
    JAMES M. SEYMOUR, Respondent, v. PIERRE LORILLARD, Appellant.
    
      Decided March 2, 1885.
    
      Causes of action—separate and distinct—Pleading—election between.
    
    A cause of action upon a warranty as to an article, and a cause of action for a false representation in respect of such article, as to matters covered by the warranty, are separate and distinct causes of action.
    A complaint combining the two causes of action is not obnoxious to the objection of stating the same cause of action in two forms, although but one sum of money under the allegations of the complaint can be recovered under either cause of action or both.
    Where the court has the power to compel election between two causes of action in a complaint, its exorcise rests in its discretion.
    As affecting the exercise of the discretion, one consideration is whether or not the prosecution of both causes of action at one time, and in one proceeding, will embarrass the defendant in his defense, when no such consequence would follow, and no embarrassment to plaintiff’s legal remedy would happen if he were obliged to bring two actions.
    In this case, as the only harm which could come to the defendant from combining the above two causes, would arise from the plaintiff’s endeavoring to show that the defendant was guilty of a fraud as well as of a breach of contract, and thus give the jurors an unfavorable impression which might affect their verdict, and as practically all the facts would be in evidence under either cause of action,—Held, that a motion to compel an election was properly denied.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendant from an order denying his motion that plaintiff be compelled to elect one of two causes of action alleged in the complaint.
    The first cause of action was for damages from false representations ; viz., that a certain yacht then offered for sale by defendant to plaintiff did not leak and was sound and in perfect condition.
    The second cause of action was for damages from0 a breach of a warranty upon the sale of the yacht; viz., defendant falsely warranted said yacht not to leak, and to be sound and in perfect condition.
    
      
      John E. Parsons, attorney and of counsel for appellant,
    argued : I. The plaintiff cannot in his complaint insert allegations sufficient to sustain a cause of action in either tort or contract; and the remedy of the defendant is by motion (Ladd v. Arkell, 37 Super. Ct. 35 ; Conaughty v. Nichols, 42 N. Y. 83).
    II. No case can be cited contradictory to these decisions, The court is asked to overrule them upon cases which presented an entirely different question, viz : Kelly v. Bernheimer, 3 T. & C. 140; Bowen v. Mandeville, 95 N. Y. 237.
    III. That causes of action which proceed, one for tort and another for contract, are inconsistent in the sense in which that term is used in defining causes of action, is not an open question (Sweet v. Ingerson, 12 How. Pr. 331, which is an adjudged case in point with the one at bar Quintard v. Newton, 5 Rob. 72; Comstock v. Hoeld, 1 Law Bull. 43, Barrett, J. ; Anderson v. Hill, 53 Barb. 238; Hepburn v. Babcock, Super. Ct. 9 Abb. 159 ; Nash v. Macauley, Ib. 159).
    IV. The complaint describes the two counts as two causes of action. As has been said, this is a misnomer. There is but one cause of action. It is to recover fifty thousand dollars which the plaintiff alleges he has lost because the Badha leaked. He has framed his complaint for this fifty thousand dollars in the shape of two counts. This is wholly different from a case where two recoveries can be had, where the jury might decide one cause of action in favor of the plaintiff and the other in favor of the defendant.
    Several of the cases above referred to were precisely similar in character, a single sum of money being demanded upon .two different counts, one alleging fraud and the other warranty. The plaintiff has the right to elect upon which ground he will attempt to recover his fifty thousand dollars. If he selects his fraud count, the allegation of a warranty is irrelevant; if his warranty count, he cannot be permitted to sustain it by proof of fraud.
    
