election doctrine in New York

1954It was laid down in Mills v. Parkhurst ( 126 N. Y. 89, 93 ) in defining the doctrine of election: “ The doctrine of election, usually predicated of inconsistent remedies, consists in holding the party, to whom several courses were open for obtaining relief, to his first election; where subsequently he attempts to avail himself of some further and other remedy not consistent with, but contradictory of, his previous attitude and action upon his claim.

1913In defining cases to which the application of the doctrine of election is confined, Gray, J., writing for a unanimous court in Henry v. Herrington, 193 N. Y. 218, 222 , said: “ The right to make an election must actually exist and if it shall appear that it did not, then it is quite immaterial, in its hearing upon a subsequent action, that some previous action, looking to a remedy for the plaintiff’s loss, had been brought.” Similarly, in Mills v. Parkhurst, 126 N. Y. 89, 93 , the court says: ‘ ‘ The doctrine of election, usually predicated of inconsistent remedies, consists in holding the par

2019Indeed, the legislature may reasonably have concluded, for the reasons stated above, that a court order should be required to access the actual paper ballots in connection with an election challenge, but that such limited access was inadequate to satisfy the legislature’s intended scope of public disclosure under FOIL with respect to electronic ballot images, inasmuch as FOIL generally does not limit access to governmental records based on the identity of the requestor or the purpose for which the records are sought (see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 156 [1999

2019Ultimately, if the legislature intended to exempt electronic ballot images from FOIL disclosure, such an intent could have been clearly evinced through either the statutory text or the legislative history of Election Law § 3-222 (2) (see Burns, 67 NY2d at 567 ; Matter of M.

1987As the Surrogate properly noted, her individual election was insufficient to extinguish the power of sale, and Marie Louise Coty’s participation in the contract of sale was sufficient to preserve her nonelection (see, Matter of Fello, 88 AD2d 600 , affd 58 NY2d 999 ).

1987As the Surrogate properly noted, her individual election was insufficient to extinguish the power of sale, and Marie Louise Coty’s participation in the contract of sale was sufficient to preserve her nonelection (see, Matter of Fello, 88 AD2d 600 , affd 58 NY2d 999 ).

1985Serv., 57 AD2d 699 .) Under the last sentence of Executive Law § 297 (9), the initiation of any court action — whether it is an action for damages under section 297 (9), or an article 78 proceeding — constitutes an election and a waiver of the right to commence an administrative proceeding with the Division of Human Rights.

1985(See, Matter of Lassone v Whalen, 79 AD2d 1075 .) The only proceeding commenced by this plaintiff prior to this action was an administrative appeal within the Civil Service Commission.

1984A substantial error in the jury charge which results in a defendant’s verdict mandates reversal (Yandian v Merlis, 34 AD2d 582 ). 11 In addition, we note that, contrary to the trial court’s ruling plaintiff’s collection of first-party benefits (for basic economic loss) under the New York statute does not operate as an election or waiver of common-law remedies.

1982In order for such an election to bar a sale by an executor, it must be unequivocally exercised by all of the interested beneficiaries (Trask v Sturges, supra; Mellen v Mellen, supra; Matter of Maratto, 138 NYS2d 791 ).

1982In order for such an election to bar a sale by an executor, it must be unequivocally exercised by all of the interested beneficiaries (Trask v Sturges, supra; Mellen v Mellen, supra; Matter of Maratto, 138 NYS2d 791 ).

1981Under these specific circumstances, Special Term found that this conduct “amounted] to an election and to a waiver and abandonment of his claim for damages” (Musco v Lupi, supra, pp 932-933 ).

1980Matter of Farrell v Morton ( 268 N.Y. 622 ) is exactly in point on the last observation.

1980NOTES [*] The dissent requires that we observe (1) that Matter of Taylor v McNab ( 40 N.Y.2d 821 ) has no bearing on a jurisdictional question, (2) that the State Board of Elections is a party to this proceeding, but has not seen fit to appear and argue (cf. Matter of Butler v Hayduk , 37 N.Y.2d 497, 499 ), (3) that the court in Matter of Higby v Mahoney ( 48 N.Y.2d 15, 21, n 3 ) explicitly rejected the "novel proposition" that the need for "deliberative" consideration distinguished election cases from cases of other types as precedents, (4) that the parties have stipulated that the Trial Judg

