
    Pratt, Hurst & Co., Limited, Plaintiff, v. Edward N. Tailer et al., Defendants.
    (Supreme Court, New York Special Term,
    February, 1907.)
    Election of remedies — Inconsistency of remedies — Different remedies where rule of inconsistency is not violated.
    Landlord and tenant — Rights, duties and liabilities in regard to the premises — Injuries from defective condition — Actions for injuries from negligence.
    An allegation iff the complaint, in an action against a landlord for damages caused by leaks in the roof of the demised premises, that defendant had expressly agreed to protect the plaintiff from such damages, does not constitute an election to sue upon contract; and a judgment merely dismissing said complaint is not a bar to an action in tort for damages caused by the same leakage.
    Action by tenant against landlord for damages in negligently causing leak in roof of demised premises.
    Morgan T. Mitchell, for plaintiff.
    Winston H. Hazen, for defendant.
   Blanchard, J.

The complaint alleges that by a written lease the plaintiff became the tenant of certain premises owned by the defendants, its lessors, and entered into occupntinrf thereof; that subsequently the defendants permitted certain third parties to install apparatus upon the roof of saiu premises; that by reason of the unworkmanlike manner in which that apparatus was installed the roof of said premises was injured, and by reason thereof the plaintiff’s goods were damaged by leaks in the roof. The complaint prays for damages as a result of said' leakage. The defendants’ answer to the complaint sets up that in a former action brought by the plaintiff to recover damages caused by the same leakage the complaint was dismissed by the court, and that said former action constituted an election to sue upon contract and not upon tort, and that said judgment, was a bar to the present action. Tlw judgment-roll annexed to the answer of the defendants shows that in the former action the plaintiff’s complaint differed from the complaint in the present action in that it contained a paragraph alleging specifically that the defendants would keep the roof of said premises in repair. Since the complaint in the former action was merely dismissed it is clear that the plaintiff is entitled to prosecute an action for recovery of damages by reason of the same injuries upon a different complaint. The defendants’ contention that the prosecution of the former action was an election by the plaintiffs to sue upon a contract rather than upon a tort is untenable. The mere circumstance that in the former complaint an allegation was inserted that the defendants had expressly agreed to protect the plaintiff against the damages which occurred by reason of leakage is not inconsistent with the common-law liability of the defendants as landlords to protect the plaintiff in the quiet and peaceable enjoyment of the premises. The plaintiff might well prosecute its action on one or the other of these liabilities or upon both. A party cannot be estopped from prosecuting his action unless he has elected to proceed upon a theory entirely inconsistent with the one which later he endeavors to proceed upon. Within ihe rule of Crossman v. Universal Rubber Co., 127 N. Y. 34, 37, the plaintiff herein is not barred from prosecuting its action upon the present complaint.

The demurrer is, therefore, sustained.

Demurrer sustained.  