
    SIMON COHN and MANHEIM COHN, Plaintiffs and Respondents, v. PHILIP GOLDMAN, impleaded with WILLIAM HARTMAN, Defendants and Appellants.
    I. Conspiracy to cheat and defraud.
    1. Action to recover damages sustained by reason thereof.
    
    
      (a) PLEADING.—COMPLAINT, WHAT SUFFICIENT. —GENERAL ALLEGATIONS.
    1. A complaint alleging generally that defendants “did in concert by connivance, conspiracy and combination, cheat and defraud plaintiffs out of ” is a sufficient allegation of the fraud and conspiracy.
    H. CONSPIRATORS.
    1. Legal status of. t
    
    
      (a) They are joint tort-feasors.
    3. Liability, extent of.
    
      (a) The act of one acting in concert with others, is, in judgment of law, the act of all, and each is liable for all the injurious consequences flowing from it.
    
      3. Waiving tort as to one, effect of as to the others.
    
      (d) Electing to waive the tort as to one, and to sue him in contract, hath not the effect of an election to waive the tort as to the others. The others still remain jointly and severally liable in tort. Neither the pendency of the action against the one as to whom the tort is waived, nor a judgment rendered therein without actual satisfactionwill constitute a good plea in abatement or bar.
    
    1. Former recovery.—Pleading.
    
      id) A plea of former recovery against one or more joint
    tort-feasors, whether in contract or in tort, to be good must also aver actual satisfaction.
    
    1. Application.
    Plaintiffs sued H. in an action for goods sold and delivered. Upon an affidavit setting forth that the sale was procured by false and fraudulent representations made by II., an order of arrest in that action was obtained against H. H. defended. After issue joined, an arrangement was made whereby plaintiffs consented to a vacatur of the order of arrest, and in consideration thereof, H. allowed them to take judgment for their claim and costs. Afterward the plaintiffs in that suit commenced an action in tort against G. and H., charging they did in concert by conspiracy, cheat and defraud plaintiffs out of said goods. G. alone defended this action, and relied on the action against H., and the judgment therein, as a bar.
    Held,
    that those matters constituted no defense, there being no satisfaction of the judgment.
    IH. NEW TRIAL—MOTION FOR, ON GROUND OF INSUFFICIENCY OR PREPONDERANCE OF EVIDENCE.
    1. General rule is that when defendant has omitted to move for a 11011-suit, or the direction of a verdict, on the ground of insufficiency of plaintiff’s proof, and has treated the case as one calling for submission to the jury, he cannot, in support of a motion for a new trial, he allowed to claim either that the evidence is so insufficient on plaintiff’s side, or so overwhelmingly prepondering as to authorize but one verdict,—viz., one in his favor.
    
      (a) Rule relaxed.—In the case at bar the rule was relaxed by reason of its being a highly peculiar case, and the preponderance in the number of witnesses so largely in appellant’s favor.
    IV. Witness.
    1. ACCOMPLICE.
    (a) Verdict based, in the main, upon the testimony of an accomplice, sustained.
    
    (1) Plaintiffs’ case, in the main, depended on the evidence of H., who testified to a conspiracy between him and G. to defraud the plaintiffs, and to the accomplishment of the fraud alleged in the complaint. He was contradicted by G., and in essential particulars, by at least half a dozen witnesses, in such a manner that if he told the truth, they willfully perjured themselves. He, however, was corroborated to a large degree by facts and circumstances.
    Held",
    a verdict for plaintiffs should not be disturbed.
    V. Evidence.
    1. FRAUD—GENERAL PRINCIPLES TOUCHING EVIDENCE
    TO ESTABLISH.
    
