First Department, December, 1913. [Vol. 159. entered in the office of the clerk of the county of New York on the 21st day of July, 1913, denying appellant's motion to direct the clerk of the county of New York to satisfy a certain judgment and to restrain the sheriff from making further collections under an execution issued thereon pursuant to section 1391 of the Code of Civil Procedure and to compel him to return moneys collected in pursuance of said execution. Thomas E. O'Brien, for the appellant. John T. Canavan, for the respondent. MCLAUGHLIN, J.: Action to recover damages for a malicious abuse of legal process. There have been two trials. The first resulted in a judgment dismissing the complaint, but upon appeal the same was reversed and a new trial ordered as to the present appellant and the defendant Soper. It is unnecessary to state the facts, since they are substantially the same as alleged in the complaint and which are fully set forth in the opinion delivered on the former appeal. (Foy v. Barry, 87 App. Div. 291.) Upon the second trial a verdict was rendered in favor of the plaintiff against Soper for $250 and against Barry for $1,000. Upon the verdict thus rendered judgment was entered against Soper for $697.85 and against Barry for $1,447.85, being the amount of the verdict plus a full bill of costs in each instance. After the entry of the judgment Soper paid the full amount of the one entered against him and the same was thereupon satisfied of record. Subsequently the plaintiff assigned the judgment against Barry to the respondent Foy, who had an execution issued thereon to the sheriff of Schenectady county pursuant to section 1391 of the Code of Civil Procedure directing him to garnishee Barry's salary, an execution having been previously issued against his property and returned unsatisfied. The sheriff collected $25 under the execution, when Barry made a motion to restrain him from making further collections, to compel him to return what he had theretofore collected, and to satisfy the judgment of record. The motion was denied and Barry appeals. Barry and Soper were joint tort feasors and as such were App. Div.] First Department, December, 1913. jointly and severally liable for the wrong to the plaintiff. They could have been sued either jointly or severally, but if a recovery had been had in each case the satisfaction of one would have satisfied the other. (Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58; Knapp v. Roche, 94 id. 329; Barrett v. Third Avenue R. R. Co., 45 id. 628.) This rule is predicated upon the fact that no matter how numerous may be the wrongdoers, the wrongful act and its consequences are indivisible, for which a single payment - no matter by which one of the wrongdoers made — is a full and complete satisfaction as to all. (Walsh v. N. Y. C. & H. R. R. R. Co., supra.) The jury, therefore, could not legally apportion, as between Barry and Soper, the amount which each should pay. The verdict should have been for such an amount as would compensate the plaintiff for the wrong inflicted by both defendants, upon which judgment could then have been entered against both. The verdict here rendered was improper in form and the jury should have been so told and sent back with proper instructions for one amount against both defendants. Plaintiff, however, was satisfied with the form of the verdict and entered a judgment against each defendant, as above stated, and is not now in a position to complain that the satisfaction of one judgment has satisfied the other. A case directly in point is Breslin v. Peck (38 Hun, 623). There, action was brought to recover damages against two defendants for a libel. The jury rendered a verdict against one for $1,100 and against the other for $400. The judgment entered upon the $400 verdict was paid and then the other defendant moved to have the judgment against him satisfied. The motion was granted and on appeal the same was affirmed. This authority, so far as I have been able to discover, has never been questioned; on the contrary, it has been cited with approval in Parks v. City of New York (111 App. Div. 836; affd., 187 N. Y. 555); Brogan v. Hanan (55 App. Div. 92); Palmer v. N. Y. News Pub. Co. (31 id. 210), and Conde v. Hall (92 Hun, 335). The appellant also asks that the sheriff not only be restrained from making further collections upon the judgment against him, but that he be directed to repay what has already been First Department, December, 1913. [Vol. 159. collected. When the judgment is satisfied of record and due notice of that fact given to the sheriff, he can make no further collection by virtue of the execution issued thereon. Upon the papers set out in this record the court could not direct the sheriff to repay to the appellant the amount collected from him since it does not appear but what the amount collected has been turned over to the judgment creditor. The collection was made in pursuance of a valid execution which protected the sheriff not only in making the levy, but in turning over, if he did so, the amount collected to the judgment creditor. