
    David A. Lamming, Resp’t, v. Norman H. Galusha et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Pleading—Misjoinder of causes op action.
    The complaint in this action set forth a cause of action for nuisance-in obstructing a public highway by the erection of an embankment therein for defendants’ railroad, thereby cutting off access to plaintiff’s premises, and also stated in the body thereof, without separate numbering, allegations as to injuries sustained by plaintiff by reason of his horse becoming: frightened by one of defendants’ trains which was negligently operated, and the prayer for relief was for damages sustained by the unlawful use-of the highway “ in addition to the body and physical injuries.” Held, that there was a misjoinder of causes of action, and that the two causes of action did not arise out of the same transaction.
    2. Same—Demurrer.
    A failure of the plaintiff to state separately and number the causes of action does not preclude the defendant from interposing a demurrer on ther ground of misjoinder.
    Appeal by the defendants from an interlocutory judgment, entered in Monroe county May 26, 1891, overruling a demurrer to the plaintiff’s complaint, filed on the ground that two or more causes of action were improperly united in the complaint.
    
      C. C. Davy, for app’lts; Henry W. ConJclin, for resp’t
   Macomber, J.—The

demurrer is placed upon the ground that, it appeal’s upon the face of the complaint that causes of action have been improperly united, naming four particulars.

The plaintiff is the owner of certain lands in Irondequoit, lying along North avenue, which extends from the city of Rochester to-the Ridge road, and also of lands on the Ridge road near the intersection of that highway with North avenue, particularly described in the complaint. These premises are used for farming-purposes, raising vegetables and fruits for market in the city of Rochester, where they are carried by wagon, which makes nearly daily trips during several months, and goes two or three times a week during the remainder of the year. The plaintiff, with his-family, also goes to the city of Rochester for worship, being attendants upon a church there. The usual and most convenient and natural route from the plaintiff's dwelling, which is near the-Ridge road on a street known as Garden street, as well as from other parts of the plaintiff’s lands, to and from the city of Rochester, is along the Ridge road and North avenue to Bay street,, which is within the city limits, a distance of about two miles. Any other route is circuitous, and it is alleged is -inconvenient and involves traveling half a mile further, at additional delay,, labor and expense.

Thence follow allegations, showing with much circumstantiality that the defendants before and since the first day of July, 1887, to the present time have habitually interrupted access to his-houses, and interfered with the use of a sand and gravel bed on his premises by the unlawful construction and operation in these-public highways of a railroad operated by steam, and the easy marketing of his crops; that plaintiff’s lands extend to the centre of both 'North avenue and the Ridge road, and that the defendant, has wrongfully and unlawfully built and maintained high embankments in North avenue, obstructing the natural drainage of the road, and otherwise obstructed travel thereon and on the-Ridge road, rendering them during certain seasons of the year impassable to vehicles; that said embankments cause the drifting and accumulation of snow, so that the highway cannot, be traveled. Suffice it to say, in short, that the grievances of the public, as well as the plaintiff’s personal grievances, are set forth in much detail. The complaint also contains suitable allegations of special injuries peculiar to the plaintiff alone, other than those suffered by the public at large. .

The facts of this case are summed up by another clause in the complaint, but to the same legal effect. It is then alleged that these acts of the defendant constitute a public nuisance and are a special injury to the plaintiff, and that, inasmuch as he has no adequate remedy at law, he comes into a court of equity and asks for damages and an injunction to restrain further wrongful operation of ■ the railroad, under suitable allegations averring threats, and intention on the part of the" defendant to continue to maintain such nuisance.

