"The true construction of the contract is that the fact of the liability of the underwriters, when a claim is made under this policy, and the amount to be paid by each one, if there is a liability, is to be ascertained by this action. It is of the same nature as the ordinary contract in a policy of insurance providing for an arbitration to be had in case of a disagreement between the parties. * Within the rule laid down in the case of In

re New York, L. & W. R. Co. [98 N. Y. 450], the contract would authorize the court to fix the total sum to be paid, and apportion it among the principals who are parties to the contract, and who have in it agreed that that very thing might be done."

The case of Compton v. Beecher, 17 App. Div. 38, 44 N. Y. Supp. 887, was an action upon a policy similar to the one in question. In the policy in that case it was provided:

"No action shall be brought by the assured to enforce the provisions of this policy except against the attorneys in fact, as representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility hereunder."

It was contended in that case that the action could not be maintained against the attorneys in fact. It was held, following Leiter v. Beecher, supra, that an action to recover the whole amount of the loss could be maintained by the insured; and that a judgment requiring that the amount of the loss should be paid,-First, out of the unexpended premiums on hand; second, if not paid from that fund, out of the fund established by the deposit by each of the underwriters; and, in case it was not paid out of either fund, the amount should be paid by the 16 underwriters, at $187.51 each, was proper.

Under a policy of this character, therefore, it is settled that the insured may maintain an action against the attorney in fact for the underwriters to recover the full amount of the loss sustained under the policy. In such an action, the insured can have the amount of his loss ascertained and determined, and the amount of the individual liability of the underwriters (in case the judgment could not be satisfied out of the fund provided for by the contract of insurance) settled; and, in the event of the plaintiff failing to collect the amount due to him from the attorney in fact, in an action to enforce the liability of the individual underwriters, they would be bound by the judgment so far as it determined the amount of the loss and the amount for which each individual underwriter was liable. And it necessarily follows that in such an action, commenced against the attorney in fact, as representing all the underwriters, the recovery of a judgment, and the satisfaction thereof by the attorney in fact, would be a bar to any action commenced by the assured against the underwriters upon their individual liability. It is too well settled to be questioned that where a party has one distinct cause of action, and recovers upon it, that judgment is a bar to any subsequent enforcement of that cause of action, although it subsequently appears that the amount of his liability is much less than he would have been entitled to. As was said by Judge Andrews in the case of Perry v. Dickerson, 85 N. Y. 345:

"In order to establish an identity between the causes of action in the two suits, it is not necessary that the claim made in the first action embraced the same items sought to be recovered in the second. It is sufficient, to bring the second within the estoppel of the former judgment, that the cause of

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action in the former suit was the same, and that the damages or rights claimed in the second suit were items or parts of the same single cause of action upon which the first action was founded. The law to prevent vexatious or oppressive litigation forbids the splitting up of one single or entire cause of action into parts, and the bringing of separate actions for each; and neither in this way, nor by withholding proof of particular items on the trial, or by formally withdrawing them from the consideration of the jury, can the effect of the judgment, as a complete adjudication of the entire cause of action, be prevented. There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be, and but one action for a single breach of contract."

See, also, Secor v. Sturgis, 16 N. Y. 548; Samuel v. Casualty Co., 76 Hun, 308, 27 N. Y. Supp. 741.

It appears that the plaintiff, having a claim under this policy for the loss, commenced an action against Daniel Woodcock, as attorney of the underwriters of the Insurers' Alliance. He alleged in his complaint the issuing of the policy of insurance here sued on; that the underwriters named in such policy of insurance had appointed the defendant, Daniel Woodcock, their attorney in fact for all purposes connected with or relating to the carrying on of their business as insurers as aforesaid, and for all other purposes set forth in the policy; that the policy contained a provision that no action should be brought thereunder except as against their attorney in fact, who is the said Daniel Woodcock; that it was, in and by the said policy of insurance, represented that it was secured by deposits in certain banks of the trust company, but that said representations were false and fraudulent, and that at the time of the issuing of said policy there was no fund deposited in said banks (the Mechanics' National Bank, or Manhattan Safe-Deposit Company of New York City, or Hamilton Trust Company of Brooklyn) to secure the said policy. Wherefore the plaintiff demanded judgment against the defendant for a sum of

money.

