Teator v. New York Mutual Savings & Loan Ass'n

Herrick, J. Our present system of practice permits the setting forth, as different counts or separate causes of action, the same contract transaction or grievance, in different forms and different aspects, but in such cases permits only one recovery, and it is undoubtedly the intention of section 3234 to provide for such cases. In this ease we have two entirely separate and distinct causes of action set forth, either one of which would be the foundation for a separate suit and judgment, and a judgment upon either would not be a bar to an action upon the other, because not arising out of the same contract, transaction, or grievance. Where a judgment upon one cause of action, if separately brought, would not be a bar to an action upon the other cause of action, I do not think the certificate should issue. Assuming the fact to be as claimed by the plaintiff’s counsel in this case, that the same legal questions arise in each, I do not think that determines the question or makes the two causes of action substantially the same within the meaning of the section of the Code under which this application is made. The legal questions may be the same, but the cause of action separate and distinct, each the foundation of a separate and district suit at law, neither being a bar to the other. So it is in this case. Application denied.