
    Ernest Bamberg, Respondent, v. International Railway Company, Defendant, Impleaded with Louis H. Sutton and Edwin C. Sutton, Appellants.
    Fourth Department,
    July 9, 1907.
    Trial — liability of joint tort feasors — setting aside verdict.
    Vjpien in an action for negligence against joint tort feasors the jury renders an entire verdict against all, the court is without power to set aside the verdict ás to one defendant and refuse to set it aside as to others. The recovery must be set aside or sustained as to all, and when a new trial has been granted to one defendant .a verdict against the other will he set aside.
    If two persons or corporations are jointly guilty of negligence which results in . injury to a third person, he may recover a general verdict against both.
    . Appeal by the defendants, Louis H. Sutton and another, from a judgment of the • Siypreme Court-in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 17th day of' January, 1907, upon th,e verdict of a jury for $8,000, and alsofrom • an order entered in said cleric’s office on the 13th day. of February, ■ 1907, denying said defendants’ motion for a new- trial made upon the minutes, but which order granted a similar motion made by the-defendant railway company, and which as to it provided : “ It is further ordered that the defendant the International Railway ' Company be granted a new trial' in the above entitled action, with cost' • to .abide the event thereof, and the • judgment -heretofore rendered - in this action against thhInternational Railway Company be vacated and set aside as against said International Railway Company.”
    The action was commenced' on the 25th day of August, 1905, to recover damages sustained by the plaintiff alleged to have been caused through the joint negligence and wrong ' of the:- defendants Sutton and the defendant railway company and without any negligence on the part of the plaintiff.
    
      J. Henry Metcalf, for the appellants.
    
      Hamilton Ward, for the respondent.
   McLennan, P. J.:

The accident which., is. the subject of this controversy' occurred ■ on the morning of July 19, 1905. The plaintiff was a, passenger ón an open trolley car being operated by the defendant railway company and going southerly along' Michigan street in. the city of Buffalo, R. Y. Clinton street crosses Michigan street at practically riglit angles,, and at the time in / qiiestion _ a heavy delivery wagon-owned by the defendants Sutton, who were copartners, engaged in the ice cream business, was being driven- easterly along- Clinton- street as it crosses Michigan street.' The delivery wagon came in collision with the street car in such manner that the plaintiff sustained the ■ injuries for which he complains. ■

The evidence tends to show that because of the negligent management of said. car and of .the. ice cream wagon the accident resulted, and. the learned trial court cliárgéd the. jury in substance. that if they found upon the evidence that the accident was caused by the joint negligence of such defendants, they-might render a general verdict against all for the damages which the' plaintiff sustained. The court also charged that iff they found that the,accident was-caused solely by the negligence of either one of said defendants and tliat .the other was free from negligence, they, might render a verdict against the-defendant so guilty of negligence and •a verdict .of “no cause of action ” against the other. ■ The jury, as we have seen, rendered a general verdict against all the defendants.

From an examination of the evidence we are satisfied that if tends to show negligence on the part of all the defendants, and that the jury were justified in rendering the verdict which they did. Upon the motion-for a new trial made by each of the defendants, the motion of the defendants Sutton was denied ; the motion of the defendant railway company was granted, not because its negligence did not contribute to the injury as fqhnd by the jury, but because the court considered it had committed error, in refusing tó charge as requested by counsel for the railway-company. So that we have the situation of a verdict rendered because of the joint negligence of several defendants, and yet set aside by reason of supposed error as-to one of such defendants, but held good for the full amount as to the others. This situation presents the only question which need be considered upon this appeal.

