#### WILLIAM W. WRIGHT, Appellant, *v.*SYLVESTER P. PIERCE and others, Respondents.

*Vendor and vendee—sede in expectation of immediate*payment— *conditional —how condition waived—Inconsistent remedies*— *election of one—effect of.*

Where a vendor delivers property in the expectation of immediate payment therefor, the delivery is conditional; but such condition may he waived, and will he deemed to he so after a considerable period of time has passed without any steps being taken by him to assert his right to repossess the goods.

An election of one of two inconsistent remedies, whenever made, is conclusive against the right of the party to adopt the other.

Appeal from a judgment, entered on the report of a referee.

The action was for the wrongful taking and conversion of personal property.

The defense was, that the sheriff of Onondaga county seized and took from the possession of one Abijah J. Wright said property, by virtue of an attachment issued in an action in the Supreme Court in favor of defendants against said Abijah J. Wright, and that subsequent to the seizure, the defendants recovered judgment *352against said Abijah J. Wright, and issued execution to said sheriff, who, by virtue thereof, sold said property; and that said property was not the property of the plaintiff, but was defendants’ property.

On the 30th day of November, 1871, the defendants in this action sold and delivered to Abijah J. Wright goods to the amount of $209.21, he to pay $100 on delivery, and the balance in monthly installments of twenty-five dollars each. The vendeebeing in possession on the 4th of December, 1871, mortgaged the goods to the plaintiff for value.

*Noxon & Cowles,*for the appellant.

*E. Butler,*for the respondents.

E. Darwin Smith, J.:

Assuming that the referee was correct in finding that the property for which this action was brought was originally sold by the defendants to Abijah W. Wright upon the agreement that he should pay upon delivery $100 toward the purchase-money, and the balance in twenty-five dollars monthly payments thereafter, and that the title to said property should not pass to the said vendee, but should remain in the defendants until the whole purchase-price was paid, the referee I think erred in holding that the title •remained in the defendants at the time of the commencement of this action. The property having been delivered to the vendee, the defendants’ rights in respect to it were like those of a vendor who sells property without any terms of credit, and delivers the same upon the expectation of immediate payment. The delivery in such case would be conditional, and the condition might be waived, and would be deemed waived after a considerable lapse of time without any steps taken to assert his rights to repossess the goods. *(Hennequin*v. *Sands,*25 Wend., 640.) In this case the delivery was made on the 30th November, 1871, when the vendee paid $100 toward the purchase. The vendee, being in possession of the goods, mortgaged the same to the plaintiff, on the fourth of December afterward, who took said mortgage for value and in good faith. The vendee failed to make any further payments, and the defend*353ants, it appears, took no steps to assert their right to reclaim said property before the 2d day of October, 1872, when they commenced an action against the said vendee for the price of said goods. The complaint in the said action, in the ordinary form, set forth that the said defendants, during the years 1870 and 1871, had sold and delivered goods, wares and merchandise to the said Abijah J. Wright, and that a certain balance thereon then remained due and unpaid to them for such goods; and the said complaint was duly verified by- one of the plaintiffs in said action. This complaint was followed by an attachment in the said action, issued on the fourteenth October, on which the said goods were seized, and judgment on the twenty-ninth of the same month, on which execution was immediately issued, under which the said goods were levied on by the sheriff. The commencement of that action was a clear waiver of the right of the defendants to reclaim said goods — treating the delivery as conditional, and the title thereto as still remaining in them — and was an election or evidence of an election previously made to treat said sale as absolute. Ah election of one of two inconsistent remedies, whenever made, is final and conclusive upon the party. *(Morris*v. Rexford, 18 N. Y., 552; *Rodermund*v. *Clark,*46 id., 356 ; *Bank of Beloit*v. *Beale,*34 id., 473.)

The effect of such election, in respect to the plaintiff, was the same as if the right to make it and reclaim the said goods, had never existed. It operated, by relation, to give validity and effect to the plaintiff’s mortgage as of its date.

The judgment must therefore be reversed and • a new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed and new trial granted, costs to abide event.