Equitable Life Assurance Society v. Schermerhorn

Larremore, J.

The demurrer is laid to the supplemental complaint, which refers to, and incorporates as part thereof, the original complaint in this action. It is alleged that such supplemental complaint was made in pursuance of an order of this court, dated November 20, 1879, a copy of which is annexed thereto, whereby the widow, heirs-at-law, devisees, legal representatives, trustees and successors in interest of the deceased defendants in the original complaint were directed to be made parties, which was accordingly done.

Two causes of action are presented by the complaint:

1st. A claim for $20,000 damages for a malicious trespass by the original defendants, for the erection and continuance of the brick stacks mentioned in the complaint. ■

2d. The removal of the same from plaintiffs property, and injunctive process demanded against their maintenance and continuance.

It is difficult to reconcile these causes of action with section 384 of the Code of Civil Procedure. The newly made defendants cannot be charged in tort for an act beyond their control and, so far as appears, without their knowledge. .

Nor is it evident that the legal representatives of Schermerhorn and Craven, in whom no title to the premises in question is vested, are proper parties to an action for the removal of unauthorized structures thereon, and for a perpetual injunction restraining the continuance thereof.'

The statute says (sec. 484, sub. 9) that all - causes of action united as therein provided must affect all the parties to' the action. This test clearly distinguishes the case at bar. The order of November 20, 1879, should not control, as a clear issue of law is now presented for adjudication.

The demurrers are sustained, with leave to plaintiff to amend on payment of costs.