Here is, clearly, a cause of action set forth alleging the existence of a public nuisance, and showing that the plaintiff has suffered special and peculiar damages other than the public at large. If these allegations are established by evidence, and not overcome ¿by affirmative defenses, the plaintiff would be entitled to some relief. Adams v. Popham, 76 N. Y., 410. The complaint, as above epitomised, is a unit and contains only one cause of action. But, in the body thereof, there are other allegations which, certainly, for the purposes above mentioned, have no place there. Without ;any connection with the statement of the facts above mentioned, but without being separately numbered, it is alleged as follows: •“That on or about the 4th day of August, 1888, plaintiff, in the ■ordinary prosecution of his said business, was riding along said' North avenue in his market or produce wagon, and was driving Tais own horse attached thereto and going toward the north; that •said horse was a quiet and well trained animal, accustomed to •steam railroads and cars, and that plaintiff was driving with due care; that plaintiff had reached a point about midway between Norton street and the Ridge road; that thereupon■ one of said locomotive engines and train, operated by steam, approached from "the south running at a high rate of speed and making alarming ■noises by the escape of steam and otherwise, and without abating said speed or noise ran past plaintiff; that the approach of said, "train greatly frightened said horse, and as said train passed said horse got beyond plaintiff’s control and turned quickly, overturning said wagon, and threw plaintiff violently out of said wagon and to the ground ; that said horse in his fright and struggle to •escape stepped upon plaintiff’s head, shoulder and the lower part of his body, wounding and bruising plaintiff; that plaintiff, as •the result of said injuries, was confined to his bed for two weeks ■and to his house for three weeks and was necessarily under medical care for many' weeks thereafter, and suffered great pain; that ■said plaintiff has never recovered from said injuries, but is still 'subject at times to excruciating pain in said portions of his body, and never since said injuries has he been free from pain oe■casioned thereby; that since said injuries plaintiff has never been able to read or engage in mental labor, except for a few moments .•at a time, without bringing on a dizziness and headache sufficient to compel the cessation from such reading and mental labor.” 'Thence follow allegations that theretofore plaintiff was an unusually robust and healthy man, capable of doing hard and continuous labor ; that such injury incapacitated him for such labor, and "the effects of the injuries to him are permanent and incurable.

In the general prayer for relief it is stated that the injuries which, as we have said, would give him a cause of action to re•strain the continuance of the nuisance, are “in addition to the body and physical injuries already described.”

Here, in the body of this complaint, as it- seems to us, is a ■cause of action for personal injuries inflicted, as is alleged, by the defendants through their negligence in the. management of -their locomotive while passing along North avenue, and without fault on the plaintiff’s part. " This has no material bearing upon the facts as presenting the cause of action stated for relief against the nuisance. These allegations might be, and often are, true of a. railroad whose right to operate its trains is unquestioned; but which is liable only for the negligent use thereof. It appears to-us that in this respect there has been a misjoinder of causes of action, namely, one for the' relief from a nuisance where the plaintiff had suffered special damages by reason of the continued unlawful use of the highways; and the other a cause of action which rests upon allegations only of negligence in the operation of a particular train at a given time, to the damage of the plaintiff, when he was without fault.

Subdivision 9 of § 484 of the Code of Civil Procedure is-pressed upon our attention, where it is provided that there may be united in the same complaint claims arising out of the same-transaction or transactions connected with the same subject of action. But this negligent act of running a train on a particular trip cannot be said to arise out of the same transaction which constitutes the general burden of the complaint, nor is it connected with the same subject of action. The one cause of action is founded upon the maintenance of a nuisance, and the other for negligently operating a train on a particular occasion. We conclude, therefore, that the demurrer was properly interposed, upon the ground that there were attempted to be joined in the complaint two causes of action, one for relief against a continuing nuisance, and the other for personal injuries received-through the negligence of the defendants, happening without fault of the plaintiff, and we are of the opinion that these causes of action cannot be united in the same complaint.

These two causes of action are not separated, or stated to be-independent of each other, and they are not separately numbered. But under the decisions of Wiles v. Suydam, 64 N. Y., 173, and Goldberg v. Utley, 60 id., 427, the failure of the plaintiff to state* them separately, and to number them, does not preclude the defendant from interposing his demurrer upon the ground named, and the latter is not left to his remedy of making a motion to-compel the plaintiff to separate the causes of action, and to separately number them.

For these reasons we think the interlocutory judgment appealed from should be reversed

Interlocutory judgment reversed, with costs, and the demurrer sustained, with costs, but with leave to the plaintiff to amend on-payment of costs.

Dwight, P. J., and Lewis, J., concur.  