J. SULLIVAN & SONS MFG. CORP. v. TRADE BANK & TRUST CO.


13 A.D.2d 488 (1961)

J. Sullivan & Sons Mfg. Corp., Respondent, v. Trade Bank & Trust Company, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

March 28, 1961


Unanimously affirmed, with costs to plaintiff-respondent.

The several doctrines of election of remedies are not applicable to this case. If the payee caused the check to be accepted, a problem of inconsistent substantive claims of liability may arise (cf. 18 Am. Jur., Election of Remedies, § 6). There are issues of fact, therefore, whether the drawer of the check or the drawee bank rather than the payee caused the drawee bank to withhold the check thus avoiding...

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