
    Harvey Terry, Respondent, v. Charles Buek, Appellant.
    
      Election — a vendor whose broker misrepresents thepi'ice paid, by the vendee of real property, and retains pari thereof, may sue the purchaser for such part, or may sue the broker — he cannot sue both —facts alleged in the complaint need not be set up in the answer.
    
    A broker who had secured a purchaser for certain property, represented to the vendor that the purchaser was only willing to pay $3,000, which was less than the sum which the latter had actually agreed to pay. • He then represented to the purchaser that he was the real owner, and that the vendor held the title as security for the payment of §3,000, upon receipt of which a deed would be given. The purchaser thereupon paid §3,000 to the vendor and the balance of the consideration to the broker, and received the deed.
    
      Held, that the vendor, upon discovering the fraud practiced upon him, had two remedies, viz.: To treat the payment to the broker as unauthorized and sue the purchaser therefor, or to treat the payment to the broker as authorized, and bring an action against him for money had and received;
    That by electing to sue the broker and taking a j udgment against him, the vendor ratified" the act of the purchaser in making payment to the broker, and estopped himself from thereafter bringing an action against the purchaser.
    When the existence of a fact is alleged in a complaint, it is unnecessary for the, defendant to plead the same fact iu the answer in order to entitle him to take -advantage of it.
    Appeal by the defendant, Charles Buek, from an order of the '■Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 21st day of Hóvember, T898, granting the plaintiff’s motion to set aside the verdict of a jury on the first cause of action alleged in the complaint and granting a new trial with respect to such cause of action.
    
      John M. Bowers, for the appellant.
    
      John S. Wise, for the respondent.
   McLaughlin, J.:

< The plaintiff employed one Abbey, a real estate • broker, to sell two houses for him situated in the city of Hew- York, and after ■some negotiations Abbey sold the same, including certain household furniture therein, to the defendant. Abbey represented to the plaintiff that all the defendant would pay for the houses, over and shove the liens thereon, was the sum of $3,000, and he represented to -the defendant that he was the real owner and that the plaintiff held the title simply as security for the payment of $3,000, upon receiving which a deed of conveyance would be given. The consideration paid was $4,080.54 over and above- the liens, $3,000 of which "was paid to the plaintiff, and the balance, $1,080.54, to Abbey. Shortly after the transaction had been consummated by the delivery of the deed and the payment of the purchase money the plaintiff learned of the fraud practised upon him and brought an action against Abbey to recover the money paid to him. He recovered a judgment for the full amount claimed, and an execution upon the judgment having been issued and returned unsatisfied, this action was. brought to recover the same from the defendant.

Two causes of action are attempted to- be set up in the complaint, the first to recover the balance of the purchase money of the real estate, $1,080.54, and the second for the value of certain household furniture, in the houses when the transfer was made, alleged to have been con verted by the defendant. In pleading the first cause of action the plaintiff alleged that he employed Abbey to make the sale and that he falsely represented that all the defendant would pay for the, property, over and above the liens thereon, was the sum of $3,000 ; that he relied upon the representation thus made to him, accepted the $3,000 and gave the deed; that, learning of the fraud practised upon him, he demanded the balance of the purchase money from Abbey, which he refused to pay; that, he then brought an action against him and recovered a judgment but was unable to collect the same.

Upon the trial the foregoing facts were made to appear by the evidence introduced on the part of the plaintiff. At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint as to the first cause of action, which was denied, and the same motion was renewed at the close of the trial and again denied, and to-both rulings the defendant duly excepted. The jury rendered a, verdict in favor of the defendant as to the first cause of action, and in favor of the plaintiff as to the second cause of action. Thereupon the plaintiff moved to set aside the verdict and for a new trial as to the first cause of action, which motion was granted, and the defendant has appealed.

