97 A.D.2d 655 | N.Y. App. Div. | 1983
Appeal from a judgment of the Supreme Court in favor of plaintiff, entered June 15, 1982 in Ulster County, upon a verdict rendered at Trial Term (Williams, J.). In February and March, 1979, plaintiff commenced the instant action against Anthony Costa, an officer and employee of defendant Inter-County Savings Bank (Inter-County), Mantón Realty and two other defendants. Plaintiff alleged that defendants, as part of a plan to extricate themselves from a losing business venture, fraudulently induced plaintiff to enter into a November 7, 1974 contract and invest $60,000 plus additional funds in the failing business. Plaintiff sought $250,000 in compensatory damages and $750,000 in punitive damages. Trial began on May 17,1982 and continued over nine days. Many of the actions were disposed of during trial. The jury rendered a verdict for plaintiff against Inter-County and defendant Albin H. Rothe in the amount of $88,732. The jury found no cause of action in plaintiff’s case against Costa. Inter-County alone has appealed from the judgment entered against it in the sum of $131,914.42. Defendant Inter-County argues that the jury’s verdict against it is inconsistent with the verdict of no cause of action against its employee Costa, since the finding that the employee did not commit the alleged tortious acts necessarily exonerates Inter-County, whose liability, if any, is solely derivative from the acts of Costa and based on the doctrine of respondeat superior. We agree. It is clear that where the only possible theory of liability against a corporate defendant such as Inter-County is that of vicarious liability for the acts of its employee, verdicts of no cause of action against the employee and in favor of plaintiff against the corporate defendant are “inconsistent and absurd” (Pangburn v Buick Motor Co., 211 NY 228, 231; Goines v Pennsylvania R. R. Co., 3 AD2d 307, 309; see 53 Am Jur 2d, Master and Servant, § 406, p 413). Plaintiff asserts that, while the verdicts may be abstractly inconsistent, they are not inconsistent when viewed in the light of the charge to the jury which, he contends, instructed that if the jury found
