author:
By the Court—Bosworth, Ch. J.
      Hoffman, J. (Dissenting.)

text:
    Patrick O’Shea, Plaintiff and Respondent, v. James B. Kirker and John G. Shea, Defendants and Appellants.
    1. Where the complaint, in an action of tort against two defendants, alleges that the defendants jointly did the wrong complained ofj and the referee to whom the whole issue was referred so finds; but also finds, that one defendant injured the plaintiff to the amount of $150, and the other to the amount of $600; the plaintiff may enter judgment against both defendants, jointly, for the larger sum. (Hoffman, J., dissented.)

    2. The judgment may be so entered, notwithstanding the referee decides that the plaintiff recover against the one defendant $150, and against the other $600, damages.
    3. When several persons are made defendants in an action of tort, in which it is alleged and proved that they jointly did the wrong complained of, each is as absolutely liable to the plaintiff for the whole damage, as the other.
    4. Where, in such a case, the jury or a referee severs the damages, and the plaintiff enters a judgment against all for the larger -amount, the judgment will not be reversed because a remittitur of the lesser amount is not formally entered on the record. The entry of such a judgment, per se, remits all claim to the lesser amount.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, January 14;
    decided, January 29th, 1859.
    This is an appeal by the defendants from a judgment entered against them on the report of William Kent, Esq., as referee.
    The complaint charges that the defendants, on or about the 24th of June, 1856, and on other days between that day and the commencement of this action, at the city of New York, unlawfully, maliciously, &c., composed and published of and concerning the plaintiff, in a printed circular, certain false and defamatory matter, which is set forth, to the damage of the plaintiff, and prays judgment for $20,000 and the costs of the action.
    The defendants answered separately. On the trial the publication was admitted. The libelous circular was composed and written by the defendant Shea, and it bore the printed signature “ Edward Dunigan & Brother,” the name of a firm under which the defendant, Kirker, transacted his business. John Gr. Shea, at the time of writing, issuing and circulating the article complained of, was in the employ of Barker, and was also transacting some "business on Ms own account. Kirker saw the circular, and knew of its being issued and circulated, and the same was issued and circulated from his business establishment.
    The action was referred to William Kent, Esq., as referee, who found, among other things, as follows: “ The referee finds that the alleged libelous matter was wantonly and unjustifiably made and published by the defendants.”
    As a conclusion of law on the facts of the case, “ the referee finds that the plaintiff is entitled to recover damages against the defendants for an unjustified libel.”
    Upon an idea that one defendant was more censurable than the other, the referee severed the damages, and found “ that the plaintiff has sustained damages from the defendant, Kirker, to the amount of $150, and damages from the defendant, John G. Shea, to the amount of $600.” “The referee, therefore, decides and reports that' the plaintiff, Patrick O’Shea, do recover judgment against the defendant, James B. Kirker, for $150, and that he do recover judgment against the defendant, John G. Shea, for $600.”
    The judgment (entered on the 14th day of May, 1858), recites that the action was referred to William Kent, as referee, the trial of it before him, and the filing of his report, dated the 14th of September, 1857, “ whereby it is found, decided and declared,” “that the same” (the libel) “was wantonly and unjustifiably made and published by the defendants, and that the plaintiff is entitled to recover damages therefor against the defendants, James B. Kirker and John G. Shea, to the amount of $600, and for Ms costs,” and then adjudges that the said report be “in all respects approved, ratified and confirmed,” and that the plaintiff recover judgment against both defendants for said sum of $600, together with $159.09 costs and disbursements, in all amounting to $759.09, and that he have execution therefor.
    Erom this judgment, both defendants appealed to the General Term.

      James T. Brady and John D. Burchard, for the defendants and appellants.
    The judgment is erroneous, being taken against both defendants for the larger amount.

      1st. At common law it was, in actions of tort, error to sever in awarding damages as against various defendants. The Courts, in order to avert the consequences of that error, invented the proceeding of electing de melioribus damnis. It is at least doubtful how far a Court had the power thus to visit upon a defendant a penalty which the tribunal of fact did not intend he should incur. We insist that no such power ever in fact existed, and it was a gross act of usurpation, especially in a case of trial by jury, to deprive a defendant lightly mulcted, of the conclusion which as to him was reached by the tribunal to whose judgment and its effect he had a constitutional right. That right extended as well to the amount of damages, as to the question of liability. The error seems much greater, considering that this power, though deemed the act of the Court, was, in fact, that of the plaintiff.
    2d. It will be found, on an examination of the authorities, that the Court of Kings Bench, in the year 1771, Lord Maftsfield presiding, reversed a judgment in a action for a joint tort, because the jury had found the trespass to be joint, and yet had given several damages. (Hill et al. v. Goodchild, 5 Burrow, 2790.)
    But neither in that case, nor in any other known to us, has it been determined that it is error for the jury to sever the damages where there are several acts of trespass, as to some of which, certain of the defendants are guilty and others ■not, or where the defendants are charged jointly and severally, or have pleaded separately. In the case just cited, the Court expressly state that they make no decision as to such instances.

    3d. We are not aware of any case in which it has been held that where several damages are assessed, the plaintiff may take judgment against any defendant alone or jointly with others, for any amount not awarded against him. The election allowed in such cases is to take judgment against any one defendant for the amount in which he is mulcted, simply because the plaintiff might have sued him alone. (See Tidd’s Practice, 805; Graham’s Practice; Mitchell v. Milbank et al., 6 T. R., 199; 5 Burrow, 2790, and the cases there cited; Sedgwick on Damages, 584; Holley v. Mix, 3 Wend., 350.)
    4th. There is, however, a distinction between all the cases heretofore adjudged, and the present, not only in reference to the effect of the Code generally, but because here, the referee, acting in the place of the Gourt, has not only declared that the acts of the defendants were several, and differed in delinquency, hut has also assessed separate damages.

    He has found that Shea acted wantonly, and Kirker incautiously.

    The plaintiff could not, on this state of facts, enter any judgment other than such as the report authorized. (See Code, § 272.)
    5th. But the whole fiction, invention or usurpation thus criticised, has fallen through from the want of any reason to maintain it.
    The Code authorizes several judgments against several defendants in all kinds of actions.
    And the Court has no power under the Code to award any other damages against a defendant than such as have in the first instance been assessed against him. (Code, §§ 260 to 264 and 274.)
    For the preceding reasons this judgment should be reversed, and a new trial ordered.

      William Fullerton, for respondent (the plaintiff).
    The judgment is properly entered up for the largest amount of damages, against both defendants. (Beal v. Finch, 1 Kern., 128.)
   By the Court—Bosworth, Ch. J.

The learned referee, before whom this action was tried and by whom it was decided, found as a fact, “that the alleged libelous matter was wantonly and unjustifiably made and published by the defendants,” and held, “as a conclusion of law, on the facts of the case,” “that the plaintiff is entitled to recover damages against the defendants, for an unjustified libel."

He father states in his report, that he severed “ the damages as the defendant Kirker appears to have taken little part in the libel, and is chiefly censurable for allowing the charges against the plaintiff to go forth attached to a circular under the name of his firm, while the defendant John Gr. Shea wrote and personally caused to be circulated this libelous matter.”

He further found that Kirker damaged the plaintiff to the amount of $150, and Shea to the amount of $600, and decided that the plaintiff should have judgment against the former for $150,' and against the latter for $600.

If the two, jointly, did the wrong, and if the amount of resulting damage is correctly found, then that wrong damaged the plaintiff to the amount, at least, of $600.

Each defendant, in judgment of law is liable for the whole of such damage, and one is as absolutely liable to the plaintiff for the whole damage as the other. (Bohun v. Taylor, 6 Cow., 313; Knickerbocker v. Colver, 8 id., 111.)

When several persons are united as defendants, in an action of tort, alleged to be their joint tort, and it is established,- that all jointly did the wrong-complained of, the damages cannot be severed. The plaintiff, in such a case, is entitled to a judgment against all jointly, for the whole amount of damages,- which it is proved that such wrong caused him.

