¶1This is an appeal from an order denying a motion made by the defendant to stay the proceedings on the part of the plaintiff, until the payment of the costs of a former action between the same parties.
¶2To sustain this appeal it must appear from the record that the actions are identical, and that the relief sought in each is similar (Barton v. Speis, 73 N. Y. 133, and cases there cited).
¶3The plaintiff sued the defendant in 1874 in the superior court of the city of New York, and alleged in his complaint therein that he hired from the defendant certain premises, relying upon the truth of representations made by him, that said premises were tenantable and were proper, fit and suitable for plaintiff’s business; that such representations were false and untrue ; that plaintiff threatened to leave the premises unless *261the defendant made suitable repairs thereto, which he agreed, but neglected to do. That by reason of such neglect the defendant sustained personal injuries whereby he lost the use of his right arm and hand, suffered great pain, &c., and was prevented from attending to his business to his damage of $20,000, for which he prayed judgment. The defendant interposed a general denial to these facts, and the issues thus raised were brought to trial. The record shows that a doubt existed whether such action upon the pleadings and proofs should be regarded as ex contractu or ex delicto. The trial judge inclined to the view that the question was one of negligence, and upon plaintiff’s election so treated it and dismissed the complaint, which ruling was affirmed by the general term of that court, and judgment rendered for $436 costs.
¶4The plaintiff subsequently brought this action, setting forth in his complaint the former suit in the superior court and his election therein that it was in tort. He then avers the hiring of the premises in the manner and upon the representations above set forth, the expenditure of $400 for fixtures and improvements on the premises, which had become a total loss to him, and the subsequent agreement and neglect of plaintiff to make suitable repairs; and for the falsity of said representations and the alleged breach on defendant’s part, he claims damages in the sum of $10,000.
¶5For a second cause of action plaintiff avers a covenant or agreement by the defendant of quiet enjoyment of the premises, and a breach thereof to his, plaintiff’s, damage of $10,000.
¶6No demurrer was interposed to the complaint in the former action, and plaintiff’s election on the trial thereof was made without objection or exception.
¶7Whatever may be the merits of this action, they are not now a subject of consideration. The sole question is, were they involved or passed upon in the previous adjudication (Sweet v. Tuttle, 14 N. Y. 465; Burwell v. Knight, 51 Barb. 267; Stowell v. Chamberlain, 60 N. Y. 271).
¶8Both actions necessarily arose from one cause, but this did not destroy the distinctiveness of their character. In the one, exemplary damages might be awarded; in the other, actual loss *262only could be recovered. In the present action facts are alleged upon which such loss may be predicated. In this respect the actions differ, and are distinguishable from the class of cases upon which the appellant relies.
¶9The plaintiff by exercising his election did not waive his present cause of action (Louw v. Davis, 13 Johns. 227; Foster v. Millmer, 50 Barb. 385; Thompson v. Wood, 1 Hilt. 93).
¶10So far as the purposes of this appeal are involved, I am of opinion that the two actions are not identical, within the meaning and scope of the authorities, to sustain an injunction at this stage of the case, and that the order appealed from should be affirmed, with costs.
¶11Van Brunt, J.—I concur in the result.
¶12Order affirmed, with costs.