Edison Electric Illuminating Co. v. Franklin H. Kalbfleisch Co.
Appellate Division of the Supreme Court of the State of New York
. Appeal by .the defendant, the Franklin H. Kalbfleisch Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of-Kings on the 10th day of July, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.
1Opinion of the Court
Gaynor, J.:
Stripping this complaint of its verbiage and making it lean, we find' a cause of action for damages for breach of the contract, and another for damages for fraud in inducing the plaintiff to make it. They are not “consistent with each other”, and therefore cannot be united in the same complaint under subdivision 9 of section 484 of the Code of Civil Procedure; and that is the only authority for uniting a cause of action on contract with one in tort. Tc assert one is to negative the other, and the plaintiff has to elect which he will sue on. He cannot sue on both.
The judgment should…
2Cited by11 opinions
- France & Canada Steamship Corp. v. Berwind-White Coal Mining Co.New York Court of Appeals · 1920
- Logan v. WhitleyAppellate Division of the Supreme Court of the State of New York · 1908
- Taft v. BronsonAppellate Division of the Supreme Court of the State of New York · 1917
- Sommer v. EhrgottAppellate Division of the Supreme Court of the State of New York · 1920
- Edison Electric Illuminating Co. of Brooklyn v. Franklin H. Kalbfleisch Co.Appellate Division of the Supreme Court of the State of New York · 1908
6 more not listed; retrieve them via the Exa API.