Fanning v. Lent

New York Court of Common Pleas

Fanning v. Lent

3 E.D. Smith 206

DecidedSeptember 15, 1854

StatusPublished

This text of 3 E.D. Smith 206 (Fanning v. Lent) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fanning v. Lent, 3 E.D. Smith 206 (N.Y. Super. Ct. 1854).

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Opinion

By the Court. Woodruff, J.

This judgment is plainly [207]*207wrong upon the face of the return, and irrespective of any examination of the evidence. The return of the justice states, that it being an action brought against the two defendants jointly for the negligence of their servant, he suffered the plaintiff to discontinue as to the defendant Mulford, and yet that the judgment was finally entered up and docketed against both.

By whatever mistake or misapprehension this occurred, it was erroneous. If it be conceded that the justice had power to permit such a discontinuance, and thereupon to render judgment against Lent only, without awarding judgment in Mulford’s favor, and giving to him his costs in the action, clearly the record is erroneous, and the judgment as entered and docketed cannot be permitted to stand.

But without considering the question whether we have power on appeal to reform the judgment so as to correspond with the intention of the justice, as shown by his return, we are satisfied that there is no evidence in the case which can sustain a judgment against either of the defendants.

Assuming that the plaintiff sufficiently proved that his wagon was injured by the carelessness of a person who was driving a stage, the only evidence that either of these defendants was responsible was that of the plaintiff’s son, who testified that two gentlemen called upon his father and conversed on the subject, and one of them answered to the name of “ Lent,” and that the latter wished the wagon sent to his place to be repaired, and both were satisfied that it was their stage by which the injury was caused.

This by no means identified the defendants as owners of the stage. The witness does not intimate that he is acquainted with the defendants, or either of them, and it is hardly necessary to say that a defendant cannot legally be charged with liability because some person who assumes to answer to the same surname is shown to have admitted his liability.

It appears to us, also, that the proof did not warrant the recovery of so large a sum as was allowed as damages; but, upon the ground above stated, the judgment must be wholly reversed.

Judgment reversed with costs.

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By the Court. Woodruff, J.

This judgment is plainly [207]*207wrong upon the face of the return, and irrespective of any examination of the evidence. The return of the justice states, that it being an action brought against the two defendants jointly for the negligence of their servant, he suffered the plaintiff to discontinue as to the defendant Mulford, and yet that the judgment was finally entered up and docketed against both.

By whatever mistake or misapprehension this occurred, it was erroneous. If it be conceded that the justice had power to permit such a discontinuance, and thereupon to render judgment against Lent only, without awarding judgment in Mulford’s favor, and giving to him his costs in the action, clearly the record is erroneous, and the judgment as entered and docketed cannot be permitted to stand.

But without considering the question whether we have power on appeal to reform the judgment so as to correspond with the intention of the justice, as shown by his return, we are satisfied that there is no evidence in the case which can sustain a judgment against either of the defendants.

Assuming that the plaintiff sufficiently proved that his wagon was injured by the carelessness of a person who was driving a stage, the only evidence that either of these defendants was responsible was that of the plaintiff’s son, who testified that two gentlemen called upon his father and conversed on the subject, and one of them answered to the name of “ Lent,” and that the latter wished the wagon sent to his place to be repaired, and both were satisfied that it was their stage by which the injury was caused.

This by no means identified the defendants as owners of the stage. The witness does not intimate that he is acquainted with the defendants, or either of them, and it is hardly necessary to say that a defendant cannot legally be charged with liability because some person who assumes to answer to the same surname is shown to have admitted his liability.

It appears to us, also, that the proof did not warrant the recovery of so large a sum as was allowed as damages; but, upon the ground above stated, the judgment must be wholly reversed.

Judgment reversed with costs.

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Bluebook (online)

3 E.D. Smith 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fanning-v-lent-nyctcompl-1854.