Rosen v. Goldstein

Orders denying motions to dismiss the second cause of action on the ground of insufficiency and granting motions to strike out said cause of action on the ground of improper joinder modified by striking therefrom the provision for service of amended complaints, and as so modified affirmed, with ten dollars costs and disbursements to plaintiff, with leave to defendants to answer within ten days from service of a copy of the order herein. The orders appealed from substantially severed the tort from the equity action. Severance of the actions under section 96 of the Civil Practice Act made it unnecessary to serve a second summons or amended complaints. The parties to the tort action may proceed to trial under the first cause of action. If plaintiff is successful therein, the parties to the equity action may proceed to trial upon the second cause of action. Lazansky, P. J., Carswell, Scudder, Tompkins and Davis, JJ., concur.