Atlantic Dock Co. v. . Mayor, Etc., N.Y. City

Folger, J. It is not denied upon the argument, by the respondents, but that they were once liable to the plaintiff on the record, for the damage to the plaintiff resulting from the injury done by the mob to the dredging machine. The plaintiff has by an action and judgment against another defendant recovered the full amount of those damages, and *67 has received satisfaction of the judgment. It is claimed that thereby the cause of action against the defendants in this action is satisfied, and that they are no longer liable to the plaintiff. To show, however, the exact state of the case, it should be further stated, that when • the liability of the defendants is conceded to have ever existed, it follows that there was never any cause of action for those damages against any one but the defendants. And then it follows, that the recovery of a judgment against that other, and the receipt of payment thereof from that other, was a. wrong done to it. And it was no less a wrong because it assumed the forms of the law, and was compassed by the adjudication of the courts. The defendants’ position is this, then, that a good cause of action against them upon their conceded liability to the plaintiff is lost or is taken away by a wrong done to another notin any way connected with the defendants in the transaction. This cannot be so. A wrong done to one will not extinguish a right against another. (Mathews v. Lewrence, 1 Den., 212.) A liability ex deUcto may be extinguished by a released That has not been given here. It may be extinguished by payment. But a payment by a stranger, between whom and the defendant there is no privity, cannot be availed of. (Bleakley v. White, 4 Paige, 654.) To be effectual, payment, if by a third person, must be made by him as agent for or on account of the one liable, and with the prior authority or subsequent ratification of the latter (Simpson v. Eggington, 10 Exch., 845 ; Kemp v. Balls, id., 607), which was not the case here, where it was made for the benefit of the one making it, and as a purchase of the cause of action. And see Muller v. Eno (14 N. Y., 597-605). It may be extinguished by an accord and satisfaction. But satisfaction by a stranger is no plea. (Grymes v. Blofield, Cro. Eliz., 541, cited and approved, Clow v. Borst, 6 Johns., 37; Daniels v. Hallenbeck, 19 Wend., 408.) The recovery of a judgment does indeed merge or extinguish the cause of action, as against the party sued. But it is the cause of action against that party. The judgment does not so act upon *68 another cause of action against another party, in no wise joined in liability. Eor is the plaintiff estopped in this action by the former adjudication. The adjudication so acts only between the parties thereto or those in privity with them. Or, in other words, the estoppel must be mutual, which it is not in this case. Thus a judgment in favor of one co-trespasser may not be used by another co-trespasser, not a party to it, .by way of estoppel. (Sprague v. Waite, 19 Pick., 455.) It is said that the plaintiff is not now the real party in interest, and cannot prosecute the claim. (Code, § 111.) By section 121, however, no action shall abate by the transfer of any interest therein, if the cause of action continues; and the action shall be continued in the name of the original party, or the court may allow a substitution. The plaintiff did, as is conceded, have cause of action against the defendants. We have shown that it has never been extinguished. As it continues, it may still be prosecuted in the name of the original plaintiff, under the section of the Code last cited. The judgment should be reversed and a new trial ordered, with costs to abide the event. All concur. Judgment reversed.