Alexander Irvine, Respondent, v. Luther A. Millbank et al., Appellants

Alexander Irvine, Respondent, v. Luther A. Millbank et al., Appellants. (Argued March 23, 1874; decided March 31, 1874.) This was an action upon an undertaking given upon appeal to the Court of Appeals. Plaintiff recovered a judgment against Jonathan A. Fowler, as owner, and Charles B. and Frederick Woods, as lessees of certain premises, for injuries received by falling through a coal-hole in front of the premises, left uncovered through the alleged negligence of defendants. The defendants appealed to the General Term, where the judgment was affirmed. The Woods appealed to the Court of Appeals, giving the undertaking in suit, where the judgment of General Term was affirmed. It appeared that, after the decision at General Term, Fowler paid to plaintiff $2,500, and received from him an instrument in writing, of which the following is a copy : “ Whereas I, Alexander Irvine, of the city of New York, did on the 1st day of July, 1867, recover a judgment in the Superior Court of the city of New York, against Charles B. Wood, Frederick Wood and Jonathan O. Fowler, jointly, for the sum of $6,184-/,,%. “ And, whereas, said Fowler is desirous of individually compounding and compromising said joint indebtedness, so far as he is concerned, and of obtaining his personal and individual discharge therefrom, without prejudice to the said Irvine’s right to proceed on the said judgment as against all the other defendants therein. “Now, therefore, pursuant 'to the provisions of an act entitled 6 An act for the relief of partners and joint-debtors,’ passed April 18th, 1838, and of the several acts amendatory thereof, and by force and virtue thereof, and in consideration of the sum of $2,500 to me in hand paid by said Fowler, the receipt whereof is hereby acknowledged, I, said Irvine, do hereby make this note or memorandum in writing for the purpose under said acts of exonerating, and I do hereby exonerate said Fowler from all and every individual liability by reason of such judgment, or incurred by him by reason oi his being one of the joint-debtors against whom the same was so recovered to the full extent authorized and permitted by the acts aforesaid, but without prejudice to the said Irvine’s rights upon the said judgment as against all the other defendants therein named. “ALEXANDER IRVINE.” Defendants claimed that the case was not within the act for the relief of partners and joint-debtors (chap. 581, Laws of 1838, as amended by chap. 348, Laws of 1845), and that the instrument was in effect a release of one of several joint tort-feasors, and so was a discharge of all. A verdict was directed for plaintiff for the amount of the judgment, less the $2,500 so paid. Held, that conceding (though not now so adjudged) that the case was not within the provisions of said acts, the instrument was not a technical release, which it must be to discharge all, as it was not under seal. (Bowleyv. Stoddard, 7 J. R., 207.) Nor was it tantamount to a release, which is, in effect, an admission of payment as its whole tenor, is at enmity with such an admission. Nor did it operate as an accord and satisfaction, as a payment of a less sum than the actual debt when the amount is not disputed is no satisfaction, unless it follows a release by deed, but that if not effectual under the statutes it was an agreement to be enforced according to the intent of the parties as manifested by the words used, and that it did not discharge the Woods. Also, held, that the fact that the instrument directed the cleric to discharge the judgment, did not affect the question, as, if thé case did not fall within the acts as the parties supposed, the cleric was not authorized to discharge the judgment, if it did, then the instrument was effectual as prescribed by the acts. Dewitt C. Brown for the appellant. John C. Sill for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.