
    Charles H. Gross, Resp’t, v. The Pennsylvania, Poughkeepsie & Boston Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Negligence—Joint tout feasors—Release of one by satisfaction.
    Plaintiff, who was an employee of another road, recovered judgment against defendant for injuries sustained by reason of the failure of defendant’s engineer to flag his engine while running on the road of the other company. Thereafter plaintiff recovered against his employer for negligence in permitting defendant’s engine to run on its road at that time and the judgment therein was satisfied and an assignment of this judgment taken by said employer. Held, that the injury to plaintiff proceeded from the combined negligence of both companies and was a clear case of joint tort, and a satisfaction by one discharged plaintiff’s claim against the other; that the liabilities of the companies as between themselves could only be determined in an action brought for that purpose, and that the judgment herein should be cancelled.
    Appeal from order denying motion to cancel the judgment entered in this action.
    
      Greene & Bedell, for app’lt; M. A. Fowler, for resp’t.
   Cullen, J.

—This is an appeal from an order denying defendant’s motion to cancel the judgment entered in this action.

The plaintiff, an engineer on the Central ¡New England, etc., Railroad Company, was injured by a collision occurring on its road with an engine of the defendant company, which the first named company had allowed to enter upon its tracks to obtain water. The recovery in this action was based upon the negligence of the defendant’s engineer in failing to flag ” his engine. Subsequently the plaintiff brought an action against his employer, the ¡New England, etc., Company, and recovered, on the claim that that company was negligent in permitting the engine of the other road to run upon its tracks at the particular time. The ¡New England, etc., Company settled with the plaintiff and took from him a release and also an assignment of the judgment against the defendant.

We think the motion should have been granted. Though the negligence of the two companies consisted of wholly distinct acts, still the -injury and tort which constituted the plaintiff’s cause of action was single.' He could not have recovered part of his damages from one company, and part from the other, because the whole injury proceeded from the combined negligence of both, not part from the negligence of each. It was, therefore, a clear case of a joint tort, and a satisfaction' by one tort feasor discharged the plaintiff’s claim against the other. Woods v. Pangburn, 75 N. Y., 495; Webster v. Hudson River R. R. Co., 38 id., 260; Barrett v. Third Ave R. R. Co., 45 id., 628.

It is claimed by the assignee of the judgment that, as between it and the defendant, it was the negligence of the latter that caused the injury, for the condition of the permit to flag ” the engine was not complied with, and that hence it is not precluded from recovering indemnity or contribution from its co-tort-feasor. This may well be, but has no effect on this application. On this motion, the Central New England, etc., Company has but the same rights as its assignor, the plaintiff. As the plaintiff could not collect anything from the defendant after satisfaction by the other -company, his assigns cannot.

It is not possible upon this application to determine the liabilities of the two companies between themselves. It may be that the defendant by accepting the permission impliedly covenanted to use the privilege properly and with care, and must indemnify the New England Company for any loss resulting from default in these respects. But to enforce such liability an action must be brought. The defendant is entitled to a trial of that issue. The issue was not and could not have been determined in either of the actions brought by the plaintiff against the two companies.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  