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, in so far as it asks that the judgment be satisfied of record. INGRAHAM, P. J., LAUGHLIN, CLARKE and SCOTT, concurred. JJ., Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion, with ten dollars costs. Order to be settled on notice. ADELINE PLAUT EHRMAN, as Executrix, etc., of WALTER J. First Department, December 31, 1913. Executor and administrator-action by executrix upon contract made by her must be brought by her individually - appeal - amendment of title of action. An action at law upon a contract made by a person since deceased must be brought in the name of his executor or administrator, but an action brought upon a contract made by the executor or administrator must be brought by him individually. Hence, an executrix cannot maintain an action in her representative capacity to recover the purchase price of goods, wares and merchandise belonging to her testator at the time of his death, but sold by her after her appointment. Where in such an action the defendant has, at the first opportunity, challenged the right of the plaintiff to maintain the action in her representative capacity, the title of the action should not be amended on appeal by striking out the words " as executrix," etc. INGRAHAM, P. J., dissented. App. Div.] First Department, December, 1913. APPEAL by the defendant, Al Bassett, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of September, 1913, granting plaintiff's motion for judgment on the pleadings. Herman Druck, for the appellant. Leo Levy, for the respondent. MCLAUGHLIN, J.: Action by an executrix to recover the purchase price of goods, wares and merchandise alleged to have been sold by her as such to the defendant. The complaint alleged, in substance, that plaintiff's testator died on January 13, 1913, leaving a last will and testament, which was admitted to probate and letters testamentary issued to her; that at various times between March 5 and May 9, 1913, as such executrix, she sold and delivered to the defendant, at his special instance and request, certain goods, wares and merchandise, upon which, at the agreed price, there remained due and payable $722.50. The defendant demurred to the complaint upon the grounds: (a) That the plaintiff had no legal capacity to sue, and (b) that the complaint did not state facts sufficient to constitute a cause of action. Thereafter the plaintiff, upon the complaint and demurrer, moved for judgment on the pleadings. The motion was granted and defendant appeals. The question presented by the appeal is whether plaintiff, as executrix, can maintain an action to recover the purchase price of goods, wares and merchandise which belonged to her testator at the time of his death, and which, subsequent to her appointment, she sold. I am of the opinion that the action cannot be maintained, and that the demurrer to the complaint, for that reason, should have been sustained. The rule, as I understand it, is that an action at law upon a contract made by the deceased must be brought in the name of his executor or administrator, but an App. Div.- VOL. CLIX. 48 First Department, December, 1913. [Vol. 159. action brought upon a contract made by the executor or administrator must be brought by him individually. (O'Brien v. Jackson, 167 N. Y. 31; Parker v. Day, 155 id. 383; Matter of Van Slooten v. Dodge, 145 id. 327; Thompson v. Whitmarsh, 100 id. 35; Austin v. Munro, 47 id. 360; Ferrin v. Myrick, 41 id. 315.) Thus, it was held in Thompson v. Whitmarsh (supra) that an action by an executrix in her individual capacity to recover the purchase price of personal property which came into her possession as executrix was properly brought. Judge FINCH, who delivered the opinion of the court, commenting upon this phase of the case, said: "Where an executor or administrator sells on credit the property of the estate and sues to recover the debt, he, as an individual, is the real party in interest, for the contract is made with him, and the promise to pay runs to him, and he is personally accountable for the assets which he has sold. For the same reason the debt does not belong to him in his representative capacity within the intent and meaning of the section of the Code referred to.” In O'Brien v. Jackson (supra) action was brought against defendants as executors of and trustees under a will to recover a balance due on a contract for repairs made to a building which belonged to the testator at the time of his death and which was devised to the defendants in trust. The complaint alleged that the defendants were the executors and trustees under the will and were authorized to make the agreement sued upon. This allegation was put in issue by the answer. Upon the trial the defendants moved to dismiss the complaint on the ground that it did not state a cause of action against them in their representative capacity. The motion was denied and plaintiff had a recovery which was affirmed on appeal (42 App. Div. 171) but reversed by the Court of Appeals, it holding that the motion should have been granted. In reversing the judgment, CULLEN, J., who delivered the opinion of the court, said: "The general rule is well settled in this State that executors or trustees cannot, by their executory contracts, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, bind the estate and thus |