
    Sarah Kirby, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company and Dell Brown, Appellants.
    
      Negligence — joint and several liability of wrongdoers — a jury may find in favor of one and against another defendant.
    
    The liability of wrongdoers is both joint and several; and in an action predicated upon negligence, where two or more persons are sued together, a jury mayfiud in favor of one defendant and against another.
    Appeal by tbe defendants, Tbe President, Managers and Company of tbe Delaware and Hudson Canal Company, and by tbe ■defendant Dell Brown, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county ■of Rensselaer on tbe 25 th day of November, 1894, upon tbe verdict of a jury rendered after a trial at tbe Rensselaer Circuit, and also from an order bearing date tbe 19tli day of November, 1894, and entered in said clerk’s office, denying tbe defendants’ motion for a new trial made upon the minutes.
    
      Lewis E. Ocurr, for tbe appellant railroad company.
    
      John LL. Peclt, for tbe appellant Brown.
    
      Charles E. Patterson, for tbe respondent.
   Herrick, J.:

Tbe action against tbe defendants is one founded upon alleged negligence; in such cases tbe plaintiff may proceed against any one, all or such number of tbe wrongdoers as be 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 tbe other. (Lansing v. Montgomery, 2 Johns. 382; Drake v. Barrymore, 14 id. 166; Lockwood v. Bull, 1 Cow. 322; Beal v. Finch, 11 N. Y. 128-134.)

In this case tbe legal relations between tbe plaintiff and tbe defendant Brown, and* between tbe plaintiff and tbe 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, to hold one defendant responsible and the other not.

Upon the trial, in charging the jury, the court said: “I think they cannot find against oue 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 he reversed and a new trial granted, costs to abide the event.

Mayi-iam, P. J., and Putnam, J., concurred.

Judgment reversed and a new trial granted, costs to abide the event.  