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Mecum v. Becker

149 N.Y.S. 974 Court N.Y. App. Div. Decision date 1914-11-20 Docket No. 6402 English

Delivered by SCOTT, J.

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MECUM v. BECKER.
(No. 6402.)
(Supreme Court, Appellate Division, First Department.
November 20, 1914.)

Headnote

1. Judgment (§ 888[1] ) — Joint Tobt-Feasobs — Release—Covenant, Not to Sue.
Plaintiff, having recovered a judgment in an action for fraud and deceit against four joint tort-feasors, executed a general release under seal discharging two of them, providing that nothing contained in the release should be construed to discharge any right or claim or judgment which plaintiff had against the other two, either by reason of the judgment or any other reason whatever, it being expressly understood that plaintiff reserved to herself all right in and to the judgment and the claim on which it was obtained against such others, and that it was not her intention to release them in any manner whatsoever. Held, that such release was a covenant not to sue or further pursue the defendants released, and not a technical release, and therefore did not operate as a discharge of all the joint debtors.
• [Ed. Note. — For- other cases, see Judgment, Cent. Dig. § 1667; Dec. Dig. § 888.*]
2. Judgment (§ 888*) — Effect—Joint Tobt-Feasobs — “Joint Debt” — Stat-
utes.
Where a judgment is recovered against several joint tort-feasors, the judgment turns the cause of action into a “joint debt,” within Debtor and Creditor Law (Consol. Laws, c. 12) §§ 230-233, providing that a joint debtor may make a separate composition with his creditor without releasing the others.
[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1667; Dec. Dig. § 888.*]
Appeal from Special Term, New York County.
Action by Elizabeth A. C. Mecum against C. Adelbert Becker and others. Erom an order denying a motion of defendant Becker to vacate a judgment against him because of the release of other defendants, he appeals.
Affirmed.
Argued before INGRAHAM, P. J., and McEAUGHLIN, LAUGH-LIN, CLARKE, and SCOTT, JJ.
Louis Marshall, of New York City, for appellant.
Louis O. Van Doren, of New York City, for respondent.

On February 14, 1914, plaintiff recovered a judgment in an action for damages for fraud and deceit against this appellant and Juan Mooyer, Russell Marston, and Thomas Collins. Collins did not appeal, but this defendant and Mooyer and Marston did, and gave security. On July 27,1914, Mooyer and Marston effected'a compromise with plaintiff, paying her about one-fifth of the face of the judgment, and taking from her a general release under seal, which contained the following clause:

“Nothing in this release shall be so construed as to.release any right or claim or judgment that I may have against the defendant 0. Adelbert Becker or against the defendant Thomas Oollins, either by reason of the judgment aforesaid or by any other reason whatsoever; and it is expressly understood that I reserve to myself all my right in and to the said judgment and thd claim upon which the said judgment was obtained against the said O. Adel
p. 975
bert Becker and Thomas Collins, and that it is not my intention to release them in any manner whatsoever.”

Plaintiff at the same time executed a satisfaction piece of the judgment as to said Mooyer and Marston, and signed a consent to discontinue the action as to them. Both of these documents contained a reservation similar in language and effect to that contained in the general release quoted above.

[1] The defendant Becker now moves that the judgment be canceled as to him upon the ground that defendants, if liable at all to plaintiff, were liable as joint tort-feasors, and that the release of one joint tortfeasor by an instrument under seal operates as a release of all. That this is the general rule is unquestioned, but the rigor of the rule is relaxed when, as in the present case, the creditor expressly reserves the right to pursue the joint tort-feasors who have not been in terms released. The rule applicable in such a case is stated by the Court of Appeals to be that where the release contains no reservation it operates to discharge all the joint tort-feasors; but where the instrument expressly reserves the right to pursue the others, it is not technically a release, but a covenant not to sue, and they are not discharged. Gilbert v. Finch, 173 N. Y. 455 , 66 N. E. 133 , 61 L. R. A. 807 , 93 Am. St. Rep. 623 ; Walsh v. N. Y. Cen. & Hudson River R. R. Co., 204 N. Y. 58 , 97 N. E. 408 , 37 L. R. A. (N. S.) 1137 .

. [2] The appellant, conceding the rule as above stated, insists that it is inapplicable to the present case, because here the release was executed after judgment, and therefore cannot be construed as a covenant not to sue, which is the word used in the cases cited. This is too narrow an application of the rule. To so apply it would be to sacrifice its reason to its language. What the rule means is that a release with such a reservation will be construed as a covenant not to further pursue the party who has been released. Furthermore, upon the rendition of the judgment, the defendants’ obligation to plaintiff was transformed technically into a contract liability. The foundation of the claim may have been a tort, but the judgment created a joint debt, to which sections 230 to 233 of the Debtor and Creditor Law apply.

The order appealed from must be affirmed, with $10 costs and disbursements. All concur.

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