Kirby v. President of Delaware & H. Canal Co. , 97 N.Y. Sup. Ct. 588 ( 1895 )

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.