
    Jesse W. Reno, Appellant, v. Frederic Thompson and Elmer S. Dundy, Respondents.
    Second Department,
    March 2, 1906.
    Former judgment for tort unsatisfied does not bar subsequent action against joint tort feasor — subsequent action barred only when prior judgment satisfied — reply not necessary to defense of former recovery.
    When in an action for trespass, eviction and conversion of ■ property the answer *. alleges that a former recovery was had for the same torts against a joint toft feasor, to which answer the plaintiff has not replied, the trial court is not warranted in dismissing the complaint on the introduction in evidence of the j udgmerit roil in the former action. Nothing but satisfaction for the injury by one tort feasor will relieve a joint tort feasor from liability in another action, and proof of the former judgment is no proof that it was satisfied. Proof of satisfaction is necessary to dismissal of the complaint.
    The failure of the plaintiff to reply to the answer is not an admission of the allegation-that said judgment was paid, as such defense is not .a counterclaim and requires no reply. It sets oiit merely new matter in avoidance. ,
    Appeal by the plaintiff, Jesse W. Reno, from a judgment of-.the Supreme Court in' favor of the defendants, entered in .the office of the clerk of the. county of Kings on the 18th day of March, 1905,. upon the dismissal- of the complaint by. direction of the court after a trial at the Kings County Trial Term.
    
      Maxwell Slade, for the appellant.
    
      L. H. Doorly, for the respondents.
   Rich, J.:

It appears- that this plaintiff brought an-action in the Supreme-Court against -one Paul Boyton to recover damages for a trespass and conversion of personal property. -In his complaint he alleged an agreement with Boyton by which Boy-ton let to him a portion óf Sea Lion Park, Coney Island, for the-season of 1902 and for each season thereafter np to 1914, for the purpose of the erection thereon of an amusement device owned by plaintiff and know-n as the Electric Oyclorama; that plaintiff went into possession of said premises under said agreement and erected thereon said Electric-' Oyclorama, “consisting of an octagonal building, including a spiral staircase * * ■* and two panoramic paintings, the one of the . 1 LTaval Battle of Santiago and the other that of Manilla, the cost of which building, staircase and paintings was $3,000.” He further alleged: “ (Upon information and belief) That on or about the 1st day of October, 1902, the said defendant, his agents- and servants forcibly entered the said premises and took possession thereof, and excluded this plaintiff therefrom and have ever since refused to-allow this plaintiff to enter the same.

“VI. (Upon information and belief) That by the wrongful entry of the defendant, his agents and servants as hereinbefore sht forth, and their wrongful ejection of this plaintiff he has been damaged,, as he verily believes, in the sum of $18,000, being eighty per cent, of the gross receipts of the entrance fees for the seasons of 190"3 up to and including 1914 as estimated by the parties to the said agreement at the time when the rental of twenty per cent, thereof was reserved to the defendant as rent, to wit, $28,000 less this plaintiff’s expenses during the same time, to wit, $10,800.

“ Second Cause of Action.

“Repeating paragraphs I, II and III'hereinbefore set forth and making them a part of this cause of action, this plaintiff further alleges that on or about the 1st day qf October, -1902, the said defendant took and carried away and converted to his own use the building and paintings hereinbefore set forth, to this plaintiff’s damage $3,000.

“ Wherefore this plaintiff prays judgment against said defendant for the sum of $21,000 with interest from October 1st, 1902.”

Boyton denied these allegations of the complaint, and alleged a breach of the contract and its consequent termination before the close of the season of 1902, at which time plaintiff was to remove his building from the park.- He further alleged that he was never the owner of Sea Lion Park; that it was owned by the Sea Beach Land Company, who had leased the same to one Lenehan, whose lease expired January 1, 1905; that on August 12, 1902, Lenehan failed to pay the rent, etc., and said company entered and took possession of the premises and, according to the terms of the lease, all of the buildings erected thereon, presumably the one erected by the plaintiff.

The issues so formed came on for trial at a Trial Term'held June 8,1904. The jury rendered, a verdict for'the plaintiff' for $1,800, on which judgment was entered on June 15, 1904, for $1,934J)5.

This action was commenced July 23,1903, in which plaintiff seeks-to recover damages for the same trespass, eviction and conversion. •.The reading of the two complaints leaves no room for doubt that the causes of action are identical. The defendants, by their amended answer, denied the allegations of the coinplaint, and alleged affirm a,-, tively the former action against Boyton, that the trespass and conversion alleged in that, action is the same trespass and. same con ver-4 sion alleged and sought to be recovered for in this action. The plaintiff served no reply.. After a jury had been impaneled counsel for the defendants moved for. judgment upon, the pleadings upon . the ground that “it appears affirmatively "that the're has been one recovery for the cause of action sued for herein, reduced to judgi-nent and satisfied,” and the motion was granted, to-which plaintiff’s counsel excepted, _

In granting this motion we think the learned trial justice corm in ittéd an error which calls for a reversal of the j udgment. There is. no question but that the contention of counsel for the defendants that where an action is brought against one of several joint tort feasors • to rec'over the entire damages sustained, followed by jirdgment which is paid to plaintiff, that he cannot again recover against other wrongdoers damages for- the same tort, the rule being that he ■can have but one satisfaction, and payment" of the judgment fecov^ .ered by one wrongdoer discharges the others ; blit this record does not present that question for our determination. The -question here' is, -was there any evidence before the trial court warranting, the learned trial justice in taking the case from the jury and dismissing the. complaint ? There was no evidence that defendants- and • Boy-, ton ’were joint toft feasors; the fact was not alleged, or that the judgment recovered in the former action had been paid. Until such jiayment was. established -the plaintiff .coiild maintain the action against either or all of the wrongdoers. Nothing sh'ort, of satisfaction for -the injury would relieve them from liability. There was no such evidence; there was no. such admission in the pleadings, and none appears to have been - made by counsel'. The only evidence before the-court was the judgment roll in the former-action.

The ‘answer alleged the payment and satisfaction of the judgment, and counsel fdr defendants contends that in consequence of plaintiff’s failure to reply to this allegation he admitted its truth, and for the purposes of this action such payment must be held to have been made, and calls our attention to section 522 of the Code of Civil Procedure as an authority for the contention. The answer in this .case did not contain a counterclaim; no reply was, therefore, required. The bringing of the former action and payment and discharge of the judgment recovered therein did not constitute a counterclaim, and was not alleged as such. It was new matter, pleaded as a defense by way of avoidance, to which plaintiff was not bound to reply. The defendants might have procured an order under the provisions of section 516 of the Code of Civil Procedure, directing the plaintiff to reply, and had he then omitted to reply the new matter would have stood as admitted.' 1

For the reasons stated the judgment must be reversed and a new trial granted, costs to abide the event.

Jenks, Hookeb and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  