Howk v. Bishop

Boardman, J.: It is undoubtedly true that the General Term has power to reverse a judgment upon appeal as to one defendant and affirm it as to another. (Geraud v. Stagg, 10 How., 369; Story v. N. Y. and H. R. R. Co., 6 N. Y., 86, note; Code, § 366; Van Slyck v. Snell, 6 Lans., 299; Angell v. Cook, 2 T. & C., 175; 4 Wait’s Prac., 523.) But it does not follow that the power must be exercised because it exists. In the present case the judgment of $200.63 was, in fact, reversed by the General Term. Such reversal left no judgment against the defendants or either of them. A new trial was granted to defendant Eckert, who alone appeared and defended. Upon such new trial the defendant Eckert succeeded and recovered a judgment for his entire costs against the plaintiff. Upon what principle of justice, then, would a court make Bishop, who had suffered a default in the action, pay to the plaintiff his costs incurred in an unsuccessful contest with Eckert, while Eckert was at the same time collecting his own costs of his successful defense out of the plaintiff % The defendant Bishop did not [511] choose to take the risk of a litigation. He therefore did not appear in the action, but suffered default. The liability of Bishop was several as well as joint. The plaintiff therefore, upon proper proof, might have entered a separate judgment against Bishop, with costs, as upon a default, and have had execution thereon. Doubtless that may still be done. But the judgment against Eckert and Bishop having been reversed wholly, it cannot be made the basis of an execution against Bishop any more than it can against Eckert. I think the General Term did right in reversing the judgment as to both defendants. There is no reason why Bishop should be held to pay an erroneous judgment for costs because he suffered a default. The record of judgment does not show any service of the summons and complaint upon Bishop, or any default on his part. Nor do such facts elsewhere appear, unless by implication. Eor this reason, also, it seems to me the execution is not- sustained or justified by the judgment. I think, therefore, that the order of the Special Term should be reversed, with ten dollars costs and expenses of printing, and the motion to set aside the execution should be granted, with ten dollars costs. Present — Learned, P. L, Bockes and Boardman, JJ. Order reversed, with ten dollars costs and printing, and execution set aside, with ten dollars coses.