Opinion
November 20, 1914.
Louis Marshall, for the appellant.
Louis O. Van Doren, for the respondent.
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. Collins did not appeal, but this defendant and Mooyer and Marston did and gave security. On July 27, 1914, Mooyer and Marston effected a compromise with plaintiff, paying her about one-fifth of the face of the judgment and taking from her a general release under seal, which contained the following clause: "Nothing in this release shall be so construed as to release any right or claim or judgment that I may have against the defendant C. Adelbert Becker or against the defendant Thomas Collins, either by reason of the judgment aforesaid or by any other reason whatsoever; and it is expressly understood that I reserve to myself all my right in and to the said judgment and the claim upon which the said judgment was obtained against the said C. Adelbert Becker and Thomas Collins, and that it is not my intention to release them in any manner whatsoever."
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 been, 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 so apply it would be to sacrifice its reason to its language. What the rule means is that a release with such a reservation will be construed as a covenant not to further pursue the party who has been released. Furthermore, upon the rendition of the judgment the defendants' obligation to plaintiff was transformed technically into a contract liability. The foundation of the claim may have been a tort, but the judgment created a joint debt to which sections 230 to 233 of the Debtor and Creditor Law (Consol. Laws, chap. 12; Laws of 1909, chap. 17) apply.
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.