
    Edison Electric Illuminating Company of Brooklyn, Respondent, v. Franklin H. Kalbfleisch Company, Appellant.
    Second Department,
    June 18, 1908.
    Pleading—demurrer---misjoinder of actions — actions on contract and for fraud.
    • The fact that two causes of action - are not separately stated and numbered as such does not prevent a demurrer upon the ground that they are improperly joined.
    
      An action for breach of a contract to take and pay for a certain amount of electricity cannot be joined with an action for damages for the fraud of the defendant in inducing the plaintiff to make the contract.
    An action for a breach of contract is an adoption of the contract and inconsistent with an action for damages for fraud in inducing the contract. A demurrer to such misjoinder will be sustained, although the actions be not separately stated and there be but one prayer for damage.
    Appeal by the defendant, the Franklin H. Kalbfleisch Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of February, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the amended complaint made upon the ground that two causes of action were improperly joined.
    
      James W. Prendergast, for the appellant.
    
      Glenn M. Congdon, for the respondent.
   Gaynor, J.:

This amended complaint is substantially the same as the original complaint which was here on demurrer that it improperly joined two causes of action (117 App. Div. 842). The disposition seems to be to quarrel in this way with our former decision. It does not seem that the courts should be troubled twice with such a complaint, if once. That the two causes of action are not now stated and numbered as such does not prevent a demurrer to their improper joinder. They need not be separated and numbered on motion before the demurrer may be interposed.

The first seven numbered paragraphs of the complaint, stripped of useless verbiage and made lean, allege a cause of action for breach of contract,1 viz., that the defendant entered into a contract with the plaintiff to take of it not less than 25,000 kilowatt hours of electric current a month for two years, at rates aggregating $1,200 a month, and that the defendant failed and refused to perforin the said contract. The remaining paragraphs allege an action for damages for fraud by the defendant in inducing the plaintiff to make the contract and go to the expense of connecting its current with the defendant’s place and installing it there in carrying out the contract .ón its side, yiz., $3,267.66, by false representations as to the quantity of current it required.

These, causes of action are inconsistent and therefore may not be united as we have already held, An action for breach of the contract is an adoption of it and inconsistent with an action for damages for fraud which indiiced the plaintiff to make it. The plaintiff cannot recover the amount agreed to be paid by the contract for the two. years (or whatever the measure of damages for the breach may be), and also the amount of its expense in connecting and installing its ¿urrent, which it had to do under the contract to carry it out •—■ or whatever else its damages might be for the fraud which induced it to make the contract and carry it out..

That the prayer for damages is for a sum equal in amount tp the damages alleged to be caused by the’ fraud, does not change the case. The prayer for damages is for both causes of action, and both should not be proved on the trial,

■ It is not now in order to decide whether either or both of the causes of action, is open to demurrer for insufficiency,, for no such question is involved. '

The interlocutory-judgment should tie reversed and the demurrer sustained. ’’ '

Woodward, Jenes,,- Hooker and Miller, J j., concurred.

Interlocutory judgment reversed, with ■ costs, and demurrer sustained, with costs;  