Fidel v. Brooklyn & Queens Transit Corp.

That part of the order granting, on reargument, plaintiff’s motion to serve an amended complaint reversed on the law and the facts, and the motion in that respect denied, without costs, unless the plaintiff stipulate within ten days from the entry of the order herein that the cause of action is one for concurrent negligence of the three defendants, one of which has settled for the damages caused by its negligent acts, and the action is being continued as against the other two defendants, not released, to recover for such damages as the plaintiff has suffered by reason of their negligence. If such stipulation is given, order affirmed, "without costs. The complaint alleges a joint "wrong of several parties, and plaintiff may recover his damages against either or all; but although there may be several suits or recoveries, there can be but one satisfaction. (Walsh v. N. Y. C. & H. B. B. B. Co., 204 N. Y. 58.) The two defendants against whom the action is continued would be entitled to credit for any sum received by the plaintiff in settlement of the action as against defendant Brooklyn and Queens Transit Corporation. 792 (Ammerman v. Utilities Oil Corporation, 222 App. Div. 481; Young v. Anderson, 33 Ida. 522; 50 A. L. R. 1056; 66 id. 209, note.) It appears that the purpose of the amendment is to allege a new cause of action unrelated to the one originally stated and for which a settlement, in part, has apparently been received, so that no credit need be given for the settlement already obtained. Such a result is not permissible. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.