
    Joseph Seeman et al., Respondents, v. Gabriel Bandler, Appellant.
    (City Court of New York, General Term,
    November, 1898.)
    Goods sold — Rescission by inconsistent action— An action cannot ;be divided into ope in tort and another on contract.
    Where the proof, in an action for goods sold, tends to show that the same plaintiffs and vendors have brought an action of replevin, still undetermined, to recover of a third party, who claimed as vendee of the defendant, certain goods and that the action for goods sold is brought to recover • the value of such of those goods as the sheriff could not find in the possession of the third party nor seize under the writ of replevin, the action for goods sold cannot be maintained as the action of replevin constitutes an election by the plaintiffs to rescind the sale which they had made to the defendant.
    The pendency of the action of replevin is also a defense, as a party cannot elect to sue, and actually sue, in tort for a whole cause of action and, while the action in tort is pending, divide his cause of action and sue on contract for a part of it.
    Appeal from a judgment entered upon a verdict in favor of the plaintiffs directed by the court.
    Wasserman & Jacobus, for appellant.
    Epstein Brothers, for respondents.
   O’Dwyer, J.

It was essential to the plaintiffs’ case to show a sale and delivery of the goods, those facts having been put in issue by the second paragraph of the first defense of the answer, and this the plaintiffs failed to do.

The objection of the plaintiffs’ counsel is not well taken for the defendant is allowed to plead as many defenses as he wishes and their inconsistency is no objection.

The evidence shows that on September 23, 1897, plaintiffs brought an action in replevin in the Oity Court of the city of Yew York, against one 'Herman Weiner, to recover, among others, the article, to recover the value of which this action is brought.

That the complaint in said action in replevin alleges that these articles were detained by the said Weiner who claimed to hold them by virtue of a bill of sale from this defendant; that in said action in replevin the sheriff seized all the articles alleged to have been transferred by this defendant to the said Weiner by said bill of sale, which had not been disposed of; that this action is brought to recover the value of goods which could not be found by the sheriff in said action in replevin; that a notice of abandonment of so much of the plaintiffs’ claims as related to the chattels which are the subject of this action, was served in said replevin action; that said action in replevin is now pending and undecided.

By bringing their action in replevin and claiming ownership of the goods in question the plaintiffs elected to rescind the sale of the goods to this defendant, and having once elected to rescind the contract they could not thereafter reaffirm a part of such contract and maintain an action thereon against the defendant, especially while such action in replevin was still pending.

The pendency of the replevin action is a good defense to this action. See Wile v. Brownstein, 35 Hun, 68, where Follett, J., said, at page 71: Ho authority has been cited authorizing a plaintiff, after electing to sue in tort for a whole cause of action and. while the action in tort is pending, to divide his cause of action into two parts and maintain a second action on contract for the recovery of the other part, continuing at the same time his action in tort.”

This case follows the case of Moller v. Tuska, 87 N. Y. 167.

Judgment appealed from reversed and complaint dismissed, with costs.

CJonlah, J., concurs.

Judgment reversed and complaint dismissed, with costs.  