Corn Exchange Insurance v. Babcock

57 Barb. 231 | N.Y. Sup. Ct. | 1867

By the Court.—Hogeboom, J.

Although the referee has not found the fact, yet the uncontradicted proof establishes it, and the referee would doubtless have found it upon request, that the note prosecuted in the other action, so far as it covered four hundred dollars of the amount prosecuted for in this suit, was given as merely collateral thereto, and as additional security therefor, and not in payment or satisfaction thereof, or as a substitute therefor. As a general if not a universal proposition, remedies upon the primary debt and upon the collateral security may be prosecuted at the same time, even to judgment and execution, though but one satisfaction can be obtained therefor (Davis v. Anable, 2 Hill, 339; Hawks v. Hinchcliff, 17 Barb., 492, 504; Butler v. Miller, 1 N. Y. [1 Comst.], 496, 500, 501).

If an attempt be made to collect the judgment both upon the original and the collateral secúrity, that can always be prevented or remedied by the order of the court.

This seems to be the only question in the case, and to have been momentarily confounded with an attempt to collect at the same time the same debt in two different actions.

Although it most generally happens that the remedies upon the primary and the collateral security are not simultaneously pursued, yet I see no legal objection to their being so pursued. Nor is it in my opinion an s effectual bar to the obtaining of a judgment upon the original demand, that the suit upon the collateral has been first put in judgment, and that one of the defendants in that judgment is the _soie defendant in the action upon the original claim." If the actions were properly commenced at the same time, the accidental fact that the action upon the collateral has first culminated in a judgment, cannot render nugatory the proceedings in the other action; and although the defendant Edward Babcock has not appealed from the judgment upon the collateral security, he may yet’ do so ; or for various other reasons, it may happen that satisfaction of the debt will never be obtained in that action. The true test is,—has satisfaction been had ? If so, all other proceedings will be stayed; if not, they will be allowed to be continued.

No question arises upon the pleadings. They do not contain, as originally they could not have contained, a statement of the judgment in the collateral action; but- they could have been properly amended, or supplemental pleadings allowed, to justify the introduction of the subsequent evidence; and as it was introduced without objection, it will be regarded as admissible under the pleadings, or the pleadings amended for such purpose.

I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

Millek, J., concurred.