Lomb v. Richard

45 Misc. 129, 91 N.Y.S. 881

• Court: New York Supreme Court
• Decided: October 15, 1904
• Status: Published

Opinion

Gildersleeve, J.

This is a demurrer to the complaint on the grounds (1) that it does not set forth facts sufficient to constitute a cause of action, and (2) that two causes of action have been improperly united in the same complaint. I think the last ground is well taken. Section 484 of the Code permits certain causes of action to be joined in the same complaint, but it specifically provides that they must be consistent with each other. In the present case, the first cause of action is based on the breach of a contract, while the second cause of action is for a rescission of the same contract on the ground of fraud. Thus, in one breath plaintiff reaffirms the contract and sues for its breach, and dis-affirms the said contract and sues for its rescission on the ground of fraud. The two causes of action are not consistent with each other and cannot he joined in the same complaint. See Genet v. Delaware & Hudson C. Co., 28 App. Div. 331; Conrow v. Little, 115 N. Y. 387, 393. Having reached the conclusion that the demurrer must he sustained for the reason above stated, I do not deem it necessary to pass upon the other ground urged. Demurrer is sustained, with leave to amend on payment of costs.

Demurrer sustained, with leave to amend on payment of costs.