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Second Department, December, 1911.

[Vol. 147.

AUGUST BOHNHOFF, Appellant, . HENRY C. FISCHER, Respondent, Impleaded with WILLIAM KENNEDY.

Second Department, December 21, 1911.

Practice-judgment roll answer of codefendant.

Where a negligence action is brought against two defendants who are jointly and severally liable, the fact that after the issue tendered by one of the defendants has been tried and a judgment rendered against him, the plaintiff enters an order upon a stipulation executed prior to the trial discontinuing the action as to the other defendant, does not entitle the defendant against whom the judgment has been rendered, and who has taken an appeal therefrom, to have inserted in the judgment roll a copy of the answer served by his codefendant.

Where a plaintiff in a negligence action has a right to sue either or both of two defendants and to hold them either severally or jointly liable he can at any time by leave of court discontinue the action as to any or all of such defendants as he may elect.

APPEAL by the plaintiff, August Bohnhoff, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of June, 1911.

Henry M. Dater [George F. Elliott and Jay S. Jones with him on the brief], for the appellant.

Charles E. Thorn, for the respondent.

JENKS, P. J.:

This is an appeal from an order of the Special Term that requires the plaintiff to amend the judgment roll by including a copy of the answer of the defendant Kennedy to the amended complaint, and extends the time of the defendant Fischer to serve his proposed case on appeal for five days after the service of a written notice of the amendment.

This action for negligence was brought originally against Kennedy and Fischer. It appears that by stipulation and consent, dated February 9, 1909, the action was "discontinued" against Kennedy, without costs. The issue joined by Fischer was tried at Trial Term on April 4, 1911, with the result of a verdict for the plaintiff, and judgment was entered thereupon accordingly on April 6, 1911. As the plaintiff had the right to

App. Div.]

Second Department, December, 1911.

sue either or both of the original defendants, or to hold them either severally or jointly, he "could, at any time, by leave of the court, discontinue the action as to any or all of such defendants as he should elect." (Dyett v. Hyman, 129 N. Y. 359.) The judgment roll properly consists of such papers as are necessary to support the judgment thereupon entered. (Anderson Law Dict. "Roll.") If the injury of the plaintiff was due to the tort of Fischer as well as that of Kennedy, Fischer could not complain that the judgment was not against Kennedy also, inasmuch as the liability was several as well as joint. How can it avail Fischer that the judgment against him should show that Kennedy joined issue, or the nature of that plea? The only complication is due to the fact that an order of discontinuance as to Kennedy was not entered until after the rendition of the judgment against Fischer. The order was a matter of course and could be entered ex parte. (2 Rumsey Pr. 164.) I am not prepared to say that entry thereof was essential under the circumstances of this case (2 Nichols N. Y. Pr. 2114), although it is certainly the better practice. In any event, Kennedy alone could complain, for Fischer has no grievance.

The order must be reversed, but without costs, and the motion denied, without costs and without prejudice to the defendant's right to serve his proposed case on appeal.

THOMAS, CARR, WOODWARD and RICH, JJ., concurred.

Order reversed, without costs, and motion denied, without costs, without prejudice to defendant's right to serve his proposed case on appeal.

EDWARD ROWAN, Respondent, . WILLIAM H. SUSSDORFF,

Tort - animal

Appellant.

Second Department, December 21, 1911.

dog is property - nominal damages.
erroneous nonsuit.

abatement

The complaint in an action wherein the plaintiff seeks to recover damages because the defendant came upon his lands and killed his dog should not be dismissed because of the failure of the plaintiff to prove the value of the dog. A dog is property, and hence its destruction without APP. DIV.-VOL. CXLVII. 43

Second Department, December, 1911.

[Vol. 147.

justification entitled the plaintiff to nominal damages, and even if the dog were valueless the trespass upon the plaintiff's lands entitled the plaintiff to a recovery.

The rule that a judgment will not be reversed in order to afford the appellant an opportunity to recover nominal damages does not apply where the failure of the appellant to show more than nominal damages was not inherent in his cause of action, but was due to his temporary inability to produce witnesses as to damages.

The pendency of two actions cannot be pleaded in abatement unless they were begun simultaneously; if begun at different times, the pendency of the former action may be pleaded in abatement of the latter action.

APPEAL by the defendant, William H. Sussdorff, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 13th day of March, 1911.

Adelbert W. Boynton, for the appellant.

William J. Martin, for the respondent.

