Baidach v. Togut

• Decision Date: 30 December 1959
• Citation: 196 N.Y.S.2d 67,7 N.Y.2d 128,164 N.E.2d 373
• Parties: , 164 N.E.2d 373 Nathan BAIDACH, Respondent, v. Charles A. TOGUT, Doing Business as Linden General Hospital, Appellant; Henry Bloomberg, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 67

196 N.Y.S.2d 67

7 N.Y.2d 128, 164 N.E.2d 373

Nathan BAIDACH, Respondent, v. Charles A. TOGUT, Doing Business as Linden General Hospital Appellant; Henry Bloomberg, Respondent, et al., Defendants.

Court of Appeals of New York.

Dec. 30, 1959.

John M. Johnston and Casper B. Ughetta, New York City, for appellant.

Harold Shapero, New York City, and Bart Ingrahm for Henry Bloomberg, respondent.

DESMOND, Judge.

Since appellant Togut has no right of contribution against Bloomberg, Togut is not aggrieved by the dismissal of the complaint as to Bloomberg and, accordingly, has no right to appeal here as against Bloomberg. The $17,500 judgment which Togut paid was, when he paid it, a judgment against Togut alone, since the complaint as against Bloomberg had already been dismissed and Bloomberg was not a judgment debtor in any sense or for any purpose. Togut by paying a judgment which stood against himself alone could under no possible theory acquire any right of contribution against Bloomberg who had been dismissed out of the case.

The only legal basis in New York for any contribution between tort-feasors is section 211-a of the Civil Practice Act which neither in words nor in adjudged meaning can have any application to Togut's situation. That statute sets these plain, simple requirements for contribution: 'Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury * * * and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own prorata share shall be entitled to contribution from the other defendants'. Again and again this court has held that this clear statute means just what it says and that all its requirements must be met. As we pointed out in Ward v. Iroquois Gas Corp., 258 N.Y. 124, 128, 179 N.E. 317, 318: 'Section 211-a was enacted to change the common-law rule and permit contribution where a money judgments has been recovered jointly against two or more joint tort-feasors, and paid 'in part or in full' by one or more defendants.' The Ward opinion remarks 'the clear wording of the section'. It makes it entirely plain that before section 211-a comes into play there must be payment by one judgment debtor of a judgment outstanding against him and others. There was no such judgment in this case at the time Togut paid.

Our most recent construction of section 211-a is found in McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 328, 107 N.E.2d 463, 471: 'The common-law rule denying contribution to joint tort-feasors has been partially abrogated in this State by the enactment of section 211-a of the Civil Practice Act which authorizes contribution if two conditions exist: (1) a joint money judgment against the tort-feasors, and (2) the payment by one tort-feasor of more than his prorata share thereof. Fox v. Western New York Motor Lines, 257 N.Y. 305, 178 N.E. 289, 78 A.L.R. 578, supra.' Numerous decisions attest to this. 'Only judgments can be considered' (United States Fid. & Guaranty Co. v. Hotkins, 8 Misc.2d 296, 302, 170 N.Y.S.2d 441, 446; see Birchall v. Clemons Realty Co., 241 App.Div. 286, 288, 271 N.Y.S. 547, 549). 'A joint judgment is a condition precedent to the right of contribution' (Haines v. Bero Engineering Const. Corp., 230 App.Div. 332, 334, 243 N.Y.S. 657, 660; see Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 217).

Epstein v. National Transp. Co., 287 N.Y. 456, 40 N.E.2d 632, does not affect our case. In Epstein, the judgment was outstanding against the three defendants at the time defendant National paid it. The Epstein opinion, also, pointed out that at common law there was no contribution between tort-feasors and that the right to contribution depended on the pressure of specific statutory conditions. Section 211-a was described (287 N.Y. at page 458, 40 N.E.2d at page 632) as a statute 'which permits contribution where a money judgment has been recovered jointly against two or more joint tort feasors and has been paid by one, either in part or in full.'

I see no reason for stretching section 211-a to cover a situation not within its scope. Each of several tort-feasors, being severally a wrongdoer, is liable for the payment of the whole claim. The injured person can sue any one wrongdoer and collect in full from him (Neenan v. Woodside Astoria Transp. Co., 261 N.Y. 159, 164, 184 N.E. 744, 746) or sue several and collect from one, and at common law that was the end of it. As to one particular carefully spelled out set of facts, the legislature changed the common law and authorized contribution. We have no such facts here.

