Art. 4. Waiver of Tort and Effect of Election of Remedies.

act or transaction may constitute both a cause of action in contract and in tort, and a party may have an election to pursue either remedy; and in that sense may be said to waive the tort and sue in contract."

Frequently a party may elect to sue either in tort or contract, and such election is binding on the party making it, and he cannot afterward pursue an inconsistent remedy, though full recovery was not had in the first action; but it is a general principle that an allegation is not binding unless made with a knowledge of the circumstances of the case. 6 Encyc. of Law (1st ed.), 250.

Where remedies are not concurrent, and a choice has once been made, the right to follow the other is gone, and any decisive acts of the party, with the knowledge of his rights and of the effect determines his election in the case of conflicting remedies. Littlefield v. Brown, 1 Wend. 398, 7 Wend. 454, 11 Wend. 467; McElroy v. Mancius, 13 Johns. 122; Rawson v. Turner, 4 Johns. 469; Masson v. Bovet, 1 Den. 69; Kinney v. Kiernan, 49 N. Y. 164; Wright v. Pierce, 4 Hun, 351; Smith v. Knapp, 30 N. Y. 581; Hughes v. Vermont Copper Mining Co., 72 N. Y. 209; Voorhees v. Earl, 2 Hill, 288; Morris v. Rexford, 18 N. Y. 552; Lloyd v. Brewster, 4 Pai. 537; Goss v. Mather, 2 Lans. 283; Wile v. Brownstein, 35 Hun, 68; Boots v. Ferguson, 46 Hun, 131; Riley v. Albany Savings Bank, 36 Hun, 522; Bank of Beloit v. Beale, 39 N. Y. 473; Rodermund v. Clark, 46 N. Y. 354; Kennedy v. Thorp, 51 N. Y. 174; Fields v. Bland, 81 N. Y. 239.

There can be no recovery for a breach of contract where fraud is the basis of the complaint. Ross v. Mather, 51 N. Y. 108; Greentree v. Rosenstock, 61 N. Y. 583; Conaughty v. Nichols, 42 N. Y. 83; Barnes v. Quigley, 59 N. Y. 267.

Where, at the commencement of the action for tort, an action on contract for the same cause of action is pending, plaintiff is bound to elect between them. Bowker Fertilizing Co. v. Cox, 106 N. Y. 559.

Where a party has elected between inconsistent remedies, he is confined to the remedy which he has adopted. Boots v. Ferguson, 46 Hun, 131; Bank of Beloit v. Beale, 34 N. Y. 473; Rodermund v. Clark, 46 N. Y. 354.

An action cannot be amended by changing the complaint from tort to contract on the trial (Cushman v. Jewell, 7 Hun, 525), although mere allegations of fraudulent representations do not

Art. 4. Waiver of Tort and Effect of Election of Remedies.

determine the question that the action is for a tort. Sparmann v. Keim, 83 N. Y. 245.

The rule that a party cannot pursue two inconsistent remedies is very fully discussed and the authorities collated in Fowler v. Bowery Savings Bank, 113 N. Y. 450, reversing 47 Hun, 399, 23 Abb. N. C. 133; 4 Lawyers' Rep. Annot. 145. See notes in both last-named reports.

A party electing to sue and recover for the value of property must be held to have waived the tort and must rely upon the contract of sale, which in such a case the law implies. Disbrow v. Westchester Hardwood Co., 164 N. Y. 415 (424).

In Hopf v. United States Baking Co., 6 Misc. Rep. 158, 27 N. Y. Supp. 217, it is said, citing Garrison v. Marie, 7 Civ. Proc. 121: "When a person has made an election as to rights, he should not afterward be permitted to change his position and set up an inconsistent right." Citing also Rich v. Niagara Savings Bank, 3 Hun, 485; Hughes v. Vt. Copper Mining Co., 7 Hun, 768; Dinsmore v. Duncan, 57 N. Y. 580.

When it becomes necessary to elect between inconsistent rights and remedies, the election when made will be final and cannot be reconsidered. Terry v. Munger, 121 N. Y. 161; Rodermund v. Clark, 46 N. Y. 354.

Any decisive act of the party with knowledge of the rights and of the facts, determines his election in the case of conflicting and inconsistent remedies. Sanger v. Wood, 3 Johns. Ch. 421, cited in Droege v. Ahrens & Ott Mfg. Co., 163 N. Y. 466 (470), the latter case citing Mills v. Parkhurst, 126 N. Y. 89; Conrow v. Little, 115 N. Y. 387.

The rule prohibiting a party who had adopted and pursued one of two remedies, from afterward availing himself of the other, is limited to cases where the two remedies are inconsistent. Crossman v. Universal Rubber Co., 127 N. Y. 34.

(See "Torts Arising From or Connected With Contracts," art. V, chap. III, p. 41.)

This subject will be treated very briefly, since the right of action has been fully considered under the title "Rules Governing Liability of Parties in Torts," chap. IV, and for the further reason that the provisions of the Code, §§ 446, 447, 448, relating to joinder of parties, fully cover actions for torts. Comparatively few questions arise thereunder aside from those considered in connection with the rule as to joint tort feasors. Chap. IV, supra. Joint owners of property must unite in an action for injuries thereto, or for the conversion thereof. When their injuries are separate, two or more may not join as plaintiffs in an action of tort, though the injuries are occasioned by a single act. But when a joint interest is injured, the owners thereof may unite as plaintiffs. 17 Am. & Eng. Encyc. of Law (1st ed.), 599.

