Bank of Salina v. Abbot

3 Denio 181

• Court: New York Supreme Court
• Decided: June 15, 1846
• Status: Published

Opinion

By the Court, Jewett, J.

At law it is well settled, that payment of a judgment to the plaintiff or the owner, by the defendant, or by one of several defendants, extinguishes it, although such payment be made by a defendant who is a mere surety. A court of law cannot substitute such surety in the place of the plaintiff and allow him to take execution upon such judgment. The judgment is regarded as extinguished against all. (Ontario Bank v. Walker, 1 Hill, 652.) An assignment by the plaintiff or owner of a judgment to one of several defendants in the judgment, works the same consequence.

Motion granted.

(a)

CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF NEW-YORK, m JULY TERM, 1846.

Where judgment has been obtained against a party to a bill or note, a subsequent party does not, by paying the amount and taking an assignment of the judgment, extinguish it. (Harger v. McCullough, 2 Denio, 119,122.) So, it is presumed if separate judgments were recovered by the holder against maker and endorser, the latter might pay the judgment against himself and take an assignment of that against the maker and enforce it by execution or otherwise. The principal case must therefore depend upon the effect of the joint judgment, which ordinarily extinguishes the precedent liabilities upon which it was recovered; and the provision in the act authorizing suits against different parties to a bill or note, which looked to preserving the rights of such parties as between each other, it seems, is not broad enough to meet the case. (See Slat. 1832, p. 490, § 7.)