
    ALEXANDER IRVINE, Plaintiff and Respondent, v. LUTHER A. MILLBANK, LEWIS MEALIO, and CHARLES B. WOOD, Defendants and Appellants.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.
    
      Decided June 28, 1873.
    Tort-feasors.— Joint Debtor Act, Chapter 257, Laws of 1838, and Chapter 348 of Laws of 1845.
    I. JRdease or discharge of one when it does not release or discharge the othe/rs.
    
    1. After rendition of judgment against several sued as tort-feasors, they become joint debtors within the meaning of the above Joint Debtors Act.
    1. Therefore the plaintiff may compromise with one and discharge him from liability without affecting the liability of the others for the balance remaining due on the judgment, or discharging them therefrom.
    Appeal from judgment and order denying motion for new trial.
    This was an action upon an undertaking given pursuant to section 335 of the Code, to stay execution on a judgment pending an appeal to the Court of Appeals. The action in which the undertaking was given was brought by the present plaintiff against one Fowler, as owner, and Wood Brothers, as occupants, of certain premises on Broadway, in the city of New York, to recover for injuries suffered by him by reason of the negligent construction and maintenance of a coal-hole and cover in front of said premises. In that action, judgment was entered on a verdict against the said owner and occupants for $6,184.08, July 1, 1867.
    The defendants Fowler and Wood Brothers took separate appeals to the General Term. Judgment of af-firma,nc.fi, as against both Fowler and Wood Bros., was entered March 14, 1868.
    The defendants Wood Bros., appealed from the General Term to the Court of Appeals, and filed the undertaking in suit.
    But the defendant Fowler, not appealing, paid the plaintiff twenty-five hundred dollars to be released from further liability on the judgment.
    The plaintiff executed to Fowler a release pursuant to the provisions of the act for the relief of joint debtors, etc., passed 1838.
    The only point raised was that execution and delivery of the release by the plaintiff to Fowler, one of the judgment debtors, was an extinguishment of the judgment.
    A verdict was rendered for the plaintiff for the amount of the judgment against Fowler and Wood Brothers and interest thereon less the sum received from Fowler on the settlement with him and the interest thereon.
    A motion was made for new trial by the defendants, which was denied.
    The judgment was entered in conformity with the verdict.
    Defendants appealed from the order denying the motion for a new trial; also from the judgment.
    Arthur, Phelps & Knevals, attorneys, and D. C. Brown, of counsel, for appellants, urged:
    I. The question presented to the court upon this appeal is whether the settlement effected between the plaintiff and the defendant. Fowler, and the execution and delivery of the release, was effectual to bar the plaintiff’s claim for any further damages in the action as against the defendants Wood Brothers.
    There can be no doubt that upon general principles of law, this release is equally operative in favor of all the defendants in this judgment, but its effect in this particular case is sought to be avoided by an attempt to-bring the settlement within the protection afforded by the Joint Debtor Act. The release upon its face purports to have been given under that act; but it is confidently submitted this case is not brought within the; spirit or terms of said act.
    It was not intended to apply, because there was no-necessity in the nature of things that it apply, to cases where the claim or debt was not originally exclusively of a joint nature.
    In the case before the court the defendants were sued in tort. The action was for a wrong, for negligence in allowing the coal-hole to remain open, in consequence of which the plaintiff was injured.
    There was no joint wrong-doing or omission alleged or proved.
    They were sued in tort, and upon no othér theory could they be joined at all; and the recovery against them was in the same capacity.
    This case is not within the spirit.of the law, because not within its necessity. The rule ceases when the reason for it ceases.
    But the ease is not within the letter of the act.
    The term joint debtor, as used in the act, means the obligation arising from the joint undertaking of two or more persons ; like the undertaking on appeal sued upon here. It implies that the parties have voluntarily united in incurring the obligation.
    “ The legal acceptation of debt,” says Blackstone, “is “a sum of money due by certain and express agree-ument, as by a bond for a determinate sum, a bill or “ note, a special bargain, or rent reserved in a lease” (3 Black Com. 154).
    “ It is a species of contract whereby a chose in action or right to a certain sum of money is mutually acquired and lost” (2 Blk. Com. 464).
    
