The plaintiff’s business is to purchase electric current and retail it to tenants of various loft buildings. Among the buildings to which it furnished current was the building containing the defendant’s loft. The electricity was supplied by the Edison Company to plaintiff by a master meter, and the plaintiff sub-metered the current supplied to the various tenants, each tenant having a separate meter in his loft. Plaintiff had billed the current for which a recovery is here sought to the tenant of another loft and received payment of the bill, but upon discovering the mistake paid the money back to the other tenant. The amount of current and the value thereof for a period of about three years, $538.46, was undisputed.
The defendant’s president testified that when he hired the premises in August, 1914, the loft was dark, and the lights were turned on to show the loft; that nothing was said about electric light, and that no reference whatever was made to electric light in the lease subsequently executed with the landlord of the loft; that no demand was made upon defendant for the price of the electric current until after defendant left the premises in 1919; that in the three leases defendant’s officer had made for lofts no reference was made to electric light, and in the other lofts, under such leases, the defendant paid for the current. It was testified on behalf of plaintiff that the reason no demand was made for the current furnished prior to 1916 was that the plaintiff was not incorporated until December, 1915.
The trial judge rendered judgment for defendant.
*563If the defendant had appropriated the plaintiff’s money instead of the electric current, the defendant would have been hable to plaintiff in assumpsit for money had and received. National Trust Co. v. Gleason, 77 N. Y. 400, 403. That the property used by defendant was electric current, not money, should not change the result. Under the circumstances of this case reason and justice would seem to require the defendant to pay for the property it was not entitled to receive without compensation. 13 C. J. 244.
A prior action was brought by plaintiff against the defendant upon the same facts for conversion. That action was dismissed, and defendant relies upon the prior adjudication as a bar to this action, the claim being that the plaintiff is bound by its election to sue in conversion. But the doctrine of election between inconsistent remedies consists in holding a party to the remedy taken in cases where there is a choice between two remedies which proceed upon opposite and irreconcilable claims of right, and has no application to the facts here where it has been adjudicated that plaintiff has no claim for conversion against the defendant. The fact that plaintiff has failed in a previous action with reference to the same subject-matter does not determine that he has declared his election or has been put to an election. Henry v. Herrington, 193 N. Y. 218; Columbia Trust Co. v. Norske Lloyd Ins. Co., Ltd., 100 Misc. Rep. 550.
Judgment reversed, with $30 costs, and judgment directed in favor of the plaintiff for $538.46, with interest and costs in the court below.
Whitaker, J., dissents; Martin, J., concurs.
Judgment reversed.