#### Julian B. Hart *et al.,*Individually and as Executors and Trustees under the Will of Benjamin I. Hart, Deceased, Respondents, *against*The Metropolitan Elevated Railway Company *et al.,*Appellants.

(Decided December 2d, 1889.)

A complaint alleging a cause of action against an elevated railroad com- ■ pany for damages for the construction and operation of its road in the street adjoining plaintiffs’ premises, and also a cause of action on a bond given by the company with sureties to pay all damages assessed, is bad on demurrer for misjoinder; as it attempts to unite a cause of action for a tort with one on contract.

Appeal from an order of this court overruling a demurrer to a complaint and from an interlocutory judgment entered upon such order.

The facts are stated in the opinion.

*Edward S. Rapallo*and *Brainard Tolles,*for appellants.

Causes of action have been improperly united, in that causes of action on contract have been united with causes of action in tort *(Keep*v. *Kauffman,*56 N. Y. 332; *Sebastey*v. Bache, 2 Law Bull. 42; *Booth*v. *F., &c., Nat. Bank,*65 Barb. 457; *Sweet*v. *Ingerson, 12*How. Pr. 331; *Flynn*v. *Bailey,*50 Barb. 73; *Ehle*v. *Haller,*6 Bosw. 661; *Tompkins*v. *White,*8 How. Pr. 520).

Causes of action have been improperly united, in that causes of action have been united which do not affect all the parties plaintiff. The causes of action, whether arising upon contract or from tort, which accrued in the lifetime of testator, are several and distinct from the causes of action which accrued after his death *(Secor*v. *Sturgis,*16 N. Y. 548 ; *Taylor*v. *Metropolitan &c. R. Co.,*25 N. Y. St. Rep’r 229 ; *Richards*v. *Kingsley,*14 N. Y. St. Rep’r 701; *Davies v. N. Y.**392*&c. R. Co.,*110 N. Y. 646; *Bell*v. *Merrifield,*109 N. Y. 202; *Cooper*v. *Randall,*59 Ill. 317 ; *Crothers*v. *Manhattan R. Co.,*N. Y. Law Jour. Feb. 19, 1889). It is evident that causes of action which accrued before the death of testator affect the plaintiffs only in their representative capacity, while those which accrued subsequent to his death affect the plaintiffs as individuals. The only escape from the conclusion that these causes of action cannot be united lies in the suggestion that each plaintiff, individually and as executor, constitutes but one party. Tested by the reasons for the rule, it doesnotseemto be true that “aperson can be, individually and as executor, ” one party ; *e. g.,*an estoppel against one in an individual capacity is no bar to an action in a representative capacity (*Wetmore*v. *Porter,*92 N. Y. 76). A counterclaim against one in an individual capacity is no answer to an action in a representative capacity, and *vice versa (Barlow*v. *Myers,*64 N. Y. 46; *Thompson*v. *Whitmarsh,*100 N. Y. 35 ; *Sperb*v. *McCoun,*18 N. Y. St. Rep’r 616). The costs of a person suing individually are paid by himself ; when suing in a representative capacity they are paid out of the estate , (Code Civ. Pro. § 3246). When an action is against one “ as executor,” and the complaint states a cause of action against him individually, the complaint does not state a cause of action against “ the defendant ” *(Austin*v. *Munro,*47. N. Y. 360). A. B., individually, and A. B., as executor, are distinct parties, considered as parties defendant *(Ferrin*v. *Myrick,*41 N. Y. 322; *McMahon*v. *Allen,*12 How. Pr. 46; *McMahon*v. *Allen,*1 Hilt. 103; *Latting*v. *Latting,*4 Sand. 35 ; *Myer*v. *Cole,*12 Johns. 349; *Landau*v. *Levy,*1 Abb. Pr. 376; *Demott*v. *Field,*7 Cowen 58 ; *Smith v. Groertner,*40 How. Pr. 185).

It has been directly held that a plaintiff cannot unite causes of action held in a representative capacity in the same complaint with distinct causes of action held in an individual capacity *(Lucas*v. *N. Y. Cent. &c. R. Co.,*21 Barb. 245 ; *Hall*v. *Fisher,*20 Barb. 441 ; *Spier v. Robinson,*9 How. Pr. 325; *Stanton y. Mo. Pac. R. Co.,*15 N. Y. Civ. Pro. 269). The parties being actually distinct, the rule in *Hufnagel*v. *393*Mt. Vernon*(49 Hun 386), is clearly applicable. In that case a demurrer was sustained, because the successive owners of the premises joined in a single action for damages due to a continuing nuisance.

Causes of action have been improperly united, in that causes of action have been united which do not affect all the parties defendant *(Nichols*v. Drew, 19 Hun 490; affirmed 94 N. Y. 22; *French*v. *Salter,*17 Hun 546; *Viall*v. Mott, 37 Barb. 208 ; *Hess*v. *N. F. &c. B. Co.,*29 Barb. 391; *Equitable Life*Ass. *Soc.*v. *Schermerhorn,*60 How. Pr. 477 ; *House*v. Cooper, 15 How. Pr. 292; *Barnes*v. *Smith,*16 Abb. Pr. 420; *Wills*v. *Jewett,*11 How. Pr. 242; *Leroy*v. *Shaw,*2 Duer *626; Tompkins*v. *White, 8*How. Pr. 520.)

*H. Morrison*and *L. J. Morrison,*for respondents.

