
    Hufnagel et ux. v. Village of Mount Vernon.
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    Husband and Wife—Action for Injuries to Real Estate—Parties.
    A joint action by a husband and wife will not lie to recover damages to real estate caused by a nuisance, where each owned the premises during part of the time for which damages are claimed, though they resided thereon together during the whole time.
    
      Appeal from circuit court.
    Joint action by Bernard Hufnagel and wife against the village of Mount Vernon, to recover damages for a nuisance to certain premises in the village. Defendant appeals from an order overruling its demurrer to the complaint.
   Pitatt, J.

This is an appeal from an interlocutory judgment entered upon a decision overruling defendant’s amended demurrer to the complaint. The action is brought to recover damages claimed to have been caused to certain premises—real property—by the alleged maintenance of a nuisance. In brief, the complaint alleges that, about 186—, the plaintiff Bernard Hufnagel became the owner of certain premises in the village of Mount Vernon; that thereafter he conveyed them to his wife, the other plaintiff, and that she thereafter conveyed the same to him, and that all the time he has occupied the premises; and that the defendant has discharged its sewers into the stream which flowed through the premises, and rendered the same foul and offensive, and rendered his premises unsalable and dangerous. Husband and wife are co-plaintiffs, and seek a joint recovery of damages. The demurrer is (1) misjoinder of parties plaintiff; (2) causes of action improperly united; and (3) that complaint fails to state a cause of action in favor of both plaintiffs. There was a misjoinder of plaintiffs, and two actions were improperly joined. The wife could sue alone for injury to her property while she owned it alone, and her husband was not a necessary or proper party to such action, and the same may be said of the plaintiff Bernard. The authorities are too uniform and numerous to require citation. The rule is that the husband is not a necessary or proper party with the wife in an action.by or against her respecting her separate estate. Baum v. Mullen, 47 N. Y. 578; Lore v. Dierkes, 51 N. Y. Super. Ct. 144; Beardsley v. Duntley, 69 N. Y. 580; Jaynes v. Jaynes, 39 Hun, 42. Also, Fitzgerald v. Quann, 33 Hun, 654. What kind of a verdict could be rendered in such a case? The damages are not the same in nature or amount, and the causes of action are distinct and dissimilar. The cases cited by respondents have no application. The case of Simar v. Canaday, 53 N. Y. 298, was for damages for fraudulent representations, by which the husband and wife had been induced to jointly execute a deed by which she had been deprived of her inchoate right of dower. The case of Ingraham v. Baldwin, 9 N. Y. 46, related to property rights existing before the law of 1848, in respect to the rights of married women. But both of these cases related to the entire fee or interest in the property. In this case no such question is involved, but the damages are to the possession, or personal in their nature. The two plaintiffs are not similarly affected by the nuisance, and the amount of damages would differ in the two actions. Therefore it is not necessary to discuss what would be the rule of damages in this case. The judgment should be reversed, and the demurrer sustained.  