Levy v. Franklin National Bank

52 A.D.2d 769, 382 N.Y.S.2d 783, 1976 N.Y. App. Div. LEXIS 12535

Opinion

Order, Supreme Court, New York County, entered on February 5, 1975, insofar as it dismissed plaintiff’s first cause of action against defendant, Franklin National Bank, and insofar as it imposed as condition for permission to serve a supplemental summons and an amended supplemental complaint, that plaintiff pay defendant $150 costs which would also not prevent defendant from requesting an additional $150, if it should prevail at trial, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of reinstating the first cause of action and eliminating all the conditions imposed and, as so modified, the order is affirmed, without costs and without disbursements. Plaintiff has denied executing the subject hypothecation agreement. Her motion for leave to serve an amended pleading, alleging an inconsistent second cause of action, did not, as a matter of law, constitute an admission by her that she had signed such agreement. The dismissal of the first cause of action by the court was unwarranted. It is permissible and proper to plead contradictory causes of action. (Kettner v Carson, 44 AD2d 804.) As was said in the cited case (p 805): "The decision overlooks the fact that contradictory causes of action may be pleaded”. Under the circumstances it was improper for the court to dismiss the first cause of action and to impose costs as a requisite for the amendment. Concur—Murphy, J. P., Birns, Capozzoli, Lane and Nunez, JJ.