Appellants' points. Before SEDGWICK, Ch. J., FREEDMAN and O'GORMAN, JJ. Decided May 6, 1889. Appeal from an interlocutory judgment overruling a demurrer to the amended complaint. Davies & Rapallo, attorneys, and Edward S. Rapallo and Brainard Tolles, of counsel, for appellants, argued : I. Causes of action cannot properly be united unless they all affect all the parties to the action. Section 484 of the Code of Civil Procedure, after enumerating nine different classes of causes of action, prescribes the following conditions upon which they may be united in the same complaint: "But 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; and, except as otherwise prescribed by law, that they effect all the parties to the action." The tendency of Code legislation has been to make the rules of pleading and practice as few and as simple as possible, and to assimilate the legal and equitable procedure. The rule laid down with respect to the joinder of causes of action, viz., that they should all affect all the parties to the action, applies without distinction to causes of action which are legal or equitable, or both. It is enough for the purpose of this appeal to say that it is the law of the land and that it is too short and plain to be evaded; it must either be obeyed or disregarded. No rule of policy or convenience can sanction the violation of a plain statutory requirement. II. Three causes of action are set forth in the complaint. The phrase "cause of action," as used in the Code, does not mean merely a connected nar Appellants' points. rative of one transaction, or the general topic of a controversy. It means a right which may be made the basis of an action. Such a right must be complete, indivisible and of legal cognizance. It is the unit of pleading. No conception in the law is more fixed and definite. The law of procedure could not exist without it. The surest test to determine whether two causes of action are distinct is that laid down by the court of appeals in Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y., 646, viz., whether judgment on one would have barred the enforcement of the other. Applying that principle to the case at bar, there appear distinctly to be three causes of action. in this complaint: (1) A cause of action for damages to the premises described in the complaint prior to the death of Francis N. Shepard. (2) A cause of action for damages to the premises described in the complaint subsequent to the death of Francis N. Shepard. (3) A cause of action for an injunction. Each of these three causes of action could be separately enforced, in a separate action, without barring the right to enforce any of the others, and without the presence in any one of the actions of all the plaintiffs in the action at bar. III. The administratrix of Francis N. Shepard is not affected by the cause of action for an injunction. (1) The first cause of action specified under the preceding point does not affect the plaintiffs, Francis B. Shepard, Jr., Irene F. Shepard and Dorothy B. Shepard. It is true that they are the children of Francis N. Shepard, and they may become entitled to an interest in any balance of his personal estate which may remain after the claims of creditors are satisfied. But they have no present legal or equitable title to his unadministered personalty which can make them proper parties to this cause of action. Their interest is almost as contingent as in the lifetime of their father. If an Appellants' points. administrator is a trustee for creditors and next of kin, it is a trust ordinarily to be recognized and enforced only in a Surrogate's Court, and this Court will not assume jurisdiction over it except under special and extraordinary circumstances such as do not appear in this complaint. (2) The second cause of action specified under the preceding point does not affect the plaintiff Frances S. Shepard, either individually or as administratrix. It does not affect her as administratrix, because it is for injuries inflicted to the realty after her intestate's death. It does not affect her individually because she has not and has never had any estate in this land, or any right to any portion of the rents and profits. She has merely a contingent interest that, at some future time, dower may be assigned to her out of the land. (3) The third cause of action specified under the preceding point does not affect Frances S. Shepard, as administratrix of Francis N. Shepard. We select this point for a more extended discussion because it cannot be questioned that the complaint states a cause of action for an injunction, or that Frances S. Shepard is a party to the action; and if we establish that one of the causes of action fails to affect one of the parties it is sufficient for the purpose of the appeal. Of course it would be possible for circumstances to exist which would make the administratrix of Francis N. Shepard a proper party to the cause of action for an injunction, just as they might exist in the case of any other person whatever. But no such circumstances appear in the complaint, and the requirement of the Code is, that it shall appear upon the face of the complaint that the causes of action affect all the parties. The only escape from the conclusion that the demurrer must be sustained lies in the bold suggestion that Frances S. Shepard, as administratrix and Frances S. Shepard individually, constitute one party. Respondents' points. Peckham & Tyler, attorneys and of counsel for respondents, argued : I. The first and second grounds of demurrer really state the same objection, viz.: that actions are united improperly, as defendants claim. If Francis N. Shepard had not died his brother and sister could have sued with him in one action for all damages suffered. Why should they be compelled to bring two actions merely because of his death? This This precise point has been decided adversely to the defendants by the special and general terms of the Common Pleas in the case of McCrae v. N. Y. Elevated R. R. (decided at General Term in February, 1886); see 13 Daly, 302. Judge J. F. DALY there says, at special term: "Mrs. "Mrs. McCrae, as executrix of Edward P. McCrae, and also suing in her own right as devisee of the said Edward, is joined as plaintiff with three other persons, who, with the said Edward, were the owners as tenants in common of the premises situated on the northwesterly corner of Greenwich and Rector streets at the time that the structures of the Elevated Railway, which are complained of in this action, were erected in Greenwich street." All the other plaintiffs except Mrs. McCrae are proper parties to all the causes of action set forth. Mrs. McCrae is both executrix and devisee, and in the former capacity is entitled, with the other plaintiffs, to recover the damages accruing up to her husband's death, and in the latter capacity is entitled with the other plaintiffs to the damages after his death. The question is whether she can unite both her causes of action in one complaint, it being conceded that the other plaintiffs might do so, as far as their recovery is concerned. Although the demurrer is for a misjoinder of parties, it is in effect a demurrer for uniting improperly two different causes of action on the part of Mrs. McCrae. It would seem unfortunate if these causes of action * * 66 * * Respondents' points. (which in this case are united in one individual, although she is to recover in different capacities) must be severed, for it requires the splitting of what would be a single cause of action in her co-plaintiffs, viz.: the claim for continuing damages. I think we have authority for holding that there is not an improper union of causes of action, and consequently not an improper joinder of parties plaintiff." And at the general term, Judge LARREMORE says: "It does appear from the complaint, as a whole, that the plaintiff has an interest in the cause of action, and is a proper party to its final determination. This action is on the equity side of the court, in which all parties having an interest, contingent or otherwise, are required to be brought in, in order to obtain a final adjudication of the matters in dispute. That a party has asked for more relief than he was entitled to, is no ground of demurrer. If he is entitled to any relief he is properly joined in the action (Price v. Brown, 10 Abb. Ñ. C., 67, and cases there cited). The order appealed from should be affirmed, with costs." The above case in principle covers this action. In that case Mrs. McCrae was allowed to recover in two different capacities, namely, as executrix and devisee. In the present case Mrs. Shepard is interested as administratrix and widow. Her children are interested as next of kin and heirs in both past and future damages, and her capacity as administratrix is purely formal to enable her to recover for herself and children the past damage. II. The theory of the Code is that all parties in interest in an action must be joined. In the theory of the law the heirs and next of kin are the real parties in interest in an action brought by the administrators. The administrators merely sue without them on the principle that the trustee of an express trust sues without joining with him the person for whose benefit |