*424 By'the Court,
Cardozo, J.The judge at the trial applied to this case the rule of damages which would obtain if the plaintiff had shown a total failure of consideration. This was error. There had not been a total failure of consideration, for the judgment still remained in full force and uncollected, as against the Richardsons, although Blanchard had been released from it. The case, therefore, being relieved of the element of fraud, by the concession of the plaintiff on the trial, presents itself simply as an action for a breach of warranty where the whole subject matter of-the covenant has not failed. In such a case—a partial failure—there being no fraud, the vendee cannot return the property and recover the consideration price, even if (which he did not do here) he had offered to do so. (Muller v. Eno, 14 N. Y. Rep. 597.) And if he cannot do that, it is manifest that he cannot, while retaining part of the subject matter, recover as if there had been a total failure, unless indeed there be proof that what remained "was wholly valueless, which cannot be said to be shown here, because there is no evidence upon the subject, except the issuing and return of execution unsatisfied two years after this suit. There is no presumption, from that fact, that the Richardsons were insolvent for any considerable period previously.
In the cases cited by the plaintiff’s counsel, (16 N. Y. Rep. 340; 21 Barb. 26; 20 N. Y. Rep. 228,) there was a total failure of consideration, and they are therefore inapplicable, except the last mentioned case, which is an authority for the proposition, which I do not doubt, that the expenses of attempting to enforce the judgment against Blanchard, being properly averred in the complaint, could rightfully be allowed in this action as one of the items of damage. But the difficulty is that the judge directed the jury, against the defendant’s exception, to give the plaintiff a verdict, not only for those expenses, but also for the whole purchase money, to which, as we have seen, he was *425not entitled; it not being a case of total failure, and there being in fact, except as to the expenses, no evidence to show to what damages the plaintiff was entitled.
[New York General Term, April 4, 1870.The judgment must be reversed, and a new trial ordered, costs to abide event.
Ingraham, Cardano and Geo. G. Barnard,, Justices.]