CASES OF PRACTICE

AND

DECISIONS IN SPECIAL PROCEEDINGS,

AT THE

GENERAL AND SPECIAL TERMS

AND AT CHAMBERS.

JOHN H. EHLE, Plaintiff and Appellant, v. PETER HALLER, Defendant and Respondent.

1. On an appeal from an order sustaining a demurrer to the complaint, the objection that the order does not conform, in its terms, to the decision actually made, cannot be considered.

2. Nor can the objection that the demurrer is not signed by the party, nor by any attorney as attorney, be regarded.

3. A complaint, stating breaches of a defendant's written contract to sell and convey real estate to the plaintiff, and an assault and battery subsequently committed on the plaintiff in forcibly taking said contract from his possession, is bad on demurrer. It unites several causes of action that cannot be included in one suit.

(Before BosWORTH, Ch. J., HOFFMAN, WOODRUFF, PIERREPONT, and MONCRIEF, J. J.)

Heard, December, 1859; decided, January 7th, 1860.

APPEAL from an order made November 17, 1859, by Mr. Justice PIERREPONT, sustaining a demurrer to the complaint, with leave to amend the complaint in twenty days, on payment of costs.

Ehle v. Haller.

The complaint states, that on the 28th day of January, 1859, the defendant executed and delivered to the plaintiff a contract or articles of agreement, which bore date the 26th day of January, 1859, and was duly sealed and signed by the defendant as party of the first part thereto, and by the plaintiff as party of the second part thereto.

That in and by the terms of said articles of agreement the defendant agreed to sell and convey to the plaintiff a certain lot of ground with the appurtenances thereto, situated on the easterly side of Ninth avenue between Thirty-ninth and Fortieth streets, known as No. 482 Ninth avenue, in the city of New York, to contain twenty-five feet front on Ninth avenue, extending twenty-five feet in breadth or width to the rear of the lot one hundred feet in depth, for the sum of $3,000. And that the plaintiff should have the use of all the upper part of the house above the blacksmith shop in the basement, from the date of the said articles of agreement. And that the plaintiff should have the privilege of building on the front and rear of the said lot, and a right of access with building materials through the blacksmith shop to the rear of the lot from the time of the execution and delivery of the said articles of agreement, until the 1st day of April, 1859, on which day the defendant should convey by warranty deed, and deliver the whole of said property and premises to the plaintiff or his assigns, on the 1st day of April, 1859. After stating the provisions of the contract as to the payment of the purchase-money, the complaint avers, "that immediately after the said articles were executed and delivered by the respective parties thereto, the defendant caused certain fixtures, parts of partitions, and a second floor over the floor in the store, to be severed and removed from the premises, which were a part of the real estate sold and to be conveyed to the plaintiff. And that the defendant immediately proceeded to occupy the store on said premises as a workshop and for the purpose of shoeing horses, by means whereof the said property and premises were damaged and of less value to the plaintiff. And the defendant let and rented the whole upper part of the house, and received the use thereof in violation of the said articles of agreement. And plaintiff further says, that since the execution and delivery of the said articles of agreement, he has been to great cost and ex

Ehle v. Haller.

penses in making preparations to build a first class house on said lot, twenty-five feet front on Ninth avenue, by ninety feet deep, with a basement the whole size of the house and vaults under the sidewalk in front, and incurred liabilities amounting to more than $2,000 towards the construction and erection and building such house on said premises, with the intention of having the said house fully completed by the 1st day of May, 1859, relying wholly on receiving a good conveyance and title to the said premises from the said defendant pursuant to the said articles of agreement.

"And the plaintiff further says, that, on the evening of the 14th February last, the defendant falsely and fraudulently induced and decoyed the plaintiff to his (the defendant's) residence in said city for the purpose of robbing plaintiff of said articles of agreement, and then and there committing violence on the person of the plaintiff; and that the said defendant did, then and there, on the night of the 14th February, 1859, commit a violent assault on the person of the plaintiff, by forcibly taking from the person of the plaintiff, against his will and in opposition to all physical resistance on the part of the plaintiff, the aforesaid articles of agreement.

