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Baldwin v. A. B. Leach & Co.

214 A.D. 725 Court N.Y. App. Div. English

Delivered by Callaghan, J.:

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p. 725
Clarence W. Baldwin, Appellant, v. A. B. Leach & Co., Inc., and Others, Respondents, Impleaded with Others, Defendants.

Headnote

Pleadi?igs— joinder of actions — cause of action for fraud and deceit and one for rescission may be joined in same complaint under Civil- Practice Act, § 258, if they arise under single subdivision thereof—causes of action did not so arise in present case.
Appeal from an order of the Supreme Court, made at the Kings Special Term and entered in the Nassau county clerk’s office on March 14, 1925, directing the plaintiff to serve a second amended complaint within twenty days, or in the event of his failure to do so, dismissing the amended complaint.
Order granting motion to dismiss on the ground of improper joinder of causes of action affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice Callaghan at Special Term. Kelly, P. J., Jayeox, Manning, Kelby and Kapper, JJ., concur.
The following is the opinion of the court below:

The plaintiff has joined in the complaint two causes of action •— one for fraud and deceit, in which a money judgment is demanded; the other for a rescission. This may be done (Civ. Prac. Act, § 258; Merry Realty Co. v. Shamokin & Hollis R. E. Co., 230 N. Y. 316 , 324), but within the limits prescribed by section 258 of the Civil Practice Act. Twelve subdivisions are enumerated, each defining the kind of actions which may be united. The causes of action stated here are upon entirely different transactions. That section provides: “ 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.” These causes of action are not found in any of those subdivisions. Moe v. Reliance Ins. Co. ( 188 App. Div. 977 ) has no application. There two causes of action were stated, one at law, and the other in equity, but both grew out of the contract of insurance and could be united either under subdivision 1 or 9 of section 258 of the Civil Practice Act.[1] The motion must be granted.

† † Formerly Code Civ. Proc. § 484, subds. 1, 9.— [Rep.

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