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

117 A.D. 842, 102 N.Y.S. 1039, 38 N.Y. Civ. Proc. R. 361, 1907 N.Y. App. Div. LEXIS 362

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1907
• Status: Published

Opinion

Gaynor, J.:

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.'