Ader v. Blau

• Decision Date: 15 July 1925
• Citation: Ader v. Blau, 241 N.Y. 7, 148 N.E. 771 (N.Y. 1925)
• Court: New York Court of Appeals Court of Appeals
• Parties: IRVING ADER, as Administrator of the Estate of BERNARD ADER, Deceased, Respondent, v. MOLLY BLAU, Defendant, and HERMAN S. EMIL, Appellant.

241 N.Y. 7

148 N.E. 771

ADER

v.BLAU et al.

Court of Appeals of New York.

July 15, 1925.

Action by Irving Ader, administrator of Bernard Ader, deceased, against Molly Blau and Herman S. Emil. From an order of the Appellate Division (211 App. Div. 532, 208 N. Y. S. 164), reversing an order of the Special Term, granting a motion to strike out the second cause of action, and denying such motion, defendant Emil appeals by permission.

Reversed.

The following questions were certified:

1. ‘In an action by the administrator of a decedent to recover damages for a wrongful act, neglect or default by which the decedent's death was caused (Decedent Estate Law, § 130), may the plaintiff join as defendants two or more parties who are alleged to have been responsible for such death, but where the alleged wrongful acts, neglect or breach of duty are separate and distinct?’

2. ‘In an action by the administrator of a decedent to recover damages for a wrongful act, neglect or default by which the decedent's death was caused (Decedent Estate Law, § 130), may the plaintiff administrator join in one complaint a cause of action against one defendant for negligence or nuisance causing death, and another cause of action against another defendant, a physician, for alleged malpractice in treating the decedent for the injuries alleged in the first cause of action, which malpractice is alleged to have caused the death?’

3. ‘Are the causes of action alleged in the complaint properly joined under the provisions of the Civil Practice Act?’

Cardozo, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Jay Leo Rothschild and Gustave Posner, both of New York City, for appellant.

Nathan Bert Friedman and James M. Gorman, both of New York City, for respondent.

HISCOCK, C. J.

This action is brought by plaintiff under the statute to recover damages for the death of his intestate, a young boy. In pursuance of this purpose he has brought his action against two defendants. setting up a separate cause of action against each. In the first cause of action he alleges in substance that the death of his intestate was solely caused by the negligence of the defendant Blau in erecting and maintaining an iron picket fence, which was dangerous and attractive to children, and whereby intestate was injured in a manner which caused infection and death. In the second cause of action against defendant Emil, he alleges that intestate, being injured by a picket fence, came to defendant Emil, as a physician and surgeon, for treatment, and that the latter so negligently treated him that, solely by reason of such negligent treatment, intestate died.

By a proper motion the appellant Emil argued the proposition that these two causes of action could not be united in one complaint, but, while the Special Term agreed with his views, the Appellate Division, in an elaborate opinion, overruled them, and denied his motion, and, by his appeal, the question is now presented whether two such causes of action, respectively, against separate defendants, may be united in one complaint. Certainly, if this can be done, a step has been taken away from prior rules of practice and procedure, which will be regarded as a long and conspicuous one, even in these times when the desire for procedural reform and improvement has become strong, widespread, and fruitful. Of course, we ought not to be led into taking it, even under the alluring desire for progress and improvement, if it is forbidden by controlling rules and statutory provisions.

The answer to the questions which are submitted to us is governed by several sections of the Civil Practice Act. Section 209 of that act has only a remote bearing. It provides:

‘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.’

And it seems to be thought that a liberal provision for the joinder of plaintiffs ought to be helpful in an attempt to uphold the joinder of defendants. But, if it were possible, under any circumstances, to make a provision for the joinder of plaintiffs helpful argumentatively to an attempt to join defendants, that situation would not be presented by the facts of this case. The question which seemed, in the court below, to be thought to be one of fact, common to both causes of action set out in this complaint, ‘Who is liable for the death of plaintiff's intestate?’ is not, in our opinion, such a common question as is contemplated by this section. Akely v. Kinnicutt, 238 N. Y. 466, 144 N. E. 682.

Section 211 provides that:

‘All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative; and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities.’

Section 212 provides that:

‘It shall not be necessary that each defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him.’

It is not claimed that section 213 covers this action. In our opinion, these sections, even when considered by themselves and without reference to any other provisions, do not authorize any such inclusion of causes of action in one complaint as has been attempted in the present action.

Section 211 contemplates a case where a fundamental, common set of facts either entitles a plaintiff to relief against all the defendants, even though such relief may be predicated upon different relationships, or in the alternative against one of two or more defendants. An illustration of the latter condition would arise where the plaintiff had a single cause of action upon an obligation which entitled him to relief against one defendant if a relationship of principal and agent existed between that defendant and the other one giving the obligation, and which would entitle him to relief against the latter if no such relationship existed. Section 212 deals with a case where a given set of facts entitles the plaintiff to relief against all of the defendants, but where he may not be entitled to the same measure or kind of relief against one as against another, and where his right to relief may give him an additional cause of action against one defendant, which does not arise agianst another. But the section contemplates a case where there exists one set of facts entitling the plaintiff to relief against all of the defendants in some degree or form.

But, assuming that we might be tempted or forced to construe these sections, standing by themselves, as authorizing the present action, we are not at liberty to do this, for they are clearly limited by, and must be construed in the light of, section 258 of the Civil Practice Act, which relates to and governs joinder of causes of action, and which, so far as applicable, provides:

‘The plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover as follows: * * *

‘9. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, whether or not included within one or more of the other subdivisions of this section. * * *

‘It must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other.’

The inclusion in one complaint of the two causes of action which have been joined in this action is not authorized by any other subdivision of said section than subdivision 9, and therefore we come to the decisive inquiry whether that subdivision and the general clause relating to consistency authorize what has been attempted by the plaintiff in this case. We shall consider first the latter requirement. As has been pointed out, the cause of action alleged against each defendant is complete, independent, and exclusive of any other cause of action. Whatever the plaintiff might have done in the way of trying to connect the two causes of action he has rejected any such possibility and preferred to stand on another theory. Obviously, if the death of his intestate was caused by the negligence of the defendant Blau in maintaining a fence upon which the intestate received such injuries that his death resulted therefrom, the defendant Emil did not do anything to cause the death; and vice versa, if the defendant Emil by his negligence so treated an injury, not connected with the offense of the other defendant, as to cause death, the other defendant is not liable.

But the plaintiff, in order to meet the requirement that causes of action in order to be united in the same complaint must be consistent, is obliged to maintain that a cause of action against one defendant for causing the death of an intestate by the negligent maintenance of a picket fence is consistent with a claim that another defendant caused such death by negligent and unskillful surgical treatment, and it seems almost too clear for serious debate that such contradictory and repugnant theories cannot be consistent. Of course, we do not overlook the well-established and familiar rule, upon which reliance has been placed, that a plaintiff may consistently and properly join as defendants in one complaint several joint tortfeasors. But that rule only applies where different persons by related and concurring acts have united in producing a single or common result, upon which the action is based. If two railroads each negligently manages its trains, so as to cause a collision, causing an injury which results in death, clearly both could be joined as defendants in a single action....