
    Ambrose De V. Montrose, Resp’t, v. Susan E. Wanamaker, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Estoppel — Former adjudication.
    In a former action between these parties the same defenses were interposed. Held, that as to the issues thus raised, which were common to both suits, the decision then made is binding on the parties.
    3. Pleading — Contract.
    A plea of a former recovery for an alleged violation of a contract "whereby all rights growing out of any violation of said contract became merged and liquidated,” which does not aver that the former recovery was for the same violation or that the causes of action were identical, is bad.
    3. Bar — Former recovery.
    A recovery in an action for moneys alleged to be due is not a bar to an action for an accounting to date.
    Appeal from interlocutory judgment directing an accounting and judgment for plaintiff for the amount found due thereon.
    The partnership between defendant and one St. John was dissolved December 1, 1886, except as to sales on commission for two firms. Action was brought in January, 1888, by plaintiff, asassignee of St. John, to recover his half of commissions on such sales by defendant and a recovery was had. This action was brought in April, 1889, for an accounting of such commissions to date.
    
      Frank J. Dupignac, for app’lt; L. A. Fuller, for resp’t.
   Pratt, J.

The first action between these parties resulted in a judgment June, 1888, in favor of the plaintiff. Thereafter and in April, 1889, St. John assigned to the plaintiff his claim against, defendant upon which the present action is based.

The parties to the present suit are the same as in the first; to a certain extent the issues' are the ssme, and so far as the issues common to both suits were determined by the first trial, the decision then made is binding upon the parties here. Of this neither party can complain, as each has had his day in court upon those issues, and may well be required in any subsequent litigation between them to abide the determination then made.

By comparing the pleadings we find three defenses set up in the last action that were also set up in the first, viz., that St. John, violated the contract:

First. In refusing to sell goods in December, 1886, for Wanamalcer.

Second. That St. John constantly refused to sell the Merritt goods for defendant.

Third. That St. John sold the Merritt goods on his own account.

Tii ese were the only defenses pleaded in the first action. The court charged the jury that if either was sustained the verdict should be for defendant The verdict in favor of the plaintiff establishes that these defenses were not well taken.

Those defenses are again pleaded in-this suit, but the judgment, introduced in evidence shows that they are not well founded.

Another alleged defense is set up; viz.: that a recovery has-already been had “ for an alleged violation of the contract. * * * whereby all rights of St. John growing out of any violation of said contract became merged and liquidated.”

The plea does not aver that the former recovery was had for the same violation now sued for; nor that the causes of action are identical.

Secor v. Sturgis, 16 N. Y., 558, lays down that for a former recovery to be a bar, the identity of the cause of action in the several suits must be averred.

■ Successive breaches of a contract may well give rise to successive causes of action where the prosecution of the first is no defense to the prosecution of the second.

The plea is, therefore, bad. No amendment was asked for on the-trial, and even if the proof covered the defect the judgment could not be reversed in aid of a defense not pleaded.

But an examination of the proof does not show the causes of action identical. By the contract set out it appears that the partnership which existed before December, 1886, between St. John and Wanamaker was at that date abrogated as to all but two accounts. As to those it remained in force. Later an action at. law was brought to recover money claimed to be due from one party to another. Apparently no objection was made to the form of the action and the plaintiff recovered. The present action is in equity, claiming an accounting to date. We do not think the actions are identical; they differ in form and in substance. The relief demanded in this action was not asked for in the first and is not within the scope of an action at law.

Few subjects have given rise to more abstruse discussions than that of the identity of causes of action.

The rule against splitting causes of action was originally adopted by courts of law to prevent defendants being unjustly vexed with double costs.

That abuse is no longer prevalent, and the rule is now most commonly invoked as a technical defense to a meritorious demand, So that the tendency in courts of law now is to restrict its application to cases where an actual recovery has been had. McIntosh v. Lown, 49 Barb., 550; Perry v. Dickerson, 7 Abb. N. C., 466.

But in equity costs have always been in the discretion of the court. The danger of vexation from needless costs has not existed, and the rule that a former recovery will bar a second has been kept within reasonable limits and will not be so applied as to work injustice. O'Dougherty v. Remington Paper Co., 81 N. Y., 496, 500.

. Under the interlocutory judgment whatever sum has been paid by defendant will be allowed on the accounting. That secures full justice between the parties.

The defendant has excepted to the refusal of the trial judge to find that by the acquiesence of plaintiff’s assignor the contract between Wanamaker & Co. and Merritt & Co. was terminated about January 1, 1887.

The request was properly refused. Neither in the present action nor in the first was any such defense pleaded.

Not being in issue in the first action, it could not be established by that judgment record, 38 N. Y., 66, and if the request had been granted, the finding would not have been relevant to any issue in the action.

Judgment affirmed, with costs.

Barnard, P. J., concurs.  