Bell Audiphone Co. v. Scher

Full title: BELL AUDIPHONE CO., Appellant, v. SIDNEY M. SCHER et al., Respondents

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 4, 1951

279 App. Div. 717 (N.Y. App. Div. 1951)

Opinion

December 4, 1951.

Appeal from Supreme Court, New York County.

Order unanimously affirmed, with $20 costs and disbursements to respondents.

DORE, J. (concurring).

With the allegations of fraud stricken, paragraph 14 that remains is unintelligible. Plaintiff may plead a cause of action for fraud inducing the making of a contract by false representations with another cause of action on the same facts in the same complaint for the breach of the same contract (Civ. Prac. Act, § 258; France Canada S.S. Corp. v. Berwind-White Coal Mining Co., 229 N.Y. 89). Plaintiff, if so advised, may move to amend the complaint eliminating paragraph 14 and plead the causes of action as above indicated. The election in paragraph 14 is not final.

However, on this record the order appealed from must be affirmed, with $20 costs and disbursements to defendants-respondents.

Peck, P.J., Glennon, Cohn and Van Voorhis, JJ., concur in decision; Dore, J., concurs for affirmance, in opinion.

Order unanimously affirmed, with $20 costs and disbursements to respondents. No opinion.