173 N.E. 907 | NY | 1930
The plaintiff was injured through the negligence of a truck driver who was in the general employment of the defendant Ryan. Even though it be conceded that the defendant Dickison, with whom Ryan had contracted for the use of the truck and driver, was negligent in directing the driver, known to him to be intoxicated, to proceed along the street where the accident occurred, the defendant Ryan has no standing to complain that the jury found a verdict against himself alone. The Civil Practice Act (§ 211-a) in furnishing to one joint tort feasor a remedy for the recovery of contribution from the other, expressly confines the remedy to cases where a money judgment has proceeded against both. At common law Ryan would have had no cause of action in contribution. Under the statute he has none, since no judgment against his joint tort feasor has been had. The plaintiff, entitled to a judgment against Ryan, because of his tort, should not be denied an enforcement of the judgment because the jury, in exculpating Dickison, refused to enforce an additional liability to which the plaintiff may have been entitled.
The judgment should be affirmed, with costs.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgment affirmed. *19