Akely v. Kinnicutt

Decision Date05 July 1924
Citation144 N.E. 682,238 N.Y. 466
PartiesAKELY et al. v. KINNICUTT et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Jesse C. Akely and others, against G. Herman Kinnicutt and others. From an order of the Appellate Division (208 App. Div. 487,203 N. Y. Supp. 741), affirming an order of the Special Term, denying defendants' motion for severance of causes of action on ground of misjoinder of parties plaintiff, defendants appeal by permission.

Order affirmed.Appeal from Supreme Court, Appellate Division, First department.

J. P. Cotton, George H. Savage, Wilton Lloyd-Smith and Frank H. Hall, all of New York City, for appellants.

H. Preston Coursen, of New York City, for respondents.

HISCOCK, C. J.

This case involves the interpretation of a new and rather revolutionary provision of the Civil Practice Act. The action is brought by 193 plaintiffs, each one claiming to have an individual, separate, and independent cause of action against the defendants for damages caused by the fraud of the latter. The substance of each cause of action is that the defendants, with others, conspired to organize a corporation, and then to float its stock at much more than its actual value; that in pursuance of this conspiracy they caused to be prepared a prospectus which was widely circulated throughout the country, and which was intended to induce those who read it, or learned of its contents to buy the stock at a price much higher than its actual value, and that this prospectus thus issued was intentionally false and fraudulent, and misrepresented the value of the stock; that the plaintiff (in each cause of action), either seeing and relying upon the truthfulness of the prospectus, or relying upon the advice of some one who had seen and believed it, was induced to buy at a given date a certain number of shares of the stock in question at a price far in excess of its actual value, and each alleged cause of action seeks to recover from defendants the damages thus suffered.

These many causes of action being separate and distinct can be joined in one complaint, if at all, only by virtue of section 209 of the Civil Practice Act, which provides:

Section 209. Joinder of Plaintiffs Generally. All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist whether jointly, severally or in the alternative, where if such persons brought separate actions any common question of law or fact would arise; provided that if upon the application of any party it shall appear that such joinder may embarrass or delay the trial of the action, the court may order separate trials or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be entitled.’

The courts below have held that it is permissible under said section for plaintiffs to unite these many causes of action in one complaint, but the Appellate Division allowing an appeal for the purpose of reviewing such decision has certified to us the following questions:

(1) Does each of the 193 causes of action alleged in the complaint herein contain such a common question of law or fact as to permit the joinder of all of said causes in one action pursuant to section 209 of the Civil Practice Act?

(2) Does section 209 of the Civil Practice Act violate section 2 of article 1 of the state Constitution, in so far as said section purports to permit, under the circumstances shown in this action, all persons to join in one action, as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise?’

[1] There may be considerable doubt whether the questions thus certified are determinative of the correctness of the decision appealed from, and, if not, the appeal should not be considered. It is not only necessary to the joinder in one complaint of causes of action under the statute in question that they should involve a common question of law or fact, but it is also necessary that they should arise out of the same transaction or series of transactions. The question whether the latter feature is present is not specifically submitted, but inasmuch as the parties have argued at length the validity of the order which has been made denying separate trials, we shall interpret the questions which have been certified to us liberally, and regard them as impliedly involving all of the questions necessary to an interpretation of the statute in question.

[2] The statute before us is substantially a copy of a provision in the English Practice Act, and of course its purpose is to lessen the delay and expense of litigation by permitting the claims of different plaintiffs to be decided in one action instead of many, when, although legally separate and distinct, they nevertheless so involve common questions, and spring out of identical or related transactions, that their common trial may be had with fairness to the different parties. The statute is a remedial one in promotion of the purpose in these times so insistent and widespread that the delays and expenses of litigation shall be lessened where possible, and as such it is to be liberally construed.

