| NY | Dec 4, 1877
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *369 The plaintiff had an action for the recovery of his deposit, either against the present defendants, the auctioneers, or their principal, the New York and Harlem Railroad Company, and he might have brought separate actions against each at the same time, and prosecuted both to judgment, but could have had but one satisfaction. A recovery against either and a satisfaction of the judgment would discharge the other. The plaintiff was entitled, *370 against the principal, to interest upon the deposit, and as it seems also against the auctioneers the stakeholders, from the time of a demand of the money and a refusal to pay by them, although the liability of the auctioneers to pay interest was at one time doubted. (Farquhar v. Farley, 7 Taunt., 593; Lee v. Munn, 8 id., 45; Maberley v. Robins, 5 id., 625;Burroughs v. Skinner, 5 Burr., 2639.) The plaintiff had a judgment against the railroad company for the amount of his deposit, with his other expenses, but was refused interest for the reason that no demand had been made for the money. That judgment was affirmed upon appeal to this court, and although it appears by the evidence in this action that a demand was made of the defendants for a return of the deposit in July, 1868, the plaintiff omitted to prove the fact in the action against the railroad company, and that judgment having been satisfied as was assumed upon the argument of this appeal, although not appearing by the record, this action is barred; although upon the evidence here, the plaintiff but for such recovery and satisfaction might be entitled to interest.
There is another conclusive answer to this action. By the acknowledgment of the receipt of the money sued for, which expresses the terms upon which it was paid and received, and constitutes the contract between the parties to this action, it was declared that the payment was made and received in reference to the conditions announced at the sale, and payable to the seller on the return of the receipt indorsed by the purchaser. The plaintiff indorsed the receipt and delivered it to the clerk of the court for the seller, the Harlem Railroad Company, on the trial of the action against that company, and although the case is defectively made up, it is plainly to be inferred that the company has, by order of the court, obtained possession of the receipt, and become entitled to the money for which the plaintiff now sues.
A new trial, if one should be granted, would not avail the plaintiff, and would only add to the costs with which he would be chargeable, for it would then be made to appear certainly *371 that the judgment against the railroad company had been paid which would absolutely bar this action, and it would also probably appear that the company had obtained the money from the defendants, on the presentation of their receipt, indorsed by the plaintiff, which would also constitute a defense to this action. But upon the present record the judgment must be affirmed.
All concur, except EARL. J., absent.
Judgment affirmed.