
    Charles P. Hill, Plaintiff, v. John McKane and Others, Defendants.
    (Supreme Court, New York Special Term,
    April, 1911.)
    Joinder of causes of action — What causes of action may he joined — Claims arising, out of the same transaction.
    Pleading — Complaint or declaration — Separate counts on same cause of action.
    Under section 484 of the Code of Civil Procedure, authorizing the joinder in one complaint of two or more consistent causes of action arising out of the same transaction or transactions connected with the subject-matter of the action, a complaint may allege two or more causes of action, even though it is apparent that they arose from the same transaction and that only one cause of action can, in fact, exist, varying the allegations of fact in each, even though the several allegations are inconsistent and contradictory in fact; but where the transaction or transactions give rise to different causes of action at the plaintiff’s election, he must elect between them and allege one or the other only; he cannot consistently assert two or more causes of action where his assertion of one of them is necessarily repugnant to the theory upon which one or more of the others rest.
    Where a complaint alleged, first, a breach of a contract under which plaintiff was to acquire an interest in certain mining options owned by defendant and a refusal to turn over to him his share of certain corporate stocks, after demand, received on the sale of said options to a corporation, and, second, a conversion of plaintiff’s share of said stock after it had been set apart for him in pursuance of the contract, after demand made therefor, the two causes of action are not only inconsistent but contradictory, as the proof to establish one would destroy the other, and the complaint is demurrable upon the ground that causes of action are improperly united.
    
      Separate demurrers of the defendants McKane and Bowers to the amended complaint upon the grounds that two causes of action have been improperly united therein and that it does not state facts sufficient to constitute a cause of action.
    John J. Adams, for defendants McKane and Bowers, demurrants.
    George I. Woolley, for plaintiff, opposed.
   Giegerich, J.

