Gardner v. Patten

15 N.Y.S. 324, 36 N.Y. St. Rep. 1023, 1891 N.Y. Misc. LEXIS 3211

• Court: New York Court of Common Pleas
• Decided: March 2, 1891
• Status: Published

Opinion

Per Curiam.

There is no finding of the trial court that the amount sued for here became due under the same contract as the amount for which the plaintiff’s assignor recovered in the prior action. The fifth finding is that the work here sued for was done “under the same agreement as to payment,” but not that it was under the same agreement as to work, and it expressly states that this was “other work.,” It would therefore appear that there were two agreements made,—one for the work done in September and October, for which the plaintiff’s assignor sued, and another for work and materials furnished •during the month of November, for- which the assignee now sues,—and that the case is within Zimmerman v. Erhard, 83 N. Y. 78. Where goods were sold and delivered at different times, it was held that a separate cause of action arose for each sale and delivery, so that in making this assignment there was no splitting of a single demand. ■

In addition, it may be observed that in the case of Mills v. Garrison, *42 N. Y. 40, it was held that the debtor may waive the benefit of the rule that a single cause of action cannot be split, and, as all the evidence in this case is not before us, it may be that there was proof which justifies the finding of a waiver. There is nothing in the evidence to negative it, and the court having refused to find that there was a single cause of action, and also having refused to find that no recovery could be had for this amount, we might assume that there was evidence before him to justify his refusal to find this request. The judgment should be affirmed upon the-record.