Albany Hardware & Iron Co. v. Day
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, the Albany Hardware and Iron Company, from an order of the Sirpreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of January, 1896, vacating an order of arrest. The plaintiff sold goods to the defendant upon credit.
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Appeal by the plaintiff, the Albany Hardware and Iron Company, from an order of the Sirpreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of January, 1896, vacating an order of arrest. The plaintiff sold goods to the defendant upon credit. Such sale was induced by representations made by the defendant to the agent of the plaintiff, to the effect that he was solvent, was worth $1,800, and that his liabilities did not exceed $100. When the purchase price became due the defendant defaulted in its payment, and the plaintiff…
1Opinion of the Court
Parker, P. J.:
At the time the plaintiff recovered the judgment for the purchase price of the goods sold it had no knowledge of the fraud which defendant had perpetrated upon it. That action on its part cannot, therefore, be deemed an election of remedies, so as to bar its maintaining an action to recover damages for that fraud. (Rochester Distilling Co. v. Devendorf, 72 Hun, 428 ; Equitable Co-Operative Foundry Co. v. Hersee, 103 N. Y. 25 ; Hays v. Midas, 104 id. 602.)
The other question presented is whether plaintiff can maintain an action for the fraud without first discharging the judgment…
2Cases cited2 opinions
- Equitable Co-Operative Foundry Co. v. HerseeNew York Court of Appeals · 1886
- Rochester Distilling Co. v. DevendorfNew York Supreme Court · 1893
3Cited by8 opinions
- Utica City National Bank v. Penwarden, New York County Courts1918
- Speed v. McMurraySupreme Court of Oklahoma · 1918
- Handman Silk Corp. v. WilonAppellate Division of the Supreme Court of the State of New York · 1935
- Industrial Bank of Commerce v. SellingCity of New York Municipal Court · 1952
- Russell v. WilberAppellate Division of the Supreme Court of the State of New York · 1912
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