Misc.] Supreme Court, October, 1904. not seem to be disputed. Thus we see that the incumbrance exceeds by several hundred dollars the highest valuation of the property suggested by the proofs on this motion. For the reasons above stated, I am of opinion that this application for the appointment of a receiver of the rents and profits pendente lite should be granted. Motion granted. GEORGE W. C. LOMB, Plaintiff, v. JOSEPH C. RICHARD, Defendant. (Supreme Court, New York Special Term, October, 1904.) A cause of action for the breach of a contract cannot be joined with one to rescind the contract for fraud. A cause of action based on the breach of a contract is not properly united in the same complaint with a cause of action for a rescission of the same contract on the ground of fraud. The two causes of action are not consistent. Demurrer to complaint. Allen Caruthers, for plaintiff. Maurice Goodman, for defendant. GILDERSLEEVE, J. This is a demurrer to the complaint on the grounds (1) that it does not set forth facts sufficient to constitute a cause of action, and (2) that two causes of action have been improperly united in the same complaint. I think the last ground is well taken. Section 484 of the Code permits certain causes of action to be joined in the same complaint, but it specifically provides that they must be consistent with each other. In the present case, the first cause of action is based on the breach of a contract, while the second cause of action is for a rescission of the same contract on the ground of fraud. Thus, in one breath plaintiff reaffirms the contract and sues for its breach, and dis Supreme Court, October, 1904. [Vol. 45. affirms the said contract and sues for its rescission on the ground of fraud. The two causes of action are not consistent with each other and cannot be joined in the same complaint. See Genet v. Delaware & Hudson C. Co., 28 App. Div. 331; Conrow v. Little, 115 N. Y. 387, 393. Having reached the conclusion that the demurrer must be sustained for the reason above stated, I do not deem it necessary to pass upon the other ground urged. Demurrer is sustained, with leave to amend on payment of costs. Demurrer sustained, with leave to amend on payment of costs. W. J. MORGAN & Co., Plaintiff, v. THE QUO VADIS AMUSEMENT Co., Defendant. (Supreme Court, New York Special Term, October, 1904.) Action for the sequestration of corporate property - A denial of any information and belief as to the entry of judgment and the return of an execution - The pendency of proceedings for the dissolution of the corporation. Where, in an action for the sequestration of the property of the defendant corporation and the appointment of a receiver, the defendant interposes an answer alleging that it has no knowledge or information sufficient to form a belief concerning the allegation of the complaint respecting the entry of a judgment in favor of the plaintiff against the defendant and the return, wholly unsatisfied, of an execution issued thereon, and also alleging. that proceedings for the dissolution of the corporation had been begun, but had not as yet been prosecuted to judgment, such answer is frivolous, first, because the entry of the judgment and the return of the execution being a matter of public record, the defendant's denial of any information or belief respecting those matters will not be permitted, and second, because the proceedings for dissolution, not having yet eventuated in a judgment and the appointment of a receiver, were not effective to preserve the property, the dissipation of which the sequestration suit sought to prevent. MOTION for judgment on the answer as frivolous. Franklin Bien, for motion. Alfred Pagelow, opposed. Misc.] Supreme Court, October, 1904. GILDERSLEEVE, J. The action is for sequestration of defendant corporation's property and the appointment of a receiver. The complaint, among other things, alleges the entry of judgment in favor of plaintiff against defendant corporation, the issuing of execution thereon and the return of the same wholly unsatisfied. The answer alleges that defendant corporation has no knowledge or information sufficient to form a belief as to the entry of the judgment and the issuing and return of the execution unsatisfied. The answer, as a separate defense, further alleges the commencement of dissolution proceedings, which have not yet been prosecuted to judgment. The plaintiff moves for judgment on the answer as frivolous. It has frequently been held that an allegation of no knowledge or information sufficient to form a belief as to the allegations of the complaint raises an issue (see Batterman v. Journal Co., 28 Misc. Rep. 375; Grocers' Bank v. O'Rorke, 6 Hun, 18), and such a defense cannot usually be regarded as frivolous. In the case at bar, however, the defendant alleges ignorance as to a judgment and execution against itself, which should be peculiarly within the knowledge of its officers. Moreover, the judgment and execution are matters of public record open to public inspection, and such want of knowledge and information arises