I believe that the decisive issues were neither presented to the court nor decided, and hence a new trial is required.
The basic facts are these: Plaintiff bought a machine from defendant. Plaintiff claims that the machine was incapable of doing the work plaintiff bought it for and which defendant represented it could do. Plaintiff brought an action to rescind. An agreement of settlement was entered into. By its terms defendant agreed to deposit $13,000 in escrow to be paid to plaintiff on return of the machine in the same condition as when delivered to plaintiff. The deposit was made and plaintiff tendered the machine. Defendant claimed that the machine was not in the condition agreed upon and directed the escrowee *271to withhold payment. It is not clear whether defendant rejected the machine or merely refused to take possession pending its being put in condition by plaintiff or determination of an allowance for the damage suffered by the machine.
Plaintiff thereupon instituted this suit. The supplemental complaint contains three causes of action. The first two duplicate the complaint in the original action and the third seeks recovery of the amount deposited in escrow and is based on the settlement agreement. Defendant pleaded the settlement agreement and counterclaims.
In the situation presented plaintiff’s rights are clear. If defendant either breached or repudiated the settlement plaintiff had the option of proceeding on the original claim or to enforce the settlement (General Obligations Law, § 15-501). But he could not do both. And the practice is that when called upon to elect, he must do so (Elliott v. Prockter Prods., 282 App. Div. 758). Here plaintiff persistently claimed the right to proceed on both claims, though not claiming he could recover on both. Obviously this is not a situation where a plaintiff seeks recovery on different theories of liability, such as nuisance and negligence or fraud and breach of warranty. Here he is seeking entirely different forms of relief dependent on different proofs and with different consequences. An election at the earliest possible moment is essential to the orderly presentation of both claim and defense.
If the defendant neither breached nor repudiated the settlement, plaintiff may not proceed on the original claim but is relegated to his rights under the settlement (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435). Obviously plaintiff, assuming that he was the one in default under the settlement agreement, could not at his pleasure elect to ignore it and thereby profit from his wrong (Pfleiderer v. De Veaux, 3 Misc 2d 252 [Christ, J.]). It therefore became important to determine under defendant’s pleading whether or not defendant did in fact either breach or repudiate the agreement. That issue was never decided and in fact was never presented due to defendant’s insistence that the failure to reply admitted the facts pleaded in the counterclaim. The contention was unsound. The alleged counterclaim was in fact an affirmative defense, but the contention served to obscure the issues.
It may well be that the result arrived at represents substantial justice, as it certainly represents a conscientious effort by the court to reach a proper conclusion on issues ill conceived by the parties. However, a clean and orderly disposition that *272does not offend against professional standards requires a new trial.
Stevens, J. P., Eager, Tilzer and McNally, JJ., concur in Per Curiam opinion; Steuer, J., dissents in opinion.
Judgment affirmed, without costs or disbursements.