Whaples v. Fahys — 109 A.D. 594

Majority

p. 594

James R. Whaples, Respondent, v. Joseph Fahys and Alexander H. Sharp, Appellants, Impleaded with Mary Jane Blythe and Another, Defendants.

First Department,

December, 1905.

Headnote

Judgment—when liability is several recovery of whole amount against some defendants only is improper-^- evidence insufficient to establish joint liability. '"

"When the liability of defendants' for commissions'on the sale of real estate is several and not joint, a judgment against some of the defendants only for the full amount due should bereversed*

p. 595

Evidence by plaintiff of declarations by one of the defendants that the others would do what he did and that one defendant handed part of the commissions paid to another, saying “ Credit that to the "West Hoboken Syndicate,” there being no evidence that the defendants composed said syndicate or were joint owners of the lands, is insufficient to prove the joint liability of such defendants.

Declarations of one defendant do not bind the others, in the absence of proof that they were engaged in a. joint enterprise.

Appeal by the defendants, Joseph Fahys and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 17th day of February, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of February, 1905, denying the said defendants’ motion for a new trial made upon the minutes.

James McBrien, for the appellants.

Arthur J. Westermayr, for the respondent.

The action is for commissions for the sale of real estate, and on a former appeal ( 87 App. Div. 518 ) this court held'that the contract between the plaintiff and the defendants was a several one and that the defendants were not jointly liable to the plaintiff. Only the present appellants were personally served, the others being nonresidents and served only by publication and not appearing. Judgment for the full amount of commissions owing by all defendants was obtained both on the former and subsequent trials against the two defendants personally served.

The evidence adduced on the second trial does not differ in any material respect from" that appearing on the first trial. The only new evidence is that of the plaintiff, who testifies that at a time when all the defendants or their representatives were present and the first installment of $200 on the purchase of the property was paid, the defendant Fahys handed the money to one of the defendants and said: “ Credit that to the West Hoboken Syndicate.’? There is no proof as to who composed this syndicate or that it was-composed of these defendants, or that there was any joint ownership or joint venture by these defendants with respect to the real

p. 596

estate in question. Plaintiff further testified to declarations of Fahys that all'the others would do whatever he did, and 'that a representative of defendant Blythe .said that whatever Fahys would do all the others would do. ,

If these declarations were material they would -only he evidence against the party making them, for the declarations of one defends ant do not bind the other defendants in the absence of proof of assent or proof that all were engaged, in a joint enterprise.

The complaint alleges joint liability and the second trial as well as the first proceeded upon that theory. Ho facts were proven which met the objection to plaintiff’s recovery pointed out oil the. former appeal; and the judgment and order must be reversed and a new trial granted, with costs to appellants to abide the event.

. O’Brien, P. J., Patterson, McLaughlin and Clarke, . JJ., concurred.

Judgment and order reversed, new trial ordered) costs to appellant^ to abide event. •