
    Adelia A. Hasell, Individually and as Sole Executrix, etc., of Bentley D. Hasell, Deceased, Respondent, v. Leander J. Buckley, Individually and Doing Business under the Firm Name of L. J. Buckley & Company, Appellant.
    First Department,
    March 22, 1907.
    Judgment — interlocutory judgment, how construed---contract to pay percentage of commissions earned through recommendation of plaintiff.
    Ordinarily the" affirmance of an interlocutory judgment establishes the law respecting the final judgment, but where the interlocutory judgment is ambiguous it will not be so interpreted as to do manifest injustice.
    Thus when the plaintiff sues for an accounting whereby the defendant agreed to pay the plaintiff’s testator one-half of the commissions received by the defend, ant as purchasing agent so long as the testator succeeded in inducing the principal to employ the defendant, an interlocutory judgment that the plaintiff was entitled to an accounting' for one-half of all the commissions received by the defendant should not he so construed as to mean that the latter was "liable for commissions on sums earned under a subsequent specific contract of employment by the principal, with the procuring of which the plaintiff’s testator had nothing to do.
    (Per In graham, J.): The interlocutory judgment should only be construed as a decision that the defendant account, and not as establishing the amount of the . recovery.
    Appeal by the defendant, Leander J. Buckley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of September, 1906, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 19th day of December, 1904, directing the defendant to tile his accounts.
    
      John A. Straley, for the appellant.
    
      H. H. Snedeker, for the respondent.
   Houghton, J.:

The appeal is from a final judgment in an action for an accounting respecting commissions received by defendant as purchasing agent for certain Cuban railway companies.

Plaintiff’s testator was purchasing agent for these corporations, and on the 12th day of i March, 1900, he transferred such business to defendant on the agreement that he should be paid one-half the commissions received by the defendant during the continuance of such contract as the plaintiff’s testator might succeed in inducing the companies to enter into with defendant to act as purchasing agent for them. Plaintiff’s testator died shortly after this agreement was made, but through his efforts the companies designate'd defendant as purchasing agent temporarily, and the employment so continued without any specific contract until April 9, 1903, when a special contract was entered into by them with defendant. With this latter contract plaintiff’s testator, of course, had nothing to do, aside from the fact that he had before his death brought the defendant and the companies together and had induced the companies to enter into relations with' defendant, of an indefinite character, which had continued until "the specific contract was entered into.

On the 19th of December, 1904, the plaintiff obtained an interlocutory judgment for an accounting which, in connection with the findings upon which it was based,, might be-constrned as adjudging that the plaintiff was entitled to an accounting for one-half of all commissions' received by. defendant from the Cuban companies from March-12, 1900, to the time when defendant ceased to act as purchasing agent for them, however long that might be and by whatever contract with them he should so act. On appeal to this court that judgment was affirmed without opinion., (10d App, Div. 630.)

O.f course, under ordinary conditions, an interlocutory judgment passed upon by this court establishes the law of this court respecting. the final judgment. Where, however, as in the present case, there is some ambiguity as to its provisions it will not and ought not to be interpreted so as to do manifest injustice.

The contract of April 9, 1903, not having been procured by the plaintiff’s testator, the accounting should have proceeded only to the date off that contract. -. The allowing to plaintiff of one.-half tlie net commissions earned by defendant up to that time is a liberal inteiv pretation of defendant’s contract and all that should be permitted. From the account filed on the hearing before the referee there can he no difficulty in ascertaining the amount of the net commissions earned by defendant up to April 9,. 1903, and the judgment should be modified by allowing such commissions: to- that time: Only and by striking out the'provisions of the judgment that plaintiff is entitled to any accounting subsequent to- that date, aiid as so modified- tlie judgment'should be affirmed, without costs,

Pattebson, P. J., McLaughlin and Clarke, JJ., concurred.

Ingraham, J.:

This action was referred to a referee to hear and determine; The referee filed a ffeport directing, an interlocutory judgment- which required- the defendant to account for the commissions that he- had received from certain Cuban railways,, and upon that report am interlocutory- judgment was entered which was affirmed by this court. The cause of action sought to be enforced was- based upon, an agreement between the plaintiff’s testator and the defendant and the relief asked was-that the defendant “make and render his account of moneys received by him as aforesaid and for., his actions as trustee as aforesaid; ” -that Y upon the completion, of said .accounting he be decreed to pay over to this jfiaintiff such sum as shall be as certained to be due her from said defendant.”

