
    John Duryea, Resp’t, v. Catharine Furchsel et al., as Executors, etc., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 16, 1894.)
    
    Judgment—Amendment.
    A judgment of dismissal cannot be amended by adding to the foot thereof an order appointing a referee to take and state the accounts between the parties.
    Appeal from a j udgment entered on a referee’s report, and from an order modifying the provisions of the judgment, and from an order overruling exceptions to the referee’s report.
    
      F. B. Candler, for app’lts; A. A. Gardner, for resp’t.
   Van Bbunt, P. J.

This action was begun to recover for the sale and delivery of certain merchandise alleged to have been delivered by the plaintiff to the defendants’ testator at an agreed price, and which merchandise the defendants’ testator agreed to manufacture, and pay to the plaintiff oné-half of the net profits of the sale thereof; and judgment was prayed for the amount claimed as the purchase price, and for an accounting as to the profits upon the sale thereof. After a trial, the court found a contract between the plaintiff and the; defendants’ testator by which the plaintiff agreed to purchase certain carloads of cauliflower, and ship them to the defendant, which the defendant was to manufacture, and sell, after such manufacture, in the market; and that the defendant was to reimburse himself for any expenses which he might have incurred, and then reimburse the plaintiff, out of the balance of the proceeds of sale, for the price to be paid for the canlifl-uvcrs, and then the profits arising from the adventure were to be equally divided between the plaintiff and the defendant. The court further found that the enterprise proved a failure, and that there were no profits therefrom to be divided between the parties thereto, and, as a conclusion of law, that the plaintiff had established no cause of action against the defendant, and that the defendant was entitled to ^judgment against the plaintiff, dismissing the complaint, with costs, and judgment was ordered accordingly. On the first Monday of March, 1890, a judgment was duly entered upon said decision, dismissing the complaint of the plaintiff upon the merits, and directing that the defendant recover of the plaintiff the sum of $220.58, the amount of the costs and disbursements of the defendant as adjusted by the clerk. On the 10th of April, 1891, an order was entered at a special term held by the justice who had tried the case, reciting the entry of the foregoing judgment, and that the plaintiff had subsequently made a motion before said justice for a new trial on the ground of irregularity and surprise, and that the court had, by an order duly entered on the 20tli of March, 1891, denied said motion for a new trial, but with leave to the plaintiff to move to amend said judgment so as to appoint a referee before whom the defendant should account for the goods sold by him and the profits realized therefrom, and ordering and adjudging that “the judgment entered on the first Monday of March, 1890, be, and the same was thereby, amended by adding to the foot of said judgment as follows.” And here follows the appointment of a referee to take and state the accounts between the plaintiff and the defendant. Pursuant to said order of reference, proceedings were had before the referee, who reported in favor of the plaintiff, and to whose report exceptions were filed, which were overruled, and judgment entered in favor of the plaintiff. In the meantime, the defendant had died, and the action was continued against the present defendants as his executor and executrix.

The appeal brings before us the regularity of the order entered on the 10th of April, 1891, amending the judgment entered on the first Monday of March, 1890, and of the judgment entered upon the referee’s report made pursuant to said amended order. In the disposition of this appeal it is not necessary to consider any of the questions raised by the appeal from the judgment, for the reason that we are of opinion that the alleged amendment of the judgment was errofleous, and conferred no jurisdiction whatever upon the referee to proceed in the action. The cause had been tried, and findings of fact made that there were no profits arising from the enterprise, and, as a conclusion of law necessarily following from such findings of fact, that the plaintiff had established no cause of action against the defendant, and that the defendant was entitled to judgment against the plaintiff, dismissing the complaint, with costs. Such a judgment had been entered, and, so long as that judgment existed, there was certainly nothing further which could be done in the action, with a complaint dismissed by a competent judgment; the plaintiff certainly can have no recovery in such an action. Without considering the question as to whether the court could, or'could not, have amended the judgment by vacating that which had already been entered, it is sufficient to say that, at least until the judgment dismissing the complaint was vacated, no other or different judgment could be rendered as against the defendants. It certainly would be an anomaly .in a litigation to have a judgment dismissing a complaint, and at the same time granting relief to the plaintiff because of the cause of action alleged to have been set out in the complaint. This conclusion, which seems to us to be inevitable, makes” it unnecessary to consider any of the questions raised -by the appeal from the judgment entered upon the referee’s report, for the reason that, the order amending the judgment appointing the referee being reversed, all the subsequent proceedings necessarily fall. The result of this case strikingly illustrates the ill-advisedness of the change in practice made by the present Code from that which had previously prevailed in respect to the review of intermediate orders. The plaintiff, after the judgment was amended, and without any notice upon the part of the defendant that such amendment was to be questioned, goes on with his reference, incurs the expenses of a trial before the referee, succeeds, and all his proceedings become of no value because of the review of an intermediate order on the appeal from the judgment thus procured. The order of the 10th of April, 1891, should be reversed, and the judgment appealed from vacated, but, under the circumstances, without costs.

Follett, J., concurs.

O’Brien, J.

(concurring).—I think it reasonably clear that the trial judge, after the entry of judgment, and on his attention being called to the status of plaintiff which entitled him to an accounting, intended to amend or modify the judgment so that such relief might be accorded. This was attempted by the order referring it, which, while the judgment stood dismissing the complaint, could not be done; and I agree with the presiding justice that the •order of reference and the subsequent judgment must be reversed. The plaintiff, assuming that the order of reference was proper, has no doubt allowed the time to appeal from the judgment dismissing his complaint to expire. On the accounting it was decided that the defendant was indebted to plaintiff in the sum of $5,103.74; and yet, as the result of a mistake, he finds himself out of court because he has lost his appeal. It may be that, on a new trial, ■plaintiff might not recover so much, or anything at all; but justice demands that there should be a new trial. Here, then, a mistrial has occurred, but how to remedy the injustice is by no means •clear. I think, however, that the reversal should be with leave to plaintiff to apply upon a case and exceptions for a new trial, or upon motion to resettle or set aside the judgment, or to make such motion before the trial judge as the practice permits.  