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Fourth Department, March, 1910.

[Vol. 137. inures to the benefit of the son making the conveyance, and will support an action by him where the grantee fails to fulfill his promise. The consideration is to be found in the fact that the grantor was relieved of his

agreement to support his mother on making the conveyance. In such action the measure of damages is the fair value of support and main.

tenance of the mother.

APPEAL by the defendant, Bert L. Case, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 23d day of January, 1909, upon the verdict of a jury; also froin an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes, and also from an order made on the trial allowing the plaintiff to amend his complaint.

D. P. Morehouse, for the appellant.

F. T. Cahill, for the respondent.

SPRING, J.:

The parties are brothers. Their widowed mother, Caroline D. Sandford, owned a farm of sixty-seven acres in the county of Oswego worth $2,500. In 1890 she conveyed this farm, which was all of her property, to the plaintiff, who thereafter received the avails therefroin and maintained and cared for his mother. In September, 1902, she entered into a written agreement with the defendant whereby “in consideration of the uniting by said Caroline D. Sandford with Earl A. Case and wife in a deed to said Bert L. Case of the farm (mentioned], * * * and in consideration of natural love and affection said Bert L. Case has agreed and hereby agrees that commencing with March first, 1903, or such earlier time as said Earl A. Case and Caroline D. Sandford deliver up to him possession of said farın, he, said Bert L. Case, will in all things support and maintain said Caroline D. Sandford in a good and comfortable manner, in sickness and in hiealth, providing for her a home, food, clothes, and medicines and medical attendance when sick and suitable nursing when sick or when needed because of the infirmi. ties of old age, all according to her station in life, but at such suitable place as said Bert L. Case may determine for and during her natural life.”

App. Div.]

Fourth Department, March, 1910. In pursuance of this agreement the plaintiff conveyed the farm to the defendant, his wife and mother joining in the conveyance. The defendant went into possession by virtue of the deed and contract, and has been in the undisturbed possession since that time, receiving the benefits thereof. The mother at once commenced to live with the defendant and his family and was maintained by him until her departure in March, 1906.

The claim on the part of the plaintiff and the mother is that the defendant failed to comply with the obligations he assumed in the contract. She testified that during the years she remained with the defendant she was not supported and maintained “in a good and comfortable manner.” On the contrary, that she was not supplied with sufficient wholesome food, was inadequately clothed, ill treated by the defendant's wife and children and for four months in the winter season was left alone in the house, obliged to get wood, keep up the fires and provide her meals from scant food supply.

The defendant and his family dispute much of the testimony of the mother. It does appear, however, without controversy that the relations of the wife and children were not pleasant toward the mother. She was an old lady about eighty years of age, and prob ably complained and at times was ill-tempered. She was entitled to respectful, considerate treatment and to be suitably cared for, and the jury have found on conflicting evidence that the defendant did not fulfill his agreement to maintain her suitably.

According to her testimony, the treatment she received became intolerable, and by reason of it she left the defendant's home in March, 1906, and has not lived with him since that time. She immediately commenced living with the plaintiff, and has been sup. ported and cared for by him, at least to the commencement of the action, which was brought to recover damages for breach of the agreement referred to.

It is the claim of the defendant that there is no privity of contract with the plaintiff which will support the judgment. The plaintiff owned the farm. The title came from the mother. It is a reasonable inference that the son owning the farm was charged with the burden of maintaining her. There came a time when she desired to live with the defendant, and the agreement to consun

Fourth Department, March, 1910.

[Vol. 137. mate that desire was entered into. The entire consideration moving to the defendant for the undertaking he assumed was the conveyance of the farm, and his performance of the agreement was not to begin until its possession was delivered by the plaintiff. The performance of the agreement by the defendant inured to the plaintiff's benefit in that he was relieved from taking care of his mother, as he had been doing when he had the title and possession of the farm. When the defendant repudiated the agreement, the mother returned to the plaintiff. As a son he was legally chargeable with her maintenance. She had no property and could not hire any one to care for her. The property she originally owned belonged to the defendant. She may have been able to maintain an action against him to set aside the deed, or an action at law to recover damages for the breach of the agreeinent. She was eighty-two or three years of age and must be sustained in some way, and the plaintiff assumed the burden which the defendant, without cause, unloaded upon him.

