#### Jacob Kent, Resp’t, *v.*Jacob Crouse, 1 ppl’t.

*(Supreme Court, General Term, Fourth Department,*

*Filed November,*1886.)

1. — Pleading — When causes of action peopeelt joined — Code Civil Peoceduee, § 484, Subdivisions 1 and 9.

Where there were three counts in the complaint the first of which alleged that defendant and one Ellis were co-partners in business at a certain time and that at a certain time Ellis died. That previous to and after the death of Ellis plaintiff did certain work, and expended certain money at the request of the said firm and of defendant with a certain amount in connection with said business. In the second count, it was alleged that K. performed services for defendant at his request and that the claim therefore had been assigned to plaintiff, and the third count alleged that defendant had consented to submit the above claims to arbitration, and after divers hearings, before the arbitrators but before final submission, defendant revoked the submission. That plaintiff had expended a certain amount in expenses in preparing for and conducting said arbitration, for which damages to the amount expended is claimed. *Held,*that these causes of action were properly joined under either the first or ninth subdivisions of § 4S4, Code Civil Procedure, that they are in no respect inconsistent with each other and that they affect the parties to the action alike.

2. ARBITRATION — COSTS — ONE REVOKING- AGREEMENT TO ARBITRATE LIABLE for costs — Code Civil Procedure, §§ 2384 — 484 sub ., 1.

Code Civil Procedure, § 2384, creates against one who revokes an agreement to arbitrate an implied contract to pay to his adversary the costs, expenses and damages incurred prior thereto by reason of the breach of the contract bringing the cause of action under the first subdivision of section 484, Code Civil Procedure.

At tbe Cortland special term, Aprií, 1886, on demurrer by defendant to the complaint on the ground that causes of action were improperly united in the complaint, the following opinion was delivered:

Merwin, J. — There are three counts in the complaint. In the first it is alleged that for several years prior to November 16, 1884, the defendant and one Lucy Ellis were copartners in carrying on a farm, that Ellis died on the 16th November, 1884, and the defendant thereafter continued to carry on the farm; that from the 1st day of April, 1884, to December 1, 1885, the plaintiff at divers times performed services and furnished mate*142rials and board for men, and expended money, all at the request of the said firm and of defendant, to the amount in the aggregate of $1,488.82, a copy of the account being attached to the complaint, all apparently being connected with the business of carrying on the farm, and part accruing before the death of Ellis, and part after. In .the second count it is alleged that between the 3d December, 1884, and the 18th April, 1885, one Minard Kent performed services for defendant at his request to the amount and value of $75, and that the claim has been assigned to plaintiff. In the third count, it is alleged that on the 8th October, 1885, the plaintiff and defendant made a written submission to arbitration of the claims specified in the first and second counts, the submission being set out in full, that after divers hearings before the arbitrator and on the 6th January, 1886, before the final submission of the matter, the defendant revoked the submission, that the plaintiff was thereby damaged' to the extent of $177.50 in costs and expenses in preparing for and conducting said arbitration, which amount plaintiff claims to recover. Under the authorities, it is well settled that a claim against a defendant, individually on a contract made with him alone, and a claim against a defendant as surviving partner on a contract made with the firm, can be joined in one action. *Goelet*v. *Mc*Kinstry, 1 Johns. Cases, 405; *Richards*v. Heather, 1 B. and Ald., 29; 1. Chittys. Pl., 7th ed., 57; *Nehrboss*v. *Bliss,*88 N. Y., 604, and cases cited.

The action against the survivor is said to proceed the same as if he were the only one ever liable (1 Wend, 151), and the matter of offset is regulated on that basis. 1 Paige, 445; 13 Metc., 132. It was therefore proper to join the first and second counts. And the fact that a portion of the claim in the first count accrued before the death of the partner and a portion after, would make no difference if it is all to be treated as an individual claim against the survivor. Whether or not the matters before the death and the matters after should be separately stated, is not important on this demurrer, as they could all be joined in one action. The third count is to recover damages for the breach of the agreement of the defendant to submit to arbitration. The revocation was a breach of the agreement (2 Pars, on Cont., 6th Ed., 711; *Miller*v. Prest, etc., 41 N. Y., 98, 100.) The agree ment is the basis of the cause of action. This count is therefore on contract and can be joined with the others, unless some force is to be given to the suggestion of defendant’s counsel that this cause of action is inconsistent with the others, inasmuch as on this count judgment could only be obtained on application to the count under § 1214, while on the other counts judgment might be obtained without such application.

Assuming this distinction to exist, it does not, I think, make the causes of action inconsistent within § 484. The cause of *143action is one thing, and the manner of obtaining judgment another. Legal and equitable causes of action, though calling for different manner of trial, may be joined. *(Lattin v. McCarty,*41 N.Y., 107; *Sternberger*v. *McGovern,*56 N.Y., 12). This was under the old Code ; the phrase “ consistent with each other ” ' was not in section 167 of that Code. It first came into the present Code by amendment in 1877, and what it is designed to cover is not entirely certain.

In the present case, the manner of trial on the different counts is the same. The fact that in case of default the manner of applying for judgment might be different on the different counts, would in no way jeopardize or affect the rights of the defendant. It would be immaterial as to him. That would not be sufficient ground for saying that the causes of action were inconsistent. I am therefore of the opinion that causes of action have not been improperly joined, and that the demurrer should be overruled with the usual leave to amend on payment of costs of demurrer.

From the order overruling the demurrer, defendent appealed to the General Term.

*O. Porter*for defendant, Appl’t; *Pierce Stone,*for plt’ff, Resp’t.

Boardman, J.

The interlocutory judgment should be affirmed with costs of appeal upon the opinion of Mr. Justice Mee WIN at Special Term.

I think the causes of action are properly joined under either the first or ninth subdivision of § 484 of Code of Civ. Pro.; that they are in no respect inconsistent with each other, and that they affect the parties to the action alike.

I also think that § 2384 creates against one who revokes an agreement to arbitrate an implied contract or obligation to pay to his adversary the costs and expenses and damages incurred prior thereto by reason of the breach of the contract, bringing the causes of action under the first subdivision “ contract express or implied.” Sec. 484, *supra.*

If this be doubtful, the claims arise out of the same transaction or transactions connected with the same subject of action under subdivision nine of § 844, and not included under any of the other subdivisions of that section.

No reason is apparent why these causes of action should not be tried and disposed of together. A money judgment is demanded in each case, and proof must be made as to each count of the value of the work, labor, etc., charged to have been rendered in the first two causes of action, and of costs and expenses paid and damages suffered in the third cause of action. It would seem unreasonable that two separate actions should be necessary to determine the rights of the parties where one would be equally effective.

Haedin and Follett, JJ., concur.