Flynn v. Bailey

By the Court,

Miller, J.

I 'think that the first count in the plaintiff’s complaint contains a good cause of action. According to the printed points submitted, the principal and only objection to the first cause of action stated in the plaintiff’s complaint consists in the fact that the order therein set forth was served upon the defendant’s attorney, and not upon the defendant personally, and that the attorney, and not the defendant, refused to refund the money. It is claimed that the service upon the attorney was not a compliance with the order, and that his refusal was not equivalent to a refusal of the party, and for that reason the judgment still remains *77unvacated and in full force. The point is not very fully discussed in the defendant’s brief, and is not noticed by the plaintiff, and I must .therefore dispose of it with such light as I am able to obtain, instead of any special aid from either of these sources of information.

I think that the service upon the attorney was sufficient, and in conformity with the order. The order provided that if the defendant refused to refund the money within twenty days after service of a copy, then the judgment should be vacated and set aside unconditionally. It did not require a personal service upon the defendant, and as he had appeared ■ by an attorney I think that a service upon such attorney was all that was required. As a general rule, when an attorney is employed, all papers in the cause must be served upon him, instead of the party. . (Code, § 417.) He stands in the place of the party, and acts for him and in his behalf. It is his duty to protect the rights of the party, and to see that they are properly cared for. Where an attorney has given notice of retainer, the only exception to the rule that all papers in the action must be served upon him is, in case the object is to bring the party into contempt. In such case the service should be personal as the remedy is sought against the party individually as in a proceeding for a contempt. (1 Bur. Pr. 3gl, 352.) The order in' the case, set forth in the plaintiff’s complaint, vacated the judgment if the money was not refunded within a given time, and was not, I think, within the exception named, so as to require a personal service upon the defendant.

As to the second cause of action, I am inclined to think that it is improperly united with the first, and that the demurrer should be sustained for that reason. The first cause of action is for the recovery of money collected upon a judgment, regular upon its face, and not for a tort. The second cause of action is, to recover damages for the alleged false imprisonment of the plaintiff. They are not both of the same character, and if they can be united it must he for the reason

*78[Albany General Term, March 4, 1867.

that they arose out of the same transaction or transactions, connected with the same subject matter as the action. (Code, § 167, subd. 1.)

I think this does not sufficiently appear, and the general allegation in the complaint, to that effect, does not establish that fact. It is not stated in what way or manner it thus arose, but is left entirely to be inferred. This is not enough. It should appear satisfactorily and clearly by the pleading itself, that the cause of action alleged, originated out of the same transaction, by a proper statement of the facts. The Code (§ 142, subd. 1) requires that the complaint shall contain a plain and concise statement of the facts which constitute the cause of action. This applies to each count of a complaint, and the general allegation that the last cause of action arose out of transactions connected with the first, does not, I think, establish a case within the rule here laid down. It requires some effort of the mind, some.process of reasoning, to determine how such can be the fact, and the pleading does not show in what way or manner the two causes of action are connected. Such a statement is not plain and concise, as the Code demands. It is quite manifest, therefore, that the second count is defective, and for the reasons given, not properly united with the first count.

Although the first count is good as an independent cause of action, yet there being an improper joinder of actions, and the demurrer interposed for that very reason, I think the defendant is entitled to judgment upon the demurrer, with leave to the plaintiff to amend upon the usual terms; and that the order of the special term should be reversed, with costs of the appeal.

Peckham, Miller and Hogeboom, Justices.]