Charles D. Keep, Appellant, v. Abraham Kaufman, Respondent

Charles D. Keep, Appellant, v. Abraham Kaufman, Respondent. (Argued March 31, 1874; decided April 14, 1874.) A cause of action on contract for a breach of a covenant of quiet enjoyment contained in a lease, and one in tort for unlawfully entering the apartments leased and injuring the lessee’s property therein, cannot be joined. Appeal from judgment of the General Term of the Superior Court of the city of New York, reversing a judgment, entered upon an order overruling demurrer of defendant to plaintiffs complaint, and sustaining the demurrer and dismissing the complaint. Plaintiff’s complaint contained five counts. The first set forth a lease by plaintiff of defendant of certain apartments in the city of New York, with a covenant of quiet enjoyment, and alleged a breach of the covenant. The fifth count alleged that defendant by means of false keys, in plaintiff’s absence, obtained an entrance to said apartments, broke open a trunk of plaintiff’s and removed his goods therefrom and from said apartments “ willfully, maliciously and feloniously.” Defendant demurred to the complaint upon the ground that several causes of action were improperly united. J. Worden Gedney for the appellant. The joinder in the complaint of the different causes of action was proper. (Code, § 167; Sweet v. Ingerson, 12 How. Pr., 331; Badger v. Benedict, 4 Abb. Pr., 176; Robinson v. Flint, 16 How. Pr., 242; 2 R. S., 383, § 36.) Levis Sanders for the respondent. The Code has only abolished the forms of action. (Peters v. Delaplaine, 49 N. Y., 363.) These causes of action fail to agree in any one of the three essentials necessary to admit of their joinder. (Hunter v. Powell, 15 How. Pr., 223; Hall v. Fisher, 20 Barb., 448.) An action in tort cannot be joined with an action on contract, though the subject-matter be the same. (Martin v. Mayor, etc., 1 Hill, 545; Sweet v. Ingerson, 12 How. Pr., 331; Stephen on Pledg. [9th Am. Ed.], 266; Bac. Abr., Action, title C.; 2 Wait’s L. & Pr.) The manner in which the breach is alleged does not determine the cause of action. (Howe v. Cook, 21 Wend., 31.) [MAJORITY — Rapallo, J.] Rapallo, J. The plaintiff, instead of availing himself of the leave granted by the General Term to amend his complaint, has appealed to this court, thus risking his case upon a mere question of pleading. The point involved is purely technical, and must be decided without reference to any considerations other than the rules of pleading. Though few of these remain in force, one still exists which is, that causes of action in tort and in contract cannot be joined. If there be any exception to this rule, it must spring out of the first subdivision of section 167 of the Code, which permits the joinder of several causes of action, legal or equitable, when they all arise out of the same transaction, or transactions conneeted with the same subject of action. Without entering into an extended discussion upon the subject, we deem it sufficient to say that, in our judgment, the case at bar does not fall within the exception. The first count of the complaint is for the breach of a covenant of quiet enjoyment contained in a lease. The fifth count is for entering the apartments of the plaintiff with false keys, breaking open his trunks, and maliciously and feloniously removing and injuring his property. We think that the Superior Court correctly decided that this departure from the rules of pleading, which were well settled before the adoption of the Code, is not sanctioned by section 167. The judgment should be affirmed with costs. All concur. Judgment affirmed.