116 N.Y.S. 411 | N.Y. App. Div. | 1909
The plaintiff demurred to two defenses contained in the answer. Upon the argument the sufficiency of the complaint was attacked.
We come, therefore, to the consideration. of the demurrer to the third defense,, which the court below sustained on the ground that it is insufficient in law. The defendants invoke the rule that when a party has two remedies which are inconsistent, he may elect to pursue either, but that having once made his election with full knowledge of the facts, of which election the commencement of a proceeding is sufficient evidence, his right to prosecute the other remedy is forever gone. (Morris v. Rexford, 18 N. Y. 552 ; Bank of Beloit v. Beale, 34 id. 473; Fowler v. Bowery Savings Bank, 113 id. 456; Conrow v. Little, 115 id. 387; Kirk v. Crystal, 118 App. Div. 32.) The complaint in this action seeks to recover the $40,000 paid by Ahlmann to the defendants upon the theory that the money of the bank was used to pay Ms individual indebtedness arising, among other things, from the purchase for him by the defendants of fifty Chicago and Alton bonds. Upon discovering this the bank had two remedies. It could ratify the unauthorized purchase by Ahlmann and insist that he turn over to them the fifty bonds purchased with their money, and if he refused so to do, sue Mm for the unlawful conversion resulting therefrom, or it could repudiate the whole transaction of purchase and seek to recover its 'money from Ahlmann or anyone in whose hands it could be found who took it with knowledge that it was theirs. It could not have
It remains for us to consider the demurrer to the fourth defense. It is therein alleged that in March, 1905, a former receiver of the bank began an action against the officers and directors and the personal representatives of a deceased officer and director of the bank, for damages for failure to exercise' that same degree of care and prudence in the execution of their trust that men of common pru-' dencc ordinarily exercise in their own affairs. (Hun v. Cary, 82
The interlocutory judgment should be modified by reversing so much of the said judgment as sustains plaintiff’s demurrer to the third defense set up in the answer, and said demurrer should be
Woodward, Jenks, Gaynor and Rich, JJ., concurred.
Interlocutory judgment modified by reversing so much of said judgment as sustains plaintiff’s demurrer to the third defense set up in the answer, and said demurrer overruled, and as thus modified judgment affirmed, without costs to either party as against the other.