Assuming that the plaintiffs were induced to sell their goods to the defendant by his fraudulent representations, they had a single cause of action. They were at liberty to elect, to affirm the contract, waive the tort and recover the contract-price, or they were at liberty to disaffirm the contract, sue in tort, recover such of the goods as could be replevied, and damages for the conversion of such as could not be replevied. They elected to disaffirm the contract, brought an action for the conversion, claimed a return of the goods or their value in case a return could not be had.
The remedies which the plaintiffs were entitled to adopt are clearly stated by Daneorth, J., in Moller v. Tuska (87 N. Y., 169): “ The plaintiffs, upon discovery of the. fraud, had a choice of remedies ■ — ■ an action against Talk Brothers (the fraudulent purchasers), for the price according to the terms of sale; or replevin of the property, upon the ground that by reason of the fraud the contract of sale was avoided. * * * The plaintiffs manifested their election by bringing this action. (Replevin against a vendee of the fraudulent purchaser.) After that, the other way of redress was not open to them; for, according to Comyn (Dig. Elect. C., § 2), if a man once determines his election it shall be determined forever. Hence, they could never successfully assert a claim against the purchaser under the contract, for the election to dis-affirm it had been manifested, and to revoke it was not in their power.” (Wright v. Pierce, 4 Hun, 351; Id., 6 T. & C., 651; Bowen v. Mandeville, 95 N. Y., 237; Morris v. Rexford, 18 id., 552.) In the case last cited, the defendant obtained possession of goods without making payment as agreed. The plaintiff brought *71replevin and recovered part of the goods. He then brought an action on contract to recover the value of the remainder of the goods. He recovered a verdict at circuit, which was affirmed at General Term, but was reversed in the Court of Appeals on the ground that the plaintiff having elected to disaffirm the contract, he could not recover in the action unless he should be defeated in the replevin action, which would show that he had no right of election. It was distinctly held that the two causes of action were inconsistent, and that both could not be maintained*
No authority has been cited authorizing a plaintiff, after electing to sue in tort for a whole cause of action, and while -the action in tort is pending, to divide his cause of action into two parts and maintain a second action on contract for the recovery of the other part, continuing at the same time his action in tort. ,
Powers v. Benedict (88 N. Y., 605) does not sustain the plaintiff’s position. In that case a sheriff had taken on execution from a fraudulent vendee part of the goods purchased by him from the plaintiff, who brought replevin against the sheriff. Afterwards the fraudulent vendee was adjudged a bankrupt upon the plaintiff’s petition. This was held not a defense in favor of the sheriff. Powers never had a cause of action against the sheriff for the entire demand, only for the goods he had taken. The demand wa!s not split. The plaintiff had two independent causes of action, one against the fraudulent vendee and the other against the sheriff. In Hersey v. Benedict (15 Hun, 282), a sheriff was sued in replevin to recover part of the goods purchased by the fraudulent vendee, and it was held that a subsequent action against the fraudulent vendee in tort, for the fraud, was not a defense in favor of the sheriff. Here, again, were two independent causes of action against different persons, and both actions were in disaffirmance of the contract, not one in affirmance, and the other in disaffirmance of the contract, and not against the same defendant as in the case at bar.
In respect to the cases cited, in which it was claimed that proving a debt in bankruptcy amounted to an election of a remedy inconsistent with an action of replevin, it may be said that the bankrupt. act provided: “All demands against the bankrupt for, or on account of, any goods or chattels wrongfully taken, converted or withheld by him, may be proved and allowed as debts to the *72amount of the value of the amount of the property so taken or withheld, with interest.” '(Bank Act, § 19 ; U. S. Rev. Stat., § 5067.) By proving such a claim in bankruptcy, the contract is not affirmed, or the tort waived. Every constituent of the tort may be properly stated in the proof of debt.
In an action for the recovery of chattels where part have been replevied, the plaintiff may, by notice served before or with his notice of trial, abandon his claim to the chattels not replevied. (Sec. 1719, Code Civ. Pro.) The replevin action is not, as it might have been, an action for the recovery of chattels only, but it is for the recovery of such of the chattels as can be found and for damages for the conversion of those not found. (Code Civ. Pro., § 484, subd. 4.) Section 1719 furnishes no authority for abandoning a part of a cause of action embraced in a suit for conversion, waiving the tort as to that part and suing on that part in contract.
The judgment in each of the cases is reversed and a new trial granted, with costs to abide the event.
BoaedMAN, J., concurred. HaRdiN, P. J.:I do not agree with the result reached by brother Follett. Section 1719'of the Code of Civil Procedure allows the action of replevin to proceed for the chattels found and taken, and those “ not replevied ” are not affected by the action. The plaintiff may have his action proceed “ as if the action had been brought to recover only the chattels which have been replevied.” In a subsequent action for trover, or upon the case for damages, the party may recover without affirming the original contract. The conversion of part of the goods gives a right to recover their value in trover, or to waive the tort and recover their value. The principal is stated by Taloott, P. J., in Hersey v. Benedict (15 Hun, 288), and supported by cases there cited. That case is an authority binding upon us.. It was affirmed by the Court of Appeals. In the case in hand the recovery need not rest upon the original contract." Indeed that was repudi- ' ated, and the party had a right to capture what goods were not disposed of and to have damages for those converted. Suppose part had been turned out by a fraudulent vendee to a creditor upon an antecedent debt, can there be any doubt that the vendor on discovery *73of the fraud could retake from the vendee those remaining on hand, and from the transferee who had not acquired any title for value those thus held by the transferee. So, too, upon demand of the goods from the fraudulent vendee trover would lie, and from the party taking from the vendee, but without value and good faith, the goods might be demanded and trover maintained. This could be done without averring the fraud in the complaint. (Claflin v. Taussig, 1 Hun, 223.)
I think the judgments should be affirmed.
Judgment, reversed, and new trial ordered, costs to abide the event.