#### Lewis H. Gentles et al., Respondents, *v.*George Finck, Appellant.

(Supreme Court, Appellate Term,

March, 1898.)

Severing an entire demand upon contract — Distinct causes of action arising out of the same general work.

In an action brought to recover for work and materials, ordered by the defendant’s agent, it appeared that the demand in suit was upon a special contract for varnishing sash, cleaning woodwork and puttying up .mantels throughout a building and that it was agreed that the plaintiffs might charge $4 per day for a man’s labor. A former contract had existed between ithe same parties for painting, in the same building, a partition in the cellar and stone wall and fence, not in the original plan. Upon this contract the plaintiffs were allowed to charge $2.60 for a man’s labor. The plaintiffs presented to. the defendant a general account, which included the several items of the two bills, and also brought an action and recovered judgment on the bill for painting the cellar partition, the stone wall and fence.

Held, that the recovery ’of that judgment was not a bar to the present action, as there had been no improper severance of an entire demand.

That the demands arose out Of separate contracts, each of which gave rise to an independent cause of action.

Appeal by the defendant from a judgment of the District Court in the. City of New York, for the ninth judicial district, rendered *154•in favor of the plaintiffs hy the justice thereof, without a jury. The nature of the action and the- material facts are stated in the opinion.

George Finck, appellant, in person.

Wayland E. Benjamin, for respondents.

Giegerich, J.

This action was brought to recover the reasonable value of certain work and materials claimed to have been performed and furnished by the plaintiffs, at the request of one Fisk Trevett, who, it is alleged, was the agent of the defendant in the construction of a certain building in the city of New York. The answer, while admitting the defendant’s ownership of the premises, denies the other allegations of the complaint and sets up *res adjudicates.*The reversal of the judgment is sought upon various grounds, which will be considered in the order in which they are stated in defendant’s brief.

The defendant contends that the authority of Trevett to order the work' in question has not been established. The uncontradicted proof shows that Trevett was the defendant’s superintendent, and that at his request the plaintiffs performed_certain work of the value of $134,95, described as follows. “ Varnishing sash throughout the building, cleaning paste and water color from the woodwork, and puttying up and revarnishing mantels; ” and that prior thereto the plaintiff's, at the request of Trevett, had painted “ partition in the cellar and stone wall and fence that was not in the original plan;” for the recovery of the value of which work, namely, $38.95, the plaintiffs brought an action against the defendant, in which action they recovered judgment against the latter, upon the claim.

The evidence, to my mind, was sufficient to "warrant the justice in finding (as is assumed from the judgment) that Trevett had ample power to bind the defendant for the work in controversy, and, hence, the motion to dismiss the complaint was properly denied.

The defendant contends, furthermore, that the cause of action herein is one ¡of several items included in a general account remddered hy the plaintiffs to him, and that they having recovered a judgment- against him for one of such items, amounting to $38.95, such recovery is a bar to this action.

*155It is well settled, by numerous decisions in this state that an. entire claim, arising either upon a" contract or upon a wrong, cannot be divided and made the subject of several suits; that if they are bought for different parts of such a 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 in the other suits; that several suits may, however, be maintained upon several causes of action, though they might be united in a single suit; that the distinction between a single and an entire demand or right of action, and which demands are several and distinct, is that the items-■of the former immediately arise out of the same act or contract, and the-latter out of different acts or contracts; that where items of, on account, arise at different times, there must be an express contract,, or else the. circumstances must be such as to raise an implied contract, embracing all the items which may thus result in a single or entire demand or cause of action within the rule against splitting: a cause of action. Secor v. Sturgis, 16 N. Y. 548; Erie *&*N. Y. City R. R. Co. v. Patrick, 2 Keyes, 258; Nathans v. Hope, 77 N. Y. 420; Zimmerman v. Erhard, 83 id. 74; Perry v. Dickerson,. 85 id. 345; Millard v. Missouri, K. & T. R. R. Co., 86 id. 441;. Byrnes v. Byrnes, 102 id. 4; Jex v. Jacob, 7 Abb. N. C. 452.

