
    IRVINE against MILBANK.
    
      Court of Appeals,
    
    1874.
    Affirming 14 Abb. Pr. N. S., 408.
    Joint Debtors.—Release.
    A release given in favor of one of several tortfeasors does not operate to discharge the others, unless under seal.
    A debt, the existence and amount of which are not disputed,' is not extinguished by payment of a less sum, unless a release by deed be given.
    A covenant not to sue does not operate as a release in favor of those holden jointly with the covenantee, and not related to him as sureties, especially if the covenant reserves the right to proceed against them.
    After judgment recovered against the owner and the occupants, respectively, of a tenement, for injuries suffered by reason of negligence in respect to its condition, two defendants, the occupants, appealed, and the other paid the plaintiff in the judgment a sum less than the judgment to be released from further liability, and took an instrument which recited the recovery of the joint judgment, the desire of the owner of the premises to compound and compromise, and obtain a personal discharge, without prejudice to the plaintiff’s right to proceed on the judgment against the other defendants, and, acknowledging the receipt of a sum less than the judgment, declared the owner exonerated from all individual liability to the full extent authorized by the joint debtor’s release act of 1838, but without prejudice to the creditor’s rights as against all the other defendants. This instrument was not sealed. Held, that this was neither a technical release, nor an accord and satisfaction, such as to exonerate the other defendants, or their sureties in the undertaking given on their appeal.
    Whether it be a good release under the joint debtor act of 1838,— query ?
    
    Irvine sued Wood Brothers as occupants, and Fowler as owner of premises, for negligence. Judgment was recovered. After appeal to general term, by the Woods, Fowler paid two thousand five hundred dollars, and plaintiff gave him an instrument in writing as follows: “Whereas, I, Alexander Irvine, of the city of Hew York, did, on the 1st day of July, 1867, recover a judgment, in the superior court of the city of Hew York, against Charles B. Wood, Frederick Wood and Jonathan O. Fowler, jointly, for the sum of six thousand one hundred and eighty-four dollars and three cents. And whereas, said Fowler is desirous of individually compounding and compromising said joint indebtedness, so far as he is concerned, and of obtaining his personal discharge therefrom without prejudice to said Irvine’s right to proceed on said judgment as against all the other defendants therein: How, therefore, pursuant to the provisions of the act entitled, -“An act for the relief of partners and joint debtors,” passed April 18, 1838, and of the several acts amendatory thereof, and by force and virtue thereof, and in consideration of the sum of two thousand five hundred dollars to me in hand paid by said Fowler, the receipt whereof is hereby acknowledged, I, said Irvine, do ' hereby make this note or memorandum in writing for the purpose, under said acts, of exonerating, and I do hereby exonerate, said Fowler, from all and every individual liability, by reason of such judgment, or incurred, by Mm by reason of Ms being one of the joint debtors against whom the same was so recovered, to the full extent authorized and "permitted by the acts aforesaid, but without prejudice to said Irvine’s rights upon the said judgment as against all the other defendants therein named. ■ Alexander Irvine.”
    " The instrument was not sealed.
    The Woods then gave Milbank & Melao, as surety, on appeal to the court of appeals. The judgment was there affirmed (reported in 51 N. Y., 224). Plaintiff then sued the sureties on the undertaking, who alleged that, by the receipt of the twenty-five hundred dollars, the whole debt had been satisfied, inasmuch as one tortfeasor had been released, and claimed that the statute of 1838, as amended, did not make the defendants, Woods and Fowler, joint debtors, or jointly liable.
    
      The superior court were of the opinion that joint _ tort feasors, after judgment in a joint action, were'joint debtors within the meaning of the act of 1838, and the act of 1845, and gave judgment for plaintiff (reported in 14 Abb. Pr. N. S., 408).' Defendants appealed to this court.
    
      D. C. Brown, for appellants.
    
      John L. Hill, for respondents.
   Folger, J.

Let it be conceded that a release of one of several joint tortfeasors, from the cause of action, or from the judgment recovered thereon against them all, is a discharge of the others therefrom. . Let it be also conceded (though not now so adjudged), that the instrument executed by the plaintiff, to Fowler, is not within the acts of 1838 and 1845, for the relief of partners and joint debtors. Yet then, the defendants in this action have not made out a defense therein.

This instrument is,not a technical release of Fowler, which it must be, to operate as a discharge of his joint tortfeasors, the Woods." It is not under seal (Rowley v. Stoddart, 7 Johns., 207). Nor will the arrangement embodied in it operate as an accord and satisfaction. A payment óf a less sum than the real debt will be no satisfaction, unless there follow a release by deed. That is the principle applicable when, as in this case, the existence and the amount of the debt are not disputed.

If it is not an exoneration of Fowler, under the statutes above named, then it is an agreement between him and the plaintiff, which must be construed and enforced between them according to the intention of both the parties to it, as that intention is manifested by the words they have used in it.

It is very plain that the plaintiff had no purpose to discharge the Woods from their liability upon the judgment. Rather he meant to, and did, save and reserve his rights against them. Nor was that the purpose of Fowler. If it is not effectual under those statutes, then it is of no more effect than a receipt in full to Fowler for all demands against him, or an agreement with him not to enforce further against him his liability by reason of the judgment (7 Johns., supra). This is not sufficient to discharge the Woods. The reason why a technical release would discharge them is that it would be an admission by Irvine, that his judgment had been paid. But this instrument is not such •an admission ; on the contrary, it admits but partial payment, and reasserts the right further to have and demand from them. It is true, a covenant not to sue is held to operate as a release. But this is in favor of him, with whom, or for whose benefit it is made ; and then, to prevent circuity of action (Bank of Chenango v. Osgood, 4 Wend., 607).

It does not so operate in favor of those holden jointly with the covenantee, and not related to him as sureties (Id.).

The reason advanced why this instrument is not within the acts for the relief of joiñt debtors, is that the defendants are not such, for that they have no right of contribution. Then the Woods are not harmed ; rather they are helped, by as much as Fowler has paid upon the judgment. But if it were a case for contribution, this agreement between Irvine and Fowler could not defeat the right to seek it (lb.).

It is not a prevalent answer to this, to say that the instrument refers to the joint debtor act, and is the same as though all the provisions thereof were incorporated in it, and that the act expressly requires the clerk to discharge the judgment of record.

The clerk has no authority to discharge the judgment of record under that act, unless in a case falling within it. If this case does not fáll within it, then the clerk may not act. If it does, then is the instrument effectual, not only for such action of the clerk, but for all that which the plaintiff and Fowler sought. And, surely, the clerk would not have authority from it to discharge the judgment of record under the revised statutes (2 Rev. Stat., p. 362, § 22). This paper is not an acknowledgment of satisfaction of the judgment.

The unsoundness of the defendant’s position is in the .assumption that the instrument made to Fowler is a technical release, or tantamount to it. It is not a technical release, for it is not under seal. It is not tantamount to it, inasmuch as the whole tenor of it is at enmity with the notion of an admission of the payment of the judgment.

The judgment appealed from should be affirmed, with costs.

All the judges concurred.

Judgment affirmed, with costs.  