
    Carl Reed, Respondent, v. George Livermore, as Surviving Partner, etc., Appellant.
    
      Misjoinder of causes of action — a demurrer lies, although they are not separately stated— a cause of action for selling an unsafe gun cannot he joined with one for a Irreach of warranty thereof.
    
    A demurrer to a complaint-, interposed on the ground that two causes of action are improperly joined therein; will lie even though such causes of action are not separately stated and numbered.
    The complaint in an action alleged that the defendants placed upon the market a gun constructed of such defective material and in such a careless manner that it .was unsafe for use and a danger to the community; that the gun exploded while the plaintiff was using it, thereby causing him to lose his hand. It further alleged that at the time the defendants sold the gun they warranted it in every part; that plaintiff, relying on such warranty, used the said gun and that it exploded while being used by reason of such defective material and' construction and so severely injured the plaintiff that he lost his left hand.
    
      Held, that the complaint stated two causes of action, one on contract and the other in tort; . ,
    That the two causes of action were not upon different ' claims arising out of the same transaction or transactions connected with the same subject of action,” within the meaning of subdivision 9 of section 484 of the Code of Civil Pro-cedure, and that it was, therefore, improper to join them in the same complaint.
    Houghton, J., dissented.
    
      Appeal by the defendant, George Livermore, as surviving partner, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 23d day of July, 1904, upon the decision of the court, rendered after a trial at the Broome Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.
    Le Roy H. Smith, one of the original defendants; and the appellant were engaged in the manufacture and sale of guns under the firm name of the Ithaca Gun Company. Le Roy H. Smith died after the commencement of the action.
    
      S. D. Halliday and Tompkins, Cobb & Cobb, for the appellant.
    
      George B. Davis, for the respondent.
   Parker, P. J.:

There are sufficient facts stated in this complaint to constitute two different causes of action in favor of this plaintiff and against the defendant. One, an action for negligence, putting upon the market a gun constructed of such defective material and in such a careless manner that it was unsafe for use and a danger to the community. The plaintiff, being injured by its-exploding while using it, which injury resulted in the loss of his hand, claims damages for the injury resulting from such negligent act.

The complaint also states the further fact that, at the time the defendants sold the gun, they warranted it in every part; that plaintiff, relying on such warranty, used the said gun and that it exploded while being used by reason of defective material and construction, and so severely injured the plaintiff that he lost his left hand and damages are asked for such loss. Thus two causes of action are here presented; the one based entirely upon the defendants’ wrong, the other resting entirely upon their contract.

These facts are not separated and distinguished as constituting different causes of action, but they are all averred in the complaint, and as they are now contained therein evidence, if offered, would ■ have to be received thereof. A demurrer that such two causes of action are improperly joined in the same complaint will lie, therefore, even though not so separated. (Lamming v. Galusha, 135 N. Y. 239. 242.) And the question presented by this appeal, therefore, is, whether such two causes of action are permitted to be so joined by the 9th subdivision of section 484 of the Code of. Civil Procedure. Beyond all question they are not so allowed by any other provision of the Code or of practice.

"By such subdivision different claims arising out of the same transaction or transactions connected with the' same subject of action ” may be'joined in the same complaint, but, unless they come within-that provision, an action for a tort is nowhere permitted to be joined with an action on contract.

I am of the opinion that the two claims in question do not arise out of the same transaction, or transactions connected with the same subject of action. The following cases are ample authority for that conclusion, and the reasons given in such opinions seem to fully, cover and answer all objections urged against them. (Sweet v. Ingerson, 12 How. Pr. 331; Hunter v. Powell, 15 id. 221; Anderson v. Hill, 53 Barb. 238,244; approved in De Wolfe v. Abraham, 151 N. Y. 189; Crowell v. Truesdell, 67 App. Div. 502; Wiles v. Suydam, 64 N. Y. 173; Barkley v. Williams, 30 Misc. Rep. 687.)

It is not desirable to attempt in this opinion to add anything to what may be found urged in the above cases. -The reasons are well summarized in the Special Temí opinion found in the case last-above cited. It is sufficient to say that, having concluded that thé two causes of action are set forth in this complaint, we' hold them to be improperly joined on the authority of the cases above cited. I am the more ready to reach this conclusion because I am impressed with the propriety of requiring every pleading to be so framed and expressed that ■ it can be, with at least a reasonable - amount of study, understood by the opposing party.- In the case at bar, if it be held that the facts therein contained are • correctly united, I know of no practice that can require' the plaintiff to elect upon which cause of action he will proceed, and, therefore, neither party, after the trial, will be able to t.ell upon what ground the verdict is rendered' in- the event that the plaintiff should recover one. And since the recovery may have been either in tort, -or on contract, it is but reasonable that the defendants should be able to • ascertain from the record thereof upon-which ground the judgment and¡ execution are to be based.

For these reasons the interlocutory judgment should be reversed and the demurrer sustained, with costs.

All concurred, except Houghton, J., dissenting.

Interlocutory judgment reversed and demurrer sustained,. with costs in court below and of this appeal, with usual leave to plaintiff to amend on payment of costs of demurrer and of this appeal.  