
    Frederick J. Maeder, Respondent, v. Adolph Wexler, Appellant.
    (Supreme Court, Appellate Term,
    February, 1904.)
    Action upon a quantum meruit for labor and materials — When not barred by the plaintiff’s defeat in a former action to foreclose a lien for the same labor and materials — Splitting demands arising out of the same contract.
    A judgment rendered, in an action to foreclose a mechanic’s lien for labor and materials done and furnished in buildings of the defendant, against the lienor upon the ground that he had not substantially performed the contract he made with the defendant, is not a bar to a subsequent action by the lienor to recover of the defendant the reasonable value of the same labor and materials.
    The fact that, in the mechanic’s lien action, the lienor sued and recovered for extra work, outside the contract covering the work sued for in this action upon a quantum meruit, but done on the same buildings, does not bring this action within the rule forbidding a person from splitting demands arising out of the same contract, as the lienor’s failure to recover, upon the theory of performance, a part of his claim ought not to bar him from trying again on any other ground the law permits.
    Appeal by the defendant from a judgment of the City Court of the city of Hew York, made at Special Term, overruling his demurrer to a reply to the second defense contained in his answer.
    Merrill & Rogers (Payson Merrill, of counsel), for appellant.
    
      Langbein & Langbein (Leonard J. Langbein, of counsel), for respondent.
   G-iegerich, J.

The action is brought to recover the reasonable value of labor and materials furnished by the plaintiff in painting and papering a row of houses.

Prior to beginning this action, the plaintiff had sought, in an action against the defendant and others, to foreclose a mechanic’s lien against the houses in question for work and materials, including those sued for now. In that action it was expressly adjudged that there could be no recovery for the work and materials embraced in this action, for the reason that the contract had not been performed, nor substantially performed. That judgment was set up as a bar in a separate defense in the answer here, to which defense the plaintiff made the following reply: That the value of and what work, labor and materials this plaintiff did and performed as alleged in the complaint herein, has never been tried, determined, passed upon or judgment given therefor, either in said action mentioned in the answer herein, or by or in any other court.” There is considerable debate in the briefs as to whether or not this is a denial that the labor and materials embraced in this action were included in the other. The plaintiff insists that it is such a denial, but we do not so construe the pleading, though we do not think it is material whether or not it is such a denial. It is simply an averment that the court, in the former action, did not determine what work and materials were furnished as alleged in the present complaint. Of course, that question was not determined, nor entertained even, the court deciding that the contract had not been substantially performed and, as that action was on the contract, alleging performance, there was nothing left to do but to dismiss the complaint, as to that branch of the action, without attempting to proceed and ascertain what was done and what should be paid for it. That action was on contract and, failing to prove performance, the plaintiff could not in the same action fall back on another theory, and prove, for instance, an excuse for nonperformance and recover on a quantum meruit. Spence v. Ham, 163 N. Y. 220; Hollister v. Mott, 132 id. 18; Rowe v. Gerry, 86 App. Div. 349; Deane Steam Pump Co. v. Clark, 84 id. 450; Schnaier v. Nathan, 31 id. 225; Morowsky v. Rohrig, 4 Misc. Rep. 167.

In the present form of action, however, we can discover no reason why he should not he at liberty to attempt to recover for the reasonable value of the work actually performed, and the materials actually furnished. Whether he can recover or not depends, of course, upon the respective proofs he and his adversary can make.

The defendant also argues that, as the plaintiff in the former action recovered for certáin extra work, outside the contract which covered the work now sued for, but upon the same buildings, he is barred from maintaining the present action by the principle which forbids a plaintiff to split demands arising out of the same contract. We do not think that rule applies, or ought to apply, in this case. The plaintiff attempted to combine all his demands arising out of the entire transaction in a single suit, those on contract as well as those for extra work. He has not sought to vex the defendant by separate actions, but the contrary. The fact that he failed to recover on a part of his claim, on the theory first attempted, ought not to debar him from trying again on any other ground that the law recognizes and permits.

“ The institution by a party of a fruitless action, which he has not the right to maintain, will not preclude him from asserting the rights he really possesses.” Kinney v. Kiernan, 49 N. Y. 164; McNutt v. Hilkins, 80 Hun, 235; Empire Manufacturing Company v. Moers, 27 App. Div. 464.

The appellant urges that, if the judgment be not reversed, at least it should be modified by permitting a withdrawal of the demurrer, so that he may be at liberty upon the trial to show that the work involved in this action is the same work covered by the former action, and that the issues involved in this action were actually tried in the former action. The first proposition is immaterial, while the second, it is obvious from the defendant’s answer, he cannot maintain. If tbf only facts he can offer in support of it are those pleaded in his answer, viz., the. prosecution of the former action, based on the allegation of performance of the contract, those facts are insufficient. If he has additional and other facts, proof of them would be inadmissible, because they are not pleaded. The judgment should be affirmed, with costs.

Freedman, P. J., and McCall, J., concur.

Judgment affirmed, with costs.  