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Third Department, January, 1906.

(Vol. 111. ran limited cars at a speed of forty to forty-five miles an hour over this crossing, it was not sufficient for him to content himself with looking for an approaching car for the last time before entering upon the tracks when he was twenty feet distant therefrom, but he should have taken the precaution to have looked again before attempting to cross, and as he had a clear view all along there it was negligence on his part not to do so.

He says in his cross-examination that he thought he could pass if the car slowed down. While it was the duty of the motorman to exercise reasonable care in approaching the highway crossing, his negligence does not excuse the contributory negligence of the plaintiff

The verdict of the jury upon the question of the plaintiff's contributory negligence is clearly against the weight of the evidence. For that reason the judgment should be reversed, with costs to the appellant to abide the event.

All concurred, except Smith and CHASE, JJ., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Charles B. Lawton, Respondent, v. Scott PARTRIDGE, Appellant, Iinpleaded with PETER Harris and Others, Defendants.

Third Department, January 8, 1906. Parties defendant - under complaint against joint defendants judgment

may be had against one only - Code of Civil Procedure, section 1205,

construed. Although a complaint sets out an action to recover for work, labor and services

against joint defendants, a judgment against one of said defendants only is authorized by section 1205 of the Code of Civil Procedure. Said section is ag broad as section 274 of the former Code of Procedure and requires the same

construction. The common-law rule no longer obtains.

APPEAL by the defendant, Scott Partridge, from a judgment of the Supreme Court in part in favor of the plaintiff and against the said defendant, entered in the office of the clerk of the county of Fulton on the 28th day of June, 1905, upon the verdict of a jury, the complaint being dismissed by direction of the court as to the other defendants.

App. Div.]

Third Department, January, 1906.

Andrew J. Nellis and Lee S. Anibal, for the appellant.

Clarence W. Smith and William H. Bass, for the respondent.

а

CHESTER, J.:

The plaintiff sued the defendant Scott Partridge and ten other persons, and in his coinplaint alleged " that heretofore and within six years last past the plaintiff or his servants or employees and teams performed work, labor and services for defendants at their request, knowledge and approval, which work, labor and services were rendered and performed upon lands which plaintiff was informed and verily believes belonged to or was* occupied by the defendants herein ;

that said work, labor and services consisted of forty and seven-tenths (40.7) days of work with man and team at the price, amount and value of $3 per day.". It was also alleged that no part of the amount had been paid, and judgment was demanded for $122.10, with interest from August 28, 1899. At the close of the plaintiff's proof the complaint was dismissed as to all the defendants except Partridge. At the close of the entire testimony the court denied a motion to dismiss the complaint as to Partridge. The ground of the motion was that the facts alleged are not such facts as to justify the proof of a several liability. The court then submitted the question to the jury as to whether Partridge was liable. The jury found a verdict in favor of the plaintiff and Partridge appeals.

It appeared in the proof that the appellant employed one Greene to level up and grade a racetrack, and to hire men and teams for that purpose, and that pursuant to such authority Greene employed

, the plaintiff and his teams upon the work. It was also shown that plaintiff's teams performed the amount of work alleged in the complaint, and that Greene reported the time to the appellant.

The claim of the appellant in this respect is that whatever he did was for a number of people interested in the racetrack, and that in

а what he did he was not acting for limself alone, and that plaintiff knew this.

The court charged the jury in substance that if they were satisfied from the evidence that appellant had the authority to bind

Third Department, January, 1906.

[Vol. 111. somebody else, and did bind somebody else, for the work, then the appellant was not personally liable for it, and that if the plaintiff knew that defendant was not acting for himself but for others, then he would not be liable. He also charged the jury that if defendant in fact employed the plaintiff and that he had no authority to bind anybody else, then the jury might find the defendant personally liable; also, that if defendant employed plaintiff without disclosing his agency they might find the defendant liable. There is no criticism upon the law thus laid down by the court, and the verdict in favor of the plaintiff is supported by sufficient evidence.

The appellant insists, however, that there can be no recovery upon a several liability of the defendant under the plaintiff's complaint, which, as the appellant construes it, alleges only a joint liability.

There is no doubt but that this contention would have been good under the common law, but the role was changed by section 274 of the Code of Procedure, which provided that “in an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper.” Substantially the same provision has been carried into section 1205 of the Code of Civil Procedure, which provides that “where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment or require the plaintiff to take judgment against one or more of the defendants, and direct that the action be severed and proceed against the others as the only defendants therein.”

