
    Gilbert Gerould, App’lt, v. David Cronk, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Justice’s court—Pleading—Demurrer.
    In justice’s courts, the misjoinder of a cause of action is not, strictly as such, a ground of demurrer.
    2. Same—Answer.
    Nor is such misjoinder the subject of allegation in the answer.
    3. Same—Objection, how taken.
    The objection to the misjoinder of alleged causes of action in a complaint in justice’s court must he taken in such manner as to have a ruling of the justice upon it before proceeding to trial of the action, otherwise it is waived. •
    Appeal from a judgment of the county court, reversing a judgment of a justice’s court, entered on a verdict in favor of plaintiff.
    
      Fary B. Beecher, for app’lt; I. A. Seaman, for resp’t.
   Bradley, J.

There was a misjoinder of causes of action in the complaint. This the defendant alleged, with other matters in his answer, and at the close of the plaintiff’s evidence made it one of the grounds of motion for nonsuit. The motion was denied by the justice, and judgment was afterwards rendered upon the verdict of the jury for the plaintiff. In justices’ courts, the misjoinder of causes of action is not a ground for demurrer, strictly as such. Code Civ. Proc. § 2939 ; Lapham v. Rice, 63 Barb. 485. But it is a matter for objection to be taken in due time, and, if not so taken, is waived. Whitney v. Crim, 1 Hill, 61; Dunham v. Simmons, 3 id. 609 ; Willard v. Bridge, 4 Barb. 361. And when his complaint embraces alleged causes of action, both in tort, and on contract, the plaintiff, in case of his recovery, is denied the benefit of execution against the person of the defendant. Code Civ. Proc. § 2937. This was the rule at common law, and the nature of the execution to which a plaintiff may be entitled is dependent upon the character of his complaint. In the present case the plaintiff gave evidence to the effect that the defendant’s sheep and horses entered into the plaintiff’s premises, and injured and. partially destroyed his crops of barley and peas. The plaintiff testified that there were no unsettled matters between him and the defendant other than the damages to his crops and to his plow. The matter of the plow, as he testified, was that he lent a plow to the defendant, who promised to return it in good order, and to furnish a new point for it; that he failed to do so; and that the repair of the plow cost twenty-five cents, and the price of a new point was sixty cents,—thus making only eighty-five cents as damages for the alleged breach of contract. The misjoinder of causes of action is not a “defense,” in the sense applicable to that term, and therefore is not the subject of allegation in the answer. The justice may not necessarily be advised of the contents, of the pleadings when they are in writing and filed with him, unless his attention is for some purpose particularly called to them. So far as appears, the question of misjoinder of causes of action in the complaint was not raised by any suggestion, objection, or application made to the justice or his court until after the close of the plaintiff’s evidence, and then by motion for nonsuit on that and other grounds. The defendant could properly in the outset have moved the justice to direct the plaintiff to elect on which alleged cause of action he would proceed to trial, or havespecifically raised the question by objection in such manner as to call upon the justice to rule upon it. Then his refusal to require the plaintiff to elect, or the overruling of the objection, would be available error. In a court of record, misjoinder of causes of action appearing on the face of the complaint is waived, unless the objection is taken by demurrer on that ground. Code Civ. Proc. §§488, 499. And the plaintiff, upon or without the determination of the issue of law by the court, may amend his complaint. In analogy to that practice, and upon that theory, the objection to misjoinder of alleged causes of action in a complaint in justice’s court should be taken in such manner as to have a ruling of the justice upon it before proceeding to trial of the action. This was substantially the practice applicable to justices’ courts before the Code. In Dunham v. Simmons, 3 Hill, 610, it was said that “the misjoinder should have been objected to by demurrer,” and the same was held in Willard v. Bridge, 4 Barb. 361, 365 ; Dean v. Gridley, 10 Wend. 254. For obvious reasons, liberality in pleading is extended to justice courts, and objections must be distinctly taken to support the charge of error on-review. As the defendant did not in the outset, and before proceeding to the trial, by an objection call upon the justice to rule upon the question of misjoinder of causes of action alleged in the complaint, he must be deemed to have waived such objection. The objection is one to be raised preliminarily to the trial. It constituted no defense on the merits, and was not available to the defendant upon motion for nonsuit. A careful examination of the evidence leads to the conclusion that the verdict of the jury was permitted by it, and that there was no error in the reception and rejection of evidence on the trial. The judgment of the county court should be reversed, and that of the justice affirmed.

All concur.  