Kaufman v. Morgan — 63 N.Y. St. Rep. 178

Majority

p. 178

Bertha Kaufman, Resp’t, v. D. Percy Morgan, Impleaded, etc., App’lt.

(New York City Court, General Term,

Filed October 23, 1894.)

Headnote

Appeal—Harmless error.

A defendant, against whom the jury have found a verdict, is not prejudiced by a failure to find as to the liability of his co-defendant, where his liability is several and not joint with that of such co-defendant.

Appeal from a judgment in favor of plaintiff entered on a verdict.

Parsons, Shepard & Ogden, for app’lt; L. J. Morrission, for resp’t.

There was evidence in the case to show that the defendant Morgan, at the time of the injury to the goods, was n possession and control of the warehouse. He attempted to defend upon the ground that his possession was in an official capacity, but the plaintiff denies that she had any knowledge or notice of any such representative character. The questions were fairly submitted to the jury, which returned a verdict in favor of the plaintiff for $325. The facts proved warranted a verdict against Morgan individually, for his liability was several, and not joint with that of the co-defendant. The trial judge might, and perhaps ought, to have sent the jury back for the purpose of passing on the liability of the warehouse company, that the issue as to it might have been disposed of; but this is matter of which the appellant, Morgan, cannot complain. As we find no force in the" exceptions, and no error requiring a new trial, the judgment appealed from must be affirmed, with.costs.

All concur.