
    Charles M. Yarter, Respondent, v. Merritt D. Walcott, Appellant.
    Third Department,
    January 7, 1914.
    Sale — action for false representations by purchaser as to solvency — election of remedies — prior action on contract.
    The bringing of an action on contract for goods sold and delivered does not constitute an election of remedies so as to bar a subsequent action for false representations as to solvency, inducing the sale, upon the discov - ery of the purchaser’s insolvent condition.
    Appeal by the defendant, Merritt D. Walcott, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 18th day of April, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of May, 1913, denying the defendant’s motion for a new trial made upon the minutes.
    
      Joseph F. Driscoll; for the appellant.
    
      Rogers & Sawyer [John E. Sawyer of counsel], for the respondent.
   Woodward, J.:

The complaint alleges that the defendant, for the purpose of inducing the plaintiff to enter into a contract for the sale of certain merchandise, and for the purpose of obtaining said merchandise, represented to the plaintiff that he, the defendant, was then solvent and had on hand sufficient money to pay for the same; that the plaintiff, relying upon the representations and induced thereby, parted with the merchandise to the defendant; that said statements were false and were known by the defendant to be false and that they were made for the purpose of deceiving and defrauding the plaintiff.

Upon the trial the evidence was clearly sufficient to justify the jury in finding in favor of the plaintiff, and we are of the opinion that the fact that the plaintiff had previously secured a judgment against the defendant for the amount of the purchase price did not operate as an election of remedies. The facts in relation to the known insolvency of the defendant did not appear, and they were unknown to the plaintiff until the defendant’s examination in a bankruptcy proceeding which followed the entry of the plaintiff’s judgment in an action brought upon the original contract. Under such circumstances the plaintiff cannot be said to have elected between remedies. He merely pursued the remedy open to him upon his contract, and when he found that that contract was founded in fraud he turned to his remedy for fraudulent representations, offering to cancel the judgment on contract, and this court is committed to the doctrine that this practice is lawful. (Russell v. Wilber, 150 App. Div. 52.)

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  