We consider it well Settled that upon an appeal from a judgment which is entire and against several defendants, the appellate court must either totally affirm or reverse, both as to recovery and as to all the parties. The judgment in question was entire and was against all the defendants. .The jury found, as instructed by the . court they might find, that all the defendants were guilty of negligence which caused the-injury of which the plaintiff complains, and upon such finding judgment.was entered against all the defendants. In other'words, this action illustrates the familiar and proper attempt of an injured party to- recover damages against all the .wrongdoers whose negligence contributed to such injury. The rule is perfectly well settled that if two persons or corporations are jointly guilty of such negligence as'results in an injury to a third - person, .in an action brought against both a general verdict may be recovered by the plaintiff against both. But we have failed to find any authority for the proposition that the trial court upon motion for a new trial may reverse such judgment as against one of such defendants and affirm it-as to the other. In the case at bar, as' we. have seen, the jury rendered a general verdict against both defendants upon the theory that they were jointly liable for. the accident which resulted in injury to the plaintiff. What such jury might have done ’had it understood that only the appellants • could be made, to respond in damages we may not .know upon this appeal. We are only concerned with the proposition that the jury were told that they might find and presumably did find that both of the defendants were guilty of negligence which caused the injuries sustained by the plaintiff. The result of the situation presented by this appeal is .'that although the verdict of the jury determined that all-the defendants were jointly liable for the accident resulting in injury to the plaintiff, one of such defendants by a technicality 'and wholly independent of the merits, is absolved'from liability in the premises.

We are constrained to hold that the court, having set aside the verdict of the jury and granted a new trial on motion of. the defendant railway company, under the circumstances of this case, could not hold the verdict as to the other defendants. - It would hardly seem necessary to cite authority for the proposition thus enunciated other than to call to attention the case of Altman v. Hofeller (152 N. Y. 498). In that case it was said (p. 504): “ The.rule seems to be well settled that upon an appeal from a judgment which is entire and against several defendants, the. appellate -court must either totally affirm or reverse, both as to the recovery and as to all the parties. But in cases where there are separate and distinct judgments, or where an error exists as to a separate claim or defense, which relates only to a transaction between the plaintiff and one of the defendants, the judgment may be reversed as' to .such a claim or defense, and only as to the parties interested therein, and affirmed as to the remainder. These rules are not of recent origin. Théy existed and were practically the same at common law, under the Revised Statutes, the Code of Procedure and the Code of Civil Procedure.”' (Citing Richards v. Walton, 12 Johns. 434; Arnold v. Sandford, 14 id. 417, 425; Van Bokkelin v. Ingersoll, 5 Wend. 315; Sheldon v. Quinlen, 5 Hill, 441; Farrell v. Calkins, 10 Barb. 348, and other cases.) Continuing, the court said “ In Richards v. Walton it was held that where a judgment was entire it must be affirmed or reversed in toto. . In tliat'case two persons were sued in Justice’s Court, and only one appeared. The justice gave judgment against both, and it was held that,-it being erroneous as to the defendant who did not appear, it must be' reversed as • to botín The Arnold case was to the effect that an entire judgment against several defendants could not be reversed as to one and affirmed as to the others.- In the Van Bokkelin case the chancellor stated the rule to be that -when distinct judgments are given by the court below one may be reversed and the other affirmed,-but when the judgment is entire there must be a total affirmance .or reversal. In the Sheldon case it was held •that a judgment for distinct things might bo reversed in part and affirmed as to the residue, but an entire judgment against"several defendants, whether rendered in an action for . tort or upon contract, could not be reversed as to one defendant and .affirmed as to the others. * * * This review of the authorities plainly discloses that neither at common law nor under the statute had the General Term any authority to reverse an entire judgment and grant a new trial as to one of the parties and affirm it as to the remainder.”

The doctrine of Altman v. Hofeller was followed in City of Buffalo v. D., L. & W. R. R. Co. (176 N. Y. 308).

It is unnecessary to determine whether or-not- the trial court committed error in refusing to charge as the railway company requested, because neither the plaintiff nor the railway company appeals. The appellants apparently are content with the order granting a new trial as to such defendant because of such alleged error. This court simply holds that, a new trial having been granted as to the defendant railway company, the order denying a new trial as to the defendants Sutton was error which calls for a reversal of the. judgment and order appealed from. . ■ , ,

All concurred; Spring, J., not sitting.

Judgment and order reversed and new trial ordered, with costs to the appellants to abide event, upon questions of law and fact.  