Doyle v. Haven , 29 N.Y.S.2d 450 ( 1941 )

Order modified on the law by inserting a provision that the third, fourth and fifth causes of action be dismissed and as so modified affirmed, without costs. Memorandum: The complaint contains nine causes of action and seeks to recover upon different theories the proceeds of four checks delivered by plaintiff to Charles J. Warner, who since such delivery has died. The defendants moved to strike out the first seven causes of action on the ground that the allegations of material facts in each of such causes are contradictory of and inconsistent with the facts alleged in some of the other causes. A motion addressed to the complaint upon the ground that inconsistent causes of action are therein pleaded may not be made. (Ikle v. Ikle, 257 App. Div. 635; Coron v. Lincks, 259 id. 924.) The alleged mistakes set forth in the third, fourth and fifth causes of action are not sufficient to warrant the revocation of a gift. (Pickslay v. Starr, 149 N. Y. 432, 437, 438.) All concur. (The order denies motion of defendants to dismiss the second amended complaint in an action to recover money of which plaintiff claims he was deprived by fraudulent acts, negligence and misrepresentation.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.