(dissenting):
It has many times been stated that two essentials are necessary for the application of the doctrine of election, viz., the party must have two remedies open to him and the remedy in question must be inconsistent with the one invoked.
The argument advanced in the prevailing opinion, as I understand it, is that the plaintiff in reality never had two remedies open to him because the first action brought by him was barred by the Statute of Limitations.
It seems to me that the recent case of United States v. Oregon Lumber Co. (260 U. S. 290) is an authority against this proposition. Mr. Justice Sutherland, writing for the court on this point, said:
“ It is further urged that the judgment of the District Court was not upon the merits but upon the plea in bar and that, therefore, when the equity suit was begun, plaintiff in error had no choice of remedies, since the judgment rendered established that in fact there was no remedy in equity at all. The contention, we think, is unsound. * * *
“ Whether based on a plea of the Statute of Limitations or on a failure to prove substantive allegations of fact, therefore, the result of the judgment is the same, viz: that plaintiff has no case; and to hold that .plaintiff may then invoke another and incon*460sistent remedy is not to recognize an exception to the general operation of the doctrine of election of remedies but to deny the doctrine altogether. Here, upon the facts as stated in the bill in equity and later in the action at law, both remedies were available to the plaintiff in error. In electing to sue in equity plaintiff in error proceeded with full knowledge of the facts, but it underestimated the strength of its cause, and if that were sufficient to warrant the bringing of a second and inconsistent action the result would be to confine the defense of election of remedies to cases where the first suit had been won by plaintiff and to deny it in all cases where plaintiff had lost. But the election was determined by the bringing and maintenance of the suit, not by the final disposition of the case by the court.”
The dissenting opinion maintains the contrary view.
The point actually decided in that case was that the plaintiff having elected one of two inconsistent remedies and having prosecuted the first action to judgment in the face of the defense that the action was barred by the Statute of Limitations, and having been defeated upon that ground, could not thereafter invoke the other remedy. The court stated that “ Any decisive action by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies, and one of the most unequivocal of such determinative acts is. the bringing of a suit based upon one or the other of these inconsistent conclusions,” and then went on to say that “ The mere filing of the bill in the first suit, according to many authorities, did not constitute an irrevocable election. But upon ascertaining from their plea that the defendants intended to rely upon the Statute of Limitations, and having knowledge of the facts upon which that plea was founded, and thereafter sustained, the plaintiff in error had fairly presented to it the alternative: (a) of abandoning that suit and beginning an action at law or transferring it to the law side of the court and making the necessary amendments to convert it into an action for damages, as a ‘ mere incident in the progress of the original case,’ [Friederichsen v. Renard, 247 U. S. 210]; or (b) of proceeding with the original case upon the issues as they stood. . The plaintiff in error deliberately chose the latter alternative. If the election was not final before, it became final and irrevocable then.”
These statements are an expression of the view that an election once made by a party may be withdrawn or revoked if not pursued too far, but I think the law on this point is settled to the contrary in the courts of this State. In Merry Realty Co. v. Shamokin & Hollis R. E. Co. (230 N. Y. 316, 325) it is said: “ When one *461takes legal steps to enforce a contract, this is a conclusive election not to rescind. (Conrow v. Little, 115 N. Y. 387.) The converse is also true, so that one who commences an action to rescind has made his election and cannot maintain an action on the contract. (American Woolen Co. v. Samuelsohn, 226 N. Y. 61.) ” (See, also, Whalen v. Stuart, 194 N. Y. 505.)
I, therefore, vote to affirm the judgment and order appealed from.
Judgment and order reversed upon the law, with costs.