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Tanzer v. Breen

Supreme Court of New York, Appellate Division

April 8, 1909

TANZER
v.
BREEN ET AL.

Appeal from Special Term, New York County.

Action by Arnold Tanzer against Mathew P. Breen and others. From an order refusing to vacate a judgment dismissing the complaint as to defendant Morgan, plaintiff appeals. Affirmed.

Liebmann, Naumberg & Tanzer (Laurence Arnold Tanzer, of counsel), for appellant.

Williamson & Smith (Martin S. Lynch, of counsel, and John G. Saxe, on the brief), for respondents.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

CLARKE, J.

Plaintiff sued Breen, a city magistrate, and Morgan, state superintendent of elections, and Dominick, his deputy, for a tort in causing his arrest under a charge of false registration. The defendant Morgan interposed a separate answer. Upon the trial the complaint was dismissed as against the defendant Morgan, and, proceeding further against the other defendants, it was finally declared to be [116 N.Y.S. 111] a mistrial because of the sickness and nonappearance of a juror. Thereafter the defendant Morgan procured an extract from the minutes reading as follows:

" I hereby certify that this cause was tried on the 3rd and 4th days of February, 1909, by the court and a jury, and the complaint dismissed as to the defendant George W. Morgan. Mistrial directed by the court as to the defendants Mathew P. Breen and Augustus S. Dominick. [Signed by the clerk.]"

Upon this a judgment was entered dismissing the complaint as to the defendant Morgan, with $168 costs. Subsequently a motion was made to vacate that judgment upon the ground that the judgment had been entered without warrant of law and was of no validity, for the reason that, on account of the mistrial declared, the trial of the action must proceed de novo, and that the rights of all the parties to the action remained the same as if no trial had taken place. This motion having been denied, plaintiff appeals.

The plaintiff in his complaint attempts to hold the defendants to a joint and several liability for a tort. The trial had proceeded so far that the plaintiff had rested his case, and thereupon the defendant Morgan moved for a dismissal thereof so far as he was concerned, and the court as matter of law granted the motion and dismissed the complaint, upon the ground that the plaintiff had not established a cause of action against the defendant Morgan. From that moment Morgan was out of the case, at liberty to leave the courtroom, and no further proceedings could be had therein to his prejudice.

Section 1204 of the Code of Civil Procedure provides that:

" Judgment may be given for or against one or more plaintiffs and for or against one or more defendants *** and it may grant to a defendant any affirmative relief to which he is entitled."

Section 1205 provides that:

" Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment *** against one or more of the defenfdants, and direct that the action be severed and ...

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