
    Isaac Hays, Resp’t, v. Bernard Midas and Lewis R. Stegman, Sheriff, etc., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1887.)
    
    Election of remedies—Waiver—When bringing suit is not—Fraud.
    A suit was commenced and a warrant of attachment issued on the ground (as set out in said warrant and in the affidavits, etc., on which it was granted) that the defendant therein had removed and disposed of his property with intent to defraud his creditors, and said suit was discontinued by order of the court on notice to the defendant therein, no advantage accruing to the plaintiff thereunder. Meld, that the mere bringing of said action for the price of the goods, unless it was brought with knowledge of the fraud in the acquisition of the goods, is not a binding election or waiver of the , right to rescind the sale. Following Equitable Co-operative Co. v. Hers e, 3 N. Y. State Rep., 100.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment in favor of defendants, entered upon the direction of the Kings county circuit court upon a question of law reserved for its decision after a verdict had been rendered in favor of plaintiff on the question of fraud.
    
      James Troy, for app’lts; Blumensteil & Hirsch, for resp’t.
    
      
       Affirming 39 Hun, 460.
    
   Danforth, J.

This is an appeal by the defendant Stegman from an order of the general term of the supreme court, reversing a judgment theretofore obtained by him - in an action for the recovery of personal property and directing judgment in favor of the plaintiff. The complaint contains the usual allegations required in such actions. The answer of defendant Stegman admitted the value of the goods to be as stated, but denied all other averments of the complaint, and set up that, as sheriff of Kings county, he took the property by virtue of sundry attachments duly-issued to him for enforcement against the property of one, Midas, his co-defendant, and that one of the attachments was in favor of the plaintiff Hays. Midas, by his answer, alleged that the property was purchased by him from the plaintiff, and that, before the commencement of this action, the plaintiff sued for the price, and obtained a warrant of attachment, thereby, as is asserted, affirming the contract of sale.

Upon the trial the plaintiff offered testimony tending to show that Midas procured the goods fraudulently, and produced and offered to return to him the notes given therefor. They were refused. The defendant Stegman then put in evidence, among others, the attachment issued to him in favor of the plaintiff. It recited a cause of action on contract, and stated, as ground for the attachment, that “the defendant has removed and disposed of his property with intent to defraud his creditors,” and also the affidavits on which the charge was founded.

The suit was commenced, and the attachment levied upon real and personal property of the defendant Midas, on the 16th of December, 1884. But it was proven that the attachment suit was discontinued by an order of the court made December 27th, on notice to the defendant, and the present action commenced on the 29th of December, 1884. It was conceded that nothing was obtained by the plaintiff under the attachment. The defendants thereupon moved for a dismissal of the complaint, upon the ground, as stated by their counsel, that it appeared from the proof that the plaintiff, on the 16th day of December, 1884, with full knowledge of the fraud which had been perpetrated upon him by Midas, and the right to rescind said sale and reclaim said goods, or affirm the sale and recover the value therefor, had elected to affirm the sale of the goods obtained by Midas, and sue upon the contract for the value thereof, and, having so elected and obtained the benefit of a personal remedy, such election was final and conclusive, and vested Midas with the title to said property. By consent of parties the court reversed its decision upon the question of law thus raised, and submitted the case to the jury to find on the question of fact as to whether the defendant Midas had obtained possession of the goods fraudulently, and with the preconceived intent not to pay therefor. They found for the plaintiff. The court subsequently decided the point reserved in favor of the defendent, set aside the verdict, dismissed the complaint, and awarded judgment in favor of the defendant Stegman for a return of the property. Upon appeal by the plaintiff the general term reversed this judgment, and ordered judgment for the plaintiff upon the verdict.

The two actions are inconsistent; and, if it had appeared that the first was brought with knowledge of the defendant’s fraud, it may be inferred from the opinions of the courts below there would have been no difference between them. But neither party requested to have that question determined by the jury, and the affidavits which accompanied the attachment have led to a conflict of interpretation, and the appellant now contends that the affidavits show, not only fraud on the part of Midas in the disposition of his property, but also that he had contracted the debt fraudulently. Such was the conclusion of the trial judge, but we agree with the general term in the- opinion that the fact does not there appear. The plaintiff’s own affidavit contains no such averment, but alleges, as the only ground upon which he applies for an attachment, “that the defendant” therein “ has removed and disposed of his property with intent to defraud his creditors.” Tho warrant of attachment contains the same and no other charge. Other affidavits state facts which sustain the charge actually made; but unless it is necessarily, and as matter of law, to be inferred that one who is guilty of fraudulently disposing of property was also guilty of fraud in its acquisition, knowledge of the fact cannot be imputed to a person who has no other means of information. It would be different if it appeared that one buying on credit did at the time of purchase intend to make a fraudulent assignment, or other fraudulent disposition of the goods bought, and a vendor who, with knowledge of that fact, sued for the price, might with some reason be deemed to affirm the contract, and thereafter be held to his election. Such is not this case. Nor did any advantage accrue by reason of the attachment. It was a remedy given for another fraud, and was incident to the action upon contract, and fell with its discontinuance. The judgment appealed from is so directly within our decision in Equitable Co-operative Foundery Co. v. Hersee, 103 N. Y., 25; 3 N. Y. State Rep., 100 (decided October, 1886), that no further discussion is required.

The judgment should be affirmed.

All concur, except Earl, J., not voting.  