Opinion
May 10, 1933.
Appeal from Supreme Court of Erie County.
Charles S. Desmond, for the appellant.
Arthur E. Otten, for the appellant, respondent, Cowles Towing Company, Inc.
Frederic R. Twelvetrees, for the respondent.
The findings of the learned trial court (1) that plaintiff compromised and settled the claim of defendant Cowles Towing Company, Inc., against plaintiff at less than the full loss, and (2) that said defendant released defendant Fred T. Ley Co., Inc., from all liability arising from its negligence, are not against the weight of the evidence. ( McCormick v. Shippy, 119 Fed. 226; 124 id. 48, 51; Sante Fe Railway v. Grant Bros. Construction Co., 228 U.S. 177, 192.) These findings, if correct, have deprived plaintiff of all its rights through subrogation, it not having ascertained the facts as to the release before adjusting the loss and it making no claim by pleading, by requests to find or in its brief or otherwise that payment by it was induced by fraud on the part of the defendant Cowles Towing Company, Inc. ( Smith v. Glens Falls Ins. Co., 62 N.Y. 85; Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 id. 435, 444; National Life Ins. Co. v. Minch, 53 id. 144, 151.) We have the added principle of law that part payment or compromise does not give the right to subrogation in part. ( Hanlon v. Union Bank of Medina, 247 N.Y. 389; McGrath v. Carnegie Trust Co., 221 id. 92, 95; New York Ins. Co. v. Roulet, 24 Wend. 505; The Bodo, 156 Fed. 980; Sheldon Subrogation [2d ed.], § 127.)
Therefore, plaintiff cannot recover against either defendant; nor can defendant Cowles Towing Company, Inc., recover against the other defendant. The judgment should be affirmed, with costs to both defendants against plaintiff and to defendant Fred T. Ley Co., Inc., against defendant Cowles Towing Company, Inc.
All concur.
Judgment affirmed, with costs.