Aaronson v. David Meyer Brewing Co. , 56 N.Y.S. 390 ( 1899 )

Schuchman, J.

The appeal in this action involves the same questions discussed in action No. 1.

There is, however, an additional defense set up, to-wit:

“ That at the time of the commencement of this action there was, and there is now, pending undetermined in this court a suit, wherein this plaintiff is plaintiff and this defendant is defendant, involving the same cause of action.”

Action No. 1 is brought on the guarantee, to recover the rent of July month, which is payable in advance; notice of nonpayment thereof was given to the guarantor on July 30th, and within thirty days thereafter suit could have been commenced against the guarantor.

That suit was commenced on September 4, 1896, and action No. 2 is brought to recover the rents for the months of August and September, payable in advance.

Notice of nonpayment of the rent for August month was given on August 5th, and for September month on September 2d. This action was commenced on October 23, 1896.

Either action Nos. 1 or 2 accrued within thirty days after notice of default to guarantor.

When action No. 1 was commenced, the thirty days’ notice stipulated for in the guarantee for the bringing of a suit against the guarantor for the rents of August and September months had not expired; in other words, the contingency upon which the bringing of this action depended, had not arisen.

The rule of law is, that each default in the payment of money due upon a contract, payable in installments, may be the subject of an independent action, provided it is brought before the next installment becomes due. Lorillard v. Clyde, 122 N. Y. 41; Underhill v. Collins, 39 N. Y. St. Repr. 795; Nathans v. Hope, 77 N. Y. 420; Perry v. Dickerson, 85 id. 345.

Judgment and order appealed from affirmed, with costs.

Conlan, J., concurs.

Judgment and order affirmed, with costs.