We are at the argument informed of a point in this case, which does not appear upon the papers; and that point is, that the summons is one asking for relief, (under division two, of §129, of the Code.) If this be so, the complaint so far as it is on contract, and calls for the recovery of a specific sum of money, does not follow the summons; and it might have been struck out on motion. (Gould’s Plead., ch. 4, § 51, and note; 12 How., 208 ; 14 How., 360, 395; 15 How., 564; 19 How., 164.) But as *14the defendant has passed that by and demurred, it may be that he is too late to avail himself of it. At any rate, it is not now before us; and we can act only on the appeal from the special term order sustaining the demurrer.
And as to this, it would seem completely covered by the decision of this court in Roth agt. Palmer, (27 Barb., 652,) where it was held that the allegations of fraud were, not the gravamen of the suit; but were alleged to show the plaintiff’s right to rescind the agreement of sale, and proceed for the value of his property; as in this case for the value of his work, and for the money paid; both of which claims sound in contract, and may properly be joined in one complaint, without any reference to their arising, or not arising, “ out of the same transaction.” (Code, § 167.)
I think the order of the special term must be reversed with costs; with leave to the defendant, to answer, &c.