
    GEORGE PEYSER, Respondent v. JOHN C. McCARTHY, et al., Appellants.
    
      Accord and satisfaction by the voluntary act of a party injured to one or more joint tortfeasors, is a discharge of all.
    
    Plaintiff bought certain property from one Duntze. At the time Duntze owed one Wagner, and the firm of Austin, Nichols & Co., the substituted defendants herein. Plaintiff knew of the indebtedness to Wagner, but was ignorant of the fact that Duntze owed Austin, Nichols & Co., and to protect himself against the claim of Wagner procured the signature of Wagner to the bill of sale with Duntze. This bill of sale contained a statement that the property was free from all claims, etc. Afterwards Duntze confessed judgment to Austin, Nichols & Co., and execution issued thereon, and the sheriff levied on the property sold by Duntze to plaintiff, who paid the sheriff under protest $479.02. Afterwards plaintiff obtained from Wagner the sum of $475,00, and gave a document in which he acknowledged the receipt of the said sum and stated that it was in full for all claims and demand against the said Wagner. It appeared that plaintiff had no other claim against Wagner except that growing out of the sale of the property by Duntze and Wagner to him, but plaintiff sought to establish on the trial that he borrowed this $475, from Wagner.
    Held, The case presents this state of facts: Plaintiff makes a claim for the same cause of action against two parties. One of these parties pays the claim and afterwards plaintiff brings an action against the other party. We are of the opinion he cannot maintain such an action. The payment by Wagner acted as an equitable assignment by the plaintiff of any cause of action he had against the sheriff for seizing and injuring his property, and it was error for the trial judge to charge the jury as stated in the case. If the $475 was a loan by Wagner, as claimed by plaintiff, it would not act as an equitable assignment, but that question of loan or equitable assignment should have been submitted to the jury. The charge to the jury was, in effect, a direction to find for plaintiff on that point, and the defendants having excepted, it was not necessary for the defendants to go to the jury on that point.
    Before Freedman and Truax, JJ.
    
