Kent v. Crouse ( 1886 )

Boardman, J.

The interlocutory judgment should be affirmed with costs of appeal upon the opinion of Mr. Justice Mee WIN at Special Term.

I think the causes of action are properly joined under either the first or ninth subdivision of § 484 of Code of Civ. Pro.; that they are in no respect inconsistent with each other, and that they affect the parties to the action alike.

I also think that § 2384 creates against one who revokes an agreement to arbitrate an implied contract or obligation to pay to his adversary the costs and expenses and damages incurred prior thereto by reason of the breach of the contract, bringing the causes of action under the first subdivision “ contract express or implied.” Sec. 484, supra.

If this be doubtful, the claims arise out of the same transaction or transactions connected with the same subject of action under subdivision nine of § 844, and not included under any of the other subdivisions of that section.

No reason is apparent why these causes of action should not be tried and disposed of together. A money judgment is demanded in each case, and proof must be made as to each count of the value of the work, labor, etc., charged to have been rendered in the first two causes of action, and of costs and expenses paid and damages suffered in the third cause of action. It would seem unreasonable that two separate actions should be necessary to determine the rights of the parties where one would be equally effective.

Haedin and Follett, JJ., concur.