
    John H. Flagler, Resp’t, v. Richard S. Newcombe, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 2, 1891.)
    
    Bills and notes—Accommodation endorser—When discharged by RELEASE OE MAKER.
    Plaintiff became an accommodation endorser upon a note, upon which the holder recovered judgment agaiust both maker and endorser. The maker paid the judgment by the check of defendant, to whom it was then assigned. At this time a levy had been made upon sufficient goods of the maker. This was abandoned, and the execution returned unsatisfied. The defendant then attempted to enforce the judgment against the endorser, and this action was brought to enjoin him. Held, that the abandonment of the levy by the judgment creditor, however procured, discharged the endorser.
    Appeal from judgment in equity on trial by the court without a jury. Action to enjoin enforcement of a judgment.
    The following is the opinion of the special term:
    Allen, J.—On the 4th day of June, 1885, one Eugene M. Earle made his promissory note for $1,000, dated on that day, payable to his own order six months after date; this note was endorsed by Earle, and also by the plaintiff Flagler, and was thereafter delivered to one William H. Townley for value. The note was not paid at maturity, and on the 16th day of December, 1885, Townley obtained judgment on said note in" the city court of New York against both Earle and Flagler; and on the same day an execution on said judgment was issued to the sheriff and a levy made thereunder upon the goods, stock in trade and fixtures in the store of said Earle, at No. 233 Fifth avenue in this city; this stock consisted of harnesses, saddlery and similar goods, of considerable value, and of a value over all encumbrances shown to be largely in excess of the amount of the said judgment. On the 18th day of December, 1885, after the sheriff had been in charge of the property by virtue of his levy for two days, Earle gave to the judgment creditor a certified check, signed by the defendant Newcombe, for the amount of the judgment, and received an assignment of the judgment and a receipt, as follows:.
    “ Townley )
    “ m. t
    “ Earle et al.)
    “New York, December 18, 1885.
    • “ Received of R. S. Newcombe, Esq., attorney for defendant Earle, ten hundred and twenty-three and seventy one-hundredths dollars in full of the amount due on the judgment in the above entitled action, for which I have delivered an assignment of said judgment; said Newcombe to pay the sheriff’s fees on execution.
    (Signed), W. H. Townley.”
    Thereafter, and on the same day, the sheriff acting, as he claims, under the orders of Mr. Cardozo, the partner of the defendant, abandoned the levy, and subsequently returned the execution unsatisfied at the request of Newcombe & Cardozo.
    Afterwards Mr. Newcombe, as "assignee of said judgment, issued an execution and sought to enforce the collection thereof from the plaintiff Flagler, and this action was brought to enjoin such collection.
    It is claimed by the plaintiff that he is entitled to judgment upon two grounds: First, that the judgment was paid by Earle, or for his benefit, and plaintiff as endorser was therefore released from liability; and, second, that the release of the levy upon Earle’s goods extinguished the judgment against Flagler.
    There is a controversy upon the matters of fact which bear upon the ground first above mentioned. The defendant claims that Flagler received value for his endorsement, and plaintiff insists that he was a mere accommodation endorser. The preponderance of testimony and the probabilities of the case indicate that Flagler was an accommodation endorser of the note. That the payment by the maker of a note of a judgment against him and his endorser is a satisfaction of the whole judgment is elementary. If the judgment therefore was paid by Earle with his own money, or with money borrowed from Newcombe, Flagler was released from all liability. The burden of proof was upon the plaintiff to establish this proposition, and there is not such a preponderance of proof that the defendant did not buy the judgment for himself, and in his own right, with his own money, as he has testified, as would justify me in finding as a matter of fact that the judgment was paid.by Earle, either with his own money or money borrowed from Newcombe.
    I think, however, that the case is with the plaintiff upon the -other ground. A levy was made by Townley, Newcombe’s predecessor in title, upon a valuable stock of goods and fixtures belonging to Earle. Two days after the levy, while the sheriff was in possession of the property, the judgment creditor assigned the judgment to Rewcombe, and the levy was immediately abandoned, without attempting to obtain from the property seized the amount of the judgment. The goods of Earle, seized by the sheriff, were undoubtedly sufficient to satisfy the judgment, and the judgment creditor was bound to pursue and exhaust the remedy he had begun, and the abandonment by him acted as a discharge of the judgment as to Flagler, t Upon the assignment of the judgment to Rewcombe the levy was immediately abandoned. The sheriff testified that he received his instructions to release the levy from Mr. Cardozo, Mr. Newcombe’s partner. It is true that Mr. Newcombe testifies that he did not authorize anyone to direct the sheriff to abandon the levy. Mr. Cardozo was not called as a witness; but it would seem to be immaterial whether the abandonment was authorized by Mr. Newcombe or not. The unauthorized act of the sheriff would produce the same result, and the remedy would be against him.
    So it seems to me, upon the established facts, that so far as the plaintiff in this case is concerned, the defendant, by his own acts, or those of the sheriff, by the release' of his levy, has lost his remedy. Voorhees v. Gros, 3 How., 262; Green v. Burke, 23 Wend., 501; Fraley v. Steinmetz, 22 Pa., 437; Ladd v. Blunt, 4 Mass., 402 ; Hunt v. Breading, 14 Am. Dec., 665.
    
      Judgment is ordered for the plaintiff accordingly, with costs.
    
      A. B. Dyett, for app’lt; W. T. Curtis, for resp’t.
   Per Curiam.

Upon a careful examination of the casé, we are satisfied that the findings of fact and the conclusions of law by the learned trial judge are well warranted; and that no error was committed on the trial to the prejudice of appellant.

The evidence was sufficient to authorize the inference that the money paid for the assignment of the judgment was advanced by defendant for the benefit of Earle; that the property levied on was enough to satisfy the judgment; that the withdrawal of the levy was by authority of defendant; and that Flagler was an accommodation endorser for Earle of the note on which the judgment was obtained.

The relation between defendant and Earle, and the evident concert between them for enforcement of the judgment, make the declarations of Earle in prosecution of their purpose competent evidence against defendant.

The judgment should be affirmed, with costs.

Daly, Ch. J., Bischoff and Pryor, JJ., concur.  