Kanton v. Mitchell

VICKERY, J.

It is clear that the judgment is erroneous and must be reversed even though under the record in this case the corporation had assumed all the liabilities and indebtedness of Mitchell. This did not exempt Mtchell from his obligation unless plaintiff ‘had entered into a contract of novation, and there is nothing in the record to show that, and the mere fact that plaintiff had a claim against the corporation by reason of its assumption of this obligation, even though she brought suit and procured a judgment, if that judgment was not paid, would not bar her right to recover against Mitchell, and it could not in any case be res adjudicata, but it is simply a case where two parties are liable for the same obligation and she could bring as many suits as there were parties liable, and until she collected from one of them, she could maintain a suit against the other. The record shows that she did not collect for the goods lost and there is no reason in the world why she should not have a judgment against Mitchell.

Sullivan, P. J. and Levine, J., concur.