Had testator lived his right of recovery would have been single, *i. e.,*to recover damages for the interruption in the use of the fee, and the plaintiffs sue executorially and individually, for the reason that the sum total of their titles is equal to the title of their testator and ancestor *(Armstrong*v. *Hall,*17 How. Pr. 76). In fact, had testator instituted an action during his lifetime, and died during the pendency thereof, the action could have proceeded only by substituting these plaintiffs, both executorially and individually *(Id.).*Had there been an omission to join all of the plaintiffs in their executorial and individual capacities, the complaint would have been defective under N. Y. Code Civ. Pro. § 448, which provides, *inter alia,*that “ those persons united in interest must be joined as plaintiffs,” as no final determination of the controversy could have been made. Conceding, *arguendo,*that two causes can be spelled out of the complaint, the joinder is permitted under this section.

Regarding the ground of demurrer that a cause of action for trespass has been joined with a cause on contract and for an injunction, suffice it to say in this connection that the cause of action is not for an injunction, but the injunction is sought remedially only. This is another case of confused terminology, or taking effect for cause. . The injunction is sought remedially only and in the alternative, and the fact of *394different or alternative relief being asked does not make out different causes of action. *(Meyers*v. *Van*Collem, 28 Barb. 230; *Latten v.*McCarty, 41 N. Y. 107; *Sternberger v.McGovern,*56 N. Y. 12; *Margraf*v. *Mair,*57 N. Y. 155; Story Equity Pl. § 42.)

Larremore, Ch. J.

This is an appeal from an order overruling a demurrer interposed by defendants to the plaintiffs’ complaint, andan interlocutory judgment entered upon such order. The action is one at law, brought to recover damages by reason of the erection and maintenance of the Elevated Railroad. One Benjamin I. Hart' owned the real estate in question at the time when the Gilbert Elevated Railroad first proposed to construct such road on Sixth Avenue, and he died seized of such premises before the commencement of this suit. On or about the 7th day of December, 1877, the said The Gilbert Elevated Railroad (whose name has since been changed to The Metropolitan Elevated Railway Company) executed a bond to said Benjamin I. Hart, upon which the defendants Navarro and Baird were sureties, and in and by which said company bound itself to pay, or cause to be paid, to said Hart, “ any sum which, by the final judgment or order of a court of competent jurisdiction, shall be adjudged or directed to be paid to him, as damages to said premises, by reason of the taking of the Sixth Avenue in front of said premises for the purposes of said road.” No judgment or award has ever been made any court for or on account of said damages, and the present suit is the first proceeding which has been instituted to recover or assess the same.

It is quite evident that the plaintiff has attempted to unite a cause of action" on tort with one on contract. The claim against the Manhattan Railway Company is for trespass and tortious invasion of easements; the claim against Navarro and Baird is on a sealed obligation for the payment of money. Clearly defendants’ demurrer should be sustained on this ground. It is true that the cause of action against. Navarro and Baird is not completely alleged in said complaint. It is, *395moreover, the fact that such cause of action has not yet arisen and does not actually exist, because no damages have ever been ascertained or awarded in the manner provided for by the bond, and therefore such bond has never become operative. But these considerations are immaterial upon the present application. The declaration is on a sealed instrument for the payment of money, and the technical rules of pleading are all that can be considered upon this branch of the demurrer.

I think this omnibus complaint is also demurrable on another of the grounds raised. It must be remembered that this action is. not on the equity side of the court, and that both parties concede that it is a suit at law. There are joined as parties plaintiff both the executors and the devisees of dhe'original owner. • The devisees are, undoubtedly, in a proper action, authorized to sue for the permanent damage to the fee of the land* The executors of the deceased owner are permitted by statute to sue for the aggregate loss of rents during the testator’s ■ life. But under the rules of pleading they should bring separate actions to establish their respective .rights. The manner in which this is practically raised on demurrer is by an objection to the complaint on the ground of misjoinder of parties plaintiff. Both the executors and the devisees may have separately good causes of action against the defendants, but the capacities in which they must sue are in law as distinct .as if they were actually different persons.

The point will, undoubtedly be made that in various actions in equity the practice now under consideration has been approved. The ground taken with regard to that class of cases is that when the suit is brought for an injunction, and it incidentally demands .indemnity for damages both past and present, such suit shall be taken as an action generally founded upon and affecting the title to real estate (See the opinion in Sanders v. New York Elevated Railroad Company and another, *ante, p.*388). The arguments adduced in that case do not apply in an action of the present character, and I see no reason for allowing here a conglomeration of causes of action in the same suit by separate plaintiffs, merely because they are against the same defendant.

*396Still a third point may be noticed briefly. As far as the suit of the devisees is concerned, there is a defect of parties plaintiff in that the name of Mary H. Dessau, individually, is omitted. The allegation of the complaint with regard to her individual interest shows that in the will there was an attempt to create a trust for her benefit, which trust is clearly void, and the effect of which is to vest the legal estate to her share of the property in her. She would therefore be a necessary party plaintiff in an action to recover damages for the permanent injury to the fee.

The judgment and order appealed from should be reversed and the demurrer should be sustained, with leave to the plaintiff to amend upon payment of costs.

J. F. Daly, J.

I concur with the Chief Justice that the demurrer should be sustained on the ground that two causes of action, that is to say, one upon contract and one for a tort, have been improperly united: also that the complaint does not state facts sufficient to constitute an action upon the bond, because no damages have ever been awarded to the obligee. But if these objections did not exist, I think that a recovery at law for damages might be had by these plaintiffs, who are suing as devisees as well as representatives of the deceased owner, in this action in which they claim the damages accruing up t’o the death of the testator and those sustained by them individually since his death, under the authority of *Armstrong*v. *Hall*(17 How. Pr. 76). But in its present shape the complaint is demurrable, and the order should be reversed and demurrer sustained, with leave to amend on payment of costs.

Van Hoesen, J., concurred in the result and in the opinion of J. F. Daly, J.

Judgment reversed.