When a jury, or referees, on such a state of facts, attempt' to sever the damages, and find that one sum should be paid by one defendant, and a different sum by another, they constitute them: selves into a quasi Court of Chancery, with no rules to guide them in apportioning damages, except such as seem to them “ equitable,” in the particular .case, and override the stern rule of the common law, that each defendant is liable for the whole damages. And they seem to forget, for the moment, that a plaintiff can have but one satisfaction, and that settling with one of such wrong-doers, or collecting from one of them the amount assessed against him separately, discharges all. I think it just to say, they seem to forget this rule, because in such cases, it is fair to presume they intend that each defendant shall pay the damages assessed against him. In the case before us, it is quite evident, the referee intended, so far as his action might affect that question, that the plaintiff should recover $750; viz.: $150 of Kirker, and $600 of John Q-. Shea.

On the facts found by the referee, the plaintiff was "entitled to a judgment against both defendants for $600, unless the referee’s erroneous severance of the damages, and the -provisions of the Code as to the form and nature of a judgment to be entered on the report of a referee to whom the whole issue has been referred, have deprived him of that right.

If the cause had been tried by a jury, and they had found the facts which the referee has found, and had then severed the damages, assessing them as the referee has done, the plaintiff could take judgment against both defendants for $600.

At all events, we should hardly be justified in holding to the contrary, against the decision of Halsey et al. v. Woodruff, (9 Pick., 555,) and the terms of decided approbation, in which that decision is spoken of in Beal v. Finch, (1 Kern., 135, 136, and 141, 142, id.) (See also Dean v. Thornton & Dutton, 3 Kern., 266, and Blodget v. Morris, 14 N. Y., 482; Bulkley v. Smith et al, 1 Duer, 643.)

In Hill et al. v. Goodchild, (5 Burrow, 2790,) (in an action against two for an assault and battery,) Lord Mansfield observed, that “ the present question is, whether, upon a charge of a joint trespass, the jury can assess damages according to different degrees of guilt; though the real justice is, that the damages should be respectively assessed in proportion to the real injury done by each defendant.” On delivering subsequently the opinion of the Court, he said, “ And the present case is, that the count is of a joint trespass; and the jury have found the defendants guilty of a joint trespass, and yet have severed the damages. We are of opinion that in such case the damages cannot be severed. The consequence is, that the judgment must be reversed.” If that decision declares the law correctly, a judgment, entered upon the report of the referee, against each defendant for the amount assessed against him would be erroneous, and for that cause alone, would be reversed.

In Mitchell v. Milbank et al, (6 Term. R., 199,) Lord Kenyon, Ch. J., declared, that to enter several judgments against the defendants, (who were found guilty of a joint trespass,) on separate and several assessments of damages against them, would be erroneous.

We have not been referred to any adjudication by which a contrary rule has been applied. In some cases, when the jury have severed the damages, the plaintiff has entered a nolle proseguí against all the defendants but one, and taken a judgment against that one only, and that was held to be regular, and to have cured the verdict, as in Rodney v. Strode, (in Carth., 19,) and Holley v. Mix & Clute (3 Wend., 350; See 1 Sand., 207, note 2).

The decision in Halsey et al. v. Woodruff, (9 Pick., 555,) seems to us, but an application of the rules, that each is liable for the whole damages, and that there can be but one judgment against those united as defendants in the same action and proved to -be guilty of a joint tort. It follows, logically, that judgment must go against all for the amount of damages established, as the result of such joint tort. In that case, the plaintiff entered a remittitur as to the lesser amount of damages. The same practice was pursued in Bulkley v. Smith & Keteltas. (2 Duer, 267; S. C., 1 Duer, 643.)

As the judgment was reversed upon grounds which did not involve a decision of the question whether such a judgment was regular and free from error, that question was not passed upon. Mr. Justice Duer intimated very distinctly that, “ as at present advised, if the conflict of authorities is such as to allow a liberty of choice, we certainly should refuse to follow ” the doctrine that a plaintiff in such a case “ may enter his judgment against all the defendants for the largest damages that are given.” (Id., 271.)

We must concede it to be well settled that a plaintiff in such a case is entitled to a judgment against all for the amount of damage which he proves he has sustained from their joint tort, and that damages cannot be assessed against the defendants severally, according to their different degrees of guilt.

When, under a misapprehension of the rule forbidding a severance of the damages, the jury have in fact severed them, it is the right of a plaintiff to remit the lesser sum or sums, and take judgment against all for the larger sum. The party, by entering such remittitur, does not deprive either defendant of any substantial right. The issues have been tried in the presence of each defendant in an action to which he was a party, and upon such evidence as he chose to offer, and the actual damages caused by the joint tort of himself and his co-defendants, have been correctly found upon the evidence and under an accurate application of the rules of law to the case. The judgment which follows as a necessary consequence, is declared by law; that judgment is a joint one against all for the damage caused by their joint tort.

The entry of a remittitur is a matter of form. The entry of a joint judgment against all for the larger sum (the amount of the. actual damage), and for that only is, per se, an election to take judgment against all and for that sum only, and effectually remits all claim to the lesser sum, in addition to that for which the judgment is entered.

The judgment should not be reversed merely because there is no formal entry on the record of a remittitur of the lesser sum. (2 R. S., 425, § 7, sub. 13 and 14; Code, § 176; Bate v. Graham, 1 Kern., 237.)

We therefore think it quite clear that if this action had been tried by a jury, and they had severed the damages, as the referee has done, and a judgment like the one before us had then been entered, it could not be reversed on the mere ground that it had been entered against all for the larger sum.

Section 274 of the Code has not changed the rule as to the liability of each or either of several defendants, proved to have committed a tort jointly, nor does it introduce any new rule by which to determine when a several judgment against one of several defendants may properly be entered. So far as those questions are concerned, the Code leaves them to be determined by pre-existing law.

We cannot accede to the proposition that this section authorizes a severance of damages and several judgments, when all the defendants are proved, at the trial, to have committed jointly the tort complained of, and charged to be their joint act.

Do the provisions of the Code, as to the trial of actions by referees, and as to the judgment to be entered upon their report, make it necessary that a new trial should be ordered on such a state of facts as this case presents, or preclude the plaintiff from entering a judgment against all for the larger sum ?

Referees are required “to state the facts found and the conclusions of law separately.” “ The report of the referees upon the whole issue, shall stand as the decision of the Court, and judgment may be entered thereon in the same manner as if the action had been tried by the Court.” (Code, § 272.)

“ Upon a trial of a question of fact by the Court, its decision shall be given in writing, and filed with the clerk, within twenty days after the Court at which the trial took place. Judgment upon the decision shall- be entered accordingly.” (Id., 267.) “ Accordingly,” in this connection, means, probably, “ according to such decision.”

The referee found that the defendants jointly committed the tort, charged in ■ the complaint as their joint act, and that the plaintiff had been damaged thereby to the amount of $600. (There is no question made that the damages have been assessed at too large an amount.) Had the report stopped here, there can be no doubt that a single judgment against both for $600 damages would have been a regular, and the appropriate judgment on Such a state of facts, and that no other could have been entered.

That part of the report which severs the damages, is irregular, and is outside Of and beyond the full and correct performance by the referee of his whole duty as such referee." That part of the report which is to the effect that judgment be entered against Kirker for" $150, and against Shea for $600, is in conflict with that part which-finds, ás a fact, “that the alleged libelous matter was wantonly' and unjustifiably made and published by the defendants,and declares, “ as a conclusion of law on the facts of the case,” “that the plaintiff is entitled to recover damages against the defendants for an unjustified libel,” so made and published by-them.

The proper judgment on such a state of facts, and under such a rule of law, is a 'joint and single judgment against the two for the amount of the damage caused by such joint act.

Overruling the decision of the referee, that there shall be a judgment against each for the amount assessed against him, and holding that a singlé judgment against the two for the larger sum should be- affirmed, is but pronouncing a judgment in accordance with the facts as found. When no attempt is made "by either party to question the accuracy of the referee’s conclusions of fact, the Court on an appeal from the judgment, by whichever party the appeal may be taken, should direct such a judgment as the law pronounces, upon the facts thus found.

