33 N.Y.S. 1024 | N.Y. Sup. Ct. | 1895
Lead Opinion
This action is brought, under section 1781 of the Code of Civil Procedure, to compel the defendants to “account for their official conduct in the management and disposition of the funds and property of the corporation the Hoffman House, committed to their charge as directors, officers, and trustees, and return the account books, papers, and checks to the defendant corporation.” The complaint charges that “the defendants have had since its organization, and now hold, the control of the corporation, and have been guilty of official misconduct therein, and in the management and disposition of its funds and property committed to their charge, and that the said defendant Stokes has wrongfully acquired to himself, and transferred to others, money and property of the corporation, and has lost or wasted the same, with the knowledge and concurrence or acquiescence” of certain of the other defendants named. Upon the trial, after a certain amount of evidence was taken, the learned trial judge, without having reached any conclusion upon the question of whether the defendant Stokes or the other defendants had been guilty of fraud, neglect, violation of law, or other misconduct, as charged, made an order appointing a referee to take and state an account of certain transactions had by defendant Stokes with the defendant corporation, the Hoffman House, which appears upon the books of the corporation in three accounts; the referee being directed, among other things, “to state and report any special circumstances, as well as his reasons for allowing or disallowing any claims or allowances that may be claimed by either party.” The parties proceeded before the referee, and after certain testimony was taken an application was made for an amendment of the order of reference, directing an account by the defendant Stokes of all his dealings and transactions between him and the Hoffman House, and directing the latter to produce the books and papers of the corpora
We can find no authority for the orders made. The object of this action was to compel the defendant officers to account for official misconduct, and not for the examination of a long account; and the latter could not be ordered until there was some proof to sustain the allegations that there had been some official misconduct, and a determination to that effect reached by the trial judge, and put in the form of an interlocutory judgment directing the account. The issue here presented was as to whether the defendants, or one of them (Stokes), had been guilty of official misconduct. Without, however, reaching any determination upon this question, the trial judge, as already stated, appointed a referee. For such practice we can find no authority either under section 1013 or section 1015 of the Code of Civil Procedure, which are the sections showing in what actions, and under what circumstances, references may be ordered. See cases cited in Judge FOLLETT’S opinion.
The claim is made that there has been a waiver of the right to appeal, by reason of the fact that the appellant went on before the referee, and several authorities are cited to sustain this proposition. An examination of these cases will show that they arose under the old Code, and have no application to the condition of the law as it now exists. Section 1316 of the present Code of Civil Procedure is as follows:
“An appeal taken from a final judgment, brings up for review an interlocutory judgment or an intermediate order which is specified in the notice of appeal, and necessarily affects the final judgment; and which has not already been reviewed, upon a separate appeal therefrom, by the court or a term of the court to which the appeal from the final judgment is taken. The right to review an interlocutory judgment, or an intermediate order, as prescribed in this section, is not affected by the expiration of the time, within which a separate appeal therefrom might have been taken.”
•Under the old Code there was no authority to review an intermediate order upon the appeal from a judgment. Such practice was introduced by the new Code, with certainly no good results, but still exists, and must be considered. A party may now go on under an intermediate order, and wait until the judgment is entered, in order to review the same. There can be, therefore, no waiver of a right to appeal from such intermediate order by going on under it. In the case at bar the party did not waive his right to appeal by going on, because that exists until the entry of judgment, and his right to appeal from the judgment is ended. Furthermore, the right to appeal from the last order entered was not waived,—if it could be waived by going on before the referee,—because the original order was materially amended, and then an appeal was taken from the order as amended, in consequence of such amendment. The party refused to go on before the referee under the amended order of reference; and it is difficult to see how, because he proceeded under the original order of reference, and was content and willing so to do, when the court amended the order such procedure waived his right to appeal from the order as so amended. It seems to me that, it being conceded that the court had no power to make the orders of
O’BRIEN, J., concurs.
Dissenting Opinion
At the close of the trial before the special term, any one of the litigants had the right to require the court to determine the issues involved in the trial. The parties were entitled to a decision (Code Civ. Proc. § 1022; Wood v. Lary, 124 N. Y. 83, 26 N. E. 338), and to an interlocutory judgment to be entered thereon, deciding whether a cause of action had been established, and a case for an accounting made out. But no decision was made, no interlocutory judgment was entered, and nothing was done except to enter the order, which determines no issue. In the proceedings had after entry of the order it is called an “interlocutory judgment” and an “interlocutory decree”; but it is neither, for it adjudges and determines no issue,—simply appoints a referee, with certain powers. On the argument it was intimated that there had been a mistrial, and that the orders would have to be reversed. Doyle v. Railroad Co., 136 N. Y. 505, 32 N. E. 1008; Bank v. Houston, 44 Hun, 567; Griffin v. Cranston, 1 Bosw. 281, 5 Bosw. 658; Const. art. 6, § 8; Const. 1895, art. 6, § 3. But the attention of the court was not then called to the fact that after the entry of the order of June 20, 1894, all parties appeared before the referee, and for several days, engaged in taking the evidence, without any objection being raised to that mode of trial. No objection was raised to trying the matter under the order of reference until the referee ordered Edward S. Stokes to permit the plaintiff to examine the books of the corporation, and then the appellant raised no objection to the mode of trial; but, after the order was so amended that he was required to produce the books, this appeal was taken. The appellant, by voluntarily going to trial before the referee, without objection, waived his right to appeal from, or to move to vacate, the order of reference. Ubsdell v. Root, 1 Hilt. 173; Porter v. Parmly, 38 N. Y. Super. Ct. 490; Grumberg v. Blumenlahl, 66 How. Pr. 62; Brady v. Donnelly, 1 N. Y. 126; Baird v. Mayor, etc., of New York, 74 N. Y. 382. The defendant could not go on under the order before the referee as long as he was satisfied with his rulings, and, when dissatisfied, object to that mode of trial, and then appeal from the or'der. A question of waiver of the right to appeal can never arise after the time to appeal has run, because the expiration of the time is an end of the matter; but a litigant may waive his right, though his time to appeal has not run, and, once waived, it is gone forever, and the waiver cannot be revoked by appealing within the time allowed by statute. A reference to take and state an account, as between a corporation and its officer who has kept and has possession of its books, of necessity, requires the officer to produce the books; and the express command introduced into this order by the amendment of November 30, 1894, added nothing to the force or effect of
