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Century Factors, Inc. v. New Plan Realty Corp.

41 N.Y. 1040 Court N.Y. Decision date 1977-04-28 English

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p. 1040
Century Factors, Inc., Appellant, v New Plan Realty Corporation, Respondent.
Argued March 21, 1977;
decided April 28, 1977
Samuel Gottlieb, Eugene H. Feldman, Milton Shalleck and Nathan Silverman for appellant.
Bernard Gartlir, Joseph Halper and H. Bruce Allen for respondent.

Memorandum. The order of the Appellate Division should be affirmed. We agree that "[t]he obligation of the defendant,

p. 1041
though consisting of two promises, is in truth a single obligation requiring the plaintiff to assert its full claim in one action. Failure to do so results in the splitting of a cause of action which is prohibited (Roe v Smyth, 278 NY 364 , 369; Columbia Corrugated Container Corp. v Skyway Container Corp., 37 AD2d 845 , 846, affd 32 NY2d 818 ).”

Accordingly, inasmuch as plaintiff did not assert its claim for expenses of collection and reasonable counsel fees in the first action, it is precluded from asserting them in a second, independent action.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.

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