
    JEX v. JACOB.
    N. Y. Supreme Court, First Department;
    
    
      General Term, October, 1879.
    Again, N. Y. Common Pleas,
    
      Special Term, February, 1880.
    Pleading.—Supplemental Answer.—Res Judicata.—Waiter.— Joinder of Causes of Action.—Vacating Judgment.—Code Cit. Pro. § 1282.
    In an action to recover upon a single covenant,—such as the usual covenant to pay rent, in a lease,—if all sums accrued and payable at the time the action is commenced, are not included, those omitted cannot, after judgment, be recovered in another action, it matters not which action be brought first. ;
    
      The case of McIntosh ». Lown, 40 Barb. 550,—opposed.
    
    In an action for an installment of rent, judgment in a junior action for an other installment, which was due on the same covenant before the senior action was commenced, may be set up by supplemental answer, and is a bar.
    The defense is not waived, nor the right to set it up affected by the omission to interpose the first action as an abatement of the second.
    Whichever action first terminates in a judgment, may be used in this way as a defense to the other.
    A judgment cannot be set aside on the ground of the plaintiff’s mistake, inadvertence, surprise, or excusable neglect, after one year from the service of a transcript thereof by plaintiff’s attorney upon the attorney for the defendant.
    The transcript is a notice in writing, and is as effectual as a notice in tlie customary form.
    This action was brought by Josiah Jex, against Ephraim A. Jacob, and others, to recover two installments of rent, claimed to be due him for the quarters ending August 1, 1877, and November 1, 1877, under a written indenture of lease executed between him and the defendants, together with two other persons named in the complaint, who died before the commencement of this action.
    I. N. T. Supreme Court, General Term, October, 1879.
    Appeal by defendants from an order sustaining a demurrer to part of an answer.
    Subsequent to the commencement of this action, the plaintiff instituted another action against the same defendants named herein, in the court of common pleas for the city and county of New York, to recover a balance remaining unpaid on a prior installment or quarter of rent.
    The sum of money sought to be recovered in this latter action was due and owing at the time of the commencement of the action in this court, .and the indebtedness alleged in both actions arose out of the same indenture of lease.
    ■ Judgment was recovered by the plaintiff against the defendants in the second action, which judgment was thereafter satisfied by payment. The defendants in their answer ■ herein have set up these facts, and the said judgment, as a defense and as a plea in bar against any further recovery on the part of the plaintiff for any installments of rent which were due at the commencement of this action. To this defense the plaintiff interposed a demurrer, which was sustained at the special term of this court.
    The defendants appealed from the order sustaining the same and from the judgment entered thereon.
    
      E. A. Jacob (Lauterbach & Spingarn, attorneys),
    for defendants, appellants.—An
    entire or indivisible claim or demand cannot be split up so as to make it the subject of two or more separate actions (Miller v. Covert, 1 Wend. 487; Guernsey v. Carver,. 8 Id. 492 ; Stevens v. Lockwood, 13 Id. 646; Smith v. Jones, 15 Johns. 229 ; Farrington r. Payne, Id. 432 ; Willard v. Sperry, 16 Id. 121 ; Wells on Bes Adjudicata, 204). The installments of rent sued for in the two actions constituted an entire or indivisible claim or demand (Bendernagle v. Cocks, 19 Wend. 206; Secor v. Sturgis, 16 N. Y. 548; Coggins v. Bullwinkle, 1 E. D. Smith, 436; Yates v. Fasset, 5 Den. 28 ; Colvin v. Corwin, 15 Wend. 492; Hopf v. Myers, 42 Barb. 270 ; Logan v. Caffrey, 6 Casey, 196). Where several claims, payable at different times, arise out of the same contract, separate actions can be brought as. each liability inures; but if no action is brought until more than one is due, all that are due must be included in one action (Reformed Church v. Brown, 54 Barb. 191). McIntosh v. Lown, 49 Barb. 557, has not.been followed; it was disapproved in Moody v. Leverich, 14 Abb. Pr. N. S. 154; nor has Badger v. Titcomb, 15 Pick. 409, been followed in this State. In addition to above, see : Bair v. United States, 96 U. S. 430; Casselbery v. Forquier, 27 Ill. 170 ; Camp v. Morgan, 21 Id. 258; Wells Res Adjudicala, 211; 4 G. Greene (Iowa), 317; O’Beirne v. Lloyd, 43 N. Y. 248; 3 W. & S. 143. The case of Beach v. Crain, 2 N. Y. 86, is clearly distinguishable from the present. The defendants could plead pendency of first action in abatement of the second; or plead judgment in second as bar to first (Secor v. Sturgis, 16 N. Y. 548; Mills v. Garrison, 3 Abb. Cl. App. Dec. 297). The proper defense to be interposed in an action for the recovery of a part of an entire or indivisible claim, when there has already been a recovery for another part of the same claim in another action, is that there has been a former recovery for the same cause of action (Avery v. Fitch, 4 Conn. 362 ; Bagot v. Williams, 3 Barn. & Cress. 235 ; Stowell v. Chamberlain, 60 N. Y. 276). It does not affect the rule in any way whether the judgment was recovered in the suit first brought or in that subsequently commenced (Nichols v. Mason, 21 Wend. 339; Waterbury v. Graham, 4 Sandf. 215; Yates v. Preston, 41 N. Y. 113; 96 U. S. 432). And the same principle applies to torts ( Wells on Res Adjudicata, 205; Marble v. Keyers, 9 Gray, 221). And the rule is the same as to a judgment in another State embracing the same matter, although the suit in which the judgment has been obtained was begun after the one to which the judgment is pleaded in bar (Paine v. Schenectady Ins. Co., 16 Am. Law Reg. N. S. 564; North Bank v. Brown, 50 Me. 214 ; Baxley v. Linah, 16 Penn. 241). It is the first judgment that controls (Wells on Res Adjudicata, 247; Duffy v. Lytle, 5 Watts, 130; Casebeer v. Mowry, 55 Penn. 422).
    
