At common law contribution between joint tort feasors was not enforceable by action either in law or in equity. Recognizing the harshness of that rule, the Legislature enacted section 211-a of the Civil Practice Act (L. 1928, ch. 714), 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. (Ward v. Iroquois Gas Corp.,258 N.Y. 124, 127, 128.) *Page 459
The statute provides:
"§ 211-a. Action by one joint tort-feasor against another. 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 payments; provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment. Such recovery may be had in a separate action; or where the parties have appeared in the original action, a judgment may be entered by one such defendant against the other by motion on notice."
The theory of the new statute has been said to be "* * * to give to the paying defendant the plaintiff's right of execution against the other defendant, up to and no further than his aliquot share of the judgment. The paying defendant thus recovers on the theory of subrogation and partially enforces a right always existing in the plaintiff." (Neenan v. Woodside AstoriaTransp. Co., 261 N.Y. 159, 165.) As to the practical operation of section 211-a this court has said: "The conditions stated in this section must exist before the right to contribution is given. The two or more defendants must be parties to the action at the suit of the plaintiff and a money judgment must have been recovered jointly against them. Under such circumstances the payment of the entire amount of the judgment by one of the judgment debtors gives him the right to collect the pro rata share from the other defendant or defendants." (Fox v. WesternNew York Motor Lines, Inc., 257 N.Y. 305, 308.)
The rule thus made effective by the enactment of section 211-a is to be put to use in the present case. Here the problem involves its application in circumstances where, after a trial has been had resulting in a judgment against *Page 460 three defendants held to have been joint tort feasors, one of the defendants which has not appealed but has paid the judgment in full, seeks contribution against a defendant which has appealed.
Briefly; as to the facts: the plaintiffs sustained personal injuries when a taxicab owned by the defendant Dixie Cab Corp. and operated by the defendant Feingold collided with a cab of the defendant National Transportation Co., Inc. — to which I shall refer as "National." In the present action plaintiffs have been awarded a judgment against all three defendants in the sum of $8,205.35. The defendant National did not appeal but has paid in full the judgment which has been satisfied of record. Thereafter, pursuant to section 211-a, National was awarded judgment by default against the defendant Dixie Cab Corp. in the sum of $4,102.68, and execution thereupon has been returned unsatisfied. Meantime, however, the defendant Dixie Cab Corp. appealed to the Appellate Division from the judgment in favor of the plaintiffs. Upon that appeal the defendant National applied at the Appellate Division for an order directing that, upon the appeal taken by its joint tort feasor Dixie Cab Corp., the defendant National shall be named and treated as a respondent and that, in connection with such appeal, all papers be served upon the attorney for the defendant National as a respondent. The Appellate Division denied such application but granted to National permission to appeal to this court upon three certified questions.
The right accorded by section 211-a to National, a non-appealing defendant, did not come into being until that defendant had paid "more than [its] own pro rata share" of the money judgment entered against the three defendants. When execution upon that judgment issued and was returned unsatisfied, the relation of National to the rights of the plaintiffs was in the nature of subrogation. In that relation National could enforce against the defendant Dixie Cab Corp. the rights which formerly existed in the plaintiffs as judgment creditors but only to the extent allowed by section 211-a. It may be true that upon appeal, in the protection of the rights which National acquired by full *Page 461 compliance with section 211-a, the position of National as respondent will be inconsistent with the position it took upon the trial when the question of its liability in tort was an issue. That difference, however, in so far as it creates inconsistencies, is of no significance in view of the payment made in full by National of the judgment against the three defendants. National no longer asserts non-liability. In effect it admits liability, as it has the clear right to do under the statute. There will be, therefore, in the position National may take, no inconsistency which will defeat its right to be named and treated as a respondent on appeal. It may take such position as respondent as will serve best to protect its right as a judgment creditor of Dixie Cab Corp., and thus exercise a right given by section 211-a which the courts may not take away. (SeeJones v. Freeman, Inc., 249 App. Div. 710.)
In Ward v. Iroquois Gas Corp. (258 N.Y. 124) and Price v.Ryan (255 N.Y. 16) a defendant was not permitted to appeal against his codefendant because there was neither a joint judgment nor payment of a joint judgment. In the present case, where the defendant National has paid in full the judgment rendered against the three joint tort feasors and thus has a present right of contribution against its codefendant, it should be allowed to protect that statutory right.
The order should be reversed and the motion granted, with costs in this court and in the Appellate Division. We interpret the questions certified by the Appellate Division as raising only the question of its power to make the order here on appeal and we answer each question in the affirmative.