In this case, if a judgment had been entered by the clerk, on the report of the referee being filed, and in the terms of the report, and exceptions- to the decision of the referee had been duly filed, and if the plaintiff had appealed from such judgment, the Court would be required (the accuracy of the decision of the allegations of fact being unquestioned) to order such a- judgment as has been entered.

But the judgment is now regularly before the Court on an appeal from it, and the duty of the appellate Court is the same, whoever may be the party appealing. Such a judgment should be given by the appellate Court, as the facts specially found require.

The severing of the damages, like the severance of damages by a jury, may be regarded as an irregularity, not affecting any substantial right. And all directions based on such irregularity may be corrected, and judgment given according to the justice and law of the case. A correct judgment has been entered. If any irregularity, “ error, or defect, in the pleadings or proceedings,” has occurred in the progress of the trial, up to, or in entering the judgment, “which shall not affect the substantial rights” of either defendant, the Court is required, by section 176, to disregard it, and is prohibited from reversing the judgment by reason thereof.

The questions presented by this appeal may be briefly stated thus:

These defendants have been sued together, and are charged with having jointly committed a tort. On a trial of the issues, joined in the action, between them and the plaintiff, it has been proved that they jointly did the wrong, and that the plaintiff has been damaged thereby, to the amount of $600. These facts have been established by competent and sufficient evidence. Judgment has been entered against both defendants for $600. This is the proper judgment. Do the facts,'that the referee severed the damages assessing them at $150, against one defendant, and at $600, against the other, and deciding that judgment should be entered accordingly, require a reversal of the judgment that has been entered ? Or shall such severance of damages, and the decision founded on it be disregarded, and the judgment, which is right in itself and according to law, be affirmed ?

We are of opinion that it should be affirmed. We, therefore, order an affirmance, giving liberty to the plaintiff, to modify the form of the judgment, (if so advised,) so as to state that he elected to remit the lesser sum, and take judgment against both for the larger sum, and to enter a judgment, that the judgment appealed from be thus modified, and that, as thus modified, it be in all things affirmed.

Hoffman, J. (Dissenting.)

I have not before had occasion to consider the question in this case, and it struck me upon the argument as strange and inequitable, that, when a separate and inferior degree of culpability, in one of two defendants, had been found by a jury, and they had determined the compensation to be rendered for his wrong, a Court could charge him with a higher penalty. The referee, in this case, stands, by consent, in place of a jury. The same rules must prevail. He has found, indeed, that the whole damage sustained from the publication of the libel is $750; but he has, as distinctly found, that the proportion of this amount, for which Kirker should respond for his participation in the act, is $150, and that Shea should bear the rest. “ The defendants are guilty, yet the degrees of their guilt are different, and the real justice is, that damages should be assessed respectively, in proportion to the real injury done by each defendant." It is inevitable that a principle, thus stated by Lord Mansfield, and commended by its common sense and equity, will be acted upon by juries.

It seems to me impossible to answer or evade the powerful argument of the counsel of the defendants, that the juridical constitution of the country, has, in cases like the present, as entirely vested in a jury, the right to determine the amount of compensation for a wrong, as to pronounce a party guilty of that wrong. The measure of redress against an offender is as absolutely within their province as the question of his offense. If a Judge or referee, under our system, is substituted by consent, his office and duty are the same. How a Court, sitting to revise and correct errors of law, or to furnish a further opportunity for obtaining justice in matters of fact, can increase the amount thus adjusted, reverse the determination, and impose a further augmented penalty, is beyond my legal comprehension to understand.

Lord Mansfield, in 1771, declared “ that there was great confusion in the cases upon the subject; and some of them were diametrically opposite.” Mr. Justice Aston observed, that some were decided upon principle, not agreeably to his understanding. (5 Burrows, 2790.) This complaint was repeated by Chief Justice Kent, in 1806. He “ was surprised to meet so much contradiction and uncertainty upon the subject.” (1 John. R., 290.) Perhaps obscurity and indefiniteness still linger over some portions of it.

Some of the numerous authorities establish this rule, a rule not open to dispute, that when the act from which the injury has resulted is one and indivisible, and several have concurred in it, that act is the act of each. If they are sued jointly, (whether they unite or sever in their defense,) and are found jointly guilty, the verdict ought to be taken against them jointly, and but one sum for damages be assessed against all. Such should be the direction of the Court to the jury. If followed by the jury, there is no error. If disobeyed, either the Judge may refuse to receive it, or the verdict may be set aside, and a new trial had, or judgments, if entered in severalty, may be reversed.

Eliot v. Allen and six others, (1 Com. Bench R., 18,) is a striking example of this class of cases. The action was for false imprisonment, seizing a supposed lunatic and carrying him to, and detaining him in a workhouse. The defense was, that he had been taken up on reasonable information, and that the defendants all acted in an official capacity; but their relative official positions and powers were different, and the acts of some were clearly of a less degree of wrong than those of others. Chief Justice Tindal told the jury that the plaintiff could only recover damages against the defendants for any joint act committed, or assented to by all of them. The jury returned a verdict against all, except Allen, and assessed the damages at £400.

On motion for a new trial, it was pressed, that some of the defendants, particularly one Semple, were slightly culpable, and the jury ought to have been instructed to sever in their verdict. But it was held, that there was one joint trespass; all were guilty of the same trespass, or not guilty at all; and the charge of the Judge was sustained.

This was the point, and the only point expressly decided in Hill v. Goodchild. (5 Bur., 2790.) Several damages having been assessed against two, and the judgment entered being against them severally, and it being a case of one joint trespass, the judgment on writ of error to the Common Pleas, was reversed. ' '

Everything that is held or said in the case of Bohun v. Taylor, (6 Cow. R., 313,) falls within this principle. There was a question as to the admissibility of Collins, a co-trespasser, as a witness, a default having been taken against him. “ There was one fact one time, and one place. Both being found guilty of the whole trespass, the damages must be entire, although the defendants sever, and one suffer judgment by default.”

And this principle is found in the case of Mitchell v. Milbank and others. (6 T. R., 199.) In trespass for- assault and battery against three, there was judgment by default. Three writs of inquiry were executed, with different damages. The plaintiff, before judgment, moved to set aside his own proceedings, and execute one new writ. This was permitted, Lord Kenyon saying, if he had entered up final judgment for the several damages it would have been erroneous.

So Crane v. Hummerstone, (Croke Jac., 118,) was simply the case of a reversal on error for taking judgment severally on separate assessments of damages against several. Mathews v. Cole, in the Exchequer Chamber, (Croke Jac., 384,) was exactly the case of Eliot v. Allen. The judgment was joint on damages assessed entirely. And it was sustained, upon a writ of error alleging error in not assessing damages severally, upon the several issues of different defendants.

To the same point, is the case of Palmer v. Crosby. (1 Blackf. R., 140—Indiana.)

Another class of cases involves the rule, that where the act is in itself single, but several have united in it, and the plaintiff has sued the defendants separately, a recovery and satisfaction in one suit is a bar to a recovery in any other. Thomas v. Rumsey, (6 Johns. R., 26,) was of this character, and may be usefully stated.

The action was libel, and there was a plea, puis darrein continuance, of a former action and recovery, and satisfaction against one Henry Dodd for the same identical writing and publishing, and ■causing or procuring to be written and published, the same identical alleged libel. There were other proper averments in the ■plea.

The case arose upon a demurrer to the plea and a joinder. The plea was sustained and judgment given for the defendant.

Thompson, J., said: “The demurrer admits the libel and publication in the present action to be the same, as in the action against Dodd. We are therefore to take it for granted that there was but one publication, and that was the joint act of the defendant and Dodd. There is, then, but a single injury, and if the plaintiff could have maintained a joint action, it would be unjust that he should have a double satisfaction. The making and publishing a libel are matters susceptible of a joint concern and undertaking, as much as a trespass.”

This rule was recognized in Martin v. Kennedy, (2 Bos. and Pull., 69,) as applicable where a trespass Was one act, such as cutting grass in a field; but the interference of the Court before trial was refused, where several suits on a libel were proceeding against different persons. Lord Eldon, among other things, observed, that the person who disperses the libel as a mere agent, and the principal himself ought to suffer in very different degrees.