Tenants in common must unite in an action for trespass upon real property. De Puy v. Strong, 37 N. Y. 372, cited Eckerson v. Village of Haverstraw, 6 App. Div. 102 (106), 39 N. Y. Supp. 635. And in ejectment to recover the possession of property, each may sue separately for his share. Hasbrouck v. Bunce, 62

N. Y. 476.

Persons having separate interests are sometimes allowed to unite to restrain a common injury. Kennedy v. City of Troy, 14 Hun, 308.

Owners in severalty of premises occupied by them, upon a mill stream, and of the right of water used by them, may unite in an action against another several owner, to restrain him from using more water than he is entitled to. In such a case, where the injury consists in diverting the water, and it affects all the several owners in the same way, and at the same time, the interest is a common one, and one which entitles the owners in severalty to unite. Emery v. Erskine, 66 Barb. 9.

Art. 5. Joinder of Parties.

Different riparian owners of distinct parcels of riparian land, who have a common grievance for an injury of the same kind, inflicted at the same time and by the same acts, though the injury differs in degree as to each owner, may unite in a common action to enjoin a higher riparian owner from diverting or polluting the stream. Strobel v. Kerr Salt Co., 164 N. Y. 305.

In a case of a private nuisance or any grievance which is common to several distinct and separate owners, they may unite in a single action for its removal, or to be relieved from it. Foot v. Bronson, 4 Lans. 47.

Where a cause of action arises out of a single tort, and the plaintiff has a direct interest therein, and his insurers have an interest by subrogation, all should be joined in one action to prevent multiplicity of suits. Munson v. N. Y. C. & H. R. R. R. Co., 32 Misc. Rep. 282.

"Several plaintiffs may not join in one suit against a defendant for matters and claims entirely distinct and disconnected, but it is authorized, where plaintiffs having a common interest, centering in the point in issue, and when one general right by all is claimed by way of relief in the action." Plaintiffs, although separate owners of premises charged to be injured and threatened with injury, may each join in an action to abate a nuisance and for an injunction to prevent its enhancement and continuance. Gillespie v. Forrest, 18 Hun, 110 (112); Astor v. N. Y. Arcade R. R. Co., St. Rep. 188, 113 N. Y. 93; Goelet v. Metropolitan Co., 48 Hun, 520.

Where plaintiffs acted jointly in the execution of an undertaking, on appeal it was held that they were jointly defrauded by defendant and were entitled to maintain joint action. Bates v. Merrick, 2 Hun, 568.

The lessee of a store may join his lessor as a party plaintiff in an action to compel the removal of a show-case placed on the sidewalk by defendant in front of his premises, so as to exclude the light from his windows. Hallock v. Scheyer, 33 Hun, 111.

Where plaintiffs were induced by an act of fraud practiced upon them to execute a joint release they were held entitled to maintain a joint action to set the same aside. Smith v. Schulting. 14 Hun, 52.

This was held upon the ground that there was one connected interest among them, all centering in the principal point in issue.

Art. 5. Joinder of Parties.

When two stockholders, acting in unison and through the false representation of a third made to one of them, but intended to influence both, are led to make a sale of their respective shares of stock upon an agreement made with one or both, for a consideration far below its actual value, they may join as plaintiffs in one action to obtain a rescission of the sale for such fraud and the restoration of the stock. Bradley v. Bradley, 165 N. Y. 183.

It is not always necessary that all parties having the same interest as plaintiffs should be made parties to the suit. Mitchell v. Thorn, 57 Hun, 405, 10 N. Y. Supp. 682, 25 Abb. N. C. 295.

A joint action for damages cannot be maintained against defendants, who have conspired to obtain goods on credit, by a number of parties plaintiffs, all of whom independently of the others have sold goods to the defendants on such fraudulent credit. Gray v. Rothschild, 48 Hun, 596, 1 N. Y. Supp. 299. On affirmance, 112 N. Y. 669, the court said: "It may very well be that each plaintiff has a good cause of action against the defendants, but the plaintiffs have none common to all or jointly with each other. Each individual and each firm may have been defrauded by similar, although not the same representations, but the complaint shows that each has suffered separately, and its whole scope and meaning is inconsistent with the idea that the plaintiffs, or any two or more of them, are jointly prejudiced."

An action was brought against defendant by a widow and her children to recover for defendant's wrongful conduct as special guardian on the sale of testator's real estate. It was held that two causes of action were improperly joined, as the rights of the widow and her children were different. Hynes v. Farmers' Loan & Trust Co., 31 St. Rep. 136, 9 N. Y. Supp. 260.

Where a person liable to several persons jointly for a tort settles with one, this severs the cause of action, and the others may maintain actions for their damages. Woodbury v. Delos, 65 Barb. 501.

SUBDIVISION 2.

Joinder of Defendants.

The general rule is laid down (Bishop, § 521), that one who has suffered from the joint tort of several persons may bring his suit against all of them collectively, or any one or number less than all at his election; unless the tort is founded upon a joint