Brooklyn National Bank v. Werblow

Order denying defendants’ motion to separately state and number the causes of action commingled in the complaint reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; plaintiff to have ten days from the entry of the order herein in which to serve a further amended complaint. The complaint contains a cause of action for fraud as of November 4,1929. It also contains a second cause of action founded upon an agreement claimed to have been made on March 1, 1930, and breached in March of 1931, with respect to the redelivery by the defendants to the plaintiff of a block of Polygraphia stock. The proof under these two causes of action necessarily would differ with respect to liability and damage. A recovery or a failure to recover with respect to the fraud count would not bar recourse to the other contract count, and vice versa. (Carlson v. Albert, 117 App. Div. 836 [2d Dept.]; Raftery v. Carter, 162 id. 17.) Young, Kapper, Carswell, Seudder and Davis, JJ., concur.