Keep v. . Kaufman

The plaintiff, instead of availing himself of the leave granted by the General Term to amend his complaint, has appealed to this court, thus risking his case upon a mere question of pleading. The point involved is purely technical, and must be decided without reference to any considerations other than the rules of pleading. Though few of these remain in force, one still exists which is, that causes of action in tort and in contract cannot be joined. If there be any exception to this rule, it must spring out of the first subdivision of section 167 of the Code, which permits the joinder of…