Smith Bros. v. Stern

148 N.Y.S. 1 | N.Y. App. Term. | 1914

PAGE, J.

The parties to this action entered into a contract whereby plaintiff agreed to publish advertisements of the defendants’ business in each issue of a trade journal for three years from April, 1912, to March, 1915, at an agreed price of $104 per year. On June 18, 1913, defendants notified the plaintiff that they canceled the contract and instructed plaintiff to do no more advertising for them. In February, 1914, the plaintiff brought an action against the defendants to recover the balance due under the contract for the first year’s advertising, which had been fully earned prior to the notification of cancellation, and recovered judgment therefor. This action is brought for damages for defendants’ breach of the contract. The measure of damages is alleged as the amount that the plaintiff would have received under the contract, had it been performed. The defendants pleaded the former action, and judgment as a bar to this action. The court below gave judgment for the defendants upon the pleadings and the judgment roll in the former action.

[1,2] An action to recover a sum due and owing, according to the terms thereof, upon a portion of a contract that has been performed, is entirely separate and distinct from a cause of action arising out of a subsequent breach of the contract. While it is true both causes of action existed at the time the first action was brought, and could have been included in the complaint in that action, plaintiff, however, was not obliged to do so. Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663. The rule is that where there exists a single cause of action, consisting of several items or installments, all that are due at the time of the commencement of the first action must be included. The rule does not apply to several separate and distinct causes of action.

The judgment should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.