“ ‘ The institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses.’ (Kinney v. Kiernan, 49 N. Y. 164.) ” (McNutt v. Hilkins, 80 Hun, 235, 239.)
“ The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy. It is a well-established rule that the choice of a -fancied remedy that never existed and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed, * * * though the first action proceeds to judgment, does not preclude the plaintiff from thereafter invoking the proper remedy.” .(9 Ruling Case Law, 962, § 9.)
“ The question depends for its answer upon the law of election of remedies. Where two inconsistent remedies, proceeding upon irreconcilable claims of right, are open to a suitor, the choice of one bars the other. But, to have that *820effect, the remedies must be inconsistent.” (Ratchford v. Cayuga County Cold Storage & W. Co., 217 N. Y. 565, 568.)
Woodward, J., concurred.
Award reversed and claim dismissed.