The plaintiff had no cause of action against Daniel Woodcock, as attorney in fact of the underwriters of the Insurers' Alliance to recover for any amount that he was liable for individually. Under this policy of insurance, as alleged in the complaint, the action must, in the first instance, be brought against the attorney in fact of all the underwriters. At any rate, Woodcock, as such attorney in fact, was not responsible to the plaintiff for any individual obligation as an underwriter. Whatever liability there was upon his individual obligation as an underwriter must be enforced against him individually; and, when he was sued as attorney in fact of the underwriters, the only cause of action that existed against him in that capacity was that upon the contract of insurance, which provided for an action to recover for the loss sustained by the insured, the judgment to be entered in such an action to be satisfied out of a specific fund, specified in the policy of insurance.

It is not necessary to determine whether or not this provision that no action could be maintained against the individual underwriters would be rendered inoperative by reason of the failure of the underwriters to provide the fund specified in the policy of insurance from which the amount of the loss was, in the first instance, to be payable. The plaintiff sued the general manager as agent of the underwriters,

and alleged in his complaint, not that there was no fund at the time of the commencement of the action from which the policy could be paid, but that when the policy was issued there was no such fund deposited. The plaintiff, therefore, having the right and having agreed to sue this general manager, as agent of all the underwriters, before enforcing any individual liability of the underwriters, commenced this action against the general manager as attorney of the underwriters of the Insurers' Alliance, alleging the facts necessary to sustain his cause of action for the whole loss. He entered judgment in the action for the amount that he claimed he was entitled to, and that judgment was satisfied. We must hold, applying the principle before cited, that the satisfaction of that judgment satisfied the right of action in favor of this plaintiff against these underwriters upon the policy set forth in the complaint, and that no liability existed subsequent to the satisfaction of that judgment against any of the individual underwriters.

It follows that the exceptions must be sustained, and a new trial ordered, with costs to the appellant to abide the event. All concur.

137 App. Div. 355.)

CHAPMAN v. OGDEN et al. (two cases).

(Supreme Court, Appellate Division, First Department. February 10, 1899.) 1. BILLS AND NOTES-INDORSERS-CONSIDERATION.

A firm was indebted to plaintiff both on contract and on a debt arising in tort, in satisfaction of which plaintiff agreed to accept indorsed notes. At the firm's request the indorsements were made, notes delivered, and the indebtedness canceled. Held, that there was a valuable consideration for the indorsements, since plaintiff, on the strength of them, released the firm from remedies which he had for the collection of his claim. 2. SAME-NOTIce of Protest.

In an action on a note, it is immaterial whether or not a notice of protest was mailed, where defendant admits in writing the receipt of such notice.

Appeal from trial term, New York county.

Consolidated actions by Caroline C. Chapman against Josephine Ogden and others, and against John R. Ogden, Jr. From a judgment for plaintiff, defendants appeal. Affirmed.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

W. L. Snyder, for appellants.

G. M. Bayne, for respondent.

VAN BRUNT, P. J. These actions were originally brought as one action upon two promissory notes made by John R. Ogden and indorsed by the other defendants. John R. Ogden answered separately, and John R. Ogden, Jr., answered on behalf of the other defendants Ogden. The plaintiff's counsel having contended that each defendant should have verified the answer, the action was severed as to the defendants Josephine E. Ogden and Charlotte S. Ogden,

