Nathans v. . Hope

77 N.Y. 420, 1879 N.Y. LEXIS 792

• Court: New York Court of Appeals
• Decided: May 27, 1879
• Status: Published

Opinion

Miller, J.

The principle is well settled that an entire indivisible demand cannot be split up into several claims, so as to make it the subject of íavo or more separate actions : (Secor v. Sturgis, 16 N. Y., 554.) It folloAvs, as the result of this rule, that "where a claim arises upon a contract, or from a tort, the entire claim must be prosecuted in a single suit, and several suits cannot be brought for separate parts of such claim. Where several suits are brought, the pend-ency of the first may be pleaded in abatement of the other suit or suits, and a judgment in either will be a bar to a recovery in any other suit.'

But this rule does not interfere with the prosecution of separate suits for distinct causes of action, which are not connected with each other and do not constitute an entire claim. Hence it follows that there is no rule of law or principle which prevents the prosecution of several promissory notes in separate and distinct actions, and the holder may maintain an action separately on each note. The same rule applies to separate trespasses. A separate suit may be brought for each one of them ; and all demands which arise upon a separate and distinct transaction may be prosecuted separately. (See case last cited.) Where separate actions are brought upon several promissory notes, the party bringing the same runs the risk of an order consolidating all of them into one single action ; but a recovery in one is not a bar to any other.

In the case at bar, the note on which the action was brought was one of three given to take up three other notes which were given upon the settlement of an indebtedness to the amount thereof; but this fact did not make each of them a part of the original demand, so as to compel the plaintiff to bring a single action for all the notes. The notes given for the original indebtedness were a settlement of that, to the extent of making each one a separate and distinct cause of action, and there is no principle or authority which sustains the doctrine that a party holding such notes cannot pursue a separate remedy, and maintain a distinct action upon each of them. If an action was brought on the old notes, originally given by the defendant, it would be a defense to such action, that the new notes had been given in the place of the former, and that they had in that manner been paid. The authorities cited to sustain the position that the notes given were not a payment, and did not extinguish the debt, have no application where the original demand is divided into different parts by separate notes, as was the fact here. The new notes are in force and can he separately prosecuted, as is manifest. There is, therefore, no merit in the defense interposed and the case was properly disposed of on tho trial.

The judgment should he affirmed, with costs.

All concur.

Judgment affirmed.