Wells a. Smith.

It should be read in connection with section 118, providing that any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff'; or who is a necessary party to a complete determination or settlement of the questions involved therein.

Both these provisions are taken from the practice in chancery, and intended, I think, to adopt and be governed by its rules. But it will be found, I think, that it is by no means a necessary conclusion, that because parties are properly made defendants, a judgment between themselves may be had.

The clause of section 274 in question has not, that I am aware of, received any explicit and authoritative construction.

The remarks of Justice Harris in Norbury a. Seely (4 How. Pr. R., 73), of Justice Mitchell in The Savings Institute a. Roberts (1 Abbotts' Pr. R., 382), and of Justice Woodruff in Tracey a. The Faucet Steam Company (1 E. D. Smith, 349), deserve much attention. The impressions of these learned judges appear to be, that the Code meant to adopt, and has done no more than adopt, the practice of a Court of Chancery, of settling the conflicting claims of co-defendants in certain

cases.

It appears to me that this is the true construction of the provision; and we shall then have some definite rule to guide the court, and shall avoid many difficulties, which have been noticed in the opinions I have referred to.

Some leading authorities in the Court of Chancery may therefore be pertinently and usefully referred to.

Charnley a. Dunsaney, Latouche, and others, before Lord Redesdale, and on appeal before the House of Lords, is a leading case. (1 Sch. & Lef., 137; 2 Ib., 710.) Lord Redesdale there said: "It seems strange to object to a decree because it is between co-defendants, when it is grounded upon evidence between plaintiff and defendants. It is a jurisdiction long settled." Lord Eldon observed: "Where a case is made out between defendants, by evidence arising upon pleadings and proofs between the plaintiff and defendants, a court of equity is entitled to make a decree between the defendants. It is, indeed, bound to do so. The defendant chargeable has a right to insist that he shall not be liable to be made a defendant in another suit

Wells a. Smith.

for the same matter that may be then decided between him and his co-defendant; and the co defendant may insist that he shall not be obliged to institute another suit for a matter which may then be adjusted."

In Bolton a. Lloyd (1 Molloy, 30), it appears to have been held, that an elegit creditor in possession of premises upon. which the plaintiff had established a charge by will, might be decreed to account for rents he had permitted another defendant to receive; and might have a decree for that amount against such defendant.

Here the plaintiff could have the decree, and the elegit creditor was merely subrogated.

In Coote a. Lowe (cited 1 Molloy, 31, note), Lord Manners said, that "to give relief in favor of one defendant against another, it must appear clear, upon the pleadings and proofs, that neither of the defendants can bring forward any new fact or right."

In Eccleston a. Schennesdale (1 Beavan, 397), an account between co-defendants was refused, because, though a case was made in the plaintiff's favor against one defendant, it was not made against him in favor of the other seeking the decree. It came up on bill and answers, without proof. Some defendants were trustees, and on appeal, it had been held that the estate in question did not belong to the plaintiff, but to the other defendant. No case was made against the trustees in his favor, because their answer, available to the plaintiff, was not so to the co-defendant.

The principle of Charnley a. Dunsaney was recognized in Shannon a. Marselis (Saxton's N. J. R., 424). In adjusting the rights of various mortgagees and purchasers to premises, one defendant insisted that a large deduction should be made from a mortgage held by another. The pleadings between themselves raised the question, and proofs had been taken upon it. Chancellor Walworth, in Elliott a. Pell, recognizes the rule of Charnley a. Dunsaney (1 Paige, 268). See also Conrey a. Caulfield (2 Ball & Beatty, 271).

I deduce from these authorities-First. That it is only upon the hearing, when the pleadings had been all sifted and settled, and the testimony all produced, that the Court of Chancery administered this equity. The whole case being before it, and all

Warwick a. The Mayor, &c., of New York.

the parties heard, it could see clearly what law and equity demanded between them all.

Next. That it was only in cases where the defendant sought to be decreed against, had contested the point, or had been apprised that it was a subject of contestation between his codefendant and himself, that such a decree would be made.

It is clear, that within these principles, and section 174 of the Code expounded by them, the present application cannot be sustained. The objection remains also in full force, that the plaintiff here can dismiss. this suit whenever he chooses, before judgment.

There are cases in which a party is prosecuting an action which involves the same questions as he himself has presented, or submitted to have presented, in another suit. In such instances he may be restrained or compelled to an election at a proper period, and under proper circumstances. Such cases are alluded. to in Fuller a. Read (6 Duer, 697; 15 How. Pr. R., 231). The present is not one of that class.

