This action was originally instituted on the theory of a rescission for breach of warranty of the purchase of a horizontal angle bending roll machine, and the complaint demanded a recovery back of the purchase price and a recovery of plaintiff’s expenses. Although the parties agreed in writing to settle the action with a return of the machine to defendant, the action was not discontinued. The defendant refused to accept the returned machine, claiming that it had been damaged.
The parties concede that the settlement agreement constituted an executory accord and that, upon a default by the defendant in the performance of the terms thereof, the plaintiff was entitled to either continue with the prosecution of its original claim or assert a cause of action for breach of the settlement agreement. (See General Obligations Law, § 15-501.) As a matter of substantive law, plaintiff was required to make an election with respect to the two causes of action and, generally, the alternatives are not to be presented in a pleading. (Elliott v. Prockter Prods., 282 App. Div. 761, app. dsmd. 306 N. Y. 629.) It is the rule, however, under the CPLB, that inconsistent and hypothetical causes of action may be pleaded subject to such rights as a defendant may have to object to an improper joinder or to move for severance. (See 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3014.11, 3014.12; Grant Co. v. Uneeda Doll Co., 19 A D 2d 361, affd. 15 N Y 2d 571.) Here, the defendant did not object to the pleading of the inconsistent causes.
The defendant did not oppose a motion by plaintiff for leave to serve a supplemental complaint setting forth the inconsistent causes, and, accepting the supplemental complaint, pleaded thereto on the merits. By its answer, defendant denied the material allegations of the complaint and set up the settlement as a basis of defenses and counterclaims, alleging breach of the settlement agreement by plaintiff.
Without objection by the defendant, the issues as presented by the pleadings, including the right of plaintiff to recover upon its original claim and the effect thereon of the settlement agreement, came on for trial before the court without a jury. Due to inadvertence, the plaintiff had failed to reply to defend*270ant’s counterclaims but the Trial Judge ruled that he would try the matter on the merits. Although the matter of election between the inconsistent causes was discussed on the trial and particularly in connection with a motion to dismiss at the close of plaintiff’s evidence, the defendant, under the special circumstances here, must be deemed to have waived whatever right it may have had before the trial to compel the plaintiff to make an election between the alleged inconsistent causes.
In response to defendant’s motion to dismiss at the close of plaintiff’s case, the Trial Judge stated in effect that he must determine the question of who had breached the settlement agreement and asked counsel, “ do I not have to hear the evidence on both sides to resolve the basic question? ” Counsel for the defendant agreed. The trial proceeded, all issues between the parties were duly tried, and the plaintiff’s right to recover upon the original claim was fully litigated upon the merits. The defendant at no time contended that it was surprised or unfairly deprived of an opportunity to produce relevant proofs with respect to said claim. The court reserved decision and plaintiff, in its brief on submission of the case, demanded the right to recover upon the original cause of action.
The trial court concluded that the defendant’s defenses and counterclaims based upon the settlement agreement should be dismissed, finding in effect that the plaintiff had not breached the same. Judgment was awarded to plaintiff upon its original claim to recover back the purchase price and expenses. The decision of the trial court for the plaintiff is in accordance with the pleadings and is fully supported by the evidence. The judgment entered thereon should be affirmed, without costs and disbursements.