Reilly v. Sicilian Asphalt Paving Co.

52 N.Y.S. 817 | N.Y. App. Div. | 1898

McLaughlin, J.:

The plaintiff, while driving in one of the public streets of the city of New York, sustained a personal injury by his carriage coming in contact or colliding •tfdt.li a pile of sand negligently left unguarded in the roadway by the defendant. His carriage was also damaged at the same time and from the same cause. This action was brought to recover damages for the personal injuries sustained by the plaintiff, and, after issue had been joined, the plaintiff also instituted another action against the defendant in the District Court of the city of New York to recover the damages to'the carriage. The action in the District Court was prosecuted to and resulted in a judgment in favor of the plaintiff, which was thereafter satisfied by the defendant. After the satisfaction of that judgment, the defendant, by permission of the court, served a supplemental answer to the complaint in this action, setting up that fact as a bar to a recovery herein. The issue thus raised came on for trial, and the plaintiff, to establish the defendant’s negligence, offered in evidence the judgment roll in the District Court action, his contention then being that the judgment in that action established the defendant’s negligence in this one, and was res adjudicatu upon that subject. For this purpose the judgment roll was received in evidence. At the close of plaintiff’s case, upon the defendant’s motion, an order was made dismissing the complaint, and from the judgment entered thereon plaintiff has appealed.

We think the ruling made by the learned justice at Trial Term was right. It is a well-established rule of law that a single cause of action cannot be severed or divided in order that separate actions may be brought to recover damages for the various parts of what really constitutes one demand. The cause of action upon which the recovery was had in the District Court was the same as the cause of action upon which a recovery was sought in this action. What was it ? It was a cause of action to recover damages for the same wrong arising from and growing out of the same negligent act of the defendant referred to in the complaint herein. It was a single wrong and constituted one cause of action, although entitling plaintiff to different items of damages. (Secor v. Sturgis, 16 N. Y. 548; Nathans v. Hope, 77 id. 420 ; Howe v. Peckham, 6 How. Pr. 229.) The damages resulting to the plaintiff from this wrong of the defendant must, under every well-recognized rule of law, be recovered, if at all, in a single action, and once for all. These damages were not continuous and were not divisible. (1 Ency. of Pr. & Pl. 159, and cases there cited.) When, therefore, the plaintiff obtained the judgment which he did in the District Court for the damages to his carriage at that moment, the cause of action which included the injury to his person was extinguished. The recovery and payment of that judgment satisfied his entire claim. The fact that the action in the District Court was commenced, and- the judgment therein recovered -while this action was pending, did not change the situation. (Jex v. Jacob, 19 Hun, 105 ; Reilly v. Sicilian Asphalt Paving Co., 14 App. Div. 242.) In referring to this rule the court, in Secor v. Sturgis (supra), said : “An entire claim, arising either upon a contract ox from a wrong, cannot be divided and made the subject of several suits, and if several suits be brought for different parts of such a claim the, pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits in either will be available as a bar in the other suits; ” and in Howe v. Peckham (supra) the court remarked : “ The running against the plaintiffs carriage in the highway and breaking it and upsetting the plaintiff, and injuring him by the careless negligence of the defendant, never constituted but one cause of action, and in which the plaintiff recovered his damages as well for his personal injury as for the injury to his- property.” The remarks of Lord Coleridge in Brunsden v. Humphrey (14 Q. B. Div. 141) are also quite applicable. He said : “ But it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions if he is injured in his arm and in his leg, but can bring two if, besides his arm and leg being injured, his trousers which contain his leg and his coat sleeve which contains his arm have been torn.”

The case of Perry v. Dickerson (85 N. Y. 345), cited by the appellant, is not in conflict but rather in harmony with this rule. In that case the court simply held that the two actions there referred to were not based upon and did not involve the same cause of action. And Judge Andrews, in delivering the opinion, took occasion to say that “ there can be but one recovery for an injury from a single wrong, however nmnerous the items of damages may be, and but one action -for a single breach of a contract.”

Upon the trial the plaintiff, to establish the defendant’s negligence, relied entirely upon the judgment recovered in the District Court, and no other or further evidence was given upon that subject, the plaintiff insisting that the cause of action was the same in that respect in each action, and that that judgment was res adjudícala upon the question of the defendant’s negligence. If the plaintiff’s contention was correct, and we think it was, then it necessarily follows that the damages to the wagon and the injury to the plaintiff’s person constituted but one and the same cause of action, and a recovery for one necessarily bars a recovery for the other.

It follows that the judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.