Kenyon v. Sherman — 40 N.Y. Super. Ct. 363

Majority

p. 363

MARGARET C. KENYON, Plaintiff and Respondent, v. AUSTIN SHERMAN, et al., Defendants and Appellants.

Headnote

i. several verdicts.

1. Right op one op a number op dependants to a charge THAT THE JURY MAY RENDER.

(a) In an action of tort against a number of defendants, when the evidence is such as would uphold a verdict in favor of one or more, although rendered against the others, each of the defendants in whose favor a verdict might have been rendered, is entitled to a charge to the jury that they might find in favor of one or more of the defendants, even if they did not find in favor of all.

Í. Refusal so to charge, error which is cause for reversal.

(T) Privilege. It is the privilege of each defendant to have his case passed on by a jury having full knowledge that they could find in his favor, and against each of the other defendants.

(a) This although all the defendants join in the same answer, and set up the same defenses.

Before Curtis and Sedgwick, JJ.

Decided February 7, 1876.

Appeal by the defendants from a judgment in the plaintiff’s favor, and also from an order denying a motion for a new trial.

The suit is' for the conversion of plaintiff’s furniture, household goods, and wearing apparel.

The plaintiff, previous to January 3, 1874, had occupied No. 22 W. Ninth street as the tenant of the defendant Sarah Ludlow, her sister. The defendants Austin Sherman and William D. Ludlow were respectively father and husband of the defendant Sarah Ludlow, who was the adopted daughter of the former,

p. 364

and acted as heragentsin the dispossessing proceedings, and the execution of the warrant. Springstein, another defendant, was an officer attached to the Third Judicial District, New York city. On January 3, 1874, the plaintiff was ejected from the premises for. the non-payment of rent. The proceedings for this were taken by the defendant Mrs. Ludlow.

The warrant of dispossession was executed by Springstein, aided by the co-defendants William D. Ludlow and Sherman, who stated that they were acting for Mrs. Ludlow.

These defendants not only dispossessed the plaintiff, but they refused to permit her to remove, and actually prevented her from removing, what she claimed as her property from the premises. Springstein, Sherman, and William D. Ludlow interfered with the plaintiff when she attempted to remove such property ; Mrs. Ludlow was not present.

The answer was a general denial; also that the property actually detained belonged to the defendant Austin Sherman.

There was a verdict for the plaintiff against all of the defendants. From the judgment entered upon such verdict, and from the order denying defendants’ motion for a new trial, the present appeals are taken.

W. B: Putney, attorney, and of counsel for appellant, urged, as to the point decided by the court: There was different testimony as to what the several defendants did in the transaction—it was a question of fact for the jury to determine whether any property of plaintiff had been seized and converted, and if so what, and by whom, and if any one of the defendants had been found by the jury to have had no participation in the matter, then the verdict should have been in the- favor of such defendant. The refusal to charge as requested was error, and the exception taken is well taken.

p. 365

George Chalmers, attorney, and Edward D. McCarthy, of counsel for respondent, urged on the point decided by the court:

The court refused to hold that the jury might find for one if they did not find for all. Undoubtedly if the facts had been such that Mrs. Ludlow could have made any other case than the other defendants, if her answer and proof had pleaded and shown such a difference, then this request would have been right, and the refusal to charge it error. But here all the defendants make one and the same defense. The evidence does not discriminate one defendant from the others. If Sherman did not own all the property appropriated, then all the defendants became liable ; if he did, no one was liable. On this evidence the jury could not have found for oné and against the other defendants.

This action was brought against the defendants, to recover damages for the conversion of the plaintiff’s property. The jury found a verdict for the plaintiff against all of the defendants. As to the defendant Mrs. Sarah Ludio w, there was conflicting evidence. It was claimed by the plaintiff that the evidence showed that she authorized and connived at the withholding by the other three defendants of the plaintiff’s furniture, and also of her wearing apparel, and that of her infant children’s. Also that these acts of the three other defendants were not only authorized by her originally, but that she thereafter ratified and adopted them, by having the chattels that were so withheld and converted conveyed to her own premises, and there in part stored, and a part retained and rented with the house.

The defendant, Mrs. Sarah Ludlow, in her own testimony, denies that she ever authorized or instructed any one to take possession or detain this property of the plaintiff’s. There was evidence at the trial corrob

p. 366

orating Mrs. Ludlow’s claim, that her only action in the matter was, as owner of the house where the plaintiff lived, to have her dispossessed, and that she had nothing to do with the conversion of the furniture and other personal property of the plaintiff, and that its being placed on her premises was not her act, but was done to preserve it for the plaintiff, who is her sister.

The proofs at the trial indicated that a harsh and. oppressive course had been taken by the other defendants, not only in prematurely executing the warrant of dispossession, but in using it as a means to deprive the plaintiff of her furniture, household goods, and wearing apparel, and to get the possession.of it themselves. There were circumstances disclosed at the trial that probably tended to impair the credibility of some of the evidence introduced by the defendants. It was a case where the sympathies of the jury would readily be stirred in behalf of the plaintiff. Still it was a case where, if the evidence was such that the defendant Mrs. Ludlow might have been acquitted by a verdict in her favor, she was entitled not to be • prejudiced by any direction from the court in that behalf.

.There seems to be enough shown by the testimony to warrant the jury in so acquitting her, if they gave it credence. After the close of the charge, the counsel for the defendants asked the court to charge the jury that they might find in favor of one or more of the defendants, even if they did not find in favor of all. The court declined so to charge, and the defendants’ counsel excepted.

This might properly have been charged, as matter . of law. The Code, § 274, provides that judgment may be for or against any of the parties. In actions of tort a several judgment can be rendered against some of the defendants, and the others be acquitted (Wagner

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v. Bill, 19 Barb. 325 ; Montfort r. Hughes, 3 E. D. Smith, 594).

The defendant Mrs. Ludlow, and possibly other ■defendants, may have been prejudiced by this instruction being withheld from the jury. The latter may have thought that they could not consider the case of any one defendant separately from that of the others, and that it was not in their power to find a verdict for any one defendant. That they had this right, should have been made clear to them, as from the court declining so to charge them, they would possibly consider that they were without such right. It was the privilege of each of the defendants to have his case passed upon by a jury, having full knowledge that they could find in his favor, and against each of the other defendants.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Sedgwick, J., concurred.