Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola

• Decision Date: 15 January 1895
• Citation: Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 144 N.Y. 663 (N.Y. 1895)
• Court: New York Court of Appeals Court of Appeals
• Parties: THE OCEANIC STEAM NAVIGATION COMPANY (Limited), Respondent, v. CAMPANIA TRANSATLANTICA ESPANOLA, Appellant. [a1]

144 N.Y. 663

39 N.E. 360

OCEANIC STEAM NAV. CO., Limited,

v.COMPANIA TRANSATLANTICA ESPANOLA.

Court of Appeals of New York.

Jan. 15, 1895.

Appeal from superior court of New York city, general term.

Action by the Oceanic Steam Navigation Company, Limited, against the Compania Transatlantica Espanola. From a judgment of the general term (23 N. Y. Supp. 1163) in favor of plaintiff, defendant appeals. Affirmed.

For prior report, see 31 N. E. 987.

Finch and Bartlett, JJ., dissenting.

Cephas Brainerd, for appellant.

Everett P. Wheeler, for respondent.

O'BRIEN, J.

The plaintiff, commonly known as the ‘White Star Line,’ recovered a judgment for a claim which it was compelled to pay to a third party, in consequence of the defendant's negligence. The plaintiff was the lessee from the city of a public pier, in the city of New York, which it sublet to the defendant in December, 1886. While the defendant was in possession of the pier, on January 17, 1887, one John Cleary was injured by the falling of a large door on the side of it. It is claimed that this accident resulted from negligence on the part of the defendant. Cleary, however, brought suit against the plaintiff, as the lessee of the pier from the city, in the circuit court of the United States (40 Fed. 908), and recovered a judgment for the damages sustained in consequence of the injury. The plaintiff paid the judgment, and in this action recovered from the defendant the amount so paid, with interest and costs. The judgment rests upon the principle that, where one party is compelled by the judgment of a competent court to respond in damages for the wrongful act or neglect of another, a cause of action arises in favor of the party who has paid, under such circumstances, against the actual wrongdoer or party by whose act or neglect the injury was produced. On a former trial of the action the plaintiff's complaint was dismissed, but this judgment was subsequently reversed by the Second division of this court on appeal (134 N. Y. 468),31 N. E. 987). It will be seen, upon an examination of the opinion of the court then given, that some of the questions now presented were, on that appeal, decided adversely to the defendant's contention. While the action by Cleary against the plaintiff was pending in the United States circuit court, its attorneys of record in the action addressed a letter to the defendant's agents, under date of May 31, 1888, in which the agents were notified that the action had been commenced to recover damages sustained by him on the 17th day of January, 1887, and was pending; that the present plaintiff was sued for the reason that it was the lessee from the city of the pier where the injury occurred; and they added: ‘We have advised our client that your company is liable for the accident, in the event of there being any liability, and we would be glad of your assistance in obtaining testimony for the defense. The cause is on the day calendar, and will probably be tried within about ten days.’ The cause was actually tried on the 8th of June following the date of this letter. The learned counsel for the defendant now contends that that notice was not sufficient, and, in effect, that the defendant had no notice of the pendency of the action or any opportunity to participate in the defense. The fundamental fact which underlies this action is that the plaintiff, by reason of its general control of the pier, and not by and actual neglect of its own, was, by the judgment of the circuit court, made liable for the defendant's personal neglect. In such cases the action can be maintained against the delinquent party, although it had no notice whatever of the pendency of the action. The notice served in this case is important only for the purpose of binding the defendant by the former adjudication, to which it was not otherwise a party. The defendant's liability for the result of the accident could have been determined in the action against the plaintiff in the federal court by either making it a party to that action, or giving it notice of its pendency and an opportunity to defend. Since the former judgment was admitted upon the trial of this action to establish, at least, some of the necessary facts, it becomes necessary to consider the question as to the sufficiency of the notice given.

No particular form of words is necessary in order to constitute notice in such cases, nor is it even necessary to give a written notice. It is sufficient that the party against whom ultimate liability is claimed is fully and fairly informed of that claim, and that the action is pending, with full opportunity to defend or to participate in the defense. If he then neglects or refuses to make any defense he may have, the judgment will bind him in the same way and to the same extent as if he had been made a party to the record. 96 N. Y. 550;City of Rochester v. Montgomery, 96 N. Y. 550;City of Rochester v. Ontgomery, 72 N. Y. 65;Savings Inst. v. Burdick, 87 N. Y. 40, 45;Andrews v. Gillespie, 47 N. Y. 487;Chicago City v. Robbins, 2 Black, 418;Heiser v. Hatch, 86 N. Y. 614. When a party has been served with such a notice, the law entitles him to come in as a party upon the record or to be heard at the trial, and it is not necessary that he should be required in terms to do what the law will permit him to do. I do not think that the proposition that the plaintiff was bound to offer, in the notice, to surrender to the defendant the sole control and management of the litigation, is sanctioned by reason or authority. The plaintiff had been sued, and it had the right to defend according to the judgment and advice of its own counsel. It was not bound to abandon, or offer to abandon, its interests to the case of a stranger whose interests were not necessarily identical, but in some respects were even hostile. The plaintiff found itself involved in a litigation in which it had two chances. It might, if possible, defeat Cleary's action, or, failing in that, could resort to its remedy over against the defendant. It could not be compelled to relinquish either of these methods of protecting itself from loss, but could at the same time, and in its own way, pursue such a course as to retain both. All that the defendant was entitled to was the opportunity to defend, and to protect its own interests in the same way and to the same extent as if it had been sued jointly with the plaintiff in the first instance; and this would not give to it any right to manage or control the proceedings, so far as concerned its codefendants.

But it is urged that a notice of 8, or, at most, of 10, days, was not sufficient. The defendant was entitled to a reasonable notice, and a reasonable opportunity to defend, and this question is not governed by any fixed or arbitrary rules, but must depend upon the facts and circumstances of the case. The defendant, when the notice was served, made no objection that the time allowed was not sufficient. In fact, it paid no attention whatever to the notice. Nor was there any attempt made upon the trial of this action to show that the defendant was prejudiced by any omission to give longer notice, or that it had been prevented from making any defense that it could or would have made under any circumstances. It is obvious, therefore, that upon such a state of facts it cannot be said, as matter of law, that the notice served was not sufficient. It should also be added that the sufficiency of the notice was one of the questions fairly involved in the former appeal, and which was then passed upon adversely to the defendant's present contention.

This view as the sufficiency of the notice rendered the judgment record in the action in the circuit court admissible in evidence against the defendant, since, in legal effect, it was a...