There is another and important series of cases. If the plaintiff proceed for a joint indivisible wrong, against several, in separate actions, he may go on to judgment, and may elect to enforce his judgment against the party as to whom he obtains the largest damages. And after satisfaction, at least, his proceedings will be stayed against the others. In this sense the doctrine dx melioribus damnis is reasonable and just.

This is the rule which Chief Justice Kent, as I understand him, declares to be the more rational one, (Livingston v. Bishop, 1 Johns. R., 290;) and this I take to be the whole extent of the rule - declared in Cocke v. Jenner, (Hob., 66,) and in Corbet v. Barnes, (Wm. Jones, 377,) cited by him.

There is another class of authorities, within the same principle, of which Holly v. Mix & Clute, (3 Wend., 350,) is an example. Both defendants were found guilty of the false imprisonment. Six cents’ damages were given against Clute, and twenty-five dollars against Mix, The plaintiff was allowed to enter a nolle prosequi, against the former, and to have his judgment against Mix.

This is also the rule established in two cases in Kentucky, (Stone v. Matherly, 3 Mon. R., 137; and Dougherty v. Dersey, 4 Bibb, 208.) If several damages are assessed in trespass, the plaintiff may take judgment for the greater sum, against him or them, on whom they are assessed; but cannot have several judgments. If equal damages are assessed against two, he may enter a remittitur as to one, and take judgment against both for the sum assessed against the other; or may enter a nolle prosequi as to one, and take judgment against the other only.”

And the old and important case of Rodney v. Strode, (Carth. R., 19,) is precisely to the same point. The action was trespass against three, and an assessment of several damages. The plaintiff entered a nolle prosequi against all but the one, as to whom he had obtained the heaviest amount.

But on what authority does the proposition rest, that the doctrine, de melioribus damnis, warrants the entry of judgment for an increased amount against one defendant, when a jury has found that he should only be liable in a lesser sum—to charge him, in fact, with part of the penalty of the delinquency of his associate, as the jury have settled that delinquency ?

Heydon's case, (11 Coke’s R., 5; Croke Car., 192; 1 Wilson’s R., 30), are generally cited. Mr. Tidd (Practice, vol. 1, p. 322,) quotes them for the rule. Eliot v. Allen (ut supra), Clark v. Newsam, (1 Exch. R., 131,) Rochester v. Anderson, (1 Bibb, 434,) Halsey v. Woodruff, (6 Pick., 555,) have also been referred to. To these may be added Simpson v. Perry, (9 Geo. R., 508,) Schultz v. Hunter, (1 Browne’s R., 233, Penn.,) and Beal v. Finch, (1 Kern., 128.)

In BulJceley v. Smith, in this Court, the Judges, upon consultation by the Chief Justice, first refused to set aside such a judgment upon motion, because the question seemed doubtful, and it could come up on appeal (1 Duer, 643); and when the case was before the Court at General Term, it omitted to decide the point as not necessary in the case, but a strong opinion was intimated against such a proposition. (2 Duer, 271.)

Eliot v. Allen, (cited 1 Duer, 644, as Elliot v. Anderson) has been before fully stated, and does not give the slightest support^ to the supposed rule.

Clark v. Newsam & Edwards, (1 Exch. R., 131,) has no direct bearing upon the point. It contains, however, a discussion of a rule sometimes stated, that a jury in a joint trespass must adjust the damages against all upon the basis of the guilt of the most criminal. Chief Baron Pollock had refused so to charge, and his remark, when the cause was before the full Bench, deserves great attention, that the plaintiff ought to have selected the party against whom he expected to get aggravated damages. The Court appear to think that the injury which the plaintiff had sustained, was to be the rule of damages against all. There was another decisive point in the cause.

In Crawford v. Morris, (5 Grat., 90,) it was considered that the true rule was to give damages adjusted upon the culpability of the greatest aggressor.

In Gregory v. Slowman, (1 Ellis & Black., 360,) the Court of Queen’s Bench granted a rule to show cause, expressly as Lord Campbell stated, in order to have it determined whether any such law existed. The case was, however, settled.

The cases of Schultz v. Hunter, Simpson v. Perry, and Halsey v. Woodruff, (ut supra,) are the only authorities I have been able to find, after much research, decided in our own country, expressly in point. That of Schultz v. Hunter, in Pennsylvania, is I think much weakened by Weakley v. Royer. (3 Watts’ R. 460.) Halsey v. Woodruff is indeed an express decision, and upon a deliberate reasoned examination. It is entitled to that great weight which the determination oí the Supreme Court of Massachusetts always commands. Simpson v. Perry is also in point.

And as to the opinions of those eminent jurists, Judges Denio and Parker, in Beal v. Finch, it may be sufficient to say that their approbation of the rule of Halsey v. Woodruff, is purely obiter; that the purposes of the argument they were using was as effectually served by the rule, that the assessment of several damages, when the tort is joint, and judgment accordingly, requires a new trial or reversal of judgment, as by the principle they gave their authority to sustain, that the tort feasor, found guilty in the less degree, should be mulcted in the penalty of the deepest offender.

On the other side the case of Ammonett v. Harris and others, (1 Hen. & Mumf., 488,) settled, that if the jury in a joint action against several for assault and battery, assess the damages severally against the several defendants, the cases of all being before the same jury, it is error, unless the plaintiff enter a nolle prosequi against all but one, and take judgment for the damages assessed against that one. Crane v. Hummerstone, (Croke, James, 384,) and Rodney v. Strode, (ut supra,) are much relied upon.

So in Layman and others v. Hendrix, in error, (1 Ala. R., 212,) the verdict in trespass against several, pleading separately was for the plaintiff, fining W. S., $100; G. L., $300; D. S., $300; and S. W., $300. Judgment was entered .against all for $1,000. The Court held, 1st. That an apportionment of damages in a case of joint trespass, was unwarranted by law. 2d. The plaintiff was entitled to a joint verdict against all; an instruction to sever the damages'would be error. 3d. If the jury, returning a joint verdict of guilty, should .assess several-damages, the irregularity could be cured by the plaintiff, either by having a venire de novo, or by entering a nolle prosequi as to all but one of the defendants, whom he may elect, and charge him with the damages assessed against" him. The cause was remanded for the plaintiff to elect which of these courses he would adopt.

The case of Crawford v. Morris, (5 Grat., 90, Va.,) points out the remedy in such a case to be a nolle prosequi as to others, and judgment as to one. Hotting is said as to a new trial; but in our State, at least, a General Term would, have the power to grant it. (Code, § 330; 17 N. Y. R., 31.)

In Knott v, Cunningham, (2 Sneed’s R., 204, Tenn.,) the Court stated that in case of several actions for one trespass, and unequal damages, the plaintiff may elect which defendant to proceed against.

The same rule was declared in Page v. Freeman, (4 Bennett, 19 Mo.,) and in Golding v. Hall, (9 Por., 169 Ala.,) the rule was applied with clearness and decision, that the judgment could only be rendered 'against the one for the higher damages, and costs only against the others found also guilty. See also Davis v. Chance. (2 Yer., 94.)

And as to English authorities, Heydon’s case, (11 Coke’s R., 5,) is the leading case of those I have been able to find in any way tending to support the proposition. It is the only case cited in Halsey v. Tffoodruff, and deserves careful examination. It is shortly reported in Croke, James, p. 350 Anno., 12 Jacobi in the King’s Bench, under the title of Jeffery Cobb v. Sir John Heydon.

The action was assault and battery against Jeffery Cobb, Thomas Walpole, Froxmere Cochet, and four others. The plaintiff declared against them severally with a simul cum as to the others. Cocket plead son assault demesne. The issue was found, against him with £200 damages. Walpole plead not guilty, and damages were assessed by another jury at £50, and judgment was given against him. Afterwards judgment was given against Jeffery Cobb upon a non sum vnformatus, and a writ of inquiry of damages awarded. Upon the return vicecomes non misit breve, the judgment was entered reciting that in an action for this battery, judgment had been recovered against Cobb for £200, &c.; and judgment was given against all the other defendants for this £200 so assessed against Cobb, (11 Coke, 6 B.,) and this judgment was affirmed in King’s Bench.