      That a joint judgment has been obtained against two persons does not make them joint debtors, if they were not such before. This would be to allow the plaintiff to put persons in an attitude or relation to each other against their will or consent.
    The infallible test of joint debtorship is that of contribution. If two owe a debt jointly, whether in judgment or not, and one discharge it by payment, he may call upon the other for contribution. The doctrine is founded upon the principle that equality of burden as ■ to a matter of common right is equity.
    But among wrong-doers there is no contribution (Merryweather v. ¡Nixon, 8 T. R. 186).
    And the rule is the same when they are guilty only of neglect (1 M. & W. 504; Andrews v. Murray, 33 Barb. 354).
    This doctrine is founded on public policy.
    The Chancellor says in Peck v. Ellis (2 John Ch. 138):—“ There would be no safety to property if a large combination of trespassers were entitled to the assistance of courts of justice in the apportionment of the damage. The knowledge that each individual is responsible for the whole constitutes the great check.”
    The courts always look beyond the judgment to see the relation of the parties ; as in the case of tort-feasors, when proceedings subsequent to judgment are taken for contribution, the courts deny the relief on the ground of their former relation. So, if the maker and endorser of a note be sued in the same action, and judgment joint in form be obtained against them, the maker cannot, by paying the judgment, compel the endorser to contribute.
    The courts regard the antecedent relation of the parties frequently as continuing after judgment, as in the last case. Even after judgment, if the plaintiff give time to the maker without the consent of the endorser, he discharges him from the judgment (Bangs v. Strong, 7 Hill, 250; Bangs v. Strong, 4 Coms. 315; Alden x. Clark, 11 How. 209).
    The principle clearly established by these cases is, ■ that though in a general sense the judgment merges the cause of action; yet it does not extinguish the relation which the parties to it sustained to each other before judgment, nor establish a new one for them.
    
    II. The Woods and Fowler, not being joint debtors within the meaning of the statute, the release to Fowler discharged all (Livingston v. Bishop, 1 John. 290 ; Knickerbocker v. Culver, 8 Cow. 111; Bronson, v. Fitzhugh, 1 Hill, 185; Barrett v. 3d Ave. R. R., 45 N. Y. 635, Allen, Justice).
    III. Mo point will be probably attempted—certainly none can be successfully taken—that the release to Fowler was inoperative for the purpose of a discharge as to him.
    This instrument is in the hands of Fowler, and is produced by him upon the trial, and the court will consider the case precisely as though the j ndgment was actually discharged of record.
    The settlement is a good discharge of the judgment as against Fowler, under the provisions of art. 2, title 4, •chap. 6, part 3, of the Rev. St. It is “an acknowledgment of satisfaction, signed by the party, acknowledged before the proper officer.”
    The statute does not prescribe the form of a satisfaction, and any instrument which substantially conforms to the act is sufficient.
    This instrument unmistakably implies upon its face that the judgment mentioned in it, so far as Fowler is concerned, is paid and he is exonerated from the same —that is, that he is discharged therefrom.
    This was a release under seal and within the technical rule which requires such a release to discharge a judgment or debt of record aside from ordinary satisfaction.
    
      It is more than a parol release, it is acknowledged "before an officer, to make it matter of record; it is thus a release of record, and of the same grade as evidence as the judgment itself (Booth v. F. and Ms. Bk., 4 Bans. 301).
    
      Barrett & Redfleld, attorneys, and A. A. Redfleld, of counsel for respondent, urged:
    I. The compromise with, and exoneration of, Fowler, is pursuant, to the statute, and does not work an extinguishment of the judgment—a protection which the statute expressly gives against a technical and rigorous rule of the common law.
    1. The- statute provides for the composition or compromise “of every liability;’’ and “if such liability shall be by judgment in any court of record,” the judgment may be discharged of record as against the compromising debtor.
    The operation of the statute is not confined to any particular kind or form of “ liability; ” and the court will inquire neither into the character of the liability nor the nature of the evidence of such liability—it being admitted that a certain liability does exist.
    If the legislature had intended that not every liability, but only certain liabilities might be compromised, it does not seem that the legislature could have been embarrassed for apt words to express such intention.
    
