192 N.Y. 382 | NY | 1908
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *384 The question presented by this motion is whether certain of the next of kin of the testator who failed to appeal from the judgment of the Supreme Court, which declared that they had no right to any part of the estate of said testator, can take advantage of a reversal of said decree by this court made upon the appeal of certain other of the next of kin.
It may first be well to dispose of the notion or suggestion that a judgment in an action for the construction of a will differs in effect from judgments in other actions. The substance of the argument is that the action by the executors is for instructions and that there cannot be inconsistent instructions given by the court in the same action. The judgment of the Special Term, however, was not merely advisory but settled and declared the rights of the parties thereto among themselves. The right to maintain such an action is not confined to the executors, but may be exercised by any beneficiary under the will, though not by one claiming in hostility to it. (Chipman
v. Montgomery,
Therefore, the effect of the reversal of the judgment before us on the rights of the non-appealing defendants is to be determined by the same rules that apply to similar appeals from judgments generally. The rule is stated by Mr. Freeman in his work on Judgments (Vol. 2, sec. 481): "Where a judgment is against two or more persons, one only of whom appeals, its reversal, if the judgment was binding upon the defendants jointly, or if all must co-operate in complying with the judgment, affects the parties who did not appeal to the same extent as those who did. (Pittsburg, etc., Ry. Co. v. Reno,
Up to this point I understand my brother CHASE and myself *387
to be in accord. Our difference is whether the judgment is a joint or a several judgment. Here I may dispose of the suggestion that the judgment is against a class. There is no authority for suing a class as such as distinguished from the individuals composing that class, except that given by section 448 of the Code of Civil Procedure, where the parties of a class are too numerous to render it practicable to join them all as parties to the action, one or more may be selected as representing the class. No such situation existed in the present case, nor was there any attempt to sue one defendant as representing the others, but each person in interest was made a party, that he might defend or assert his rights in person and on his own behalf. The argument of my brother seems to proceed on the theory that because the issues on which the case was disposed of at the Special Term were common to all the defendants, the next of kin, therefore, the judgment against them was necessarily joint. I think the question of the identity of issue between the several parties has no necessary bearing on the question whether the judgment is joint or several. The distinction between the interest in a question and interest in a particular judgment is well illustrated by the rule which disqualifies judges from hearing causes. A judge cannot sit in the hearing of an appeal from a judgment in an action in which he is interested or he is related to the parties within the specified degree, and the judgment rendered by a court in which such disqualified judge takes part is a nullity (Oakley v. Aspinwall,
There is nothing in the case of Altman v. Hofeller (supra) inconsistent with the views I have expressed. That was an action in equity by the sureties of an administrator against (with others) the guardian of one of the next of kin and the said next of kin, to settle the accounts of the administrator, and the judgment in the action declared that the administrator had fully paid over to the guardian the infant's share. On appeal the General Term reversed the judgment as to the infant, but affirmed it as to the other parties. It was held that the adjudication that the administrator had fully paid the guardian was conclusive on the infant, despite the reversal of the judgment as to him. In that case the judgment was necessarily an entirety, for the very money or property for which the infant sought to hold the sureties of the administrator was the same money or property which the judgment declared had been paid to the guardian. As already said, in the case before us the share of each of the next of kin was several and distinct from the shares of the others.
The motion should be granted.
Dissenting Opinion
The appeal from a judgment of the Appellate Division affirming a judgment of the Special Term of the Supreme Court herein was recently heard in this court, and the opinion handed down with the decision is reported in
Two of the next of kin of the testator who were made defendants in the action and appeared and answered at the Special Term did not appeal from the judgment entered therein.
This motion is made to amend the remittitur of this court so as to deny to said next of kin who did not appeal the right to partake in the division of the income upon the fund in the hands of the plaintiff which accrued between the time when the testator died and the organization of the Andrews Institute *392 for Girls. It is made in behalf of said Andrews Institute for Girls to whom said income was directed to be paid by the judgment entered at the Special Term.
Where an appeal is taken by some one or more of the parties to an action aggrieved by the judgment therein it does not enable other parties to the action who have not appealed to be heard in opposition to the judgment in the appellate court. By failing to appeal the right to be heard is waived. (Levy v. Schreyer,
Although a person who has not appealed cannot be heard in the appellate court the judgment rendered on the appeal may inure to his benefit. Whether it will inure to his benefit depends upon the nature of the action and the form of the judgment. The question as to the power of the court to reverse a judgment in part and affirm in part frequently arises where all of the parties are before the court as appellants or respondents and their several interests are fully considered. This court in Cityof Buffalo v. Delaware, Lackawanna Western Railroad Co. (
A judgment can be reversed as to one plaintiff or defendant and affirmed as to another when a separate award of damages is made to each and such disposition of the appeal can be had without materially affecting the rights of the parties. (Van Siclen v.City of New York,
In Altman v. Hofeller (
In the same case this court further say: "Our attention, however, has been called to no authority which sustains the doctrine that where there is error which requires a reversal, the judgment can be properly reversed and a new trial granted as to some of the defendants and affirmed as to others, unless *394 in a case where their interests and the issues between them are so far separate that upon a new trial the issues between the plaintiff and the defendants as to which it is affirmed will not be involved or determined; so that there cannot be two different and inconsistent judgments upon the same issue in the action. The rule in this respect must, we think, be the same in a suit in equity as in an action at law. If the subject or issue as to which a new trial is granted is so far separate and distinct from the other issues in the case, is one in which the party in whose favor it is granted is alone interested so that any judgment that may be rendered upon it can in no way affect the other parties who are joined with him, then, doubtless, the court would be authorized to grant a new trial as to one and affirm as to the others. In such a case the only parties interested are the plaintiff and the defendants as to whom the new trial is granted. It is the same so far as that issue is concerned as it would have been if there were no other parties to the suit. But when a new trial is granted as to an issue that affects all the parties, and when all are interested in any judgment that may be rendered thereon, it should be either entirely reversed or affirmed as to all the parties. In such a case the court has no authority to reverse and grant a new trial as to part and affirm as to the others. Any other rule would result in conflicting judgments in the same action, affecting the same parties, and would produce a degree of confusion and uncertainty that would render the proper and orderly administration of the law quite impossible."
