Bach v. Tuch — 15 N.Y. St. Rep. 48

Majority

p. 48

Elias Bach et al., App’lts, v. Simon Tuch, Assignee, etc., Resp’t.

(Supreme Court, General Term, First Department,

Filed March 2, 1888.)

Headnote

Election of remedies—When commencement of action will not OPERATE AS.

The commencement and prosecution of an action to recover the price o£

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goods sold, and the issuing of an attachment and seizure of the debtor’s property thereunder, is not such an election of remedies as will preclude another suit after the first has been discontinued, to recover the possession of the property, on the ground of fraud, where it does not appear that the first action was brought with a knowledge on the part of the plaintiffs of the existence of the fraud.

Appeal from a judgment on the dismissal of the plaintiffs’ complaint at the circuit.

George W. Galinger, for app’lts; Beaman & Spader, for resp’t.

—The plaintiffs commenced this action to recover the possession of twenty-one cases of leaf tobacco which they had previously sold and delivered to Rudolph Moeller. The sale was made on the 27th of October, 1885. On the twenty-first day of December of that year Moeller made a general assignment for the benefit of his creditors to the defendant Tuch. After the execution and delivery of the assignment the plaintiffs brought an action for the purchase-price of the tobacco, and obtained and issued an attachment against the property of Moeller, which was levied upon goods in the possession of the assignee. A motion was made to vacate the attachment and from the order denying it, an appeal was taken to the general term, which reversed the order and vacated the attachment. Other attachments were also issued in favor of other creditors against the assignor, under which, as well as the attachment of the plaintiffs, his property was taken into the custody of, and held by the sheriff, one of the defendants in the action. After the plaintiffs’ attachment was vacated, and on the 20th of February, 1886, their action for the recovery of the purchase-price of the tobacco was discontinued, and this action was commenced to recover the possession of the twenty-one cases of tobacco, on the ground that the plaintiffs had been induced, by false and fraudulent representations of Moeller, to sell and deliver the tobacco to him. And evidence was given upon the trial of the action having a direct tendency to establish the fact that the fraudulent representations had been made by Moeller, and in that manner the plaintiffs had been induced to sell and deliver the tobacco to him. But the court dismissed the action on the ground that, by their commencement of the suit to recover the price of the tobacco and the issuing and service of the attachment therein, they had elected their remedy and were precluded afterwards, by that election, from maintaining an action for the recovery of the possession of so much of the tobacco as is included in this action.

It did not, however, appear upon the trial that at the time when the plaintiffs commenced their action for the debt, and obtained and levied their attachment, they were aware of the fact that the purchase was fraudulent on the part of Moeller, and that they, on that account, could disaffirm the

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sale and recover back so much of the property as was mentioned and described in their complaints That the representations relied upon were made by him, and were then known to, and understood by, the plaintiffs, appears from the evidence, but that they were false, and made with the intent to defraud, does not appear to have been so understood by them as to justify the dismissal of their complaint. Upon that subject the case presented a question for the jury which the plaintiffs were entitled to submit for their consideration and decision. For the commencement and prosecution of an action to recover the price of the tobacco and the issuing and seizure of the debtor’s property under the attachment resulting in no possible benefit to the creditors, is not such an election of remedies as will afterwards preclude another suit, after the first has been discontinued, to recover the possession of the property on the ground of fraud, where it does not appear that the first action was brought with a knowledge on the part of the plaintiffs of the existence of the fraud. Equitable Foundry Company v. Hersee, 33 Hun, 169 ; 103 N. Y., 25 ; 3 N. Y. State Rep., 100; Acer v. Hotchkiss, 97 N. Y., 395 ; Hays v. Midas, 104 N. Y., 602 ; 6 N. Y., State Rep., 472.

These authorities fully sustain this legal principle, and the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, Ch. and Brady, J., concur.