Lansing v. Montgomery

2 Johns. 382 | N.Y. Sup. Ct. | 1807

Per Curiam.

The judgment in favour of Goeway was 110 bar to the suit against Lansing, for torts are joint and several, and the defendants pleaded separately. Where two are sued for a tort, the jury may find one defendant guilty, and the other not guilty.^|| The demurrer to the plea of Goeioay did not estop the plaintiff from replying to the plea of Lansing, and going to trial on that issue; for Lansing was not a party to the demurrer, and one who is not bound by, cannot take advantage of, an estop-pe].^** Nor were the iurv who tried the issue between the plaintiff and Lansing bound by the supposed estoppel, for it was not contained in the pleadings before them. An estoppel cannot be taken by inference, but must be relied on in pleading.^‡‡ In the present case the parties did not rely on the estoppel, but joined issue on the fact of a former recovery. The judgment below must be affirmed.

Judgment affirmed.

|| Ante, p. 365.

** Co Lit. 227. a.

‡‡ Co. Lit. 227. a. 352. b.