
    Louis J. Meyers, Respondent, v. Acker, Merrall & Condit Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1910.)
    'Release — Release of persons jointly liable — Release of joint tort feasors.
    When the conductor of a street car is injured by á collision with a delivery wagon and brings an action against the owner of the wagon .to recover damages, and it appears upon the trial that the plaintiff has executed a general release to tL¿ street railway company, such release operates to release the defendant, in case negligence on the part of the motorman contributed to the injury.
    And where there is evidence tending to show negligence on the part of the motorman and the court denies defendant’s motion to dismiss the complaint on the ground that it is immaterial whether the motorman was negligent, it is error for which the judgment for plaintiff entered upon a verdict in his favor should be reversed.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of ¡New York, borough of Manhattan, third district.
    Lyman A. Spalding and Floyd K. Diefendorf, for appellant.
    Paul N. Turner, for respondent.
   Goff, J.

The plaintiff was a conductor of the Metropolitan Street Pailway Company, on its Eighth avenue line. While on the running-board, collecting fares, he was struck and injured by a shaft attached to one of defendant’s delivery wagons. At the moment of collision, plaintiff’s car was within a short distance of Chambers street, going north. Defendant’s wagon, which had been backed up against the east curb, drew out to go north, around an automobile truck, which was also against the east curb, to the north of the delivery wagon. There was space between the truck and’ the tracks for defendant’s wagon to pass, but the horse’s head projected over the track. There is evidence that the motorman of the car was looking downward at this moment and made no attempt to stop. There is also evidence that defendant’s driver looked at the motorman at this moment. Seeing that he was likely to be struck unless he should back, he did so, drawing his horse’s head to the left and south, but did not back so far as to escape striking and injuring the plaintiff. On cross-examination of plaintiff, he admitted having signed a general release to the street car company which was received in evidence.

At the conclusion of plaintiff’s case, defendant moved to dismiss the complaint on the following grounds: That there was no proof of defendant’s negligence, no proof of plaintiff’s freedom from contributory negligence, and that plaintiff’s release to the street railway company, as a joint tort feasor, released defendant also. This motion was denied on each ground, the court remarking that the release of one joint tort feasor does not release another. The court, therefore, found, in effect, as facts, that defendant was negligent; that plaintiff was not negligent; and that it was immaterial whether or not defendant and the street railway company were joint tort feasors, that is to say, whether or not the motorman was also negligent. In this ruling, there was error. Hubert v. Finch, 173 N. Y. 455, and cases there cited.

Ordinarily, this court will assume that, on conflicting evidence, the trial court found every fact necessary to sustain its judgment. Hence, were it not for the error above noted, we should infer from the judgment that the trial court found as a fact that the motorman was not negligent; but here this court cannot make such an assumption, because the trial court found, in effect, that the question of negligence, on the part of the motorman, was immaterial. If the motorman was not negligent, the street railway company and defendant were not joint tort feasors. In that case, the release could not be properly pleaded by this defendant.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Giegerich, J., concurs.

Lehman, J., concurs in result.

Judgment reversed and new trial ordered.  