
    Sheldon H. Solow, Doing Business as Solow Building Company, Appellant, v Avon Products, Inc., Respondent.
    Argued February 16, 1978;
    decided March 29, 1978
    
      APPEARANCES OF COUNSEL
    
      Joel M. Miller, Jack Newton Lerner, Robert J. McDonald, Paul P. Colborn and Catherine M. A. McCauliff for appellant.
    
      Charles C. Parlin, Jr., John T. Klug and John B. Creegan for respondent.
   OPINION OF THE COURT

Memorandum.

The order should be affirmed, with costs.

By the settlement agreement of March 18, 1976, the parties released one another from all claims arising out of the extra work save for the one "already asserted” in the present proceeding. Included among those so released was the claim which had been the subject matter of the prior proceeding. The earlier proceeding was the predicate for the affirmative defense that the plaintiffs present suit is barred because its subject matter is but the second part of an existing single cause of action which impermissibly has been split (930 Fifth Ave. Corp. v King, 42 NY2d 886, 887; 3 Carmody-Wait 2d NY Prac, § 16:1, p 73). By entering into the agreement, defendant in effect waived that defense.

We therefore reach the merits. On doing so, we conclude that the Trial Judge’s determination — that there was no error in the plaintiffs original method of computation and that, as a consequence, the moneys sought by the supplemental claim here at issue were neither due nor owing — is well supported by the practical construction which the record at the Civil Court indicates was accorded the disputed lease provision by the parties themselves (Brooklyn Public Lib. v City of New York, 250 NY 495, 501; see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 400; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291).

Gabrielli, J.

(concurring). I am in agreement with the majority of the Appellate Division that plaintiff has attempted to impermissibly split a single cause of action, and would affirm on that ground alone. I am unable to agree with the majority of this court that by settling the prior proceeding the defendant "in effect waived that defense”. The effect of excluding the claims asserted in this proceeding from the general release incorporated in the settlement of the prior proceeding was simply to ensure against the conclusion that the parties were settling all their claims, including the claims asserted in this action. Failure to have included such a savings clause in the release would surely have resulted in the inadvertent inclusion of these claims in that release. I see no way in which this savings clause can be viewed as a waiver of a defense already asserted in this action. Such an intent is not to be inferred from so formalistic a provision.

Judges Jasen, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum; Judge Gabrielli concurs in result in a separate opinion in which Chief Judge Breitel concurs.

Order affirmed.  