"And the defendant, then and there, with threatening gestures, placed himself in a striking attitude towards the plaintiff, and threatened to strike the plaintiff in his (the defendant's) own house, ånd stated, at the same time, that the plaintiff should do nothing more on the said premises under the said articles of agreement. And the plaintiff further says, that the defendant has ever since prevented, hindered and deprived the plaintiff of the benefits of the said property and premises aforesaid, in violation of the said articles of agreement, and also prevented the plaintiff from proceeding with the building of such house on said premises, in violation of the aforesaid articles of agreement.

"And the plaintiff further says, on his information and belief, that, by means of the wrongful acts of the defendant in the premises as aforesaid, he (the plaintiff) has sustained damage to the amount of two thousand dollars.

"Wherefore, the plaintiff demands judgment against the defendant for two thousand dollars damages, besides the costs of this action."

Ehle v. Haller.

The demurrer specifies, as grounds of demurrer,

1st. That several causes of action have been improperly united. 2d. That the cause of action for damages for not fulfilling the contract set forth in the complaint is improperly united with the cause of action for assaulting the plaintiff and forcing him to give up said contract.

3d. That the cause of action for withholding possession of the premises mentioned in said contract is improperly united with other causes of action stated in said complaint.

4th. That several causes of action are stated in said complaint, but are mingled together, and not separately stated.

5th. That causes of action inconsistent with each other are united in said complaint.

6th. That a cause of action for damages for breach of contract to convey real estate is improperly united with a cause of action for withholding the possession of said real estate, and other causes of action for converting and carrying away a part of such real

estate.

7th. That the complaint does not state facts sufficient to constitute a cause of action.

8th. That a cause of action upon contract is improperly united with causes of action for torts.

The demurrer is signed "Taber & Reavey, No. 31 Insurance Buildings, No. 51 Wall street." The order appealed from recites that it was made after hearing A. H. Reavey, Esq., of counsel for the defendant.

John H. Ehle, the appellant (in person) insisted,

1st. The demurrer is bad, because it is not signed by the defendant or by Taber & Reavey, as attorneys for defendant; but is signed "Taber & Reavey, No. 31 Insurance Buildings, No. 51 Wall street."

2d. The demurrer in this case was sustained on the second ground and cause of demurrer, specified in the defendant's demurrer, and was so decided by the Court on the 16th day of November last without awarding costs on such demurrer, and was so entered by the clerk of the Court in his minutes and order book, as the decision of the Court on the demurrer in this

cause.

Ehle v. Haller

3d. The order entered in this cause from which this appeal is taken, should be reversed on the ground: That the addition, of the payment of costs by the plaintiff to the defendant, was made some time after the cause had been decided by the Court, and such decision had been entered by the clerk in the minutes and order book as the decision on the demurrer in this cause without any costs being allowed or awarded by the Court on such decision.

4th. The order appealed from in this case should be reversed, and judgment ordered for the plaintiff in this complaint in this action. Nothing appears in the complaint to sustain the defendant's second cause or ground of demurrer.

5th. The matters of contract stated in the plaintiff's complaint, are stated as inducement to the action of tort, which is stated in a subsequent part of the complaint, and are necessary and proper to base the plaintiff's action of tort upon.

"Matters of contract are proper to be stated in the complaint as inducement to an action of tort." Ridder v. Whitlock, (12 How. Pr. R., p. 208,) and cases there cited.

6th. All the statements in the plaintiff's complaint are necessary and material. 1st. To show the defendant's motive in committing such tortious acts: 2d. To show that the wrongful acts of the defendant and that all the plaintiff's damage resulting from such acts, originated in the same transactions connected with the same subject of action, and are not subject to demurrer. (1st and 3d subd. of § 167, of the Code; Badger v. Benedict, 4 Abb. Pr. R., 176.) 7th. The defendant's remedy to correct the complaint is by motion, demurrer will not lie for not separately stating causes of action, they being such as might be united. (4 Abb. Pr. R., 176; id., 202; Waller v. Raskan, 12 How. Pr. R., 28; Moore v. Smith, 10 id., 361; 9 id., 336; Robison v. Judd, id., 378; id., 129; 11 id., 408; 12 id., 28; 2 Abb. Pr. R., 482; 4 id., 176.)

8th. The plaintiff's complaint in this case is limited to a recovery in trespass for the damages sustained in consequence of the wrongful acts of the defendant, by the prayer in the complaint, and thereby plainly designated that there is no cause of action on contract in the complaint.

"It is the judgment asked for by the complaint, that determines to which subdivision the action belongs." (Spalding v. Bosw.-VOL. VI.

84