In Stedeker v. Bernard (102 N. Y. 327) ANDREWS, J., says: “The common-law rule that in an action against several defendants upon an alleged joint contract, the plaintiff must fail unless he establishes the joint liability of all the defendants, is no longer the rule of procedure in this State. By the former Code (s 274) the court was authorized, in an action against several defendants, to render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment was proper. The court in construing this provision did not limit its application to cases of joint and several liability, but considered it as authorizing a separate judgment where a separate liability of some of the defendants was established on the trial, although the

App. Div.]

Third Department, January, 1906.

cause of action as alleged in the complaint was joint only. (McIntosh v. Ensign, 28 N. Y. 169; Fielden v. Lahens, 2 Abb. Ct. App. Dec. 111.) Section 1205 of the present Code is quite as comprehensive as section 274 of the former Code and requires the same construction."

McIntosh v. Ensign (28 N. Y. 169), which was one of the cases cited by Judge ANDREWS in the extract above quoted, was a case where the plaintiff complained against five defendants, alleging a joint liability, where two of the defendants appeared and answered, putting in a simple general denial; three other defendants were non-residents and do not appear to have been served, and a recovery was allowed against the answering defendants upon a several liability. In an opinion in that case, written by WRIGHT, J., he says: "The general rule of the common law undoubtedly was that in an action on an alleged joint contract the plaintiff must have recovered against all the defendants or been defeated. The recovery must have been against all or neither. 'If too many persons were made defendants, the plaintiff would have been nonsuited on the trial, if he failed in proving a joint contract. (1 Chitty's Pleadings, 31.*) But that is not the present rule. A plaintiff is not now to be nonsuited because he has brought too many parties into court. If he could recover against any of the defendants upon the facts proved, had he sued them alone, the recovery against them is proper, although he may have joined others with them in the action against whom no liability is shown. (Code, §§ 136, 274†; Brumskill v. James, 1 Kern. 294; Marquat v. Marquat and wife, 2 id. 336§; Harrington v. Higham, 15 Barb. 524; Parker v. Jackson, 16 id. 33.)"

It was held in Brumskill v. James (supra) that under the Code of Procedure, in an action on an alleged joint contract, the plaintiff might recover against one of several defendants who proved to be severally liable.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs. KELLOGG, J., not sitting.

* See 4th Am. ed.—[REP.

11 N. Y. 294.- [REP.

+ Code Proc. §§ 136, 274.- [REP.

§ 12 N. Y. 336. — [REP.

Third Department, January, 1906.

[Vol. 111.

Roby Anna Vines, Appellant, v. M. JOSEPHINE CLARKE, Respond

ent, Impleaded with JONATHAN FLANDERS and Emma FLANDERS, His Wife.

Third Department, January 8, 1906.

Will — power coupled with interest - conveyance by warranty deed for

full value shows intention to exercise power – husband not necessary party to wife's deed.

When the devisce of a life interest, who wa also named executrix with full

power to sell real estate, sells lands for full value and gives a warranty deed, the transaction itself shows an intention to exercise the power to convey the

fee and not the life estate only. Hence, the rights of a remainderman as against the grantee are cut off. When the donee of a power to sell has also an interest in the subject of the power

and makes a conveyance without reference to the power, it is a question of intention as to whether the conveyance was in pursuance of the power or only

a grant of the interest. It is not necessary for the husband of a donee of such power coupled with an

interest to join in the wife's conveyance.

APPEAL by the plaintiff, Ruby Anna Vines, from a judgment of the Supreme Court in favor of the defendant Clarke, entered in the office of the clerk of the county of Saratoga on the 28th day of March, 1905, upon the decision of the court rendered after a trial before the court without a jury at the Saratoga Trial Term.

The action is for ejectment. The plaintiff claims to be entitled to recover the possession of an undivided one-fifth part of the premises described in the complaint as a remainderman under the will of Smith Mitchell, who died seized and possessed of such premises. By his will, which was proven in the Saratoga County Surrogate's Court September 26, 1870, he devised and bequeathed the use and income of all his real estate to his widow, Delinda Mitchell, for and during the term of her natural life, and upon her decease he devised an undivided one-fifth part of said real estate to the child or children of his son, Commodore P. Mitchell, subject to a life estate therein in favor of the said Commodore P. Mitchell. The latter is now deceased and the plaintiff is his only living child and there is no issue of any predeceased children. By his will said

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