Coster v. N. Y. and Erie R. R. Co.

option of those in whom it is vested; the defendant is not liable to be vexed with two or more separate suits for the same cause of action, and be compelled to litigate with each part owner separately.

If any of the boat owners refuse to become plaintiffs, they should be made defendants The fact that the part owners who are not made parties sold their shares or parts of the boat to the defendant, for whose benefit the same was transferred to the other defendant several months after the hiring, is not a sufficient reason for not making them parties, when it is in nowise alleged that they also sold or relinquished their interest in the compensation for the use of the boat before the time of the sale.

When, in the agreement referred to, the hirer agreed to pay all the expenses of running the boat, and keep her in good repair so long as the owners should permit her to remain in the defendants' possession, though it discloses a probable intention to run the boat, does not compel the defendants to do so; so long as the defendant pays the hire he may run the boat or not at his pleasure. And an averment that the boat has been greatly damaged, impaired, and deteriorated, and is constantly depreciating in value, by reason of being withdrawn from navigation and laid up at the dock, and from want of care and attention in her safe keeping and preservation, and from the defendants' neglect to keep her in good order and repair, and in a state fit for navigation, is not a proper form of averring a breach of the agreement to keep the boat in repair; and if it were, it would not warrant the plaintiffs' prayer for relief, viz., a recovery of the value of the boat.

If such a cause of action is to be claimed on the ground that the defendants' acts are tortious, and subject them to the payment of the value of the boat as damages, then there is an improper joinder of causes of action, one in tort, the others in contract.

The defendant to whom the title of the other part owners has been transferred is not liable to the plaintiffs for the time, or for the neglect of the other defendants to repair.

Whether a suit in equity will or will not lie to restrain the owners of a major portion of a vessel from removing her from the state, or whether the jurisdiction of such matters is in admiralty only, it is clear that such a suit cannot be joined with an action on the contract for the hire of the vessel.

(Before HOFFMAN, SLOSSON and WOODRUFF, J.J.)

Heard, April; decided, June, 1856.

APPEAL, by plaintiffs, from a judgment at Special Term, by Duer, J., sustaining the demurrer to the complaint. The substance of the pleadings is sufficiently stated in the opinion of the

court.

P. Y. Cutler, for appellant.

D. B. Eaton, for N. Y. & Erie R. R. Co.,

Chas. Jones, for Drew,

respondents.

Coster v. N. Y. and Erie R. R. Co.

BY THE COURT. WOODRUFF, J.-This case comes on, to be heard upon an appeal from the judgment of the Special Term, in favor of the defendants, upon their several demurrers to the complaint.

The complaint, in the first nineteen folios thereof, avers that the plaintiffs, and Cornelius Vanderbilt and James B. Townsend, were, on the 22d day of October, 1853, owners of the steamboat Francis Skiddy, in the proportions following: Coster and Andrews, the plaintiffs, each two-twentieths, Vanderbilt eleventwentieths, and Townsend five-twentieths, and being such owners, they, on the day aforesaid, entered into an agreement with the defendants, the New York and Erie Railroad Company, by which they let, and delivered to the company, the said boat, and the company hired, and took possession thereof, and agreed to pay all expenses of running the same, and to keep her in good repair, and to pay to the said plaintiffs, Vanderbilt and Townsend, for the use thereof, one hundred dollars per day, "during all such time as the said plaintiffs, Vanderbilt and Townsend, should permit the said boat to be and continue in the possession of the said company, and not withdraw the same from such possession."

That from the date of such agreement until now the said boat has been, and now is, in possession of the company, under such agreement, by the permission of the plaintiffs, and Vanderbilt and Townsend, and has never been withdrawn by them. That the said plaintiffs, and Vanderbilt and Townsend have duly performed, etc.; but that the said company have never paid the said sum of one hundred dollars per day for the use of the said boat. That the said company are liable to pay the amount aforesaid, and that the plaintiffs are each entitled to one-tenth part thereof, and that the company refuse to pay the same or any part thereof.

This is a plain statement of a good and sufficient cause of action, on a special contract, and for the recovery of money which, upon the facts stated, is due to the plaintiffs, and Vanderbilt and Townsend. The contract set forth is single and entire. The agreements, on the part of the company, are to, and with, the plaintiffs, and Vanderbilt and Townsend, jointly, and not severally. There is no intimation that the defendants have undertaken to pay the charter money to the several owners in the proportions of their respective interests in the boat.

Coster v. N. Y. and Erie R. R. Co.

We know of no rule of pleading, nor any principle of law, authorizing the plaintiffs to maintain a separate action for their particular portion of these moneys, without making Vanderbilt and Townsend parties. A joint cause of action, vested in two or more, can not be split into several at the option of those in whom it is vested. The company are not liable to be vexed with two or more separate suits, for the same cause of action, and having, as the case may be, litigated the claim of two of the owners, to be again called upon to litigate the same matters, under the same joint contract, with Vanderbilt, and again with Townsend. The circumstance that the consideration, for the agreement by the company, was the use of a steamboat, or vessel, of which the plaintiffs are part owners, makes no difference. Besides, if there was any warrant for permitting such an agreement to be treated as, in effect, running to each severally, and entitling each to recover the proportion of the charter money which, as between the co-owners, would fall to his share, (which, however, cannot be conceded in this case,) then the plaintiffs themselves, could not join in the action. If their interests are several, and their rights sev-. eral, their title to the money to be recovered by each respectively, is several, and the causes of action thus assumed to be several can not be joined.

