
    Bowker Fertilizer Company, App’lt, v. Lawrence N. Cox, Resp’t.
    
      (Court of Appeals,
    
    
      Filed October 4, 1887.)
    
    1. Practice—When action is pending—Election of' remedies.
    An action was brought to recover the proceeds of two notes, entrusted to the defendant for sale and unaccounted for by him. Judgment was entered, no answer having been interposed, for the amount of both notes. Upon the examination of defendant in proceedings supplementary to execution, it was found that one of these notes had been pledged by defendant. The plaintiff then caused its own judgment to be vacated, in order to ascertain the true amount for which it should be entered, but nothing more was done and no judgment was entered, the action remained pending and the default continued, when another action, on the pledged note, was begun by plaintiff and noticed for trial. The answer in the second action was that another action was pending for the same cause and upon the same facts. Held, that the trial court was justified in ordering judgment for defendant in the second action.
    2. Same — Body execution—What is not—Satisfaction of cause of
    ACTION.
    When the motion to vacate the first judgment was made by the plaintiff the defendant was imprisoned by virtue of an order of arrest issued in that action. The court required the plaintiff to stipulate, as a condition of vacating the judgment that the defendant should “be permitted to make application to the court for his discharge at the time when he would have been entitled to make such application if said judgment had not been vacated, and if an execution against his body had been duly issued thereon.” Held, that the condition which the plaintiff accepted did not convert the order of arrest into a body execution. That it could not have the effect to discharge and satisfy an indefinite cause of action which had not ripened into judgment.
    Appeal from a judgment of the supreme court, general term, of the second department, affirming a judgment in favor of the defendant dismissing the complaint with costs, in an action tried at Kings county special term, a jury having been waived.
    The action was commenced on the twenty-sixth of October, 1882. The complaint alleges the fraudulent conversion at Philadelphia, Penn., on or about the 22d of March, 1882, of a certain promissory note owned by plaintiff, which note was made by one Webster Davis, to the order of the company for the sum of $5,600, The complaint demands judgment against the defendant in the sum of $5,600, with interest from March 22d, 1882.
    The answer sets up:
    First. Another action pending for the same cause, and upon the same facts as set forth in the complaint.
    
      Second. That defendant being imprisoned under an execution against his person in action 1, when the present action was begun, the cause of action was at that time satisfied and the defendant released and discharged therefrom.
    The actions pending against the defendant will be designated for convenience as number’s “ 1 ” and “ 2,” number 2 being the case at bar. Action number 1 was commenced March 16, 1882, by service of a summons. At the same time an order of arrest was procured against the defendant under which he was taken into custody. No appearance having been interposed, the plaintiff entered judgment on April 10, 1882, for the sum of $11,172.45. The complaint in action No. 1, alleged that on the 29th of December, 1881, the company was the owner of two promissory notes each for $5,600, which the plaintiffs caused to be delivered to the defendant, who received the same as the agent for the plaintiff for the purpose of selling the same, receiving the proceeds thereof and immediately turning the same over to the plaintiff. That the defendant sold and disposed of said notes and realized upon such sale the sum of $11,077.71, which he failed to pay over to the plaintiff although demanded so- to do. Immediately after entry of judgment, execution was issued to the sheriff upon said judgment and on the 29th of April, 1882, an order was granted in said action requiring the defendant to appear before a referee at the Ludlow street jail, on May 2d, 1882, to be examined concerning his property. Pursuant to said order defendant was examined and made a full disclosure of the facts of pledging the second note, namely the note on which this .action (No. 2), is brought, for $2,000 to one Coates in the city of Philadelphia. Soon after the above examination one of plaintiff’s officers learned from Coates, the facts about this note upon which action number 2 is based.
    On May twenty-third, the judgment having been in existence forty-three days the plaintiffs applied upon affidadavits; first, for an order to show cause why the judgment and execution in the action should not be set aside on the ground that it was entered for too great a sum, and second, why a certain commission should not issue. This motion was granted and an order entered vacating the judgment, “ without prejudice to the plaintiff’s right to re-enter the same for the proper amount, or as soon as such amount could be ascertained * * * and the defendant having opposed said application on the ground that his incarceration might be unnecessarily prolonged, if such motion is granted, and plaintiff having in open court offered to consent to the following provision in behalf, it is further
    “ Ordered, that if he shall, in writing, consent to this provision, but not otherwise, he shall be permitted to make application to this court for his discharge at the time that he would have been entitled to make such application, if such judgment had not been vacated, and if an execution had been duly issued against his body thereon; provided, however, that he shall in the meantime submit to an examination * * *
    “If defendant shall, within two days from the service of this order, refuse or omit to consent to and fairly perform this provision in his behalf, it shall become null and void.
    The defendant, in writing, consented to the provisions of this order, and agreed to perform the conditions set forth therein. No effort whatever was made by the plaintiff to enter judgment in the action, although it had obtained the desired information, and the defendant in the meantime being allowed to remain in jail, unable to procure bail.
    On October sixteenth, on motion of defendant, an order was granted that defendant be discharged from custody unless the plaintiff “enter a judgment against the defendant within ten days from the date hereof, in which case it is denied without costs.” On the thirty-first day of October, the plaintiff, not having entered any judgment in the action, an order was entered forthwith discharging the defendant from custody. To intercept the last mentioned order, the plaintiff on the twenty-sixth of October, began a second action (Bo. II.) and procured an order of arrest, holding the defendant in $3,000 bail, the complaint being as above stated. ' This order of arrest was afterward set aside and defendant released. Action Bo. II. was duly noticed for trial for the March term, 1883, by both plaintiff and defendant, and was upon the calendar for that term. A motion to amend the complaint in action Bo. 1 was not made until May 14, 1883.
    
