
    Emma Kuhn and Others, Respondents, v. Title Guarantee and Trust Company, Appellant, and Societe Culinaire Philanthropique de New York and Others, Defendants.*
   Order denying motion of defendant Title Guarantee and Trust Company to compel plaintiffs to serve an amended complaint reversed on the law, with ten dollars costs and disbursements, and motion granted on the ground that the plamtiffs have attempted to umte in their complaint, as a single cause of action, two entirely distinct and inconsistent causes — one being in eqrnty to have the Mterests of the plaintiffs in certain certificates of participation in mortgage securities declared superior to other similar certificates held by another, and for foreclosure and sale; and the other, a cause of action for fraud and deceit in the sale of these certificates to plaintiffs. These causes of action do not arise strictly in the same transaction and the remedy sought m the latter case is not a deficiency judgment, but damages. The first cause of action is in affirmance of the contract of sale and the latter on the theory that the contract was induced by fraudulent representations and is, therefore, void, forming the bases of rescission or of damages in an action at law. (Vail v. Reynolds, 118 N. Y. 297.) The amended complaint is to be served within twenty days upon payment of costs. Kapper, Hagarty and Davis, JJ., concur; Lazansky, P. J., and Young, J., dissent and vote to affirm.  