The plaintiff alleges that on September 13, 1910, he assigned and transferred to defendant H. S. Kerbaugh, Inc., a certain valuable contract with the city of New York known as contract No. 9, for the construction of the Kensico dam and appurtenances, together with the plant provided and installed for *682carrying on said contract, and the moneys due or to come due thereon, for which he received promissory notes aggregating $671,692.52 made by H. S. Kerbaugh, Inc., and indorsed by Henry S. Kerbaugh individually, and thereupon the defendant H. S. Kerbaugh, Inc., took possession of said plant and continued and has ever since continued the performance of said contract. It is then alleged that in the spring of 1911, owing to certain false representations made to him by the defendants, other than the Bankers Trust Company, he was induced to enter, into two agreements annexed to the complaint and to surrender the promissory notes above mentioned, and to accept in lieu thereof stock in the defendant Kerbaugh-Empire Company. The first twenty-nine paragiaphs of the complaint are taken up with stating these facts, and some evidence bearing upon them. Succeeding paragraphs of the complaint set forth acts on the part of defendants, appellants, in the carrying out of the assigned contract and in the operation of the corporation of which plaintiff accepted stock in place of the promissory notes which he had surrendered.
The object of the action, as displayed by the prayer for relief, is that the contracts referred to in the complaint be rescinded or annulled; that plaintiff, upon surrender of the aforesaid-stock, be reinvested with the promissory notes above referred to, and so far as possible be put back into the position he would have held if the contracts in question had never been made.
There is a general allegation that the defendants, other than the Bankers Trust Company, had, prior to the execution of the contracts referred to, formed a deliberate design and purpose of fraudulently and by means of false representations inducing plaintiff to surrender the aforesaid promissory notes without consideration, and that everything they did was in pursuance of a fraudulent conspiracy to cheat and defraud plaintiff and to enrich themselves at his expense.
It seems to me to be quite evident that at least two quite distinct causes of action are embraced in this complaint. It is true that as plaintiff has framed his prayer for relief both of these causes lead to the same relief, viz., a cancellation of the contracts and a restoration of plaintiff to his original position, but the two causes are made up of entirely different allegations *683of fact, must be supported by entirely different evidence, rest upon entirely different rules of law and are open to entirely different defenses.
The first cause of action is for a rescission of the contracts for the fraud which induced their making, thus asserting a claim that the contracts never had a legal existence but were void ab initio. What the court is asked to do upon this cause of action is not to cancel or rescind the contracts, but to adjudge that they never existed.
The second cause of action is, strictly speaking, one for cancellation or rescission. It assumes the original validity of the contracts, and asks that by reason of acts of the appellants done after the contracts had been made they be abrogated or rescinded. Thus the first cause of action was complete before any of the acts were done which constitute the second cause. It seems to me impossible to say that these are not distinct causes of action which, even if they be properly united in the same complaint, should be separately stated if, for no other reason, that defendants may be enabled to properly present such defenses as they may have. As was said by the present presiding justice of this court in Realty Transfer Company v. Cohn-Baer-Myers & Aronson Co. (132 App. Div. 286, 290) : “ One [cause of action] necessarily implies the non-existence of a contract for fraud ab initio and the other a valid contract and a subsequent breach.” That the mere fact that both causes of action may lead to the same relief does not make them a single cause of action. Such a case was presented in Freer v. Denton (61 N. Y. 492), wherein it was said: “The facts stated in the complaint showed two causes of action, one to recover back the money paid, because the defendant refused to perform and repudiated the contract, and this was made out without proof of any fraud; and another to recover back the money paid on the ground that it was obtained from the plaintiff by fraud. These two causes of action could be united in the same complaint, but should have been separately stated.”
The case of Callanan v. K., A. C. & L. C. R. R. Co. (199 N. Y. 268), cited at Special Term and much relied on by the respondent, is not in point, because the question we have now to deal with was not presented. There doubtless were two *684causes cf action united in one count, but the complaint was not attacked on that ground either by motion to separate or by a demurrer for misjoinder. Nor do I consider it of any importance that the plaintiff says that he only intended to state a single cause of action. Whatever his intentions may have been, if he has in fact stated more than one cause of action, it is the defendants’ right to have them separately stated.
We are not concerned upon this appeal to consider whether both causes of action, or either of them, are well pleaded, or if more than one cause of action is pleaded, whether they can properly be united in a single complaint. (Astoria Silk Works v. Plymouth Rubber Co., 126 App. Div. 18.)
The general allegation that all the wrongful acts done by' the appellants were so done as a consequence and in furtherance of a fraudulent conspiracy does not serve to transform into a single cause of action allegations which clearly constitute several distinct and separate causes of action, for a mere conspiracy to do a wrong does not, in this State, furnish the basis for a civil action. . It is the fraud and damage resulting from the overt acts, and not the conspiracy to do those acts, which furnish the gravamen of a cause of action. ‘‘ Where the conspiracy results in the commission of that which would be an actionable tort, whether committed by one or by many, then the cause of action is the tort, not the conspiracy. ” (Green v. Davies, 182 N. Y. 499; Brackett v. Griswold, 112 id. 454; Bird v. Post, 124 App. Div. 902.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted to the extent herein indicated, with ten dollars costs.
Clarke, P. J., concurred.
Order affirmed, with ten dollars costs and disbursements.