Bowker Fertilizer Co. v. Cox

• Decision Date: 04 October 1887
• Citation: 13 N.E. 95,106 N.Y. 555
• Parties: BOWKER FERTILIZER CO. v. COX.
• Court: New York Court of Appeals Court of Appeals

106 N.Y. 555

13 N.E. 95

BOWKER FERTILIZER CO.

v.COX.

Court of Appeals of New York.

October 4, 1887.

John L. Hill, for appellant.

Dos Passos Bros., for respondent.

FINCH, J.

The trial court found as a fact that at the date of the commencement of this action, and at the time of its trial, there was pending and undetermined an action on contract for the recovery of the money and the proceeds of the note for the conversion of which this action was sought to be maintained. The case shows that the original action was brought to recover the proceeds of two notes, intrusted to the defendant for sale, and unaccounted for by him, and in reliance upon his statement that both had passed out of his possession. That statement was found at a later date to have been untrue as to one of the notes, which may be called, for convenience, the second note, since it was the one for the conversion of which the second and present action was brought. Judgment was entered in the first action, no answer having been interposed, for the amount of both notes, in April, 1882, and proceedings supplemental to execution very soon after were instituted. Upon the defendant's examination his misstatement as to the second note was developed, and on the twenty-third of May, 1882, the plaintiff, as appears by Bowker's affidavit, knew all the facts as to the second note, and the falsehood of the defendant, and was bound to elect between the existing action on contract as to the second note, and an action ex delicto for its conversion. The plaintiff, however, took but one step. It caused its own judgment to be vacated, in order, as was said, to ascertain the true amount for which it should be entered. It might have been entered at any day thereafter for the amount of both notes, or only for that of the first, but was not entered at all; and the action remained pending, and the default continued, when the present action was begun. The plaintiff had opened the door for the election of a new remedy, but stopped at the threshold, and had not made such election, or abandoned its first action for the note, when the second action was commenced. At that date two actions were pending,-one on contract and one in tort for the same substantial cause. The plaintiff not only retained its hold upon the first action, and the power to enter judgment therein for both notes, but took further and important steps in that action. It procured an order for a commission and a reference to examine the defendant relative to his dealing with the notes, and as late as October in that year summoned the defendant to such examination. After that, the present action was...