54 Barb. 191 | N.Y. Sup. Ct. | 1869
By the Court,
In order to avoid multiplicity of actions, the law forbids that a cause of action shall be split up for the purpose of bringing several actions. But 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. That is precisely the state of things in the case before us; and the authority to which the counsel of the appellant refers is not applicable to it. In that case (Beach v. Crain, 2 N. Y. Rep. 86) only one breach of the covenant had been committed, when the first action was commenced. The first was commenced on the 29th of September, 1846, for not keeping a gate in repair according to covenant, for damages that had accrued previous to that time. The second action was brought to recover damages that had accrued from the 19th October to the 30th of November, 1846, for not keeping the same gate in repair; and it was held that the former action was no bar to the second. But, if an action was commenced after the 30th of November, 1846, for the damages that had accrued during the first period, and, afterwards, a second action was commenced, for damages that had accrued during the second period, the first
The judgment should be affirmed, with costs.
Clerke, Cardozo and Geo. F. Barnard, Justices.]
