#### Leopold Haas et al., Respondents, *v.*Louis Selig et al., Appellants.

(Supreme Court, Appellate Term,

May, 1899.)

1. Goods sold — Contradictory plea of rescission.

Where the defense to an action for goods sdld- is an alleged rescission, and the further specification of the facts, constituting the-rescission nullify that defense, the . plea must fail, as a, pleading, must . be taken most strongly against the pleader. . , •■ ■ ■:

*2..*Same — Election of remedies.

A mere demand upon the part of vendors, that a sheriff surrender to them goods' which he had seized under third-party writs of re- ' plevin, not followed by any legal proceedings by the vendors to re- . cover possession, is not an.election upon their part, to repudiate"'the • sale, which is inconsistent with the remedy of a subsequent áctióñ by them against the vendees for the price.

MacLean, J., dissented..

Haas v. Selig, 26 Misc. Rep. 191, affirmed.

Appeal by the defendants from-a judgment of the General Term of the City Court, affirming a judgment in. favor of the plaintiffs, entered upon the direction of a- verdict. . " ' " .

Max D. Steuer (Abraham S. Levy, associated), for,appellants.

Bennó Loewy,. for respondents. ■

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 *505a 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.

MaoLean, J. (dissenting.)

In their answer to the allegations in the complaint herein for goods sold and delivered, the defendants'set up inartistically, perhaps purposely so, two defenses, setting them forth in individually numbered paragraphs, but not stating them as separate defenses. One was an allegation of evidentiary facts, tending to show that when the goods were in the possession of the sheriff, at the instance of other parties, the plaintiffs so acted as to evidence an election to repudiate the sale and treat the goods as still,within their ownership; and the other, an allegation of a specific agreement between the parties, of rescission. The first attempted defense was insufficient, but the second, substantially in the manner following, viz.: “ The plaintiffs claimed to have a right to rescind, and did rescind and wholly revoked, cancelled and annulled the said sale, and the defendants were entirely agreeable , that the plaintiffs should rescind, and permitted the plaintiffs to rescind the said contract of sale, and consented that the plaintiffs should take ' the said goods,” seems to me, in effect, to set forth a *506good defense by way of confession and avoidance, in that it is-an allegation of a new agreement -between, the parties, abrogating the one upon which this action is brought, and sufficient in matter, and form to preclude a successful demurrer or motion to strike out as frivolous (Clark v. Dillon, 97. N. Y. 370, 375, by Ruger, Ch. J.), and, therefore, the direction, of a verdict for the plaintiffs upon the pleadings by the justice at Trial Term, was erroneous.

The judgment should be reversed ■ and a new trial ordered, with costs to the appellants to abide the event.

Judgment affirmed, with costs to respondents.