287 N.Y. 456 | NY | 1942
Lead Opinion
At common law contribution between joint tort feasors was not enforceable by action either in law or in equity. Recognizing the harshness of that rule, the Legislature enacted section 211-a of the Civil Practice Act (L. 1928, ch. 714), which permits contribution where a money judgment has been recovered jointly against two or more joint tort feasors and has been paid by one, either in part or in full. (Ward v. Iroquois Gas Corp.,
The statute provides:
"§ 211-a. Action by one joint tort-feasor against another. Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury or for property damage, and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution from the other defendants with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payments; provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment. Such recovery may be had in a separate action; or where the parties have appeared in the original action, a judgment may be entered by one such defendant against the other by motion on notice."
The theory of the new statute has been said to be "* * * to give to the paying defendant the plaintiff's right of execution against the other defendant, up to and no further than his aliquot share of the judgment. The paying defendant thus recovers on the theory of subrogation and partially enforces a right always existing in the plaintiff." (Neenan v. Woodside AstoriaTransp. Co.,
The rule thus made effective by the enactment of section 211-a is to be put to use in the present case. Here the problem involves its application in circumstances where, after a trial has been had resulting in a judgment against *460 three defendants held to have been joint tort feasors, one of the defendants which has not appealed but has paid the judgment in full, seeks contribution against a defendant which has appealed.
Briefly; as to the facts: the plaintiffs sustained personal injuries when a taxicab owned by the defendant Dixie Cab Corp. and operated by the defendant Feingold collided with a cab of the defendant National Transportation Co., Inc. — to which I shall refer as "National." In the present action plaintiffs have been awarded a judgment against all three defendants in the sum of $8,205.35. The defendant National did not appeal but has paid in full the judgment which has been satisfied of record. Thereafter, pursuant to section 211-a, National was awarded judgment by default against the defendant Dixie Cab Corp. in the sum of $4,102.68, and execution thereupon has been returned unsatisfied. Meantime, however, the defendant Dixie Cab Corp. appealed to the Appellate Division from the judgment in favor of the plaintiffs. Upon that appeal the defendant National applied at the Appellate Division for an order directing that, upon the appeal taken by its joint tort feasor Dixie Cab Corp., the defendant National shall be named and treated as a respondent and that, in connection with such appeal, all papers be served upon the attorney for the defendant National as a respondent. The Appellate Division denied such application but granted to National permission to appeal to this court upon three certified questions.
The right accorded by section 211-a to National, a non-appealing defendant, did not come into being until that defendant had paid "more than [its] own pro rata share" of the money judgment entered against the three defendants. When execution upon that judgment issued and was returned unsatisfied, the relation of National to the rights of the plaintiffs was in the nature of subrogation. In that relation National could enforce against the defendant Dixie Cab Corp. the rights which formerly existed in the plaintiffs as judgment creditors but only to the extent allowed by section 211-a. It may be true that upon appeal, in the protection of the rights which National acquired by full *461
compliance with section 211-a, the position of National as respondent will be inconsistent with the position it took upon the trial when the question of its liability in tort was an issue. That difference, however, in so far as it creates inconsistencies, is of no significance in view of the payment made in full by National of the judgment against the three defendants. National no longer asserts non-liability. In effect it admits liability, as it has the clear right to do under the statute. There will be, therefore, in the position National may take, no inconsistency which will defeat its right to be named and treated as a respondent on appeal. It may take such position as respondent as will serve best to protect its right as a judgment creditor of Dixie Cab Corp., and thus exercise a right given by section 211-a which the courts may not take away. (SeeJones v. Freeman, Inc.,
In Ward v. Iroquois Gas Corp. (
The order should be reversed and the motion granted, with costs in this court and in the Appellate Division. We interpret the questions certified by the Appellate Division as raising only the question of its power to make the order here on appeal and we answer each question in the affirmative.
Dissenting Opinion
Plaintiffs procured a judgment in a negligence action after a trial against three defendants, National Transportation Co., Inc., Dixie Cab Corporation and Samuel Feingold, as joint tort feasors. Defendant National Transportation Company, Inc., did not appeal and paid the judgment in full. It thereupon moved at Special Term for an order, pursuant to the provisions of section 211-a of the Civil Practice Act, for judgment for *462 pro rata contribution against the Dixie Cab Corporation, which motion was granted. In the meantime, defendant Dixie Cab Corporation appealed to the Appellate Division from the original judgment in favor of plaintiffs against the joint tort feasors but did not serve the notice of appeal on the National Transportation Co., Inc. Thereupon, the National Transportation Co., Inc., moved for an order substituting it in place of plaintiffs on the appeal. The motion was denied by the Appellate Division, not as a matter of discretion but upon the law, and that court allowed an appeal to this court, certifying certain questions for our determination. The decision below was correct.
Section 211-a changed the common law rule as to contribution between joint tort feasors and had no purpose to change or affect the law governing the right to appeal (Ward v. Iroquois GasCorp.,
A prop for reversal is found in a statement obiter in Neenan
v. Woodside Astoria Transp. Co. (
The order appealed from should be affirmed, with costs, and the questions certified answered in the negative.
LEHMAN, Ch. J., FINCH and DESMOND, JJ., concur with LEWIS, J.; RIPPEY, J., dissents in opinion in which LOUGHRAN and CONWAY, JJ., concur.
Order reversed, etc. *464