Michael H. v. Bean

2 Hilt. 340

• Court: New York Court of Common Pleas
• Decided: April 15, 1859
• Status: Published

Opinion

By the Court, Hilton, J.

The defendant, on this appeal, asks the application of the familiar rule of law, that a party who sues and recovers for a portion of an entire demand, shall be barred of the residue; and, as the case has been rested upon this single proposition, it is only necessary to show its inapplicability here, to determine the appeal taken.

1st. It appears that no judgment whatever was rendered in the action first brought, the alleged recovery in which is set up in the answer as a bar to the present suit. The evidence shows that an action was commenced to recover the price of a quantity of brandy sold and delivered at a specified time, that the defendant appeared, but before trial paid the amount claimed, and thereupon the suit was discontinued. This was not a “ recovery ” which, in any case, would be available as a bar to another suit. Ho money was obtained by the judgment of a court, and payment of the amount claimed under such circumstances simply went towards extinguishing so much of the plaintiff’s demand.

2d. The two suits related to separate demands or transactions. Each arose out of a sale of a distinct quantity of brandy upon a specified credit of six months, expiring at different periods. In the language of Strong, J., in Secor v. Sturges, 16 N. Y. Rep. (2 Smith,) 548, “ a plainer case of distinct, independent causes of action, could hardly be presented.”

Judgment affirmed.