      
      Adolph L. Sanger (M. S. Isaacs, attorney); for plaintiff, respondent.
    
      
       See the next case following, Perry ®. Dickerson.
    
   Daniels, J.

This action has been brought to recover $6,615, with interest thereon, for rent accruing ón a lease executed by the parties whereby certain premises were demised to the defendants by the plaintiff. At the time when this was commenced, other rent had become due to the plaintiffs on the same convenant, for the preceding occupancy by the defendants of the same premises. Judgment was recovered in that action, which was afterwards satisfied by payment. And leave was thereupon obtained to set forth that recovery and payment as a defence to this action. That was done by a supplemental answer, and to that the plaintiff demurred for the reason that it did not contain facts sufficient to constitute a defense. This was a proper subject for a supplemental answer, even though the judgment relied upon as a defense was recovered while this action was pending (Code Civ. Pro. § 544). And the fact that the judgment was rendered in an action commenced after the present suit was instituted rendered the judgment none the less effectual by way of defense (Casebeer v. Mowry, 55 Penn. 419; Duffy v. Lytle, 5 Watts, 120.) Neither was it waived, or the right to set it up as defense affected, by the omission to interpose the first action by way of abatement (Nicholl v. Mason, 21 Wend. 330), and nothing was said in the decision of the case of Mills v. Garrison, 3 Abb. Ct. App. Dec. 297, which would warrant any different conclusion. All that was there held was that a party by means of his agreement might deprive himself of the right to rely upon a judgment for part of an entire demand as a defense to another suit brought for the recovery of the residue. It has no application to a controversy in which no such agreement has in any form been made.

The point therefore is distinctly presented whether the recovery in the second action for the small balance of preceding rent, amounting to less than the sum of $200, followed by its actual payment and satisfaction, creates a legal defense to the large amount now- claimed. Both demands were due when this action was commenced, and they accrued for distinct failures to perform the same covenant. They might properly have been united in the same action, but if the decision made in the case of McIntosh v. Lown, 40 Barb. 550, should be followed, the plaintiff was at liberty to prosecute a different action, for the recovery of each of these separate amounts. That decision, though made on the effect of distinct and different covenants, seems to have been strikingly in conflict with the preceding cases on this subject, and as the rule declared by them has since been repeatedly followed, notwithstanding that departure from it, no sound foundation now remains for considering it reliable. The rule of law upon this subject, on a very complete examination of the authorities, was declared to be the other way, in the decision of the case of Bendernagle v. Cocks, 10 Wend. 207. By that determination all demands due on the same contract at the time when the action is commenced are required to be included in it, or to be held and considered barred, on the recovery of judgment for a part. In other words, they are all held to create but one cause of action. This authority in its facts was very much like the present case, and as it has not been overruled, and not seriously questioned, except in the instance already mentioned, it ought to be decisive of the point now presented for decision.