JENKS, P. J.:

This is an appeal from an order at Trial Term that vacates an order for the dismissal of the complaint, the judgment thereon, and restores the cause to the calendar for trial. The plaintiff complains that the defendant came upon his lands and killed his dog. The defendant answers that he killed the dog in protection of himself and of his household. The learned Tria] Term in its opinion says that the nonsuit rested entirely upon failure to prove the value of the dog, and that it thinks it erred in the exclusion of certain testimony as to value. But we think the learned court did not err at the trial. The questions addressed to the plaintiff and excluded were whether he had any value that he placed on the dog before the shooting, and at what price he was willing to sell the dog. Neither of these questions went to elicit the value of the dog as property. The plaintiff was also asked what was the value of the dog, if he could state it, but this question was objected to properly, in that the witness had not been qualified. We think, however, that this order may be sustained. A dog is property (Mullaly v. People, 86 N. Y. 365), and the destruction thereof without justification would entitle the owner to nominal damages at

App. Div.]

Second Department, December, 1911.

least, and, therefore, to a submission of his case to the jury. (Van Rensselaer v. Jewett, 2 N. Y. 135; Nilsson v. De Haven, 47 App. Div. 537, 541; affd., 168 N. Y. 656.) Moreover, even if this dog was valueless, there was a trespass upon the land of the plaintiff for which the plaintiff was entitled to a verdict. (Gibbons v. Van Alstyne, 29 N. Y. St. Repr. 461.) While it is true that a judgment will not be reversed in order to afford the recovery of nominal damages, yet this is not a case where it appears that only nominal damages can be recovered, for a reading of the record shows that the plaintiff was temporarily unable to produce proof of value, and asked both a continuance and then a withdrawal of a juror because his proof was not at hand. I think, then, that the order of the court may be upheld. (See Thomson-Houston Electric Co. v. D. L. I. Co., 144 N. Y. 49.) The appellant showed that immediately after the said dismissal, and on the same day, the plaintiff took out a summons in the Municipal Court, second district, city of New York, for the same cause of action which was then pending. But the pendency of the two actions cannot be pleaded in abatement unless they were begun simultaneously. When begun at different times, the pendency of the former may be pleaded in abatement of the latter. (Haight v. Holley, 3 Wend. 258; Nicholl v. Mason, 21 id. 339; Renner v. Marshall, 1 Wheat. 215.)

The order must be modified by providing that the plaintiff must pay a trial fee and the disbursements of the trial, and as so modified is affirmed, without costs.

BURR, CARR, WOODWARD and RICH, JJ., concurred.

Order modified by providing that the plaintiff pay a trial fee and the disbursements of the trial, and as so modified affirmed, without costs.

Second Department, December, 1911.

[Vol. 147.

LUCIANO CACIATORE, Respondent, v. TRANSIT CONSTRUCTION COMPANY, Appellant, Impleaded with EDWARD F. LATHROP and JOHN J. SHEA, Copartners, Doing Business under the Firm Name and Style of LATHROP & SHEA, Defendants.

Second Department, December 21, 1911.

Appeal failure to except - master and servant-negligence — injury by falling rock safe place to work - knowledge of danger -errone

ous charge.

The Appellate Division may, notwithstanding the absence of an exception, review, on an appeal from a judgment entered on a verdict, and from an order denying a new trial on the minutes, a ruling of the trial judge submitting a particular question to the jury. When excavating a railroad cut involves the blasting of rock and removal of the debris by a steam shovel moved forward on tracks during the progress of the work, and a laborer employed in the cut to clean the drill holes and to clean and relay the tracks is injured while taking out a drill from a piece of rock then in the bucket of the steam shovel, in consequence of being struck by a piece of rock which had partly wedged in the side of the cut and which fell down upon him, the question as to whether his master furnished a safe place in which to work is not involved as it was the doing of the work which made the place dangerous.

It seems, that where in an action to recover for injuries so caused the plaintiff testifies that he knew he was going to a dangerous place when he went to remove the drill, it is error to charge that "In determining the question of plaintiff's contributory negligence and also the question of plaintiff's assumption of the risks that the plaintiff was entitled to rely upon the assurance of safety given by defendant, * and

[blocks in formation]

*

*

* upon the superior knowledge and experience of the defendant

in such work." WOODWARD, J., dissented.

APPEAL by the defendant, the Transit Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28th day of November, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk's office on the 3d day of January, 1911, denying the said defendant's motion for a new trial made upon the

minutes.

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