Motion for injunction to restrain the action of Smith denied. The attorney will submit an order upon the whole subject for settlement upon two days' notice. The injunction is continued till further order.

WARWICK a. THE MAYOR, &c., OF NEW YORK. Supreme Court, First District; General Term, October, 1858. PRE-EMPTIVE RIGHT.-PLEADING.-PARTIES.

Under the statute of 1837, establishing the Thirteenth Avenue in the city of New York, and vesting the mayor, &c., of the city with all the right and title of the people of the State to certain lands under water, extending from the westerly side of land under water formerly granted to the mayor, &c., the 4th section of which statute provided that the proprietors of all grants of land under water theretofore made by the mayor, &c., should have a pre-emptive right in all grants to be made by the mayor, &c., of lands under water granted by the act, adjacent to and in front of the lands so theretofore granted;--the pre-emptive right is not a personal independent right of the grantee of previously granted adjacent premises, capable of separate independent conveyance, nor strictly an incident of the premises, but an incident of the plaintiff's estate in the previously

Warwick a. The Mayor, &c., of New York.

granted premises, and such as to pass from him by a foreclosure of his mortgage upon those premises and a sale thereunder.

It seems, that a complaint asking in the alternative, judgment for either one of two parties plaintiff, is bad on demurrer.

Demurrer to complaint.

The facts are stated in the opinion.

S. A. Foot, for the plaintiffs.

A. K. Lawrence, Jr., for the defendants.

BY THE COURT.*-SUTHERLAND, J.-The complaint in this action appears to be a sort of fishing complaint. The plaintiff spreads a broad net. If he cannot get any thing for his own individual benefit, he then goes for the benefit of all the tax-payers of the city of New York.

He claims that, as the proprietor in 1837 of a certain lot of land bounded on West-street, in the city of New York, he is entitled to a grant in fee from the corporation of the city of New York of certain lands under water adjoining said lot, and prays that such a grant to him, individually, be directed to be made; but if he is not entitled to such grant, he then asks, as a taxpayer, for himself and all other tax-payers of the city, that a grant of said land under water, which had been made by the corporation to one Robert A. Durfee in 1852, and all subsequent grants under the same, be declared void, making James S. Thayer and Miner C. Story, the present claimants and parties in interest under the grant to Durfee, parties defendants.

Now the defendants demur to this see-saw, swinging complaint, which leaves the end finally to settle uppermost to depend upon the end the judicial foot is put upon, on the ground (among others) that it contains two causes of action which are improperly united.

Whether, according to a critical analysis of Code definitions, there are two distinct causes of action or not, I should have held, as an original question, that the wrongs complained of were dif ferent, and the remedies asked for different and inconsistent, to be complained of, and to be asked for in the same action; for the plaintiff's individual rights as a proprietor, stated in his

*Present, SUTHERLAND and CLERKE, JJ.

Warwick a. The Mayor, &c., of New York.

complaint, are inconsistent with the rights of the tax-payers as therein stated; and, if the plaintiff is entitled to the grant from the corporation, then there is no need of declaring the grant to Durfee void, and the tax-payers have not been injured or defrauded by that grant.

The plaintiff does not pretend, in his complaint, that there is more than one cause of action; he does not pretend that there has been more than one wrong, or that there is more than one remedy needed, but he is in doubt whether he alone has been wronged, or all the tax-payers of New York: he goes in for himself individually first, and, if he should fail, then, in a spirit of enlarged benevolence, for the tax-payers generally.

The relief asked for the tax-payers, and the relief asked for himself, relate to the same subject-matter: only one is required, and only one can be granted. Which, is the question for the court?

The theory of the complaint is not, therefore, that there are two causes of action.

But can the plaintiff, in the same complaint, thus first present his own individual wrongs for judicial relief, and then the wrongs of the public, although relating to the same subjectmatter; especially when, if the plaintiff is right in his view of his own rights and wrongs, the public have no rights, and have suffered no wrong whatever?.

I think not. I think the Code does not authorize this kaleidoscope sort of pleading, alternating for the judgment of the court, presenting different phases of the same act or acts, or of different acts relating to the same subject-matter, and presenting dif-. ferent wrongs, as these acts affect different parties in the same complaint, for judicial redress.

By the Code, the plaintiff inust state the facts which constitute his cause or causes (if he has more than one which may be united, and he chooses to unite them) of action; but the Code does not authorize this omnibus sort of complaint-stopping as it goes along to take in other parties.

By the Code, the plaintiff may in his complaint present the facts which constitute his case or cases, if he has more than one, which may be united; but he cannot experiment with the court by trying first his own case and then that of himself and others. The Code may cover a multitude of sins, but it is not so chari