When pressed with the argument that excessive damages might be given against one by consent, or negligence, with which the other would be charged, the answer was, that attaint would lie against the jury.

Perhaps the exact case of a previous trial and assesment of damages against one of several jointly charged, could not now regularly take place. It was questioned long ago in England. The same jury, by the practice now, is as well to inquire as to those who are in default, as to try the issues raised by the others.

I venture to say that the principle of Sir JohnHeydon’s case would not be supported in our tribunals. I cannot believe that a separate trial of one in the absence of another party, charged on the record with the same offense, who has no opportunity of being then heard, could be the basis of a judgment for damages, when he denies the offense, assuming that it can be when he makes default.

The case cited from Croke, Charles, is Johns & Robinson v. JDodsworth, and is certainly in point. On a trial against two pleading separately, the jury assessed £100 against one, and £50 against the other. Judgment was taken against both in £100, and it was affirmed. The objection taken was that there had been no remittitur of the £50. This was overruled.

The case from 1 Wilson’s Reports, 30, is Sabin v. Long—Trespass against three. Two pleaded, and the other made default. On the trial of the issue, the verdict was for the plaintiff with thirty-five shillings damages. Upon a writ of inquiry against the other, the jury assessed two shillings damages. Judgment was entered against the two for the thirty-five shillings, and against the other for two shillings. Motion to strike out the latter, and to enter judgment against all for the thirty-five shillings. It was denied on the ground that it was not made during the same term as the judgment. The Court observed, that when several damages were given the plaintiff might take judgment de melioribus damnis, or enter a remittitur; but taking judgment for the whole, the aggregate of the verdict, was bad at law.

This review of the English cases shows that the alleged rule rests upon the doctrine in Hey don's case, never recognized in our State, and I apprehend indefensible in principle; upon the case of Sabin v. Long, where the defendant, by his default, had ad mitted the wrong and may reasonably be treated to have submit ted himself to the measure of compensation found against his associates; and upon Johns v. Dodsworth, which I admit not open to any sound cavil or distinction.

If the rule was indisputable and unqualified that, in the case of a joint trespass or tort, the damages must be assessed against all upon the basis of the culpability of the chief aggressor, the argument would be strong, that, in charging the least culpable with higher damages, he cannot pay more than he legally ought to pay; that in truth he will be relieved from payment of some amount, short of the compensation which the jury have declared was the measure of the wrong. In the present case, for example, $750 was that measure, and he is charged with $600.

It is vain to imagine that the rule adverted to can ever be established with and adhered to by the juries. There is something of an innate sense, whether right or wrong, which will make verdicts, in these cases, matters of compromise between the aggravated guilt of one, and the slight participation of another; and through the whole line of cases, this feeling is exhibited in the separation of the damages assessed. In Sir John Heydon’s case, the jury discriminated on this very ground, as appears by the Eeport, (11 Coke, 5,) and similar instances are abundant. If, as Baron Pollock suggests, the plaintiff will not proceed against the chief offender, he must abide by the risk of a verdict resulting from the conflict of these views. The regulation of punishment by the degree of culpability has its origin in the influence of the great law, that one shall not bear the iniquity of another; and we may hesitate in deciding which will answer best the high purposes of justice, the reconciliation through the minds of a jury of these combatting principles, in a verdict induced by them all, or the rigid rule which makes the highest guilt the measure of punishment to the slight offender. Even here the rule contended for is not logically consistent with the principle on which it is based, for the aggregate of all the damages is the measure of the compensation and ought to be the Sum charged upon each.

When the argument is pressed, that the compensation to the plaintiff, and the equal liability of the defendants, are the true principles upon which the whole question turns, we must discriminate. If the action is one which relates to property, a trespass for example in cutting down trees, the value is ordinarily the measure of damages, and each party may reasonably be bound to pay that value, because remuneration is the primary if not exclusive rule.

But when the case is one of libel, punitory damages as they are termed, almost always furnish the guide for a verdict. Very frequently there is no measure for damages by which they can be given as compensation for an injury; but they are inflicted wholly with a view to punish and make an example of the defendant. (Wallace, Jr., R., 164; Fry v. Bennett, 4 Duer R., 247; Kendall v. Stone, 2 Sand. S. C. R., 269; Sedgwick on Damages, 458-465.)

If this is so, then the culpability of a defendant is the standard of punishment, and it seems necessarily to follow, that where there are several defendants, the different degrees of their respective culpability must have, and ought to possess, consideration and effect. If the law will not permit this principle to be carried out, by sanctioning the separation of damages against several defendants, the next best method of preserving it in force is by leaving it to the jury to modify their verdict as against all, beneath its guidance, or at least admitting its influence.

My conclusion is, that while the entry of a judgment in a case of a joint trespass against several, for damages separately assessed, is ground of reversal, it is equally so, to enter judgment against two for the higher damages found against one, when lesser damages have been found against the other. This error is ground for a new trial.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court—Hoffman, J.

license: Public Domain

text:
    Edward Potter, Plaintiff and Respondent, v. Melancthon L. Seymour, Defendant and Appellant.
    1. Where an owner being about to erect a building on his lot contracts with a person to furnish and set the marble for the front thereof, -agreeably to certain specifications, and for a definite sum agreed to be paid therefor, and such .owner neither interferes with the work nor reserves any right of interference or direction, such owner is not liable to a third person for an injury sustained by the latter in consequence of the negligence of the contractor's employees engaged in setting the marble. In such casé those employees are not the owner’s servants.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 10th, 1858;
    decided, February 12th, 1859.
    This action came before the Court at General Term, by .appeal taken by the defendant from the judgment entered on a verdict for the plaintiff .on a trial before Chief Justice Oakley and a jury,.on the 4th day of March, 1857.
    The complaint, charged, in .substance that the defendant was engaged by his servants and agents in erecting a building on his lot, upon John street, in the city of Hew York, and that during the progress of the.erection, the defendant caused a large derrick to. be erected thereon, and that owing to the insecure and negligent manner in which the derrick was constructed and secured by the. defendant and his servants, &c., it fell, and injured-the plaintiff,(who was passing along the street,)very-severely;, and claimed damages.
    The defendant, by his answer, admitted the ownership, of the lot, and the fact that the plaintiff- was injured by the falling of a derrick from the building, and averred that one Bunting, was engaged in the erection of a brick and marble building, having been employed and contracted with by the defendant. And the defendant averred that neither himself nor any agent, servant or person in his employ, or under his direction or control, erected or caused to be erected the derrick aforesaid, or had any charge or management or control thereof, and that the acts, deeds, .matters and things alleged to have been the cause .of the injuries and damages to the plaintiff, were in no respect the act of the defendant, nor of Ms servants or agents, nor of any person m his employ.
    On the trial the plaintiff showed that while walking in the street he sustained the injury complained of, by or in consequence of the fall of the derrick, which was upon the top of the building, and was erected for the purpose of raising the marble, composing the front wall, by the persons employed in that work, and the evidence tended to show that it was left insecurely fastened by the workmen employed therein, when they left work the previous evening.
    The defendant attempted to prove that the building was erected by one Bunting, under a verbal agreement, by wMch the latter was to make the erection upon his own responsibility, and without any control of the defendant. Questions arose in relation to the defendant’s exoneration upon that ground, which are noticed in the opinion of the Court; but the jury found, as a fact, that Bunting acted merely as the defendant’s agent. But the proof also showed that the marble front, in the erection of which only the derrick was used, was put up by one Adair, under a contract made with him by Bunting, Adair was, and had been for some years, engaged in and carried on the business of putting up marble fronts of buildings. His business he carried on as a contractor for the job—that is, by contracting to furnish the materials and put up the fronts. He contracted in writing with Bunting, that he would put up the front of the building in question, of a description of marble specified, in conformity with plans and specifications referred to, for the sum of $1,542, including the setting of the marble. He performed his contract. The workmen employed by Mm put up and used the derrick. His workmen were guilty of the negligence (if any) in leaving the derrick insecure. The defendant exercised no control and gave no directions on the subject. The question whether there was any negligence, or whether the derrick was thrown down by an extraordinary wind of unusual violence, and notwithstanding proper care, was contested before the jury.
    The defendant’s counsel requested the Chief Justice to charge the jury, that if they should find that a contract had been made with the witness, John Adair, to put up the marble front, and that he was exercising an independent employment under said contract, and the accident was the result of his negligence or that of his servants, the defendant, in law, was not liable; or that if the negligence of Adair’s servants had caused the accident, and the defendant had not the right to choose said servants, the defendant, in law, was not liable.
    The Court then charged the jury,
    1st. That if the plaintiff was guilty of any want of care, so as to have contributed to the injury, the defendant was not liable.
    2d. That the jury was to inquire if there had been any bargain on- the part of the plaintiff to have the work done by contract.
    3d. If, by the contract with Bunting, the defendant had parted with the control of the work while it was going on, and did not interfere with Bunting, then he (the defendant) is not responsible; but if the jury should believe that Bunting was acting as defendant’s agent, then he is responsible.
    4th. The contract with Adair, as proved, does not affect the right of the plaintiff.
    To which ■ ruling of the Court, and each part thereof, the defendant’s counsel excepted.
    The case was then submitted to the jury, who found a verdict for the plaintiff, and assessed the damages at $3,500.
    From the judgment entered on the verdict, the defendant appealed.

