Century Factors v. New Plan Realty Corp.

Full title: CENTURY FACTORS, INC., Appellant, v. NEW PLAN REALTY CORPORATION…

Court: Court of Appeals of the State of New York

Date published: Apr 28, 1977

41 N.Y.2d 1040 (N.Y. 1977)

396 N.Y.S.2d 179

364 N.E.2d 843

Opinion

Argued March 21, 1977

Decided April 28, 1977

Appeal from the Appellate Division of the Supreme Court in the First Department, SIDNEY A. FINE, J.

Samuel Gottlieb, Eugene H. Feldman, Milton Shalleck and Nathan Silverman for appellant.

Bernard Gartlir, Joseph Halper and H. Bruce Allen for respondent.

MEMORANDUM. The order of the Appellate Division should be affirmed. We agree that "[t]he obligation of the defendant, though consisting of two promises, is in truth a single obligation requiring the plaintiff to assert its full claim in one action. Failure to do so results in the splitting of a cause of action which is prohibited (Roe v Smyth, 278 N.Y. 364, 369; Columbia Corrugated Container Corp. v Skyway Container Corp., 37 A.D.2d 845, 846, affd 32 N.Y.2d 818)."

Accordingly, inasmuch as plaintiff did not assert its claim for expenses of collection and reasonable counsel fees in the first action, it is precluded from asserting them in a second, independent action.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order affirmed, with costs, in a memorandum.