      John L. Hill, for appTt; Bos Bassos Brothers, for resp’t.
   Finch, J.

The trial court found as a that at the date of the commencement of this action and at the time of its trial, there was pending and undetermined, an action on contract for the recovery of the money and the proceeds of the note, for the conversion of which this action was sought to be maintained. The case shows that the original action was brought to recover the proceeds of two notes entrusted to the defendant for sale and unaccounted for by him, and in reliance upon his statement that both had passed out of his possession. That statement was found at a later date to have been untrue as to one of the notes, which may be called, for convenience, the second note, since it was the one for the conversion of which the second and present action was brought. Judgment was entered in the first action, no answer having been interposed, for the amount of both notes, in April, 1882, and proceedings supplemental to execution very soon after were instituted. Upon the defendant’s examination, his mis-statement as to the second note was developed, and on the 23d of May, 1882, the plaintiff, as appears by Bowker’s affidavit, knew all the facts as to the second note, and the falsehood of the defendant, and was bound to elect between the existing action on contract as to the second note, and an action ex delicto for its conversion. The plaintiff, however, took but one step. It caused its own judgment to be vacated, in order, as was said, to ascertain the true amount for which it should be entered. It might have been entered at any day thereafter for the amount of both notes, or only for that of the first, but was not entered at all; and the action remained pending and the default continued when the present action was begun.

The plaintiff had opened the door for the election of a new remedy, but stopped at the threshold, and had not made such election, or abandoned its first action for the note when the second action was commenced. At that date two actions were pending, one on contract and one in tort, for the same substantial cause.

The plaintiff not only retained its hold upon the first action, and the power to enter judgment therein for both notes, but took further and important steps in that action. It procured an order for a commission and a reference to examine the defendant relative to his dealing with the notes, and as late as October in that year summoned the defendant to such examination. After that the present action was commenced, and the condition and possible effect of the first action was never changed till, on the 23d of May, 1883, eight days before the trial of this action, and after notice of trial had been served, the complaint in the first action was amended so as to limit it to the first note alone. That was the only decisive act of the plaintiff, but came too late. If it could have effect as an abandonment of the action upon the second note, and as significant of a final election after so long a delay, and after the pendency of the first action had been pleaded as an answer to the second, it certainly would be very unreasonable to allow it such or any effect whatever when delayed until after the second action was noticed for trial. Swart v. Borst, 11 How, 69.

Possibly the defendant’s plea of a prior action pending could only be defeated by an order of discontinuance. Averill v. Patterson, 10 N. Y., 500.

But in any event the amendment of the complaint, if available at all, should have been made promptly after the need of a choice of remedies had become apparent. The trial court was, therefore, justified in ordering judgment for defendant. But that judgment was also put upon a ground which we do not appprove, and which gives it an effect to which the defendant is not entitled. When the motion to vacate the first judgment was made by the plaintiff the defendant was imprisoned by virtue of an order of arrest issued in that action. No execution against his person had yet been issued or served. The effect of vacating the judgment was to postpone indefinitely such execution and leave the defendant under arrest for a prolonged and indefinite period.

To obviate that injustice and keep the imprisonment within what would have been its normal duration, the court required the plaintiff to stipulate as a condition of vacating the judgment that the defendant should “be permitted to make application to the court for his discharge at the time when he would have been entitled to make such application if said judgment had not been vacated, and if an execution against his body had been duly issued thereon.”. This condition which the plaintiff accepted did not convert the order of arrest into a body execution. Its purpose and effect was to permit a motion for a discharge at a specified time and to prevent an answer to the motion at such date that no body execution had been served; but the resultant discharge was from arrest under the order, and that alone, and could not have effect to discharge and satisfy an indefinite cause of action which had not as yet even ripened into judgment.

Such a result was not contemplated by the condition, or within its reasonable scope, and should not be argued out from a stipulation silent upon the subject and aimed to accomplish a single and specified purpose. We, therefore, affirm the judgment upon the first ground stated, and that only.

Judgment affirmed, with costs.

All concur. ___  