The complaint states two causes of action, one for damages and the other for additional rent. In the first the plaintiff charges that the defendant by refusing to permit access pursuant to a provision of a lease, which provided that the defendant as tenant would afford the plaintiff as landlord and its contractor every facility to enter upon the premises, caused the plaintiff to suffer substantial damages. In the second cause of
The motion of the defendant to dismiss the complaint pursuant to rule 113 of the Rules of Civil Practice on the ground that there is in existence a prior final judgment adjudicating the same issues was granted. The plaintiff's cross motion for summary judgment, pursuant to section 117 of the Civil Practice Act, was denied. The Appellate Division affirmed. The question is whether the first judgment bars both causes of action set forth in the present complaint.
The plaintiff owns a tenant factory building, in which the defendant operates a store for the manufacture and sale of artificial flowers. In 1948 the department of housing and buildings filed a violation against the premises under section 271 of the Labor Law on the ground that the cellar and subcellar were not provided with two separate means of egress to the street. The defendant used the cellar as factory space and the subcellar as storage space. On March 27, 1952, the plaintiff and defendant entered into a new lease of the store and basement for a period in excess of ten years. Under paragraph 38 of the lease the existence of the violation was made known to the tenant with the information that plans to perform the necessary work had been approved by the department of housing and buildings. The lease further recited the work to be done and the method by which it was to be done, setting forth approximately how much space would be taken from the defendant's premises by the repairs. The lease further stated that the "tenant * * * agrees to afford the Landlord and its
An injunction pendente lite was granted by Special Term and upon appeal was affirmed by the Appellate Division. The defendant persisted in its refusal to permit the construction work in spite of the temporary injunction, whereupon plaintiff moved to have the defendant and its officers adjudged in contempt of court. The motion was granted and the defendants were fined $250 each. Subsequently, after a trial on the merits, judgment was granted permanently enjoining the defendant from interfering with the plaintiff and its contractor in the performance of the necessary construction work required to remove the violation. The plaintiff's request for an additional allowance and costs was denied. No appeal was taken from this judgment.
Thereafter, plaintiff commenced the present action. The answer set forth an affirmative defense to both causes of action on the ground that the matters alleged in the complaint by reason of a prior judgment now are res judicata.
The two causes of action involved different "rights" and "wrongs". The first cause of action is based on the failure to allow access to the premises. It is the same cause of action which has been litigated on the merits to a final adjudication. Therefore, it is final as to all things which might have been litigated as well as those actually litigated. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304.) The plaintiff is precluded from suing for damages upon the first cause of action of the complaint herein. In Inderlied v. Whaley (85 Hun 63, affd. 156 N.Y. 658), it was held that since a plaintiff could have demanded damages in the injunction action and did not do so, he was precluded from suing for them in a later action. This is the rule in this State. (Hahl v. Sugo, 169 N.Y. 109;
As to the second cause of action. The second cause of action arises out of the breach of a separate and distinct "right" — the right to assess as additional rent expenses and attorney's fees incurred as a result of the tenant's failure to comply with provisions of the lease. The right supporting the second cause of action did not accrue until after the termination of the suit for an injunction and the completion of the alterations necessary to remove the municipal violation. The extent of the damages comprising the claim for additional rent could not be ascertained earlier. The cause of action is founded on the refusal of the tenant to pay the additional rent. This court has held that no suit can be brought for future rent in the absence of a clause permitting acceleration. (McCready v. Lindenborn, 172 N.Y. 400; 5 Williston on Contracts [Rev. ed.], §§ 1329, 1403.) Consequently, the plaintiff could not have sued for additional future rent in the prior action. Since then, the additional rent came due. It follows that an action to recover such rent is not barred by the judgment in the previous action. (Smith v. Kirkpatrick, 305 N.Y. 66.)
Since it appears that the defendant's motion for summary judgment seeking dismissal may be granted as to only one cause of action (Rules Civ. Prac., rule 114), the judgment of the Appellate Division should be affirmed to the extent that it dismisses the first cause of action set forth in the complaint and denies plaintiff's motion for summary judgment, and reversed as to that part of the judgment which dismisses the second cause of action. The first cause of action should be severed.
The judgment of the Appellate Division should be modified, and, as so modified, affirmed, and the case remitted to Special Term for further proceedings in accordance with the opinion herein.