p. 199David F. Murphy, Appellant, v. The City of Yonkers, Respondent.Headnote
Contract — right of municipality to offset expenses of trial and appeal from judgment recovered by reason of contractor’s negligence.Where a municipal contractor has been asked by the city to defend an action to recover for personal injuries caused by his negligence, and has refused to do so, and has acquiesced in an appeal from the judgment by the city to the extent of expressing a hope that the city would win, the city when sued by the contractor for a balance due under the contract may oSset not only the amount of the judgment recovered against it, but also the expenses of the appeal.
Appeal by the plaintiff, David F. Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1895, upon the verdict of a jury, and also (as stated in the notice of appeal) from an order entered in said clerk’s offioe denying a motion for a new trial made upon the minutes.
John F. Brennan, for the appellant.
Charles E. Otis, for the respondent.
The action is brought to recover a balance alleged to be due under a contract for construction work in one of the public streets of the city of Yonkers. It appears that by reason of negligence on the part of the contractor in the performance of the work, an individual was injured who recovered judgment for damages against the city which were offset in this action; and the only question presented on the appeal is whether of not the city was entitled to include in the offset the expenses incurred in appeals taken to the"1 Appellate Division and the Court of Appeals from the judgment for damages.
When the suit was brought' against the city, the contractor was notified of the fact and asked to defend. He refused to defend the suit or to participate in the defense.- When judgment was recov
p. 200ered and appeals taken, as has been stated, he was duly notified of the fact, and not only made no objection but acquiesced in the appeals to the extent of expressing the hope that the city would win. There being no dispute about the fact and no suggestion of bad faith existing, 1 think the learned trial justice was correct in charging the jury that the defendant was entitled to reimbursement for the money legitimately expended on the appeals, as well as for the judgment originally rendered.
The judgment and order should be affirmed, with costs.
Present—Hirschberg, P. J., Woodward, Jenks, Gaynor and . Miller, JJ.
Judgment and order unanimously affirmed, with costs.