Dailey v. Standard Shipbuilding Corp.

179 A.D. 647, 167 N.Y.S. 38, 1917 N.Y. App. Div. LEXIS 7993

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1917
• Status: Published

Opinion

Scott, J.:

Plaintiffs’ action is based upon a contract with defendant for filling in certain premises at Shooter’s Island, New York. It is alleged that plaintiffs entered upon the performance of the contract on November 13, 1916, and continued to perform it until August 6, 1917, when they were stopped by defendant and prevented from further performing. They now sue in one count for moneys earned while they were engaged in the performance of the contract, and for damages suffered and profits prevented by reason of defendant’s acts in preventing further performance after August 6, 1917.

It is obvious that the complaint contains two causes of action, one for moneys earned under the contract, and another for damages suffered by reason of its breach. These should be separately stated and numbered. (Smith Bros., Inc., v. Stern, 148 N. Y. Supp. 1; Perry v. Dickerson, 85 N. Y. 345.) All the damages alleged to have been caused by the breach may be properly included in a single count.

The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted to the extent indicated.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent indicated in opinion. Order to be settled on notice.