(dissenting). I dissent and vote to affirm on the ground that the contract to pay the note.and costs of collection is an indivisible contract to pay a certain sum of money. (Neg. Inst. Law, § 21, subd. 5.) It is alleged in the complaint that the plaintiff has prosecuted an action on the note to judgment. He is, therefore, barred from bringing another action on this same instrument. (Silberstein v. Begun, 232 N. Y. 319.)
Order and judgment dismissing the complaint reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Defendants may serve then answer within ten days from the entry of the order hereon.