193 A.D. 663 | N.Y. App. Div. | 1920
The appellant’s contention that there is a misjoinder of a cause for breach of contract and a cause for fraudulent inducements to the contract, is put upon the authority of Edison Electric Illuminating Co. v. Kalbfleisch Co. (117 App. Div. 842) and like cases. It cannot prevail now, in view of France & C. S. S. Corp. v. Berwind-White C. M. Co. (229 N. Y. 89), which expressly disapproves of the Edison Case (supra) and like cases, and expressly approves of Taft v. Bronson (180 App. Div. 154) as in harmony with the decisions of the Court of Appeals. Taft v. Bronson (supra) was cited by the learned Special Term in the case at bar.
A further contention of appellant is, in effect, that the plaintiff cannot have a specific relief prayed for. That may be, but demurrer does lie to the prayer for relief (Mackey v. Auer, 8 Hun, 180; Haines v. Hollister, 64 N. Y. 1, 4), and moreover there is also a prayer for damages.
It is contended that the second cause of action does not state sufficient facts. It alleges false and fraudulent repre
The order appealed from was dated June 3, 1920. The appeal was taken on June 7, 1920, and submitted on June 18, 1920. France & C. S. S. Corp. v. Berwind-White C. M. Co. (supra) was decided June 1, 1920, but not reported in the Advance Sheets until July 10, 1920. In view of the inharmonious decisions as to joinder and the difference in the
Rich, Putnam, Blackmar and Kelly, JJ., concur.
Order modified by striking out costs, and as so modified affirmed, without costs.