La Secor v. Sturgis, supra, the subject under consideration was discussed, and numerous authorities cited and commented upon. Strong, J., speaking for the court, at page 558, says: “ Perhaps as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one'class or the other, is by inquiring whether it rests upon one or several acts or agreements.”

In Zimmerman v. Erhard, *supra,*there were separate sales of goods at different times upon a. credit for a specified period, and it was held that such separate sales did not constitute an entire and indivisible demand, but that a cause of action accrued where the-term of credit expired as to any one sale and the vendor might bring separate actions for each. In the case cited there was rendered, as in the case before us, an account containing all the items.. The court, in passing upon the question raised in respect thereto-,, through Miller, J., at -page 78, says:' *“*The rendering of an account containing all the items does not change the nature of the-contract or evince that the transactions were not separate and distinct. The cases cited to sustain the rule that the account sued, upon was entire and could not be split up so as, to form the basis of separate causes of action, are only applicable where successive *156suits are brought for 'separate items of a current account, or for separate instalments becoming due under the same contract.”

In Perry v. Dickerson, *supra,*the plaintiff brought an, action to recover damages for an.alleged wrongful dismissal from the defendant’s employment before the expiration of a stipulated term, and it was held that the judgment therein was not a bar to a subsequent action to recover wages earned during the time plaintiff was actually employed and' due prior to the alleged wrongful dismissal, and that the two claims constituted separate and independent causes of action upon which separate actions were maintainable. Andrews, J., who wrote the .opinion in that case, at page 349, says: *■“*It is doubtless true, that the plaintiff could have prosecuted in one action, the plaims for wages, and for damages for the wrongful dismissal. But it is not a test of the right 'of a plaintiff to maintain separate actions, that all the claims might have, been prosecuted in a single action. A plaintiff having .separate demands against a defendant On contract, or arising from distinct trespasses or. wrongs, is not required to combine them in one action, although in most cases he may do so at his election. He may prosecute them separately, subject to the power of the court, in furtherance of justice, and to prevent undue vexation and costs, to order the actions to be consolidated.” -

The evidence touching the subject under consideration clearly shows that the work in suit was done under a separate and distinct contract. The plaintiff Bradley testified, that the work for the recovery of which the present action was brought, was done under a special contract made with Trevett, the defendant’s superintendent, the terms thereof being that the plaintiffs might charge $4 a day for a man’s labor; that the work for which a judgment was heretofore rendered was done pursuant to a special arrangement with Trevett that the cost of labor should be at the rate of $2.50 a day; that the witness kept a separate and distinct account of' said last-mentioned work; that he rendered to the defendant separate bills for the work performed under the various contracts, including the items of claim in the former and present suits, respectively, and that he subsequently rendered a statement in which he included, the separate bills before rendered. - ■ The foregoing 'testimony was not contradicted by the defendant, except as to the rendition of the separate bills.

There being no circumstances from which any implication could be raised of an Understanding between the parties that there should *157be a running account, the justice was warranted in finding (as is assumed from the judgment) that there was none, and that there was a separate contract for the work in suit, upon which a separate cause of action arose. It follows, from these views, that the judgment in the former action is not a bar. to the plaintiffs right of recovery in the present suit.

The appellant seeks, furthermore, a reversal of the- judgment for alleged error in the admission of evidence. We have not been referred to any specific exception, the appellant merely calling attention, generally, to all exceptions taken .upon such subject, doubtless hoping thereby that the court, in the course of its examination of the record, would discover some ground for reversal. As in duty bound, we have examined with great care the exceptions referred to, as well as all others noted upon the trial, and fail to discover any substantial error which would require the reversal of the judgment. >

The judgment should, therefore, be affirmed, with costs.

Beekmatt, P. J., and Gildeesleeve, J., concur.

Judgment affirmed, with costs.