      
      Decided February 4, 1878.
    It is the most subtle of legal elements, and is frequently developed by comparatively trifling facts and circumstances, which, isolated, amount to little, but which, when united by intellectual power, present the charge made clearly and beyond doubt. In such a case, the conduct of the persons charged, while upon the stand, may have an important bearing upon the determination of the issue.
    Before Curtis, Ch. J., and Freedman, J.
    The action was brought against Philip Goldman and William Hartman, for a conspiracy, by means of which the plaintiffs were cheated and defrauded out of eight bales of Havana tobacco.
    The defendant Hartman interposed no defense, and on the trial was plaintiffs’ chief witness.
    The complaint was as follows :
    “ The complaint of the plaintiffs in this action avers that at the city of New York, at divers times between the 22nd of October and the 30th of December, 1874, the defendants in this action in concert did, by connivance, conspiracy and combination, cheat and defraud the plaintiffs out of eight bales of Havana tobacco, in value in the aggregate the sum of seven hundred and seventy-three dollars and fifty-one cents, and at the time of the said cheating and defrauding the plaintiffs out of the said property, that the same was the property of the said plaintiffs, and the said property, by means of the said fraud and cheating, has been wholly lost to the plaintiffs.
    “ Wherefore the plaintiffs claim judgment against the defendants for the sum of one thousand dollars, besides the costs and disbursements of this action.”
    The answer of the defendant Philip Goldman contained a general denial, and as a plea in bar, that the plaintiffs had recovered a judgment against Hartman for the value of the tobacco, in an action on contract, brought in the court of common pleas.
    Upon the trial, a motion was made for a dismissal of the complaint, on the ground that the complaint did not state facts sufficient to constitute a cause of action, but mere conclusions. The motion was denied, and the defendant Goldman excepted.
    Testimony was adduced by both sides, at the conclusion of which, a motion was made for the direction of a verdict for the defendants, on the ground that plaintiffs, with knowledge of all the facts, had elected, in the action brought against Hartman, to release him from jail, where he was confined under an order of arrest, and to take judgment against him for the value of the goods, and that they are concluded by that election.
    The motion was denied, and exception taken.
    The case was submitted to the jury under a charge to which no exception was taken, with the exception of that portion of it, which stated, that if the plaintiffs were entitled to recover, they are entitled to recover for the eight bales.
    The jury found for the plaintiffs.
    The defendant Goldman moved for a new trial on the minutes, on the exceptions, and also on the ground that the verdict was contrary to evidence, and the weight of evidence ; which motion was denied.
    Judgment having been entered, the defendant Goldman appealed from the judgment and the order denying his motion for a new trial.
    
