
    (45 Misc. Rep. 129)
    LOMB v. RICHARD.
    (Supreme Court, Special Term, New York County.
    October, 1904.)
    1. Actions—Misjoinder of Causes.
    Under Code Civ. Proe. § 484, permitting certain causes of action to be joined in the same complaint, but providing that they must be consistent with each other, a cause of action on the breach of a contract is not properly united with a cause of action for rescission on the ground, of fraud.
    
      Action by George W. C. Lomb against Joseph C. Richard. Demurrer to complaint.
    Sustained.
    Allen Caruthers, for plaintiff.
    Maurice Goodman, for defendant.
   GILDERSLEEVE, J.

This is a demurrer to the complaint on the grounds (1) that it does not set forth facts sufficient to constitute a cause of action, and (2) that two causes of action have been improperly united in the same complaint. I think the last ground is well taken. Section 484' of the Code permits certain causes of action to be joined in the same complaint, but it specifically provides that they must be consistent with each other. In the present case the first cause of action is based on the breach of a contract, while the second cause of action is for a rescission of the same contract on the ground of fraud. Thus in one breath plaintiff reaffirms the contract and sues for its breach, and disaffirms the said contract and sues for its rescission on the ground of fraud. The two causes of action are not consistent with each other, and cannot be joined in the same complaint. See Genet v. Delaware & Hudson C. Co., 28 App. Div. 331, 51 N. Y. Supp. 377; Conrow v. Little, 115 N. Y. 387, 393, 22 N. E. 346, 5 L. R. A. 693. Having reached the conclusion that the demurrer must be sustained for the reason above stated, I do not deem it necessary to pass upon the other ground urged. Demurrer is sustained, with leave to amend on payment of costs.

Demurrer sustained, with leave to amend on payment of costs.  