First Nat. Bank v. Wallis , 84 Hun 376 ( 1895 )

BROWN, P. J.

This action was brought to recover against the appellants individually upon a promissory note, indorsed to the respondent by H. Stuetzer & Co., of which the following is a copy:

“$1,500. Jersey City, N. J., Dec. 2, 1892.

“Three months after date, we promise to pay to the order of H. Stuetzer & Co. fifteen hundred & 00/100 dollars, payable at First National Bank of Jersey City. Value received.

«Wm rn ITTnlUc TD^nl“Wm. T. Wallis, Prest. Geo. T. Smith, Treas.”

o. 1,027.

ndorsed: “Pay First Nat’l Bank, Brooklyn, or order. H. Stuetzer &

The note was given to Stuetzer & Co. for work done for the Wallis Iron Works, of which, corporation the appellant Wallis was the president and the appellant Smith the treasurer. Shortly after the maturity of the note, the bank sued the Wallis Iron Works thereon, and judgment was entered against said corporation by default. Nothing was collected on said judgment, and, before the commencement of this action, it was, by an order of the court, vacated, and the action was discontinued.. The note was discounted for the benefit of and upon the credit of Stuetzer & Co., and, at the time of discounting it, the bank had no knowledge of the circumstances surrounding its execution and delivery, or what it was given for, but the president of the bank testified that he supposed it was the note of the Wallis Iron Works.

In another action this court decided, upon the same facts, that a note between the same parties was, on its face, the obligation of the appellants, and not of the Wallis Iron Works. Bank v. Stuetzer, 80 Hun, 435, 30 N. Y. Supp. 83. That decision rested upon the authority of the case of Bank v. Clark, 139 N. Y. 307, 34 N. E. 908, from which it appears impossible to distinguish it. The appellants now claim, however, that, by suing the Wallis Iron Works, the respondent exercised a right of election between inconsistent remedies, and is therefore barred from maintaining this action against the appellants. The general rule is well settled that when a party has grounds to bring different actions arising out of the same state of facts against different persons, and the maintenance of one necessitates the allegation of a fact inconsistent with the maintenance of another, he is bound by his election, and cannot proceed against the other, although the judgment obtained in the first action fails to afford relief. But, after a careful examination of the numerous cases cited in the appellants’ brief, I have failed to find one that holds that, when two or more persons are severally liable to another, by suing one the creditor thereby discharges all the others. The rule is established as to all that class of actions which comes under the head of “torts” that one tort feasor is not discharged by an action or judgment against his cotort feasor. Nothing short of satisfaction for the injury will relieve all the wrongdoers from liability. Livingston v. Bishop, 1 Johns. 290. The same rule is applicable to contracts. If two or more persons are severally liable for the same debt, payment of the debt alone discharges the debtor, and the maintenance of an action and recovery of a judgment against one does not debar the creditor from suing in a separate action others liable for the same debt. In Beymer v. Bonsall, 79 Pa. St. 298, it was held that neither the agent nor principal, when both were liable, would be discharged short of satisfaction of the debt. This case was cited with approval in Cobb v. Knapp, 71 N. Y. 348, the chief judge saying that the commencement of an action against the principal would not be conclusive of an election by the creditor to hold him responsible only. These authorities sustain the judgment appealed from, and it must be affirmed, with costs. All concur.