the contrary, after the commencement of the term, defendant refused to deliver over to the plaintiff a part of the apartments hired by him and for which he had paid the rent as aforesaid, greatly to the annoyance and damage -of this plaintiff and his family; and the defendant did further deprive this plaintiff of the heat of said furnace and of the use of said gas by shutting off the same from his said apartments, and did compel this plaintiff to purchase stoves for heat, and lamps and oil for light; and further, said defendant did refuse to do and perform the sundry household matters agreed upon, and when this plaintiff desired to bring into the house and his said apartments a stove for his own use, the said defendant did shut, lock, bar, and chain the entrance to said house, and did keep such entrance so locked and barred, thereby depriving this plaintiff of the society of his family and the use of said apartments ; and said defendant by these acts did cause and compel this plaintiff to remain upon the public street; and plaintiff, in order to enter his said apartments, and to protect Ms family from the assaults of defendant and his agents, was obliged to force his entrance to said house, all to the damage of this plaintiff in the sum of five hundred dollars.
    Then after setting forth three other causes of action it continues:
    “ Fifth.—For the fifth cause of action this plaintiff says:
    
      “1. That when he had made frequent application to defendant in- a friendly way, to secure admission to his said apartments and be permitted to obtain for necessary use his said wearing apparel, and defendant had persisted in refusing the same, plaintiff was compelled to institute legal proceedings for the possession of his said property, and call to his aid the sheriff of the city and county of blew York.
    
      “2. That on the thirty-first day of January, 1873, said sheriff, by virtue of authority in him vested, did enter said house and did go. to said apartments in search of said property of this plaintiff and family, and found that during the time that plaintiff had been so as aforesaid deMed admission, the said goods had been removed from the said apartments, and upon making search therefor said sheriff found the said property In a -confused and disordered condition, which said property consisted of fine clothing, provisions, etc., were promiscuously, and without regard to any care, packed together in a heap in the basement hall of said house.
    
      “ 3. That said defendant, in order to get possession of said goods and remove the same, did, during the said forced absence of plaintiff, procure the services of a locksmith, and by false keys obtained an entrance to said apartments, and did break the lock securing a trunk in said apartments,. belonging to and containing the property of said plaintiff, and did, contrary to law, wilfully, maliciously, and feloniously take and remove said goods from said apartments as aforesaid, to the damage and injury of the plaintiff of five hundred dollars.
    “ Wherefore, plaintiff demands judgment against said defendant in the said sum of five hundred dollars ($500) in said first cause of action, and the further sum of five hundred dollars ($500) in said fifth cause of action.
    To the complaint the defendant demurred as follows: ‘ ‘ The defendant above named demurs to the complaint herein, and for the grounds of his demurrer states that it appears upon the face of the complaint that several causes of action have been improperly united, to wit: the first alleged cause of action therein being for the breach of a covenant in a lease, and the fifth alleged cause of action being for injuries with force to personal property.”
    At Special Term the demurrer was overruled, with leave to defendant to answer on payment of posts, and a (so-called) judgment to that effect was entered.
    The defendant appealed to the General Term.
    
      Lewis Sanders, attorney, and of counsel for appellant, urged:
    First.—To entitle two causes of action to be joined three essentials are requisite:
    1st. They must both belong to the same class.
    2d. They must affect all the parties to the suit.
    3d. They must not require different places of trial.
    Tinder subdivision 1, two more essentials are requisite :
    1st. They must arise out of the same transaction or transactions.
    2d. They must be connected with the same subject of action.
    Will the first and fif th causes of action bear these tests %
    
    1st. They do not belong to the same class.
    The first is for not giving possession of a portion of the premises leased, and refusal and failure to furnish heat and light, and to perform sundry household matters, and is clearly ex contractu, coming under subdivision 2, § 167, Code.
    The fifth is for refusing to deliver up to plaintiff the wearing apparel of himself and family, for removing said good clothing, the provisions, etc., without regard to care, and for wilfully, maliciously, and feloniously taking and removing said goods contrary to law.
    This is clearly ex delicto, and comes under subdivision 3, § 167, Code.
    2d. They are not connected with same subject of action.
    In the first, the subject-matter is a contract—the covenants and agreements in the lease, possession, heat, light, household matters.
    
