Schultz v. United States Fidelity & Guaranty Co.

The action is on an undertaking on appeal executed by the defendant in an action by this plaintiff against the Greenwood Cemetery and Smith for a false arrest and a malicious prosecution. In that action the said defendants answered separately by separate attorneys, and judgment was recovered for $4,000 against both defendants, who thereupon appealed to this court and gave the undertaking in question. The judgment was affirmed unanimously by us. The defendant the Greenwood Cemetery moved for leave to appeal to the Court of Appeals, which was denied; but a judge of that court allowed that defendant to appeal, and such appeal was taken. Thereafter the judgment of the Supreme Court appealed from was reversed, and a new. tidal was granted. The plaintiff has recovered in this action upon the theory that the judgment as against Smith, who did not appeal from the judgment entered upon an affirmance and who was not a party to the appeal therefrom, remains affirmed, and so there has been a breach of the, said undertaking.

I think that this judgment must be affirmed. If in the action against the two joint tort-feasors the liability was several, as was said by Cullen, C. J., in St. John v. Andrews Institute, 192 N. Y. 383 , 85 N. E. 143 :

“Though in form a single judgment may be entered against them all, the judgment may be reversed on appeal as to one defendant and affirmed as to the other. Hubbell v. Meigs, 50 N. Y. 480 . See McIntosh v. Ensign, 28 N. Y. 169 ; Bullis v. Montgomery, 50 N. Y. 352 .”

See, too, Geraud v. Stagg, 10 How. Prac. 369, cited in St. John v. Andrews Institute, supra; Wilson v. Moore, 26 N. J. Law, 458 .

In the last case cited, the court, per Haines, J., say:

“And in an action of tort against several, where one defendant may be found guilty, and another acquitted, the judgment cannot, in the. same sense, be said to be entire. One may have judgment in his favor, and another against him. And if the defendant in such action appeal, and is permitted to prosecute alone, it is sufficient for the appellee to make out a cause of action against him. If he fail, the judgment, as to that defendant, is rendered against the plaintiff; but the judgment against the others remains in full force. The party, by omitting to appeal, or to prosecute the appeal taken by a codefendant, submits to the judgment, and is bound by it. He is not affected by the proceedings in the appellate court. Further than the delay of execution consequent on such proceeding, he is not benefited nor injured. If he is to be affected by the appeal, he must take the burthen as well as the benefit. If he is tOigain by a reversal, he is liable to be charged with an increase of the judgment. But it cannot be that one is to be prejudiced by a proceeding in which he is not a party, nor to be subjected to the increase of a judgment of which neither he nor his adversary complained.”

The learned counsel for the appellant contends that, as the ground for the recovery, so far as Smith was concerned, was respondeat superior, the judgment necessarily was a unit, and hence could not be affirmed or reversed in part.' The defendant Smith was not a mere servant of the defendant corporation. He pleaded that he was a member of the New York police force detailed specially for service in the defendant cemetery, charged to prevent crime and arrest those in the commission of crime, and that his act was in the course of his official duty. His status was proved upon the trial, and in.the case in the Court of Appeals the court, per O’Brien, J., say: