95 N.Y.S. 1036 | N.Y. App. Div. | 1905
This is an action, first, to reform a contract; second, to recover an amount alleged to be due and owing from the defendant Eossiter to the plaintiffs thereunder; third, for an accounting by the defendant Eossiter to the plaintiffs for a percentage of the.profits, fixed in the contract, on the construction and equipment of an electric light plant in Mexico and certain disbursements, and, fourth, to compel the defendants to deliver to the plaintiffs certain stock and - bonds of the defendant corporation. The issues were tried at ' Special Term, and upon the decision made an interlocutory judgment was entered, first, reforming the contract; second, directing a judgmént in favor of the plaintiffs against the defendant Eossiter for the sum of $13,000 together with interest; third, directing the defendants to forthwith transfer to the plaintiffs $25,000 of the stock of the defendant company and a like amount of bonds of said company; fourth, directing the defendant Eossiter to account to the plaintiffs' for two-thirds of the profits of the construction work referred, to in the contract, on which the action is based, and directing how certain items shall be charged on the accounting, and
Section 1200 of the Code of Civil Procedure provides that judgments are either interlocutory or final, and defines a final judgment as the final determination of the rights of the parties in the action. This judgment expressly recites tliat it is interlocutory, provides for an accounting and for a final judgment thereafter. There can he no doubt, therefore,- but that it is an interlocutory judgment.
(Cambridge Valley Nat. Bank v. Lynch, 76 1 N. Y. 514; King v. Barnes, 107 id. 645.)
The learned counsel for the respondent proceeded upon the theory that since the interlocutory judgment, in so far as it determines that the appellant is liable to the plaintiff in a specified amount, is hot enforcible by execution, not being a final judgment, it,must be, enforcibie by contempt proceedings.. This would be a startling prop^ ositibn in any case, but becomes astounding when presented in a case where the recovery is for money due under a contract; The liability, of course, is not enforcible at present by execution; but the terms of the interlocutory judgment should be inserted in the final judgment, and then this liability may be docketed and will become a lien and may be enforced by execution. (Myers v. Becker, 95 N. Y.. 486.) This is unlike a case where money is directed to be paid into court, a provision which could not be enforced by execution, or .where restitution to the court is ordered of money paid out. of court, and it is the ordinary case of a judgment directing the payment of money to a party which can only be enforced by execution. (See General Electric Co. v. Sire, 88 App., Div. 502; Code Civ. Proc. § 14, subd. 3; id. § 1241, subds. 3, 4; Kittel v. Stueve, 11 Misc. Rep. 280; Geery v.. Geery, 63 N. Y. 252; Devlin v. Hinman, 40 App. Div. 101; affd., 161 N. Y. 115.)
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and- disbursements, and motion denied, with ten dollars costs.