Caroline B. Powers, Respondent, v. Clarence E. Sherin, Appellant

Caroline B. Powers, Respondent, v. Clarence E. Sherin, Appellant. Action for injury to the person and to personal property — two causes of action exist — the plaintiff will he required to state them separately — demurrer to misjoinder of causes of action not separately stated. An injury to the person and an injury to personal property resulting from the same negligent act give rise to two independent causes of action, and as the statutes of limitations governing such two causes of actions are different, they should not he pleaded in a single count, and the plaintiff will he required to separately state and number them. Semble, that where causes of action which may not he joined are pleaded in a single count the defendant may demur for misjoinder without first requiring that the causes of action be separately stated and numbered. Appeal by the defendant, Clarence E. Sherin, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of October, 1903, as denies the defendant’s motion to require plaintiff to separately state and number the causes of action intermingled in one count of the complaint. Francis B. Chedsey, for the, appellant. William, G. Relyea, for the respondent. [MAJORITY — Laughlin, J.:] 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; Growell 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 só far as appealed from reversed, with ten dollars costs and disbursements, and motion granted, With ten dollars costs.