In view of the conclusion arrived at by the general term upon the previous appeal in this case, the same questions being involved upon this appeal, the judgment of the court below should be affirmed, with costs. After the reversal by the general term of the judgment heretofore entered upon the first trial, when the case came up at the circuit for a retrial, the pleadings were the same as they were before, and presented the same causes of action and defenses. In the complaint were alleged two inconsistent causes of action, and at the conclusion of the evidence the plaintiff was called upon to elect upon which cause of action he claimed to recover. The court was justified in compelling this election, because, as has already been said, the two causes of action were inconsistent, and a recovery must be had upon either one or the other, and could not be claimed upon both.
The plaintiff having made his election as to which of these causes of action he claims a recovery, no claim upon this appeal could possibly be advanced upon the other, because such cause of action was by the election necessarily eliminated from the record. The general term having already decided that no recovery could be had upon the cause of action selected by the plaintiff, the necessary consequence was that the court was justified in directing the verdict which it did, and it was probably for the purpose of reviewing the previous decision of the general term that this course was adopted by the counsel for the plaintiff. The same questions being involved on this appeal as were involved when the case was before the court before, the same conclusion should be arrived at, and the judgment affirmed, with costs, as has already been stated.
Brady, J., concurs.