WERNER, J.

As the record stands the case is very simple, notwithstanding the extended statement of facts which is essential to a proper comprehension of the questions which are decisive of this appeal. The suit is brought to enforce specific performance of a land contract. It is prosecuted by the assignee of the vendee and, of course, the plaintiff must abide by the case made for him by his assignor. At Special Term the plaintiff was awarded the judgment prayed for in the complaint, and upon appeal to the Appellate Division that judgment was unanimously affirmed. If the findings made at Special Term were consistent with each other and with the conclusions of law upon which the judgment is based, the unanimous affirmance at the Appellate Division would preclude any disturbance of the judgment in this court. But that is not the case. While the larger number of the findings are such as to justify and require the judgment rendered, they are opposed by at least two others which are so inconsistent and controlling as to forbid that judgment. The rule is well settled that an appellant who seeks to reverse a judgment which is based upon inconsistent findings is entitled to the benefit of those that are most favorable to him. ( Bonnell v. Griswold, 89 N.Y. 122; Kelly v. Leggett, 122 N.Y. 633; Traders' Nat. Bank v. Parker, 130 N.Y. 415; Israel v. Manh. R. Co., 158 N.Y. 624; Nickell v. Tracy, 184 N.Y. 386; City of Buffalo v. D., L. W.R.R. Co., 190 N.Y. 84, 98.) The application of this rule to the case at bar is determinative of the result, because the findings are not only inconsistent but irreconcilable. Without referring to those findings which are concededly appropriate to the judgment rendered, we will quote from the two which are diametrically opposed to them. The nineteenth finding of fact is that, "On the adjourned date for closing the contract in suit, October 8th, 1903, the vendee did not insist on the performance of the contract, but demanded the return of her deposit (and expense) and the rescission of the contract." Under the head of conclusions of law the seventh finding reads: "The contract, the subject of this action, was terminated by the parties thereto October 8th, 1903." Although this is placed with the court's conclusions of law it is really a finding of fact or at least a mixture of fact and law. We have, therefore, a finding that the contract has been terminated and another that the plaintiff elected to rescind the contract. These findings are utterly repugnant to the conclusion that the plaintiff is entitled to specific performance. So apparent is this inconsistency as to almost compel the inference that it must be due to one of those mistakes which will sometimes occur in spite of the utmost care. Counsel for the plaintiff respondent, clearly appreciating his dilemma, invokes the rule that findings must be given a reasonable construction, and when inconsistent they must, if possible, be reconciled. He argues that "it is not to be presumed that any Justice of the Supreme Court would give a plaintiff specific performance of a non-existent contract." The concluding words of that sentence clearly reveal the extremity to which counsel is driven. The contract is not "non-existent," nor is the finding of the court susceptible of any such meaning. Fairly construed, the finding implies that the contract has been terminated for the purpose of enforcement, but is still in existence for the application of the remedy which enables a vendee to recover back what he has paid upon land which the vendor either will not or cannot convey. The difference between a "non-existent" contract and one that is terminated because of the vendor's refusal or inability to perform is aptly illustrated by two cases recently decided in this court and cited by counsel for the respondent. In Davis v. Rosenzweig Realty Op. Co. ( 192 N.Y. 128) it was held that the vendee's rescission of the contract for the fraud of the vendor, dissolved it ab initio, so that there could be no lien upon the land for the amount of the purchase price which had been paid. And in Elterman v. Hyman ( 192 N.Y. 113) it was decided that a vendee who declines to perform on account of defects in title, does not rescind the contract by his suit to impress a lien upon the property for the amount of his deposit. That was held to be, not an avoidance of the contract, but an affirmance thereof. It was terminated as to performance, but existed for the purpose of impressing upon the property the vendee's lien. The finding in the case at bar is that the contract was terminated by the parties, and, to use counsel's own language, "that implies a mere termination of performance which left the contract itself in force." If it was terminated as to performance, it must also be regarded as terminated in respect of the right to insist upon performance.

