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 in March, 1882, to recover the proceeds of two notes entrusted 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 *Page 558 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 23d 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 commenced, and the condition and possible effect of the first action was never changed, till, on the 23d of May, 1883, eight days before the trial of this action, and after notice of trial had been served, the complaint in the first action was amended so as to limit it to the first note alone. That was the only decisive act of the plaintiff, but came too late. If it could have effect as an abandonment *Page 559 of the action upon the second note and as significant of a final election after so long a delay and after the pendency of the first action had been pleaded as an answer to the second, it certainly would be very unreasonable to allow it such or any effect whatever when delayed until after the second action was noticed for trial. (Swart v. Borst, 17 How. 69.) Possibly the defendant's plea of a prior action pending could only be defeated by an order of discontinuance. (Averill v. Paterson, 10 N.Y. 500. ) But in any event the amendment of the complaint, if available at all, should have been made promptly after the need of a choice of remedies had become apparent. The trial court was, therefore, justified in ordering judgment for defendant.
But that judgment was also put upon a ground which we do not approve, and which gives it an effect to which the defendant is not entitled. When the motion to vacate the first judgment was made by the plaintiff, the defendant was imprisoned by virtue of an order of arrest issued in that action. No execution against his person had yet been issued or served. The effect of vacating the judgment was to postpone, indefinitely, such execution and leave the defendant under arrest for a prolonged and indefinite period. To obviate that injustice, and keep the imprisonment within what would have been its normal duration, the court required the plaintiff to stipulate, as a condition of vacating the judgment, that the defendant should "be permitted to make application to the court for his discharge at the time when hewould have been entitled to make such application if said judgment had not been vacated, and if an execution against his body had been duly issued thereon." This condition, which the plaintiff accepted, did not convert the order of arrest into a body execution. Its purpose and effect was to permit a motion for a discharge at a specified time, and to prevent an answer to the motion at such date that no body execution had been served; but the resultant discharge was from arrest under the order and that alone, and could not have the effect to discharge and satisfy an indefinite cause of action which had not, as yet, even ripened into *Page 560 judgment. Such a result was not contemplated by the conditions, or within its reasonable scope, and should not be argued out from a stipulation silent upon the subject, and aimed to accomplish a single and specified purpose. We, therefore, affirm the judgment upon the first ground stated, and that only.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.