Edison Electric Illuminating Co. v. Franklin H. Kalbfleisch Co.

Majority

p. 842

Edison Electric Illuminating Company of Brooklyn, Respondent, v. Franklin H. Kalbfleisch Company, Appellant.

Second Department,

March 8, 1907.

Headnote

■ Pleading —-improper joinder of actions on contract and in tort.

A cause of action for damages for the breach of a contract and a cause of action for damages for fraud in inducing the plaintiff to make it are inconsistent with each other and cannot be united in the same complaint under subdivision 9 of section 484 of the Code of Civil. Procedure. An. election between such inconsistent causes is required. .

. Appeal by .the defendant, the Franklin H. Kalbfleisch Company, from an interlocutory judgment of the Supreme Court in favor of

p. 843

the plaintiff, entered in the office of the clerk of the county of-Kings on the 10th day of July, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.

James W. Prendergast [James 0. Bergen with him on the brief], for the appellant.

L. B, Grant, for the -respondent.

Stripping this complaint of its verbiage and making it lean, we find' a cause of action for damages for breach of the contract, and another for damages for fraud in inducing the plaintiff to make it. They are not “consistent with each other”, and therefore cannot be united in the same complaint under subdivision 9 of section 484 of the Code of Civil Procedure; and that is the only authority for uniting a cause of action on contract with one in tort. Tc assert one is to negative the other, and the plaintiff has to elect which he will sue on. He cannot sue on both.

The judgment should be reversed.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Interlocutory judgment' overruling. demurrer to complaint reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to plead over on payment.'