Maasch v. Grauer

123 A.D. 669, 108 N.Y.S. 54, 1908 N.Y. App. Div. LEXIS 151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1908
• Status: Published

Opinions

Gaynor, J.:

The plaintiff having prevailed in her action as a judgment creditor to set aside a conveyance of real property by the judgment debtor to this defendant in fraud of creditors, brought this action.to make tlie defendant account for the rents and profits thereof received by him as fraudulent grantee. Judgment should have been given for the defendant. A cause of action, cannot be split up, and a separate action brought on each part. Only one action may be maintained for one cause of action in ■ its entirety, and the judgment therein is res adgudioataot all parts of siich cause of action whether included in the complaint or omitted, including all incidental relief prayed for in the complaint specifically or by being embraced in the general prayer, or which might have been prayed for in the complaint and given by the judgment (Bendernagle v. Cocks, 19 Wend. 207; Bracken v. Atlantic Trust Co., 167 N. Y. 510; Hahl v. Sugo, 169 id. 109; Remsen v. N. Y., B. & M. B. R. Co., 111 App. Div. 413; Clemens v. Clemens, 37 N. Y. 59; Bloomer v. Sturges, 58 id. 168; Jordan v. Van Epps, 85 id. 427).

The right of the plaintiff to make, the defendant account for the rents'and profits could have been enforced in her action to set aside the fraudulent conveyance. ' It wa's- .of that cause of action, and included in the relief that could be obtained therein. If it were á separate cause of action it could have been omitted, for the' rule is not that separate causes of action must be united, if possible, in the same complaint, but only that a cause of action shall not be split up.

The judgment should be reversed and judgment given for the defendant.

Woodward, Jehks and Kick, JJ., concurred; Hooker,. J.,. read for reversal and the granting of a new trial.