Garvey v. Jarvis

54 Barb. 179, 1869 N.Y. App. Div. LEXIS 45

• Court: New York Supreme Court
• Decided: June 7, 1869
• Status: Published

Opinion

By the Court,

Clerke, P. J.

The finding of law, that Garvey had no legal or equitable right to have Malcolm’s judgment against him satisfied for a less sum than was actually due thereon, is clearly deducible from the findings of fact. Malcolm had not legally bound himself to Garvey to take less; indeed I doubt whether this could be done, by any species of executory agreement. A judgment, or any matter of record, like a specialty, cannot be discharged, even by what would be considered a good accord and satisfaction in other cases. Garvey, therefore, had no other interest, which could be enforced against any of the defendants.

[New York General Term, June 7, 1869.

Malcolm asks this general term to award him relief against Eoach, and to decree that he is entitled to any money which was to be paid to Eoach, under the compromise of the 11th of June', 1867, less the $500 which Eoach had paid to Malcolm. Undoubtedly, under section 122 of the Code of Procedure, the court may determine any controversy between the parties before it; but neither of the defendants demanded of the court any relief, as between them. Each defendant merely asked that the complaint should be dismissed as against him; and it was so dismissed. It is too late to demand any more on this appeal.

The judgment should be affirmed, with costs.

Judgment affirmed'.

Clerke, Cardozo and Geo. G. Barnard, Justices.]