Misc.] Supreme Court, Appellate Term, February, 1899. Per Curiam. This is an action brought against the sureties on an attachment bond, and the damages laid embrace the amount expended for counsel fees on the vacation of the attachment and also the value of the property on which the levy was made. The justice awarded judgment for the plaintiff for the full amount claimed. The plaintiff's assignor was allowed to testify that the goods levied upon cost the sum of $500, and it was upon this evidence alone that the justice assessed the damages. This, under the circumstances, was not competent proof of value. While cost is in some cases some evidence of value, it may not be resorted to where the property is of such a character as to possess a market value, as was the case here. The goods in question should have been properly described, and proof given with respect to such value. The court below also erred in refusing to allow the defendant to show that the plaintiff was not the owner of the property levied upon. The question put to the plaintiff's assignor on crossexamination as to whether he claimed to be such owner was excluded under objection, and an exception to this ruling of the justice was taken. It is obvious that the defendant was entitled to pursue such an inquiry, and the refusal to permit it was reversible error. The defendant-appellant contends that the value of the property is not recoverable under the bond as damage resulting from the attachment and levy made thereunder. The case, however, was so loosely tried below, and the record is so deficient that in view of the fact that there must be a new trial in any event, we prefer to leave this question an open one for the determination of the trial court upon a fuller presentation of the facts of the case. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. Present: BEEKMAN, P. J., GILDERSLEEVE and GIEGERICH, JJ. Judgment reversed and new trial ordered, with costs to appellant to abide event. Supreme Court, Appellate Term, February, 1899. [Vol. 26. JOSEPH SEEMAN et al., Appellants, v. GABRIEL BANDLER, Respondent. (Supreme Court, Appellate Term, February, 1899.) Election of remedies Partial rescission Abandonment of goods replevied in a prior action. Where vendors bring an action of replevin against the transferee of their alleged fraudulent vendee in order to recover a part of the goods sold, they cannot subsequently maintain, against the fraudulent vendee himself, an action for the price of the remainder of the goods, as they are concluded by their election to rescind in replevin. The vendors are not assisted in maintaining their action for the price by the fact that in the action of replevin they served a notice, under section 1719 of the Code of Civil Procedure, abandoning their claim to the goods replevied. Seeman v. Bandler, 25 Misc. Rep. 328, affirmed. THIS is an appeal by the plaintiffs from an order of the General Term of the City Court, and the judgment entered thereon reversing a judgment in favor of the plaintiffs upon the verdict of a jury, and dismissing plaintiff's complaint upon the merits, with costs. Epstein Bros. (Maurice S. Hyman, of counsel), for appellants. Wasserman & Jacobus, for respondent. FREEDMAN, P. J. The question presented by the appeal is whether the plaintiffs can maintain the action in its present form. The General Term of the City Court held that the plaintiffs cannot do so. The action was brought to recover the value of certain goods alleged to have been sold and delivered by the plaintiffs to the defendant at his request, and for which it was alleged the defendant promised to pay a reasonable value. The defendant by his answer interposed a general denial, and as a separate and distinct defense, the institution by the plaintiffs of a certain replevin action against one Herman Wiener, which, it was claimed, operated as a rescission of the contract sued upon. Misc.] Supreme Court, Appellate Term, February, 1899. Upon the trial it was conceded that the plaintiffs, prior to the commencement of the present action, had brought an action in replevin against said Wiener as the assignee and transferee of the defendant in this action, that the goods sued for in this action form. a portion of the goods for which the replevin action was brought and were included in the replevin action, that the last-mentioned action was brought on the ground of fraud on the part of the purchaser, that in it the sheriff replevined and took for the benefit of the plaintiffs all the goods sold by the plaintiffs with the exception of those for which this action was brought, and that the replevin action is still pending and undetermined. It thus appears that the plaintiffs elected to rescind the sale and to treat it as a nullity, and that they instituted legal proceedings to recover the possession of the goods sold on the theory, that on account of the fraud of the purchaser, they did not part with their title to the goods, and, therefore, were entitled to reclaim the goods themselves. The present action proceeds upon the theory that the sale was valid, that under it the plaintiffs parted with both possession and title to the purchaser and that for that reason the purchaser may be held to his bargain. In other words, they proceed in affirmance of the contract. The two actions are utterly