Hyperlawhypertext legal database Popham v. Twenty-Third Street Railroad 48 N.Y. Super. Ct. 229

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Popham v. Twenty-Third Street Railroad

48 N.Y. Super. Ct. 229 16 Jones & S. 229 Court N.Y. Super. Ct. Decision date 1882-05-01 English

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p. 229
WILLIAM H. POPHAM, v. THE TWENTY-THIRD STREET R. R. Co., and THE SIXTH AVENUE R. R. Co.

Headnote

Appeal by one of two joint tort-feasors.
One of two defendants sued jointly for negligence, has no right of appeal from a decision of the trial judge, dismissing the complaint as to his co-defendant.
Before Sedgwick, Ch. J., Freedman and Arnoux, JJ.
Decided May 1, 1882.
Motion to dismiss an appeal.
While the plaintiff was riding in a car of the Sixth avenue Railroad Company the head of a horse driven for the Twenty-third street Railroad Company broke through the window, and portions of the glass struck the plaintiff’s eye and injured it so that it was necessarily taken out, and he sued the two roads jointly to recover damages for the injury, alleging that each was negligent. The case was tried before a judge with a jury, and the complaint was dismissed as to the Sixth avenue Railroad Company, and the trial proceeded as to the other defendant, and resulted in a verdict against it for $10,500. Judgment was entered by the plaintiff against the Twenty-third street Railroad Company for that amount and costs, and dismissing his complaint as to the Sixth avenue Railroad Company, and for its costs.
Thereupon the Twenty-third street Railroad Company appealed, both as against the plaintiff and its co-defendant, the Sixth, avenue Railroad Company, and the Six th avenue Railroad Company moved to dismiss the appeal as to it.
C. E. Crowell, for plaintiff.
p. 230
O.E. Bright, for defendant, the Twenty-third street Railroad Company.
D. M. Porter, for defendant, the Sixth avenue Railroad. Company.
No appeal can be taken by a party against whom no judgement has been entered by the respondent against whom he appeals. Liability for a negligence or tort is several, and an action may be brought and maintained against either (Kain v. Smith, 80 N. Y. 458 ). Under this authority, the plaintiff could discontinue his action as to the defendant, the Sixth avenue Railroad Company, and continue it as to the defendant, the Twenty-third street Railway Company, and the latter defendant cannot object, and would have no right to appeal from an order to that effect; and for a stronger reason it has no right to appeal from a judgment dismissing the plaintiff’s complaint as to the defendant, the Sixth avenue Railroad Company. There can be no claim for contribution between wrong-doers (Peck v. Ellis, 2 Johns. 130 ; Wehle v. Haviland, 42 How. Pr. 399 ; Miller v. Fenton, 11 Paige, 18 ; Anderson v. Murray, 33 Barb. 354 ; 1 Hill on Torts, 185, note a; Lingard v. Bramley, 1 Vesey & B. 117; Merriweather v. Nixon, 8 Term R. 186). This being so, the defendant, the Twenty-third street Railway Company, has no right to appeal as to its co-defendant, the Sixth avenue Railroad Company.

I am of opinion that no appeal can be taken by the defendant, the Twenty-third street Railroad Company, from the order that was made upon the trial, on motion of the defendant, the Sixth avenue Railroad Company, dismissing the complaint as to that defendant, or from the judgment upon that order.

Motion to dismiss the appeal granted, with $10 costs.

Freedman and Arnoux, JJ., concurred.

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