Opinion
Argued October 7, 1881
Decided October 25, 1881
Thomas W. Osborn for appellant.
Freling H. Smith for respondent.
The claim is made on the part of the appellant, that the rule, that where a party brings an action for a part only of an entire, indivisible demand, and recovers judgment, he cannot subsequently maintain an action for another part of the same demand, was violated in the judgment rendered in this action.
The facts, as the trial judge found them, or may be presumed in support of the judgment to have found them, are as follows: There were two contracts made with each, the plaintiff and his assignor, one with each to carry him and his baggage, and the other subsequently made to carry the chattels contained in his trunk.
It was decided in the prior action that that was based solely upon the contract to carry the passengers and their baggage. The recovery was there limited to such baggage, and it was held that the contracts alleged did not cover the chattels involved in this action.
This action is based upon separate contracts to carry the chattels which were not properly baggage, and which were contained in the trunks. It was manifestly in reference to such chattels that the extra compensation was demanded by the defendant and separate contracts thus made.
The former recovery does not, therefore, bar this action. A single demand was not divided in violation of the rule above referred to. ( Stoneman v. Erie Railway Co., 52 N.Y. 429; Sloman v. The Great Western Railway Co., 67 id. 208.) And this result follows although the plaintiff in the former action recovered for the trunks in which the chattels here in question were packed, because such recovery was had, perhaps erroneously, under the contracts there alleged, and not under the contracts alleged in this action.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.