Powers v. Sherin

Full title: CAROLINE B. POWERS, Respondent, v . CLARENCE E. SHERIN, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 1, 1903

89 App. Div. 37 (N.Y. App. Div. 1903)

85 N.Y.S. 89

Opinion

December, 1903.

Francis B. Chedsey, for the appellant.

William C. Relyea, for the respondent.

LAUGHLIN, J.:

The action is brought to recover $5,000 damages for personal injuries and for injuries to personal property alleged to have been sustained through the negligence of the defendant. It is alleged in the complaint that the plaintiff was riding in a victoria on Riverside drive in the city of New York, and that the defendant, while operating an automobile in the same direction, overtook and negligently ran her down, inflicting personal injuries and also injuring her horses and damaging her victoria.

Until the recent decision of the Court of Appeals in the case of Reilly v. Sicilian Asphalt Paving Co. ( 170 N.Y. 40), holding that a recovery for injuries to personal property is not a bar to a subsequent action for personal injuries sustained by the owner of the property through the same negligent act, it was quite generally supposed by the legal profession, where an individual was injured and his personal property was damaged by the same negligent act, that but a single cause of action existed; and it was common practice to embrace both in a single count. Where causes of action which may not be joined are pleaded in a single count of the complaint the defendant may demur for misjoinder without first requiring that they be separately stated and numbered. ( Goldberg v. Utley, 60 N.Y. 427; Crowell v. Truesdell, 67 App. Div. 502.) The Court of Appeals, however, having decided that there are two causes of action in such case, on account of the Statute of Limitations being different concerning them, the facts constituting each should be stated and numbered separately. (Code Civ. Proc. § 483.) Although this is a question of practice and the right is regarded by the Court of Appeals as formal and not substantial and the decision denying the relief if approved by us would not, it seems, be reviewed by that court ( Goldberg v. Utley, supra), yet this court should enforce an observance of the requirements of the Code of Civil Procedure in this regard.

It follows, therefore, that the order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

VAN BRUNT, P.J., PATTERSON, INGRAHAM and HATCH, JJ., concurred.

Order so far as appealed from reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.