If the driver of the motor bus and the motorman of the street car were jointly engaged in racing, running their respec*189tive conveyances in a negligent manner, resulting in the motor bus colliding with a telegraph pole and the plaintiff, a passenger in the motor bus, was injured thereby, I think the railroad company as well as the owners of the motor bus are hable to the plaintiff, although the street car did not come in actual contact with the motor bus. (De Carvalho v. Brunner, 223 N. Y. 284.)
But there is no such allegation in the complaint, nor any other allegation of joint negligence. The cause of action is founded upon the independent, concurring negligent acts of the driver and the motorman. As to the defendant railroad company, it is predicated according to the complaint upon negligently running down the motor bus and driving it against the telegraph pole. It was, therefore, essential to the plaintiff’s recovery against it to establish the collision between the two vehicles. But as to the defendant motor bus owners, it was not essential to prove such actual contact if the other allegations respecting the negligent driving of the bus and the collision with the telegraph pole were established. The interests of the railroad company and the defendant owners were adverse; each sought to make the other responsible for the casualty.
The exception to the charge as made, and to the refusal to charge as requested, upon which it is proposed to reverse the judgment, was made on behalf of the railroad company. It was directed simply to the question of its liability, and no objection or criticism whatever was made on behalf of the other defendants to the charge or to any of the rulings to which attention has been directed. The instructions given to the jury benefited, rather than harmed, the owners of the bus.
I do not think the decision in Bamberg v. International Railway Company (121 App. Div. 1) "requires us to grant a new trial as to all the defendants. It is true that we there held that in an action for negligence against joint tort feasors, where a verdict was rendered against all the defendants, the trial court was without power to set aside the verdict as against one defendant and not against the others.
That decision was criticized in the First Department in Draper v. Interborough Rapid Transit Co., No. 2 (124 App. *190Div. 357). I have no doubt of the power of this court, upon appeal, in a proper case, to affirm as to one or more defendants and reverse as to others. The Code of Civil Procedure so provides. (§ 1317. See, also, §§ 1337, 3063.)
Where, as here, an action is brought against two defendants for a personal injury alleged to have been caused through the independent concurring negligent acts of each defendant, and error is committed upon the trial to the prejudice of one defendant, but not the other, I think we have the power to affirm a judgment against the one so prejudiced and reverse it as against the other.
The Bamberg case was decided upon the authority of Altman v. Hofeller (152 N. Y. 498). In the opinion written by the late Presiding Justice McLennan, for this court, he quotes the rule as laid down by Judge Martin in the Altman case, as follows: “The rule seems to be well settled that upon an appeal from a judgment which is entire and against several defendants, the appellate court must either totally affirm or reverse, both as to the recovery and as to all the parties. But in cases where there are separate and distinct judgments, or where an error exists as to a separate claim or defense, which relates only to a transaction between the plaintiff and one of the defendants, the judgment may be reversed as to such a claim or defense, and only as to the parties interested therein, and affirmed as to the remainder. These rules are not of recent origin. They existed and were practically the same at common law, under the Revised Statutes, the Code of Procedure and the Code of Civil Procedure.”
As will be observed, that rule recognizes the propriety of reversing the judgment as to some defendants where the error exists only as to each separate claim or defense, and affirming the judgment as to the others not affected thereby. The error here, I think, is plainly of that nature. The question was early much discussed.
The following cases are of interest upon that question: Farrell v. Calkins (10 Barb. 348); Geraud v. Stagg, (10 How. Pr. 369); Pollock v. Webster (16 Hun, 104); Story v. New York & Harlem R. R. Co. (6 N. Y. 85, 86, Rep. note); Seeley v. Chittenden (4 How. Pr. 265); Van Slyck v. Snell (6 Lans. 299).
*191I think the judgment against the appellant New York State Railways should be reversed, with costs to it to abide the event, and affirmed as against the other defendants, with costs.
De Angelis, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.