Dusenbury v. Habisreitinger, 129 N.Y.S. 2

129 N.Y.S. 2 | N.Y. App. Term. | 1911

Lehman, J.

The plaintiff has recovered judgment for rent due on the first days of November, December and January. The defendant did not deny his liability for rent for the months of December and January, but showed that the plaintiff had brought an action for rent for .the months of August, September and October on the fifteenth day of November ; and he claims that the judgment in that action bars any recovery for the November rent payable on the first day of November. “An action for rent on a lease may be brought for each instalment of rent as it falls due; but it must embrace all the instalments due at the commencement of the action, and the claim for several instalments of rent due under the same lease and all due at the time of the suit constitutes an indivisible cause of action.” Drexler v. Cohen, 108 N. Y. Supp. 680. The trial justice, however, apparently held that this rule did not apply where the instalments due at the commencement of the action aggregate more than the amount for which the Municipal Court could give judgment, relying upon .a-statement in the opinion in Seed v. Johnston, 63 App. Div. 340, 343, that “ each action should include every instalment due when it is commenced, unless a suit is,- .at the time, pending for the recovery thereof or other special circumstances exist.” It seems to me that, while under special circumstances .all the instalments due under a contract may not constitute an “ indivisible cause of action,” -where a-s in this case no such special circumstances exist, the plaintiff could not divide up her single cause of action merely for her convenience in seeking a forum..

It .follows that the judgment should be modified by deducting therefrom !the sum of $166.66 and, as modified, ehould be affirmed, with costs of this appeal -to appellant.

Seabury and Gerard, JJ., concur.

Judgment modified, and, as modified, affirmed.