      L. A. Gould, attorney and of counsel for appellant, urged :
    —I. The complaint ought to have been dismissed. The learned justice at the trial was clearly of that opinion, but felt bound to follow the case of Ynguanzo v. Salomon (3 Daly, 153), which, as respondents’ counsel stated, was affirmed in the court of appeals. There is no opinion of the court of appeals ; it does not appear that the sufficiency of the complaint was questioned in that court, and, therefore, it ought not to control the general term.
    II. The verdict is against the evidence. It is the right and the duty of the general term, in a proper case, to review the facts and see whether or not the verdict ought to be upheld (Godfrey v. Moser, 66 N. Y. 250). Here followed a discussion of the evidence.
    III. Appellants’ exceptions, it is submitted, should be sustained. According to Hartman’s own confession, which accords with the charge made against him by the plaintiffs, he sold tobacco at a price less than that he was to pay for it; there is no claim that this was any part of the alleged conspiracy ; there is no pretense that the defendant Goldman ever knew the plaintiffs, nor that Hartman ever stated he was buying or was to buy goods from the plaintiffs; Hartman says he gave the goods to Goldman, but as to Cohn’s goods, he may have sold some and kept the proceeds himself. In the absence of any averment that he bought all of these goods pursuant to this fraudulent scheme, plaintiffs’ recovery ought to be limited to the value of the goods which they could show were actually obtained pursuant thereto.
    IV. But the plaintiffs, with full knowledge of all the facts, compromised their cause of action with Hartman, and took a judgment on contract against him alone for the value of the goods, thus treating the transaction as a sale to Hartman, and vesting and confirming the title to the goods in Hartman alone. This bars their recovery against Goldman, both because they elect to consider the entire transaction a contract of sale with Hartman alone, and merge their cause of action in the judgment, and also because they waived the tort as to Hartman, a joint tort-feasor, which discharges the co-tort-feasor also. The stipulation .constitutes a compromise with Hartman. It is well settled that plaintiffs could not maintain an action for 'the conversion of these goods after they had recovered judgment in an action on contract as for goods sold and delivered, not because this would treat the contract as valid and void at the same time, but because one would proceed upon the theory that there was a contract, and the other upon the ground that there had never been a contract (Kennedy v. Thorp, 51 N. Y. 174). Where a party has suffered damages by reason of a fraud perpetrated under the cover and guise of a contract, and on discovering the fraud brings an action in tort, it is sometimes said he disaffirms or rescinds the contract; but, in strict accuracy, he elects to treat the pretended contract as void, that is, as no contract, by reason of the fraud that vitiates and destroys all contracts. For thése reasons, any action sounding in tort is not concurrent nor consistent with an action on contract founded upon the same transaction. And the plaintiffs having elected to sue on contract, they cannot sue in tort (Wright v. Ritterman, 4 Rob. 704; People v. Kelly, 1 Abb. Pr. N. S. 432; Bank of Beloit v. Beale, 34 N. Y. 473; Dyer v. Tilton, 23 Vt. 313; Sanger v. Wood, 3 Johns. Ch. 416; Rademund v. Clark, 46 N. Y. 354; Morris v. Rexford, 18 Id. 552; Shuman v. Straus, 52 Id. 407; Mallory v. Leach, 23 How. Pr. 512).
    Y. It must be conceded that any compromise or settlement made with one of two joint tort-feasors releases the other also (Barrett v. Third Avenue R. R. Co., 45 N. Y. 628). Plaintiffs waived the tort as to Hartman by their stipulation, and entered judgment on contract against him for the value of the goods. This extinguished their entire cause of action against Hartman (Goodrich v. Dunbar, 17 Barb. 644; McButt v. Hinch, 4 Abb. Pr. 441, and cases cited, supra). The plaintiffs thereby condoned the tort as to Hartman (Nelson v. Blanchfield, 54 Barb. 630; Alliance Insurance Company v. Cleveland, 14 How. Pr. 408; Merchants’ Bank v. Dwight, 13 Id. 367). And a judgment on contract is as complete a bar to another action for the same cause as a release.
    VI. The case of Morgan v. Skidmore does not conflict with these views ; it decides that a member of a firm who makes false representations as to its solvency, which representations induce a sale to the firm on credit, is liable as the guarantor of the firm debt, and may be sued in a separate action, although a judgment on the contract has been entered against the remaining partner of the firm. That is an action for fraud and deceit, whereby the plaintiffs were induced to give credit to a person other than the one who made the representations. To render the present case analogous, Goldman and Hartman should be copartners in business, the fraudulent representations should be made °by Goldman as to the solvency of the firm, the contract should be made with the firm, and upon Goldman’s death, a judgment on the contract should be rendered against Hartman as survivor. In Morgan v. Skidmore, no question arises as to the waiver of the tort as to one of two joint tort-feasors, for the firm was liable solely upon the contract. Upon what principle, or by what reasoning, can it be held in the present case, that Hartman,' after judgment upon the contract, was still liable to be sued and again arrested for the fraud, or be subjected to another judgment for the same cause ? In Dyer v. Tilton, 23 Vt. 313, cited supra, the court says : “It is impossible to say where one has an election of remedies for the same cause, and takes judgment in one form, he can then pursue the other against the same person, and thus have two judgments at the same time for the same cause of action, against the same person.”
    
