Stokes v. Behrenes

23 Misc. 442, 52 N.Y.S. 251

Opinion

Conlan, J.

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 com: plaint,—- false imprisonment or taahcious prosecution — he will rely upon in this case.- .

The complaint contains all the necessary allegations to- sustain án 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 motipn before answer. Cassidy v. Daly, 11 Week. Dig. 222; Tuthill v. Skidmore, 124 N. Y. 148.

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

Fitzsimons, Oh. J., concm’s.

Order reversed, with costs.