Opinion
February Term, 1897.
Present Van Brunt, P.J., Barrett, Rumsey, O'Brien and Ingraham, JJ.
Order affirmed, with ten dollars costs and disbursements, on opinion of the court below.
The following is the opinion of the court below:
The defendant Burke alone appealed to the Court of Appeals from the order below reversing the judgment of the Special Term and ordering a new trial. And, unless there is technical objection to it, he should, logically speaking, be the only participant in the benefits of the judgment of that court by which the order of the General Term has been reversed. The order defendants by not appealing must be considered as having acquiesced in the direction for a new trial. The action is an equitable one, and the defendants, other than the trust company and the railroad company, are called upon to account for the proceeds of certain bonds of the railroad company alleged to have been fraudulently appropriated and diverted by them from the uses and purposes for which the bonds had been authorized to be issued. It is of such a character that judgment could, in the first instance, be rendered against some of the defendants and in favor of the others, or the Appellate Division could, on appeal, reverse a judgment below as to some and affirm it as to the others. ( Hubbell v. Meigs, 50 N.Y. 480) In other words, the liability is several, and the presence of Burke in the action is not essential to its further prosecution against the remaining defendants. They cannot be held liable without proof of the fraud charged against them, and if such proof is made, the liability of each therefor is quite unaffected by the fact that others were equally guilty There does not, therefore, seem to be any reason, suggested by the nature of the action, which requires that the General Term order must stand or fall as a whole. Numerous cases have been cited by the learned counsel for the defendant Andrews in support of the position that where the judgment is entire, but is affected in part by reversible error, it must be wholly reversed, and that the court cannot affirm it in part and reverse it in part and order a new trial pro tanto. The authorities cited, however, in so far as they have not been reversed, seem to apply mainly to cases where, as a matter of law, none is liable unless all are liable, where the liability is joint or where attempts have been made to affirm as to part of the subject-matter and to reverse as to the balance. The case under consideration comes under a different class. The liability, as has been said, is several. ( Williams v. West U. Tel. Co., 93 N.Y. 162; see remarks of EARL, J., p. 194.) In the case of Bullis v. Montgomery ( 50 N.Y. 352) an action was brought against the sheriff and others, who had been plaintiffs in a replevin suit, to recover damages for taking the property. A verdict was rendered against all of the defendants. The General Term reversed the judgment and ordered a new trial. On appeal therefrom to the Court of Appeals, that court affirmed the order as to the sheriff, but reversed it with respect to the other defendants. The appeal was taken by all of the defendants. This case is cited by the court in Hubbell v. Meigs ( supra). The case of Hooper v. Beecher (39 N.Y. St. Repr. 320), cited by counsel for appellant, is clearly distinguishable from this. There the appellant and the non-appealing party were copartners; the act complained of related to the copartnership and their liability was joint. It is urged that upon a new trial the plaintiff cannot better his case, and that, therefore, a new trial would be an idle ceremony. This contention, however, whatever it may be worth, assumes too much. It is not impossible that the plaintiff might, upon a new trial, be able to present additional facts which would rebut the inference drawn by the Court of Appeals from the facts then before it that the plaintiff had full knowledge of the acts complained of. Upon both authority and principle, then, it seems to me that the Court of Appeals had the power to reverse the order of the General Term in part and to affirm it in part; that having entertained the single appeal of the defendant Burke, its judgment was operative only with respect to his rights and status in the litigation, and that the effect of the judgment was to reverse the order as to him alone; leaving it to stand as to the other defendants, who, technically, were satisfied with it. The judgment of this court, made and entered upon the remittitur from the Court of Appeals, as amended by the order bearing date on the 31st day of March, 1896, seems to follow this theory, for it awards judgment to Burke alone, dismissing the complaint on the merits. It follows from what has been said that the motion to vacate the order directing the court to erase from the docket of the original judgment the memorandum that the order of the General Term was reversed, and the judgment of the Special Term affirmed, must be denied.