Hebblethwaite v. Flint

82 N.Y.S. 471 | N.Y. App. Div. | 1903

Jenks, J.:

We think that the plaintiff can safely proceed under the interlocutory judgment as it now stands. We do not understand that the court in directing the final judgment is confined to the interlocutory decree or is foreclosed by it. Section 1231 of the Code of Civil Procedure provides: “ In an action triable by the court, an interlocutory judgment, rendered upon a default in appearing or pleading, or pursuant to the direction contained in a decision or report, may state the substance of the final judgment, to which the party will be entitled.” We know of no provision that it must state the substance of the final judgment. As we read the record the Special Term has decided that there must be an accounting to the plaintiff as to the first cause of action, and has decided in favor of the plaintiff and has measured out the specific terms of his judgment as to the second cause of action. The interlocutory judgment is in express terms limited to the first cause of action. The court has in effect made a reference of the account filed, with a direction that the report of the referee thereon be returned to it. The decision reads: “Let an interlocutory judgment be entered for an accounting under the said first cause of action ; and upon the said account being taken and stated, let a final judgment be entered herein as aforesaid, and for the sum due from the defendants to the plaintiff, or. as it may be.” The interlocutory judgment, after providing for presentation of the referee’s report on the accounting .aforesaid to the court which made the decision, reads: “ Whereupon a final decision will be made and final judgment given.” Thus the decision has defined the relative legal rights of the parties, while the interlocutory judgment is merely to provide for the taking of the account and the return of the report thereon to the trial court. Until that account is stated the specific, full, final judgment in the entire case cannot be determined, and when this is completed the court will direct final judgment by taking together the result of the accounting and the relief already determined for the plaintiff. The costs and allowance can be determined when final judgment is ready for entry, while the allowance cannot be determined before that time.

The order should be affirmed, but under the circumstances it may be without costs or disbursements.

Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Order affirmed, without costs.