
    John J. Dickinson, Respondent, v. David J. Tysen, Appellant.
    First Department,
    May 8, 1908.
    Actions — splitting causes — rule in law and equity — assignment of portion of claim —joinder of all parties in interest — demurrer for defect of parties — pleading — effect of failure to allege non-payment.
    There can be but one action at law for a single breach of contract, and if several actions be brought for different parts of a claim, the pendency of the first may be pleaded in abatement of the other and a judgment upon the merits in either is a bar to the other.
    But in equity the assignee of a part of a claim may maintain a suit to enforce the same, and if a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in as provided in section 452 of the Code of Civil Procedure.
    The court, however, has no power to bring in additional parties in an action at law to recover a money judgment.
    The assignee of a portion of an indivisible claim for commissions due for procuring a sale of real estate cannot bring a legal action against the debtor without making all persons who have an interest in the claim parties, so that the rights of all may he determined in one action.
    Where it appears upon the face of the complaint of such assignee that the assignors have retained an interest in the original claim and that a final and complete determination of the defendants’ liability cannot he ascertained without their presence there is a defect of parties and the objection may be taken by demurrer.
    
      As the owner of an indivisible claim must enforce the same in a single legal action he can convey no greater right to his assignee.
    A complaint to recover for the breach of a contract to pay commissions for procuring a sale of lands does not state a cause of action if it fail to allege nonpayment, the same being of the essence of the action.
    Appeal by the defendant,"David J. Tysen, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.
    
      Arthur D. Greenfield, for the appellant.
    
      Louis Fridiger, for the respondent.
   McLaughlin, J.:

The complaint alleged that the defendant employed one Quimby and one Mudgett to sell certain real estate on Staten Island for $120,000; that in pursuance of such employment they procured a purchaser (one Brooks) at the price named, and a contract was entered into between him and the defendant—$4,000 of the purchase price being then paid; that at the time of the execution of the contract it was agreed between the defendant and Brooks that title was to be taken in the name of one Jones for Brooks’ benefit; that Jones subsequently took title; that in consideration of procuring such purchaser the defendant agreed to pay to Quimby and Mudgett a commission of five per cent of the purchase price, or $6,000 — to be divided between them, share and share alike — $600 of which sum was to be paid at the time of the execution of the contract and the balance of $5,400 when the deed was executed; that “ no part of said sum of six thousand dollars ($6,000) has been paid by the defendant to the said Quimby and Mudgett excepting the sum of six hundred dollars ($600), and that there is now due and owing from the defendant to the said Quimby and Mudgett the sum of five thousand four hundred dollars ($5,400), with interest; ” that prior to the commencement of the action Quimby and Mudgett duly assigned to the plaintiff part of their right, title and interest in the commissions for making such sale, the former to the extent of $1,350 and the latter to the extent of $2,250. The judgment demanded is for $3,600, with interest.

The defendant demurred to the complaint upon the ground (1) that it did not state facts sufficient to constitute a cause of action ; and (2) that it appears upon the face thereof that there is a defect of parties, in that Quimby and Mudgett, mentioned and referred to therein, are not joined as parties plaintiff or defendant. The demurrer was overruled and defendant appeals.

The rule seems to be well established by a long line of authorities that there can be but one action for a single breach of contract. It was so stated as far back as Farrington v. Payne (15 Johns. 432); Smith v. Jones (Id. 229); Miller v. Covert (1 Wend. 487), and these authorities are cited with approval in Perry v. Dickerson (85 N. Y. 345). In the recent case of Pakas v. Hollingshead (184 N. Y. 2ll) the Miller case is also cited with approval, and the statement is there made that there can be but one action for damages for a total breach of an entire contract. The basis of the rule is tersely stated in Secor v. Sturgis (16 N. Y. 548), which is that an entire claim, arising either upon a contract or from a wrong, cannot be divided and made the subject of several actions; and if several actions be brought for different parts of such claim, the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits in either will be available as a bar to the others; and in Perry v. Dickerson (supra) that The law, to prevent vexatious or oppressive litigation, forbids the splitting up of one single or entire cause of action into parts, and the bringing of separate actions for each ; and neither in this way nor by withholding proof of particular items on the trial, or by formally withdrawing them from the consideration of the jury, can the effect of the judgment, as a complete adjudication of the entire cause of action, be prevented. There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be, and but one action for a single breach of a contract.”

The rule in equity is different. There an assignee of part of a - claim may maintain an action to enforce the same (Field v. Mayor, etc., of N. Y., 6 N. Y. 179; Risley v. Phenix Bank of City of New York, 83 id. 318; Chambers v. Lancaster, 160 id. 342), and if a complete determination of the controversy cannot be had without the presence of other parties, then the court must direct them to be. brought in. (Code Oiv. Proc. § 452.) In an action at law for a money judgment only, however, the court has no such power. It cannot in such case compel the bringing in of additional parties, (Chapman v. Forbes, 123 N. Y. 532; Bauer v. Dewey, 166 id. 402; Long v. Burke, 105 App. Div. 457; Horan v. Bruning, 116 id. 482.)

