112 N.E. 447 | NY | 1916
The action is brought to foreclose a mortgage. The mortgage was made by the Cayuga County Cold Storage and Warehouse Company on December 1, 1909, and covers its plant in the city of Auburn. The mortgaged property includes "all machinery, pipes, refrigerating apparatus, appliances, etc., now upon said premises or hereafter to be acquired." After the execution of the mortgage, the respondent York Manufacturing Company sold to the Cayuga County Cold Storage and Warehouse Company refrigerating machinery and apparatus under a contract of conditional sale. The machinery and apparatus did not cease to be personal property though affixed to the building (Central Union Gas Co. v. Browning,
The question depends for its answer upon the law of election of remedies. Where two inconsistent remedies, proceeding upon irreconcilable claims of right, are open to a suitor, the choice of one bars the other. But, to have that effect, the remedies must be inconsistent. We find no inconsistency here. The contract says that title is to remain unchanged till the price is paid in cash. The vendor had the right to receive the price, and brought an action to get it. The judgment preserves the obligation of the vendee's promise to make payment, but puts it in another form. There is no inconsistency between an attempt to get the money and a reservation of title if the attempt is not successful. In asserting title the vendor does not treat the contract as void in its inception (Elterman v. Hyman,
Our conclusion that the conditional vendor may sue for an installment of the price, and afterwards, if unable to obtain payment, retake the property, has support in many decisions (American Box Machine Co. v. Zentgraf, *569
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, HOGAN and SEABURY, JJ., concur.
Judgment affirmed. *570