In so far as the decision recommends affirmance of the order striking out the first and second defenses I concur. Leave to plead over so that it may be alleged that the first judgment fixed and limited the amount of the insurer’s liability should not be granted. In my opinion the mere recovery of the first judgment does not bar a suit against the defendant in the second action nor reduce the amount of the recovery therein as long as the first judgment remains unsatisfied. (Debtor and Creditor Law, § 232. See, also, Civ. Prac. Act, § 112-a, which, however, postdates the cause of action sued on.) The actual satisfaction of either judgment will discharge the other. (Collins v. Smith, 255 App. Div. 665.)
The appellant is the insurer of the liabilities of both defendants. I can find no more warrant in law for holding that the dollar amount of its liability was fixed and limited by the first judgment than was such liability fixed and limited by the second judgment.
Johnston, J., concurs with Adel, J.
Order, in so far as appealed from, affirmed, without costs, with leave to appellant to plead over within ten days from the entry of the order hereon, if so advised.