194 N.Y. 495 | NY | 1909
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As the record stands the case is very simple, notwithstanding the extended statement of facts which is essential to a proper comprehension of the questions which are decisive of this appeal. The suit is brought to enforce specific performance of a land contract. It is prosecuted by the assignee of the vendee and, of course, the plaintiff must abide by the case made for him by his assignor. At Special Term the plaintiff was awarded the judgment prayed for in *502
the complaint, and upon appeal to the Appellate Division that judgment was unanimously affirmed. If the findings made at Special Term were consistent with each other and with the conclusions of law upon which the judgment is based, the unanimous affirmance at the Appellate Division would preclude any disturbance of the judgment in this court. But that is not the case. While the larger number of the findings are such as to justify and require the judgment rendered, they are opposed by at least two others which are so inconsistent and controlling as to forbid that judgment. The rule is well settled that an appellant who seeks to reverse a judgment which is based upon inconsistent findings is entitled to the benefit of those that are most favorable to him. (Bonnell v. Griswold,
But counsel for the respondent further contends that even if the so-called conclusion of law as to the termination of the contract might be treated as a finding of fact for the purpose of upholding the judgment, it cannot be so treated for the purpose of reversal. In support of that contention he cites Parker v.Baxter (
There is another aspect of the case, however, which we think conclusively bars the plaintiff's right to specific performance and requires the dismissal of the complaint as well as the reversal of the judgment. The trial court found that on the date finally fixed for closing the contract "the vendee did not insist on the performance of the contract, but demanded *505
the return of her deposit (and expense) and the rescission of the contract." That this finding correctly represents the attitude of the plaintiff's assignor is conclusively shown by her prompt commencement of a suit to have the contract so reformed as to enable her to recover back her deposit, with damages, because of the alleged unmarketability of the title to the boulevard property. Her contention was that the two contracts, although separate in form, were in reality but a single agreement, under which she could refuse to take a conveyance of any of the land if the title to either of the parcels were defective. This was a conclusive election of a remedy that is absolutely inconsistent with her present claim of right to specific performance. Then and there the vendee decided to abandon any right which she may have had to insist upon a specific performance of the contract in suit. She elected to treat the contract as existing only for the purpose of getting back the money which she paid, and of recovering the damages which she claims to have suffered. By that election she is bound. Where a party has an election between two inconsistent remedies, he is bound by that which he first chooses. (Rodermund v. Clark,
At this point in the discussion we must notice the attempted appeal of the defendants from the order of the Appellate Division resettling the judgment in the vendee's action to reform the contract. That order added to the judgment affirming the dismissal of the complaint, a provision to the effect that the judgment should not be a bar to an action by the vendee either for the specific performance of the contract, or for the recovery at law of the amount paid by the vendee upon the execution of the contract, together with disbursements for examining title. That saving clause, so far as it relates to the vendee's right to maintain an action at law to recover her deposit and disbursements, was clearly authorized, because it was entirely consistent with the election which the *506
vendee had made; but it was beyond the power of the court to continue the cause of action for specific performance which the vendee had voluntarily abandoned. To the extent that the order was designed to resurrect that issue, which the vendee had elected to bury, it was unauthorized. But, conceding this, the appeal is not well taken, for the order is not one finally determining a special proceeding, and the appeal is not from the judgment which the order purports to amend. (Van Arsdale v.King,
The appeal from the order resettling the judgment in Duke v.Stuart et al. is, therefore, dismissed, with costs, and the judgment herein is reversed and the plaintiff's complaint dismissed, with costs in all courts.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLAR BARTLETT and HISCOCK, JJ., concur.
Judgment accordingly.