Henry v. Herrington

• Decision Date: 23 October 1908
• Citation: 86 N.E. 29,193 N.Y. 218
• Parties: HENRY v. HERRINGTON
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 218

86 N.E. 29

HENRY

v.HERRINGTON

Court of Appeals of New York.

Oct. 23, 1908.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Anna Henry against Hammond Herrington. Judgment for plaintiff, affirmed by the Appellate Division (120 App. Div. 902,105 N. Y. Supp. 1120), and defendant appeals. Affirmed.

John T. Norton, for appellant.

John B. Holmes, for respondent.

GRAY, J.

This action was brought to recover the balance of the purchase money due to the plaintiff from the defendant upon a sale of personal property. The fact of the sale was put in issue by the answer; but the plaintiff recovered a verdict for the amount claimed by her, and the judgment upon the verdict has been unanimously affirmed by the Appellate Division. This is sufficient to dispose of the controverted facts of the case; but the appellant insists that a serious question of law survives the disposition made below, which has been erroneously determined. That was whether a previous action, brought by the plaintiff against this defendant and other persons, did not bar her from maintaining the present action, upon the ground that there had been an election by her between inconsistent remedies for obtaining relief, to which she must be held. The answer does not plead this defense, as it should have done to make it available (Roberge v. Winne, 144 N. Y. 709, 39 N. E. 631); but it may be that, by the course taken by the parties upon the trial, that objection was waived. I think that it was, and, so assuming, it is quite clear that the plaintiff had not been precluded from maintaining this action upon the ground stated. The facts are established for us by the verdict and judgment below, and they show that the property sold by the plaintiff consisted of certain furniture, fixtures, etc., contained in a hotel, which she and her husband were conducting. He was the lessee of the hotel, and had transferred to her the personal property mentioned, in payment of an indebtedness, and, also, subject to a chattel mortgage given by him to the defendant to secure a loan of $500. Some time thereafter she made a sale of these chattels to the defendant for the sum of $1,700, and executed a bill of sale thereof. One hundred dollars of the price were paid down. The balance, less the amount due upon the chattel mortgage, was to be paid some two weeks later, and the property sold was, by the direction of the defendant, to be left in the hotel. An explanation of the transaction is furnished in the evidence that the defendant expected to sell the property to Dennin, the lessor of the hotel, or to Ormsby, whom Dennin intended to secure as a tenant. Subsequently the plaintiff and her husband were dispossessed, and Ormsby went into possession of the hotel and its contents, having purchased the latter from the defendant. The defendant failed to pay his indebtedness to the plaintiff upon the bill of sale at the time when it matured, and he refused to admit any liability, referring her to Dennin and Ormsby. Believing, or acting upon the advice, that there had been a plan or conspiracy between Dennin, Ormsby, and the defendant to cause her husband to be dispossessed of the hotel, and herself to be cheated out of the property sold to the defendant, and after making futile efforts to get it back, she commenced an action against the three, and demanded damages against them, upon allegations that they had agreed together and had conspired to defraud her of the possession and ownership of her property. Her complaint, however, set forth the sale to this defendant by the bill of sale, his failure to pay, and that she had ‘never yet received either the property, * * * or any money, or a return of the bill of sale.’ When the action came on for trial, it was dismissed upon the pleadings. Thereafter she brought the present action.

If the plaintiff had two remedies...