Newcombe v. Chicago & Northwestern Railway Co.

Brady, J.

The arguments of the respective counsel in this case took a wide range, and embraced a great many propositions, consideration of all of which is entirely unnecessary for the disposition of the controlling questions involved herein. The conclusions arrived at upon a consideration of the whole case it may not be necessary to state, for the reason that, upon two points urged by the appellants, the judgment; seems to be erroneous, and must be reversed. The plaintiffs, as pledgees of the several bonds set out in the complaint, having become so in good faith, and for full value, were entitled to all the advantages springing from the possession of the bonds, and had a right to enforce them in this action, and in the attempt to do so should not have been interfered with by the defendants Lottimer and Bloodgood, either individually or as executors, further than to pay the amount of the plaintiffs’ indebtedness, and thus entitle themselves to the possession of the bonds. There does not seem to be any room to question the right of the plaintiffs to all the advantages suggested under the settled rules of this state, and- that such a transfer as was made to them passed the entire title, legal and equitable, in the bonds, see McNeil v. Bank, 46 N. Y. 331,—a case in which the subject was fully discussed and the rules clearly stated.

The contention that the defendants Lottimer and Bloodgood were improperly joined with respect to the averments concerning their interference with the plaintiffs’ rights cannot be sustained, for the reason that it was through their mischievous interference, as alleged in the complaint, that the defendant the railroad company refused to recognize the plaintiffs’ rights, and by the assertion of a title in themselves, which it was necessary to dispose of in order to enable the railroad company to perform what they were required to do under the conditions and provisions of the bonds. The union of these defendants was germane to the subject-matter, and perfectly consistent. By such a union the plaintiff's, assuming that the cause of action existed, would secure the judgment of the court affecting all the parties in reference to the title to the bonds, and dispose of the controversy raised by the attack of the defendants Lottimer and Bloodgood in reference to it, whether as executors or otherwise. The object of the plaintiff's was to obtain the advantages derived from the possession of the bonds, which was prevented only by the conduct of the defendants Lottimer and Bloodgood, whose attitude was antagonistic, and caused the delay. While different claims may not be united in a single cause of action by stating them together instead of separately, it is well established that where the facts alleged are all parts of one continuing act, creating a single cause of action, they may be united. People v. Tweed, 63 N. Y. 194; Lattin v. McCarty, 41 N. Y. 107; Rich v. Railroad Co., 87 N. Y. 382. In Lattin v. McCarty, the subject was fully considered, and the rule proclaimed that the joinder of several causes of action is expressly authorized, whether legal or equitable or both, where they arise in the same transaction, or transactions connected with the same subject-matter; and the right of the plaintiff to join causes of action such as stated in this case seems to have been determined in a kindred case by this court in Turner v. Conant, 10 Civ. Proc. R. 192. These observations are indulged in to express briefly the conviction that the complaint is not assailable for its combination of the allegations affecting the different defendants in the relations they bore to each other and to the plaintiffs.

It is contended, however, that Jerome L. Hill, who pledged the bonds, should have been made a party to this action; and this rests upon the propositian that by the pledge of the bonds the title remained in the pledgeor until it was divested by a sale upon notice, or by judicial process, and that a complete determination of the action could not be had in hjs absence. We have already seen that the transfer made herein vested the title to the bonds in question in the plaintiffs. But that circumstance did not deprive Hill of the right to redeem the bonds by the payment of the indebtedness secured by them, and he has a residuary interest in the balance remaining after the payment of the lien upon them. It is not understood, therefore, how the plaintiffs can be declared to be the owners of the bonds in this action without his presence, or some effort to bring him into court. The answer to this objection is not satisfactory. It is that the title derived from Hill as pledgeor did not require his presence as defendant, because, the bonds being coupon bonds and payable to bearer, the title was vested by delivery to the plaintiffs, and, having the title as against these defendants, they are entitled to sue as owners; and the-further proposition that, if the plaintiffs were liable to account to Hill, they are trustees of an express trust, holding the title with such liability, and can sue without joining him. The particular reference as to these propositions was-made to Sheridan v. Mayor, etc., 68 N. Y. 30, and Wetmore v. Hegeman, 88 N. Y. 69, and to other cases establishing the right of the pledgee to enforeethe subject of the pledge. These cases, although they bear upon the question of the right secured by the pledgee, did not determine'thepoint involved; indeed, had no reference to it. The learned counsel for the plaintiffs, therefore,, by inference, assumes that it is not necessary to make Hill a party to this action. It is true that Hill does not appear to have participated in the interference with the plaintiffs’ rights, and for that reason, in regard to that branch of the controversy, was not a necessary party; and, if the object of the plaintiffs was simply to prevent such interference, the action could proceed without the appearance of Hill. But the relief demanded extends beyond this, the plaintiffs asking that they may be declared to be the owners of the bonds, and as to this Hill seems to be a necessary party. There are no allegations which deprive him of his rights as a pledgeor of the bonds. His alleged insolvency, could have no such effect. There is therefore no legal reason assigned or apparent why he should not be made a party. Markham v. Jaudon, 41 N. Y. 235.

And again, there is a demand for damages against the defendants Lottimer and Bloodgood not only for their own acts individually, in reference to the cause of action, but their misconduct as executors,—a combination which it is very clear is not authorized by any form of pleading accepted in this state. It would necessarily involve punishment for acts done in both their individual and representative capacity, although the rules by which their responsibility would be determined are different. This practice cannot be approved in the due and orderly administration of justice, and'must be disfavored here as impracticable. The judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event, and with liberty to the plaintiffs to amend their complaint upon payment of costs. All concur.