8 Daly 23 | New York Court of Common Pleas | 1878
No question is raised upon the appeal as to the finding of the referee in respect to the plaintiff’s claim for services under the street-cleaning contract, or the amount found to be due for this service.
What the appellant chiefly relies upon is, that the plaintiff having brought an action in the Supreme Court during Mr. Whiting’s lifetime, to compel him to convey to the plaintiff an undivided half interest in the bulkhead and the land upon which it was erected, he could not, by discontinuing that action, acquire any right to bring this action to recover for the work done, and the materials furnished in building the bulkhead. He claims that by bringing the action in the Supreme Court he made his election as to his remedy, and was estopped thereafter from resorting to any other remedy, and our attention is called to certain cases in support of this proposition.
The doctrine laid down in these cases, and which is well established, is; that where a party has his election between two inconsistent remedies, and resorts to one, with a full knowledge of his rights, he is forever cut off from resorting to the other. Thus, in Morris v. Rexford (18 N. Y. 552), where the plaintiff sold a quantity of oats, which was to be paid for in cash, and which was delivered to the purchaser, who did not pay for them when demanded; and the plaintiff
But this is a very different case. It is not a case in which the plaintiff, upon the same state of facts, had a right to elect between two inconsistent remedies, and having resorted to one, was thereafter cut off from resorting to the other. It is a case in which the second action was brought upon a different state of facts from those upon which the action was
Whatever may have been the fact with regard to the other action, whether the claim were unfounded, the contract void, or afterwards waived, the plaintiff in either case would be entitled to recover for the services he rendered and the materials he supplied in the building of the bulkhead upon Whiting’s property. (Baldwin v. Palmer, 10 N. Y. 232.)
The building of the bulkhead on Whiting’s land and its completion of it was proved, and also that it had been injured by fire, had been repaired by White, and that a detailed statement in writing of the cost of these repairs, amounting to $2,115 45, had been furnished to the defendent; and that afterwards, in December, 1872, an accounting was had between the administrator and White, upon the basis of what Whiting in his lifetime referred to as the documentary evidence which was in Whiting’s possession at the time of his death, which accounting or statement of account was made up by the defendant’s attorney, in which was included a large number of offsets which the plaintiff agreed to allow, and which statement, after allowing all these offsets, showed that Whiting was indebted to White on the bulkhead account in the sum of $19,454 67, which the defendant
What the appellant now asks us to do is to go behind this adjustment and settlement of the bulkhead transaction to show that the plaintiff was not entitled to recover the amount thus agreed upon ; and our attention is called to a great deal of evidence which the referee received, to show that the valuation per cubic foot for building the bulkhead was too high, the evidence respecting which is conflicting, and other matters to show that the amount awarded by the referee was too much. Without at all conceding that this evidence makes out what the appellant claims it does, I do not propose to go into it, as I think the accounting which was had between the parties is, within the cases, conclusive and final, except so far at least as to the extent of throwing upon the defendant the onus of establishing that there were errors or mistakes, and this, I think, he has not succeeded in doing. The referee has based his finding of what was due to the plaintiff for the erection of the bulkhead upon this settlement or adjustment between the parties, and I think he was justified in so doing. The witness Yoege, when subsequently examined before the referee, had no interest that would have disqualified him from testifying.
Ido not think it necessary to dwell further upon the elaborate points submitted upon the appeal. Whiting had the benefit of the erection upon his land, built by Greorge White, and afterwards, when injured, repaired by him. Whatever may have been the oral agreement made between the parties when the work was undertaken or finished, Whiting admitted during his lifetime that he was indebted to White for the work, but not to the amount claimed. The amount found by the referee is considerably less than what Whiting supposed was the extent of his indebtedness. The claims which Whiting had against White, as far as it was possible to ascertain them, and, in all probability, all that he had, has been allowed against White, and were allowed by him upon the adjustment. The estate now enjoys the benefit of White’s services and the materials he furnished in the erection of a structure upon the land which now' belongs to Whiting’s heirs, and after deducting from this claim what White owed to Whiting, they should pay for the benefit of the structure which they now possess and enjoy. The report, which I regard as a just and equitable one between the parties, should be affirmed.
Robinson and Larremore, JJ., concurred.
Judgment affirmed.