Pitt v. Freed — 50 N.Y. St. Rep. 265

Majority

p. 265

Charles B. Pitt et al., Resp'ts, v. Samuel C. Freed, App'lt.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

Abbest—Action on fobeign judgment—Election of bemedies.

Defendant contracted a debt by fraudulent representation, but plaintiffs recovered judgment against him in Pennsylvania as on contract .for goods sold. In an action upon such judgment, Held, that having elected to take judgment upon contract, they had made an election of remedies, and could not thereafter make an arrest upon it, or upon the fraud which entered into the contract.

Appeal from order denying motion to vacate an order of arrest granted in an action upon a judgment recovered in Pennsylvania.

Isaac N. Miller, for app’lt;

J. Stewart Boss, for resp’t.

The defendant contracted a debt with the plaintiffs by fraudulent representation. The plaintiffs commenced an action in the court of Pennsylvania, where defendant lived, and procured an attachment This attachment was vacated, and the plaintiffs entered up a judgment as upon a contract for goods sold. Mo order of arrest can be granted on the original fraud. The court of appeals held in Baxter v. Drake, 85 N. Y., 502 , that a plaintiff is entitled to an order of arrest after judgment when the original cause of action was such as to authorize a plaintiff to .an order for the arrest of the defendant; but that the action should be brought upon the foreign judgment. After the plaintiffs elected to take judgment on contract, they were not at liberty to make an arrest upon it, or upon the fraud which entered into the contract. They have elected their remedy. Caylus v. N. Y., etc., R. R. Co., 76 N. Y., 609 ; Moller v. Tuska, 87 id., 166.

A new judgment recovered herein in this state would not be for the same cause of action as that in the Pennsylvania judgment.

The order should be reversed, with ten dollars caste and disbursements.

Pratt and Dtkman, JJ., concur.