1980NOTES [*] The dissent requires that we observe (1) that Matter of Taylor v McNab ( 40 N.Y.2d 821 ) has no bearing on a jurisdictional question, (2) that the State Board of Elections is a party to this proceeding, but has not seen fit to appear and argue (cf. Matter of Butler v Hayduk , 37 N.Y.2d 497, 499 ), (3) that the court in Matter of Higby v Mahoney ( 48 N.Y.2d 15, 21, n 3 ) explicitly rejected the "novel proposition" that the need for "deliberative" consideration distinguished election cases from cases of other types as precedents, (4) that the parties have stipulated that the Trial Judg

1968A majority of the jurisdictions where the question has arisen has held that a decree of separation is not a bar to an absolute divorce on the same ground, that the two remedies are not inconsistent and the doctrine of election does not apply, that the two have different objects and effects, one being in a sense ancillary to the other, that the cause of action is not the same and there is therefore no merger of the cause of action (see Klinger v. Klinger, 79 S. D. 182; Kunze v. Kunze, 153 Minn. 5 ; Jenkins v. Jenkins, 125 Cal. App. 2d 109 ).

1968In all of the foregoing the previously discussed case, Murdock v. Murdock ( 148 App. Div. 564 ) is cited in support of such position.

1968A majority of the jurisdictions where the question has arisen has held that a decree of separation is not a bar to an absolute divorce on the same ground, that the two remedies are not inconsistent and the doctrine of election does not apply, that the two have different objects and effects, one being in a sense ancillary to the other, that the cause of action is not the same and there is therefore no merger of the cause of action (see Klinger v. Klinger, 79 S. D. 182; Kunze v. Kunze, 153 Minn. 5 ; Jenkins v. Jenkins, 125 Cal. App. 2d 109 ).

1958None of the cases so cited were decided upon grounds in any way relevant here except Matter of McKee v. White ( 218 App. Div. 300 , affd. 244 N. Y. 610 ).

1958None of the cases so cited were decided upon grounds in any way relevant here except Matter of McKee v. White ( 218 App. Div. 300 , affd. 244 N. Y. 610 ).

1954The basis for the application of the doctrine is in the proposition that where there is, by law or by contract, a choice between two remedies, which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other.” The doctrine of election was recognized in De Coigne v. Ludlum Steel Co. ( 251 App. Div. 662 , supra) and Mazarredo v. Levine ( 274 App. Div. 122 , supra).

1954The basis for the application of the doctrine is in the proposition that where there is, by law or by contract, a choice between two remedies, which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other.” The doctrine of election was recognized in De Coigne v. Ludlum Steel Co. ( 251 App. Div. 662 , supra) and Mazarredo v. Levine ( 274 App. Div. 122 , supra).

1915He may, under certain circumstances, waive a tort and proceed in assumpsit, in which case he would be barred from asserting an action sounding in tort (7 Ency. of Pl. & Pr. 371), but trespass, trover and replevin all proceed upon the theory of continued ownership in the injured party, and are not inconsistent remedies. (7 Ency. of Pl. & Pr. 371, and authorities cited.) There has been some confusion upon the question, but in the case of Russell v. McCall ( 141 N. Y. 437 ), distinguishing the principal cases relied upon by the learned trial court in the instant case, the court recognizes the doc

1913The case of Janes v. Paddell, 74 Misc.

1913In defining cases to which the application of the doctrine of election is confined, Gray, J., writing for a unanimous court in Henry v. Herrington, 193 N. Y. 218, 222 , said: “ The right to make an election must actually exist and if it shall appear that it did not, then it is quite immaterial, in its hearing upon a subsequent action, that some previous action, looking to a remedy for the plaintiff’s loss, had been brought.” Similarly, in Mills v. Parkhurst, 126 N. Y. 89, 93 , the court says: ‘ ‘ The doctrine of election, usually predicated of inconsistent remedies, consists in holding the par

1907It may be determined by any decisive act made with full knowledge of all the facts (Fowler v. Bowery Savings Bank, 113 N. Y. 450 ) ; and the bringing of an action to enforce one of the remedies sufficiently evidences an election (Conrow v. Little, 115 N. Y. 387 ).” In Mills v. Parkhurst, 126 N. Y. 89 -93, it was said: “The doctrine of election, usually predicated of inconsistent remedies, consists in holding the party, to whom several courses were open for obtaining relief, to his first election, where subsequently he attempts to avail himself of some further and other remedy not consistent wi