    In the fifth, the subject-matter is personal property, the wearing^apparel, provisions, etc.
    
    3d. They do not arise out of the same transaction or transactions.
    In the first, the transactions are :
    Refusal to deliver over part of premises leased.
    Refusal to furnish the heat and light.
    - .Refusal to perform sundry household matters.
    In the fifth, the transactions arise after plaintiff’s removal from the premises, and are:
    Institution of legal proceedings to recover plaintiff’s wearing apparel.
    Going after the goods and finding the fine clothing, provisions, etc., all in a heap.
    The breaking open of a door and a trunk, and, contrary to law, wilfully, maliciously, and feloniously taking and removing said goods.
    Second.-—These actions fail to agree in any one of the three essentials:
    Class,
    Subject-matter, or Transaction or transactions.
    
      All of which are absolutely essential to admit of their joinder (In Hunter v. Powell, 15 How. 228 ; Hall v. Fisher, 20 Barb. 448).
    The claims “do not all belong to one of the classes anentioned in the several subdivisions of § 167.”
    Action in tort cannot be joined with an action on contract, though the subject-matter be the same (so held in Martin v. The Mayor, etc., 1 Hill, 545; Sweet v. Ingerson, 12 How. 331).
    “ The manner in which the breach is alleged does not determine the form of the action” (Howe v. Cook, 21 Wend. 31).
    An action ex contractu cannot be joined with an action ex delicto 9Stephen on Pleading, 9th Amer. ed. p. 266; Bac. Abr.—Action Title C; 2 Wait's Law and Practice).
    
    Third.—The allegations in each cause of action must establish a complete cause of action—a mere general reference to a prior count is insufficient (Flynn v. Bailey, 50 Barb. 73 ; Anderson v. Hill, 53 Barb. 245).
    
      J. Worden Gedney, attorney, and of counsel for respondent, urged:
    The alleged injuries in the fifth cause of action were additional breaches of the agreement of letting, and of quiet enjoyment, as set forth in the first cause of action, and for which the plaintiff suffered additional loss and damage.
    
    
      (a). This is evident from the nature of the case. The acts of defendant alleged in the fifth cause of action, being an outgrowth or result of the violation of his agreement as set forth in the first cause of action.
    (5). The unlawful detention, removal, or destruction of the property of a tenant by a landlord is a direct breach of the contract of quiet enjoyment.
    (c). The injury follows the breach as part of the same transaction (Badger y. Benedict, Supra, and 1 Hil. 419; Smith v. Orser, 43 Barb. 193).
   By the Court.—Sedgwick, J.

The demurrer to the complaint is on the ground that the complaint has improperly the first cause of action stated in it with the fifth cause of action alleged in it.

The first cause of action stated that the plaintiff and the defendant made an agreement "by which the one hired and the other let certain rooms in a house; that in such agreement the defendant agreed that the plaintiff should peaceably and quietly occupy and enjoy the premises for the time specified, and that the plaintiff should have and enjoy certain privileges connected with the use of the premises, but that the plaintiff had not been permitted to occupy and enjoy the possession of the premises, or to have and enjoy the specified privileges ; and that the defendant had shut and barred the entrance to the house in which the rooms were, and had kept it shut and barred, thereby depriving the plaintiff of the use of the rooms, and compelling him to remain upon the street, and that the plaintiff, in order to enter his rooms and protect his family from the assaults of defendant and his agents, was obliged to force his entrance into said house, etc., to the damage of the plaintiff.

The cause of action, thus stated, was for damage for the breach of a contract.

The 167 section of the Code requires that to join other causes of action with the one stated, all should arise out of the same transaction or transactions connected with the same subject of action (subd. 1) or out of contract (subd. 2).