We think the order setting aside the verdict and granting a new trial must be reversed. The plaintiff was not entitled to recover on the first cause of action, either upon the facts stated in the complaint or upon the evidence introduced by him on the trial, and the motions to dismiss the complaint as tó that should have been granted. The plaintiff was entitled when he sold his property to receive the full consideration paid for it, and when he ascertained that he had not received that sum he had two remedies, either one of which he could pursue. He could treat the payment to Abbey as unauthorized and hold the defendant for the balance of the purchase money, or he could treat the payment as authorized and bring an action against Abbey for money had and received for his use. But he was not entitled to both remedies. They were inconsistent, and the election to. pursue one destroyed the other. If he elected to sue the defendant he would of necessity be obliged to repudiate the payment to Abbey, because his right to recover from the defendant could only be based upon the theory that the balance of the purchase money had never been paid. If he sued Abbey it could only be upon the theory that the balance of the purchase money had, in fact, been paid by the defendant to Abbey, and that he was entitled to recover that balance from Abbey upon the ground that it was money paid to him to and for the use of the plaintiff. ITe elected to sue Abbey, and by so doing destroyed the right, even if any had existed, which he had to proceed against the defendant. This is precisely what was held in the case of Fowler v. Bowery Savings Bank (113 N. Y. 453). There the defendant wrongfully paid to one Flynn certain money which should have been paid to the plaintiff, who, having ascertained this fact, brought an action against Flynn and recovered a judgment, but was unable to collect it. He then brought an action against the bank and obtained judgment against it, which was reversed by the Court of Appeals. What the court said in reversing the judgment in that case is quite applicable to the facts in this one. Judge Earl said : “After his demand of the deposit and the payment of’ the money to Flynn, there were two remedies open to the plaintiff. He could sue the ■ defendant as a debtor for the deposit' and recover the amount thereof from it, or he could bring an action for money had and received to and for’his use against Flynn, and recover it from him. But he was not entitled to both remedies at the same time, or in succession, and by electing the one he would lose the other. By electing to sue the bank he would repudiate its payment to Flynn, and his claim. would be that-the debt had not, in fact, been paid.- By suing Flynn, he would adopt and ratify the act of the bank in making payment to him, and his claim, would he that the money due to him had, in fact, been paid to Flynn, and that Flynn had received it to and for his use. Such adoption and ratification of the payment would legalize the payment as between him and the bank, and thus discharge the bank. He could not occupy the position at the same time of claiming that the bank had paid his money to Flynn, and yet that the bank was still his debtor. His election in this case to sue Flynn, and thus to treat him as his debtor, was not harmless to the bank, but in law may he presumed to have injured the bank, unless it should now. be held to be discharged by its payment to Flynn. After the plaintiff commenced his action against Flynn, and thus ratified and adopted the payment by the bank to him, the bank could not, during the pendency of that action, have sued Flynn to recover back the money on the ground that it had been paid by mistake and received by him without authority, because it would have been a defense to such an action that the real owner of the fund had adopted and ratified the payment. But even if the mere commencement and pendency of the action by the plaintiff against Flynn would not have furnished such a defense, it is beyond doubt that if the bank should now bring an action against Flynn to recover back the money, he could successfully defend on the ground that the plaintiff had ratified and adopted the payment, and thus discharged the bank by the recovery of a judgment against him for the money paid as the real owner thereof.

The' two remedies, one against Flynn and the other against the bank, are not concurrent. If the two actions could not be prosecuted at the same time, they could not in succession. ¡Nothing could be more inconsistent than an action against Flynn on the ground that money due to the plaintiff had been paid to him, and an action against the bank, on the ground that it had not paid the' deposit, and still remained debtor therefor.” (See, also, Riley v. Albany Savings Bank, 36 Hun, 517; S. C., 103 N. Y. 669.)

.The plaintiff, by taking a judgment against Abbey, ratified the act of the defendant in making the payment to him, and he was thereafter estopped from claiming that the payment had never been made, or that the same was unauthorized.

But it is suggested in the opinion of the learned trial justice that the defendant, not having pleaded the judgment obtained by the plaintiff against Abbey as an estoppel-, is not in a position to take advantage of it. It is not necessary for the defendant to plead it, because the plaintiff has done so. When the existence of a fact is alleged in the complaint, it is unnecessary to plead the same fact in the answer to enable a defendant to take advantage of it.

■ The defendant, as we have already seen, upon the allegations of the complaint, as well as upon the facts established by the evidence .introduced on the trial, was entitled to a dismissal of the complaint as to the first cause of action ; and the jury having found a verdict for the defendant as to that cause of action, the verdict should not have been disturbed.

. The order setting aside the verdict and granting a new trial must be reversed, with costs and disbursements to the appellant, and the motion for new trial and to set aside verdict denied, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, jj., concurred.

Order reversed, with costs and disbursements to the appellant, and motion for new trial and to set aside verdict denied, with costs. ■  