80 N.Y.S. 975 | N.Y. Sup. Ct. | 1903
This is a motion to vacate and set aside the judgment in action Ho. 1 and consolidate the two actions into action Ho. 1. Action Ho. 1 was brought to recover of the defendant the amount due the plaintiffs upon a contract for timber cut and removed from their land in the amount of $5,030, being for the cuttings and the payments due to October 1, 1902. The action was brought December 22, 1902, after a dispute had arisen as to the amount of cutting and the amount due plaintiffs to October 1. The defendant appeared in said action December 26, 1902, and offered judgment for $3,768.55, December 28. Ho answer being interposed judgment was entered for the plaintiffs, January 15, 1903, for $5,115.22, which judgment was paid to the sheriff January 19, 1903, and the execution duly returned satisfied. Action Ho. 2 was begun January 9, 1903, to recover for the cutting during the months of October and Hovember, being the payments due on said contract up to December 1, 1902. On the 27th day of January, 1903, the defendant answered in action Ho. 2, setting up the judgment in action Ho. 1 and payment of the execution in bar of the plaintiffs’ claim. It is apparent that both actions are brought to recover the moneys due upon the same written instrument, and all the moneys sought to be recovered in actions Ho. 1 and Ho. 2 were in fact due and payable when action Ho. 1 was brought. It would seem that action Ho. 1, with the recovery therein and execution satisfied, would be a complete bar to action Ho. 2. Jex v. Jacob, 19 Hun, 105; O’Beirne v. Lloyd, 43 N. Y. 248; Lorillard v. Clyde, 122 id. 41, 45.
While the moving papers do not concede that fact, and assume that this motion is made for the purpose of preventing de
This is not a case where a party elects between remedies which are in themselves inconsistent, so that, in choosing one remedy, • he voluntarily abandons the other, and where such election once made is conclusive upon him forever, as, for instance, where a sale of goods is induced by fraud, and plaintiff, with the knowledge of the facts, elects to sue for the contract price and thereby affirmatively waives the right to retake the goods, or where a party whose goods are wrongfully converted waives the tort and sues for the purchase price upon an implied contract of sale. McNutt v. Hilkins, 80 Hun, 285. But the defense in action Ho. 2 is that the plaintiff has split an entire demand, and that but one action can be brought upon the same cause of action. While that is a complete legal defense while the judgment stands, it is still in the province of a court of equity to relieve the party who has made such a mistake rather than forfeit the balance of his claim. And this motion is a proper method for such relief.
In Jex v. Jacob, supra, the plaintiff demurred to an answer setting up a prior judgment under facts somewhat analogous to those at bar, and the demurrer was overruled, but without preju
Here, unless such relief is granted to the plaintiffs, they lose $26,251.21, which, so far as appears before the court, is justly due them, and should be paid by the defendant, aside from this technical objection. It would therefore seem that the power of this court should be exercised to relieve the plaintiffs from their mistake. An order will therefore enter vacating and setting aside the judgment and execution in action Ho. 1 upon the return of the money paid by the defendant-, with interest thereon, or in case of its refusal to accept the same, that it be paid into court for its benefit, and consolidating the said two actions into action Ho. 1, and authorizing an amended pleading to be served, the plaintiffs to pay ten dollars costs of this motion and fifty dollars costs and allowance in said action.
Ordered accordingly.