Baldwin v. A. B. Leach & Co.

Callaghan, J.: The plaintiff has joined in the complaint two causes of action •— one for fraud and deceit, in which a money judgment is demanded; the other for a rescission. This may be done (Civ. Prac. Act, § 258; Merry Realty Co. v. Shamokin & Hollis R. E. Co., 230 N. Y. 316, 324), but within the limits prescribed by section 258 of the Civil Practice Act. Twelve subdivisions are enumerated, each defining the kind of actions which may be united. The causes of action stated here are upon entirely different transactions. That section provides: “ It must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section.” These causes of action are not found in any of those subdivisions. Moe v. Reliance Ins. Co. (188 App. Div. 977) has no application. There two causes of action were stated, one at law, and the other in equity, but both grew out of the contract of insurance and could be united either under subdivision 1 or 9 of section 258 of the Civil Practice Act. The motion must be granted.