Reilly v. Sicilian Asphalt Paving Co.

• Decision Date: 25 February 1902
• Parties: REILLY v. SICILIAN ASPHALT PAVING CO.
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 40

62 N.E. 772

REILLY

v.SICILIAN ASPHALT PAVING CO.

Court of Appeals of New York.

Feb. 25, 1902.

Appeal from supreme court, appellate division, First department.

Action by John E. Reilly against the Sicilian Asphalt Paving Company. From a judgment of the appellate division (52 N. Y. Supp. 817) affirming a judgment for defendant, plaintiff appeals. Reversed.

E. T. Taliaferro and John Mulholland, for appellant.

Herbert C. Smyth and Edwin A. Jones, for respondent.

CULLEN, J.

The appellant claimed that while driving in Central Park, in the city of New York, both his person and his vehicle were injured in consequence of collision with a gravel heap placed on the road through the negligence of the defendant. Thereupon he brought an action against the defendant in the court of common pleas to recover damages for the injury to his person. Subsequently he brought another action in one of the district courts in the city of New York to recover for the injury to his vehicle. In this last action he obtained judgment, which was paid by the defendant. Thereafter the defendant set up by supplemental answer the judgment in the district court suit and its satisfaction as a bar to the further maintenance of the action in the common pleas. On the trial of the case in the supreme court, to which, under the constitution, the action was transferred, it was held that the plaintiff's right of action was merged in the judgment recovered in the district court, and his complaint was dismissed. The judgment entered upon this direction was affirmed by the appellate division, and an appeal has been taken to this court by allowance.

The rule is that a single or entire cause of action cannot be subdivided into several claims, and separate actions maintained thereon. Secor v. Sturgis, 16 N. Y. 548;Nathans v. Hope, 77 N. Y. 420. As to this principle there is no dispute. Therefore the question presented by this appeal is whether, from the defendant's negligence, and the injury occasioned thereby to the plaintiff in his person and his property, there arose a single cause of action, or two causes of action,-one for the injury to his person, and the other for injury to his property. The question is not determined by the Code of Civil Procedure, for, though in section 484 it prescribes what separate causes of action may be joined in the same complaint, it nowhere assumes to define what is a single cause of action. Nor is there any controlling decision of this court of the point. In Mulligan v. Ice. Co. (affirmed without opinion) 109 N. Y. 657, 16 N. E. 684, the question discussed in the opinion of the learned court below, and necessarily involved in the decision of this court, was the effect of a release which the plaintiff asserted was intended to cover only the injuries to his property, but was fraudulently prepared so as to embrace his whole cause of action. The case is doubtless authority for the proposition that a voluntary settlement between the parties of part of a claim does not satisfy or discharge the whole claim. But the principle that the parties may, by voluntary agreement, sever or split up a single cause of action, though a plaintiff cannot of his own volition do the same, seems to be generally recognized even in those jurisdictions where the rule is held most firmly that a single tort gives rise but to a single cause of action. O'Beirne v. Lloyd, 43 N. Y. 248;Bliss v. Railroad Co., 160 Mass. 447, 36 N. E. 65,39 Am. St. Rep. 504.

The question now before us has been the subject of conflicting decisions in different jurisdictions. In England it has been held by the court of appeal (Lord Coleridge, C. J., dissenting) that damages to the person and to property, though occasioned by the same wrongful act, give rise to different causes of action (Brunsden v. Humphrey, 14 Q. B. Div. 141), while in Massachusetts, Minnesota, and Missouri the contrary doctrine has been declared (Doran v. Cohen, 147 Mass. 342, 17 N. E. 647;King v. Railroad Co. [Minn.] 82 N. W. 1113,50 L. R. A. 161, 81 Am. St. Rep. 238; Von Fragstein v. Windler, 2 Mo. App. 598). The argument of those courts which maintain that an injury to person and property creates but a single cause of action is that, as the defendant's wrongful act was single, the cause of action must be single, and that the different injuries occasioned by it are merely items of damage proceeding from the same wrong, while that of the English court is that the negligent act of the defendant in itself constitutes no cause of action, and becomes an actionable wrong only out of the damage which it causes. ‘One wrong was done as soon as the plaintiff's enjoyment of his property was substantially interfered with. A further wrong arose as soon as the driving also caused injury to the plaintiff's person.’ Brunsden v. Humphrey, supra. I doubt whether either argument is conclusive. If, where one person was driving the vehicle of another, both the driver and the vehicle were injured, there can be no doubt that two causes of action would arise-one in favor of the person injured, and the other in favor of the owner of the injured property. On the other hand, if both the horse and the...