
    Walter C. Kaufman and Olive C. Kaufman, Respondents, v. The Morris Building Company, Appellant.
    Second Department,
    May 12, 1908.
    Pleading —joinder of actions — claims on contract and in tort — inconsistent causes.
    A cause of action to recover damages based upon the fraud of the defendant in inducing the plaintiff to buy lands by falsely stating that the remaining portions were subject to certain restrictive covenants cannot he joined with another cause for damages based upon an alleged agreement by the defendant to insert said restrictive covenants in any conveyances of the remaining portions thereafter made.
    Actions on contract and in tort cannot be joined except under subdivision 9 of section 484 of the Code of Civil Procedure, and only when they arise out of the same transaction or transactions connected with the same subject-matter and are consistent with each other.
    Appeal by the defendant, The Morris Building Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the 18th day of December, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint, which averred that two causes of action, one founded upon fraud, the other upon contract, not arising out of the same transaction or connected with the same subject of action, were improperly united.
    
      Jesse W. Johnson [Alvan R. Johnson with him on the brief], for the appellant.
    
      E. W. Cushing, for the respondents.
   Gaynor, J. :

Two causes of action are united in the complaint, namely, one for damages for fraudulent representations and the other for damages for a breach of contract. An action on contract and one in tort may not be united, unless under subdivision 9 of section 484 of the Code of Civil Procedure. Each of the preceding subdivisions specifies causes of action which may be united, and subdivision ■ 9 then provides generally that several causes of action upon claims arising out of the same transaction, or transactions connected with the same subject of. action, and not included within one of the foregoing subdivisions (i. e., not all embraced in or covered by any one of the said foregoing subdivisions, in which case subdivision 9 would not need to be invoked), may be united. But it is provided at the end of the section that causes of action must be consistent with each other to be so united.

The two causes of action united in the present complaint are not consistent with each other. Both of them cannot exist together. The first is that in order to induce the plaintiffs to purchase two lots of it the defendant falsely and fraudulently represented to them that all of the lots of the tract of which the said two were a part, and which tract it owned, were already subject to certain specified covenants and restrictions for residence property, and thereby deceived the plaintiffs and induced them to purchase and take a conveyance of the same. Instead of rescinding, the prayer is for damages, viz., the difference between the value of the lots conveyed with and without such restrictions and covenants. The second is that the defendant agreed with the plaintiffs (and the alleged time of the agreement and of the fraudulent representations are simultaneous) that if they would purchase the said two lots subject to certain specified covenants and restrictions, viz., the same mentioned in- the said first cause, it would thereafter in conveying the said other lots subject them to such covenants and restrictions also; and that the plaintiffs did purchase and take a conveyance of the said two lots subject to the said covenants and restrictions, but that thereafter the defendant in conveying the said other lots did not subject them to the said covenants and restrictions; and the same damages for breach of the contract are prayed for. The inconsistency is manifest. In the first cause it is alleged that it was fraudulently represented by the defendant and believed by the plaintiffs that all of the lots of the tract were already under the covenants and restrictions; in the second that there was an agreement that the defendant would thereafter bring them thereunder, viz., as it conveyed them from time to time, and that the contract was broken. If the agreement was that the defendant was thereafter to subject the land to the covenants and restrictions as it conveyed it froni time to time, then the plaintiff was informed that they were not already subject thereto, and could not have been deceived by statements that they were. But if it can be imagined that the contract could be made and the fraud perpetrated simultaneously, the two causes of action cannot coexist. To assert one of them is to negative the other. The plaintiffs have to elect which they will sue on ; they cannot sue on both (Edison Electric Ill. Co. v. Kalbfleisch Co., 117 App. Div. 842).

The judgment should be reversed and the demurrer sustained, with leave to plead over on payment of costs.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plead over upon payment of costs.  