57 N.Y.S. 980 | N.Y. App. Div. | 1899
< The plaintiff employed one Abbey, a real estate • broker, to sell two houses for him situated in the city of Hew- York, and after ■some negotiations Abbey sold the same, including certain household furniture therein, to the defendant. Abbey represented to the plaintiff that all the defendant would pay for the houses, over and shove the liens thereon, was the sum of $3,000, and he represented to -the defendant that he was the real owner and that the plaintiff held the title simply as security for the payment of $3,000, upon receiving which a deed of conveyance would be given. The consideration paid was $4,080.54 over and above- the liens, $3,000 of which "was paid to the plaintiff, and the balance, $1,080.54, to Abbey. Shortly after the transaction had been consummated by the delivery of the deed and the payment of the purchase money the plaintiff learned of the fraud practised upon him and brought an action against Abbey to recover the money paid to him. He recovered a judgment for the full amount claimed, and an execution upon the judgment having been issued and returned unsatisfied, this action was. brought to recover the same from the defendant.
Two causes of action are attempted to- be set up in the complaint,
Upon the trial the foregoing facts were made to appear by the evidence introduced on the part of the plaintiff. At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint as to the first cause of action, which was denied, and the same motion was renewed at the close of the trial and again denied, and to-both rulings the defendant duly excepted. The jury rendered a, verdict in favor of the defendant as to the first cause of action, and in favor of the plaintiff as to the second cause of action. Thereupon the plaintiff moved to set aside the verdict and for a new trial as to the first cause of action, which motion was granted, and the defendant has appealed.
We think the order setting aside the verdict and granting a new trial must be reversed. The plaintiff was not entitled to recover on the first cause of action, either upon the facts stated in the complaint or upon the evidence introduced by him on the trial, and the motions to dismiss the complaint as tó that should have been granted. The plaintiff was entitled when he sold his property to receive the full consideration paid for it, and when he ascertained that he had not received that sum he had two remedies, either one of which he could pursue. He could treat the payment to Abbey as unauthorized and hold the defendant for the balance of the purchase money, or he could treat the payment as authorized and bring an action against Abbey for money had and received for his use. But he was not entitled to both remedies. They were inconsistent, and the election to. pursue one destroyed the other. If he elected to sue the defend
“ The' two remedies, one against Flynn and the other against the bank, are not concurrent. If the two actions could not be prosecuted at the same time, they could not in succession. ¡Nothing could be more inconsistent than an action against Flynn on the ground that money due to the plaintiff had been paid to him, and an action against the bank, on the ground that it had not paid the' deposit, and still remained debtor therefor.” (See, also, Riley v. Albany Savings Bank, 36 Hun, 517; S. C., 103 N. Y. 669.)
.The plaintiff, by taking a judgment against Abbey, ratified the act of the defendant in making the payment to him, and he was thereafter estopped from claiming that the payment had never been made, or that the same was unauthorized.
But it is suggested in the opinion of the learned trial justice that the defendant, not having pleaded the judgment obtained by the plaintiff against Abbey as an estoppel-, is not in a position to take advantage of it. It is not necessary for the defendant to plead it, because the plaintiff has done so. When the existence of a fact is alleged in the complaint, it is unnecessary to plead the same fact in the answer to enable a defendant to take advantage of it.
■ The defendant, as we have already seen, upon the allegations of the complaint, as well as upon the facts established by the evidence .introduced on the trial, was entitled to a dismissal of the complaint as to the first cause of action ; and the jury having found a verdict
. The order setting aside the verdict and granting a new trial must be reversed, with costs and disbursements to the appellant, and the motion for new trial and to set aside verdict denied, with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, jj., concurred.
Order reversed, with costs and disbursements to the appellant, and motion for new trial and to set aside verdict denied, with costs. ■