#### Patrick Henry Cuff, Respondent, *v.*Arnold B. Heine, Appellant.

Appeal from a judgment in favor of plaintiff entered upon a verdict.

Menken Bros., for respondent.

Stem *&*Bushmore (W. Benton Crisp, of counsel), for appellant.

Conlan, J.

This appeal is from a judgment for the sum of $324.84, in favor of the plaintiff, entered upon the direction of a verdict by the court at the Trial Term.

The action was brought to recover the sum of $200.50, with interest, alleged to be due from the defendant as his proportion of liability, under a judgment recovered against his attorney, in fact, for the sum of $2,SOY.12.

The several amounts of the claim recovered on the judgment herein are precisely given, and it is thought they are an interesting feature in the progress of this litigation.

The complaint alleges that, in an action brought in the Supreme Court by one Bichard Brenack against Daniel Woodcock, who was the attorney in fact of the defendant herein, and several others, con*860stituting what was known as the Insurer’s Alliance, a judgment had been recovered against said Woodcock, as such attorney in fact, for the sum of $2,807.12, which judgment, it is claimed, bound this defendant in the present action, and upon which he was liable1 for his proportionate share, or one-fourteenth thereof, being the sum of $200.50.

The original action was founded on a so-called *“*Lloyds Insurance ” policy, and by the terms of the policy recovery was to be against the attorney in fact, who was designated in the policy as Daniel Woodcock.

This policy was for the sum of $2,500, and the former action was brought to recover the full sum or amount of the policy.

The evidence adduced, upon the trial, disclosed the fact, that pending the litigation of the former action, and before the entry of the judgment thereon, in default of an answer, the sum of $1,050 was paid on account of the amount sought to be recovered, and yet, strange to say, no credit was given or allowed for that amount, or for any other amount.

But, regardless of that payment, judgment was entered thereon for the full amount claimed, with interest and costs to the amount, in the aggregate, of $2,807.12, nor was any credit allowed thereafter upon said judgment, but the judgment for the full amount stated was subsequently assigned to the plaintiff in the present action.

If the plaintiff, therefore, be permitted to recover in the present action a sum far in excess of the defendant’s liability, because of the payment of the sum of $1,050, without a credit or allowance therefor, it is manifest that great injustice will be inflicted upon him and the other contributors to the fund payable under the policy.

We think that even and exact justice to all parties requires that the sum of $1,050, so paid on account of the amount sought to be recovered in the first action, should be apportioned among all the persons liable under the policy, and that the plaintiff’s recovery herein should be limited to the exact amount due by the defendant, after the allowance of the credit to which, by all rules of law and equity, he is entitled, and this is a matter of easy calculation, and the judgment of the trial term should be modified accordingly, and as thus modified, affirmed, with costs.

Fitzsimons, Ch. J., concurs.

Judgment modified, and thus modified, affirmed, with costs.