from unwillingness to learn the facts. McLean v. Julien Electric Co., 19 N. Y. Supp. 906, McAdam, J.; 1 E. D. Smith, 554. It seems to me that a defendant should not be permitted to use this form of denial, if the necessary information is close at hand and easily procurable, as in the case at bar. The separate defense that dissolution proceedings have been begun, but not yet prosecuted to judgment, is not effective, because this fact would not prevent injury to plaintiff that might be irreparable. Before the judgment is entered in the dissolution proceedings, and the receiver therein appointed, the property of the defendant corporation may be entirely dissipated, unless the receiver in this sequestration suit is appointed. I think the motion for judgment on the answer should be granted, with ten dollars costs. Motion granted, with ten dollars costs. Supreme Court, October, 1904. [Vol. 45. Matter of the Application of JAMES J. KEHOE, to Review the Determination and Act of the Board of Elections of the City of New York. (Supreme Court, Queens Special Term, October, 1904.) Nomination for the office of State Senator-It may, where the regular convention fails to act, be made by a joint meeting called by the chairman of the general county committee. Where a party convention regularly called under the provisions of the Primary Law fails, owing to a deadlock, to nominate a candidate for the office of State Senator, the chairman of the county general committee of the party, pursuant to a rule or regulation adopted to provide for the contingency of a primary convention having failed to act, may call a joint meeting of the members of the county general committee of the assembly districts comprising the district affected, and of the executive committee of the general county committee, and this joint meeting may nominate a candidate for the office. APPLICATION of petitioner to review the determination and act of the board of elections of the city of New York, in refusing to receive and file his certificate of nomination as a candidate for Senator, and to place his name in the official ballot. Luke D. Stapleton, for motion. William N. Cohen, opposed. KELLY, J. On October 22, 1904, in the afternoon, James J. Kehoe, the petitioner in this proceeding, presented a petition to me under section 56 of the Election Law of this State, in which he alleged that the board of elections of the city of New York had wrongfully refused to receive and file his certificate of nomination as a candidate for the fifth senatorial district of Kings county, and to place his name upon the official ballot. He applied to me as a justice of the Supreme Court within the second judicial district, as the Legislature Misc.] Supreme Court, October, 1904. Whatever views I apparently had authorized him to do. may entertain as to the propriety of vesting the review of the actions of the board of elections in a justice of the Supreme Court, whatever may be my personal wishes as to reviewing such action, I conceive that there is no greater duty imposed on a judicial officer, under the law as it is laid down by the Legislature, than to act in a case where a citizen claims to have been aggrieved by the action of a subordinate tribunal. It is not a matter of choice, whatever my own wishes might be, especially at this time when I am occupied here to the full limit of the opportunities given me to transact judicial business. But here is a citizen, resident in the borough of Brooklyn, where I reside, resident in the county of Kings, where I reside, who comes to me complaining that his rights have been violated and that the Legislature has authorized a justice of this court to give him relief and to summon the persons whom he claims have wronged him, for the purpose of reviewing their action. I cannot see that the dignity of this court is in any way assailed or interfered with by a judge of the court complying with the command of the Legislature. On the contrary, my view is that the dignity of the Supreme Court is best maintained by a justice of the court acting for the relief of the citizen in any case where his rights are involved or interfered with. I conceive that is the duty of a justice of this court; and while I have at heart the dignity of this court to the fullest extent, I think that I am best conserving the dignity of this great court by acting on the petition of any citizen who claims that he has been wronged, no matter what his party affiliations may be, no matter what the particular case may be. If the Legislature has said that he is entitled to a review, I think the dignity of the court is best preserved by a justice acting on such an application. Now, the objection which has been argued against this certificate of nomination is based on the fact that the nomination of Mr. Kehoe was not made by the senatorial district convention which was summoned under the provisions of the Elec- tion Law to nominate candidates for that office. It appears that this convention regularly called under the provisions of law failed to nominate owing to a deadlock; that the dele |