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1 Wend. 487

Miller v. Covert

New York Supreme Court

Decided October 15, 1828

New York Supreme Court · decided 1828-10-15

Error from the Seneca common pleas. Miller sued Covert in a justice’s court, where judgment, on the 6lh July, 1827, was rendered in favor of the defendant for the costs of the suit. Miller appealed to the common pleas, where he proved a demand for work, labor and services, to the amount of $4,16.

Good law ✅— No negative treatment on recordhow we know

Decided 1828-10-15

How this case has been cited

Cited by 26 later decisions (1 by the Supreme Court) — most recently May 1908 · most notably Cromwell v. County of Sac (1876), Gould v. Evansville and Crawfordsville Rr Co (1875)

2 federal appellate · 22 state decisions — followed in 12 states

50182818301840185018601870188018901900decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1By the Court,

Sutherland, J.

¶2The court below erred in permitting Covert, the defendant,. to prove and. set off against Miller, his account.for the balance of the three tons of hay sold and delivered to him in January,.1827. The sale of the hay was by one single indivisible contract. Miller agreed to purchase three tons of hay from Covert, and Covert agreed to sell it to him if he had so much to spare, and in the course of a few days delivered the whole. It is perfectly settled, that if a plaintiff bring an action for a part only of an entire and indivisible demand, the verdict and judgment in that action are a conclusive bar to a subsequent suit for another part of the same demand. The cases of Smith v. Jones, (15 Johns. R. 229,) of Farrington & Smith v. Paine, (15 Johns. R. 432,) of Willard v. Sperry, (16 Johns. R. 121,) and Phillips v. Berick, (16 Johns. R. 136,) are precisely in point. If Covert could not have brought an action for the residue of the three tons of hay, he of course could not avail himself of it by way of off-set when sued by Miller.

¶3Judgment reversed.

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