But, in truth, as before observed, the company's agreement is single; it is made with all; the title to recover under it is vested in all; the money due upon the agreement belongs to all, irrespective of the state of the accounts between them and the respective shares into which it may be divisible when recovered, with which the company have nothing to do; and all must unite in the action brought to enforce the agreement, and recover the charter money, unless some facts are stated in the complaint which excuse the plaintiffs from uniting Vanderbilt and Townsend with them as plaintiffs. If that be done, then, notwithstanding the rule be as we have stated it in actions at law, the plaintiffs may unquestionably proceed upon their equitable rights, and, in equity, enforce them and recover the money. But even then, they must make Vanderbilt and Townsend parties to the action, as defendants, unless they also show that Vanderbilt and Townsend have ceased to have any interest in the matters in controversy.

Coster v. N. Y. and Erie R. R. Co.

What facts, then, further appear in this complaint which are relied upon as an excuse for not joining them as plaintiffs?

The only further statement in the complaint, affecting Vanderbilt and Townsend in any manner, and, therefore, the only one which bears upon the question above considered is, that afterwards the company, with malicious intent to cheat, etc., etc., "fraudulently purchased from Vanderbilt and Townsend their respective five and eleven-twentieth parts of the said steamboat, in the name of Eli Kelly, but in trust, and for the benefit of, the said company."

Whether this purchase was made with a bad motive or not is quite immaterial; the motive furnishes no ground of appeal to any court unless, nor until, some wrongful act is done, attempted, or threatened, which act it is proper should be either restrained or redressed. The act charged here is a perfectly lawful act, a purchase. The plaintiffs have no cause of complaint in that respect. Vanderbilt and Townsend had a right to sell; the company had a right to buy; and unless the plaintiffs mean that the purchase was a fraud upon Vanderbilt and Townsend, no wrong was done to any one thereby. When Vanderbilt and Townsend come into court, alleging that the purchase was fraudulent, the allegation may be material. This averment of fraud, therefore, has no bearing upon the question whether Vanderbilt and Townsend should be parties to the action. The plaintiffs are not, and could not, upon any facts stated, ask to have the sale set aside, and, if they did, they must make Vanderbilt and Townsend parties, either plaintiff or defendant. The case stands, then, upon the fact averred, that Townsend, on the 14th day of November, 1853, and Vanderbilt, on the 10th of March, 1854, sold to the defendants (who purchased in the name of Eli Kelly) their respective twentieth parts of the said boat; and the plaintiff's claim to recover for, not only the money accrued and payable for the use of the boat since those dates, but, also, from the day the original agreement was made, i. e., for over thirteen thousand dollars accrued before Vanderbilt sold his share of the boat; and there is not an intimation in the complaint that Townsend, for the period in which he continued to be an owner, and Vanderbilt, for the residue of the term, are not jointly interested with the plaintiffs in the recovery of that money. The averment of the sale of the boat does not, therefore,

Coster v. N. Y. and Erie R. R. Co.

constitute any reason for not making Vanderbilt and Townsend parties.

If not made parties plaintiff they should have been made defendants. There is no averment that they refuse to join in the action; there is no averment that they have been guilty of any fraud, or are parties to, or are even cognizant of any fraud done, attempted, or contemplated by the company.

The demurrer for want of these parties was, therefore, properly sustained.

1. In reference to the cause of action now in question, the purchase of the boat by the company, if true as alleged, is undoubtedly a sufficient reason for proceeding by what would formerly have been termed a bill in equity. The union of interest in the company, as owner and hirer, would so embarrass an action at law, that adequate justice could not be done; but all parties interested in the charter money should be before the court.

2. The next cause of action, or combination of facts, upon which the plaintiffs rest a claim to recover, consists in averments that the company, in May, 1854, caused and procured the said sixteen-twentieths of the said boat to be conveyed, by the said Eli Kelly, to the defendant Daniel Drew, (the said Drew fraudulently pretending to be the owner, but being in fact the mere trustee and instrument of the company); and that Drew and the company have fraudulently combined to cheat the plaintiffs, the said company procuring the said Drew to consent, and Drew consenting to withdraw the said boat from navigation; the said Drew taking possession, laying her up at the dock and keeping her unemployed, with the fraudulent design of releasing and discharging the said contract of hiring; and that the said Drew on or about the 19th of May, 1854, as such pretended but fraudulent owner, took possession of the boat, and, without the plaintiff's consent, withdrew her from the navigation in which she had been employed under the agreement of hiring, laid her up at a dock where she has ever since remained unemployed and unused, but in the possession of the company, through and by means of said fraudulent combination and confederacy with Drew; and the plaintiffs then aver that "by reason of being so fraudulently withdrawn from navigation and laid up at dock by the defendants, and from want of care and attention on their part in her safe