The appeal should be dismissed, with costs.

CONWAY, Chief Judge (dissenting).

This is an action for medical malpractice. The plaintiff, Nathan Baidach, instituted suit against Charles Togut, doing business as Linden General Hospital; Henry Bloomberg, a surgeon; and a number of other defendants against whom the action was later abandoned. It appears that plaintiff, while a patient in Togut's hospital, sustained injuries following a prostatectomy performed by Dr. Bloomberg, a urology specialist. It further appears that the injuries resulted from a transfusion which contained a drug called 'levophed.' Such drug is destructive of certain body tissue when brought into direct contact with it. Patient Baidach was receiving the drug intravenously when, sometime on the morning of September 5, 1956, it infiltrated the tissues of his right arm and hand, either because the needle was not properly placed or because, although properly inserted initially, it was not kept in a proper position.

After trial, plaintiff recovered a verdict of $22,500 against Togut and Dr. Bloomberg and a joint judgment was entered thereon. The Appellate Division reversed 'upon the law' and dismissed the complaint as to Dr. Bloomberg. As to Togut, the Appellate Division reversed and ordered a new trial unless plaintiff agreed to stipulate to accept a reduction of damages to $17,500, which the plaintiff did. Thereafter, Togut paid the full sum of $17,500 and abandoned his appeal to this court as against plaintiff by failing to argue that the Appellate Division erred insofar as it authorized plaintiff's recovery against him. In effect, Togut has conceded his liability to the plaintiff. His only interest now is in receiving contribution from Dr. Bloomberg by reason of which he has appealed to us from so much of the Appellate Division determination as dismissed the complaint as against the doctor. The plaintiff, having received payment from Togut of the judgment in the amount of $17,500, which judgment was entered pursuant to the stipulated reduction of damages, has taken no appeal from the dismissal of his complaint against Dr. Bloomberg.

This appeal presents two questions, one procedural and one substantive. The procedural question, which must be treated first, is whether Togut, who complains only of the fact that his codefendant was released from liability by the Appellate Division, is a party aggrieved for purposes of appeal to this court. Obviously he has such status only if the determination of the Appellate Division adversely affected his right of contribution from Dr. Bloomberg.

Section 211-a of the Civil Practice Act provides, in part, that 'Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury or for property damage, and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution from the other defendants with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment; * * *.' Thus, the Legislature has prescribed two conditions precedent to contribution between or among joint tort-feasors: (1) that a money judgment be recovered jointly against them and (2) that one (or more) of them has paid more than his prorata share of such judgment.

It is undisputed that had Togut paid the judgment recovered against Dr. Bloomberg and himself prior to the Appellate Division decision he would be a party aggrieved for purposes of appeal to our court. Under that set of facts, he would clearly have met both the conditions precedent to contribution contained in section 211-a. However that may be, defendant Bloomberg argues that Togut is not entitled to contribution, hence, is not a party aggrieved, because the judgment satisfied by Togut was not a 'joint' judgment, but rather the judgment authorized by the Appellate Division a judgment against Togut only. Phrased differently, Dr. Bloomberg recognizes that the first condition of section 211-a was met here, namely, that plaintiff recover a money judgment jointly against two or more defendants. His contention, in effect, is that the second condition has not been satisfied, namely, that one or more of the defendants pay more than his prorata share of 'such judgment'. Dr. Bloomberg would have us hold that the phrase 'such judgment' must be construed to require a joint tort-feasor to make his payment before an appeal is taken to the Appellate Division if he is to protect himself against a reversal in that court as against another tort-feasor. We fail to perceive the logic in such a construction. Section 211-a was designed to adjust the rights as among joint tort-feasors after the plaintiff has been given his due. Plaintiff here has had his due. There has been a joint judgment against defendants and plaintiff has received full payment and damages for his injuries. If the Appellate Division erred in disturbing the judgment recovered in the trial court, the truly final judgment in the action, when we have corrected the error and if Dr. Bloomberg is ultimately held to have been at fault, there will be the same joint judgment of the same trial court superseding that entered on...