Opinion
December 30, 1912.
Alfred E. Mudge [ James L. Quackenbush with him on the brief], for the appellants.
Alfred J. Gilchrist [ Jacob Neu and Charles Joseph with him on the brief], for the respondent.
The question presented is whether the defendants are entitled to invoke section 483 of the Code of Civil Procedure which provides that "Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered." The contention is that the pleader has set forth two causes of action in the first seven paragraphs of his amended complaint. In Payne v. N.Y., S. W.R.R. Co. ( 201 N.Y. 436) the court, after comment that the Code does not define a single or separate cause of action, says that there is no more technical and scientific definition than that of Pomeroy in his Code Remedies (§§ 455, 456), and quotes the language of that author as follows: "If the facts alleged * * * show one primary right of the plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action * * *. On the other hand, if the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably, from the foregoing principle, that the plaintiff has united two or more causes of action." Pomeroy further writes, in section 456, "if the single primary right should be invaded by two distinct and separate legal wrongs, * * * two causes of action would result." Application of these criteria convinces me that the appellants' contention is right. The plaintiff complains of injury to his realty in that, in the construction of additional stairways, exits and entrances to the railway system known familiarly as the subway, the defendants from May 1, 1910, until March 15, 1911, "caused to be erected, maintained and operated" upon the surface of the streets and on the sidewalk in front of and adjacent to plaintiff's premises structures, engines, steam boilers, tool sheds, work shops, derricks, fences and buildings, and thereby and in the prosecution of construction worked injury to his property rights. And plaintiff complains that the defendants by the permanent erection and maintenance of such stairways, exits and entrances, have injured his premises and his rights appurtenant thereto. Thus I think there are pleaded two distinct and separate legal wrongs; one temporary and incident to the work of building the stairways, exits and entrances, and the other permanent in that the existence and maintenance of the stairways, exits and entrances are an injury to his property rights.
The respondent contends that all of the defendants are answerable for both torts and that both torts arose out of one transaction, i.e., the building and maintenance of these stairways, but even so it does not follow that he has pleaded but one cause of action.
There can be no objection to the joinder of such causes of action. (Code Civ. Proc. § 484; 14 Ency. Pl. Pr. 1115, citing Hodges v. Hodges, 5 Metc. 205; Aldrich v. Wetmore, 56 Minn. 20.)
The order must be reversed, with ten dollars costs and disbursements, and the motion must be granted, with ten dollars costs.
THOMAS, CARR, WOODWARD and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.