      
      Lauterbach & Spingarn, attorneys, and H. Morrison and S. Spingarn, of counsel, for respondents, urged :
    —I. The complaint is sufficient (Ynguanzo v. Salomon, 3 Daly, 158; affi’d in court of appeals).
    II. The fact that plaintiffs have recovered a judgment against one of the defendants, which judgment remains unsatisfied, is not a good defense by the other defendant in the present form of action, and the ruling of the gourt should be sustained (Ynguanzo v. Salomon, 3 Daly, 158, and Ct. of App.; Morgan v. Skidmore, supra; affirmed in court of appeals; Goldberg v. Dougherty, 7 J. & S. 189; United Society of Shakers v. Underwood, 11 Bush, 265; 21 Am. Rep. 214; 55 Barb. 263; Co. Litt. 352, a; Sutton v. Clark, 6 Taunt. 29; Lansing v. Montgomery, 2 Johns. 382; Low v. Mumford, 14 Id. 462; Rose v. Olliver, 2 Id. 365; Bishop v. Ely, 9 Id. 249; 1 Sandf. 291 a). In an action of trespass brought against two defendants, they severed in their pleas, one pleaded former suit for the same cause and a judgment in his favor ; on demurrer, judgment was given for that defendant. The other pleaded the general issue and also the other defendant’s judgment in his favor on demurrer. Verdict for the plaintiff against the second defendant sustained. Court holding two sued for tort they may plead separately or jointly, jury may find one guilty, other not; the former judgment is no estoppel to the proceedings and judgment against the other (Lansing v. Montgomery, 2 Johns. 392; Viner Abridgment, 75, § 17). In Lovejoy v. Murray (3 Wall. [U. S.] 1), the supreme court of U. S. decided : “Nothing short of satisfaction or its equivalent can make good a plea of former judgment in trespass, offered as a bar in an action against another joint trespasser who was not a party to the first judgment (Fow v. Northern Liberties, 3 W. & S. 103; Railroad Co. v. Mahoney, 7 P. Q. Smith [Pa.] 187; Livingston v. Bishop, 1 Johns. 290; Osherhaut v. Roberts, 8 Cow. 43; Elliot v. Porter, 5 Dana, 299; Sanderson v. Caldwell, 2 Aiken [Vt.] 195; Sheldon v. Kibbe, 3 Conn. 214; Sharp v. Grey, 5 B. Monroe, 4; Blaun v. Cochran, 20 Ala. 320).
    III. The right to recover for the eight bales was the right to recover under the testimony of the plaintiff, if the jury believed the same, adverse to that of the defendant upon two principles of law thus : 1st. The act of one tort-feasor, acting in concert with others, is the act of all, in its consequences in law. 2nd. The injurious consequences of a wrong which flow out of it, and which are traceable to it, are to be visited on all the wrongdoers who ab initio engaged and embarked in its commission (Vandenberg v. Truax, 4 Den. 464, and cases there cited ; Guille v. Swan, 19 Johns. 381).
    IY. The verdict was not upon insufficient evidence (Ynguanzo v. Salomon, supra; Dunn v. People, 29 N. Y. 471; Roth v. Wells, Id. 471; Parker v. Jervis, 3 Keyes, 371; Morse v. Sherrill, 63 Barb. 21).
   By the Court.—Freedman, J.

—The complaint, in stating without elaboration only the ultimate facts on which plaintiffs rely for a recovery of the damage sustained by them by reason of the conspiracy, nevertheless states a good cause of action (Ynguanzo v. Salomon, 3 Daly, 153).

If the appellant desired greater clearness or particularity, his remedy was by motion to make it more definite and certain. The motion to dismiss the complaint for insufficiency was properly denied. "

At the close of the evidence on both sides it appeared that prior to the commencement of this action the plaintiffs had brought an action in the court of common pleas against Hartman to recover the price of the tobacco sold to him, and that Hartman had been arrested under and by virtue of an order of arrest granted in that action upon an affidavit charging him with having obtained the goods by means of false and fraudulent representations; that Hartman defended said action, but that after the joinder of issue, pursuant to an agreement entered into between the parties to that effect, the plaintiffs consented to a vacation of the order of arrest, and, in consideration therefor, Hartman permitted them to enter judgment for the amount of their claim with costs. These facts were claimed as a bar to the present action, and were urged as a ground for the direction of a verdict in appellant’s favor.