      
      Roger A. Pryor, attorney, and of counsel for respondent,
    argued :—I. If the vice intended to be imputed to the complaint be, that it improperly unites causes of action, the objection is not available on motion, but must be raised by demurrer for the misjoinder (Code, § 488, subd. 7 ; Smith v. Orser, 43 Barb. 187 ; Quintard v. Newton, 5 Robt. 62 ; Smith v. Douglas, 15 Abb. 266 ; Blossom v. Barrett, 37 N. Y. 436 ; Goldsberg v. Utley, 60 Ib. 427 ; Gillet v. Borden, 6 Lans. 32 ; Pomeroy on Remedies, § 448).
    II. Under this division the counsel discussed the question of a misjoinder of causes of action ; and cited as bearing on it: Code, § 484, subd. 9 ; Pomeroy, § 463 ; Robinson v. Flint, 7 Abb. 392 ; Lee v. Partridge, 2 Duer, 463 ; Adams v. Bissell, 28 Barb. 382 ; Badger v. Benedict, 1 Hilt, 414 ; Flinn v. Bailey, 50 Barb. 73 ; Christy v. Libby, 2 Daly, 418 ; Lattin v. McCarty, 41 N. Y. 107, 112 ; Wiles v. Suydam, 64 Ib. 173 ; Simar v. Canady, 53 Io. 298, 305 ; Robinson v. Flint, 16 How. 240; Woodbury v. Deloss, 65 Barb. 502 ; Sternberger v. McGovern, 15 Abb. N. S. 257 ; McTeague v. Coulter, 6 J. & S. 212 ; Keep v. Kaufman, 6 Ib. 141; Kelly v. Bernheimer, 3 T. & C. 142 ; Robinson v. v. Flint, 7 Abb. 392, note ; Woodbury v. Deloss, 1 T. & C. 20 ; Bowen v. Mandeville, 95 N. Y. 237 ; Goldberg v. Dougherty, 7 J. & S. 190 ; Wanzer v. De Baun, 1 E. D. S. 261 ; Bowen v. Mandeville, 95 N. Y. 237, 240; Whitney v. Allaire, 1 N. Y. 305 ; Schuchart v. Allens, 1 Wall. (U. S.) 359 ; Bartholomew v. Bushnell, 52 Am. Dec. 368, and note; Jones v. Hoyt, 10 Abb. N. C. 324.
    In respect to Quintard v. Newton (5 Robt. 78), of course, if the count for fraud proceeded upon the ground of a rescission of a sale, and sought to reclaim the entire purchase price, as was erroneously assumed by the court in that case, it would be inconsistent with the count upon the warranty, which affirms the sale. But otherwise where the action is for damages merely (Ely v. Mumford, 47 Barb. 629 ; Bowen v. Mandeville, 95 N. Y. 237 ; Krumm v. Beach, 96 Ib. 398, 406).
    As to Sweet v. Ingerson (12 How. 331), though the authority of that case was recognized in Springstead v. Lawson (23 How. 302), with a protest, however, that the ruling was against the spirit of the Code (p. 305), and in Quintard v. Newton (5 Robt. 72), neither of which, however, was an adjudication of the point; it was distinctly rejected in Robinson v. Flint (7 Abb. 393), and Kelly v. Bernheimer (3 T. & C. 142), and decisively overthrown by the court of appeals in Bowen v. Mandeville (95 N. Y. 237), Reynolds v. Palmer (21 Fed. R. 433).
    So, a count for malicious prosecution may be united with a count for false imprisonment, if they both arise -out of the same transaction, and this, despite the seeming incompatibility of the causes of action (Castro v. Uriarte, 2 Civ. Pro. 199 ; Barr v. Shaw, 10 Hun, 580 ; Thorne v. Turck, 10 Week. Dig. 560 ; Neil v. Thorn, 88 N. Y. 270; Henderson v. Jackson, 2 Sweeny, 224, affirmed by the court of appeals ; Polley v. Wilkinson, 5 Civ. Pro. 135).
    As to Ladd v. Arkell (5 J. & S. 35), following Conaughty v. Nichols (42 N. Y. 83),. it did not touch the point in controversy, but merely suggests that remedy, if any, is by motion, when the complaint purports to state a single cause of action, but is susceptible of an alternative construction. Neither case intimates that here is a misjoinder of causes of action. ' So, in Gardner v. Locke (2 Civ. Pro. 252), and in Hepburn v. Babcock (9 Abb. 159, note), were two statements of the same cause of action. This court, however, propounded a contrary rule in Evans v. Kalbfleisch (10 Abb. N. S. 13).
    Sullivan v. R. R. Co. (1 Civ. Pro. 289), and Teall v. Syracuse (32 Hun, 332), are plainly distinguishable.
    III. The causes of action being properly united, the court will not compel an election between them, nor strike out either (Jordan v. Reilly, 12 Week. Dig. 184 ; Hazewell v. Cameron, 13 J. & S. 22 ; Smith v. Douglas, 15 Abb. 266). Nor, indeed, has the court power to deprive the party of a privilege expressly accorded him by statute (Cases, supra; Bryant v. Bryant, 2 Robt. 616 ; Smith v. Wells, 20 How. 158 ; Townsend v. Platt, 3 Abb. 325).
    
