Robinson v. Marks

26 N.Y. Sup. Ct. 325

• Court: New York Supreme Court
• Decided: December 15, 1879
• Status: Published

Opinion

Barnard, P. J.:

This case presents, so far as I have been able to discover, an entirely new question. The facts involved in the controversy are as follows : The plaintiffs, in 1877, brought an action against the firm of Silliman & Co., to recover about $12,000 for various notes and drafts made by that firm. Among these notes and drafts was described a note for $2,500, made by Silliman & Co., to the order of the defendant. The complaint averred that this note was wholly unpaid, except the sum of $122, part thereof, and .asks to recover for this note with the others, less this payment. .Silliman & Co. denied that plaintiffs had any claim upon this mote against them. They averred that the note was given by them to plaintiffs as collateral security for claims other than those-claimed by plaintiffs which had been paid Accompanying - their answer, Silliman & Co, made an offer , dgment to plaintiffs; under the Code of Civil Procedure, section.38, for the amount-claimed by plamtiffs in the complaint after educting this note-The plaintiffs accejrted this offer, and enter V judgment upon it, against Silliman & Co., for $11,222.27. T ^e present action is brought against Mark, the indorser of the note; and the-question is, whether the judgment . against Silliman & Co.,, under the circumstances under which it was recovered, bars; its recovery against the indorser. It seems to me that it. clearly does. If the claim against Silliman & Co. had been, submitted to a jury, and they had found against the plaintiffs . upon the issues raised as to the note in question, it would have-been a case where the judgment would have been conclusive-, as between plaintiffs and Silliman & Co., that the note was invalid that it was, in fact, paid; if Silliman & Co. were discharged,, being the makers, of course, Marks, the indorsee, could not behold, as he would be, in such a case, merely surety upon a paid, note. The Legislature could not have intended, by section 738, after an acceptance of the offer made by a defendant for a less; sum than the entire claim, that a plaintiff should be again permitted to sue for the rejected portion of the claim. The admission of the plamtiffs, by the acceptance of the offer, stands in the-place of a verdict of the jury upon the entire complaint. The complaint was never amended by striking out this clause, so that-the sum received in compromise included the whole number of causes of action described therein. If the plaintiffs cannot sue Silliman & Co., they cannot sue Mark upon this claim. The judgment recovered, which defendant put in evidence, was a complete defence to the defendant Mark.

The judgment should be reversed, and a new trial granted,, costs to abide event. •

Dr km an and Pratt, JJ., concurred.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.