The complaint alleges that the defendant, for the purpose of inducing the plaintiff to enter into a contract for the sale of certain merchandise, and for the purpose of obtaining said merchandise, represented to the plaintiff that he, the defendant, was then solvent and had on hand sufficient money to pay for the same; that the plaintiff, relying upon the representations and induced thereby, parted with the merchandise to the defendant; that said statements were false and were known by the defendant to be false and that they were made for the purpose of deceiving and defrauding the plaintiff.
Upon the trial the evidence was clearly sufficient to justify the jury in finding in favor of the plaintiff, and we are of the opinion that the fact that the plaintiff had previously secured a judgment against the defendant for the amount of the purchase price did not operate as an election of remedies. The facts in relation to the known insolvency of the defendant did not appear, and they were unknown to the plaintiff until the defendant’s examination in a bankruptcy proceeding which followed the entry of the plaintiff’s judgment in an action brought upon the original contract. Under such circumstances the plaintiff cannot be said to have elected between remedies. He merely pursued the remedy open to him upon his contract, and when he found that that contract was founded in fraud he turned to his remedy for fraudulent representations, offering to cancel the judgment on contract, and this court is committed to the doctrine that this practice is lawful. (Russell v. Wilber, 150 App. Div. 52.)
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.