      Clement D. Newman, for the appellant.
    The Judge erred in refusing to charge as requested concerning the contract with John Adair.
    The rule of respondeat stiperior does not apply between the defendant and Adair’s workmen. The accident was the result of the carelessness of Adair’s workmen. Adair was their superior, they were his subordinates, not the defendant’s. (See Blake v. Ferris, 1 Seld., 48; Pack v. The Mayor, &c., 4 id., 222; Kelly v. The Mayor, &c., 1 Kern, 432.)
    These cases settle the principle that no one can be held responsible as principal who has not the right to choose the agent from whose act the injury flows.
    Adair was the immediate employer of the men whose negligence caused the injury. The case of Blake v. Ferris determines that Adair alone is liable; it holds that “ the immediate employer of the agent or servant, through whose negligence an injury occurs, is the person responsible for the negligence of such agent or servant. To him the principle respondeat superior applies. There cannot be two superiors severally responsible in such case.” s

      Solomon L. Hull, for the plaintiff, respondent.
    1. The so-called contract with Adair does not prove, or tend to prove, that defendant had parted with the control or possession of the front of said building, or any part thereof.
    2. The said contract does not show that Adair had the sole and exclusive direction of putting up the front of said building.
    3. Hor does it show that he had the sole and exclusive possession and control of the front of said building, while it was being put up.
    4. The said building, including the front, was being erected under the personal supervision and direction of Bunting, the defendant’s agent.
    5. What was Adair’s exact relation to the building does not appear from the evidence: whether there was in fact a contract, and if so, what were the terms and conditions of such contract is not explained by the evidence; but sufficient appears to show that Adair’s relation to the building and to defendant, does not affect the right of the plaintiff to recover. (Blake v. Ferris, 1 Seld., 48; City of Buffalo v. Holloway, 3 id., 493; McCleary v. Kent, 3 Duer, 27; Hegeman v. Western R. R. Co., 16 Barb., 360; 3 Kern., 9; Bailey v. City of New York, 3 Hill, 531; Kelly v. City of New York, 1 Kern., 432; Pack v. City of New York, 4 Seld., 222.)
   By the Court—Hoffman, J.

The exceptions to the charge and the requests of the defendant’s counsel are first to be noticed.

A defense set up in the answer was, that the vyhole erection of the building had been committed to Bunting, under a contract which gave him full and unlimited control as well as possession of the premises, and thus exonerated the defendant.

The Court .charged that if the jury found that the defendant had made a contract with any one to build the store and do the work, and had given such contractor the possession and control of the premises for that purpose; and such possession and control were existing at the-time of the accident, the defendant was not liable in law.

And again, “if by the contract with Bunting, the defendant had parted with the control of the work while it was going on, and did not interfere with Bunting, then the defendant is not responsible; but if the jury should believe that Bunting was acting as the defendant’s agent, then-he is responsible.”

It would seem' that- the defendant’s counsel excepted to this; and yet if they did, they must be considered as excepting also to that part of the charge stating that if the plaintiff was guilty of any want of care, so as to have contributed to the injury, the defendant was not liable. This is one of four several propositions laid down by the Court, and the exception, as stated in the case, follows the four, and is, “to which ruling of the Court, and each part thereof, the defendant’s counsel excepted ?”

And again, the Judge charged, in the second of those propositions, “ that the j ury was to inquire if there had been any bargain on the part of the defendant to have the work done by contract.” It is not obvious why -the defendant should object to this.

It is probable that the exception was limited to the fourth proposition relating to Adair, and afterwards noticed. But if it went to the whole, we consider that, so far as it respects the defense and case connected with Bunting, or generally as to a contract with any one, the exception is not available.

The principal question arises, on "the following request and charge: -- '■

The defendant requested the Judge to charge the jury, “ that if they should find that a contract had been made with the witness Adair to put up the marble front, and that he was exercising an independent employment under said contract, and the accident was the result of his negligence or that of his servants, the defendant, in law, was not liable; or that if the negligence of Adair’s servants had caused the accident, and the defendant had not the right to choose the said servants, the defendant was not liable in law."

The Judge charged “ that the contract with Adair, as proved, did not affect the right of the plaintiff.”

Adair was a contractor for putting up marble fronts. ■ He made an estimate for the houses in question, and contracted with Bunting, who, as the jury must be taken to have found, was the defendant’s agent.

The estimate of Adair was given in evidence. This he termed his contract with Bunting, to whom he gave the proposition, and who employed him to put up the fronts. The work was done according to the estimate price. The derrick was put up by Urey, a workman of Adair, employed by him for that purpose.

It may be added, that the defendant, on his examination, states that he believes Adair was employed in the erection of the building ; that is, in putting up the marble fronts; that he never gave any directions to the workmen employed; that he never paid any one but Bunting; the latter mentioned to him at several times the names of persons with whom -he had contracted, but did not consult him as to them. We are justified in inferring that Bunting paid Adair.

Board, the carpenter, also states that he did the carpenter’s work on the building, and made his contract for it with Bunting. It was begun in June and finished in November. He did some other work for defendant in the basement, not within his contract.

It is to be assumed, then, that Bunting was the defendant’s agent, through whom he made the various contracts, or employed the different persons to furnish the materials, or do the work. And the case must be treated as if such contracts and employments had been made directly with the different persons by the defendant himself. Thus, when the Judge charged that if the defendant had not been guilty of negligence, the plaintiff could not recover, and that the plaintiff must show negligence, and that the contract with Adair did not affect the right, he must have meant that the negligence of Adair or his servants was that of the defendant.

Thus the case resolves itself into this. An owner employed a skillful builder to select persons with whom to contract for the building of a house, and made, through him, separate contracts, with different persons, for the main portions of the building, with the carpenter, the marble man, and workman for the front, with some others for mason work, &c. He never interfered with or directed the workmen. He did not expressly reserve any right to interfere. Is he responsible for the faults and omissions of all and each of them, causing injury to others ?

The rule of Blake v. Ferris, and the other cases in the Court of Appeals is thus stated by Mr. Justice Jewett, (4 Seld., 226,) “ The doctrine is, that a person who undertakes the erection of a building for his own benefit, is not responsible for injuries to third persons, occasioned by the- negligence of a person or his servant, who is actually engaged in erecting the whole work, under an independent employment or a general contract for that purpose.”

The test appears to be this: - Does the relation of master and servant exist between the person sought to be charged, and the person doing the injury ? And this test is applied by the inquiry, whether the latter is under the control, and subject to the orders of the former, in relation to the performance of the work.

Mr. Justice Habéis in Blackwell v. Wiswall, (24 Barb., 355,) embodies the rule in this short form: “ The only principle upon which one man can be made liable for the wrongful acts of another is, that such a relation exists between them, that the former, whether he be called principal or master, is bound to control the conduct of the latter, whether he be agent or servant. The party sought to be charged must stand in the relation of superior to the person whose wrongful act is the ground of complaint.” The decision hereafter noticed was adopted at General Term.