The amended complaint sets up two causes of action, the first being for a breach of an alleged contract between the plaintiff and the defendant John McKane, pursuant to the authority of the other defendants, and which they afterward ratified. The agreement, in substance, was that the plaintiff in consideration of the payment of $500 was to acquire a one-eighth interest in certain mining options owned by the defendants. It is further alleged in the first cause of action that the plaintiff made the payment of $500 according to the agreement; that the mining options were sold by the defendants to a corporation known as the Golden Anchor Mining Company, and that the defendants received in- consideration of the transfer 200,000 shares of the stock of the said company, of which the plaintiff is entitled to one-eighth, or 25,000 shares; and that the plaintiff has demanded the delivery of the stock which became due as aforesaid, which demand has been refused, to the plaintiff’s damage $50,000. The second cause of action is for conversion, it being alleged that after the receipt by the defendants of the 200,000 shares of stock above mentioned 25,000 shares were by them set apart for the plaintiff in pursuance of the aforesaid agreement; that demand was made for the same and delivery refused, and thereby plaintiff was damaged in the sum of $50,000. The plaintiff relies upon the statutory provision that two or more causes of action may be united in one complaint provided they arose out of the same transaction or transactions connected with the same subject of action, and provided they are consistent with each other. Code Civ. Pro., § 484; Edison Illum. Co. v. Kalbfleisch Co., 117 App. Div. 482. Assuming that the two alleged causes of action arose out of the same transaction, the demurrants nevertheless insist that they are clearly inconsistent within the principle of certain cases. to which attention will presently he called. The question when causes of action are and when they are not consistent within the meaning of the section cited has been the subject of a good many decisions. From the language used in some of the cases it might be supposed that the test was whether both causes of action could be concurrently maintained and a recovery had on both. Gaynor, J., in Logan v, Whitley, 129 App. Div. 666, 670; Kaufman v. Morris Bldg. Co., 126 id. 389. This, however, is not the test, for it has been expressly held that the complaint may state two or more causes of action even though it is apparent that both the alleged causes of action arose from the same transaction and that only one cause of action can in fact exist. Shirley v. Bernheim, 123 App. Div. 428; Logan v. Whitley, 129 id. 666; Rubin v. Cohen, id. 395; Seymour v. Warren, 71 id. 421; Blank v. Hartshorn, 37 Hun, 101. It is evident that where two or more causes of action arise upon entirely separate and disconnected facts there can be no inconsistency between them. The requirement of the Code that causes of action must be consistent if they are to be united in the same complaint must therefore relate to causes of action which grow out of a single event or transaction, or out of a series of events or transactions which are connected. A single happening or transaction or a series of connected events or transactions may give rise to several different causes of action against the same defendant at the plaintiff’s election, or they may only in any event give rise to a single cause of action. The result of the decisions appears to be that the element of consistency prescribed by the Code applies only to the former class of cases. If the plaintiff has in any event but one cause of action, he may, nevertheless, state in form as many causes of action as he chooses, varying the facts alleged in each, and even though the several statements are inconsistent and even contradictory in fact. Logan v. Whitley, supra; Shirley v. Bernheim, supra. But in the other class of cases, where the "transaction or series of transactions gives rise to different causes of action at the election of the plaintiff, then he must elect between them and assert one or the other only. He cannot consistently assert two or more causes of action when his assertion of one of them is necessarily repugnant to the theory upon which one or more of the others rest. Drexel v. Hollander, 112 App. Div. 25; Edison El. Co. v. Kalbfleisch Co., supra; Kranz v. Lewis, 115 App. Div. 106; McClure v. Wilson, 13 id. 274; Keep v. Kaufman, 56 N. Y. 332; Teall v. City of Syracuse, 32 Hun,. 332; Hoag v. Lehigh Valley R. R. Co., 55 Misc. Rep. 388; Realty Transfer Co. v. Cohn-Baer-Myers & Aronson Co., 132 App. Div. 286; White v. Improved Property Holding Co., 140 id. 529. It seems to me that the present case is one of the latter class. Considering the complaint as a whole it is apparent that the plaintiff’s theory is that he might maintain -an action for breach of the contract to deliver the stock on the ground that it had never "actually been delivered, or that he might elect to consider the setting apart of the stock as a constructive delivery sufficient to vest the title in him and so enable him to maintain an action for its conversion. Assuming, that he is correct in both propositions, does it not necessarily follow that the two causes of action are inconsistent within the principles above enunciated and which are illustrated by the cases cited ? It is as if the buyer of goods were to set up two causes of action, the first for breach of contract in failing to deliver the goods and the second for conversion of the same goods. The first cause of action would necessarily rest upon the proposition that the goods had never been delivered, the second upon the proposition that they had been set apart and appropriated to the fulfillment of the plaintiff’s contract so as to constitute a constructive delivery and vest the title in him, which appropriation -and delivery he would necessarily recognize as effective in setting up-his cause of action in conversion- In asserting either -of these different causes of action he would negative the possible existence of the other and they would therefore be inconsistent within the meaning of section 484

of the Code. The present case is very similar in the principles involved to Drexel v. Hollander, cited above, and the following language of the prevailing opinion in that case (at p. 27) is quite applicable, mutaiis mutandis, to this: The first cause of action proceeds upon the theory that the title to the automobile was in the plaintiff, and that the defendants wrongfully deprived him of it by converting the same to their own use. The second cause of action proceeds upon the theory that the title to the automobile was, by agreement, ■ in the. defendants. The causes of action are not only inconsistent, but contradictory. The proof to establish one would destroy the other. For conversion the plaintiff would have to prove that at the time the conversion took place he either had the title or was entitled, by reason of a special property therein, to possession. To recover under the second cause of action plaintiff would have to prove a breach of contract; that the title to the automobile was in defendants, they having purchased it from him at the agreed price of $3,000.” I think, therefore, that the demurrers upon the ground that causes of action are improperly united must be sustained. It will consequently be unnecessary to consider the various other points raised in the briefs until the plaintiff shall have elected upon which of the two causes of action he will stand. Demurrers sustained, with costs, with leave to the plaintiff to amend his complaint within twenty days on payment of such costs.

Demurrers sustained.  