
    Christian Christenson, Respondent, v. Louis Pincus, Appellant.
    Second Department,
    March 8, 1907.
    Pleading — practice—action for conversion and for goods sold causes should be separately stated and numbered.
    When a complaint alleges two causes of action, one for conversion and the other . for goods sold and delivered, the defendant is entitled to have the causes separately stated and numbered.
    Although the defendant may require the plaintiff to elect between such causes at trial, he may at his option require .the causes to-be separated and numbered before answering.
    Appeal by the defendant, Louis Pincus, from an order of the Supreme Court, made at. the Kings County Special Term and entered in the office df the clerk of the county of Kings on .the 3d day of January, 1907, denying the defendant’s motion to compel the plaintiff to separately state and number the causes of action set forth in the complaint."
    
      J. Charles Wesehler \_8ol Rothschild with him on the brief], for the appellant.
    
      Ferdinand F. M. Bullowa, for the respondent.
   Rich, J.:

The complaint alleges two causes of action, one for' conversion and one on contract, for goods sold and delivered. The.plaintiff might have waived the tort in his pleading and then the action would have proceeded as one on contract. This he has not seen fit to do, and defendant was entitled to' have the causes of action separated and numbered. (Code Civ. Proc. § 483.) It lias become the settled practice that a plaintiff will be required to elect at the trial as to which of two causes of action he will try, and that would have been quite proper in this case, .but defendant had the right, at his option, before' answering to move to have the causes of action separated1 and numbered, and plaintiff would have been in time, even upon the motion to eléct, to waive the tort and proceed Upon the one cause of action. He failed to avail himself - of the opportunity given him by the learned justice at Special Term to do this, and the order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. ’

Hirschberg, P. J., Woodward, Gayhor and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  