The defence insists that the complaint states no cause of action, for the reason that there is no averment of the ownership of the property attached by the sheriff, either as the property of the plaintiff, or of his assignor, the defendant in the attachment suit; and also, that from the facts stated in the answer, and admitted at the trial, it appears that an action of claim and delivery for the property, the proceeds of which are claimed in this action, was pending at the time it was commenced and the answer interposed.
The defendant waived the first ground of objection, by omitting to demur to the complaint. The former action is no bar to this. The defendant alleges by his answer, that he re-took the property after it had been taken in the action for its claim and delivery, executing the bond required by law for that purpose.
He interposed no denial to any fact stated in the complaint in this action, from which it appears that the attachment, his only title, was vacated by the court on motion. It was not vacated exparte under section 240 of the Code, but on an hostile motion, involving the right of the plaintiff in the attachment to that remedy. The sheriff had no right to the property seized, from the moment the attachment was vacated. It was his duty, as sheriff, to have returned it to the party from whose possession he had taken it, or to his assignee.
The defendant insists that this action is inconsistent with the former action, and cites in support of his position Morris v.Rexford (18 N.Y.R., 552). The second action in that case was to recover the price of two loads of oats, in affirmance *Page 414 of a contract of sale, while the former action of replevin, which was in disaffirmance of the sale, was pending. The cases are not analogous. There was no sale here, and no affirmance of any contract. Both actions are to be maintained, if at all, on the want of any right in the defendant to retain the property attached, or its proceeds after the sheriff sold it. The recovery in this action will be a good defence to the former action, or to any claim for damages for the refusal to return the goods, inasmuch as the plaintiff elects to take the proceeds of the sale made by the sheriff, and thereby affirms his action in selling, but not his title either to the goods seized, or the price for which they were sold. That defence is available to the defendant by a further answer, since the last continuance, to the extent that the money may be the proceeds of the same goods attached. I think it entirely clear that the plaintiff, as assignee, had a good right of action to recover the possession of the goods, the moment the attachment was vacated, and the sheriff refused to deliver them. Another right of action accrued for the proceeds when the sheriff sold the goods, if the plaintiff elected to take the money. The latter cause of action, for which the plaintiff now sues the defendant, did not exist when the former was commenced. There was no election of remedies at the commencement of the first action. The election made when the present cause of action arose, will be a bar to the former one to the extent that the money, here recovered, may prove to be the proceeds of goods taken in the action of the plaintiff for claim and delivery. This recovery is a new fact, occurring since the former answer of the sheriff in that action, and is an assent or affirmance by the plaintiff, of the conduct of the defendant in detaining and selling the goods, and as such may be pleaded as a defence in the former suit. But these facts do not constitute the former action a defence to the new cause of action.
The judgment should be affirmed with costs.
All for affimrance except LOTT, Ch. C., not sitting.
Judgment affirmed with costs. *Page 415