Hubbs, P. J.:
The defendant moved for judgment dismissing the complaint under section 277 of the Civil Practice Act and subdivision 5 of rule 107 of the Rules of Civil Practice, on the ground “that there is an existing final judgment or decree of a court of competent jurisdiction rendered on the merits, determining the same cause of action between the parties.” The learned court at Special Term decided that the complaint in the former action and the complaint in the present action stated different causes of action, and the motion was denied. (124 Mise. 590.) The question presented for determination is whether the complaint in the former action and the complaint in the present action state one cause of action, or do they state separate causes of action.
The complaint in the former action alleges that on April 24, 1923, the plaintiff’s intestate received injuries while in the employment of the defendant, a common carrier engaged in interstate commerce, .which caused his death; that the deceased left surviving his wife, the plaintiff, who has been duly appointed administratrix of his estate; that the plaintiff’s intestate and defendant at the time were engaged in interstate commerce; and that the injuries were caused by the negligence and carelessness of the defendant and without fault or carelessness on the part of the plaintiff’s intestate.
It also alleges specifically that the defendant violated the provisions of the Federal Boiler Inspection Act, as amended (Act of Feb. 17, 1911, § 2; 36 IT. S. Stat. at Large, 913, chap. 103, § 2; amd. by Act of Mar. 4, 1915, § 1; 38 U. S. Stat. at Large, 1192, chap. 169, § 1; U. S. Comp. Stat. 1918, §§ 8631, 8639-a; 8 Fed. Stat. Anno. [2d ed.] 1201, 1205; Barnes Fed. Code, § 8047), in that [376]*376the defendant “ permitted such locomotive boiler and appurtenances to become broken, worn and defective contrary to the provisions of such Act, and that by reason thereof the plaintiff’s intestate was killed as herein set forth.” The complaint did not refer to the Federal Employers’ Liability Act of April 22, 1908, as amended by Act of April 5, 1910 (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143;U. S. Comp. Stat. 1918, § 8657 etseq.; 8 Fed. Stat. Anno. [2d ed.] 1208 et seq.; Barnes Fed. Code § 8069 et seq.), and did not specifically allege negligence on the part of the coemployees of plaintiff’s intestate.
Upon the trial under the former complaint the plaintiff relied solely upon the defendant’s alleged violation of the Federal Boiler Inspection Act, and the case was tried and submitted to the jury solely upon that ground. There was a verdict for the plaintiff which was reversed at the Appellate Division and the complaint dismissed. (Luce v. N. Y., C. & St. L. R. R. Co., 209 App. Div. 728; affd., 239 N. Y. 601.)
Thereafter this action was commenced. The present complaint alleges everything that the complaint in the former action alleged, except the allegation in reference to the Federal Boiler Inspection Act and that the intestate endured conscious pain and suffering after the accident for which damages were demanded. In addition it refers in effect to the Federal Employers’ Liability Act, and alleges negligence on the part of the coemployees of plaintiff’s intestate and that the defendant failed to make and promulgate proper rules.
There are at least two sharply defined cases when a judgment in a prior action between the same parties prevents a recovery in a subsequent action.
First, where the claim, demand or cause of action is the same, in which case the judgment is an absolute bar, not only as to all matters litigated, but as to all matters which might have been litigated.
Second, where the claim or demand is not the same, in which case the judgment is an estoppel only as to those matters litigated, and not as to matters which might have been litigated. (34 C. J. 874; Cromwell v. County of Sac, 94 U. S. 351; 24 L. Ed. 195.)
If the distinction pointed out is correct, then the only question here is whether the second complaint is for the same claim or demand covered by the first complaint.
Whatever the rule may be in other jurisdictions, it is well settled in this State that there cannot be two causes of action against the same party in favor of the same person for one personal injury, and a judgment rendered in one such action is res adjudicada. It is the [377]*377policy of our law that the whole question of liability for personal injuries should be settled in one action for all time. “ There can be but one cause of action and one recovery. * * * The single wrong has given rise to a single right, which may be established by as many different facts as the nature of the case may justify or demand.” (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436; Nathans v. Hope, 77 id. 420; Kent v. Erie R. R. Co., 201 App. Div. 293.)
Many of the cases relied upon by the respondent are cases where the cause of action first pleaded was not identical with the cause of action pleaded in the second action. In those cases it is important to determine whether there has been an election of remedies or whether the exact question was litigated and determined in the first action, which it is sought to have determined in the second action. In that class of cases the question is one of fact as to just what was done in the first action. Was the question litigated? Was there an election of remedies?
If, however, the cause of action pleaded in the first action was for a single wrong giving rise to a single- cause of action, then the question is not whether the exact question was litigated in the first action which it is sought to have determined in the second action, or whether there was an election of remedies. In such case the sole question is whether the cause of action first pleaded and that pleaded in the second action are the same. Could the cause of action sought to be litigated in the second action have been litigated in the first action? If so, the first action is res adjudicata.
