Bloch v. Black & White Cab Co.

102 Misc. 677

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1918
• Status: Published

Opinions

Guy, J.

While it is true, as stated by Mr. Justice Mullan in his opinion, that there is no authority for the entry of two judgments in this case, it is evident that the entry was done by the clerk as the trial justice made but one decision, upon which the two judgments were entered.

Under the old practice, the proper distinction to be made in such a case would be to send the case to the lower court for the entry of the proper judgment. Brown v. McKie, 185 N. Y. 303. Neither side raises the objection that two judgments were entered and the legal effect is precisely the same as if but one judgment had been entered. “ The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view to-day.” Wood v. Duff-Gordon,. 222 N. Y. 88, 91. It would be a hardship to require both parties to proceed to a new trial when but one party is liable and this court now has ample power to modify the judgment appealed from and to render judgment without regard to technical defects which do not affect the substantial rights of the parties (Code Civ. Pro. § 1317) and as to any or all the parties.

Judgment reversed, with thirty dollars costs to the plaintiff against the New York Railways Company, and thirty dollars costs to the Black and White Cab Co., Inc., against the plaintiff, and judgment directed for the plaintiff against the New York Railways Company for the sum of $120 and costs in the court below and for the defendant Black and White Cab Co., Inc., dismissing plaintiff’s complaint on the merits, with costs.

Weeks, J., concurs.