[3] We shall consider first the question certified and earnestly argued by counsel whether the causes of action which have been joined in this complaint do involve such a common question of law or fact as justifies the court in permitting them to be united in one complaint. It is necessarily admitted by the defendants that they do involve some common questions of law and fact, but it is insisted that these common questions, when compared with all of the questions which must be determined in each case, are not of such comparative weight or importance as to justify the union which is being attempted. We are not able to agree with this view. We do not need to hold that the presence in each cause of action of some common but inconsequential or theoretical issue would be a sufficient reason for assembling in one complaint nearly 200 causes of action. We shall assume in this case that such common questions must be of substantial importance as compared with all of the issues, and that the question of the comparative weight and importance of common and separate issues involved in each cause of action is quite largely a matter of judgment. But even on that theory we do not think that it can be said by us as matter of law in this case that there are not present in each cause of action common issues, which amply satisfy the test of the statute. The common issues are basic, and would seem to be the ones around which must revolve the greatest struggle, and to which must be directed the greatest amount of evidence. These are in the...

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43 cases
  • Nagler v. Admiral Corporation
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 2, 1957
    ... ... Its range can be seen from an early and famous case in New York, Akely v. Kinnicutt, 1924, 238 N.Y. 466, 144 N.E. 682, upholding the joinder of 193 plaintiffs seeking individual damages caused by reliance upon a ... ...
  • Opal v. Material Service Corp.
    • United States
    • United States Appellate Court of Illinois
    • April 2, 1956
    ... ...         The opinion in the Gombi case referred to the leading New York case of Akely v. Kinnicutt, 238 N.Y. 466, 144 N.E. 682, 684, without, however, distinguishing the fact situations. In the New York case 193 plaintiffs joined ... ...
  • Hammer v. British Type Investors
    • United States
    • U.S. District Court — Southern District of New York
    • January 20, 1933
    ... ... Due to section 209 of the New York Civil Practice Act, however, such a joinder of plaintiffs in one action is now permissible. Akely v. Kinnicutt, 238 N.Y. 466, 144 N.E. 682, was a similar case, where it was held that the claims of the numerous plaintiffs, though separate, arose ... ...
  • James v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • June 23, 1943
    ... ... and that they are capable of and do perform extraordinary ... intellectual feats. Cf. Akely v. Kinnicutt, 238 N.Y ... 466, 475, 144 N.E. 682; Crandall v. A. B. Leach & Co., ... Inc., 222 A.D. 292, 225 N.Y.S. 649, 927. Justice, rough ... ...
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6 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • August 18, 2014
    ...§14:211 Aivaliotis v. Continental Broker-Dealer Corp. , 30 AD3d 446, 817 NYS2d 365 (2d Dept 2006), §§40:311, 40:333 Akely v. Kinnicutt , 238 NY 466, 144 NE 682 (1924), §14:291, 14:311 Akinrosotu v. Kellman , 289 AD2d 112, 735 NYS2d 30 (1st Dept 2001), §3:162 Akpinar v. John Hancock Mutual I......
  • Parties
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 1 - 2016 Contents
    • August 18, 2016
    ...connection between parties and causes of action, the requirements of CPLR 1002 are satisfied. CASE EXAMPLES: • Akely v. Kinnicutt, 238 NY 466, 144 NE 682 (1924) (193 plaintiffs permitted to join individual claims in one action for damages arising out of false prospectus). • Great Northern T......
  • Parties
    • United States
    • James Publishing Practical Law Books New York Civil Practice Before Trial
    • May 2, 2018
    ...connection between parties and causes of action, the requirements of CPLR 1002 are satisfied. CASE EXAMPLES: • Akely v. Kinnicutt, 238 NY 466, 144 NE 682 (1924) (193 plaintiffs permitted to join individual claims in one action for damages arising out of false prospectus). • Great Northern T......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • August 18, 2016
    ...§14:211 Aivaliotis v. Continental Broker-Dealer Corp. , 30 AD3d 446, 817 NYS2d 365 (2d Dept 2006), §§40:311, 40:333 Akely v. Kinnicutt , 238 NY 466, 144 NE 682 (1924), §14:291, 14:311 Akinrosotu v. Kellman , 289 AD2d 112, 735 NYS2d 30 (1st Dept 2001), §3:162 Akpinar v. John Hancock Mutual I......
  • Request a trial to view additional results

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