I agree with much that is said in the opinion of Judge Tap-pan, hut I cannot concur in the result. We may, perhaps, assume that the allegation of conspiracy could be treated as surplusage; but, even then, we have the allegation of a joint act by two defendants, and the proof of -two separate acts, for which there is no joint liability. This is not a mere misjoinder of several causes of action; such a misjoinder arises when a plaintiff has several causes of action against the same defendant, which are such in their nature that they may not be united.
But, if a plaintiff should sue two defendants on an alleged joint note, and on the trial should offer to prove two separate notes — one made by each defendant — he could not be allowed to do this, although the defendants had not set up a misjoinder in their answer; or, if a plaintiff had alleged a joint assault and battery against two defendants, he could not sustain the complaint by proof of two separate assaults, one by each defendant.
Two separate, wrongful acts, or acts giving a cause of action, committed severally by two defendants, do not warrant a joint action or joint recovery.
The complaint must be construed as alleging a joint sale by the defendants. This the plaintiff failed to prove. Two separate sales by the defendants severally do not prove the allegations. Possibly the plaintiff might have been allowed to elect, and to recover against one or the other of the defendants; but we need not decide that. It is enough that he could not recover against both for their several acts. The case of Blossom v. Barrett (37 N. Y., 436,) was one where the two alleged causes of action were against the same party; one for fraud in procuring a marriage, •the other for assault and battery. So the case of Winterson v. Eighth avenue (2 Hilt., 389,) was one for damages, alleging that an accident occurred by a conductor’s negligence, and also that it Occurred by his willful .act. These cases do not touch this present .question.
The case of Fosgate v. Herkimer Manufacturing Co. (12 N, Y., 580.) was an action to recover possession of land, brought against one person, and several who held under him, according to the peculiar provisions of the statute. The cause of .action was *48only for recovery of one piece of land, and the persons having ■possession of parts of the lahd as tenants under the adverse claim.ant were made parties. This casé is not analogous to the present. • . 1
The judgment should be reversed and a new trial granted, and the reference discharged, costs to abide the event.