
    De Graff & Palmer, Plaintiff, v. Mayer L. Mayper et al, Defendants.
    (City Court of New York, Trial Term,
    June, 1909.)
    Former adjudication — Adjudication as bar to all matters which might have been litigated — Splitting cause of action—'Installments.
    Where, under a contract to manufacture, or to cause to be manufactured, certain merchandise at ccr-tain agreed prices, to be delivered at different times, the vendee refuses to accept future deliveries and the plaintiff brings an action for breach of the contract on account of the vendee’s refusal to accept two items and obtains judgment therefor which is paid, such judgment is a bar to a subsequent action for the vendee’s refusal to accept a third item.
    Action for breach of contract.
    Wherry & Morgan, for plaintiff.
    Mayper & Boochever (Moses Feltenstein, of counsel), for defendants.
   Green, J.

This is an action tried before the court without a jury for an alleged breach of contract. The plaintiff, on December 4, 1906, agreed to manufacture or to cause to be manufactured certain merchandise for the defendants at certain prices to which defendants agreed. On December 4, 1906, a memorandum of the sale was delivered to the defendants and a copy, retained by the plaintiff. Subsequently to the date of the contract certain deliveries were made and accepted by defendants. There were six items of merchandise sold under the contract, each item having various colors, and the time of delivery varied as to several items. After some of the deliveries were made the defendants declined to accept further deliveries and informed the plaintiff to discontinue sending any further merchandise under the contract or order. Thereafter, and on or about August 27, 1908, the plaintiff herein-brought an action for breach of contract against the defendants for the sum of $306.14, in the Municipal Court of the city of Mew York, borough of Manhattan, first district, and alleged as its cause of action that the plaintiff sustained damage by reason of the refusal or failure of the defendants to accept two of the items of merchandise contained in the contract. The plaintiff recovered judgment in the Municipal Court, and now brings this action to recover the sum of $591.39 against the defendants, as damages arising on another item contained in the original contract made between the parties. The defendants maintain that the action in the Municipal Court is res adjudicate and that the plaintiff cannot recover in this action, upon the ground that the law forbids the splitting of causes of action, and that where separate causes of action exist arising out of the breach of an entire contract all those causes of action existing "at the time the first action is brought must be joined or the right to thereafter bring them is lost The contract herein was made on December 4, 1906. Some time prior to March, 1908, however, the plaintiff herein knew of the fact of defendants’ refusal to accept any further goods under the order, as evidenced by a certain letter dated March 20, 1908, from plaintiff to defendants, and marked in evidence in the Municipal Court trial as “plaintiff’s exhibit 3,” and in which they refer to the item of merchandise, the subject of the claim for damages in the case at bar, as. being held, subject to defendants’ risk. It is thus evident that in March, 1908, plaintiff’s cause of action existed against the defendants and included the claim for damages in the item at bar. Notwithstanding this fact the plaintiff brought the action in the Municipal Court, as before stated, upon two items and omitted the third item for which suit was commenced some time after- in this court, although at the time the action in the Municipal Court was brought this cause o-f action at bar existed. The question is, therefore, presented whether the plaintiff is now precluded by the former judgment from recovery on a cause of action which existed at the time the other action was brought and which might have been included at the time. “ The fact that the property was deliverable and the purchase money payable' at different times in the future did not- necessarily deprive the contract of the character of entirety or make it other than a single one in respect to all the goods embraced in its terms. * * * There can be but one action for damages for the total breach of an entire contract to deliver goods, and the fact that they were to be delivered in instalments from time to time does not change the general rule.” Pakas v. Hollingshead, 184 N. Y. 214. “ The general principle is that several claims already due under the same contract shall be deemed one entire demand or cause of action.” Bendernagle v. Cocks, 19 Wend. 207. I am of the opinion that the case of Welch v. Buchan’s Soap Corporation is decisive of this action. In that case the court said: “ In order to avoid a multiplicity of actions the law forbids that a cause of action shall be split up for the purpose of bringing several actions, and although when several claims payable at different times arise out of the same contract or transaction, separate actions can be brought as such liability occurs, still, if no action is brought until more than one claim is due, all the claims that are due must be included in one action; and if an action is brought when more than one claim is due, a recovery in that suit will be an effectual bar to a second action brought to recover the other claims that were due when the first action was brought.” Welch v. Buchan’s Soap Corpn., 107 N. Y. Supp. 617, and cases cited; see also Dickinson v. Tyson, 110 id. 271; Pakas v. Hollingshead, 184 N. Y. 218. I find that the cause of action at bar existed at the time that suit was brought in the Municipal Court upon the other two items sued upon and arising out of the same contract, and, judgment having been rendered in that action and paid, I am of the opinion that plaintiff is barred from maintaining this action. Judgment is, therefore, awarded to the defendants upon the merits.

Judgment for defendants.  