residue claim in New York

1980Thus, a plaintiff cannot "split up” one single or entire cause of action into parts and bring separate causes of action for each (see Perry v Dickerson, 85 NY 345 ).

1969One facet of res judicata, referred to as splitting a cause of action, is found in the general rule that when a plaintiff brings an action for only part of his cause of action, the judgment obtained in that action precludes him from bringing a second action for the residue of the claim, it being established that an entire claim, arising upon a contract or from a wrong, cannot be divided and made the subject of several suits and, if two or more suits are brought for different parts of such a claim, a judgment upon the merits in any one will be available as a bar in the others (Ripley v. Storer,

1969The determination of what constitutes the same or different causes of action is not a matter free from difficulty, the definition of the term ‘ ‘ cause of action ’ ’ being a variable one depending on the context in which it appears (Smith v. Kirkpatrick, 305 N. Y. 66, 70 ), The test for determining whether or not causes of action are the same for the purpose of res judicata has been expressed variously by the courts, such as whether a different judgment in the second action would destroy or impair rights or interests established by the first action, whether the same evidence is necessary to ma

1969One facet of res judicata, referred to as splitting a cause of action, is found in the general rule that when a plaintiff brings an action for only part of his cause of action, the judgment obtained in that action precludes him from bringing a second action for the residue of the claim, it being established that an entire claim, arising upon a contract or from a wrong, cannot be divided and made the subject of several suits and, if two or more suits are brought for different parts of such a claim, a judgment upon the merits in any one will be available as a bar in the others (Ripley v. Storer,

1969But the language used does not só permit (cf. Matter of Craig, 60 Misc 2d 264 ) and the legislative abolition of the ‘ ‘ no residue of a residue rule ’ ’ was made applicable prospectively and only with respect to residuary beneficiaries who predecease a testator (EPTL 3-3.4).

1969The determination of what constitutes the same or different causes of action is not a matter free from difficulty, the definition of the term ‘ ‘ cause of action ’ ’ being a variable one depending on the context in which it appears (Smith v. Kirkpatrick, 305 N. Y. 66, 70 ), The test for determining whether or not causes of action are the same for the purpose of res judicata has been expressed variously by the courts, such as whether a different judgment in the second action would destroy or impair rights or interests established by the first action, whether the same evidence is necessary to ma

1969One facet of res judicata, referred to as splitting a cause of action, is found in the general rule that when a plaintiff brings an action for only part of his cause of action, the judgment obtained in that action precludes him from bringing a second action for the residue of the claim, it being established that an entire claim, arising upon a contract or from a wrong, cannot be divided and made the subject of several suits and, if two or more suits are brought for different parts of such a claim, a judgment upon the merits in any one will be available as a bar in the others (Ripley v. Storer,

1929The trustees on the other hand propose to compute the true residue under the rule laid down in Matter of Benson ( 96 N. Y. 499 ).

1911(Beekman v. Bonsor, 23 N. Y. 298, 314 ; Kerr v. Dougherty, 79 ib. 327, 346; Booth v. Baptist Church of Christ, 126 ib. 215, 245; Morton v. Woodbury, 153 ib. 243, 256.) The general rule that, in a will of personal estate, a general residuary clause carries whatever is not otherwise effectually and legally disposed of, is not applicable where the residue of a residue is in question.

1911The defendant Rochester relies upon Kerr v. Dougherty, 79 N. Y. 327 , as a case analogous to the one here under consideration.

1867Ch., 267 , 292; Pickett v. King, 34 Barb., 193 ; Bloodgood v. Bruen, 4 Seld., 362 ; Shoemaker v. Benedict, 1 Kern., 176, 185 ; Winchell v. Hicks, 18 N. Y., 558 ; Pickett v. Leonard, 34 Id., 175.) It follows, from these views, that the indorsement in the handwriting of the defendant should be treated as the mere statement of the fact of payment, by one who had no authority in this form-to bind the estate; and that, even if it had been authenticated by his signature in his representative capacity, it would have proved nothing but the making of such payment, and would have amounted neither to a r

1867Ch., 267 , 292; Pickett v. King, 34 Barb., 193 ; Bloodgood v. Bruen, 4 Seld., 362 ; Shoemaker v. Benedict, 1 Kern., 176, 185 ; Winchell v. Hicks, 18 N. Y., 558 ; Pickett v. Leonard, 34 Id., 175.) It follows, from these views, that the indorsement in the handwriting of the defendant should be treated as the mere statement of the fact of payment, by one who had no authority in this form-to bind the estate; and that, even if it had been authenticated by his signature in his representative capacity, it would have proved nothing but the making of such payment, and would have amounted neither to a r