Opinion
May 10, 1939.
Appeal from County Court of Onondaga County.
Sidney H. Singer [ Herman I. Branse with him on the brief], for the appellant.
Gerber Winkelstein [ Warren Winkelstein of counsel], for the respondents.
Present — SEARS, P.J., CROSBY, LEWIS, CUNNINGHAM and TAYLOR, JJ.
Pursuant to an agreement under seal between the parties, defendant obligated himself to pay to plaintiffs a sum of money in weekly installments. The agreement further provided that, upon default in the payment of any weekly installment, the principal sum should become immediately due and payable. Defendant having made such default, plaintiffs, in an action to recover only the amount of the defaulted weekly installment, recovered judgment therefor against defendant, who had answered but failed to appear for trial and who thereafter paid the judgment. Whether defendant, prior to the commencement of that action, induced plaintiffs to deliver to him their written agreement to waive the provisions of the original agreement with respect to acceleration of the due date of the principal sum, presents a question for the jury. If this question should be determined in plaintiffs' favor, defendant — in the present action brought to recover subsequently defaulted installments — would be estopped from asserting that the recovery in the former action bars a recovery in the present action. ( Imperator Realty Co. v. Tull, 228 N.Y. 447.) The rule that a single claim cannot be divided and made the subject of several suits is in the interest of the debtor and may be waived by him. ( Mills v. Garrison, 3 Keyes [N.Y.], 40; Carrington v. Crocker, 37 N.Y. 336.)
Whether plaintiffs, if they be successful on the trial of this action, will be entitled to maintain any subsequent actions for sums not included in the present action, is not before us upon this appeal.
The order should be affirmed, with ten dollars costs and disbursements.
All concur.
Order affirmed, with ten dollars costs and disbursements.