Schultz v. United States Fidelity & Guaranty Co.

Per Curiam.

This action was to enforce an undertaking, which had been given by the defendant upon an appeal in a former action from a judgment recovered” by this plaintiff against certain other parties. That action was for the false arrest and the malicious prosecution of the plaintiff and was brought against the Greenwood Cemetery and William Smith. Smith was a special police officer of the city of New York and was in the employment of the Cemetery. He was instructed, among other things, to arrest persons for picking flowers in cemetery lots and he had arrested and prosecuted the plaintiff for that offense; but the case against her was dismissed. She then commenced her action, making both Smith and the Cemetery defendants, and she recovered a verdict; upon which a judgment was entered against both defendants. Each of these defendants had appeared separately, and bj different attorneys, and each separately appealed from the judgment to the Appellate Division. The appellants duly furnished an undertaking, wherein this defendant undertook that “ if the judgment so appealed from is affirmed, or the appeal is dismissed, the appellants will pay the sum recovered or directed to be paid by the judgment, or the part thereof as to which it is affirmed.” The Appellate Division affirmed the judgment unanimously and refused an application for leave to appeal to this court, which the Greenwood Cemetery made. Subsequently, the application was renewed by the Cemetery, in its own behalf, to a judge of this court, by whom it was granted, and an appeal was taken by that *233 defendant, alone. In this court, after hearing the appellant, the judgment so appealed from was reversed and a new trial in the action was ordered. Demand was made upon this defendant for the payment of the judgment for damages, as affirmed against the defendant Smith, and, upon refusal, this action was brought; in which this plaintiffs claim has thus fai been sustained.

We think the judgment below was right. The contention of the appellant is quite unsound, in the proposition that the reversal by this court of the judgment in the other action, upon the Cemetery’s appeal, annulled it as to the non-appealing defendant as well and, therefore, that the obligation of this appellant, as surety, was wholly discharged. . The judgment, which was entered in that other action against the two defendants, was not entire, in the sense that it was incapable of several enforcement. The defendants were severally, as well as jointly, liable for the tort alleged to have been committed upon the plaintiff. The fact is that the jury returned a verdict for the sum of $4,000 against each defendant and the judgment was entered against them both for that amount and the costs. The action being in tort, the plaintiff was at liberty to proceed against one, or both, of the wrongdoers. The Cemetery was concerned in the commission of the tort by its employé, if acting under its orders, and could be held responsible for his tortious acts. While it is true that its liability depended upon a case being made out against Smith, the latter’s liability was independent and, however the servant of the corporation, he was responsible to others for his own wrongful acts; whether committed as the individual, or as the police officer detailed to serve the Cemetery. Regarded as master and servant, the Cemetery and Smith could be sued separately for the latter’s tortious acts; but if sued jointly therefor and notwithstanding the issue was identical, that would not prevent a judgment, in form against them both, from being enforceable, or appealable, severally. Whether a judgment is joint, or several, will depend in all cases upon what were the circumstances. The inquiry will *234 be whether the facts showed a judgment binding upon the defendants jointly, as in the case of joint obligors, or of a judgment binding upon the defendants severally, because based upon a liability, in its nature, individual, or distinct. In this case, Smith was a special police officer, whose duty it was to arrest persons committing crimes, and if, in the performance of that duty, he made an unjustifiable, or false, arrest, and acted maliciously, he rendered himself amenable to an action and, also, the Cemetery, if his acts were within the scope of his instructions. The wrong of the servant might be the wrong of the master; but the acts would be those of the individual, nevertheless.

When, therefore, the jury returned a verdict against each defendant, the judgment entered, though in form against both for the amount, was a joint and a several one. It was optional with each defendant to appeal from the judgment, or to submit to it. Each did appeal, separately, and by different attorneys. When the Appellate Division affirmed the judgment, by the unanimous vote of the justices, it became by the statute a final determination ; unless leave to appeal to this court was given by the Appellate Division, or, failing there, by a judge of this court. The defendant Cemetery, only, applied for, and eventually obtained, such leave. In this court the judgment, thus brought up, was only known by the Cemetery’s appeal and its reversal annulled it as against the only defendant before this court. The defendant Smith had submitted to the judgment, in fact as in legal contemplation, and the plaintiff could enforce it, being joint and several, against him, or against his surety in the undertaking on his apjieal. He voluntarily withdrew from the litigation and while the defendant, as surety, might have, very possibly, arranged for an appeal to be taken, through consent, or subrogation, not having done so, it remained liable for Smith’s debt under the judgment. This may have been inadvertent and, therefore, may seem hard, in view of the result obtained by the Cemetery ; but no other conclusion is possible.

Further discussion is unnecessary. The recent opinion in *235 tlie case of St. John v. Andrews Institute, ( 192 N. Y. 382 ), sufficiently discussed the rule in question in tlie light of the authorities and this expression of our views is to confirm the general doctrine there asserted in its application to this case. The judgment should be affirmed.

Cullen, Oh. J., Gray, Yann, Werner, Willard Bartlett and Chase, JJ., concur; Haight, J., absent.

Judgment affirmed, with costs.