Tompkins & White, by next friend and guardian, agt. White and Robinson, 8 How. Pr. 520

T. R. Strong, Justice. Under the Code, in an action to recover the possession of real property, there may be included a claim for “damages for the withholding thereof, and the rents and profits of the" same,” (Code, § 167, sub. 5.) The object of this provision was to enable the plaintiff in such an action to recover therein, with the possession, his damages for being deprived of the premises and the rents and profits thereof, while kept out of possession, and thus render unnecessary a new action for that purpose.

The provision is a substitute for the action of trespass for the mesne profits, and the mode of proceeding for the recovery thereof, given in the Revised Statutes, and is only co-'extensive with that action. It does not authorize a claim for rents and profits which could not be recovered in the old action of trespass. The mesne profits—the rents and profits during the dispossession of the plaintiff, are the only rents and profits to which it has reference. As to the extent to which a plaintiff may recover, see Adams on Eject. (Tillinghast's ed.) 338.

In the present case the plaintiffs have united in their complaint, with a claim to recover the possession of the premises, a claim to recover of the defendant, White, for the alleged receipt by him of divers sums of money, in respect of rents and profits of the premises. When those rents and profits accrued, when those sums of money were received, whether they were received wrongfully or otherwise, is not stated. No connection is shown between those rents and profits and the withholding of the possession of the premises.

The claim is presented as separate and standing alone, and as a debt due for money had and received. For aught that appears, White may have received the moneys for those rents and profits as agent of the plaintiffs, long anterior to either of the defendants taking possession, or making any claim to the premises, or their withholding possession of the same. It is manifest that this claim is not within the provision referred to, and I am not aware of any other provision, or any principle, which authorizes the joinder of it with the other claim made by the plaintiffs.

One claim is against both defendants, the other against one only, and does not affect the other defendant; one is founded on tort, the" other on contract. These claims must be held to be improperly united, and for that cause the demurrer to the complaint must be sustained.

It is not necessary to consider whether there is a misjoinder of defendants, either for the reason that the complaint does not allege a possession of the premises, or any claim thereto by, or disclose a cause of action against more than one of the defendants, or because a person in possession only, could properly be made a defendant in the action. (Code, § 118 ;) Van Horne agt. Everson, (13 Barb. 526 ;) Van Buren agt. Cockburn, (14 Barb. 118;) Putnam agt. Van Buren, (7 How. Pr. 31 ;) Shaver agt. McGraw, (12 Wend. 558 ;) Waldorph agt. Bortle, (4 How.

Pr. 358; Van Santvoord’s Plead. 113, 114.) Nor whether if there is a misjoinder, the defect could be reached by a joint demurrer of the defendants. (Story’s Eq. Pl. § 544;) Whitbeck agt. Edgar, (2 Barb. Ch. R. 106.) In regard to the objection that different causes of action are blended together, if such a defect is a proper subject of demurrer, it is sufficient to say that it is not warranted in fact in this case, unless the objection considered, that causes of action are improperly united, is well taken.

There must be judgment for the defendants on the demurrer, with leave to the plaintiffs to amend on„payment of costs.