In Payne v. N. Y., S. & W. R. R. Co. (supra) it was held that a negligent injury to an employee gave rise to but one cause of action for one wrong, but that the plaintiff could allege as a single cause of action as many facts as he claimed contributed to cause the injury. A complaint may allege that the defendant is liable under the common law, under the State Employers’ Liability Act, and under the Federal Employers’ Liability Act. The statutes create new grounds of negligence but not new causes of action.
Amendments to complaints framed under the common law or the New York State Employers’ Liability Act, as formerly contained therein and in the Labor Law or as now found in our Employers’ Liability Law, may be allowed so as to bring the action within the purview of the Federal Employers’ Liability Act and the Federal Safety Appliance Act, even after the running of the Statute of Limitations against new actions under such last-mentioned acts. [378]*378(Kinney v. Hudson River R. R. Co., 98 Misc. 11; affd., sub nom. Kinney v. N. Y. C. & H. R. R. R. Co., 177 App. Div. 948; 190 id. 967; affd., 231 N. Y. 578; affd., sub nom. New York Central & H. R. R. R. Co. v. Kinney,
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Hubbs, P. J.:
The defendant moved for judgment dismissing the complaint under section 277 of the Civil Practice Act and subdivision 5 of rule 107 of the Rules of Civil Practice, on the ground “that there is an existing final judgment or decree of a court of competent jurisdiction rendered on the merits, determining the same cause of action between the parties.” The learned court at Special Term decided that the complaint in the former action and the complaint in the present action stated different causes of action, and the motion was denied. (124 Mise. 590.) The question presented for determination is whether the complaint in the former action and the complaint in the present action state one cause of action, or do they state separate causes of action.
The complaint in the former action alleges that on April 24, 1923, the plaintiff’s intestate received injuries while in the employment of the defendant, a common carrier engaged in interstate commerce, .which caused his death; that the deceased left surviving his wife, the plaintiff, who has been duly appointed administratrix of his estate; that the plaintiff’s intestate and defendant at the time were engaged in interstate commerce; and that the injuries were caused by the negligence and carelessness of the defendant and without fault or carelessness on the part of the plaintiff’s intestate.
It also alleges specifically that the defendant violated the provisions of the Federal Boiler Inspection Act, as amended (Act of Feb. 17, 1911, § 2; 36 IT. S. Stat. at Large, 913, chap. 103, § 2; amd. by Act of Mar. 4, 1915, § 1; 38 U. S. Stat. at Large, 1192, chap. 169, § 1; U. S. Comp. Stat. 1918, §§ 8631, 8639-a; 8 Fed. Stat. Anno. [2d ed.] 1201, 1205; Barnes Fed. Code, § 8047), in that [376]*376the defendant “ permitted such locomotive boiler and appurtenances to become broken, worn and defective contrary to the provisions of such Act, and that by reason thereof the plaintiff’s intestate was killed as herein set forth.” The complaint did not refer to the Federal Employers’ Liability Act of April 22, 1908, as amended by Act of April 5, 1910 (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143;U. S. Comp. Stat. 1918, § 8657 etseq.; 8 Fed. Stat. Anno. [2d ed.] 1208 et seq.; Barnes Fed. Code § 8069 et seq.), and did not specifically allege negligence on the part of the coemployees of plaintiff’s intestate.
Upon the trial under the former complaint the plaintiff relied solely upon the defendant’s alleged violation of the Federal Boiler Inspection Act, and the case was tried and submitted to the jury solely upon that ground. There was a verdict for the plaintiff which was reversed at the Appellate Division and the complaint dismissed. (Luce v. N. Y., C. & St. L. R. R. Co., 209 App. Div. 728; affd., 239 N. Y. 601.)
Thereafter this action was commenced. The present complaint alleges everything that the complaint in the former action alleged, except the allegation in reference to the Federal Boiler Inspection Act and that the intestate endured conscious pain and suffering after the accident for which damages were demanded. In addition it refers in effect to the Federal Employers’ Liability Act, and alleges negligence on the part of the coemployees of plaintiff’s intestate and that the defendant failed to make and promulgate proper rules.
There are at least two sharply defined cases when a judgment in a prior action between the same parties prevents a recovery in a subsequent action.
First, where the claim, demand or cause of action is the same, in which case the judgment is an absolute bar, not only as to all matters litigated, but as to all matters which might have been litigated.
Second, where the claim or demand is not the same, in which case the judgment is an estoppel only as to those matters litigated, and not as to matters which might have been litigated. (34 C. J. 874; Cromwell v. County of Sac, 94 U. S. 351; 24 L. Ed. 195.)
If the distinction pointed out is correct, then the only question here is whether the second complaint is for the same claim or demand covered by the first complaint.