But it is not necessary that it should be left to stand simply on the force of that determination. For the same point has been often held by different tribunals in the same way, since that decision was made. That was prominently the nature of the decision made in Secor v. Sturgis, 16 N. Y. 548. In the course of the decision there made, it was said that, “ The case of a contract containing several stipulations to be performed at different times is no éxception. Although an action may be maintained upon each stipulation as is broken, before the time for the performance of the other, the ground of action is the stipulation, which is it in the nature of a several contract (Id. 538). In the Reformed Prot. Church v. Brown, 54 Barb. 101, it was held that “when several claims, payable at different times, arise out of the same contract or transaction, separate actions can be brought as each liability inures. Still, however, if no action is brought until more than one is due, all that are due must be included in one action, and if an action is . brought when more than one is due, a recovery in the one first brought will be an effectual bar to a second action, brought to recover the other claims, that were due when the first was brought” (Id. 199). And it has been already shown that the same result is held to be produced, even though the judgment first recovered is in the action secondly brought. The principle must be the same, whichever action may first terminate in a judgment, for that will work a recovery of a part of what in reality is but an entire and single cause of. action. The same rule was announced in the case of Yates v. Fassett, 5 Den. 21-28, where it was held that distinct suits cannot be brought for several breaches of different covenants contained in the same instrument, but all those which have accrued at the time of commencing the suit must be embraced in the same action. O’Beirne v. Lloyd, 43 N. Y. 248, is to the same effect. It was held, that demands which have arisen under the same contract, “constitute an entire and indivisible cause of action within the principle of the authorities,” “ which are collected and reviewed in the case of Secor v. Sturgis (Id. 250, 251). And nothing different was suggested in deciding Stowell v. Chamberlain, 70 N. Y. 272. But it was, on the contrary, broadly said, that if by law a judgment could have been given for the plaintiff in a former suit, for precisely the same cause of action as that for which the present suit was brought, it has within the rule passed into judgment, and is res judieata. But in order to bar the second, the circumstances much be such that" the plaintiff might have recovered in the first for the same cause alleged in the second ” (Id. 276). The rule already stated was in terms sanctioned in Baird v. United States, 96 U. S. 430, 432, and Casselberry v. Forquer, 27 Ill. 170. And nothing whatever conflicting with it was held or even suggested, in the case of Spellman, 74 N. Y. 448.

Various authorities have been relied upon and cited by the plaintiff’s counsellor the purpose of supporting the demurrer, but they wholly fail to do so, with the exception of McIntosh v. Lowns, supra, and Badger v. Titcomb, 15 Pick. 409. The first of these was clearly opposed to those which preceded it, as it has been to the cases following it, and for that reason it cannot be adopted as a correct exposition of the law on this subject, while the other was held to be unsound by the decision which was made in Bendernagle v. Cocks, 10 Wend. 207-209. In Van Alstyne v. Pittsburgh & Cleveland R. R. Co., 34 Barb. 289, and Bristow v. Fairclough, 1 Mann. & G. 143, the subject matter of the second suit had not accrued when the first was commenced. While in Beddon v. Tutop, 6 Durn. & E. 607; King v. Sheriff, 1 Barn. & Adol. 173 ; Phillips v. Benick, 10 Johns. 136, and Staples v. Goodrich, 21 Barb. 317; the causes of action were distinct and separate, arising under what were substantially different and independent contracts, or transactions. And that of Beach v. Crain, 2 Conn. 86, was for a subsequent breach of a continuing agreement. The case of Florence v. Jennings, 2 C. B. N. S. 454, in no way aids the plaintiff, for the first suit was on a bill of exchange, and the second on a distinct agreement made for the payment of interest. And the other authorities cited by the plaintiff’s counsel, are all included within the qualifications of the general rule which has been already mentioned.

II. N. 7. Common Pleas; Special Term, February, 1880.

After the foregoing decision the plaintiff moved to have the first judgment set aside. In denying that motion the opinion below was delivered.

Adolph L. Sanger (M. S. Isaacs, attorney), for plaintiff and motion.

