
    Henry Edward Roehr, Respondent, v. Julius Liebmann, Appellant, Impleaded with The Williamsburgh Democratic Club and Others.
    
      Demurrer for improper joinder of causes of action,—one against a lessee, under a written, lease, the other against his guarantors—Code of Civil Procedure, section 454.
    Upon an appeal from an order overruling a demurrer interposed to a complaint, in an action brought for the recovery of rent reserved in a written lease, and of the damages sustained in the restoration of the property after the termination of the lease, upon the ground of the improper joinder of causes of action, it appeared that the demurring defendants were not parties to the lease, but that they had executed a separate instrument of guaranty that the lessees, who were also parties defendant to the action, would fulfill the terms of the lease.
    
      Held, that the demurrer should be sustained; that the obligations of a lessee under a written lease and that of his guarantors were several and not joint.
    
      Semble, that if the demurring defendants had joined as sureties in the execution of the lease the demurrer would have been properly overruled, as in such case the parties being ‘ ‘ severally liable under the same written instrument, ” the causes o"f action might be joined under section 454 of the Code of Civil Procedure.
    Appeal by the defendant, Julius Liebmann, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term overruling his demurrer to the amended complaint, with notice of an intention to bring up for review upon such appeal the order and findings made herein on the 20th day of April, 1896, directing the entry of said judgment.
    The demurrer was interposed upon the ground of improper joinder of causes of action.
    
      The complaint, which alleged non-payment of rent and damage to the demised premises, referred to Schedule A annexed to it, which contained ajease executed by the plaintiff of the first part and by The Williamsburgh Democratic Club, by its president and secretary, of the second part. Following this lease, was an instrument, signed by J\ Liebmann and others, guaranteeing the performance by the tenant of the covenants of the lease.
    
      Samuel Hoff, for the appellant.
    
      Henry Manne, for the respondent.
   Hatch, J.:

The action is brought to recover rent secured to be paid by the terms of a written lease, and for damages sustained in the restoration of the property after the termination of the lease. The complaint sets out the two causes of action in separate counts. So far 'as material to the disposition of the questions presented by the demurrer, the complaint alleges in the first count, and repeats the allegation in the second count, as follows: “ That on the 19th day of September, 1892, the plaintiff and the said defendants entered into a written agreement, a copy of which is hereto annexed, marked ‘ Exhibit Ay and is made part of this complaint.” Reference to the contract which is thus made a part of the complaint shows that the defendants who demur are not parties thereto. They are not mentioned in the body of the lease nor do they execute the same. • Their undertaking is a guaranty that the lessees will fulfill the terms of the lease. The obligation is, therefore, not joint, but several, and arises out of distinct and independent contracts, the obligation under the lease being that the principal party will pay his debt, and under the guaranty that the guarantors will pay the debt of the lessee. These contracts have always been held to be separate contracts, even though appearing upon the same instrument. (De Ridder v. Schermerhorn, 10 Barb. 638; Barton v. Speis, 5 Hun, 60; Evans v. Conklin, 71 id. 536; Harris v. Eldridge, 5 Abb. N. C. 278, and note.) Nor is the rule changed from the consideration that liability attaches to each party at the same time and to the same extent. (Tibbits v. Percy, 24 Barb. 39.) Where the surety is made a party to the lease and executes the same as such, the rule is so far modified as to permit of Ms being joined as a party. (Carman v. Plass, 23 N. Y. 286.) But tMs is placed upon the ground that liability is created by the same instrument, and, therefore, authority is found in the Code for such joinder. The same rule was also applied in Decker v. Gaylord (8 Hun, 110). It will be found difficult, however, to reconcile the latter decision with the current of authority as applied to the facts of that case. But it does not pretend'to announce any different rule from that laid down in Qarman v. Plass (supra), and the doctrine of that case only upheld the joinder on the ground that the surety was a party to the instrument. . Section 454 of the Code of Civil Procedure has no application to the case, nor has it changed the rule of the cases cited, It is authority only for the joinder, where the parties are liable upon the same written instrument. In this respect the rule remains the same as under the old Code. This interpretation has. been sanctioned by the Court of Appeals in Nichols v. Drew (94 N. Y. 22), where it is said of causes of action : “ Those arising on contract and affecting all the parties may be joined. Those arising on contract, but inconsistent with each other, or not affecting all the parties, cannot be joined, and the defect may be reached by demurrer.” It follows, therefore, that the causes of action alleged in the complaint are improperly united and that the demurrer should be sustained.

Having reached this conclusion, we are now concerned with the disposition to be made of the action. We must assume for the present that the plaintiff has a just demand against all the defendants and is only prevented from enforcing it by the fact that the parties, although liable for the same debt, are liable upon separate contracts. This seems to present a case where the action should be severed into two in order that liability, if it exists, may be enforced and the plaintiff be not left remediless. This course is authorized by section 497 of the Code of Civil Procedure. The judgment should, therefore, be that the judgment appealed from be reversed and the demurrer sustained, with leave to plaintiff to divide his action into two actions, continuing the same against the parties liable upon the lease, and against the parties liable upon the undertaking of guaranty ; and that he be permitted to serve an amended complaint in each of the actions as divided, with allegations appropriate thereto as he shall be advised, with costs of this appeal only to the demurring defendants. .

All concurred.

Judgment reversed and demurrer sustained, with costs of this appeal only to the demurring defendants, with leave to the plaintiff, upon payment of such costs, to divide his action into two actions, continuing the same against the parties liable on the lease and against the parties liable on the guaranty, and that he be permitted to serve an amended complaint in the actions so divided.  