
    Watts D. Gardner, Resp’t, v. P. Jarvis Patten, App’lt.
    Appeal from judgment of this court, Hon. H. W. Allen, J.
   Per Curiam.

There is no finding of the trial court that the amount sued for here became due under the same contract as the amount for which the plaintiff’s assignor recovered in the prior action.

The fifth finding is, that the work here sued for was done “ under the same agreement as to payment,” but not that it was under the same agreement as to work, and it expressly states that this was “ other work.” It would, therefore, appear that there were two agreements made, one for the work done in September and October, for which the plaintiff’s assignor sued, and another for work and materials furnished during the month of November, for which the assignor now sues; and that the case is within Zimmerman v. Erhard, 83 N. Y., page 78. Where goods were sold and delivered at different times, it was held that a separate cause of action arose for each sale and delivery, so that in making this assignment there was no splitting of a single demand. In addition it may be observed that in the case of Mills v. Garrison, 3 Keyes, 40, it was held that the debtor may waive the benefit of the rule that a single cause of action cannot be split, and as all the evidence in this case is not before us, it may be that there was proof which justified the finding of a waiver. There is nothing in the evidence to negative it, and the court, having refused to find that there was a single cause of action, and also has refused to find that no recovery must be had for this amouqt, we might assume that there was evidence before him to justify his refusal to find this request.

The judgment should be affirmed upon this record.  