EDISON ELECTRIC ILLUMINATING CO. OF BROOKLYN v. FRANKLIN H. KALBFLEISCH CO.(Supreme Court, Appellate Division, Second Department.Headnote
Action—Joinder—Contract and Tobt.Since, under Code Civ. Proc. § 484, a cause of action on contract can only be united with one in tort when they are consistent with each other, plaintiff could not unite a cause of action for the breach of a contract, and one for damages for fraud in inducing plaintiff to make it.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Action, §§ 468-489.]
Appeal from Special Term, Kings County.
Action by the Edison Electric Illuminating Company of Brooklyn against Franklin H. Kalbfleisch Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Reversed.
Argued before HIRSCHBERG, P. J., and WOODWARD, GAY-NOR, RICH, and MILLER, JJ.James W. Prendergast (James C. Bergen, on the brief), for appellant.
D. B. Grant, for respondent.
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. To 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.
Interlocutory judgment overruling demurrer to complaint reversed, with costs, and demurrer sustained with costs, with leave to the plaintiff to plead over on payment. All concur.