#### VAN KEUREN et al. v. MILLER.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Judgment—Res Judicata.

Where a contract to furnish labor and materials in the erection of a house, for certain commissions on the value thereof, does not stipulate any time for the payment of the commissions, they do not become due until the performance of the contract; and therefore a judgment, in an action brought during the continuance of the contract, for the value of the labor and materials furnished, will not bar a subsequent action for the commissions.

Appeal from special-term, Dutchess county.

Action by Augustus Van Keuren and others against William Starr Miller. There was a judgment in favor of plaintiffs, and defendant appeals. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Esselstyn & McCarty, for appellant

A. Lee Wager, for respondents.

BROWN, P. J.

This action was brought to recover commissions stipulated to be paid to the plaintiffs by the defendant upon the value of labor performed and materials used in the construction of a dwelling house. The only defense necessary to be considered upon this appeal is that the claim here sued upon is a part of a cause of action made the subject of a prior suit between the parties, and upon which judgment was recovered by the respondents. That case was before this court in 1893, and is reported in 71 Hun, 68, 24 N. Y. Supp. 580. A recovery was there had for materials purchased by the plaintiffs, and used in the building. There was no general contract between the parties for the erection of the building, or any part of it, but the plaintiffs were to purchase the materials and furnish the labor, and to the bills therefor were to add 10 per cent., which sum was their commission or profit on the work. The contract between the parties provided that ón or before the 15th day of each month the defendant should pay 90 per cent, of the value of the bills for materials and labor, and that the balance should be paid within 10 days from the date of the final acceptance of the building. Bills for the materials and labor were to be rendered before the fifth day of each month, and bills for labor were to be made out for the exact amount paid by the builders to the men. It then provided as follows:

“On the bills so rendered, the builder shall be entitled to charge a commission of ten per cent, for his general services in connection with the work, the purchase of material, the employment of labor, and such clerical work as is necessary in connection with the execution of the work in a good and workmanlike manner.”

The appellant claims that the commissions were due monthly, and were a part of the bill for each month, and, if this contention is sound, they should have been included in the former action. A party cannot prosecute two or more actions for the same demand, and if a single cause of action is severed, and a recovery had for a part of *972the claim, the judgment will operate as a bar to a subsequent action for any other portion of the same claim. And it has been held that all demands actually due upon the same contract make but a single cause of action in reference to the rule as to the splitting of demands. Bendernagle v. Cocks, 19 Wend. 207; Fish v. Folley, 6 Hill, 54. But there is no rule which requires a party to join in the same action separate causes of action, and, where one demand upon a contract is due, it may be sued for, and a judgment recovered upon it is not a bar to another demand on the same contract not due at the time of the commencement of the first action. Butler v. Wright, 2 Wend. 369. Ho time was stipulated in the contract for the payment of the commissions on the labor and materials furnished, and, as it represented the profit or compensation of the plaintiffs, it was not due until the performance of the contract and the final completion of the building. The plaintiffs were discharged in March, 1893, and they were not entitled to sue for their commission until that date. The prior action was commenced in February. The claim here asserted was not, therefore, due when that action was commenced. The discharge of the plaintiffs terminated the contract, and they were entitled, in addition to commission upon work performed and materials furnished, to then sue for breach of the agreement; and, in the absence of any evidence justifying the discharge, they were properly allowed as damages 10 per cent, upon the cost of the work subsequent to the discharge. That sum represented the value of the contract to them. The judgment should be affirmed, with costs. All concur.