      Decided November 3, 1890.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    
      Henry D. Hotchkiss, attorney and of counsel, for appellants argued :—
    I. The payment by Mrs. Wagner and the plaintiffs release of all claims against her, are a bar to a recovery in this action. (1.) Because it is satisfaction for the injury done to him. The principal which we rely on is the familiar one, that for one injury, whatever may be the number of separate actions' maintainable, there can be but one satisfaction. The rule is most frequently applied in actions against wrongdoers, where satisfaction by one, takes, away all of plaintiffs right of action, by leaving nothing for him to sue for. Yet there is no privity between the wrongdoers. “ There is, then, but a single injury ; and if the plaintiff could have maintained a joint action, it would be unjust that he should have a double satisfaction.” Thomas v. Rumsey, 6 Johns. 26, So where several actions were brought against joint trespassers, plaintiff recovered against one defendant and the judgment was satisfied. He then pressed this suit against the other defendant. Held, he could only recover his damages once. Per curiam. “ The defendants are to be treated as joint trespassers sued separately, in which case the plaintiff can have but one satisfaction ; but he may assess damages separately ; and then elect de melioribus damnis, and recover costs against each. The plaintiff therefore, is entitled to recover his damages but once ; and having either received them from Hawes, or discharged him without payment, that act must be considered a satisfaction or release of the damages as to both.” Knickerbocker v. Colver, 8 Cow. 111. “ The rule is, that a party receiving an injury from the wrongful acts of others, is entitled to but one satisfaction, and that an accord and satisfaction by, or a release or other discharge by the voluntary act of the party injured, of two or more joint tort-feasors, is a discharge of all.” Barrett v. 3d Ave. R. R. Co., 45 N. Y. 635 (per Allen, J.) “ There can be but one recovery against the same person for the same cause of action * * * and there can be but one satisfaction got from several persons for the same cause of action ; that is, for a single injury, though there may be several recoveries. * * * Two may join in one wrongful act; and the injury is single, though their act is joint; and there can be but one satisfaction therefor, though there may be two actions brought, and a recovery in each.” Woods v. Pangburn, 75 N. Y. 498. As is said by Chief Judge Ruger in Knapp v. Roche, (94 N. Y. 333, 334) : “ Under the general denial in this case it was competent for defendant to prove any facts tending to show that the plaintiff had not suffered damages to the extent claimed by him. For this purpose he could prove that the moneys illegally taken from the bank had been refunded, either by the alleged borrower or any one jointly liable, with himself for the injury complained of. * * While a plea of payment by a stranger, between whom and the defendant there is no priority, has sometimes been held to be unavailable as a defence, * * * yet satisfaction by one joint trespasser has always been held available as a bar to an action against another * * * This rule applies with equal reason to a partial satisfaction by one of the wrongdoers for the damages occasioned by the joint wrongful act of both. Such evidence is proper in mitigation of damages. And under the former practice was admissible under the general issue.” (The question of pleading here referred to does not arise in the case at bar, because, in addition to the general issue, we have pleaded the payment specially.) And this court, following Knapp v. Roche, has recently held that payment of a part of the damages by a third person (see the opinion per Sedgwick, Ch. J.) is proper in reduction of damages, if not as a complete bar. Muser v. Lewis, 50 N. Y. Supr. Ct. 431. All of the New York cases were carefully examined by Mr. Justice Brady in Hun v. Van Dyck, 26 Hun, 567, who says : “ Except as matter of pleading under the old system, there does not seem to be any reason why a stranger may not discharge another’s obligation if he choose to do so. He may indemnify himself by taking an assignment of the claim as suggested in 19 Wendell; but if he prefer not to do that and to regard it as a gratuity, he may enjoy the consciousness of having done a wise or a foolish thing, as the fact presents itself to him. But the creditor’s debt must be regarded as satisfied, and there is no reason why he should be permitted to demand a second payment from his debtor.” “ If any rule is to be applied, it ought to be that the person paying the debt, and he alone, should be subrogated to the right of the creditor ; and he alone, if any person, should be permitted to enforce the claim.” And these views are approved by the Court of Appeals, by which the case was affirmed (92 N. Y. 660), and where Chief Judge Ruger, in Knapp v. Roche, 94 N. Y. 333 (supra), cities the case as authority for the doctrine therein laid down. (2) Because as between the sheriff and Mrs. Wagner, the plaintiff had elected to hold the latter. After the sheriff had made his levy (conceding that it was unauthorized, and that he was a trespasser), and the plaintiff had paid the money to avoid a sale of his goods, the latter had two remedies open to him : [a) He might enforce his rights as owner of the property, by bringing an action against the sheriff for the trespass, or (b) He might (relinquishing the property and all right to recover for the injury to it), reclaim the purchase price from the vendors or those to whom he had-paid the consideration. He chose the latter course and thereby elected to hold only Mrs. Wagner. He is now precluded from enforcing the claim against the sheriff. The rule is, that one who has two remedies, each inconsistent with the other, between which he may choose, is bound by the choice that he makes ; and having adopted the one, will not afterwards be suffered to pursue the other. Rodermund v. Clark, 46 N. Y. 354 ; Morris v. Rexford, 18 lb. 552 ; Fowler v. Bowery Savings Bk. 113 lb. 450.
    II. The fact that Wulstein endeavored to make it appear that the money received from Mrs. Wagner was a loan and not payment, cannot be considered as affecting the question. The trial court having refused to let the jury consider the evidence touching the payment, or to submit to them any question arising out of the evidence on this point, the defendants are now entitled to the benefit of all the facts which their, evidence tended to prove. Royce v. Watrous, 7 Daly, 87 (Affd. 73 N. Y. 597.)
    
      John Fennell, attorney and of counsel, for respondent, argued :—
    I. Accord and satisfaction or release by operation of law is not pleaded. Either is an affirmative defence and must be pleaded. The defendants should have pleaded satisfaction. The answer is worth nothing without an averment of accord and satisfaction. Daniels v. Hallenbeck, 19 Wend. 408.
    II. The defence that the plaintiff is not the real party in interest was not substantiated upon the trial. It was not shown that plaintiff had assigned his claims to Mrs. Wagner; in point of fact this suit was pending against the sheriff when the loan of $475 was made. Defendants did not ask to go to the jury on any claim of assignment either in fact or in equity. They made no motion and presented no request to charge based upon that theory.
    
