#### Frank Foy, Respondent, *v.*James Barry, Appellant, Impleaded with Thomas Barry and William Soper, Defendants.

First Department,

December 31, 1913.

Malicious abuse of legal process — form of verdict in action against joint tort feasors — when sheriff not bound to repay moneys collected from one tort feasor after satisfaction of judgment against the other.

In an action for a malicious abuse of legal process brought against two defendants as joint tort feasors, a verdict should be rendered for an amount sufficient to compensate the plaintiff for the wrong inflicted and judgment entered thereon against both defendants.

Although a verdict in such an action rendered against each defendant for specific amounts is improper in form, a plaintiff who has entered judgment thereon against each defendant is not in a position to complain that the satisfaction of one judgment has satisfied the other.

The court has no authority to direct the sheriff to return to one of the defendants the amount collected from him after satisfaction of judgment against the other where it does not appear but what such amount has been turned over to the judgment creditor.

Appeal by the defendant, James Barry, from an order of the Supreme Court, made at the New York Special Term and *750entered 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 *751jointly 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 *752collected. 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, JJ., concurred.

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.