Staples v. Goodrich

21 Barb. 317 | N.Y. Sup. Ct. | 1856

By the Court, Bockes, J.

It has long been well settled, that an entire and indivisible demand cannot be split up by a party, so as to form the basis of two actions; that if a plaintiff bring an action for part only of an entire and indivisible demand, the judgment in that action is a conclusive bar to a subsequent suit for another part of the same demand. (Bendernagle v. Cocks, 19 Wend. 207. Colvin v. Corwin, 15 id. 557. Guernsy v. Carver, 8 id. 492. Miller v. Covert, 1 id. 487. Smith v. Jones, 15 John. 229. Farrington v. Payne, Id. 432. Phillips v. Berick, 16 id. 136. Willard v. Sperry, Id. 121. Stevens v. Lockwood, 13 Wend. 644. Waterbury v. Graham, 4 Sandf. 215.) There is no disparity in the cases, that a recovery for part of an entire demand bars a suit for the whole. There has been, sometimes, difficulty in discriminating between entire and several demands, and in this lies the perplexity, if there is any, in this case.

In my judgment, however, the demands under consideration were separate and distinct. They were not in the nature of a current account, but eaph was an entire contract, of itself. As to one, credit was given, while no time was given to the other. Unlike a current account, they are plainly divisible. The same evidence which would prove one, would not establish the other. In most of the cases cited, the matter of the second action was part of or grew out of the transaction in regard to which there had been a former adjudication. The distinction to be observed, between most of the cases cited and this case, is pointed out in Phillips v. Berick, (16 John. 136,) also in Stevens v. Lockwood, (13 Wend. 644.) The question in Phillips v. Berick, was whether a recovery'by the plaintiff for work, labor and services done on the 8th of March, 1817, was a bar to another claim for work, labor and services done and performed before that time, each claim being for an entirely disconnected and distinct piece of service. The court held that the former recovery was not a bar; and Mr. Justice Spencer remarked that there was no case or dictum which requires the party to join in one suit several and distinct causes of action. The plaintiff may elect to sue upon them separately, and it is no objection that they belong to the same family of causes, provided their identity is not the same.

[Saratoga General Term, January 1, 1856.

Judgment 'affirmed.

C. L. Allen, Bockes and James, Justices.]