Orloff v. Speed Machine Works, Inc. — 268 A.D. 981

Majority

p. 981

Alexander Orloff, Respondent, v. Speed Machine Works, Inc., Appellant.

Determination affirmed, with costs and disbursements.

(dissenting). Since plaintiff’s claim for commissions earned in the month of November, 1943, accrued before the commencement of the previous action, it is deemed merged in the judgment rendered in that action. Regardless of the date of the issuance of the summons, it is the date of service which determines when the action is commenced. Concededly, the summons here was served on December' 9, 1943.

Dissent

p. 982

Under the law where a debt is payable in installments, all matured obligations must be united in one action. If several suits are brought upon such an indivisible contract for separate installments after all are due, a recovery upon one will be a bar as to the others. (Kennedy v. City of New York, 196 N. Y. 19 , 22; Lorillard, v. Clyde et al., 122 N. Y. 41 , 45; Trustees of Masonic Hall v. Fontana, 99 Misc. 497 , 503.)

Plaintiff had ample opportunity to amend his complaint in the previous action so as to include commissions for the November business which became due on December 1st, eight days before the commencement of that action. (Thalmessinger v. Pine Ridge Coal Co., 201 App. Div. 125 , 126.)

Accordingly, I vote to modify the judgment by eliminating from plaintiff’s recovery the sum of $200.65.

Martin, P. J., Untermyer and Callahan, JJ., concur in decision; Cohn, J., dissents in opinion in which Dore, J., concurs.

Determination affirmed, with costs and disbursements. No opinion.

Cases cited

Kennedy v. City of New York 196 N. Y. 19 N.Y. 1909-10-05 at 22 p. 982
Lorillard v. Clyde 122 N. Y. 41 N.Y. 1890-10-07 at 45 p. 982
Trustees of Masonic Hall & Asylum Fund v. Fontana 99 Misc. 497 N.Y. App. Term at 503 p. 982