Schultz v. Baker

Per Curiam. Appeal from an order dismissing the complaint under rule 107 of the Buies of Civil Practice. The action is for damages claimed to have been received by plaintiff-appellant on or about May 9, 1944, while riding in a passenger bus owned by the Albany Transit Company, which was being driven in a negligent manner by its employee, the defendant in this action. The plaintiff was represented by other counsel in two previous actions brought in connection with the same claimed injury, the first against the Albany Transit Company, the complaint being verified and dated September 5, 1944, which action was discontinued by stipulation in December, 1944; the second was commenced in February, 1945, against the United Transportation Co., Inc., and therein it was asserted that the transportation company was the owner of the bus which was being driven in a negligent manner by its employee, the defendant-respondent in this appeal The latter action was tried and resulted in a judgment in favor of the plaintiff, which was entered in the Office of the Clerk of Bensselaer County. In August, 1945, the defendant transportation company deposited the sum then due upon that judgment with the Clerk of Bensselaer County, whereupon that official certified that the judgment was duly satisfied and discharged and notified this appellant, plaintiff in that action, and her then attorney. Appellant, through her present attorneys now brings this third action, the complaint alleging that the defendant-respondent herein was driving a bus belonging to the Albany Transit Company. Appellant has had but one injury which was received while riding in a bus of which the present respondent was the driver. There was a single cause of action, and having successfully prosecuted it to judgment in an action against the United Transportation Co., Inc., no cause of action remains which may be prosecuted against the defendant-respondent herein. (Wolf v. Kenyon, 242 App. Div. 116; Luce v. New York, Chicago & St. Louis R. R. Co., 213 App. Div. 374, appeal dismissed 241 N. Y. 541.) [188] Daly v. Terpening (287 N. Y. 611) cited by appellant, has no application. The order should be affirmed, with $25 costs and disbursements. Hill, P. J., Heffernau, Foster and Deyo, JJ., concur; Russell, J., taking no part. Order affirmed, with $25 costs and disbursements. -