(dissenting):
As I understand the rule governing reimbursement as between wrongdoers, the plaintiff failed to prove a cause of action against the defendant Corn. Of course, there can be no reimbursement where one of two joint wrongdoers is compelled to pay damages for the wrong inflicted by both.. Where, however, one negligently *6creates a situation which it becomes the duty of another to rectify, and thus as to third' persons .both become liable, and the latter is compelled tó pay damages, he may compel reimbursement from the one who instituted the wrong. This rule is based upon" the- fact that, although both aró liable as to third parties, as between themselves there is a primary and a secondary liability, and if the one secondarily liable is Compelled to pay, theone who instigated the wrong,must make him good.. If the one secondarily liable is sued and'he gives notice to the other to come in and defend, the judgment obtained, is conclusive against the one who had. an opportunity to defend and did not avail himself of it in three particulars, and in three particulars only. These are, the existence of such a defect or obstruction as made the person sued liable, and that the injured party was himself free from negligence, and that he suffered the amount of damages recovered. As I understand the law, it does not matter upon what theory the action by the injured party may be tried. The judgment obtained by him does not. prove primary or secondary liability as between the wrongdoers. If the wrongdoer who is compelled to pay seeks reimbursement from the primary wrongdoer, he must prove nZwtóe facts which show primary liability.
The case of Mayor, etc., v. Brady (151 N. Y. 611), -upon which the city relies in its várious appeals to this court and the Court of Appeals, illustrates and confirms the rule. That case first' came before.this court on an appeal by the defendants in 70 Hun, 250. The city had been compelled to pay a judgment obtained because of a defective sidewalk claimed to have been caused through the negligence of a contractor, and although the action was brought against the contractor’s sureties;, it was held that the negligence ¿f the contractor must be proved and that the judgment roll in the action against the city'did not prove the contractor’s negligence-, and hence the judgment was reversed. The case, was again tried and resulted in a judgment for the defendants, and on appeal by the plaintiff the. judgment was reversed because the trial court refused to receive evidence of the negligent acts of the contractor. (77 Hun, 241:) On a third trial, such evidence having been received,- the judgment in favor of the. plaintiff was affirmed because it was shown by proof aliunde the record of the former trial that the contractor had been guilty of negligence in obstructing the *7sidewalk (81 Hun, 441), and this judgment was affirmed by the Court of Appeals. Although that action was against the sureties upon the contractor’s bond the whole question of liability for reimbursement by a primary wrongdoer to a secondary wrongdoer, both of whom are liable as to third persons, but one entitled to reimbursement as against the other, was discussed, and it seems to me impossible to deduce from that case the rule that the primary wrongdoer is proven to be liable over to the secondary wrongdoer simply by proving the happening of the accident or by proving the judgment roll upon the former trial or the theory upon which that action was tried as illustrated by the judge’s charge alone.
In the present instance Parks, as administrator, recovered a judgment against the city, this plaintiff, on the ground that a defective bridge over an excavation in the sidewalk existed, of which the city had actual or constructive notice, and which it was either its duty to repair or close to travel, on the ground that the city did not attempt to prove that the bridge over the sidewalk was defectively constructed or that it had become out of repair. The bare happening of the accident did not prove Corn’s negligence any more than the bare happening of the accident would have proved the city’s negligence in the Parks' action. Nor did the charge of the judge explaining to the jury the theory upon which the plaintiff claimed to recover damages in the Parles case constitute substantive proof of Corn’s negligence. Indeed, the only proof on the present trial respecting the construction or condition of the bridge was that drawn out by the defendant from the plaintiff’s own witness to the effect that the bridge was properly braced and properly constructed.
The plaintiff having failed to prove a cause of action, the defendant was entitled to a nonsuit, and it makes no difference upon what theory the motion was granted.
The defendant Cowen having obtained a judgment of nonsuit in the original action, I concur in the affirmance of the judgment as to him, but for the reasons stated I think it should also be affirmed as to the defendant Corn.
As to defendant Cowen judgment and order affirmed, with costs. As to defendant Corn judgment and order reversed and new trial ordered, with costs to appellant to abide event.