Damm v. Penrose

Guy, J. Before the commencement of this action for the recovery of $335, rent of premises for the month of August, 1920, the plaintiff had issued a summons dated on or about July 2, 1920, in an action against the defendant for the rent for June and July. Several attempts were made to serve the summons on the defendant, but he avoided service, and finally on or about September 1, 1920, an order for substituted service of the summons was made, and in pursuance of the order the summons was mailed the defendant September 2, 1920, and judgment thereafter entered in favor [112] of the plaintiff against the defendant for $673. As the August rent sought to be recovered in this action was due at the time of the service of the summons in the prior action by substituted service on September 2, 1920, the defendant claimed that the judgment in the prior action was res adjudicata in this action for the August rent, and upon that ground the court gave judgment for the defendant. . At the time the landlord attempted to begin the action for the June and July rent there was no splitting of any claim, against the defendant, for then the only rent due was the sum demanded in the summons, and that was the entire demand of the plaintiff. That service of the summons in the prior action was not made until the Older of substituted service in that action was mailed, was a circumstance resulting from the defendant avoiding service of process in that action, and the defendant should not be permitted by resort to such tactics to escape payment of his contractual obligations. As “ of necessity, the splitting up of accounts or demands implies, on the part of the suitor, a conscious act or knowledge ” (Gedney v. Gedney, 160 N. Y. 471), the rule invoked by the defendant has- no application to the facts in this case. Peterson v. Claire, 118 Misc. Rep. 85. Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event. Bijur, J., concurs.