
    Staats vs. The Hudson River Rail Road Company.
    Where two or three independent causes of action are prosecuted, in a justice's court, and the judgment is right as to one and erroneous as to the others, which fact distinctly and plainly appears on appeal, it is the right and duty of the county court to reverse as to the erroneous and affirm as to the legal part of the judgment.
    APPEAL from a judgment of the Rensselaer county court, which reversed a judgment of a justice’s court, w'here the plaintiff recovered $75 and costs, against the defendant. The complaint was for killing two of the plaintiff’s cattle on the defendant’s road, a cow in January, 1859, and a bull in October, 1859. It appeared that the cow was running at large and wrongfully on the highway where she was killed as the defendant’s road crossed the highway. It also appeared that the plaintiff’s bull escaped from his lot adjoining the defendant’s road; that the fence along said lot was insufficient and defective, which the defendant was bound to make and maintain. The fair inference from the evidence was that he escaped on account of such defect, strayed upon the defendant’s road and was killed.
    
      T. M. North, for the appellant.
    
      Mr. Runkle, for the respondent.
   Peckham, J.

The evidence clearly shows that the cow was wrongfully and negligently on the defendant’s road. In such a case no action lies for her loss. (Munger v. Tonawanda Rail Road Co., 4 N. Y. Rep. 349.)

But for the killing of the bull a proper case was made out; certainly a prima facie case for submission to the jury, and their verdict for damages for his loss could not be disturbed.

A question was made as to the admission of evidence as to the sufficiency of the fence, which the defendant was required to make and maintain. (See Laws of 1854, p. 611, § 8.) A witness (Cheever) was asked by the plaintiff’s counsel to state if the fence was sufficient to turn orderly cattle, or not, and if not, why? The question was objected to, as incompetent, immaterial and leading. If objectionable at all, it was so only because it called for an opinion of the witness, instead of a fact. But that precise ground of objection is not taken. The question does not literally ask for an opinion, but substantially makes it necessary to give one, to answer one branch of the inquiry. Hence it was the more important that an objection, if intended to present the impropriety of calling for or proving an opinion, should have expressly said so. Such an idea, however, would scarcely be obtained from the form of the objection. I do not think the objection was presented with sufficient clearness in that (a justice’s) court to be available to the plaintiff here. The objection is merely 'technical, as the facts were fully presented by the witness, and made out a proper case of an insufficient fence in fact. And his opinion, which was nowhere precisely or particularly objected to, was of no moment at all. He proved the posts of the fence to have been 12 feet apart; that an animal could in most places put its head through the wires and get through, particularly where the wires were light; that his father’s cow and a spring calf went through, and they were orderly. In my opinion, therefore, the recovery was right as to the bull, and wrong as to the cow.

The only remaining question is, could and should the county court have reversed the judgment of the justice as to the damages for the cow, and affirmed it as to the bull?

It is objected by the defendant that a county court cannot reverse in part and affirm in part a justice’s judgment for entire damages. And the case of Kasson v. Mills, (8 How. Pr. Rep. 377,) is cited to that effect. The case sustains the position in terms, but the facts were wholly unlike the facts here. I have carefully examined all the cases referred. to in Kasson v. Mills, and am of opinion that the county court had authority, in this case, to reverse the judgment in part and affirm it in part, and should have exercised it.

The code, re-enacting the revised statutes, expressly gives that power to the court. It is not confined, in terms, and there is no reason for confining it, to a mere power to reverse or affirm as to costs and reverse or affirm as to damages. Where two or three independent causes of action are prosecuted in a justice’s court, and the judgment is right as to one and erroneous as to the others, and that can he distinctly and plainly seen on appeal, the power to reverse as to the erroneous, and affirm as to the legal part of the judgment, is plain and practical, and in my opinion imperative, with a view to give judgment according to the justice of the case,” as provided for in the code. After a careful examination I have been unable to find any case that conflicts with this plain power, and our plain duty in its exercise. In Kasson v. Mills it is difficult to perceive from the report of the case upon what ground the county court proceeded in reversing the judgment in part and affirming it in part. In the justice’s court it was for $100. It was reversed on appeal, except as to $3.36. But why it was valid for that sum does not in any way appear; nor what that amount was for, in any manner. It may therefore well be that this court was right on the facts as they appeared in that case—a single indivisible cause of action—in holding that the county court committed an error in reversing the judgment in part and affirming it in part."

Suppose an action brought upon two several promissory notes, to one of which the defendant proved a clear legal defense of usury, but none to the other, and the court gave judgment for. both. Would there be any difficulty in giving judgment, on appeal, for the valid note, and reversing it as to the void note ? Suppose an action for two penalties alleged to have been incurred on different days, judgment for both and illegal as to one, on appeal the judgment would be affirmed as .to the one and reversed as to the other. This last case has been expressly decided, in Massachusetts, by the highest court of that state, and I find nothing in this state in conflict with it. (Commonwealth v. Derby, 13 Mass. Rep. 433.) I see no reason or principle against the doctrine of this last case, the opinion in which was delivered hy Ch. J. Parker; and I am disposed to follow it and the statute of this state reenacted in the code, which allows it. I see no objection, to obeying the statute.where, as here, it can be distinctly seen for what the judgment was given, and which separate alleged cause of’action is illegal or erroneous. In this case it clearly appears from the proof that the jury allowed $50 for the cow and $25 for the bull.

[Albany General Term,

May 5, 1862.

Hogeboom, Peckham and Miller, Justices.]

The judgment of the county court is reversed, and that of the justice affirmed as to $25 damages and the costs. Ho costs allowed on this appeal.

Hogeboom, J.

I concur in the above opinion that the justice should have rendered judgment for the plaintiff for $25, (instead of $75,) and that the county court should have reversed it as to $50, and affirmed' it as to $25, instead of reversing altogether, and that this error should be corrected. But whether the proper mode of correcting it is hy reversing ■both judgments, leaving the plaintiff to sue anew, or whether it may be disposed of as done in the opinion of Justice Peck-ham, I have not as yet examined.

Miller, J. concurred.

Judgment of the "county court reversed, and that of the justice affirmed as to $25 and the costs.  