In Scott v. The Mayor of the City of Manchester, (37 Eng. L. and Eq. R., 495,) the rule was thus stated by Baron Aldebson, “ The person who selects the workmen is the party liable. Commissioners may get rid of liability by making contracts, but if they employ their own servants to do the work, they will be hable for the acts of such servants.”

In Sadler v. Henlock, (30 Eng. L. and Eq. R., 167,) CbomptOjV, Justice, says, “ The real test is, whether the employer has any control over the persons employed ; whether the payment was by the day or the piece can make no difference. The defendant could, during the progress of the work, overlook and direct what was to be done, and the manner of doing it. It is only on the ground of the relation of employer and contractor being different from that of master and servant, than I can understand the authorities.”

Rapson v. Cubitt, (9 Mees. & Wels., 710,) is cited by Mr. Justice Jewett in Pack v. The Mayor. (4 Seld., 226.) Cubitt had contracted with the Clarence Club to make certain alterations in the club-house; among other things to prepare and put up the gas fittings. Hé made a sub-contract with Bland, a gas-fitter, to do that part of the work. Through Bland’s negligence, the. gas exploded, and injured the plaintiff. The Court held, that the action would not lie against Cubitt, but only against Bland. The latter was not Cubitt’s servant.

Two important cases have been determined by the Supreme Court in the third district, that of Blackwell v. Wiswall, (24 Barb., 355,) and Norton, adm., v. Wiswell. (26 id., 618.) They arose out of the same state of facts. The defendant had a license to run a ferry, from the proper public authority. One Morrison was the lessee of the licensee at a yearly rent. A boatman in his employ upset a boat, by which the plaintiff’s intestate lost his life. The negligence of the ferryman was the cause. The direction and management of the ferry was entirely in Morrison. It was held that the defendants were not liable. Judge Hogeboom in the latter case goes through the authorities with great care. He says: “ Where one is the master or principal of another he is responsible for his acts, because he has conferred authority upon the latter to do the act, and because he has the power and the legal right to do the act.” And he applies this rule to the facts of the case thus: “ The servants of the lessee were not his" (the defendant’s) “servants. He cannot control them. He cannot give them orders which they are bound to obey. Having no authority over them, and having conferred no power upon them, he is not responsible for their acts. He stands in no relation to them which makes applicable to him the maxim respondeat superior.”

The learned Judge analyses the case of Congreve v. Morgan, in this Court, (5 Duer, 495,) and shows the various points of distinction between it and cases of the character now considered.

In Gourdier v. Cormack, (2 E. D. Smith, 254,) the Court of Common Pleas applied the doctrine of Blake v. Ferris to the case of an injury from blasting done by a contractor, who by the agreement had assumed the work with the manner of performing it. The owner had no control or superintendence.

A question not unlike the present is adverted to in McCleary v. Kent, (3 Duer, 27-35,) thus, whether a contractor for an entire building may relieve himself from all liability for the negligent acts or omissions of laborers, by parcelling out-the work to subcontractors in distinct jobs was a question not arising; that the' principle of Blalce v. Ferris would not require the Court to go to that extent, and it was not .a decision they would be willing to make. ■

Yet, when we once arrive at the principle that employment, control, and supervision, or the right to such, over the person whose neglect was the immediate cause of the injury, is to test all these cases, the logical result seems inevitable, that such rule is as applicable to contracts for distinct portions of a building as to a contract for the whole. Why, if a contract with a mason, and another with a carpenter, covers the whole erection, and each has the sole authority to employ and direct the sub-workmen in his particular department, why should the owner be responsible for the faults of. their respective workmen and be exempt had he committed the whole erection to one of them ? I have not been able to discern a solid reason for such a distinction.

The question whether a defendant has the power of employment and control, may be one of mere law or of a mixed character. Where, as in Back v. The Mayor, &c., it depends upon a written contract, it is merely one of law. In other cases, the acts of the party may interpret the contract. Instances of direction and interference may determine the true relation. The question is to be solved upon the facts.

It may be strictly right, however, to state two propositions, one, that the mere omission to interfere is not decisive in favor ■of an owner. The power to interfere may be enough. The counsel in Norton v. Wiswall, {supra,) asked the Court to charge this; and, next, that presumptively a contract for the entire performance of a given portion of a building, raises a presumption of control in the contractor, and of its being surrendered by the owner. The idea of a contract with a mason, for example, that he should perform the entire mason work and supply the mate-trials, appears from its very nature to create in him the responsibility, and hence to confer the authority. He is liable for the faithful fulfillment of his agreement. Entire direction and choice of servants is necessary for this. Interference might disable or embarrass him in that performance.

It seems to me that there was error committed upon the trial. Either the learned Judge should have treated the-contract with Adair as a defense, or should have left some such question to the jury as the counsel for the defendant requested him to do.

Judgment reversed. Hew trial ordered. Costs to abide the event.


text:
    Abraham Fowler, Plaintiff and Appellant, v. Peter Moller, Defendant and Respondent.
    1. A promise by the assignee of a lease to the landlord, that if the latter wil permit him to remain in possession of the premises, he will pay the arrears of rent due from the lessee, is a collateral promise, and if not in writing, is void by the statute of frauds.
    2. J. H. F., tenant in possession of a store under a lease from P. M., sold out to his father, A. F., there then being $103.50 rent in arrear. A. F. took possession, and afterwards promised the landlord that if he “would allow him to remain he would pay the back rent due by his son.” A. F. (the father) occupied thereafter about six weeks, sold out the goods, and gave up the premises: Held, upon these facts, that A. F. was not liable for the arrears of rent, but only for the rent which became payable after he took possession.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 15th;
    decided, February 12, 1859
    The case came before the Court upon an appeal from a judgment entered upon the decision of Philo T. Ruggles, Esq., as referee. He found that there was nothing due from the defendant to the plaintiff; but, on the contrary, that the plaintiff was indebted to the defendant in the sum of $5.14. Judgment for the defendant was entered upon his decision for that amount, with costs, being, in the whole, $85.69.

      The plaintiff demanded in his complaint the value of a rosewood sofa, alleged to be reasonably worth $95, and of a walnut centre table, alleged to be reasonably worth $55, delivered to the defendant, at his request, and sent to his residence, and prayed judgment for $150, with interest and costs.
    The answer denied only the value of the centre table. Delivery of the articles, and the value of the sofa, were therefore admitted. It averred that the centre table was made of bad and inferior materials, and made in a rough and unworkmanlike manner, and that it was not worth more than $35.
    The answer then averred, by way of counterclaim, “ that the plaintiff owes the defendant for the use and occupation of the defendant’s store, at the corner of Clinton and Madison streets,' in the city of Hew York, and, as the tenant of the defendant, and, as the lessee of the defendant’s premises, the sum of at least $150, besides interest from the 15th of March, 1856.”
    The plaintiff replied to the counterclaim, denying all the allegations relating thereto.
    The cause was referred to Philo T. Rugóles, Esq., to hear and determine the issues.
    The referee found as follows:
    1st. That the plaintiff, Abraham Eowler, delivered to the defendant, Peter Moller, in the month of June, 1856, and at his request, one rosewood sofa, and one walnut centre table, and that the said sofa was reasonably worth $95, and the centre table $45, thus making the whole amount of the claim which the said plaintiff established against the said defendant the sum of $140.
    2d. That at the time and before the said plaintiff delivered the said sofa and centre table to the said defendant, he, the said plaintiff, was indebted to and owed the said defendant for the use and occupation of the defendant’s store at the corner of Clinton and Madison streets, in the city of Hew York, and as the tenant and lessee of the said defendant’s premises, and over and above all offsets, the sum of $145.14.
    3d. That, at the time of the commencement of this action, there was hnd still is justly due and owing from the said plaintiff to the said defendant, over and above all offsets and counterclaim, the sum of $5.14.'