But counsel for the respondent further contends that even if the so-called conclusion of law as to the termination of the contract might be treated as a finding of fact for the purpose of upholding the judgment, it cannot be so treated for the purpose of reversal. In support of that contention he cites Parker v. Baxter ( 86 N.Y. 586); Murray v. Marshall ( 94 N.Y. 611); Adams v. Fitzpatrick ( 125 N.Y. 124); Berger v. Varrelmann ( 127 N.Y. 281); Christopher Tenth St. R.R. Co. v. 23rd St. Ry. Co. ( 149 N.Y. 51), and Germania Life Ins. Co. v. Casey ( 184 N.Y. 554). It is true that these cases hold that a finding of fact improperly classified as a conclusion of law may be regarded as transposed into its proper place for the purpose of upholding a judgment, but our attention has been directed to no authority holding that the same thing may not be done for the purpose of reversing a judgment. And why, upon principle, should there be any difference? A finding of fact does not lose its character by being misplaced or misnamed. To borrow the language of Judge VANN in a recent case: "It is unnecessary to label either the facts or the law, because they classify themselves according to their nature and cannot be changed if classified wrongly, by court or counsel. If a fact is characterized as a conclusion of law, that does not make it one, for it is a fact still, regardless of the name given to it." ( Jefferson Co. Nat. Bank v. Dewey, 181 N.Y. 115.) This is from a dissenting opinion, but the case turned upon a point not involved in the case at bar, and the decision there made is not in conflict with the rule so aptly stated in the quotation. If it were necessary to rest our decision upon the single point which we have thus far discussed, we should deem it sufficient to authorize the reversal of the judgment and the granting of a new trial.

There is another aspect of the case, however, which we think conclusively bars the plaintiff's right to specific performance and requires the dismissal of the complaint as well as the reversal of the judgment. The trial court found that on the date finally fixed for closing the contract "the vendee did not insist on the performance of the contract, but demanded the return of her deposit (and expense) and the rescission of the contract." That this finding correctly represents the attitude of the plaintiff's assignor is conclusively shown by her prompt commencement of a suit to have the contract so reformed as to enable her to recover back her deposit, with damages, because of the alleged unmarketability of the title to the boulevard property. Her contention was that the two contracts, although separate in form, were in reality but a single agreement, under which she could refuse to take a conveyance of any of the land if the title to either of the parcels were defective. This was a conclusive election of a remedy that is absolutely inconsistent with her present claim of right to specific performance. Then and there the vendee decided to abandon any right which she may have had to insist upon a specific performance of the contract in suit. She elected to treat the contract as existing only for the purpose of getting back the money which she paid, and of recovering the damages which she claims to have suffered. By that election she is bound. Where a party has an election between two inconsistent remedies, he is bound by that which he first chooses. ( Rodermund v. Clark, 46 N.Y. 354; Moller v. Tuska, 87 N.Y. 166; Harris v. Hiscock, 91 N.Y. 340, 345; Bowen v. Mandeville, 95 N.Y. 237; Slaughter v. La Compagnie Francaises Des Cables Tel., 119 Fed. Rep. 588.)

At this point in the discussion we must notice the attempted appeal of the defendants from the order of the Appellate Division resettling the judgment in the vendee's action to reform the contract. That order added to the judgment affirming the dismissal of the complaint, a provision to the effect that the judgment should not be a bar to an action by the vendee either for the specific performance of the contract, or for the recovery at law of the amount paid by the vendee upon the execution of the contract, together with disbursements for examining title. That saving clause, so far as it relates to the vendee's right to maintain an action at law to recover her deposit and disbursements, was clearly authorized, because it was entirely consistent with the election which the vendee had made; but it was beyond the power of the court to continue the cause of action for specific performance which the vendee had voluntarily abandoned. To the extent that the order was designed to resurrect that issue, which the vendee had elected to bury, it was unauthorized. But, conceding this, the appeal is not well taken, for the order is not one finally determining a special proceeding, and the appeal is not from the judgment which the order purports to amend. ( Van Arsdale v. King, 155 N.Y. 325.)

The appeal from the order resettling the judgment in Duke v. Stuart et al. is, therefore, dismissed, with costs, and the judgment herein is reversed and the plaintiff's complaint dismissed, with costs in all courts.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLAR BARTLETT and HISCOCK, JJ., concur.

Judgment accordingly.