Advance Lamp Shade Corp. v. Bloom

125 Misc. 829 | N.Y. App. Term. | 1925

Per Curiam:

Judgment affirmed, with twenty-five dollars costs.

The causes of action in the first action and in the present action arose out of the same contract. When plaintiff instituted the first action, the breach sued for in the second action had occurred. The first action should have embraced all the breaches then existing. (Bendernagle v. Cocks, 19 Wend. 207; Pakas v. Hollingshead, 184 N. Y. 211, 215; Secor v. Sturgis, 16 id. 548, 554; Goldberg v. Eastern Brewing Co., 136 App. Div. 692, 693; Henderson Tire & Rubber Co. v. Wilson & Son, 235 N. Y. 489, 497.) The correctness of the decisions in Peruvian Panama Hat Co. v. Marcus (164 N. Y. Supp. 821) and in Rusch v. Klausner (117 id. 1074) seems to be questioned by the opinion in the later case of Hutt v. Hausman (118 Misc. 448) in the same court.

Present: Cropsey, Lazansky and MacCrate, JJ.