      2. This was a composition of a judgment, or a liability by judgment, with one of the judgment debtors.
    Whatever may have been the constituents of this judgment, whether contract, tort, statutory, penalty, or other cause of action—they were merged and lost in the judgment. The “liability” that was compromised by the defendant Fowler, was a liability by judgment and not for the cause of action on which the judgment was founded. So that if there be any difficulty in holding that a joint liability for a tori cannot be compromised under the statute of 1838, there certainly can be no difficulty in holding that a liability by judgment, even if founded on a tort, can be so compromised.
    II. The defendants, Fowler and Wood Bros., were not joint tort-feasors. One was the owner and the others were occupants of the premises, for the negligent maintenance of which they were all sued in one action. But it was not necessary to make both the owner and • the occupants parties. Bach of them was liable to the plaintiff. They were jointly and severally liable to the plaintiff, and the judgment was recovered against them as such. It follows that the compromise with Fowler did not need the protection of the statute of 1838, because the common-law rule as to joint debtors did not apply.
    • 1. It was claimed on the trial of the action against Fowler and Wood Bros., that inasmuch as they were only severally liable to the plaintiff for their respective negligences, and as they had severed in their pleas, the jury should sever the damages, but the court held, at General Term, that they were jointly as well as severally liable, and therefore the damages need not be severed (Irvin v. Wood, 4 Rob. 138 ; Irvin v. Fowler, 5 Id. 482; see Robbins v. Mount, 4 Id. 553 ; Eakin v. Brown, 1 E. D. Smith, 36).
    So a master and servant are jointly as well as severally liable for the tortious negligence of the servant (Phelps v. Wait, 30 N. Y. 78.)
    So a party injured ,by the collision of two vehicles owned by different persons, may sue either or both owners. Their liability is joint and several (Colegrove v. Harlem, etc. R. R. Co. 6 Duer, 402).
    2. The fact that the defendants Wood may not be able to recover contribution from the defendant Fowler, is not a reason for holding that they are not severally, but only jointly, liable. For if the damages had been severed, and a judgment had against each for the same amount, it is not apparent, as suggested by the court in 8 Duer, 402, on what principle either defendant could recover contribution from the other. The Woods’ want ■of a remedy for- contribution against Fowler, is, therefore, not an argument that their liability is joint and not joint and several.
    3. But it is by no means clear that Wood Bros, have not a right to contribution against Fowler. It is stated as well settled in England that the rule that there is no contribution among joint tort-feasors does not apply to a case where the party seeking contribution was a tortfeasor only by inference of law, and was not personally in fault (Pearson v. Skelton, 1 Mees. & W. 504 ; Wooley v. Batte, 2 Carr & P. 417).
   By the Court.— Barbour, C. J.

There can be no doubt that the three defendants against whom the judgment was recovered in an action brought against them j ointly were joint debtors within the letter of the 5th section of the act of 1838, which empowers a creditor to make a compromise with and discharge one or more of his joint debtors, without affecting the liability of the others. For, certainly, the sum found by the judgment to be ■due from the one party to the other is a debt established and determined by the law, which cannot be disputed so long as the judgment remains unsatisfied either in fact or in law. Indeed, the act of 1845 (p. 110, ch. 257) ■ expressly authorizes a joint debtor in a judgment, thus compromising, to have the judgment satisfied as to himself.

The counsel for the appellant claims, however, that the three defendants against whom judgment was recover in the original action were not joint debtors according to the intent and meaning of the act of 1838, so as to bring them within its provisions, inasmuch as they appear to have been joint tort-feasors, between whom there can be no right to compel contribution ; and he urges that “the infallible test of joint debtorship is that of contribution.” Without considering the question whether the legal proposition thus presented by the learned counsel is or is not correct, it is sufficient to say that the evidence before us is quite insufficient to enable us to determine whether the defendants might or might not be entitled to contribution, inter se-se, in case of payment by one or more of them. True, the action was for negligence; but the negligence imputed t.o Fowler, as owner merely, was quite different from that charged against the Woods as tenants and occupants of the premises, and, for aught that appears, the obligations and duties of one of those classes to the other may have been such as to entitle the latter to recover such sum as he may be compelled to pay under the judgment. The Woods claim in their answer, in effect, that the injury was caused by the fault and negligence of the landlord, while the latter asserts the reverse, and we cannot say which, or whether either, is right.

The judgment should be affirmed, with costs.

Sedgwick J. (concurring).

If the instrument made by the plaintiff to Jonathan O. Fowler is within the terms of the act for the relief of partners and joint debtors, clearly the other debtors in the judgment remained liable upon it, and the defendants are liable upon the undertaking given by them.

But if that instrument is not within the act, the defendants must at least make it appear by proof that Fowler was discharged from the judgment, in order to claim that such a discharge operated in favor of the other jointly liable upon it.

The only proof given on this point was the making of the instrument referred to, and its delivery to Fowler. It does not appear in the case that the latter ever used it to procure a satisfaction or discharge of the judgment of record so far as he was concerned. If we should take for granted, however, that such a satisfaction or discharge was effected, it would be made by the clerk only by virtue of the supposed applicability to the case of the Joint Debtor Act. If in fact it was not within the act, the instrument would not justify the clerk proceeding upon it to absolutely satisfy the judgment, because such would not be the purpose of the party making it, as shown by its contents.

The appellants’ position, that the case hot being one under the Joint Debtor Act, Fowler was released or discharged from the judgment, rests alone upon the terms of the instrument referred to. As to this, we must say that it was not a release (needing no consideration to uphold it, and being in law a satisfaction), for it had no seal. Being without a seal, in order to bind the party making it, it must be supported by a consideration. The money paid by Fowler, however, was but a part of a sum altogether due, and cannot be a consideration for a new obligation by the party receiving that money.

In either aspect of the case, whether it is or is not controlled by the Joint Debtor Act, the judgment should be affirmed. »  