The fifth cause of action states that when the plaintiff had made frequent applications to defendant to secure admission to his said apartments and be permitted to obtain his wearing apparel, and defendant' had persisted in refusing the same, plaintiff was compelled to institute legal proceedings for the possession of his said property, and call to his aid the sheriff of the bounty; that defendant, in order to get possession of said wearing apparel, and remove the same, did, during the said forced absence of the plaintiff, obtain an entrance to said apartments, and did break a lock securing a.trunk containing plaintiff’s property, and did wilfully, maliciously, and feloniously, take and remove said goods from said apartments as aforesaid, to the damage of the plain-in the sum of five hundred dollars.

Thiá is in effect stated in the complaint to contain in itself a cause of action on which the plaintiff relies. The 167 section requires that causes of action united in a complaint must be separately stated, and the complaint calls it a fifth cause of action.

There is no reference to the statements of other causes of action, or to the other parts of the complaint, except in the words “said apartments,” which is nothing but .an identification of the place in which the acts were alleged to be done. The section of the Code in relation to stating separately the causes of action contained the substance of the former rule in respect of different counts in a declaration. “But unless the second count ■“ expressly refers to the first, no defect therein will be “aided by the preceding count, for though both counts 16 6 are in the same declaration, yet they are for all purposes as distinct as if they were in separate declarations, and consequently they must independently contain all necessary allegations, or the latter count must “ expressly refer to the former.” .

The fifth cause of action states only a tort. We cannot suppose that the pleader means to treat this tort as a breach of the contract set out in the first cause of action, because there is nothing whatever in the fifth cause of action that connects the two. In addition to this, the peculiar mode of allegation negatives the idea that in the fifth count the plaintiff relied on a breach of contract, and shows that he relied on a wilful and malicious injury by the defendant.

The joinder cannot "be sustained on the ground that the causes of action arose out of the same transaction or transactions connected with the same subject of action. ¡Necessarily the statement of another cause of action.in a complaint implies that the pleader is proceeding tosíate a different set of facts from those already stated. Therefore, unless there is something to expressly show to the contrary, it must be deemed that a new cause of action states another transaction than that already set out. The contrary may appear by such a statement of facts, that a comparison of it with what has already been stated will show the two to be parts of a transaction, or there must be an express reference to a former statement of a cause of action. In the present complaint there is neither. The transaction of the fifth cause of action does not on its face appear even to have occurred on the same day or days when the other acts set out in the other alleged causes of action are averred to have been done-

To me it seems that there is an attempt to join a cause of action on contract with a cause of action for tort, without the causes of action being parts of one transaction.

The judgment overruling the demurrer should be reversed, and judgment ordered for the defendant on the demurrer, with costs, with leave to plaintiff to amend the complaint within twenty days, on payment of costs.

Freedman, J., concurred.

Barbour, C. J. (dissenting).

Although the complaint in this action may be liable to many serious objections, the only question which the court can properly consider upon this appeal is, whether the first cause of action is improperly joined in the same suit with the-fifth cause of action.

The respondent claims that the first cause of action Is for breaches of covenants in a lease, while the fifth is for injuries to personal property. Of course the onus of proving by the language of the pleading itself that his objection is well founded, is upon the party demurring. The plaintiff is entitled to all reasonable intendments in his favor.

As a first cause of action the complaint charges that the defendant let certain premises to the plaintiff, and undertook that the latter should quietly occupy and enjoy the same, but (inter alia) that the defendant “ did shut, lock, bar, and chain the entrance to said “house, and did keep such entrance so locked and “barred,” thereby depriving the plaintiff of the use of his premises,

The complaint charges for a fifth cause of action that the defendant, during the absence of the plaintiff from his apartments, obtained an entrance thereto by means of false keys, and removed the plaintiff’s goods therefrom.

The facts as set forth in each of the. counts are sufficient, if properly stated, to constitute an action for a breach of the defendant’s covenant for quiet enjoyment; and it follows that the two causes of action are not improperly joined. The judgment should therefore be affirmed, with costs; but leave should be given to the defendant, to apply at Special Term for permission to withdraw his demurrer and interpose an answer upon the usual terms.  