
    William Rockefeller and John P. Kellas, Plaintiffs, v. The St. Regis Paper Company, Defendant. (Action No. 1.) William Rockefeller and John P. Kellas, Plaintiffs, v. The St. Regis Paper Company, Defendant. (Action No. 2.)
    (Supreme Court, St. Lawrence Special Term,
    February, 1903.)
    Contract.— Belief from a mistake made in splitting an entire demand.
    Where a dispute has arisen, under a contract permitting a corporation to cut timber from lands, as to the amount cut up to Oct. 1, and the owners of the lands sue the corporation, on Dec. 22, for the value of so much timber as they allege had been cut up to Oct. 1, and recover judgment therefor withoiit a contest, the court will, on their motion, vacate the judgment and consolidate a second action, brought by them, after Dec. 22, for the value of the timber cut by the corporation on the same lands in Oct. and Nov., to the end that the judgment in the first action may not be a bar to the second action — it appearing that the plaintiffs supposed, when they brought the first action, on Dec. 22, at a time when payment was also due for the timber cut in Oct. and Nov., that there was no dispute as to the amount of that timber and that the corporation would pay for it without any controversy.
    Motion to vacate and set aside the judgment in action Ho. 1 and to consolidate the two actions into action Ho. 1.
    John W. Ge'newav .(Thomas Cantwell, of counsel), fox plaintiffs.
    Henry Purcell and Elon R. Brown, for defendant.
   Kellogg, J. M., J.

This is a motion to vacate and set aside the judgment in action Ho. 1 and consolidate the two actions into action Ho. 1. Action Ho. 1 was brought to recover of the defendant the amount due the plaintiffs upon a contract for timber cut and removed from their land in the amount of $5,030, being for the cuttings and the payments due to October 1, 1902. The action was brought December 22, 1902, after a dispute had arisen as to the amount of cutting and the amount due plaintiffs to October 1. The defendant appeared in said action December 26, 1902, and offered judgment for $3,768.55, December 28. Ho answer being interposed judgment was entered for the plaintiffs, January 15, 1903, for $5,115.22, which judgment was paid to the sheriff January 19, 1903, and the execution duly returned satisfied. Action Ho. 2 was begun January 9, 1903, to recover for the cutting during the months of October and Hovember, being the payments due on said contract up to December 1, 1902. On the 27th day of January, 1903, the defendant answered in action Ho. 2, setting up the judgment in action Ho. 1 and payment of the execution in bar of the plaintiffs’ claim. It is apparent that both actions are brought to recover the moneys due upon the same written instrument, and all the moneys sought to be recovered in actions Ho. 1 and Ho. 2 were in fact due and payable when action Ho. 1 was brought. It would seem that action Ho. 1, with the recovery therein and execution satisfied, would be a complete bar to action Ho. 2. Jex v. Jacob, 19 Hun, 105; O’Beirne v. Lloyd, 43 N. Y. 248; Lorillard v. Clyde, 122 id. 41, 45.

While the moving papers do not concede that fact, and assume that this motion is made for the purpose of preventing delay, there being no other defense to the recovery sought in action Ho. 2, the real basis of the motion is the assumption that the proceedings in action Ho. 1 is a defense in the second action. The defendant contends that there is no mistake or fraud, or inadvertence, which justify this motion; that one of the plaintiffs is a prominent attorney, learned in the law, and that he ■ did, in the splitting of this demand and the bringing of the two actions, just what he intended to do, and that therefore no relief can or should be granted him. , The only real excuse offered by the plaintiffs for the situation is that there was an honest dispute as to the cutting and the amount due up to October 1, and that said first action was brought to settle that dispute, but that up to that time no discussion had been raised, or in fact ever was raised, as to the cutting sought to be recovered for in action Ho. 2, or the amount due therefor, but that, after the first action was begun, correspondence began as to the October and Hovember cutting and the defendant simply delayed paying, and finally upon January 9 this second action was brought; and the October and Hovember cuttings were not embraced in the first action, as plaintiffs assumed they would be paid for .without controversy and that action was unnecessary.

This is not a case where a party elects between remedies which are in themselves inconsistent, so that, in choosing one remedy, • he voluntarily abandons the other, and where such election once made is conclusive upon him forever, as, for instance, where a sale of goods is induced by fraud, and plaintiff, with the knowledge of the facts, elects to sue for the contract price and thereby affirmatively waives the right to retake the goods, or where a party whose goods are wrongfully converted waives the tort and sues for the purchase price upon an implied contract of sale. McNutt v. Hilkins, 80 Hun, 285. But the defense in action Ho. 2 is that the plaintiff has split an entire demand, and that but one action can be brought upon the same cause of action. While that is a complete legal defense while the judgment stands, it is still in the province of a court of equity to relieve the party who has made such a mistake rather than forfeit the balance of his claim. And this motion is a proper method for such relief.

In Jex v. Jacob, supra, the plaintiff demurred to an answer setting up a prior judgment under facts somewhat analogous to those at bar, and the demurrer was overruled, but without prejudice to the right to apply at Special Term to vacate the former judgment, recognizing that as the only and proper remedy for the plaintiff to pursue. It is true that upon that motion, made at the Special Term of the Hew York Common Pleas, 7 Abb. H. C. 460, the motion was denied and the court seemed to think that after a party had made a choice he should not be allowed to revoke it. But the fact remains that that decision was really placed upon the ground that more than a year had elapsed before the motion was made, and it was therefore too late under section 1882 of the Code, and also upon the ground that by plaintiff’s delay and other proceedings in the action after the defense was interposed, the defendant had altered his position in the matter and that furnished a reason for not granting the motion. ()We do not consider that case, in the Cbmmon Pleas, as any authority against the plaintiffs’ position in this case. Hatch v. Central National Bank, 78 N. Y. 487; Shaw v. Broadbent, 129 id. 114, 124.

Here, unless such relief is granted to the plaintiffs, they lose $26,251.21, which, so far as appears before the court, is justly due them, and should be paid by the defendant, aside from this technical objection. It would therefore seem that the power of this court should be exercised to relieve the plaintiffs from their mistake. An order will therefore enter vacating and setting aside the judgment and execution in action Ho. 1 upon the return of the money paid by the defendant-, with interest thereon, or in case of its refusal to accept the same, that it be paid into court for its benefit, and consolidating the said two actions into action Ho. 1, and authorizing an amended pleading to be served, the plaintiffs to pay ten dollars costs of this motion and fifty dollars costs and allowance in said action.

Ordered accordingly.  