Supreme Court, January, 1918. [Vol. 102. tion obtained by the proposed examination the judgment creditor should decide to procure the appointment of a receiver of the property of the legatee, such receiver would, of course, simply stand in the shoes of the legatee and any proceedings taken by the receiver would have to be under the statute relating to the Surrogate's Court and could not by any possibility interfere with the practice prescribed for that court or give the judgment creditor any right that was not intended for her under that statute. The second case cited in support of the motion (Matter of First Nat. Bank v. Gow, supra) is not so fundamentally distinguishable from the present case, but is, I think, nevertheless sufficiently distinguishable. The third party sought to be examined by the judgment creditor in that case was a former partner of the judgment debtor, and the assignee of the judgment debtor's interest in the copartnership, under the provisions of which assignment the judgment debtor was to be fully restored to his rights as a member of the firm as soon as the debts of the firm and the judgment debtor's individual debts had been paid from the profits of the business. The court further held in that case that there was no necessity for the third party order since the judgment debtor had already been fully examined before a referee with respect to the copartnership dissolution agreement and the assignment of his interest in the firm and in its property to the third party, who had also been subpoenaed to appear as a witness and be examined before the referee and to produce all papers relating to the agreements between him and the judgment debtor. The fact that in the present case the judgment creditor is not seeking by a superfluous proceeding information that can be equally well obtained in another proceeding already instituted is enough in my judgment, even without the other distinguishing Misc.] Supreme Court, January, 1918. facts between the two cases, to distinguish that case as a controlling authority upon the present application. The motion to vacate is therefore denied, with ten dollars costs. Motion denied, with costs. THE GERMAN AMERICAN COFFEE Co., Plaintiff, v. JOHN O'NEIL, Defendant. (Supreme Court, New York Special Term, January, 1918.) Accounting equity pleading actions release corporations executors and administrators—what operates as a discharge and satisfaction of claim against defendant as surviving joint tort feasor. Where in an action, one of a series against various directors of the plaintiff, for an accounting in equity for misconduct while each of the several defendants had been such directors, it appeared that during the pendency of a similar action against a non-resident director he died, and, upon a holding of this court that his administrators could not be brought before it unless they were duly served with a supplemental complaint, plaintiff in that action compromised its claim against the administrators in consideration of a certain sum and executed a general release of all claims against the decedent's estate. Held, that the circumstances under which the release was executed clearly indicated that there was no intention to release the defendant in the present action and that a defense pleaded in his supplemental answer to the effect that the release given to the non-resident director's administrators operated as a discharge and satisfaction of plaintiff's claim against defendant herein as a surviving joint tort feasor was demurrable. ACTION in equity for an accounting. Rounds, Hatch, Dlliingham & Debevoise, for plaintiff. Harper & Clements (George W. Harper, of counsel), for defendant. Supreme Court, January, 1918. [Vol. 102. GREENBAUM, J. This action is one of a series of actions brought against various directors of the plaintiff corporation for an accounting in equity for misconduct covering the periods when each of them had been directors. A similar action was brought against one William F. Johnston, a resident of Iowa, also a director, and during its pendency he died, and administrators of his estate were appointed by the Iowa court. It was held by this court that the foreign administrators could not be brought before it except by service upon them of a supplemental summons in this state. Under these circumstances the plaintiff compromised its claim against the administrators in consideration of the payment of $10,000 and executed a general release of all claims against the Johnston estate. The defendant O'Neil in his supplementary answer interposed several defenses, the effect of which was that plaintiff's release to the Johnston estate operated as a discharge and satisfaction of plaintiff's claim against him as a surviving tort feasor. The release in question made no mention of the plaintiff's claim against the surviving tort feasors. In considering the effect of the release given by the plaintiff to the administrators of the Johnston estate it may be elucidating to review certain recognized rules at common law applicable to the question involved. It is also important to keep clearly in mind the fact that we are here dealing with a case where the release was executed not to a living joint tort feasor, but to his legal representatives. The English modern doctrine seems to be that "as between joint debtors and joint tort feasors, a release given to one releases all." Gilbert v. Finch, 173 N. Y. 455, 463. Where, however, the intention is clear that the release was not to discharge the liability of other joint debtors or joint tort feasors the release is construed as a covenant not to sue the party Misc.] Supreme Court, January, 1918. released, thus preserving the right to enforce the original claim against the other joint debtor or joint tort feasor. Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58, 63, 64. The English rule is practically the New York rule. Logically, the consequences flowing from a joint liability, whether arising under contract or tort, should be precisely the same since the joint character of the obligation is the foundation of the rule. At common law death destroyed a claim against a tort feasor, but one arising under contract survived. 1 Cyc. 49, 50. At common law if one of two or more joint obligors died his estate was discharged. County of Erie v. Baltz, 125 N. Y. 144, 148. It is not here disputed that the acts charged against the defendant arose ex delicto and that the deceased Johnston and the defendant must be regarded as joint tort feasors, jointly and severally liable to the plaintiff. German-American Coffee Co. v. Diehl, 86 Misc. Rep. 546, 551; affd., 168 App. Div. 913. How have the statutes of this state affected the liabilities of a tort feasor in case of his death? And what is the effect of these statutes as between joint tort feasors in the event of the death of one of them? Section 120 of the Decedent Estate Law (Laws of 1909, chap. 18), which is a re-enactment of the same provision found in part 3 of the original Revised Statutes enacted in 1828 (2 R. S. [1st ed.] chap. 8, tit. 3, p. 44), changed the common law as follows: "Section 120. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured or after his death, by his executors or administrators against such wrongdoer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. This section shall not extend to an Supreme Court, January, 1918. [Vol. 102. action for personal injuries, as such action is defined in section thirty-three hundred and forty-three of the code of civil procedure; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death." This section was construed in Lane v. Fenn, 76 Misc. Rep. 48, the court holding that an executor of a tort feasor was not entitled to an order of severance as matter of right in an action pending against the testator at the time of his death. The opinion in this case is contrary to the views expressed in Union Bank v. Mott, 27 N. Y. 633, and Mulligan v. O'Brien, 119 App. Div. 355. There is no question of severance of action involved in the instant case. It presents the question whether the administrators of the deceased Johnston, a joint tort feasor, are to be regarded as jointly liable with the surviving tort feasors, or whether the death of Johnston made them only severally liable. The conclusion in the Fenn Case, supra, was reached by construing section 758 of the Code of Civil Procedure as applicable, because of the provision in section 120 of the Decedent Estate Law that the action therein mentioned may be brought "in the same manner and with the like effect in all respects as actions founded on contracts." In Seligman v. Friedlander, 199 N. Y. 376, the court in its opinion said: "The legislature, of course, has power to change both rules of liability and rules of procedure. Courts, however, presume that a radical change in the common law by statute, especially when the change affects title to property or rules of liability, will be expressed with the clearness which the importance of the subject demands, or so that its meaning is unmistakable. In the effort to discover the exact intention of a statute claimed to effect such a change, the history of legislation upon the subject will be carefully examined and all the statutes |