Hyperlawhypertext legal databasebeta Darrow v. Clipper Manufacturing Co. 96 N.Y.S. 194

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Darrow v. Clipper Manufacturing Co.

96 N.Y.S. 194 Court N.Y. App. Term Decision date 1905-11-24 English

Delivered by MacLEAN, J.

Contents

Majority

p. 194
(48 Misc. Rep. 635)
DARROW v. CLIPPER MFG. CO.
(Supreme Court, Appellate Term.
November 24, 1905.)

Headnote

Judgments—Res Judicata.
Plaintiff sued on an account for clips and trays delivered by his assignor on orders running from June 5 to August 19, 1901, but during the trial withdrew all of his claim except for trays, for which judgment was entered in his favor. Held, that such judgment was res judicata of plaintiff’s subsequent right to recover on a quantum meruit for the clips.
p. 195
Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
Action by Frederick Darrow against the Clipper Manufacturing Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals.
Affirmed.
Argued before SCOTT, P. J., and GIDDERSDEEVE and MacEean, JJ.
John T. Smith, for appellant.
George H. Mallory, for respondent.

Heretofore in an action in the City Court between these parties the plaintiff sued for goods sold and delivered by his assignor, consisting of clips and trays itemized in the bill of particulars, and upon orders running from June 5, 1901, to August 19th following. In that action, as appears from the judgment roll, the plaintiff having withdrawn all of his claim, except for trays, judgment was entered upon the verdict of a jury in his favor. Subsequently, and herein in the Municipal Court, the plaintiff, as assignor, declared in three causes for these clips, viz., for work, labor, and services at an agreed sum, upon a quantum meruit, and for goods sold and delivered, and elected to stand upon the second cause. His complaint was dismissed, and properly, for the evidence discloses a running account between the defendant and the plaintiff’s assignor, with the rendition of monthly statements of the gross amounts due, and upon orders which were sometimes for trays, sometimes for clips, and sometimes for both, within the dates above mentioned. When suit was brought in the City Court, the claim of the plaintiff was single or entire; for “in the case of a running account, it may be fairly implied that it is in- pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both of the parties” (Secor v. Sturgis, 16 N. Y. 548 , 588), and therefore judgment there obtained bars the present claim.

Judgment affirmed, with costs. All concur.

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