Haas v. Selig , 58 N.Y.S. 328 ( 1899 )

Freedman, P. J.

The action is brought upon a complaint for goods sold and delivered. The answer contains' no denials' but attempts to set up a rescission of the contract of sale. At the trial a verdict was directed for the plaintiffs upon the pleadings. The only question presented by the appeal; therefore, relates to the sufficiency of the attempted plea of "rescission. This plea is the only defense set forth in the answer, and there is no pretense that there was more than one rescission. . The pleading must,therefore,. • be considered as a whole, although it consists of several paragraphs. The-consequence is that, if one paragraph contain specifications of facts destructive of what would in their absence have, constituted a defense, the plea must fail, for the pleading is to be taken most strongly against the pleader. A careful examination of the answer clearly shows that the defense sought to be pleaded is nullified by the specifications of facts relied upon as constituting rescission. Taken as a whole the answer fails to show an agreement between the parties to rescind. This point has been 'sufficiently discussed in the opinion of the court below. It also fails to show an election of remedies by the plaintiffs amounting to a rescission, and concluding them upon this point: In Seaman v. Bandler, 26 Misc. Rep. 372, I fully discussed the question how a party may preclude himself by an election of inconsistent remedies in the institution of legal proceedings. But that case does not help defendants. A mere demand by the plaintiffs of the goods of the sheriff who had seized them under writs of replevin, issued by third parties, not followed up by the institution of any legal proceedings. or the recovery of the "possession of the goods, is not an election of a remedy inconsistent with an action for the price. The facts pleaded were clearly insufficient to establish rescission, and, consequently, the verdict was properly directed. Judgment should be affirmed.

Leveetbitt, J., concurs.