Scheuer v. Martin

250 A.D. 46, 293 N.Y.S. 558, 1937 N.Y. App. Div. LEXIS 8263

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1937
• Status: Published

Opinion

Per Curiam.

We conclude that the learned trial court was correct in dismissing the complaint at the end of the plaintiff’s case. But in view of plaintiff’s election at trial, the court erred in inserting in the judgment dismissing the complaint the words “ without prejudice to the plaintiff to commence an action for breach of contract.”

At the time the court required the plaintiff to elect between inconsistent causes of actions and remedies, the plaintiff was at liberty to elect either to proceed to rescind the contract or to sue for the breach of the contract. When plaintiff made his election all the facts of defendants’ conduct were known to the plaintiff.

A party having once made an election is conclusively barred from proceeding upon the cause of action abandoned by the election. Electio semel facta et placitum testatum non patitur regressum.

The judgment should be modified by striking from it the words “ without prejudice to the plaintiff to commence an action for breach of contract,” and as so modified affirmed, with costs to the defendants. The order so far as appealed from should be reversed.

Present — Martin, P. J,, McAvoy, O’Malley, Townley and Cohn, JJ.

Judgment unanimously modified by striking from it the words “ without prejudice to the plaintiff to commence an action for breach of contract,” and as so modified affirmed, with costs to the defendants. Order so far as appealed from unanimously reversed.