#### Joseph Seeman et al., Appellants, *v.*Gabriel Bandler, Respondent.

(Supreme Court, Appellate Term,

February, 1899.)

Election of remedies — Partial rescission — Abandonment of goods replevied in a prior action.

Where vendors bring an action of replevin against the transferee of their alleged fraudulent vendee in order to recover a part of the goods sold, they cannot subsequently maintain, against the fraudulent vendee himself, an action for the price of the remainder of the goods, as they are concluded by their election to rescind in replevin.

The vendors are not assisted in .maintaining their action for the price by the fact that in the action of replevin they served a notice, under section 1719 of the Code of Civil Procedure, abandoning their claim to the goods replevied.

Seeman v. Bandler, 25 Misc. Rep. 328, affirmed.

This is an appeal by the plaintiffs from an order of the General Term of the City Court, and the judgment entered thereon reversing a judgment in favor of the plaintiffs upon the verdict of a jury, and dismissing plaintiff’s complaint upon the merits, with costs.

Epstein Bros. (Maurice S. Hyman, of counsel), for appellants.

Wasserman *&*Jacobus, for respondent.

Freedman, P. J.

The question presented by the appeal is whether the plaintiffs can maintain the action in its present form.

The General Term of the City Court held that the plaintiffs cannot do so.

The action was brought to recover the value of certain goods alleged to have been sold and delivered by the plaintiffs to the defendant at his request, and for which it was alleged the defendant promised to pay a reasonable value.

The defendant by his answer interposed a general denial, and as a separate and distinct defense, the institution by the plaintiffs of a certain replevin action against one Herman Wiener, which, it was claimed, operated as a rescission of the contract sued upon.

*373Upon the trial it was conceded that the plaintiffs, prior to the commencement of the present action, had brought an action in replevin against said Wiener as the assignee and transferee of the defendant in this action, that the goods sued for in this action form a portion of the goods for which the replevin action was brought and were included in the replevin action, that the last-mentioned action was brought on the ground of fraud on the part of the purchaser, that in it the sheriff replevined ánd took for the benefit of the plaintiffs all the goods sold by the plaintiffs with the exception of those for which this action was brought, and that the replevin action is still pending and undetermined.

It thus appears that the plaintiffs elected to rescind the sale and to treat it as a "nullity, and that they instituted legal proceedings to recover the possession of the goods sold on the theory, that on account of the fraud of the purchaser, they did not part with their title to the goods, and, therefore, were entitled to reclaim the goods themselves.

The present action proceeds upon the theory that the sale was valid, that under it the plaintiffs parted with both possession and title to the purchaser and that for that reason the purchaser may be held to his bargain.

In other words, they proceed in affirmance of the contract.

. The two actions are utterly inconsistent. The plaintiffs, upon discovery of the fraud, had a choice of remedies — an action for the price according to the terms of the sale and in affirmance of the sale, or replevin in avoidance of the sale, and, consequently, its rescission.

They elected to sue in replevin and they stand concluded by their election, for the law is well settled that a party cannot do both. Nor can' a party affirm in part and rescind in part. Am. & Eng. Ency. of Law, vol. 21, p. 19, and cases cited. By commencing their action of replevin the plaintiffs made their final election. Terry v. Munger, 121 N. Y. 161. The precise question now under consideration has been determined in Wile v. Brownstein, 35 Hun, 68; and Moller v. Tuska, 87 N. Y. 167, and under these decisions the pendency of the replevin action is a good and conclusive defense to the present action.

The claim of the plaintiffs that a distinction should be made in their favor because their first action was brought against the assignee or transferee of the fraudulent purchaser, and the second action against the purchaser himself, is untenable under the *374doctrine of Fowler v. Bowery Savings Bank, 113 N. Y. 450; and Terry v. Munger, 121 id. 161.

The case of Powers v. Benedict, 88 N. Y. 605, cannot help the plaintiffs as appears from the explanation of said case in Wile v. Brownstein, 35 Hun, 68 (p. 71), and also from the fact that the court concluded (p. 610), that the plaintiffs had not rescinded in part only, but altogether.

The case of City Rational Bank v. Rational Park Bank, 32 Hun, 108, has no application to the real question in the case at bar.

Ror can the plaintiffs maintain the present action by reason of the fact that in the replevin suit they served a notice as authorized by section 1719 of the Code, abandoning their claim to the chattels so replevied.

In Wile v. Brownstein, 35 Hun, 68, it was held that that section furnished no authority for abandoning a part of a cause of action embraced in a suit for conversion, waiving the tort as to that part and suing on that part in contract. -

The case of Cohn v. Goldman, 43 N. Y. Super Ct. 436, does not avail the plaintiffs. Upon examination it will be found that both actions therein referred to were brought in affirmance of the contract of sale. Moreover the case was reversed in 76 N. Y. 284, though on another point.

tThe determination made by the General Term of the City Court was right and the judgment and order appealed from should be affirmed, with costs.

MacLean and Leventritt, JJ., concur.

Judgment and order affirmed, with costs.