The demurrer interposed took the specific objection that the first cause of action pleaded was in tort, while the second was on contract, and so there was a misjoinder of causes of action. The General Term sustained the objection. It is now claimed that both counts were on contract, and the first is construed to allege a debt against Drew, McLane and Young, which is sought to be recovered, while Churchill is introduced as a party, and his and Drew's fraud alleged, solely to set aside the assignment to Churchill, and restore the plaintiff to the position of a creditor of the firm. But the pleading plainly avers a fraud perpetrated by Drew and Churchill, whereby the plaintiff suffered damage to the amount of seventy-five per cent of his debt. The loss of the debt as damages *Page 26 suffered, and not its recovery upon the contract, is the substance of the pleading.
But if this were doubtful, and the first cause of action could be deemed ex contractu, and aimed solely at a recovery of the debt, a difficulty remains. An objection was stated in the demurrer that the second cause of action did not affect the defendant Churchill. Although it repeats the allegations of the first count, it goes on to show, and does clearly show, that Churchill was in no manner affected by it; for it avers that the moneys said to be in the hands of Saunders were not included in the assignment to Churchill, but reserved therefrom, and that the false statement of moneys in the hands of Saunders and their assignment to plaintiff was before the latter's assignment to Churchill. Now the only pretense for making Churchill a party, upon the theory that both causes of action are on contract, is to set aside the assignment to him. But the Saunders money, or so much of the debt of the firm as that represented, is distinctly averred not to have been assigned to him, so that, taking as true, as we are bound to do, the allegations of the complaint, it distinctly appears that to the second cause of action Churchill was an entire stranger, and in no manner affected by it. The Code provides (§ 484), for the joinder of causes of action, naming in nine subdivisions those which may be united, but applying further to those in each class the limitations that they must be consistent with each other, and, except as provided by law, must affect all the parties. The exception mainly relates to mortgage foreclosures, as to which special provisions exist. The answer made to this difficulty is that no demurrer lies for making too many parties, and for such excess the party against whom a good cause of action is pleaded cannot demur. But the objection is not for a misjoinder of parties. It is for a misjoinder of causes of action. Those arising on contract and affecting all the parties may be joined. Those arising on contract but inconsistent with each other, or not affecting all the parties, cannot be joined, and the defect may be reached by demurrer. The General Term was, therefore, right in its conclusion. *Page 27
We are at liberty to allow the plaintiff to plead anew or amend upon such terms as are just, or if need be, to direct a severance of the action. (Code, § 497.) No necessity for such severance is suggested, but it seems proper to allow the plaintiff to amend upon terms which are just. The judgment of the General Term should be affirmed, with leave to the plaintiff to serve an amended complaint within twenty days from notice of the entry of this judgment, upon payment, within the same time, of costs from the service of the demurrer, including those on appeal to the General Term and to this court.
All concur.
Judgment accordingly.