      The referee also arrived at the following conclusion of law:
    That the said plaintiff is not, and was not, at the commencement of this action, entitled to anything from the said defendant but that the said defendant was and is entitled to judgment against the said plaintiff for said sum of $5.14, together with his costs, and to have execution therefor.
    Exceptions were taken to the finding and decision of the referee, sufficient to raise all the questions.
    Upon the trial, evidence was given by each party on the subject of the value of the centre table, in controversy. And to establish his counterclaim, the defendant put in evidence a lease from himself, to John H. Fowler, a son of the plaintiff, by which the defendant let to the said John H., a store at the corner of Clinton and Madison streets, in the city of New York, for the term of two years, eight months and seventeen .days, from the 13th August, 1855, to end on the 1st day of May, 1858, at the yearly rent of $350, payable quarterly, with various covenants, which it is not material to state, and with 11 a provision that if default be made in the payment of rent, the lease and the relation of landlord and tenant shall, at the option of the lessor, wholly cease and determine, and the lessor may re-enter, &c.
    The defendant then proved, without contradiction, that John H. Fowler, the son, occupied the demised premises until about the 1st day of February, 1856, and then sold the store or place to his father, the plaintiff, who entered on or about the 4th of February, and occupied for about six weeks. At that time, about $102 were due to the defendant, from John H. Fowler, for rent accrued under the lease. The- defendant showed, by one of the witnesses, that after the plaintiff took possession, he “told the witness that he had made an agreement with the defendant, that if the defendant would allow him to remain, he would pay the back rent ■ due by his sonand, also, that the “plaintiff, five or six weeks ago, admitted that he had made the promise, and that it was not valid, because it was not a written one,” and again, “ the plaintiff admitted more than once, that he had made the verbal agreement to pay the back rent of Ms son, but that he was not liable as it was not in writing.”

      The referee allowed to the defendant, as a counterclaim, the rent accrued during the occupation by his son, and also the rent for the period of his own occupation.
    From the judgment entered upon the report of the referee, the plaintiff appealed.

      George Carpenter, for the plaintiff (appellant).
    1. The plaintiff’s promise not being in writing expressing the consideration, is void. (2 R. S., 135, § 2, sub. 2.)
    The original debtor was never discharged, but still remains liable. The plaintiff’s promise was therefore collateral and within the statute. (Brewster v. Silence, 4 Seld., 215; Watson v. Randall, 20 Wend., 201; Jackson v. Rayner, 12 Johns. R., 291; Kingsley v. Balcome, 4 Barb. S. C. R., 131.)
    2. The fact that the promise arises out of a new consideration, will not take the .case out of the statute. (Simpson v. Patten, 4 Johns. R., 422; Hall v. Farmer, 5 Denio, 485, 496; Stern v. Drinker, 2 E. D. Smith, 402; Barker v. Bucklin, 2 Denio, 45.)
    3. There was in fact no legal consideration for the promise.
    1. The consideration was too indefinite—“if defendant would allow plaintiff to remain.” How long? One year, or one day? (Comyn on Conts., 2; 1 Sid., 270; 1 Keb., 776.)
    2. The defendant was in lawful possession, and was entitled to hold till dispossessed by legal process.
    4. At most the consideration was' forbearance to take legal proceedings, and this consideration will not take a case out of the statute. (Authorities above cited, and Watson v. Randall, 20 Wend., 204.)

      Robert Benner, for the defendant (respondent).
    The facts were clearly proved, and the Court will not disturb the judgment. (Grah. & Wat. on N. T., vol. 2, p. 634; State v. Engle, 1 Zab. R., 347; Smith v. Kerr, 1 Barb., 155.)
    The exceptions to the special finding of the referee are unavailing. The referee is in place of a jury, and on questions of fact presumed to be right. (Bacon v. Parker, 12 Conn. R., 212; Kincaird v. Turner, 2 Gil., 618.)
    Again, this is a trifling action, and unimportant in its results, and for that reason alone a new trial should not be granted.
      (Price v. Everitt, 1 East., 583, in notis; 1 Johns. Cas., 255; 5 Johns. R., 137; 10 Johns. R., 447; 2 Cow., 479.)
   By the Court—Hoffman, J.

By whatever rule the referee proceeded in his estimate, it is indisputable that he included the arrears due by the son with the value, at the rate of the lease, of the father’s occupation. It is clear that he did not mean to estimate the actual occupation as worth $145.14, as if there had been no arrears.

The answer alleges, by way of counterclaim, an indebtedness of the plaintiff to the defendant, in at least $150, for the use and occupation of the store, and as the tenant and lessee of the defendant. The referee follows this allegation in his finding.

He does not find that the value of the plaintiff’s occupation, for the period of his enjoyment, was $145.14; but he finds that the plaintiff owes the defendant that sum for the use and occupation of the store, and as tenant and lessee of his premises.

Now, the only evidence on which the finding rests as to the arrears, is this: an admission “ that he had agreed that if Holler would allow him to remain, he would pay the back rent due by his son.” The same witness, on cross-examination, says: “That the plaintiff admitted more than once that he had made a verbal agreement to pay the back rent of his son.”

. If this evidence were sufficient to charge the plaintiff, it would equally define the extent of his liability, and would exclude a responsibility for his own occupation besides, and make the sum to be paid for the privilege of remaining, only the back rent.

When the referee finds that $145.14 was due from the plaintiff, for use and occupation, and as tenant and lessee, he finds a fact, and fixes a price totally against the evidence. All the testimony to fix such value was the lease and nothing could be charged on this basis but for the period of say six weeks, at the rate of the rent therein fixed.

The case must be considered upon the evidence and finding thus: First, that the plaintiff verbally agreed that if the defendant would permit him to occupy the premises, (for a time not fixed but to accomplish the object of a sale,) he would pay the rent then due by his son: Next that he is chargeable, for his own actual use and .occupation, with another amount ascertained to be its value.

If there was no question in the cause arising out of the plaintiff’s occupation of the premises, the case would he very clear. The statute of frauds would undoubtedly apply. The debt of John H. Fowler for the rent, remained as absolutely due after the promise of the plaintiff to pay it as if no word respecting it had been uttered. It was a collateral undertaking for John H. Fowler’s debt and nothing else. (Eastwood v. Kenyon, 11 Adol. & Ellis, 438; Johnson v. Gilbert, 4 Hill, 178; Brown v. Curtiss, 2 Comst., 225; Mallory v. Gillett, 23 Barb., 610; Lord Lexington v. Clark and wife, 2 Vent., 223.)

But it is said, that the plaintiff engaged to pay for his own occupation, and also for the value of that of his son previously had; and that the good promise upon the valid consideration for himself extends to the whole contract and takes the case out of the statute.

So far from this being the result, there is much authority for holding, that if part of a contract is void as being within th<, statute of frauds, the whole is void, although an independent portion of it might have been valid, had it stood alone. (Van Alstyne v. Wimple, 5 Cow., 162; Lord Lexington v. Clark and wife, 2 Ventr., 223, there cited.)

In this last case, Brady was tenant at will of the plaintiff at a rent of £320. He died, and his widow while sole, (now wife of defendant Clark,) in consideration of the plaintiff’s allowing her to remain till Lady Day next, promised to pay £160 rent in arrear, and £260 more. ■ The £160 was paid before suit was brought, and it was held, that this part of the agreement being void, as it was to pay the debt of another, and not in writing, the residue was void also, although, had it .stood by itself, it might have been enforced.

Modern decisions, appear, however, to countenance a different rule, and to sustain the valid portion of a contract wherever it is separable from that part which is void, and to nullify only that which is illegal. (Wood v. Benson, 2 Cromp. & Jer., 94; Rand v. Mather, 11 Cush., 1.) The former is exactly in point. Part of a contract was void being to pay the debt of another,* and part good as the promiser’s own debt. It was supported pro tanto.

In Rand v. Mather, the subject was fully examined, and the general tendency of modern cases, to support such portions of instruments as are legal, and reject the residue was noticed. To the authorities cited may be added the important one of Curtis v. Leavitt. (15 N. Y. R., 124.)

The judgment must be reversed, and a new trial ordered, costs to abide the event.

Ordered accordingly.