
    Theodore Conrow et al, Resp’ts, v. Alexander C. Branscom et al, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    1. Practice—Attachment—Commencement oe action by issuance oe
    ATTACHMENT, AND ITS DISCONTINUANCE WITHOUT ENTRY OE JUDGMENT—
    When no bar to another action.
    The plaintiffs entered into an agreement with the defendant Branscom to manufacture a large quantity of paper for Branscom, to he used for printing a book and as security for the payment, Branscom gave him what proved to be a forged note. Part of the paper to bo furnished under the contract was delivered by Branscom’s direction to defendants Little and Demorest, and the book was to be printed thereon by them. Before any of the paper, except four reams, had been used, this action was brought to recover the paper. Branscom had given to Little and Demorest a note, on account of their printing, which was likewise a forgery. When plaintiffs discovered that their note was a forgery they commenced an action for fraud, and obtained an attachment against the property of Branscom; but learning that the paper had not been printed on, they discontinued the-other action and commenced this. Held, that the issuance of the- attachment in the other action, and its discontinuance without entry of judgment constituted no bar to this second action.
    2. Same—Right to betake pbopebty obtained bt fbaud.
    Independant of the fact that L and D had bestowed no labor on that paper, the fraud perpetrated by Branscom upon the plaintiffs vitiated his transactions with them, and- as their sale to him was induced by such fraud, they had the right after its discovery to retake and reclaim their property from any person, except a transferee in good faith, for a valuable consideration. The defendants L and D were not such transferees.
    
      Henry Parsons, for resp’ts; James B. Marvin, for Little and Demorest, app’lts.
   Dykman, J.

In the month of August, 1884, the plaintiff entered into an agreement with the defendant, Branscom, to manufacture a large quantity of paper for him, to be used for printing a book, and it was to be of such kinds and quantities, and ready for delivery at such times as he might direct, to the amount of $7,000 ; as security for the payment or as payment for the paper, so to be made and delivered, Branscom delivered to the plaintiff a promissory note for $1,000, purporting to be made by the Mississippi Mills, but which was in fact a forgery. It seems that the plaintiff also received another counterfeit note from Branscom, but it has no special influence in this case, further than to swell the amount of their claim. In the month of September, 1884, Branscom made an arrangement with the defendants to print the book, for which the paper of the plaintiff was intended. A portion of the paper to be furnished by the plaintiffs under their "contract with Branscom was by his direction, delivered to the defendants and the book was to be printed thereon. The paper constituting the subject of this action, was ordered from the plaintiffs and manufactured and delivered by them to the defendants, under and in pursuance of their contract with Branscom in the month of October, 1884. The quantity delivered was 150 reams, four of which were printed upon prior to the the commencement of this action, but the remaining 146 reams had not been used and remained in the same condition as when delivered to the defendants, and this action is for the recovery of the possession of the paper or its value. On the 9th day of September, 1884, Branscom gave the defendant a note for $5,000, similar in all respects to the note he delivered to the plaintiffs, and that was1 also a forgery;.the defendant received it on account of their printing and then commenced the work of composition, electrotyping and printing, for which they claim a lien on the 'paper in question. When the plaintiff discovered their note to be a forgery, they commenced an action in the superior court of the city of New York, in which an attachment against the property of Branscom was procured on affidavits charging that their goods and money had been obtained by fraud, and demanding damages to the extent of the money and the value of the goods.

When the plaintiffs ascertained that 146 reams of their paper had not been printed upon nor used, but remained with the defendants as it had been delivered to them, they made a demand for the same and upon refusal to deliver it they commenced this action for its recovery; the action in the superior court having been discontinued. The contention of the plaintiffs now is that the fraud of Branscom violated his contract with them and that they never parted with the title to the paper, and had the right to follow and reclaim and recover the same from any party not a purchaser thereof in good faith and for value. The defence to the action is based on the ground that the plaintiffs elected an inconsistent remedy by bringing their action in the superior court against Branscom for the recovery of the value of the paper with full knowledge of the fraud perpetated by him and that said election constituted an affirmance of the sale and estopped the plaintiffs from following or recovering the paper. The defendants also claim a hen upon the paper in question for the value of the work performed under their contract with Branscom. It is also claimed by the defendants that the plaintiff realized a portion of their claim in the attachment suit, but the claim is scarcely justified. The admission of the counsel was that Branscom gave his check for $2,915, representing a portion of the money attached, which amount was applied on the $5,000 note which the plaintiffs had discounted with the consent of Branscom. So far the defense to this action is based on the doctrine of estoppel arising from the election of a remedy inconsistent with that pursued in this action it cannot succeed. The issuance of the attachment in the action in the superior court and its discontinuance without the entry of judgment constitute no bar to the present action. Foundry Co. v. Hersee, 33 Hun, 169; Wright v. Bitterman, 1 Abb. Pr. [N. S.], 428. Neither can the defendants stand on their hen upon the paper in question. Independent of the fact that they performed no service and bestowed no labor on that paper the fraud perpetrated by Branscom upon the plaintiffs vitiated his transactions with them, and as their sale to him was induced' by such fraud they had the right after its discovery to retake and reclaim their property from any person except a transferee in good faith for a valuable consideration. The defendants were not such transferees. In fact the property never was transferred to them at all, as the title of Branscom was vitiated by his fraud. He had nothing to transfer to the defendants and never did, and never could vest them with any right or title to the property. The hen they claim is against Branscom and must attach if at all to his title or to his property in the goods; as therefore he had no property in the goods and as the title to the property never passed from the plaintiffs, the defendants could acquire no lien upon it by virtue of any arrangement with Branscom; for the simple reason that he had no right in or to the property which could be the subject or foundation of a lien. Under the defendant’s claim' against him they could acquire no right in the property because he possessed none himself. In no view can this action be successfully defended. The judgment should therefore be affirmed with costs.

Barnard, P. J., concurs; Cullen, J. dissents.  