I think the agreement was for the benefit of the plaintiff. He was relieved from the maintenance of his mother, which was a legal obligation by reason of the agreement with her when he obtained title to the farm, and was further exonerated from the legal duty which the law imposed upon him to provide for her. He had a legal interest in the performance of the contract by the defendant. Upon the failure of the defendant to fulfill the plaintiff recognized his legal responsibility to support his mother in her indigence and old age, and from which the defendant had undertaken to discharge him, and the action is, therefore, maintainable. (Buchanan v. Til. den, 158 N. Y. 109; Durnherr v. Rau, 135 id. 219; Vancleave v. Clark, 118 Ind. 61; 3 L. R. A. 519.)

There is no question that the amount recovered by the plaintiff represents the fair value of the support and maintenance of his mother during the time covered by the claim contained in the complaint. It, therefore, represents the amount which the defendant would liave been required to expend in the performance of the agreement during that period and is the fair measure of the damages accruing to the plaintiff,

I think the amendment to the complaint was properly granted and it did not materially change the cause of action, and it did not

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App. Div.)

Fourth Department, March, 1910. surprise or mislead the defendant. No additional proof was required on his part in view of the amendment, and it was made after the plaintiff rested.

The judgment should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.

HENRY P. Neun, Respondent, v. B. H. Bacon COMPANY and

AMELIA VAN DEUŞEN, Appellants.

Fourth Department, March 9, 1910.

Pleading - misjoinder of actions — demurrer - practice - severance prior

to decision of demurrer unauthorized – section 479, Code Civil Procedure, construed.

Where defendants have demurred to a complaint uniting a cause of action against

one of them for goods sold and against the other on an independent contract assuming the debt of the codefendant, upon the ground that the causes of action are improperly united, the court has no power, prior to the decision of the demurrer, to permit the plaintiff to sever the action into two actions against the defendants severally and to serve an amended complaint in each action.

This is true, although the right to amend as of course had not expired. Although the plaintiff might have amended as of course, as the time had not expircd, he could not, after demurrer for misjoinder of actions, sever the actions

under the guise of an amendment. Although scction 479 of the Code of Civil Procedure empowers the court on the misjoinder of actions to direct that they be divided into as many actions as are necessary for the proper determination of the issues, the section does not authorize such severance before the decision of the demurrer to the complaint for misjoinder, as it would deprive the defendants of the benefit of the demurrers. Said section merely preserves the causes of action if the demurrer for misjoinder be sustained and the plaintiff is not required to begin anew so as to be affected by the Statute of Limitations.

APPEAL by the defendants, B. H. Bacon Company and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 26th day of November, 1909, granting the plaintiff's motion to divide the action into two actions against the defendants separateiy.

Fourth Department, March, 1910. Everett 0. Gibbs, for the appellants.

(Vol. 137.

William F. Lynn, for the respondent.

SPRING, J.:

The plaintiff commenced this action in March, 1909, to recover the balance due for merchandise sold and delivered to the defendant Bacon Company, a domestic corporation, between May, 1902, and April, 1903.

In the 3d paragraph of the complaint, in an attempt to state a cause of action against the defendant Amelia Van Deusen, it was alleged that at the time of said sale she was a stockholder in said corporation and “that thereafter and since the said first day of April, 1903, in a sale of her said stock, which was practically the whole stock of said Company, the said Amelia Van Deusen, for value received, assumed and agreed in writing to pay the plaintiff the said balance above alleged to be then owing to him by said B. H. Bacon Company, to wit, said sun of Nine lundred eighty-four dollars and one cent ($984.01), with interest thereon from April 1st, 1903.”

A demurrer was interposed by each defendant on the ground that several causes of action were improperly united. After seryice of such demurrers and before the time to serve an amended complaint had expired, the plaintiff obtained an order requiring the defendants to show cause at a Special Termn why an order should not be granted permitting the plaintiff to divide the action into two actions against the defendants severally and permitting him to serve an amended complaint upon each of the defendants in the new actions, wlien so ordered. The matter came on at Special Term and the order was granted dividing the causes of action in conformity to the application of the plaintiff, and granting liim “ leave to serve amended complaints in each of said actions as so divided, with allegations appropriate thereto, as he shall be advised.”

The causes of action alleged were on independent contracts not arising out of the same transaction, the liability of the defendant Van Deusen being in the nature of a contract of suretyslip or indemnity to the person who purchased froin her the stock in the corporation.

By section 542 of the Code of Civil Procedure the plaintiff might

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