Scholl v. Baynes

125 Misc. 114, 210 N.Y.S. 153, 1925 N.Y. Misc. LEXIS 829

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 21, 1925
• Status: Published

Opinions

Per Curiam:

We are of the opinion that the learned trial justice correctly ruled that the judgment obtained by plaintiffs against the defendant’s wife barred recovery against the husband. When the plaintiffs sued the wife, upon the theory that she was the principal, they were in possession of every available fact out of which any implication was drawable. They “ discovered ’’ nothing thereafter. They were as well able then to make an intelligent election as they could have been at any subsequent time. They deliberately pinned themselves down to a contention that the wife contracted on her individual account, and not as the agent of her husband. It is probable that they thought a judgment against the wife would be more easily realized upon than a judgment against the husband; but however that may be, they attempted unsuccessfully to collect under their judgment against the wife, and then, without a single new fact, or new discovery of an old fact, they brought this instant action against the husband. It seems to a majority of this court to be quite plain that under the well-established doctrine of election applicable to such cases as this, the plaintiffs conclusively staked their hopes and rested their chances upon the claim that the wife contracted as principal and not as agent. (Georgi v. Texas Co., 225 N. Y. 410, and cases there cited.)

Judgment affirmed, with costs.

Mullan and Cotillo, JJ., concur; Bijur. J., dissents in opinion,