
    James A. Gearty, Appellant, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent, Appellant.
    First Department,
    March 11, 1910.
    Costs — action on breach, of contract — complaint uniting causes of action — recovery by plaintiff upon one cause and by defendant upon another — certificate as to identity of issues.
    Where a plaintiff recovers on some of several causes of action set forth in a complaint, and the defendant upon the other causes, the court cannot make a certificate that the substantial cause of a-ction is the same upon each issue, so,as to, deprive the defendant of costs, if the nature of the causes be such' that a recovery upon one would not bar a recovery upon the- other.
    Thus, where a municipal contractor recovered against .the city-on a first cause Of action for a sum deducted by the city as a penalty for delay, but the city recovered on the second cause of action set forth, which was for damages alleged to have been caused by a breach of contract by the city, it is. error, for the court to grant a certificate that the causes of action are the same so as to deprive the city of costs.
    Cross-appeals by the. plaintiff, James A. Gearty, and the defendant, The Mayor, Aldermen and Commonalty of the.City-of New York, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of June, 1907, upon the verdict of a jury in favor of the plaintiff upon the first cause of action, and in favor of the defendant upon the second cause of action; also an appeal by the defendant from an order entered in said clerk’s office on the 26th day of October, 1908, denying the defendant’s motion for a new trial on the first cause of action, and from an order entered on the 29th day of August, 1907, denying the defendant’s motion to vacate a certificate theretofore issued herein ; also an appeal by the plaintiff from an order entered in said clerk’s office on the 22d day of December, 1908, denying the plaintiff’s motion made upon the minutes for a new trial on the second cause of action.
    
      L. Lafiin Kellogg, for the plaintiff.
    
      Terence Farley, for the defendant.
   Dowling, J.:

Plaintiff on May 18, 1895, made a written contract with defendant for the regulating, curbing and paving with granite block pavement on a concrete foundation of the transverse road in Central Park at Ninety-seventh street from Fifth to Eighth avenues. After completion had progressed to the extent of about 1,750 linear feet of concrete construction out of a total length of 2,750 feet, and on or about July 24, 1895, the engineer of the department of parks rejected the work theretofore done, with the exception of the grading and curbsetting, and ordered the plaintiff to take up and replace the work then completed. This the plaintiff did, and finally completed the work, which was accepted by the city.

Plaintiff seeks to recover in this action upon two causes of action, the first for the sum of $440, being the amount deducted by the city for overtime — penalty from the contract price for the work; the second, for $10,000,, being the damages and* increased cost claimed to have been occasioned by the breach of the contract' and the wrongful acts of the defendant in the prosecution of the work.

In view of the extended discussion of the facts in this case upon prior appeals (62 App. Div. 72; 96 id. 625; 171 N. Y. 61; 183 id. 233) it is now unnecessary to recite them again at length.

Upon the last trial the jury found for the. defendant upon the second cause of action for $10,000, and for the plaintiff upon the first cause of action for $440. ' From, the judgment entered upon such verdict both plaintiff and defendant now appeal to this court.'

A careful examination of the. record fails to disclose any error prejudicial to the plaintiff so far as the second causé of action is concerned, and discloses no reason for the reversal of the finding of the jury thereupon, which was fully justified by the evidence.

. So far as the recovery by plaintiff upon the first cause of action is concerned, we are finable to hold that any error was committed sufficiently grave to warrant the reversal of the judgment, and, therefore, as to both causes of action the judgment and order appealed from should be affirmed. But defendant also -appeals from an order denying a motion to set aside a certificate made by the justice presiding at the trial of this action, pursuant to section 3234 of the Code of Civil Procedure, wherein he certified that upon the issues raised by the answer to the first and second alleged causes of auction stated in the complaint the substantial 'cause of action upon the trial was the same upon each issue. W e believe that in this the learned court was in error. • If there was but one substantial cause of action upon both issues, then the verdict of the jury was inconsistent and the recovery in plaintiff’s favor could not have been allowed to stand. While both causes of action were for breach of contract, and while the question of the good faith of the engineer for the. department of parks in rejecting the work as to which' plaintiff was claimed to have violated his' contract was a material element in the case, still that was not the only element so far as the first cause of action is concerned. The secorid cause of action was based entirely upon the rejection of the'work and the necessity of doing it anew. The first cause of action arose from the action of the park board in adopting a report by which its engineer recommended that instead of 111 days which ■ he Claimed the plaintiff might well have been charged for overtime, there should be deducted from the contract price the penalty for 22 days only, .which would reimburse the city for the extra expense of inspecting; as a consequence of which action the defendant withheld the sum of $440 from the- contract price and refused to pay the same to the plaintiff. ' .

In this cause of action there was presented as well the element of delay in the beginning of the work, due to no default of the plaintiff, but to the presence upon the line of his work of materials belonging to defendant and to be used by it upon other work.

While the main question in the case is the good faith of the action of the engineer it is not the sole question, so far as the first cause of action is concerned; nor is it the decisive question as to that part of the claim. Under these conditions we think the proper interpretation of section 3234 is that laid down in Teator v. N. Y. Mutual Savings & Loan Assn. (32 Misc. Rep. 543), in which it was held that where the judgment upon one cause of action, if separately brought, would not be a bar to an action upon the other cause of action, then the certificate should not issue; and as the court said, “ Assuming the fact to be as claimed by the plaintiff’s counsel in this case, that the same legal questions arise in each, I do not think that determines the question, or makes the two causes of action substantially the same within the meaning of the section of the Code under which this application is made. The legal questions may be the same, but the cause of action separate and distinct, each the foundation of a separate and distinct suit at law, neither being a bar to the other.” In this case it is obvious that a recovery upon either cause of action would not be a bar to a recovery as to the other, and the court which made the certificate so held in effect when it allowed the verdict to stand.

The order appealed from should, therefore, be reversed and the application to set aside the certificate granted, without costs. Orders denying new trial affirmed. Judgment modified by deducting the costs awarded plaintiff upon the certificate and as so modified affirmed, with costs to plaintiff.

Clarke, McLaughlin, Laüghlin and Scott, JJ., concurred.

Order reversed and application to set aside certificate granted, without costs. Orders denying new trial affirmed. Judgment modified as directed in opinion, and as modified affirmed, with costs to plaintiff. Settle order on notice.  