H this claim had been advanced by Hartman for his own protection pursuant to plea and proof to that effect, it would but accord with the current of judicial expression to hold that whatever cause of action plaintiffs had against him, had been merged in the judgment recovered against him (Cormier v. Hawkins, Ct. of App., not yet reported).

It is only in the case of partners, where one procures credit for his firm by false and fraudulent representations, that a recovery on contract against the members of the firm jointly is considered no bar to an action against the individual partner to recover the damage sustained by his fraud. In such a case the liability of the offending partner was in extent held similar to that of one who guaranteed the solvency of the firm, but at the same time it was conceded that a guaranty by any person of his own separate debt would be an anomaly (Morgan v. Skidmore, 3 Abb. New Cas. 92).

But Goldman was not a party to the action which resulted in the judgment above referred to. As to him the plaintiffs made no election in that action. If he is liable to them at all, he is liable as a joint tort-feasor, and as such he is liable, at the election of the plaintiffs, to a joint or separate action (Rose v. Oliver, 2 Johns. 365; Lansing v. Montgomery, Id. 382; Creed v. Hartman, 29 N. Y. 591, affirming 8 Bosw. 123; Kasson v. People, 44 Barb. 347).

His liability as such extends to all the consequences of the tort (Wehle v. Butler, 61 N. Y. 245, affirming S. C., 35 N. Y. Super. Ct. [3 J. & S.] 1).

In such cases an answer pleading a former recovery against one, to be good, must also aver actual satisfaction (2 Phil. on Ev. [5th Ed.] 114 [*134]; Osterhout v. Roberts, 8 Cow. 43; Wies v. Fanning, 9 How. Pr. 546; Wehle v. Butler, 35 N. Y. Super. Ct. [3 J. & S.] 1).

Nothing short of full satisfaction or that which the law must consider as such, can constitute a bar to an action against another joint tort-feasor who was not a party to the first judgment (Lovejoy v. Murray, 3 Wall. [U. S.] 1, and cases there cited). Thus in Osterhout v. Eoberts (8 Cow. 43), it was held that a plea, that defendant’s son had been sued, a judgment rendered against- him, and he had been taken in execution and imprisoned sixty days for the same trespass, was bad because the plaintiff had not obtained any satisfaction of his judgment.

The judgment against Hartman having remained fruitless, the facts above alluded to and urged upon the court below on the motion for the direction of a verdict, constituted no bar to the action, nor any ground for the direction prayed for.

During the progress of the trial an exception was taken to the admission of certain statements made by one Philipowsky, but as the appellant did not refer to it, either in his points or on the argument, it may be deemed to have been waived.

The exception to that portion of the. charge by which the jury were instructed, that if the plaintiffs were entitled to recover at all, they were entitled to recover for the eight bales, is clearly untenable. The act of one tort-feasor, acting in concert with others, is in judgment of law the act of all, and each is liable for all the injurious consequences flowing from it (Wehle v. Butler, 61 N. Y. 245).

The only question remaining to be considered arises on the appeal from the order denying defendants’ motion for a new trial, and relates to the sufficiency of the evidence upon which the jury pronounced their verdict.

No motion was made for a non-suit, or the direction of a verdict, on the ground of insufficiency of plaintiffs’ proof, but the case was treated by defendants’ counsel throughout, as one which called for submission to the jury. Under such circumstances, this court has repeatedly declined to examine the testimony at large, with the view of ascertaining what grounds may possibly exist for the claim advanced after the rendition of a verdict for the plaintiff for the first time, that, after all, the evidence is so insufficient on plaintiffs’ side, or .so overwhelmingly preponderating in defendants’ favor, as to authorize but one verdict, namely, a verdict ip defendants’ favor. Inasmuch, however, as the case at bar is a highly peculiar one, and the preponderance in the number of witnesses upon the main question, appears to be so largely in appellants’ favor, I deemed it best to relax the rule in this instance, and to make the examination.

