Majority
p. 944(117 App. Div. 836) CARLSON v. ALBERT. (Supreme Court, Appellate Division, Second Department. March 1, 1907.)
Headnote
1. Action—Joinder—Single or Ser abate Causes.A complaint for the amount due plaintiff on his contract of service for a year at the time of its breach by his discharge,, and for damages caused by the breach, contains two causes of action. 1
2. Same.
In determining whether’ claims constitute a single cause of action, the test is whether a, recovery on one of them’would bar an action on the other.
[Ed. Note.—For’cases in point, see-Cent. Dig. vol. 1, Action, § 549.]
p. 945Argued before WOODWARD, JENKS, GAYNOR, and RICH, JJ.
Appeal from Kings County Court.
Action by Carl J. Carlson against Jacob Albert. Erom an order denying a motion that the causes of action be separately stated in the complaint, defendant appeals. Reversed.
J. Charles Weschler (Sol. Rothschild, on the brief), for appellant.
Robert P. Beyer, for respondent.
The complaint contains two causes of action, viz., one for the amount due to the plaintiff on his contract of service for a year at the time of its breach by his discharge by the defendant, and the other for the damages caused by the breach. They are not one cause of action; the test is that a recovery on one of them would not bar an action on the other. Perry v. Dickerson, 85 N. Y. 345 , 39 Am. Rep. 663 .
The order should be reversed and the motion granted.
Order of the County Court reversed, with $10 costs and disbursements, and motion granted, with costs. All concur.
Cases cited
- Perry v. Dickerson 85 N. Y. 345 p. 945