As stated by Mr. Justice Greenbaum, the contract which is the basis of this action and upon which the former action was brought, was for the sale of striped webbings and ball-bearing fittings to be delivered in three equal installments. The first installment was delivered and paid for; and by the first count of the former action the plaintiff sought under general allegations *679to recover the purchase price of goods sold and delivered and the amount claimed thereunder equalled the purchase price of the goods covered by both the second and third installments, but it was not alleged that the goods there sued for were delivered in separate installments. The evidence presented and offered by the plaintiff on that trial in support of the first count of the complaint showed the delivery of the second installment, but that the third installment was not actually delivered, and on the contrary was retained by the seller under an arrangement by which he was to hold the goods for the buyer. On the authority of our decision in Robison & Co., Inc., v. Kram, No. 1 (195 App. Div. 873) the court excluded all evidence with regard to the third installment on the ground that it was inadmissible under the complaint, and that the plaintiff should have alleged the special facts showing that title passed without the actual delivery of the goods. Counsel for the plaintiff thereupon moved to amend the complaint in this respect. The defendant objected and the motion was denied. The plaintiff acquiesced therein and proceeded with the trial and recovered a verdict on that part of the first count which related to the goods that were actually delivered. Plaintiff then, before the entry of judgment, moved to sever the action as to the third installment, and for a new trial with respect thereto. The court granted an order of severance which also authorized the plaintiff to maintain a separate action for the third installment. The defendant appealed from that order and this court affirmed it without opinion. (Levy Co., Inc., v. Columbia Overseas Corp., 201 App. Div. 849.) The plaintiff then brought this action on two counts, both of which relate to the said third installment. The first is to recover $2,497.50 damages for the failure of the plaintiff to remove and pay for part of the goods known as striped webbing pursuant to the provisions of a modification of the agreement by which the plaintiff was to hold the goods for the account of the defendant, and the other was to recover as damages the sum of $5,141:25, which was the agreed purchase price of all the goods embraced in the third installment. The theory of that count was that no place of delivery was specified and that the plaintiff marked and set the goods apart at its place of business and notified the defendant that they were held for its account and as bailees for it, and that defendant failed on due demand to remove and pay for the goods, which could not be readily sold for a reasonable price. By section 124 of the Personal Property Law (as added by Laws of 1911, chap. 571) where, as here, no place of delivery is specified, but the goods are at the seller’s place of business, delivery is required to be made there; and on the allegations of the complaint *680it was the duty of the defendant to call for, take and pay for the goods, and on the allegations of the complaint an action to recover the purchase price could be sustained under section 144, subdivisions 1 and 3, or to recover damages under section 145 of the Personal 1 Property Law (as added by Laws of 1911, chap. 571). That these two counts in this action relate to the same goods is further evident from the fact that the demand for judgment is only for the amount claimed in the second count.
The defendant pleaded in bar of each count the judgment recovered in the other action, and its learned counsel contends that the plaintiff was obliged at his peril to embrace in that action all his claims which had then accrued in so far as they were predicated on the contract of sale. Whatever cause of action the plaintiff had with respect to the third installment of the goods accrued prior to the time the other action was brought; and it is quite evident that the causes of action claimed by the plaintiff with respect thereto as shown by its complaint here are predicated on the same contract, as modified, on which action, unaffected by the modification, in the former action it recovered for the second installment. The appellant contends, under the general rule that it is incumbent on a party to embrace all accrued claims for recovery on a single contract in a single action at the risk of forfeiting all such claims not so included (Brinn v. Hindlemann, Inc., 199 App. Div. 329; Pakas v. Hollingshead, 184 N. Y. 211, 214; Seed v. Johnston, 63 App. Div. 340, 343; Royal Live Fish Co. v. Central Fish Co., 159 id. 151, 154; Silberstein v. Begun, 232 N. Y. 319; Colburn v. Wood-worth, 31 Barb. 381, 384; Fish v. Folley, 6 Hill, 54; Trustees of Presbytery of New York v. Westminster Presbyterian Church, 223 N. Y. 586; Bracken v. Atlantic Trust Co., 36 App. Div. 67; 42 id. 621; affd., 167 N. Y. 510; Samuel v. Fidelity & Casualty Co., 76 Hun, 308; affd., 150 N. Y. 583; Goodman v. Pocock, 15 Ad. & Ell. [N. S.] 576), that this action is barred by the judgment in the former action.
I am of opinion, however, that the defendant’s pleas are met and overcome by the order of severance, made by the court in the interests of justice under the broad provisions of section 96 of the Civil Practice Act, for that order is an adjudication made by the court and affirmed here and cannot be questioned collaterally. (Lorillard v. Clyde, 122 N. Y. 41. See, also, Lorillard v. Clyde, 102 id. 59, 64.)
I, therefore, vote to affirm the order.
Clarke, P. J., concurs.
Order affirmed, with ten dollars costs and disbursements.