I think it clear that if the complaint alleged that the injury both to the property belonging to the city and the property belonging to the plaintiff occurred at the same time and was caused by the same fire which resulted from the negligence of the defendant, the case would come within subdivision 9 of section 484 of the Code of Civil Procedure which authorizes the plaintiff to unite in the same complaint two or more causes of action “ upon claims arising out of the same transaction or transactions connected with the same subject of action.” The failure of the plaintiff, however, to allege that the damages for which it seeks to recover upon those two causes of action were caused by the same fire would require us to sustain the demurrer to the complaint if that was the only subdivision of section 484 of the Code of Civil Procedure which was applicable. But I think that these two causes of action may fairly be said to come within subdivision 6 of that section which provides that causes of action may be united where they are brought to recover “ for injuries to personal property.” The first cause of action is based upon the damage that was sustained by the city in consequence of the fire which was caused by the negligence of the defendant and which destroyed property of the city to the value of $27,488. It seems to me that this was clearly a cause of action based upon injury to personal property. The question as to the defendant’s liability to the plaintiff was based upon the fact that the plaintiff had a contract with the city to do work upon this bridge; that the plaintiff sublet a portion of this contract to the defendant; and that the defendant in the performance of that contract negligently allowed a fire to start which consumed said property to the value stated. When the city sought to recover the damage sustained from the plaintiff *405the defendant had notice of that suit with an opportunity of defending, and, therefore, the proof of the negligence which caused the fire and the amount of the recovery was binding upon the defendant. The allegations as to the contract and the city were necessary to make the defendant liable to the plaintiff instead of to the city whose property was destroyed; but as I view it that does not constitute an action on contract or based upon the violation of a contract, but the action is still for the negligence of the defendant which caused the destruction of the city’s property for which the plaintiff has been held liable and for which, under its contract, the defendant assumed liability. The cause of action is for the destruction of property of the city, and I see no reason why the city could not have sued the defendant to recover for the damage it sustained in consequence of the defendant’s negligence. The city, instead of suing the defendant, sued the plaintiff, and in consequence of the relation of the plaintiff to the work that both plaintiff and defendant were engaged in, plaintiff was held primarily liable. When the plaintiff seeks to recover on that liability against the defendant, but for the adjudication in the action by the city against plaintiff, plaintiff would have to prove the defendant’s negligence and the destruction of the city’s property in consequence thereof. There is no reason why both of these causes of action should not be tried together, and the liability of the defendant for the destruction of the city’s property and the destruction of the plaintiff’s property disposed of at the same time. It seems to me that to hold that one cause of action is based on contract and that the other is for an injury to personal property, thus necessitating two trials, where the whole claim can be disposed of at one trial,- is not required by any section of the Code of Oivil Procedure or any of the cases cited.
I, therefore, dissent from the reversal of this judgment.
Dowling, J., concurred.
Judgment reversed, with costs, with leave to plaintiff to sever action on payment of costs in this court and in the court below. Order to be settled on notice.