Lyman v. Broadway Garden Hotel & Cafe Co. & Fidelity & Deposit Co.

Appellate Division of the Supreme Court of New York

Lyman v. Broadway Garden Hotel & Cafe Co. & Fidelity & Deposit Co.

1 Liquor Tax Rep. 385

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 15, 1898

StatusPublished

This text of 1 Liquor Tax Rep. 385 (Lyman v. Broadway Garden Hotel & Cafe Co. & Fidelity & Deposit Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyman v. Broadway Garden Hotel & Cafe Co. & Fidelity & Deposit Co., 1 Liquor Tax Rep. 385 (N.Y. Ct. App. 1898).

Pincite

Opinion

Barrett, J.

But one cause of action is alleged in the complaint. That cause of action is upon a single instrument to recover the sum named therein. The plaintiff has averred a number of specific breaches of the various conditions of this bond. These breaches, however, do not constitute separate causes of action. They are simply separate assignments of the specific breaches upon which judgment for the single sum is demanded. The defendant seems to think that the correctness of the order made below depends upon the question whether the amount in the bond is to be regarded as a penalty or as liquidated damages. This view is erroneous. It matters not whether the recovery be limited to the damages sustained by the various breaches alleged, or whether the sum named in the bond be treated as liquidated damages. In either aspect the cause of action is single. The action must not be confused with one to recover statutory penalties. It is upon the surety’s contract to pay a specific sum of money. A right of action inures upon the breach of any one of the conditions of the bond. The cause of action is the same upon the breach of all the conditions: The recovery may, it is true, be greater or less, dependent upon the proper view of the sum specified. With that question we have at present nothing to do. Whether it be a penalty or liquidated damages, there is still but a single cause of action alleged in the complaint.

[387]*387The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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Barrett, J.

But one cause of action is alleged in the complaint. That cause of action is upon a single instrument to recover the sum named therein. The plaintiff has averred a number of specific breaches of the various conditions of this bond. These breaches, however, do not constitute separate causes of action. They are simply separate assignments of the specific breaches upon which judgment for the single sum is demanded. The defendant seems to think that the correctness of the order made below depends upon the question whether the amount in the bond is to be regarded as a penalty or as liquidated damages. This view is erroneous. It matters not whether the recovery be limited to the damages sustained by the various breaches alleged, or whether the sum named in the bond be treated as liquidated damages. In either aspect the cause of action is single. The action must not be confused with one to recover statutory penalties. It is upon the surety’s contract to pay a specific sum of money. A right of action inures upon the breach of any one of the conditions of the bond. The cause of action is the same upon the breach of all the conditions: The recovery may, it is true, be greater or less, dependent upon the proper view of the sum specified. With that question we have at present nothing to do. Whether it be a penalty or liquidated damages, there is still but a single cause of action alleged in the complaint.

[387]*387The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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Bluebook (online)

1 Liquor Tax Rep. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyman-v-broadway-garden-hotel-cafe-co-fidelity-deposit-co-nyappdiv-1898.