
    Albert W. Porter and Lawrence O. Erickson, Appellants, v. Fuld & Hatch Knitting Company, a Corporation, Respondent.
    Third Department,
    June 27, 1906.
    Replevin. — answer alleging that in prior suit plaintiff elected to make claim on contract — insufficient allegation of action pending — no election between replevin and breach of contract to sell.
    When plaintiffs sue in replevin it is no defense to allege that in another action brought by the defendant against the plaintiffs, the latter set out a claim for damages sustained by reason of the defendant’s refusal to sell and deliver the goods which are now sought to he replevied, and have thus elected to base their claim upon contract.
    Under no circumstances can a party have an election between replevin and an action for damages for the refusal of the defendant to sell the property, as the facts supporting the two actions are inconsistent. .
    The defense of another action pending is not properly alleged unless it he stated that the other action was pending at the time of the commencement of the second action,
    
      Appeal by the plaintiffs, Albert W. Porter and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 3d day of March, 1906, upon the decision of the court, rendered after a trial at the Albany Special Term, overruling the plaintiffs’ demurrer to a separate defense in the amended answer.
    
      Walter Carroll Low, for the appellants.
    
      Rosendale & Hessberg, for the respondent.
   Smith, J.:

The complaint is in replevin to recover of the defendant certain goods, wares and merchandise, consisting of underwear. These goods are alleged to be the property of the plaintiffs. The defendant refused to deliver the same upon plaintiffs’ request. The 4th and oth paragraphs of the answer purport to state a separate defense, which is the subject of the demurrer. They read as follows : a Fourth. And for a further defense and answer the defendant alleges that there is now pending another action between the same parties as are parties to this action, and in which action Fuld and Hatch Knitting Company is the plaintiff, and Albert W. Porter and Lawrence O. Erickson are the defendants, and that as defendant is informed and believes, the plaintiffs in this action have included in their answer in the said action and made a part of the defense thereof a claim for damages alleged to have been sustained by reason of the defendant in this action refusing to sell and deliver to them the same goods, wares and merchandise as are referred to in the complaint in this action, and they constitute the subject-matter of the cause of action set forth in the complaint herein, and that the said plaintiffs thereby have elected to make a claim upon contract and all the issues pending between the plaintiffs and the defendant may be completely adjusted in that action. Fifth. That there is another action pending between the same parties to this action for the same cause of action set forth in the complaint herein.”

It is clear that the matter alleged in this so-called separate defense cannot be sustained as a defense that another action is pending between the same parties because it is not alleged that such other , action was pending at the time of the commencement of this action. The learned justice at Special Term has overruled the demurrer upon the ground that a defense of an election is alleged which has precluded these plaintiffs from asserting in this action the right to the possession of the property. The difficulty with this position as we view it is that there are no facts alleged from which the plaintiffs had any right of election.- It is not important here to consider in what cases a party has an election between different remedies. It seems clear that no circumstances can exist which can give to a plaintiff an election to sue in replevin for property as his property, or to sue for damages against the defendant for refusal to sell and deliver to him that property. He may have either one of those causes of action. He cannot in the nature of things have both causes of action between which he may elect. It follows, therefore, that the part of the answer demurred to contains no defense of an election of remedies. If in defense of this action of replevin the defendant should introduce in evidence the plaintiffs’ answer stating the-facts which are alleged in its co-called separate defense it would be an admission that the plaintiffs did not have title to the merchandise for which they have here sued. The allegations are simply allegations of evidence. Such evidence is subject to explanation upon the trial as any other admission of the plaintiffs which may be proven. The allegations do not constitute a separate defense and should not have been so characterized. The demurrer was, therefore, improperly overruled. The interlocutory judgment should be reversed, with costs, with the usual leave to the defendant to amend upon payment of costs of the demurrer.

All concurred.

Interlocutory judgment reversed, with costs, and the plaintiffs’ demurrer sustained, with costs, with leave to defendant, within twenty days from service of" copy of this decision, to amend upon payment of costs of demurrer and of this appeal.  