Opinion
March 8, 1907.
J. Charles Weschler [ Sol Rothschild with him on the brief], for the appellant.
Ferdinand E.M. Bullowa, for the respondent.
The complaint alleges two causes of action, one for conversion and one on contract for goods sold and delivered. The plaintiff might have waived the tort in his pleading and then the action would have proceeded as one on contract. This he has not seen fit to do, and defendant was entitled to have the causes of action separated and numbered. (Code Civ. Proc. § 483.) It has become the settled practice that a plaintiff will be required to elect at the trial as to which of two causes of action he will try, and that would have been quite proper in this case, but defendant had the right, at his option, before answering to move to have the causes of action separated and numbered, and plaintiff would have been in time, even upon the motion to elect, to waive the tort and proceed upon the one cause of action. He failed to avail himself of the opportunity given him by the learned justice at Special Term to do this, and the order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
HIRSCHBERG, P.J., WOODWARD, GAYNOR and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.