
    Bernard Hufnagel and Marie T. Hufnagel, Resp’ts, v. The Village of Mount Vernon, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    1. Pleading—Misjoinder of parties—Husband and wife when not PROPERLY JOINED AS PARTIES.
    The role is that the husband is not a necessary or proper party with the wife in an action by or against her separate estate. Cases cited and distinguished.
    2. Same—When a misjoinder of plaintiffs—When misjoinder of' actions.
    In an action brought to recover damages, claimed to have been caused to certain real property by the alleged maintenance of a nuisance, the complaint alleged that at about 1868 the plaintiff (Bernard) became owner of certain premises, etc.; 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 had occupied the premises, and that the defendant has discharged its sewers into the stream which flowed through the premises, rendering them unsalable and dangerous. Husband and wife are co-plaintiffs, and seek a joint recovery of damages. On demurrer, held, that there was a misjoinder of parties plaintiff, and that two actions, were improperly joined.
    Appeal from an interlocutory judgment, overruling defendant’s amended demurrer to the complaint, entered upon a decision rendered at the Westchester county special term.
    
      Isaac N. Mills, for app’lt; Dixon, Williams & Ashley,. for resp’ts.
   Pratt, 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 1868 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 thé'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, First. Misjoinder of parties plaintiff. Second. Causes of action improperly united ; and, Third. 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 hnsband 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 •citatation. 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 1

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 T.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. Baldivin (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.

Barnard, P. J., concurs ; Dykman, J., not sitting. .  