inconsistent. The plaintiffs, upon discovery of the fraud, had a choice of remedies—an action for the price according to the terms of the sale and in affirmance of the sale, or replevin in avoidance of the sale, and, consequently, its rescission. They elected to sue in replevin and they stand concluded by their election, for the law is well settled that a party cannot do both. Nor can a party affirm in part and rescind in part. Am. & Eng. Ency. of Law, vol. 21, p. 19, and cases cited. By commencing their action of replevin the plaintiffs made their final election. Terry v. Munger, 121 N. Y. 161. The precise question now under consideration has been determined in Wile v. Brownstein, 35 Hun, 68; and Moller v. Tuska, 87 N. Y. 167, and under these decisions the pendency of the replevin action is a good and conclusive defense to the present action. The claim of the plaintiffs that a distinction should be made in their favor because their first action was brought against the assignee or transferee of the fraudulent purchaser, and the second action against the purchaser himself, is untenable under the Supreme Court, Appellate Term, February, 1899. [Vol. 26. doctrine of Fowler v. Bowery Savings Bank, 113 N. Y. 450; and Terry v. Munger, 121 id. 161. The case of Powers v. Benedict, 88 N. Y. 605, cannot help the plaintiffs as appears from the explanation of said case in Wile v. Brownstein, 35 Hun, 68 (p. 71), and also from the fact that the court concluded (p. 610), that the plaintiffs had not rescinded in part only, but altogether. The case of City National Bank v. National Park Bank, 32 Hun, 108, has no application to the real question in the case at bar. Nor can the plaintiffs maintain the present action by reason of the fact that in the replevin suit they served a notice as authorized by section 1719 of the Code, abandoning their claim to the chattels so replevied. In Wile v. Brownstein, 35 Hun, 68, it was held that that section furnished 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 case of Cohn v. Goldman, 43 N. Y. Super Ct. 436, does not avail the plaintiffs. Upon examination it will be found that both actions therein referred to were brought in affirmance of the contract of sale. Moreover the case was reversed in 76 N. Y. 284, though on another point. The determination made by the General Term of the City Court was right and the judgment and order appealed from should be affirmed, with costs. MACLEAN and LEVENTRITT, JJ., concur. JOSEPH C. HEIMERDINGER, Respondent, v. THE LEHIGH VALLEY RAILROAD CO., Appellant. (Supreme Court, Appellate Term, February, 1899.) 1. Witness - Cross-examination of a party - Credibility. Where a recovery on an advertising contract is resisted upon the ground that the plaintiff falsely stated that the book, in which the advertisement was to appear, would be issued under the authority of a city board of docks, it is proper cross-examination to ask the plaintiff how many subscribers he had procured, how many had withdrawn, and how many of them he had sued on similar contracts, as such questions go to the credibility of the plaintiff, an interested party. Misc.] Supreme Court, Appellate Term, February, 1899. 2. Evidence board. Unauthorized letter of the secretary of a municipal A letter written and signed by the secretary of a dock board, on official paper, and purporting to authorize a person to publish an official review of the department, is no evidence that the dock board authorized the publication. 3. Evidence be proved. The existence of a resolution of a municipal board may The secretary of the dock board may properly be asked on crossexamination, "Was there any resolution of the board of docks authorizing you to write Mr. Heimerdinger, the plaintiff, such a letter as you did?" as the question does not call for the contents of the resolution but merely for the fact of its existence. Heimerdinger v. Lehigh Valley R. R. Co., 25 Misc. Rep. 425, reversed. APPEAL from a judgment entered upon an order of the General Term of the City Court affirming a judgment entered upon the verdict of a jury and also affirming an order denying defendant's motion for a new trial under section 999 of the Code of Civil Procedure. James J. Macklin (Franklin Bien, of counsel), for appellant. David M. Neuberger, for respondent. FREEDMAN, P. J. The action was brought to recover damages for the breach of a written advertising contract. The answer contains a general denial and then sets up that the said advertising contract was procured through false and fraudulent representations, that the book or publication in which the advertisement was to be printed was about to be issued under the authority and by the members of the department of docks of the city of New York, that the defendant relied upon said representations in entering into said contract, and that the representations were false and fraudulent. At the trial the issues thus joined were sharply litigated. The testimony was conflicting, but sufficient to carry the case to the jury, and the case appears to have been submitted to the jury under a charge to which no exception was taken. The jury found for the plaintiff, and the verdict having been sustained by the General Term of the City Court upon the facts as well as the law, the judgment appealed from will not be disturbed except for errors of law. |