E. A. Jacob, for defendants, opposed.

The only grounds upon which such an application can be entertained under the provisions of the Code are those stated in sections 724, 1282, 1283 and 1290. Motion should be made within a year after notice of entry of judgment (Montgomery v. Ellis, 6 How. Pr. 325 ; Depew v. Dewey, 2 Supm. Ct. [T. & C.] 515, and cases cited). The grounds upon which equity grants relief against a judgment are, fraud in obtaining the judgment, inevitable accident, and a mistake (Story Eq Jur. 11 ed. §§ 1573-1575). In respect of fraud, it must have been perpetrated without any default either of the moving party or his counsel, and so of the other grounds. (Emerson v. Udall, 13 Vt. 477; Pettis v. Bank of Whitehall, 17 Id. 435 ; Burton v. Wiley, 26 Id. 430, 432). The rule in Carrington v. Hollabaird, 17 Conn. 530 ; S. C., 19 Id. 84, is laid down in almost the same terms. And in New York the rule is laid down' in Vilas v. Jones, 1 N. Y. 281; Huggins v. King, 3 Barb. 619; Foster v. Wood, 6 Johns. Ch. 87 ; Lansing v. Eddy, 1 Id. 51; Duncan v. Lyon, 3 Id. 351, that the fraud, accident, or mistake must be “unmixed with negligence or fault of the aggrieved party.” See also Ewing v. McNairy, 20 Ohio St. 321. Acquiescence without objection fatal (Story Eq. Jur. § 1200). Accident must be unavoidable (Wells Res Adjud. § 500 ; Humphreys v. Leggett, 9 How. Pr. 314). Test of laches (Dinsmore v. Adams, 48 How. Pr. 274). Mistake of law no excuse (Hunt v. Rousmaniere, 1 Pet. 13-17; 8 Wheat. 211, 212).

The demurrer interposed to the second defense presented by the supplemental answer cannot be sustained, but the order must be reversed and judgment given for the defendant, with costs and the costs of this appeal, but with liberty to the plaintiff to withdraw the demurrer, and without prejudice to an application on motion to vacate the judgment recovered, and for leave to return to the defendants the money received by way of satisfying it, on such terms as the court to which it may be made shall deem proper, in case it shall be allowed to prevail,, and for the consolidation of the actions.

Davis, P. J., concurred.

Van Hoesen, J.

This judgment cannot be set aside on the ground of the plaintiff’s mistake, inadvertence, surprise, or excusable neglect, because more than one year has elapsed since a transcript was served by the attorney for the plaintiff upon the attorney for the defendants.

The transcript was a notice in writing, and as effectual as a notice in the customary form ; nor, after the lapse of a year from the filing of the judgment-roll, can the judgment be set aside for irregularity, under section 1282. It is not pretended that this application falls under section 1200, which provides for the" setting aside of a judgment for error of fact not arising upon the trial.

■ There are two grounds upon which the plaintiff asks that the judgment may be vacated. The first is, that the attorneys for the defendants induced his attorney to enter the judgment as a favor to them, falsely pretending that they wished a judgment to be entered that they might use it in enforcing contribution from some absent parties; the second is, the great hardship of applying the rule forbidding the splitting of causes of action. The rule in question is always a hard one on the plaintiff. The necessary effect of it is to prevent him from getting what is honestly his due. The rule pre-supposes that a suitor has a large claim which he subdivides into two or more smaller claims, and then it deprives him of all his subdivided claims save that one on which he first gets judgment. . .

If it chances that the claim on which judgment is first obtained is small, whilst the other claims are very large, the law inexorably denies to the plaintiff any recovery on his large claims, no matter how just they may be. In that unfortunate situation the plaintiff now finds himself ; he had one claim, he subdivided it into two parts—one for more than $6,000, and the other for $100; he gets judgment on his smaller claim, and then the defendants invoke the rule forbidding the splitting of causes of action, and the courts applying that rule .are compelled to decide that, having split his causes of action, and brought two suits, in one of which he has recovered judgment, he cannot be permitted to recover in his other suit, though it is probable that when he began it the defendants had no defense to it.

