Teator v. New York Mutual Savings & Loan Ass'n

Majority

p. 15

(32 Misc. Rep. 542.)

TEATOR v. NEW YORK MUT. SAVINGS & LOAN ASS’N.

(Supreme Court, Special Term, Columbia County.

November 10, 1900.)

Headnote

Costs—Certificate—Application—Issuance.

Code Civ. Proc. § 3234, provides that, where a complaint sets fortn separately two or more causes of action on which issues are joined, if each party recovers on part costs will be allowed only to the plaintiff, on its being certified that the. substantial cause of action was the same in each issue. Plaintiff’s complaint contained two separate causes of action, a judgment on either one of which would not be a bar to the

p. 16

other, though the legal questions presented were the same. Held, that the certificate would not issue. »

Action by Warren Teator against the New York Mutual Savings & Loan Association. Judgment for plaintiff. Application for a certificate under Code Civ. Proc. § 3234.

Denied.

The complaint states two canses o£ action. The first is for the amount claimed due upon the withdrawal of 10 shares of stock issued by the defendant to the plaintiff. The second cause of action is for the balance due upon the withdrawal of 25 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. Crandall, for plaintiff.

Russell & Winslow, for defendant.

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 case 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 he 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, distinct suit at law, neither being a bar to the other. So it is in this case. Application denied.