
    Mary A. Schultz, Respondent, v. The United States Fidelity and Guaranty Company, Appellant.
    Second Department,
    October 12, 1909.
    Principal and surety — undertaking on appeal — liability of surety where judgment reversed as to one of two joint tort feasors — when judgment against joint feasors may be reversed as to one only.
    The liability of joint tort feasors for false imprisonment and malicious prosecution is several, although a judgment single in form maybe entered against them all. On appeal such judgment may be reversed as to one defendant and affirmed as to others.
    Hence, where after the affirmance by the Appellate Division of a judgment against two joint feasors, only one of them appeals to the Court of Appeals and obtains a reversal, the surety on the undertaking given on appeal by both defendants is liable to the plaintiff for the default of the defendant who did not take the final appeal.
    A judgment for false imprisonment and malicious prosecution entered against a cemetery association and a police officer detailed for special duty in the cemetery is not a unit on the doctrine of respondeat superior, where the officer was a member of the municipal police force and made the arrest in that capacity in the course of his official duty.
    Where the surety on an undertaking given on an appeal of joint tort feasors binds itself to pay all interest and damages “which may be awarded against the appellants on said appeal, not exceeding five hundred dollars, and does also undertake that if the judgment so appealed from or any part thereof is affirmed or the appeal is dismissed, the appellants will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it is affirmed,” it cannot insist that the conditions of the liability never happened, because the judgment was reversed as to one of the defendants only.
    Appeal by the defendant, The United States Fidelity and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of May, 1908, upon the decision of thé court rendered after a trial at the Kings County Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 21st day of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      John G. Milburn [Edmund L. Baylies and Sumner S. Bowman with him on the brief], for the appellant.
    
      James O. Cropsey, for the respondent.
   Jenks, J.:

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 trial 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 ivas said by Cullen, Ch. J., in St. John v. Andrews Institute (192 N. Y. 386), “ 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. I think that this judgment must be affirmed. If in the action against the two joint tort feasors the liability was several, as ivas said by Cullen, Ch. J., in St. John v. Andrews Institute (192 N. Y. 386), “ 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.

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: “ The Code of Criminal Procedure (sec. 177) provides that a policeman or other peace-officer may, without a warrant, arrest a person for a crime committed or attempted in his presence. I have no doubt that the power to arrest in such, cases implies a duty to do so; but it is very clear that such duty was imposed upon this policeman on the occasion in question by the very law under which he was appointed. (Greater New York Charter, secs. 308, 315.) ” (See, too, Woodhull v. Mayor, etc., 150 N. Y. 450; Samuel v. Wanamaker, 107 App. Div. 433.) Smith, when asked at the trial why he did not arrest the plaintiff “ right away,” answered, “ It is not our business, as policemen, to arrest them right away. Just as they finish what they are doing, or going to do, then arrest them. Q. Do you mean that is your instructions ? A. Yes,- sir. Q. The instructions from Greenwood Cemetery ? A. Ho. They don’t give us any instructions to do at all.” He then said that he did not suppose anybody ever told him, he did not mean instructed. In St. John v. Andrews Institute (supra), the learned chief judge also says: Another illustration is the case of a judgment against two tort feasors. The issue on which the parties have been held liable may be identical and the ground on which the judgment has been reversed may be as fatal to the recovery against one defendant as against the other, yet, as already stated, a reversal against one will inure in no respect against the other.”

The undertaking reads as follows: “How, therefore, the United States Fidelity and Guaranty Company, having an office and usual place of business at Ho. 66 Liberty Street, in the City of Hew York, does hereby, pursuant to the statute in such case made and provided, undertake, that the appellants will pay all costs and damages which may be awarded against the appellants on said appeal, not exceeding five hundred dollars, and does also undertake, that if the judgment so appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellants will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it is affirmed. Dated, Hew York, April 1st, 1905.” The appellant insists that the conditions of liability never happened. I think that the point is not well taken. (Seacord v. Morgan, 3 Keyes, 636, cited in Goodwin v. Bunzl, 102 N. Y. 227, affg. 18 J. & S. 441; Stearns Law of Suretyship, § 202, citing, inter alia, Alber v. Froehlich, 39 Ohio St. 245; Vandyke v. Weil, 18 Wis. 279; Ives v. Hulce, 17 Ill. App. 35.)

The judgment should be affirmed, with costs.

Woodward, Gaynor, Burr and Miller, JJ., concurred.

Judgment and order unanimously affirmed, with costs.  