Turner v. McCarthy

By the Court.

This is, in general terms, and in the language of the Code, an action for injury to property, without force; for the complaint does not allege an entry and disturbance of the plaintiffs’ possession with force, but in the brief form usually adopted in the court below, it simply declares that the defendants entered upon the plaintiffs’ close, and did damage to their business and property to $500. The answer was in the simplest form—“ general denial and justification.” If, by justification, is meant a license to enter, it was unnecessary to set it up, as the action can, in no sense, be regarded as in the nature of what, before the Code, would be denominated an action of trespass, quaere claMSvm fregit.

*249It therefore becomes unnecessary to consider whether or not the plaintiffs took, subject to the right of the original lessors, to enter and make repairs under the covenant in their lease to Parker, reserving that right. Besides, it is conceded by the plaintiffs upon the argument, that the original lessors retained the right to enter when it became necessary to maintain the building. The case, therefore, is narrowed down to the question, whether the plaintiffs proved that the defendants or their agents made the repairs in so unskillful and negligent a manner as to subject them, the plaintiffs, unnecessarily, to loss and damage; or, rather, whether there was sufficient evidence in the case to submit that question to the jury. Kothing of the kind was shown by the plaintiffs; but, on the contrary, it appeared by the testimony that the repairs were necessary for the safety of the building; that they were done as expeditiously as possible; that what was done was necessary to prop up the building; and that every attention was paid to the work that was requisite. The action was treated throughout by the court and by the parties as an action of trespass ; and the defendants, in moving for a nonsuit, assigned, as the ground of it, that no trespass had been proved. We should, however, give effect to this motion, the plaintiffs having established no cause of action. They proved that they had sustained damage; that their bowling alleys were injured, in consequence of having been taken up ; that their business had fallen off during the thirteen days that the workmen were engaged in making the repairs; and that they were put to expense for refitting their apartment. But for all that appears in the evidence, this may have been the natural and necessary consequence of the exercise of a right which the original lessors had reserved to themselves; and they are not responsible for such loss or injury, unless it appears that it was occasioned by their conducting the repairs in a wanton, unskillful or negligent manner.

But even if the action could be sustained against McCarthy, there was nothing to show that the repairs were made by the *250directions of Cornell. If he was the assignee of Parker, there was sufficient reason why he should feel an interest in the preservation of the building, to account for all that he said or did.

But again, conceding that these two defendants might be sued separately, and that in such an action as this there might be a separate assessment of damages against each, (Player v. Warn, 3 Cooke, 54,) yet that can never be done where it appears, as in this case, that the injury resulted from the joint act of both defendants. (Bohm v. Taylor, 6 Cow. 313.) Here the jury have found that Cornell is liable for the injury done to the plaintiffs’ business, and they find a verdict against him for $228, and that McCarthy is liable for the damages done to the plaintiff’s alleys and fixtures, and they find a verdict against him for $250. It may be, where a jury in an action of trespass find a verdict for the plaintiff, and assess the damages against one defendant at a certain sum, and against another at a greater sum, that the plaintiff may discontinue as to one defendant and take his judgment against the other; (Holley v. Mix, 3 Wend. 350; 1 Saund. 207, n. 2;) for each defendant being separately hable for the whole amount of damages occasioned by the trespass, there can be no objection to such a course. But such is not the case. The justice has returned the special verdict of the jury upon which he rendered judgment, and by which it appears that they found that each defendant was liable for a part of the injury occasioned; and if there was any thing in the evidence to sustain such a finding, there might be, under the authority of adjudged cases, such an apportionment of the damage. (Austin v. Willward, 1 Croke Eliz. 860; Heydon's Case, 11 Coke, 56.) But if both defendants here are liable, it is upon the ground that they caused the act to be done—the making of the repairs—which occasioned the injury, and there is nothing in the case to show that a part of the injury was occasioned by the act of the one and a part of it by the act of the other. It is not finding, as in Holley v. Mix, that either of the defendants were liable for the whole injury, *251and the plaintiff should not be permitted to elect in such a case to take judgment against one, as it is impossible to tell upon what ground the jury have based the liability of either.

There are other grounds upon which this judgment must be reversed, but it is unnecessary to go into them.

Judgment reversed.