Judgment and order unanimously affirmed, with costs. This ease was tried with Smith v. Huntington Lumber & Coal Co. (post, p. 807), decided *804herewith. The action is to recover for damage to an automobile in possession of plaintiff as bailee at the time of the accident. He was trying the car out with the intention of purchasing it, and as matter of fact thereafter paid for the car, which was never returned to the possession of the former owner. The action for damages to the automobile might be maintained by bailor or the bailee. But one action can be maintained, and a recovery by one party is a bar to an action by the other. (First Commercial Bank v. Valentine, 209 N. Y. 145, 150; Green v. Clarke, 12 id. 343, 352; Baird v. Daly, 57 id. 236, 245; Thompson v. Fargo, 49 id. 188, 191.)
Present — Kelly, P. J., Rich, Manning, Kelby and Kapper, JJ.