149 N.Y.S. 974 | N.Y. App. Div. | 1914
On February 18, 1914, plaintiff recovered a judgment in an action for damages for fraud and deceit against this appellant and Juan Mooyer, Russell Marston and Thomas Collins. Col
Plaintiff at the same time executed a satisfaction piece of the • judgment as to said Mooyer and Marston, and signed a consent to discontinue the action as to them. Both of these documents contained a reservation similar in language and effect to that contained in the general release quoted above.
The defendant Becker now moves that the judgment be canceled as to him, upon the ground that defendants, if liable at all to plaintiff, were liable as joint tort feasors, and that the release of one joint tort feasor by an instrument ■under seal operates as a release of all. That this is the general rule is unquestioned, but the rigor of the rule is relaxed when, as in the present case, the creditor expressly reserves the right to pursue the joint tort feasors who have not heen, in terms, released. The rule applicable in such a case is stated by the Court of Appeals to be that where the release contains no reservation it operates to discharge all the joint tort feasors; but where the instrument expressly reserves the right to pursue the others it is not technically a release, but a covenant not to sue and they are not discharged. (Gilbert v. Finch, 173 N. Y. 455; Walsh v. N. Y. C. & H. R. R. R. Co., 204 id. 58.)
The appellant, conceding the rule as above stated, insists that it is inapplicable to the present case, because here the release was executed after judgment and, therefore, cannot be construed as a covenant not to sue, which is the word used in the cases cited. This is too narrow an application of the rule. To
The order appealed from must be affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.