
    KIRBY v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO. et al.
    (Supreme Court, General Term, Third Department.
    December 3, 1895.)
    Negligence—Liability of Several Defendants—Instructions.
    In an action against a railroad company and the owners and proprietors of an hotel, in which, by permission of such owners and proprietors, the railroad had a ticket of Bee, for injuries received by explosion of a heating apparatus in the building, occurring while plaintiff was in the sitting room of the hotel, which was from time to time used by passengers waiting for trains, she having gone there, after taking a meal at the hotel, to wait for defendant company’s train, on which she was to travel, it is error for the court to tell the jury that he thinks they cannot find against one defendant and in favor of the other under the testimony.
    Appeal from circuit court, Rensselaer county.
    Action by Sarah Kirby against the president, managers, and company of the Delaware & Hudson Canal Company and Dell Brown for personal injuries received in consequence of the explosion of a hot-water heating apparatus in an hotel of which defendant Brown was owner and proprietor, and in which defendant railroad company, by permission of defendant Brown, had a ticket office; plaintiff being at the time of the accident in the sitting room of the hotel, which was from time to time used by ladies waiting for trains; she baiting gone there after taking a meal at the hotel, to wait for defendant’s train, on which she was to proceed on her trip. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Lewis E. Carr, for appellant railroad company.
    Henry A. Johnson (John H. Peck, of counsel), for appellant Brown.
    Warren, Patterson & Faulkner (Charles E. Patterson, of counsel), for respondent.
   HERRICK, J.

The action against the defendant is one founded upon alleged negligence. In such cases the plaintiff may proceed against any one, all, or such number of the wrongdoers as he may choose. Roberts v. Johnson, 58 N. Y. 613. The liability is a joint and several liability. Kain v. Smith, 80 N. Y. 458-468. In action of tort, where two or more are sued together, a jury may find in favor of one defendant and against the other. Lansing v. Montgomery, 2 Johns. 382; Drake v. Barrymore, 14 Johns. 166; Lockwood v. Bull, 1 Cow. 322; Beal v. Finch, 11 N. Y. 128-134. In this case the legal relations between the plaintiff and the defendant Brown, and between the plaintiff and the defendant railroad company, were different; and it seems to me, therefore, that this is peculiarly a case where the above-cited rules are applicable, and where it might well be held that the jury had the power, if they thought the evidence justified them, in holding one defendant responsible and the other not. Upon the trial, in charging the jury, the court said, “I think they cannot find against one and in favor of the other, under the testimony in this case,” to which exception ■was taken. That, I think, was error, sufficient to call for a reversal of the judgment. That being so, there is no occasion at this time to examine the other questions argued upon this appeal.

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