#### Warren Teator, Plaintiff, *v.*The New York Mutual Savings and Loan Association, Defendant.

(Supreme Court, Columbia Special Term,

October, 1900.)

Costs — Construction of Code C. P., § 3234.

Section 3234 of the Code of Civil Procedure providing that, where the complaint sets forth separately two or more causes of action and the plaintiff recovers upon one or more of the issues and the defendant recovers upon one or more, each party is entitled to costs against the other unless it is- certified that the substantial cause of action was the same upon each issue — in which case the plaintiff only shall be entitled to costs — was intended to apply only to a case where the complaint sets forth the same contract, transaction, or grievance, in different forms.

Where, however, two distinct causes of action are set forth in the complaint and a recovery upon one of them would not bar a subsequent action upon the other, the court cannot certify that the substantial cause of action was the same upon each issue and this although the same legal questions may arise in each.

Application for a certificate under section 3234 of the Code of Civil Procedure.

The complaint. states two causes of action. The first is for the *543amount claimed due upon the withdrawal of ten shares of stock issued by the defendant to the plaintiff.

The second cause of action is for the balance due upon the withdrawal of twenty-five shares of stock of the defendant issued to a third person, who has since the issuance thereof died, and the balance claimed to be due upon such shares assigned by the administrator of the estate of such third person to this plaintiff.

Upon the trial the court directed the jury to find a verdict for the defendant upon the second cause of action, and submitted the first cause of action to them for their consideration; the jury found, a verdict for the plaintiff upon such first cause of action.

John L. Crandell, for plaintiff.

Russell & Winslow, for defendant.

Herrick, J.

Our present system of practice permits the setting forth, as different counts or separate causes of action, the same contract transaction or grievance, in different forms and different aspects, but in such cases permits only one recovery, and it is undoubtedly the intention of section 3234 to provide for such cases.

In this ease we have two entirely separate and distinct causes of action set forth, either one of which would be the foundation for a separate suit and judgment, and a judgment upon either would not be a bar to an action upon the other, because not arising out of the same contract, transaction, or grievance. Where a judgment upon one cause of action, if separately brought, would not be a bar to an action upon the other cause of action, I do not think the certificate should issue.

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 district suit at law, neither being a bar to the other. So it is in this case.

Application denied.