Bohnhoff v. Fischer

147 A.D. 672, 132 N.Y.S. 603, 1911 N.Y. App. Div. LEXIS 2945

Opinion

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 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.