
    Mazie E. Hunt, Respondent, v. Paul Armstrong, Appellant.
    First Department,
    February 19, 1915.
    Pleading — complaint—demurrer — inconsistent causes of action — waiver — motion to compel plaintiff to elect upon the trial — motion for judgment upon the pleadings.
    A complaint which affirms a contract and demands damages for a breach thereof, and also sets up false and fraudulent representations, inducing the execution of the contract, and asks that it be declared null and void, states two inconsistent causes of action; one based upon affirmance and the other upon rescission of the contract, and where objection is not taken by demurrer or answer, it must be deemed waived under section 499 of the Code of Civil Procedure.
    A motion upon the pleadings for judgment dismissing the complaint cannot be granted if the complaint discloses any cause of action.
    An objection that the complaint does not state facts sufficient to constitute a cause of action may be raised upon a motion for judgment upon the pleadings, as it is a ground for demurrer expressly excepted from the provision of the Code of Civil Procedure regarding waiver.
    Appeal by the defendant, Paul Armstrong, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of September, 1914, denying the defendant’s motion for judgment on the pleadings after issue had been joined by the service of an answer.
    
      Phelan Beale, for the appellant.
    
      Francis H. Kinnicutt of counsel [Hunt, Hill & Betts, attorneys], for the respondent.
   Clarke, J.:

The main ground of the motion for judgment upon the. pleadings urged by the appellant is that the complaint is fatally defective in that causes of action are improperly united. The pleadings consist of a complaint and an answer. Section 488 of the Code of Civil Procedure provides: “ The defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof: * * * 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufficient to constitute a cause of action.”

Section 49 8 provides: “Where any of the matters enumerated in section four hundred and eighty-eight of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer,” and section 499 provides: “If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action.”

The complaint states two inconsistent causes of action, although growing out of the same transaction. The first affirms a contract and demands damages for breach thereof. The second sets up false and fraudulent representations, inducing entering into the contract, and asks that it be declared to be null and void. One is, therefore, based upon affirmance and the other upon rescission. But this objection being a ground for demurrer provided for in subdivision 7 of section 488, was not taken by demurrer, although it appears upon the face of the complaint, nor was it taken by answer. It, therefore, must be deemed waived under section 499. From the multitude of cases interpreting these sections we cite the following having to do with the precise point at bar, namely, inconsistent causes of action.

In Marks v. Townsend (97 N. Y. 590), while the court held that a cause of action for malicious prosecution and one for false imprisonment were not inconsistent with each other and as they were both for personal injuries could be contained in the same complaint, Judge Earl, writing for a unanimous court, also said: “But as the objection to the joinder was not taken in the answer or by demurrer, it was in any event waived. (Code, § 499.) ”

In Isear v. Hoadley (44 App. Div. 161) Rumsey, J., said: “The defendants’ objection to the complaint was that there was a misjoinder of causes of action. This objection appeared on the face of the complaint, but no notice was taken of it by demurrer, as it might have been, nor did the defendants object to the misjoinder by their answer. The Code provides that if that objection is not taken either by demurrer or answer the defendant is deemed to have waived it. (Code Civ. Proc. § 499.) Within that rule it was the duty of the court to have paid no attention to this objection, and it was erroneous to dismiss the complaint because of it.”

In Shaw v. City of New York (83 App. Div. 212) McLaughlin, J., said: “If causes of action were improperly united, under subdivision 7 of section 488 of the Code of Civil Procedure, defendant could have raised that question by demurring to the complaint, and, not having done so, he must be deemed, under section 499 of the Code of Civil Procedure, to have waived such objection.”

In Erie Basin Improvement Co. v. Smith (135 App. Div. 365) the court said: “ Had a demurrer been interposed upon the ground of misjoinder of causes of action, it may be that it would have been sustained with respect to the joinder of the causes of action against the defendants who are the owners of the two parcels to the south, * * *; but that objection not having been taken by demurrer, has been waived.”

This being a motion for judgment upon the pleadings for the dismissal of the complaint the complaint may not be dismissed if it discloses any causes of action. If there be two inconsistent causes of action a motion to compel the plaintiff to elect, upon the trial, might properly be made.

The appellant also claims that the complaint does not state facts sufficient to constitute a cause of action. This objection is properly raised upon the motion for judgment upon the pleadings as it is a ground for demurrer expressly excepted from the provision regarding waiver.

We think the complaint does state facts sufficient to constitute a cause of action, and the order appealed from denying defendant’s motion for judgment upon the pleadings should be affirmed, with ten dollars costs and disbursements to the respondent.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  