Cook v. Genesee Mutual Insurance

8 How. Pr. 514 | N.Y. Sup. Ct. | 1852

Welles, Justice.

The question involved in the first demurrer is whether the action, and judgment therein, by Barton, against the present defendant, operates- as an extinguishment of the plaintiff’s demand.

It was settled, that at law, separate actions could not he sustained for different parts or portions of an entire demand or cause of action. Miller agt. Covert, (1 Wend. R. 487, and cases there cited.) In those cases, and all I have met with on the subject, the same person was plaintiff in the different suits for parts of the same cause of action; and they were cases, wherein, from the nature of the demand, there was nothing to hinder the plaintiff in the first suit, from recovering the entire claim as well as any part,—as well the part not included in the judgment, as that which was included. In such a case it would be oppressive and vexatious to allow the plaintiff to split up a cause of action which was single and entire, and to harrass the defendant with several prosecutions, when one would subserve the same purpose. That was one of the reasons why it would not be permitted. - Another arose out of the incongruity of allowing a party, having an entire, indivisible cause of action against another, after coming into court and presenting his claim for judgment, founded upon such cause of action, and recovering a part only of his claim, afterwards to recover, in another action, the other part. In such case the court must, in the first action, pass upon the whole of such entire claim; and if one part of it was found to be valid, the whole would, of necessity, also be valid; and such action of the court extinguished the whole of such single "and entire cause of action. If the plaintiff recovered judgment upon it, although for only a part, the whole was extinguished and merged in the judgment, and could never again be brought into court as the foundation of another judgment. It was, in effect, equivalent to a remittitur of the balance or residue of the claim.

The defendant claims that the foregoing rule is applicable to the present case; that the liquidation of the amount of loss by the burning of the insured property, between Fletcher and the defendant, constituted one entire, undivisible demand or cause of action, which it was not competent for the former to separate, so as to make it the subject of several actions; and hat the action brought by Barton, and judgment therein, for the part of the liquidated amount subsequently assigned to him by Fletcher, had the effect to extinguish the whole claim.

I think it cannot be maintained that an entire demand cannot be assigned in parts to different persons, so that the rights of each assignee shall be protected and enforced; or that a part of such demand may not be assigned, and the residue or remainder retained by the assignor, and the assignee and assignor be both protected in respect to their respective interests.

In the case of a legal demand, the assignor and assignee, or the several assignees, in case the whole demand had been assigned, probably might have united in an action at law, before the Code, in the name of the assignor, to recover the whole demand. But no action at law could be sustained in such case, except in the name of the assignor, unless the debtor had agreed to pay the assignee who brought such action.

In case of an assignment, in parts, to several persons, of an entire demand, an assignee of one of the parts might maintain a suit in equity to recover his part, and in the absence of any agreement by the debtor, to pay him, his remedy was confined to a Court of Equity. This was so held by the Court of Appeals in the case of Field agt. the Mayor, &c., of the City of New York, decided in March term, 1852, and not yet reported. If a court of equity would have recognised and enforced the respective rights of the several assignees in the case of an assignment in parts to several different persons, of an entire demand, it is not perceived why the fact that one of such assignees has collected the part belonging to him, should prejudice the right of any of the others. In a suit in equity by one of |uch assignees, against the debtor, to recover the amount due to the plaintiff, the" assignees of the" other parts, and the assignor—if he had retained any portion—should be made parties, unless a sufficient reason appears for leaving them out; and I suppose the rule is the same under the Code. (§§ 117,118 and 119.) In the present case, looking at the complaint and answer, it appears that the part assigned to Barton has been collected. The complaint so states the fact, and the answer does not controvert it, but states that Barton recovered judgment for it, which is not inconsistent with the fact of its having been collected. This, in iny opinion, is a sufficient reason for not making Barton a party. I do not mean to say that it would not be sufficient, if it appeared that Barton had only recovered judgment, which remained unsatisfied. On the contrary, I incline to the opinion that it would have been enough to excuse the plaintiff from making him a party. The plaintiff’s demand is of an equitable character, and the complaint makes a case which entitles him to invoke the equitable powers of the court for its enforcement; and I am not able to perceive that the first answer states a sufficient reason why the relief prayed for should not be granted.

It does not appear what, if any, defence was set up in the action by Barton against the defendant. It was competent for them, in that action, to have alleged the nonjoinder of the present plaintiff, unless some good reason appeared why he was omitted. If they neglected, on that occasion, to insist that the claims for the whole loss should be adjudicated in one action, as I think they might have done—so far as any thing appears in the pleadings in this action—and suffered Barton’s claim to be adjusted and pass into judgment, they cannot now require that he be made á party in this action.

The second answer shows that Sheppard should have been made a party. As I have attempted to show, in discussing the validity of the first answer, the defendants have the right to have all the claims to this demand, growing out of the loss of the insured property, adjudicated and settled in one action. The complaint makes out a prima facie case against these defendants alone, and it does not appear from it, that there is any other person who ought to be made a party; but the answer under consideration sets up other facts, showing the propriety of making Sheppard a party. On being informed by the answer, of Sheppard’s interest or claim, the plaintiff should have made him a party, by way of amendment to the complaint, and have brought him into court by process, if necessary. (See Story’s Eq. Jur. § 1526; Van Santvoord’s Pleading, 103-4-5, &c.)

The plaintiff is therefore entitled to judgment on the demurrer to the first answer, and the defendant to judgment on the demurrer to the second answer; with liberty to the plaintiff to amend his complaint by making Sheppard a party, with proper averments or allegations. No costs are allowed to either party as against the other, on either of the demurrers, or upon the amendment.