112 A.D. 25
Appellate Division of the Supreme Court of the State of New York
Decided March 16, 1906
Appellate Division of the Supreme Court of the State of New York · decided 1906-03-16
Appeal by the defendants, Elmer D. Hollander and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York'on the 6th day of Hovember, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrer to the amended complaint.
Decided 1906-03-16
¶1I concur in the opinion of Hr. Justice Ingraham on the ground that the 'two causes of action are not inconsistent. Both actions proceed on the theory of- rescission, and the only inconsistency is in the relief demanded which upon the trial will be accorded in consonance with the facts proved.
¶2Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below. Order filed.