      IV. The remedy sought by the present motion, to compel an election or to strike out, is applicable only when the same cause of action is repeated in another independent count (Hepburn v. Babcock, 9 Abb. 159, note ; Nash v. McCauley, Ib. 151; Fern v. Vanderbilt, 13 Ib. 72); the remedy for consolidating two repugnant claims in a single count being by demurrer (Wiles v. Suydam, 64 N. Y. 173 ; Goldberg v. Utley, 60 Ib. 427; Harris v. Eldridge, 5 Abb. N. C. 278).
    But here is no restatement of a single claim, but allegations, in substance as well as form, of distinct and substantive causes of action (Cases, supra; Bowen v. Mandeville, 95 N. Y. 241).
    V. If, however, the second count were but a varied repetition of the cause of action stated in the first, the court would not strike out or compel an election (Barr v. Shaw, 10 Hun, 580 ; Velie v. Ins. Co., 65 How. 1; Longprey v. Yates, 31 Hun, 432 ; Birdseye v. Smith, 32 Barb. 217, 221; Talcott v. Van Vechten, 65 How. 5 ; 25 Hun, 565 ; Jones v. Palmer, 1 Abb. 442; Sheldon v. Adams, 41 Barb. 54).
    VI. Neither an entire pleading—and each statement of a several cause of action is an independent pleading (Simmons v. Fairchild, 42 Barb. 409)—nor an allegation relevant to a statement of a cause of action, will be stricken out (Eaton v. Burnett, 16 J. & S. 548 ; Collins v. Coghill, 7 Robt. 81; Fasnacht v. Stehr, 5 Abb. N. S. 338; Howell v. Ins. Co., 24 How. 475 ; Quintard v. Newton, 5 Robt. 72 ; Walter v. Fowler, 85 N. Y. 621; Donan v. Dinsmore, 33 Barb. 86).
    . VII. The injustice of which appellant supposes he may be the victim, by being arrested for the fraud of which he may be acquitted on the trial, is purely imaginary; because the joinder of the claim upon contract with the action for deceit precludes plaintiff from an order of arrest (Mudge v. Ping, 71 N. Y. 608 ; Bowen v. True, 53 Ib. 640).
   Per Curiam.

Whether a party should be compelled to elect to proceed upon one of two causes of action stated in the complaint, rests in the discretion of the court, in a case where the court has a power to compel an election. If in this case, the plaintiff has not improperly joined two causes of action, so that the complaint is not demurrable, the merits of both may he definitely determined in this action. If the complaint be demurrable, defendant should go at once to the specific remedy pointed out by the Code ; or again, if he do not demur, the issues upon the whole of the complaint may be tried, reserving an opinion, however, as to the power of the judge at the trial to compel an election based upon the appearance then of facts which cannot now be perceived from the pleadings only.

This is not an instance of an endeavor to state the same cause of action in two forms. There are two causes of action that are not inconsistent. It is conceivable that if separate actions upon the causes were brought that there might be a recovery in each, of the whole amount claimed in this, unless there was a judgment on one cause recovered and paid, before the judgment was recovered on the other cause. It does not seem expedient to put the proceedings in shape for the possibility of such a question, unless that may be the consequence of the defendant demanding a strict legal right which is not this case. The fact, if it be a fact, that the plaintiff can recover according to the allegations of the complaint, but one sum of money under either cause of action or under both, does not and should not deprive the plaintiff of both methods of attaining his rights. If he have a right to both remedies, he cannot be forced not to use them. And the question is, whether in the plaintiff’s using both at one time, or in one proceeding, he will embarrass the defendant in his defense to either or to both, when no such consequence would follow and no embarrassment of plaintiff’s legal remedy would happen, if he were obliged to bring two actions. The only way in which the defendant could be harmed, if at all, would arise from the plaintiff endeavoring to show that the defendant was guilty of a fraud as well as of breach of contract, and thus the jurors receive an unfavorable impression which might affect their verdict. There is a practical force in this, generally considered In the present case it has less force than it would have if the facts on which the plaintiff must rely were not under both causes the same, to a great extent. Practically, all the facts would be in evidence under either cause of action.

Order affirmed, with $10 costs, and disbursements to be taxed.  