The court below was right in overruling the demurrers. The first count contains a cause of action for the deceit, and it was assignable. (Johnston v. Bennett, 5 Abb. N. S. 331. Haight v. Hayt, 19 N. Y. 464.)
As but two of the three purchasers of the interest in the lease assigned to the plaintiff, and as the purchase was by them jointly, there is a defect of uarties, un*504less it is covered by the allegation in the complaint that Darling released the defendant from liability to him.
[Fourth Department, Generar Term, at Buffalo, June 3, 1873.Mullin, Talcott and M. D Smith, Justices.]
It was decided in Baker v. Jewell, (6 Mass. 460,) that if a defendant, liable to several persons, for damages for a tort, settles with one of them, the action is thereby severed, and the other injured parties may maintain actions for their damages.
It was also held, in that case, that a false and fraudulent affirmation, made by a seller of an estate to two or more purchasers, is, in its nature, a several tort to each, and they cannot join in actions therefor. If this is the rule in this State, the plaintiff could maintain the action as the assignee of either Woodbury or McLean.
In any view of the question, the first count contains a cause of action.
I agree with the court below that the second count contains no cause of action. But I cannot agree that the third and fourth counts do not contain causes of action.
It seems to me that the allegation that the defendant is indebted to the plaintiff for money had and received by the defendant of Woodbury and McLean “on&c. as above stated,” incorporates the allegations of the first count in the other containing such reference, and renders them counts for money had and received by means of false and fraudulent representations. (1 Chit. Pl. 113, 385.) And as the liability grows out of the same transaction, as is alleged, with that contained in the first count, they are properly united. (Code, § 167.)
The order of the Special Term is affirmed; the defendant to have leave to answer.