Kapossky v. Berry

Order denying motion to amend and correct judgment reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. An order having been entered precluding plaintiff from offering evidence against the defendant J. P. McHugh, and the court, having announced when this order was called to his attention that no judgment could be granted against McHugh, and plaintiff having taken no exception thereto, the action was in the same situation as if McHugh had originally been omitted as a party, or the complaint, with plaintiff’s consent, had been dismissed as to him. The defendants being liable as joint tort feasors, the plaintiff had the right to sue any or all of them as he saw fit. (Matter of Peck, 206 N. Y. 55; Roberts v. Johnson, 58 id. 613.) Kelly, P. J., Jaycox, Kelby, Young and Kapper, JJ., concur.