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and they were declared to be in default. This default was opened, and they were subsequently allowed to answer, whereupon each defendant filed a separate answer, and all the appellants filed affidavits denying the receipt of notice of protest. The issues in both actions presenting precisely the same question, the cases were tried together, and the same testimony and proceedings were made applicable to each by stipulation. The evidence showed that in 1890 and 1891 the firm of Morehead & Ogden was engaged in the brokerage business in the city of New York, and was composed of Franklin C. Morehead and John R. Ogden. The firm was indebted to the plaintiff for moneys deposited by her with the firm in the sum of $2,271.20, and in addition she had a claim against them for $2,358.35 for the conversion of two bonds belonging to her which she had left with them. Demand being made upon said firm for a return of the bonds and for payment of the open account, it was finally arranged that the plaintiff should accept in full settlement of her claim against Morehead & Ogden the two notes mentioned in the complaint,—one for $2,271.20, the amount of the open account, and the other for $2,358.35, the value of the bonds; said notes to be payable on demand, to draw interest from date, and to be indorsed by Josephine E. Ogden, John R. Ogden, Jr., and Charlotte S. Ogden. The said notes were delivered and accepted in full settlement of the claims of the plaintiff against Morehead & Ogden. Accompanying the notes was an agreement under seal of Josephine E. Ogden, by which she admitted having indorsed the notes freely and voluntarily and for a valuable consideration, and by which she undertook and agreed to pay the notes, waiving any defenses, legal or equitable, for any cause, that she might have to any action against her for the recovery of both or either of said notes, or any amount unpaid thereof. The notes and agreement were dated August 28, 1891. Subsequently the defendants Josephine E. Ogden, John R. Ogden, Jr., and Charlotte S. Ogden executed an instrument bearing date the 30th of October, 1891, whereby, among other things, in consideration of the plaintiff not bringing. suit before the 1st of November, 1891, and for other valuable considerations, they admitted that said notes were duly and in due time presented for payment, but were not paid, and that said notes were in due time protested; and each of them admitted the receipt of due and timely notice of nonpayment of said notes, and of the protest of said notes for nonpayment. Then followed a reiteration of the statement as to indorsement for value, and the waiver of all defenses, legal or equitable. This paper, however, was not delivered until the 4th of November, 1891. Evidence of protest by the notary was also offered, who swore to the mailing of the notice of protest; but upon crossexamination it would appear that he knew nothing about it, and had no present recollection as to whether he mailed the notices or not. Upon this state of facts the defendants' counsel asked to go to the jury upon all the issues, but a verdict was directed in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

It is undoubtedly true, as claimed by the counsel for the appellants, that, this controversy being between the original parties to the instru

ments, any defenses which the indorsers might have to the notes would be available; but it seems to be claimed upon the part of the appellants that, because the indorsers received no consideration, therefore no liability exists upon the contract of indorsement, notwithstanding that the notes may have been indorsed for the accommodation of the maker, and appropriated by the maker to the very purpose for which they were intended, namely, the payment of his indebtedness. In this we think the learned counsel is in error. It is difficult to see what accommodation there would be in an instrument, unless it could be used by the person for whom the same was made. In the case at bar the firm of Morehead & Ogden were indebted to the plaintiff upon a contractual indebtedness, and also upon an indebtedness arising in tort. The plaintiff agreed to accept these indorsed notes in payment of both of these claims, and at the request of the maker of the notes the indorsements were made, the notes delivered, and the indebtedness canceled. It is undoubtedly true that there is no evidence in the case that the payee of the note agreed to forbear for any length of time the collection of her debt from the firm of Morehead & Ogden. But the evidence is beyond dispute that by taking these notes she released the firm from remedies which she had against them for the collection of her claim; and the indebtedness of Morehead & Ogden became merely that of surety, where they had been principals, and was simply of a contractual nature, whereas a portion of it had before been of a different character, for the enforcement of which she had remedies which by the acceptance of the notes she relinquished. It is true, as claimed by the counsel for the appellants, that, until notes come into the hands of a bona fide holder for value, the defense of want of consideration is a good defense, and available to the indorser against the plaintiff, who parted with nothing on the strength of the indorsement. But it seems to us that the facts above stated are lost sight of, namely, that the plaintiff upon the receipt of these notes did give up rights, and was a holder for a valuable consideration. Insurance Co. v. Church, 81 N. Y. 218; Fleischmann v. Stern, 90 N. Y. 110; Mayer v. Heidelbach, 123 N. Y. 332, 25 N. E. 416; In re Utica Nat. Brewing Co., 154 N. Y. 272, 48 N. E. 521. Upon this branch of the case, we do not think that the instrument of October 30th had any probative force. It was not delivered until after the time of forbearance mentioned therein had elapsed, and consequently there could have been no forbearance resulting from the execution of that paper.

It is urged that in any event the defendants were entitled to go to the jury upon the question whether the notices of protest had been mailed. This would have been so, had the plaintiff's case depended upon the testimony of the notary. But an unqualified and uncontradicted admission of all the defendants that they received notice of protest was contained in the instrument of October 30th; and, although that paper may have no value as an agreement, the admissions contained therein, which have not been qualified or contradicted by any evidence, must be taken into consideration in determining the issue to which they relate. In this paper the defendant indorsers admit the receipt of notice of protest. They have nowhere denied this fact