126 N.Y.S. 656 | N.Y. App. Term. | 1911
The complaint states a cause of action for wrongful eviction from certain premises, demised to the plaintiff by a written lease and an extension thereof, in violation of an option for an extension of the term of which option the defendant had notice at the time when it became the purchaser of the premises.
The defense demurred to alleges that theretofore judgment was rendered in the Municipal Court in favor of this plaintiff and against this defendant in two actions brought to recover certain sums of money, which actions, it is further alleged, “arose out of the same contract for the breach of which this action is brought.” Clearly, this states no defense. Several and successive actions may frequently be brought upon the same contract. It is only when the later action involves matters already adjudicated in the earlier action, or where the plaintiff has split up demands which were in existence and ought to have been sued for at the same time, that the former judgment is a bar to the subsequent action. Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663. It does not appear from the facts pleaded that the former judgments were in any way a bar to the maintenance of the present action.
The judgment must therefore be reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to amend within six days upon payment of all costs awarded against it.
BRADY, J., concurs. GAVEGAN, J., dissents.