Whatever the rule may be in other jurisdictions, it is well settled in this State that there cannot be two causes of action against the same party in favor of the same person for one personal injury, and a judgment rendered in one such action is res adjudicada. It is the [377]*377policy of our law that the whole question of liability for personal injuries should be settled in one action for all time. “ There can be but one cause of action and one recovery. * * * The single wrong has given rise to a single right, which may be established by as many different facts as the nature of the case may justify or demand.” (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436; Nathans v. Hope, 77 id. 420; Kent v. Erie R. R. Co., 201 App. Div. 293.)
Many of the cases relied upon by the respondent are cases where the cause of action first pleaded was not identical with the cause of action pleaded in the second action. In those cases it is important to determine whether there has been an election of remedies or whether the exact question was litigated and determined in the first action, which it is sought to have determined in the second action. In that class of cases the question is one of fact as to just what was done in the first action. Was the question litigated? Was there an election of remedies?
If, however, the cause of action pleaded in the first action was for a single wrong giving rise to a single- cause of action, then the question is not whether the exact question was litigated in the first action which it is sought to have determined in the second action, or whether there was an election of remedies. In such case the sole question is whether the cause of action first pleaded and that pleaded in the second action are the same. Could the cause of action sought to be litigated in the second action have been litigated in the first action? If so, the first action is res adjudicata.
In Payne v. N. Y., S. & W. R. R. Co. (supra) it was held that a negligent injury to an employee gave rise to but one cause of action for one wrong, but that the plaintiff could allege as a single cause of action as many facts as he claimed contributed to cause the injury. A complaint may allege that the defendant is liable under the common law, under the State Employers’ Liability Act, and under the Federal Employers’ Liability Act. The statutes create new grounds of negligence but not new causes of action.
Amendments to complaints framed under the common law or the New York State Employers’ Liability Act, as formerly contained therein and in the Labor Law or as now found in our Employers’ Liability Law, may be allowed so as to bring the action within the purview of the Federal Employers’ Liability Act and the Federal Safety Appliance Act, even after the running of the Statute of Limitations against new actions under such last-mentioned acts. [378]*378(Kinney v. Hudson River R. R. Co., 98 Misc. 11; affd., sub nom. Kinney v. N. Y. C. & H. R. R. R. Co., 177 App. Div. 948; 190 id. 967; affd., 231 N. Y. 578; affd., sub nom. New York Central & H. R. R. R. Co. v. Kinney, 260 U. S. 340.)'
If different causes of action were involved, motions for leave to make such amendments would obviously be denied as attempts to bring in causes of action barred by the Statute of Limitations.
In the case at bar the plaintiff had one cause of action growing out of the death of her intestate. She could allege as many grounds of liability as she claimed. When she elected to try the case upon one of those grounds and was defeated, she was barred from maintaining another action upon another alleged ground of liability. To hold otherwise would entitle her to try an action for negligent injury, first, upon the common-law liability of the defendant; if defeated in that action she could then bring a new action under some statute; if again defeated she could bring an action under another statute; and so on until an action had been brought upon as many claims as she might have. Such procedure has never been tolerated and is contrary to well-understood principles, which prevent a plaintiff from splitting his claim or dividing the grounds of recovery. 'A plaintiff in a personal injury action must allege all the grounds upon which he seeks a recovery, and when defeated is barred by the judgment as to all grounds. (United States v. California & Oregon Land Co., 192 U. S. 355; 48 L. Ed. 476; Nauyalis v. Philadelphia & Reading Coal & Iron Co., 270 Fed. 93; Lehigh Valley R. Co. v. Quereau, 289 id. 767, 770; 34 C. J. 818; Donovan v. Cunard S. S. Co., Ltd., 119 Misc. 426; affd., without opinion, 206 App. Div. 751; appeal dismissed, 236 N. Y. 651.)
We find nothing in Ward v. Erie R. R. Co. (230 N. Y. 230) in conflict with this view. It was held in that case that a railroad company violating the provisions of the_ Federal Safety Appliance Act and thus causing personal injury to an employee not engaged in interstate commerce, is subject to an action for such employee’s damages, enforcible in the New York State courts, notwithstanding the terms of the Workmen’s Compensation' Law. The right of action “ created or preserved ” by the Federal act is made effective through a remedy impliedly given by the act. The court said: “ Here [in the Federal statute] there are two provisions that unmistakably reveal the purpose to give to the right of action for damages then attaching at common law a statutory confirmation and a statutory sanction.” The Federal statute thus unquestionably extends to employees a protection in cases where no right existed before and creates or preserves a remedy, that is, the privilege to maintain an action to enforce the employee’s right. [379]*379In our opinion, however, the cause of action is still the same cause of action for personal injuries which existed at common law, although under the Workmen’s Compensation Law in the absence of the Federal statute it was not enforcible by action in our courts.
“ By the last-mentioned section [Federal Boiler Inspection Act, § 2], defendant was bound absolutely to furnish what before, under the common law, it was its duty to exercise ordinary care to provide.” (Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 528.)
The order should be reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, with ten dollars costs.
Sears and Taylor, JJ., concur; Davis and Crouch, JJ., dissent in an opinion by Davis, J.