From such examination it appeared that plaintiffs’ case depends in the main upon the testimony of Hartman. He confessed the fraud, and showed the origin, object and consummation of the conspiracy. His version, in brief was, that Goldman, who is a dealer in plate glass, was in the habit of concocting schemes, whereby persons would obtain credit, and then fail and divide the profits with him ; that Goldman encouraged and induced him to procure credit from the plaintiffs and other merchants, and to make the false representations he did make, and that it was agreed between them that, after the goods had been obtained, Goldman should sell him out under a judgment entered upon a stale and paid-up indebtedness, and then give him money to settle with his creditors ; that, in pursuance of this conspiracy, he did obtain from plaintiffs the goods in question, and dispose of part of them, and that Goldman shared in their proceeds, and sold out the balance under his fraudulent judgment.

Hartman was contradicted throughout by Goldman, and in esential particulars by at least half a dozen witnesses, in such a manner that, if he, Hartman, told the truth, they willfully perjured themselves, so that the learned judge who presided at the trial felt constrained to so - instruct the jury. Moreover, Hartman was confronted by an affidavit upon which he had moved in the court of common pleas, though unsuccessfully, for the vacation of the order of arrest against him, and in which he had denied the commission of any fraud.

But Hartman’s testimony, as given upon the trial, stands corroborated to a large degree by facts and circumstances, which speak louder than oral testimony. A paper covering of an express package, in which certain proceeds of the fraud had been sent away by one of Goldman’s friends and witnesses, pursuant to Hartman’s direction, with the direction as to the destination of its contents marked thereon, was produced, and the package was shown to have been delivered at its destination pursuant to the direction. The indorser of the stale and paid-up note, upon which in part the fraudulent judgment was procured, testified that Goldman had admitted to him that it had been paid by a check of $200.00 and a note for the difference. This check was produced in evidence, and it bore the indorsement of "P. Goldman.” The plaintiffs thereupon proved by the receiving teller of the bank in which the check had been deposited, the fact of the deposit for Goldman’s account, and the said teller also produced the deposit, slip bearing as the name of the depositor the words: “P. Goldman.” On cross-examination the said teller admitted, however, that though he was familiar with Goldman’s signature at the time, he could not swear whether the indorsement of the check was his signature. Goldman then denied that he indorsed the check or made out the deposit slip, which was shown to be in the same handwriting as the indorsement, whereupon he was required, on cross-examination and in the presence of the jury, to write three distinct signatures. This was done, and the jury had the opportunity of comparing them with the disputed signature.

With all these facts and circumstances, and many other incidents not necessary to be referred to here, before the jury, which were all calculated to aid them .towards arriving at a correct determination, it is impossible to say that their verdict is against evidence or the weight of evidence. They were properly instructed as to their duty in weighing the evidence, and cautioned not to believe Hartman, unless they found,'in the rest of the case, some corroboration which would satisfy them that his testimony was correct; especially as upon the general state of the evidence there was no escape from the conclusion that if Hartman testified truly, at least half a dozen witnesses on the part of the defense committed willful perjury. Notwithstanding these admonitions, which, in view of the law as settled in this State as regards the testimony of accomplices (see Dunn v. The People, 29 N. Y. 523), contained more than the appellant had a right to demand from the court, the jury, upon their oaths, concluded that their duty required them to believe Hartman. Their verdict, therefore, cannot be disturbed. This case, in its leading features, and legal elements and incidents, is remarkably similar to the case of Ynguanzo v. Salomon, 3 Daly, 153, subsequently affirmed by the court of appeals, in which the verdict was sustained by the general term, for the reason, among others, that fraud is the most subtle of legal elements, and is frequently developed by comparatively trifling facts and circumstances, which, isolated, amount to little, but which, when united by intellectual power, present the charge made clearly and beyond doubt, and that in shell a case the conduct of the persons charged, while upon the stand, may have an important bearing upon the determination of the issue by the jury. The most patient examination of the case at bar fails to disclose a reason why this court should apply a different rule, or come to a different conclusion.

The judgment and order appealed from, should be severally affirmed with costs.

Curtis, Ch., J. concurred.  