
    Esther Griffith, Plaintiff, v. Myer Friendly et al., Defendants.
    (Supreme Court, Steuben Special Term,
    January, 1900.)
    1. Misjoinder — Joinder of separate torts arising out of the same transaction.
    Under the Code of Civil Procedure (§ 484, subd. 9), a cause of action for a trespass upon personalty and an assault committed during the trespass may be united in a single count of the complaint and damages may be demanded for the combined injury.
    2. Possession — Sufficient against wrongdoer.
    Possession of personal property is sufficient to enable the possessor to maintain an action against a wrongdoer who takes the property away.
    3. Numbering and stating separately causes of action — Failure remedied by motion.
    The remedy, for a failure to number and state separately causes of action, is- by motion and not by a demurrer.
    Demurrer to complaint.
    Francis A. Williams, for plaintiff.
    James Bacon and Benjamin F. Levy, for defendants.
   Davy, J.

The principal question presented by the demurrer to the complaint is whether there is a misjoinder of the causes of action. The allegations in the complaint relating to the personal injuries are not separated from the other allegations therein relating to the injury for the wrongful taking of the personal property from plaintiff’s possession. Both actions are in tort, and are blended together in a single count, and damages are claimed for the combined injury.

The defendants by demurring to the complaint concede that they were trespassers and that they wrongfully took the property referred to in the complaint from the possession of the plaintiff, and while engaged in that wrongful act they committed an assault and battery upon the plaintiff.

I am inclined to think that the causes of action were properly united under subdivision 9 of section 484 of the Code of Civil Procedure, which authorizes the plaintiff to unite in his complaint two or more causes of action upon claims arising out of the same transaction, or transactions connected with the same subject of the action. The subject of the action in this case was the injury committed by the defendants in wrongfully taking from the possession of the plaintiff the property in question, and while engaged in that unlawful act they committed an assault and battery upon her. Both acts necessarily proceed from the same wrong and were transactions connected with the same subject of the action. The. plaintiff, therefore, is entitled to damages for being deprived of the use of the property taken from her possession, and to damages for the personal injury inflicted at the time that the property was wrongfully taken from her possession.

It was held in Lamming v. Galusha, 135 N. Y. 239, that where a railroad is maintained and operated in a street in front of the plaintiff’s premises that he may maintain an action for damages to his real property and may also claim in the same action damages for a personal injury resulting from being thrown from a wagon ' while driving along a highway on which the railroad was constructed, in consequence of his horse being frightened by the noise of a passing engine and train.

It is urged that the allegation in the complaint as to the plaintiff’s possession of the property is not sufficient, without any other evidence of title, to enable her to maintain the action. It has been repeatedly held that where property is taken from the posséssion of a person by a wrongdoer the party can maintain an action for the wrong though he is not the owner of the property. Frost v. Mott, 34 N. Y. 253.

In Stowell v. Otis, 71 N. Y. 38, Judge Earl says: The peace and good order of society require that persons thus in possession of property, even without any title, should be enabled to protect such possession by appropriate remedies against mere naked wrongdoers.” Wheeler v. Lawson, 103 N. Y. 41.

It is contended by the learned counsel for the defendants that the master cannot be held liable for the personal injuries to the' plaintiff inflicted by his servants. If the master in this case authorized his servants to take the property in question from the plaintiff, and through lack of judgment or discretion they went beyond the strict line of their duty or authority and inflicted a personal injury upon her, the master is liable. Cohen v. Dry Dock, East Broadway & Battery R. R. Co., 69 N. Y. 173; Rounds v. D., L. & W. R. R. Co., 64 id. 129.

It is also claimed that each cause of action should have been separately numbered and stated as required by section 483 of the Code of Civil Procedure. I am inclined to think that the defendants’ remedy for an omission to comply with the requirements of the Code in that respect is by motion and not by demurrer. Bass v. Comstock, 38 N. Y. 21; Gunn v. Fellows, 41 Hun, 257.

The demurrer, therefore, must be overruled, with costs.

Demurrer overruled, with costs.  