
    Adolph Sternfeld et al., App’lts, v. Alfred L. Simonson, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    1. Election of remedies—When right lost.
    Where there exists an election between two inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. Where the remedies are not concurrent and the choice between them is once made, the right to follow the other is gone forever.
    '3. Same—When an ineffectual attempt not an election.
    A mere ineffectual attempt upon the part of a creditor to secure his debt by legal proceedings, does not preclude him from claiming the benefits as a creditor under an assignment.
    '3. Same—When creditor is not precluded from pursuing remedy UNDER ASSIGNMENT.
    One Robinson made an assignment to Kopper for the benefit of creditors. Afterward the plaintiffs herein instituted proceedings, alleging that the assignor had not turned over all his property. The defendant herein "became a surety on the assignee’s bond. Afterward these plaintiffs began an action against Robinson upon certain notes and issued an attachment; the sheriff made no levy thereunder; and the execution issued on the judgment obtained in the last mentioned action was returned nulla bona. Subsequently, an action was begun by the plaintiffs' against the assignee, resulting in a judgment in favor of plaintiffs. An execution being issued-upon that judgment and returned unsatisfied, this action was commenced against the defendant as one of the sureties upon the assignee’s bond. Held, that the plaintiffs were not precluded by anything they had done from pursuing their remedies under the assignment as creditors of the assignor.
    In 1882 one George Robinson, an insolvent merchant of New York city, executed to Henry J. Hopper, as assignee,, a general assignment of all bis property for the benefit of creditors. The assignee accepted the same, the assignment was recorded and the assignee executed and filed a bond and took possession of the assigned property. Afterwardsa proceeding was instituted by the plaintiffs in this action, they alleging that the assignor had not turned over all his property to the assignee, in which proceeding it was referred to a referee -to examine the assignor and assignee, the books- and papers of the assignor and any witness produced before the referee in respect to purchases made by the assignor during the year 1882 and as to what he had done with the goods, and if sold, as to what disposition he had made of the proceeds and as to whether he had turned over to the assignee the whole of his property, etc., and to ascertain the reasonable and just amount of the bond to be given by the assignee for the performance of his duties. The referee reported that large quantities of goods purchased had not been accounted for and that a bond of $7,500 would be a reasonable and just amount to be given by the assignee; and subsequently a bond in that amount was given in which the defendant was one of the obligors. On the 16th of October, 1882, the plaintiffs began an action against Robinson upon notes made by him held by them, and on the second of November, upon an affidavit verified by the plaintiffs, an attachment was issued against Robinson’s property, upon the ground that he had made said assignment to said Oowper with intent to hinder, delay and defraud his creditors. This attachment was immediately placed in the sheriff’s hands, but there is no evidence that any levy was made under it.
    Although there is a recital in the execution subsequently issued upon the judgment as hereinafter stated of such levy having been made, the evidence of the deputy sheriff fails to show that any such levy had actually been made. Judgment having been entered in this action, an execution was thereupon issued, and indemnity bonds were given to the sheriff, but the execution and attachment were returned. 
      nulla bona on the 27th of December, 1882. In June, 1884, an action for an accounting was begun by the plaintiffs against the assignee which resulted in a judgment in favor the plaintiffs against Kopper. An execution being issued upon that judgment, and returned unsatisfied, this action was commenced against the defendant as one of the sureties upon the assignee’s bond. ,
    Upon the trial, the plaintiffs’ complaint was dismissed upon the merits on the ground that the plaintiffs had made an election between two inconsistent remedies and that they were confined to that which they first chose. From the judgment thereupon made this appeal is taken.
    
      M. L. Townsend, for app’lt; B. F. Blair, for resp’t.
   Van Brunt, P. J.

It is undoubtedly true that where there exists an election between two inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. Where the remedies are not concurrent and the choice between them is once made, the right to follow the other is gone forever. A long fine of authorities has been cited by the counsel for the defendant in support of this proposition. The most of these authorities tend to establish the rule that where a party has sued for the purchase-price of goods and recovered judgment, he cannot subsequently maintain an action upon the ground that the goods were obtained from him by fraud, or where the goods had been taken from the debtor by replevin or an action commenced for that purpose the creditor cannot subsequently sue for the purchase-price. But no authority has been cited that a mere ineffectual attempt upon the part of a creditor to secure his debt by legal proceedings, precludes him from claiming the benefits as a creditor under an assignment. In fact the case of Brown v. Littlefield (11 Wend., 467), cited by the defendants clearly lays down the rule to the contrary. It is said at page 471, that where a party has inconsistent rights or remedies, he may claim or resort to one or the other at his election. He is frequently bound by some decisive act of election in favor of one right or remedy from afterwards claiming the other right or pursuing the other remedy, which is inconsistent therewith. But the mere attempt to pursue a remedy to which he is entitled without obtaining any legal satisfaction therefrom, will not deprive him of the benefit of that to which he had originally a right to resort, especially where he has acted under a mistake as to the facts.

Applying this rule to the case at bar it is clear that there never having been any levy under the attachment issued by the plaintiffs and no property acquired thereby, and such proceedings being entirely futile, the plaintiffs are not deprived of their remedies under the assignment. In fact, long before the issuing of the attachment the plaintiffs had elected to proceed under the assignment, and their proceedings to examine the assignor and assignee in regard to the property and in respect to the amount of the bond which it would be proper for the assignee to give in the court of common pleas might have been a complete answer to their proceeding by attachment upon the allegation that the assignment was made with intent to hinder, delay and defraud the creditors, as they had elected to assert rights under the assignment itself, and after having made such election they could not attack it upon the ground of fraud.

In the foregoing statement it has been said that no levy was made under the attachment. It is true that the learned trial justice found that the sheriff had levied on the assigned property then in the possession of the assignee, under and by virtue of the plaintiff’s attachment, but the case is entirely barren of any proof to sustain this finding. The evidence of the deputy fails to show any such levy, and the evidence of the counsel for the plaintiffs shows that at the time of the issuing of the execution, instructions were given' not to levy, and there was no proof that those instructions were withdrawn. The recital in the execution that such a levy had been made, in view of the fact that the execution was returned nulla bona, was not sufficient in the face of this testimony to sustain the finding that a levy had actually been made. If the plaintiffs by means of their attachment proceedings had secured any of the property covered by the assignment then a different question might be presented. But they having in no way interfered with the assigned property by their process, and having acquired nothing by those proceedings, and having obtained no legal satisfaction therefrom, were not deprived of the benefit of the right to which they might originally have resorted. The case of Iselin v. Henlein (16 Abb. New Cas., 79) proceeds expressly upon the ground that an attaching creditor seized and obtained possession of the assigned estate by his attachment, and in R. v. Clark (46 N. Y., 354) the decision is 'based upon the ground that the plaintiffs’ assignor having retained possession of the property he and his assignees were' precluded from maintaining an action for its conversion.

It is not necessary to say anything in regard to any of the rights which the plaintiffs took by the assignment of Mary Robinson’s and Leary’s claim, as they clearly obtained no greater rights than had previously existed by virtue of their own position as creditors of the assignor.

We are of opinion therefore that the plaintiffs were not precluded by anything that they had done from pursuing their remedies under the assignment as creditors of the assignor.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels and Brady, JJ., concur.  