. It is urged by the respondent that the rule above referred to has been so far modified that an action at law may now be maintained to enforce part of a claim, and in this connection our attention is called to Chase v. Deering (104 App. Div. 192). It is true there are expressions in the opinion which would seem to support the claim, but when the whole opinion and the question presented for determination are considered, I do not believe the court intended to hold that the assignee of part of an entire claim could maintain an action at law if the debtor insisted that all of the parties interested in the claim should be made parties to the action. There the debtor objected to the presence of the other parties to the claim other than the plaintiff. Having raised the objection, and asked that all references in the complaint to the other parties be stricken out, he undoubtedly waived his right to have the whole claim determined by a single action and a judgment would not have been a bar to an action by the owners of the remainder of the claim. To this extent the assignee of part of a cause of action has a legal Jtitle, and to such extent successive actions may be brought with the consent, but not against the objection of the debtor. That the court did not intend to lay down a different rule would seem to follow from the decision in King v. King (73 App. Div. 547). There the . statement is made that only one action can be maintained for the debt in its entirety. This is sustained by clear authority so far as an action at law is concerned.” In this statement the learned justice who wrote the opinion in Chase v. Deering (supra), according to the report of the case, concurred. (See, also, Maasch v. Grauer, 123 App. Div. 669.)

In the case now before us the defendant, according to the allegations of the complaint, agreed to pay the commission claimed. This was a single, indivisible obligation, to enforce which only one action at law can be maintained. Quimby and Mudgett, had they brought an action, could not have split up their claim. They would have had to recover in the action brought all. to which they were legally entitled. The recovery in one action would have been a bar to a recovery in another. This, I take it, no one will dispute.

It seems to me illogical, therefore, to say that they can do by assignment what the court would not permit them to do by action; in other words, that they can do through a third party what they could not themselves do. The claim might be assigned as a whole and an ^ action maintained thereon, but if only a part be assigned, then when an action is brought to enforce that part, defendant has a legal right to insist that all the parties who have an interest in the claim shall be made parties to the action, to the end that the one action may determine the rights of all.

It appears upon the face of the complaint that each of the plaintiff’s assignors has retained an interest in the original claim and a final and complete determination of defendant’s liability to pay cannot be ascertained without their presence in the action. There is, therefore, a defect of parties and this was properly" raised byLdemurrer. Unless it had been thus raised it would have been waived. (Code Civ. Proc. §§ 488, 499; Fawcett v. City of New York, 112 App. Div. 155.) That there is a defect of .parties seems to me necessarily to follow when the obligation which the defendant originally assumed is considered. He promised to pay, if the allegations of the complaint be true, $5,400 when the deed was executed. It was a separate, distinct and indivisible promise, and implied that but one action should be brought to enforce it. The persons to whom the promise was made might assign to another the i-" right to enforce the same, either in whole or in part, but they could not give to their assignee more than they themselves had, which was the right to enforce the promise in a single action against the objection of the debtor. If they could it is not difficult to see that by assignments upwards of one hundred actions might be maintained in the Supreme Court in which the costs, if a recovery were had, would largely exceed the amount of the original claim. This is a situation which the law will not tolerate, inasmuch as defendant never contracted with reference to it.

If the foregoing views be correct, then it follows that the demurrer should have been sustained, on the ground that there is a defect of parties.

I am also of the'opinion the demurrer should have been sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of action. It certainly does not if it be read literally because the allegation is that there is now due and owing from the defendant to the said Quimby and Mudgett the sum of five thousand four hundred dollars ($5,400).” This, of course, negatives the allegation that there is anything due the plaintiff, and if it be assumed, as claimed in respondent’s brief, that this is a mere clerical error and the words on the said contract ” should be substituted in place of the words “ to the said Quimby and Mudgett,” I still think the complaint is defective because it fails to allege nonpayment. The Code of Civil Procedure, section 481, provides that a complaint must contain a plain and concise statement of the facts constituting the cause of action. Under this provision whatever facts are essential to be proved to entitle the plaintiff to recover upon the trial must be set out in the complaint. Upon a contract for the payment of money non-payment is a fact which constitutes the breach of the contract and is the essence of the cause of action, and being such, within the provision of the Code, that fact must be alleged in the complaint. It is suggested that inasmuch as payment is always an affirmative defense which must be pleaded in order to be available, it necessarily follows that non-payment need not be alleged. This does not follow. The reason why non-payment must be pleaded is clearly set forth in the opinion in Lent v. New York & Massachusetts R. Co. (130 N. Y. 504).

Upon both grounds, therefore, I think the demurrer should have been sustained.

It follows that the interlocutory judgment appealed from must be reversed and the demurrer sustained, with costs in this court and in the court below, witli leave to the plaintiff to serve an amended complaint upon payment of such costs.

Ingraham, Latjghlin, Clarke and Scott, JIT., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  