Jex v. Jacob

26 N.Y. Sup. Ct. 105 | N.Y. Sup. Ct. | 1879

Daniels, J.:

This action has been brought to recover $6,615, with interest thereon, for rent accruing on a lease executed by the parties, whereby certain promises were demised to the defendants by the plaintiff. At the time when this suit was commenced, other rent had become due to the plaintiff on the same covenant, for the preceding occupancy by the defendants of the same premises for the recovery of which an action was subsequently brought. Judgment by default was recovered in that action, which was afterwards satisfied by payment, and leave was thereupon obtained to set forth that recovery and payment as a defence to this action. That was done by a supplemental answer, to which the plaintiff demurred, for the reason that it did not contain facts sufficient to constitute a defence. This was a proper subject for a supplemental answer, even though the judgment relied upon as a defence was recovered while this action was pending. (Code of Civil Procedure, § 544.) And the fact that the judgment was rendered in an action, commenced after the present suit was instituted, rendered the judgment none the less effectual by way of defence. (Casebeer v. Mowry, 55 Penn., 419; Duffy v. Lytle, 5 Watts, 120.) Neither was it waived, or the right to set it up as a defence affected, by the omission to interpose the first action by way of abatement. (Nicholl v. Mason, 21 Wend., 339.) And nothing was said in the decision of the case of Mills v. Garrison (3 Keyes, 40), which would warrant any different conclusion. All that was there held was that a party, by means of his agreement, might deprive himself of the right to roly upon a judgment for part of an entire demand as a defence to another suit brought for the recovery of the residue. It has no application to a controversy in which no such agreement has in any form been made.

The point, therefore, is distinctly presented whether the recovery in the second action for the small balance of preceding rent, amounting to less than the sum of $200, followed, by its actual payment and satisfaction creates a legal defence to. the large amount now claimed. Both demands were due when this action was commenced, and they accrued for distinct failures-to perform the same covenant. They might properly have been united in the same action. But if the decision made in the case of McIntosh v. Lown (49 Barb., 550) should be followed, the plaintiff was at liberty to prosecute a different action for the recovery of each of these separate amounts. That decision, though made on the effect of distinct and different covenants, seems to have been strikingly in conflict with the preceding cases on this, subject, and as the Tule declared by them has since been repeatedly followed, notwithstanding that departure from it, no sound foundation now remains for considering it reliable. The rule of law upon this subject, on a very complete examination of the authorities, was declared to be the other way in the decision of the case of Bendernagle v. Cocks (19 Wend., 207). By that determination all demands due on the same contract, at the time when the action is commenced, are required to be included in it, or to be held and considered barred, on the recovery of judgment for a part. In other words, they are all held to create but one cause of action. This authority in its facts was very much like the present case, and as it has not been overruled and not' seriously questioned, except in the instance already mentioned, it ought to be decisive of the point now presented for decision. But it is not necessary that it should be left to stand simply on the force of that determination. For the same point has been often held by different tribunals in the same way since that decision was made. That was prominently the nature of the decision made in Secor v. Sturgis (16 N. Y., 548). In the course of the decision then made, it was said that “the case of a contract containing several stipulations to be performed at different times is no exception, although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others the ground of action is the stipulation which is in the nature of a. several contract.” (Id., 538.) In the Reformed Prot. Church v. Brown (54 Barb., 191), it was held that “ when several claims payable at different times arise out of the same contract or transaction, separate actions can be brought as each liability enures. Still, however, if no action is brought until more than one is due, all that are due must be included in one action ; and if an action is brought when more than one is due, a recovery in the one first brought will be an effectual bar to a second action brought to recover the other claims that- were due when the first was brought.” (Id., 199.) And it has been already shown that the same result is .held to be produced, even though the judgment first recovered is in the action secondly brought. The principle must be the same, whichever action may first terminate in a judgment, for that will work a recovery of a part of what, in reality, is but .an entire and single cause of action. The same rule was announced in the case of Yates v. Fassett (5 Denio, 21-28), where it was held that distinct suits cannot be brought for several breaches of different covenants contained in the same instrument, but all those which have accrued at the time of commencing the suit must be embraced in the same action. O’Beirne v. Lloyd (43 N. Y., 248) is to the same effect. It was held there that demands which have arisen under the same contract “constitute an entire and indivisible cause of action within the principle of the authorities which are collected and reviewed in the case of Secor v. Sturgis (id., 250-251).” And nothing different was suggested in deciding Stowell v. Chamberlain (60 N. Y., 272). But it was, on the contrary, broadly said that if by law a judgment could have been given for the plaintiff in a former suit, for precisely the same cause of action as that for which the present suit was brought, it has within the rule passed into judgment, and is res adjudicata. But in order to bar the second action the circumstances must be such that the plaintiff might ha.ve recovered in the first for the same cause alleged in the second.” (Id., 276.) The rule already stated was in terms sanctioned in Baird v. The U. S. (96 U. S., 430, 432), and Casselberry v. Forquer (27 Ill., 170). And nothing whatever conflicting with it was held, or even suggested, in the Case of Spelman (74 N. Y., 448).

Various authorities have been relied upon and cited by the plaintiff’s counsel for the purpose of supporting the demurrer, but they wholly fail to do so, with the exception of McIntosh v. Lowns (supra); and Badger v. Titcomb (15 Pick., 409). The first of these cases was clearly opposed to those which preceded it, as it has beenn to the cases following it, and for that reason it cannot be adopted as a correct exposition of the law on this subject; while the other was held to be unsound by the decision which was made in Bendernagle v. Cocks (19 Wend., 207-209). In Van Alstyne v. Indiana, Pittsburgh and Cleveland R. R. Co. (34 Barb., 28); and Bristowe v. Fairclough (1 Man. & Gr., 143), the subject matter of the second suit had not accrued when the first was commenced. While in Seddon v. Tutop (6 Durn. & East, 607); King v. Sheriff (1 Barn. & Adol., 673); Phillips v. Berick (16 Johns., 136); and Staples v. Goodrich (21 Barb., 317), the causes of action were distinct and separate, arising from what were substantially different and independent contracts or transactions. And that of Beach v. Crain (2 Comst., 86) was for a subsequent breach of a continuing agreement. The case of Florence v. Jenings (2 Com. Bench [N. S.], 454), in no way aids the plaintiff, for the first suit was on a bill of exchange, and the second on a distinct agreement made for the payment of interest. And the other authorities cited by the plaintiff’s counsel are all included within the qualifications of the general rule, which has been already mentioned. The demurrer interposed to the second defence presented by the supplemental answer cannot be sustained. But the order must be reversed and judgment given for the defendant, with costs and the costs of this appeal, but with liberty to the plaintiff to withdraw the demurrer, and Avithout prejudice to an application on motion to vacate the judgment recovered, and for leave to return to the defendants, the money received by Avay of satisfying it, on such terms as the court, to which it may be made, shall deem proper in case it shall be alloAved to prevail, and for the consolidation of the actions.

Davis, P. J., concurred. Present — Davis, P. J., Ingalls and Daniels, JJ.

Ordered reversed, judgment ordered as directed in opinion-