Parker v. Simon , 185 N.Y.S. 339 ( 1920 )

Page, J. (dissenting):

The assignment of the contract to the Sweet’s Steel Company transferred all the legal rights of the plaintiff to that corporation. The profit that the plaintiff would realize on the performance of the contract was not a sum in excess of the amount to be paid to the Sweet’s Steel Company by the defendant; it was a part of it. On receipt of the sum the Sweet’s Steel Company was bound to account and pay over to the plaintiff one per cent of the sales price. It is well settled that there can be maintained but a single action for a single breach of a contract. To allow this action to be maintained for one per cent, and another for the remainder of the sales price by the Sweet’s Steel Company, would permit the splitting of a single cause of action. Plaintiff’s proper remedy would be to demand that the Sweet’s Steel Company collect its damages and account to plaintiff for his interest therein. If it refused, then plaintiff, to enforce his equitable rights, could bring an action against this defendant and the Sweet’s Steel Company. (Carvill v. Mirror Films, Inc., 178 App. Div. 644, 647; affd., 226 N. Y. 683.)

In my opinion the order should be affirmed.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of said costs.