Lyon v. Israel

249 A.D. 787, 292 N.Y.S. 377, 1936 N.Y. App. Div. LEXIS 6008

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1936
• Status: Published

Opinion

Action by materialmen and subcontractor to foreclose a mechanic’s lien on certain property. In so far as it denies that part of the motion of defendant Israel which asks that plaintiff be required separately to'state and number alleged causes of action contained in his complaint, order reversed on the law and the facts, without costs, and motion granted; the amended complaint to be served within ten days from the entry of the order hereon. The complaint contains two causes of action, the proof under each of which is unrelated and would necessarily differ and concern different parties. A recovery or a failure to recover with respect to one would not bar recourse to the other, and vice versa. (Carlson v. Albert, 117 App. Div. 836; Raftery v. Carter, 162 id. 17.) In so far as it denies that part of the motion which asks that certain allegations of the complaint be struck out, pursuant to rule 103 of the Buies of Civil Practice, the order is affirmed, without costs. As to that part of the order, the denial was proper. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.