Kennedy v. . Thorp

51 N.Y. 174

• Court: New York Court of Appeals
• Decided: September 5, 1872
• Status: Published

Opinion

Gray, C.

Kennedy, the receiver, stands in the place of the Glen Cove Manufacturing Company, at whose instance he was appointed, and for whose benefit he seeks to have the assignment from Bradley to Thorp set aside. Others from whom Bradley fraudulently purchased are not here complaining. Kennedy represents the Glen Cove Manufacturing Company alone, and for anything beyond the fraud committed upon that company he has no right to interfere. (Bostwick v. Menck, 40 N. Y., 383-388.) That company had the right to disaffirm the contract and retake the goods or sue for their wrongful conversion, not only while they were in the hands of Bradley, but the hands of any party who received them with knowledge of the fraud-by which Bradley obtained possession of them, or to affirm it by suing (as they did in this case) for goods sold and delivered. “ The remedies are not concurrent; and the choice between them once being made, the right to follow the other is forever gone.” (Morris v. Rexford, 18 N. Y., 552, 557; Bank of Beloit v. Beale, 34 N. Y., 473, 477.) It is clear, therefore, that the company, after having affirmed the sale by pursuing its remedy upon it to judgment, as a valid contract could not if the goods had remained in Bradley’s possession, have retaken them or maintained an action against ■him for a wrongful conversion,:or against Thorp, who might have received them with full notice of and in furtherance of the fraud. It follows, as a necessary consequence, that Kennedy, who, for all the purposes of this action (no one else complaining), stands in the place of the company, and cannot by the remedy pursued effect a result which, for the same cause, the company could not have effected had the goods or their avails remained in the hands of Bradley; or, in short, if the company could not allege fraud in the sale, Kennedy cannot, and hence the judgment appealed from should be reversed, and new trial granted, costs to abide event.

All concur.

Judgment reversed.