Legal Opinion

Albany Hardware & Iron Co. v. Day

Appellate Division of the Supreme Court of the State of New York

Decided December 15, 1896PublishedCited by 3 opinions

Appeal from special term, Albany county. Action by the Albany Hardware & Iron Company against George H. Day for fraud. From a judgment in favor of defendant, on a verdict vacating an order of arrest, plaintiff appeals.

1Opinion of the CourtParker, P. J.

At the time 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. Distilling Co. v. Devendorf, 72 Hun, 428, 25 N. Y. Supp. 200; Foundry Co. v. Hersee, 103 N. Y. 26, 9 N. E. 487; Hays v. Midas, 104 N. Y. 602, 11 N. E. 141.

The other question presented is whether plaintiff can maintain an action for the fraud, without first discharging the judgment…

2Cases cited3 opinions

  1. Equitable Co-Operative Foundry Co. v. HerseeNew York Court of Appeals · 1886
  2. Hays v. . MidasNew York Court of Appeals · 1887
  3. Rochester Distilling Co. v. DevendorfNew York Supreme Court · 1893

3Cited by3 opinions

  1. Speed v. McMurraySupreme Court of Oklahoma · 1918
  2. Kahn v. WitkoskiAppellate Terms of the Supreme Court of New York · 1909
  3. William A. Thomas Co. v. HolstAppellate Terms of the Supreme Court of New York · 1910

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