Opinion
December 31, 1914.
Isaac N. Miller [ Jacob Landy with him on the brief], for the appellant.
Joseph Rowan [ Franklyn M. Silverstein with him on the brief], for the respondents.
A verdict having been directed, the plaintiff on this review is entitled to the most favorable view of the evidence. If the defendants came into possession of the property pursuant to the judgment in the foreclosure action they were rightfully in possession, and a demand was essential to make their detention wrongful and authorize an action for conversion. It is manifest that there could be no lawful demand until the defendants came into possession of the property. Having no title, or possession, or right to possession until payment of the purchase price and the receipt of the referee's deed, they could not have surrendered possession of the property to the plaintiff. The verdict, therefore, must be permitted to stand upon this, if upon no other ground.
We are also of opinion that the plaintiff, by electing, pursuant to the provisions of the conditional bill of sale, to declare the entire balance due on default in paying the check for the first payment and by bringing action thereon alleging such election, and by subsequently filing the mechanic's lien, made an irrevocable election to have title pass to the vendee and to depend upon its remedies by action and on its mechanic's lien to recover the purchase price. ( Kirk v. Crystal, 118 App. Div. 32. ) When all the provisions of the contract quoted are considered it is quite plain, I think, that the word "or" in the clause of the contract relating to the plaintiff's election of remedies was used strictly in a disjunctive sense, and that it was intended that the vendor should, in the event therein stated, elect whether to declare the entire amount due and proceed to collect the same, or to reclaim the property. The provisions regulating the rights of the parties in the event that the vendor should elect to reclaim the property show quite clearly that in that event it was intended that the property should not be held as security, but that the sale should be, in effect, rescinded, and that the vendor should retain any moneys paid as for the reasonable value of the use of the property by the vendee. The appellant relies principally upon Ratchford v. Cayuga County Cold Storage W. Co. ( 159 App. Div. 525); but that case is clearly distinguishable upon the facts. In the first place, it does not appear that the contract there before the court contained provisions with respect to an election of remedies, such as are in the contract now under review, nor any provision on that subject. Moreover, there was there no election by which the vendor obtained greater rights than were contemplated if the sale were consummated. The vendor merely sued for the final installment of the contract price when the same became due and payable; and inasmuch as it was expressly provided that title should not pass until payment in full, it was held that the bringing of such action did not have the effect of transferring the title. But here there was an election which the plaintiff could not recall, and after that it was without authority to claim the property, and was left to its remedies to recover the purchase price. There is no force in the contention of counsel for the appellant that the court erred in permitting the defendants to avail themselves, under a general denial, of the defense of an election of remedies. The defendants put in issue the plaintiff's claim of title, and the evidence offered by the defendants was on that issue. (See Terry v. Munger, 121 N.Y. 161. ) They merely disproved plaintiff's presumptive title by showing that title passed to vendee by its election of remedies.
It follows, therefore, that the judgment should be affirmed, with costs.
INGRAHAM, P.J., MCLAUGHLIN and DOWLING, JJ., concurred; HOTCHKISS, J., concurred on the ground that the filing of the mechanic's lien was an election and that the demand was too late.
Judgment affirmed, with costs.