The rules applicable to cases where some of the parties to an action appeal from the judgment rendered therein and some of the parties similarly affected by the judgment fail to appeal are not unlike those that we have quoted in cases where an appeal has been taken by all of the parties to the action and the question is involved as to the power of the court to reverse the judgment as to some of the parties and affirm as to others.
A judgment can be reversed as to an appealing party and left to stand against a non-appealing party when such judgment *395
is in separate and distinct parts or in a case where the action could have been severed. (Van Siclen v. City of New York,supra; Levy v. Schreyer, supra; Belden v. Andrews,
The courts do not overlook the controlling force and effect of a judgment as against a person who has not appealed therefrom when by reversing it as against an appealing party it is necessary because of the entirety of the judgment to reverse as to all the parties to it.
Where the defendants are partners or interested in a joint venture a reversal of a judgment on an appeal by one necessitates a reversal as to the other. (Boice v. Jones,
In an action in equity brought by a creditor in behalf of himself and other creditors to enforce the statutory liabilities of directors of a corporation it was held that a reversal of an interlocutory judgment on an appeal by some of the defendants inured to the benefit of all of the defendants since the action could not have been severed in the trial court. (Bauer v.Hawes,
It is the general rule that only the rights of parties before the court can be adjudicated on appeal, and the rights of persons who are not parties to the appeal cannot ordinarily be considered. But where the parties appealing and those not appealing stand upon the same ground and their rights are involved in the same question and equally affected by the same decree or judgment the court will consider the whole case and settle the rights of all the parties. (3 Cyc. 411.)
It is provided by section 1205 of the Code of Civil Procedure as follows: "Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judgment, against one or more of the defendants; and direct that the action be severed, and proceed against the others, as the only defendants therein."
In a case where the court at the trial or Special Term has power to sever the action as between the parties thereto and *396 subsequently after judgment some of the parties appeal therefrom and others fail to appeal, the appeal in behalf of some of such parties will not inure to the benefit of the non-appealing parties, but where the parties to an action are necessarily joined by reason of some contractual or other relation, or by virtue of some statute, or because they constitute a class, and the action could not have been severed at the trial or Special Term the appeal in behalf of some one or more of such parties and a reversal of the judgment as to them, will result in a reversal as to all.
This action was brought by the plaintiff as executor and trustee for the construction of the will of the testator and for the instructions of the court. In his complaint the plaintiff alleges:
"That as to his duty in the execution of the trusts and obligations imposed upon him by said will of said Wallace C. Andrews, deceased, he is advised by his legal counsel and believes that various questions and doubts have arisen as to the construction thereof, and the validity of certain provisions therein by reason of which plaintiff cannot safely proceed to pay over the residue of said estate without the instruction and judgment of this court, and by this action he desires to submit said questions and doubts to the determination of this court and himself to its directions concerning the same. Among which question and doubts are the following * * * Whether the heirs at law or next of kin of said testator are entitled to any portion of his estate."
Although the judgment of the Special Term was satisfactory to the plaintiff and he did not appeal therefrom the purpose of the action remained and the decision of this court is a construction of the will in a matter relating to the next of kin as a class. No construction of the will could have been had upon the pleadings or at the Special Term that would have given to some of the next of kin an interest in the testator's estate, or of the income thereon and deprived others of the next of kin therefrom.
If this court had directed a new trial of the action it would, under the authority of Altman v. Hofeller (supra), have been *397 directed as against all of the next of kin. The fact that a new trial was not ordered does not, it seems to us, affect the determination of the question now before us. If the modification of the judgment directed by us does not apply to all of the next of kin it will result in inconsistent judgments upon the same issue and the court will instruct the plaintiff as executor and trustee to distribute the income of the estate for the time mentioned to a part of a class and withhold the shares from the others of said class, not pursuant to any possible construction of the will or in accordance with the judgment of the court based upon the duty of the executor and trustee, but pursuant to the claimed rights of the parties growing out of the practice in connection with the appeal. The appeal taken from the judgment was general and no question relating to the identity of the next of kin is involved.
I am of the opinion that the reversal of the judgment in part, as stated in the opinion previously filed herein, inures to the benefit of the next of kin as a class. The motion should be denied, with ten dollars costs.
Motion to recall and amend remittitur granted, and remittitur amended so as to read as follows: "Order and adjudge that the judgments of the Appellate Division and Special Term of the Supreme Court appealed from herein be and the same hereby are modified so as to award to each of the next of kin of the deceased who have appealed from the judgment of the Special Term herein and from the judgment of the Appellate Division herein affirming said judgment of the Special Term, his proportionate share of the income from the rest and residue of the estate from the date of the death of the testator to the date of the incorporation of the Andrews Institute, and as modified affirmed as to the parties to this appeal, with costs to all the parties appearing in this court and filing briefs, payable out of the principal fund."
WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur with CULLEN, Ch. J; GRAY and HAIGHT, JJ., concur with CHASE, J.
Ordered accordingly. *398
