Hirsh v. Munger

3 Thomp. & Cook 290

• Court: New York Supreme Court
• Decided: April 15, 1874
• Status: Published

Opinion

E. Darwin Smith, J.

Upon the referee’s report upon the facts in this case, I do not see how the judgment rendered by him .can be disturbed. He finds that upon the payment of a certain amount by the principal debtors and joint-judgment debtors, with thé plaintiff in said judgment, the said joint debtors, S. S. Cornell & Co., being George and Stephen S. Cornell, were to be released, and accordingly the judgment as against them was released and satisfied in fact; and that it does not appear that said release was executed with reference to the statutes of this State, relating to the release of joint debtors.

After such release, the judgment must be deemed satisfied and discharged, and the issue of an execution thereon, as against "the .plaintiff, unauthorized and illegal, and the judgment for the recovery collected was thereupon properly rendered.

The exceptions to the decision of the referee, excluding the evidence of Hunger, as to the terms of the agreement with the said Cornells, was cured, if valid, by the reception of the evidence of Hunger on this point, notwithstanding the decision.

The witness, after such decision, answered as follows: “ I remember that I agreed in that paper not to call oh the Cornells for any further payment on that judgment,” and gave other testimony without objection in respect to the contents of said release.

The assignment made by defendant of said judgment, upon this state of facts, was of no validity.

If the plaintiff, in said judgment, had discharged said Cornells from all further liability on the judgment, a co-defendant obviously could not enforce it for any further payment. It was, in legal effect, satisfied.

I do not see why the judgment must not be affirmed.

Judgment affirmed.