Stokes v. Behrenes — 52 N.Y.S. 251

Majority

p. 251

(23 Misc. Rep. 442.)

STOKES v. BEHRENES.

(City Court of New York, General Term.

April, 1898.)

Headnote

Election between Inconsistent Causes of Action.

Plaintiff may be compelled, by motion before answer, as well as on trial, to elect between two inconsistent causes of action—false imprisonment and malicious prosecution—set out in the complaint.

Appeal from special term.

Action by Alice Stokes against Albert Behrenes. From an order denying a motion, defendant appeals.

Reversed.

Argued before FITZSIMONS, C. J., and CORLAN, J.

Herbert J. Hindes, for appellant.

Charles I. Schampain, for respondent.

This is an appeal from an order denying a motion, made on behalf of the defendant, requiring the plaintiff to state the two causes of action set forth in the complaint separately, and to elect which of the two causes of action set forth in the complaint— false imprisonment or malicious prosecution—she will rely upon in this case. The complaint contains all the necessary allegations to sustain an action for false imprisonment or for malicious prosecution, and, as the two causes of action were inconsistent, the court should direct an election. This may be done on the trial, or by motion before answer. Cassidy v. Daly, 11 Wkly. Dig. 222 ; Tuthill v. Skidmore, 124 N. Y. 148 , 26 N. E. 348 .

The defendant followed the latter practice, and his motion should have been granted. Order reversed, with costs.

Order reversed, with costs.

FITZSIMONS, C. J., concurs.

Cases cited

Tuthill v. Skidmore 124 N. Y. 148 N.Y. 1891-01-14 p. 251