
    Walter Scott et al., App’lts, v. Napoleon J. Haines, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed March 10, 1892.)
    
    Bar—Judgment—Independent accounts.
    Plaintiff had two independent claims against defendant, who made a payment which plaintiff applied on one account and sued upon the other. In that action it was claimed that the payment should have been credited on the claim there sued upon, and it was so determined and the credit applied thereon. This action was then brought on the other account. Held, that the judgment in the former action was not a bar.
    Appeal from judgment entered on dismissal of complaint by trial judge.
    
      A. G. iV Vermilyea, for app’lts; J. D. Quincy, for resp’t.
   Ehrlich, Ch. J.

The complaint was dismissed upon the pleadings, and upon the theory that the claim sued upon had been .adjudicated, in a former action, adversely to the plaintiffs.

But the record does not sustain this claim.

The plaintiffs, according to their theory, did work and extra work, and in the action first brought they credited as paid the amount claimed herein.

Upon that trial the defendant succeeded in convincing the court that the credit should have been applied to the contract work (the subject of the other suit), and it was so applied.

The court having judicially determined that the plaintiffs credited the seventy-five dollars on the wrong account, they cancelled such credit, and brought this action to recover the amount, and the reply alleges that the contract work (for which a recovery was had) was for labor- and material entirely distinct from the labor and material involved in this action.

Assuming, as we must, that this allegation is true, separate actions might have been brought and separate recoveries had Secor v. Sturgis, 16 N. Y., 548.

The recovery in the first action did not operate as a bar to-this. By analogy, Wilcox v. Lee, 1 Abb., N. S., 250.

In other words, if A has two, independent accounts of $100.' each against B. and B. pays $100, which A. credits on one, and sues on the other, B. proves that A. should have credited the sum paid on the account in suit and obtains a judgment accordingly, this certainly does not prevent A. from cancelling the erroneous, credit, and suing on the other account

Such an adjudication would not bar the second action.

There must be a new trial, upon which the proof may alter the result, but upon the pleadings as they stand it was error to-dismiss the complaint.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event.

Fitzsimoms, J., concurs.  