O'Beirne v. Lloyd
The Superior Court of New York City
Appeal from a judgment. This action was "brought by Patrick O’Beirne against James T. Lloyd, to recover for services in making a map under a contract between the parties.
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Appeal from a judgment. This action was "brought by Patrick O’Beirne against James T. Lloyd, to recover for services in making a map under a contract between the parties. It appeared that in October, 1865, the defendant employed plaintiff, under a written contract, to make certain maps in sections, for each of which sections plaintiff was to receive $400. The defendant afterward countermanded the making of the maps, but plaintiff completed several sections, and sued in the supreme court to recover therefor. That suit was commenced on February 10, 1866. The complaint in it alleged that the…
1Opinion of the CourtBy the Court. Jones, J.
The commencement of an action for the recovery of part of an entire demand does not extinguish the right of action for the balance.
If such action proceeds to judgment, then the judgment would be a bar to any action brought to recover the balance of the demand.
But the mere pendency of a prior action for part of an entire demand can be pleaded in a subsequent action for the balance of such demand in abatement only (Secor v. Sturgis, 16 N. Y., 548).
If such plea in abatement is interposed to the second suit, the plaintiff therein may discontinue the first one, and thereupon the plea falls (Swart…
2Cases cited2 opinions
- Secor v. . SturgisNew York Court of Appeals · 1858
- Swart v. BorstNew York Supreme Court · 1858
3Cited by2 opinions
- Page v. MitchellSupreme Court of Minnesota · 1887
- Pohalaski v. Mutual Life InsuranceThe Superior Court of New York City · 1873