Sternfeld v. Simonson , 9 N.Y. St. Rep. 81 ( 1887 )

Van Brunt, P. J.:

It is undoubtedly true that where there exists an election between two inconsistent remedies, the party is confined to the remedy which he first prefers and adopts, where the remedies are not concurrent and the choice between them is once made, the right to follow the other is gone forever. A long line of authorities has been cited by the counsel for the defendant in support of this proposition. The most of those authorities tend to establish the rule that where’ a party has sued for the purchase price of goods and recovered judgment, he cannot subsequently maintain an action upon the ground that the goods were obtained from him by fraud; or where the goods had been taken from the debtor by replevin or an action commenced for that purpose, the creditor cannot subsequently sue for the purchase price. But no authority has been cited that a mere ineffectual attempt upon the part of a creditor to secure his debt by legal proceedings precludes him from claiming tbe benefits as a creditor under an assignment. In fact, the case of Brown v. Littlefield (11 Wend., 467), cited by the defendants, clearly lays down the rule'to the contrary. It is said, at page 471, that where a party has inconsistent rights or remedies, he may claim or resort to one or the other at his election. He is frequently bound by some decisive act of' election in favor of one right or remedy, from afterwards claiming the other right or pursuing the other remedy, which is inconsistent therewith. But the mere attempt to pursue a remedy to which he is entitled, without obtaining any legal satis-' faction therefrom, will not deprive him of the benefit of that to which he had originally a right to resort, especially where he has acted under a mistake as to the facts. Applying this rule to the case at bar, it is clear that there never having been any levy under the attachment issued by the plaintiffs and no property acquired thereby, and such proceeding being entirely futile, the plaintiffs are not deprived of their remedies under the assignment. In fact, long before the issuing of the attachment, the plaintiffs had elected to proceed under the assignment, and their proceedings to examine the assignor and assignee in regard to the property, and in respect to the amount of the bond which it would be proper for the assignee to give in the Court of Common Pleas, might have been a complete answer to their proceeding by attachment, upon the ! allegation that the assignment was made with intent to hinder, delay and defraud the creditors, as they had elected to assert rights under the assignment itself, and after having made such election they could not attack it upon the ground of fraud.

In the foregoing statement it has been said that no levy was made under the attachment. It is true that the learned trial justices found that the sheriff had levied on the assigned property then in the possession of the assignee under and by virtue of ‘the plaintiffs attachment, but the case is entirely barren of any proof to sustain this finding. The evidence of the deputy fails to show any such levy and the evidence of the counsel for the plaintiffs shows that at the ■time of the issuing of the execution instructions were given not to levy and there was no proof that those instructions were withdrawn. The recital in the execution that such, a levy had been made, in view of the fact that the execution was returned nulla bona, was not sufficient in the face of this testimony to sustain the finding that a levy had actually been made. If the plaintiffs, by means of their attachment proceedings, had secured any of the property covered by the assignment, then a different question might be presented. But they having in no way interfered with the assigned property by their process, and having acquired nothing by those proceedings, and having obtained no legal satisfaction therefrom were not deprived of the benefit of the right to which they might originally have resorted. The case of Iselin v. Henlein, (16 Abb. N. C., 19) proceeds expressly upon the ground that an attaching creditor seized and obtained possession of the assigned estate under his attachment, and in Rodermund v. Clark (46 N. Y., 354), the decision is based upon the ground that the plaintiffs’ assignor having retained possession of the property, he and his assignees were precluded from maintaining an action for its conversion. It is not necessary to say anything in regard to any of the rights which the plaintiffs took by the assignment of Mary Robinson and Learys claim as they clearly obtained no greater rights than- had previously existed by virtue of their own position as creditors of the assignor.

"We are of opinion, therefore, that the plaintiffs were not precluded by anything that they had done from pursuing their remedies under the assignment as creditors of the assignor.

The judgment must be reversed and new trial ordered, with costs to appellant, to abide event.

Bjrady and Daniels, JJ"., concurred.

Judgment reversed, new trial ordered, costs to appellant, to abide event.