      III. Payment by Mrs. Wagner was not established. The uncontradicted evidence is that she made a loan. The claim was $479.02 and interest, and1 the loan was $475.00. Defendants did not ask to go to the jury on the question whether there was a loan or not, and presented no request to charge based upon the theory that the transaction was not a loan. Nor did defendants ask the court to charge that whether there was a payment or loan was for the jury to determine. They raise that question for the first time on this appeal.
    IV. Payment by Mrs. Wagner did not discharge the defendants. Satisfaction by a stranger is no defence. Blum v. Hartman 3 Daly, 49 ; Daniels v. Hallenbeck, 19 Wend. 408 ; Clow v. Borst, 6 John, 37,
    V. It has been held that a release of one of several joint tort-feasors, operates as a discharge of all the tort-feasors, if the payment is in satisfaction or if there is a release. That rule does not apply to this case, (a.) No such defence is pleaded. (5.) There was no satisfaction and no release, (c.) The transaction was purely a loan, (d.) Mrs. Wagner was not a joint tort-feasor or privy to any contract under which she was liable, either severally or jointly with defendants, (e.) The defendants (as indemnitors) were liable for a cause of action and for acts done with which Mrs. Wagner has not the remotest interest or relation.
   By the Court.—Truax, J.

The plaintiff was the owner, of certain property that he had bought from one Duntze. At the time of the sale Duntze owed one Wagner, and the firm of Austin, Nichols & Co. the substituted defendants herein. Plaintiff was ignorant of the fact that Duntze owed Austin, Nichols & Co., but did know that he owed said Wagner, and to protect himself against the claim of said W agner ,had said Wagner join said Duntze in making the bill of sale to him, said plaintiff. This bill of sale contained a statement that the property purchased “was free from all claims.” Afterwards Duntze confessed judgment to Austin, Nichols & Co., execution was issued on this judgment and the sheriff levied on the property that had been sold by Duntze to plaintiff. Plaintiff to relieve his property from the levy, paid the sheriff, under protest, the sum of $479.02. He now brings this action to recover that sum.

It was shown on the trial that, after payment by plaintiff to the sheriff, he went to W agner and obtained the sum of $475, and gave a document in which he acknowledged the receipt of said sum, and stated that such sum was, “ in full for all claims and demands of every nature and description ” against the said Wagner. It does not appear that plaintiff had any other claim against said Wagner than the claim growing out of the sale to him by Duntze and Wagner, and the seizure of the property by the sheriff. In fact, the only inference that can be drawn from the testimony is that he had no other claim. But plaintiff sought to show on the trial that he borrowed the $475 from Wagner.

The trial judge charged that plaintiff could not be defeated by the fact that he received the sum above mentioned from Wagner; that such payment must not be considered as a defence and did not enure to the benefit of the defendants and was not received as satisfaction. To this charge the defendants excepted.

The defendants had set up in their answer this payment by Wagner, and had alleged that plaintiff was not the real party in interest.

The case presents this state of facts : plaintiff makes a claim for the same cause of action against two parties ; one of these parties pays said claim and he then brings an action against the other party. Can he maintain such action ?

We are of the opinion that he cannot at present maintain such an action in this court. The payment by Wagner, that is if made as stated in the documents above referred to, acted as an equitable assignment against plaintiff of any cause of action that he might have against the sheriff for wrongfully seizing his, the plaintiff’s, property, and it was error for the trial judge to charge as above stated. If, however, said $475 was lent by Wagner to plaintiff, it would not act as an assignment or satisfaction of plaintiff’s claim against defendants, and in that event the question of loan or equitable assignment should have been left to the jury. The charge was, in effect, a direction to find for plaintiff on that point, and it was not necessary for defendants, they having excepted, to ask to go to the jury on that point. Vail v. Reynolds, 108 N. Y. 301 and cases there cited.

We have not considered the question of fraud in the sale to plaintiff, because that question was decided against defendants, and there are no exceptions in the case that bring the question before us.

The judgment and order appealed from are reversed and a new trial is ordered, with costs of the former trial and of this appeal to the party who finally prevails in the action.

Freedman, J., concurred.  