Unless the rule is to be abrogated entirely, and every plaintiff who divides his demand into parts is to be allowed to undo his action when, at the end of several years of litigation, he discovers that it was a mistake of judgment to split his cause of action, I do not sec how relief can be extended to Mr. Jex in this case. I fail to find any evidence of fraud in the conduct of Messrs. Lauterbach and Spingarn, conceding that they did insist that the plaintiff’s attorney should enter judgment, and that at the very time they foresaw the effect of such a proceeding upon the plaintiff’s right of action. I discover no fraud in what they did. The plaintiff undoubtedly intended, when he began the action, to take judgment, and it is not pretended that he would not have entered up judgment if Lauterbach and Spingarn had not suggested that he should do so. Did the plaintiff himself foresee that the result of taking judgment on the small claim would be to bar the larger % If he did not, there could have been no reason for his delaying to enter judgment in the action in this court at earliest moment; he would, in the natural order of things, have done just as he did; indeed, it appears that his only reason for hesitating to enter judgment was that Mr. Isaacs, his attorney, was on friendly terms with Messrs. Lauterbach and Spingarn. The entry of judgment was not, therefore, caused by any trick of Lauterbach and Spingarn.

It is said, however, that Lauterbach v. Spingarn falsely pretended that they had an object in having the judgment entered, they stating to Mr. Isaacs that they wished to use the transcript in compelling payment by some persons who were jointly liable with the defendants in this action for the amount of the judgment. I do not see how that statement, if made, could have defrauded Mr. Isaacs or Mr. Jex, unless they can say—what they have not said—that they were aware of the danger of entering judgment, and that they would not have entered it but for the purpose of obliging and aiding Messrs. Lauterbach and Spingarn. But Messrs. Lauterbach and Spingarn positively deny the making of any such statement to Mr. Isaacs ; they say that Mr. Isaacs is innocently mistaken, and that he confounds a conversation relating to an action, brought long after this judgment was entered, with a conversation that was had before judgment in this suit was perfected.

I think Mr. Isaacs’ memory is at fault—a thing not to be wondered at, considering that the judgment was entered more than two years ago, and that the conversation was only part of a long intercourse resulting from the bringing of several actions for the same plaintiff against the same defendants, and from a protracted" effort to effect a compromise between the parties.

The mistake of a date is easily made, and nothing is more common than to forget the exact sequence in which the incidents of a long negotiation occurred. I reject entirely the charge that Lauterbach and Spingarn practiced any deceit upon Mr. Isaacs or Mr. Jex. But even if there had been a reason for setting aside the judgment, I think that, after the course which the plaintiff has taken, the relief should be denied. If the plaintiff had applied for the vacating of the judgment when the defendants first sought to interpose their supplemental answer, a very different case would have been presented ; but the very course which the plaint-; iff pursued shows that he saw no legal obstacle to his sustaining his judgment on the claim for $150, and to his obtaining a further judgment on his claim for $6,000. Had he been mistaken, surprised or inadvertent, or if he had been deceived by the arts and devices of Lauterbach and Spingarn, he certainly was made aware of the real state of the case by the attempt to set up the bar of a former recovery. Mr. Jex said nothing about fraud or fasehood, nothing about the persuasion which led his attorney to enter up judgment, but went to work to hold his judgment in this action, and to get a judgment in the action for $6,000. A motion was made to strike out the supplemental answer as frivolous, and afterwards that answer was demurred to. The demurrer was sustained, and then the defendants appealed; while the appeal was pending, the parties made a stipulation greatly to the plaintiff’s advantage.

If the demurrer had been pronounced good on appeal, the plaintiff, by virtue, of that stipulation, could have entered judgment without difficulty for his claim of $6,000, with interest, costs, and an extra allowance. The defendants had stipulated for the withdrawal of all their defenses except the defense that the plaintiff had split his cause of action and taken judgment for one portion of it in another suit. The defendants were led by that stipulation to risk their defense on the hazard of the decision of the demurrer. If the plaintiff had prevailed, he would very properly have insisted on the carrying out of the stipulation, and the defendants would have had no answer to his demand.

Is it right to give Mm the advantage of such a stipulation, if he is successful, and to permit him, when defeated, to repudiate its obligations ? I find in the stipulation the following: “If the defendants shall ultimately succeed in reversing said order, the order sustaining the demurrer, they shall have judgment herein for like costs and a like allowance.” What ground does the plaintiff present for relief from that stipulation? Surely, Lauterbaeh and Spingarn’s deception did not induce him to execute it. That stipulation must stand, at least. I have no power to relieve the plaintiff from it, and it would be useless for me to set aside this judgment, if, despite my order, the defendants would be entitled, under the stipulation, to judgment in the action in the supreme court.

The motion must be denied, with costs.  