Citation Numbers: 147 Misc. 687
Judges: Steinbrink
Filed Date: 3/17/1933
Status: Precedential
Modified Date: 1/12/2023
From the complaint it appears that in April, 1927, the parties hereto entered into an agreement under the terms of which plaintiff agreed to deliver to defendant 24,000 belts of a certain description, the price being thirty cents for each belt. Defendant agreed to accept 2,000 belts a month. Pursuant to the agreement plaintiff delivered 7,030 belts. Defendant paid for the first 3,000 belts, but on August 25, 1927, refused to pay for the remaining ones on the ground that they were imperfect and not according to sample, and refused to accept any further deliveries. Plaintiff thereupon instituted an action in the Municipal Court to recover the price of the belts delivered, and was there met with the defense that the belts delivered were not in conformity with the sample, but consisted of inferior leather and imperfect perforations. Plaintiff succeeded in prosecuting this action to a judgment, which has since been satisfied. It is further alleged in the complaint that plaintiff performed all the terms and conditions of the agreement on its part to be performed, except in so far as such performance was prevented by reason of the act or acts of the defendant, and that as a result of defendant’s refusal to accept delivery of the belts pursuant to the agreement, plaintiff was damaged in the sum of $3,517.60. The answer, after denying performance by plaintiff of all the terms of the agreement, pleads as an affirmative defense that the Municipal Court judgment is res judicata; that plaintiff’s failure to assert in the prior action a claim for damages arising out of defendant’s breach of what is claimed to be the entire contract bars the prosecution of this action. Plaintiff contends that the contract was divisible and that defendant’s conduct gave rise to two causes of action, one for the part delivered and the other for the part not accepted. From that plaintiff concludes that recovery on one cause of action does not bar recovery on the other. True, the contract is divisible in the sense that by its terms the price for a portion or portions of the goods less than the whole is fixed or ascertainable by computation. (Pers. Prop. Law, § 156.) Plaintiff may sue for each installment of the price as it matures. But plaintiff uses the term divisible in the sense that a cause of action for non-payment of one installment may co-exist with a cause of action for breach of the entire contract. This cannot be so for, by necessity, breach of a part and breach of the whole must coalesce. The .one merges into the other by the same