Avila v. Manhattan Chemical Co.

BaRNAed, P. J.: It is true that a. party may have as many separate actions for a trespass as there are trespasses and receive one satisfaction. The title to the property remained in the owner until satisfaction, and that transferred the title by operation of law. The present case does not fall within this principle. In February, 1881, the plaintiff’s assignor owned the property in question. It was then in the possession of Lockwood & McClintock, brokers. These brokers fraudulently sold the property to the defendant, and in September of the same year the sale was judicially declared fraudulent and [3] void and that the plaintiff’s assignor had the right to the possession thereof. In November following this 'judgment of September, 1881, the plaintiff brought an action against the brokers for that “the defendants (the brokers).as agents and brokers of the Brooklyn White Lead Company, a domestic corporation, in the course of their employment and in their fiduciary capacity as such agents and brokers received and had to the use of the said Brooklyn White Lead Company, seventy-six hundred dollars, which money belonged and was due to said company.” The plaintiff thus adopted the illegal sale, which he had the right to do, and recovered a judgment against the brokers for the proceeds of the sale.. The plaintiff, as the assignor of the white lead, company, could either adopt the sale or reclaim the goods. The authorities seem to hold that he cannot do both. In Bank of Beloit v. Beale (34 N. Y., 473) it was held that after an action against one Sherwood, for moneys fraudulently misappropriated, it was too late to follow the property. That case is not decisive, because an execution was issued against Sherwood’s person, and he was arrested. Under the cases this was a satisfaction. In Morris v. Rexford (18 N. Y., 552) it was held that when a fraudulent sale had been disaffirmed it barred an action for the price. In Rodermund v. Clark (46 N. Y., 354) it .was held that any decisive act of the party, with knowledge of his rights, determines his election; to the same effect is held by Taussig v. Hart (49 N. Y., 301). In Fields v. Bland (81 N. Y., 239) there was an execution issued and collected in part, but no particular stress is laid, upon that fact. The judgment against a wrong-doer for “goods sold and delivered” was held conclusive against the plaintiff in his action against a joint wrong-doer. In the present case the action against the brokers was begun after full knowledge of all the facts. The sale to the defendant was ratified by plaintiff and he recovered a judgment against them for money received as the brokers of his assignor. It is too late to pursue the property. The two remedies are entirely inconsistent. The judgment should therefore be reversed and a new trial granted, costs to abide event. • Peatt, J., concurred; DyehaN, J., not sitting. Judgment reversed and new trial granted, costs to abide event.