The interlocutory judgment ordered and adjudged “ that the defendant within twenty days after service of a copy of this judgment do account to the plaintiff and file his accounts herein, setting forth in separate items the amount of commissions received or entitled to be received by the defendant individually or the firm of L. J. Buckley & Company since March 12th, 1900, as purchasing or shipping agents for the Western Railway of Havana, Limited, and the Cuban Central Railways, Limited, and either of them; ” that the question whether the defendant should pay over to the plaintiff one-half of the gross or one-half of the net profits should be left open for further evidence. There was no adjudication until the accounting took place as to tlie amount that was due to the plaintiff from the defendant, or the commissions that the defendant received from these Cuban railways that were embraced within the contract between the plaintiff’s testator and the defendant. The judgment quite properly required the defendant to file his accounts of such commissions, and the amount of the commissions with the date of their receipt being before the referee, he could then on tire accounting determine the amount due under the contracts from the defendant to the plaintiff. Upon an appeal from the interlocutory judgment which merely required the defendant to file his accounts, this court was not called upon to pass upon the question as to the period during which the plaintiff would be entitled to recover, or the amount of the recovery, and the affirmance of the interlocutory judgment was not an adjudication that the plaintiff would be entitled to recover for all the commissions that the defendant had received or would in the future receive from these Cuban railways. What the interlocutory judgment determined, which determination we affirmed, was that the defendant should be required to file the accounts; the amount of recovery, including the period during which the defendant would be chargeable with one-half the commissions received and the amount of the commissions to be determined on- the accounting. The referee proceeded with the accounting and made and filed his, final report. By this final report lie decides that “under the agreement between the defendant' and said Bgntley D. Hasell, defendant obligated himself . to pay one-half of the net profits, when realized by him, in the conduct of said business, and not one-half of the gross profits thereof; ” that the defendant had received commissions in the accounts involved in this action from tile 12tli of March, 1900, to and including July 31, 1905, amounting to the sum of $16^721.52; that there were certain allowances to which the defendant was entitled for expenses of .conducting' the business and That the "defendant was entitled to be credited with certain money that he had paid in settling up the business affairs of the plaintiff’s testator after his death, and that by the adjustment of this account there was a balance due to the plaintiff of $2,738.36, and judgment Was, therefore, directed for the plaintiff for that sum, which judgment provided that the plaintiff might from time to time apply to the court at the foot of the judgment for a further accounting of the commissions subsequently received, and final judgment was entered in conformity with this report.

From the evidence it appeared that on March 12, 1900, the plaintiff’s testator had for some time acted as purchasing agent of certain Cuban railroads; that immediately prior to"March twelfth his health, had broken down so that lie was unable to continue such business. He stated to the defendant, then doing business under the name óf L. J. Buckley & Co,, that lie had a contract by which' he Was purchasing and shipping agent of certain Cuban railroads, and applied to the defendant to' undertake the continuance of this business under the terms' of this contract with these railroads, the., defendant to pay to him one-lialf the commissions paid by the said railways ; that he would aid defendant dn every way to obtain a contract with said railway companies upon terms similar to their contract with him, it being understood, that defendant is to pay to his order or to whom he may designate one-half the commissions the defendant would. receive from said railways. This agreement to continue during the term that a contract may be entered into between defendant and said railways, and' this proposition was' accepted by the defendant. The plaintiff’s testator then wrote- to the" railway companies stating the condition of his health;’ that'lie had transferred his business to the defendant, and asking that the contract be continued, and requesting that the company appoint the defendant his successor. In pursuance of this, recommendation the - railway companies on the twelfth of April addressed letters to the - defendant stating that in view of the recommendation of Mr. Hasell, “We are disposed to leave the business that we have confided to his'hands, in your hands temporarily, say until the end of this company’s financial year, June 30th next, when the matter will be taken up definitely.” Under this arrangement the defendant continued to act until April 9, 1903, when a new arrangement was made by which the defendant was to attend to the purchase of supplies for the railways, the defendant to do the work under the same terms and at the same rate of commissions that he had theretofore received; and it Avas further arranged that the defendant was to make payments on behalf of the companies if remittances did not reach him in time, he to receive interest at the rate of six per cent per annum upon the' amount of his disbursements from the actual date of payment until remitfances Avere received. After April 9, 1903, the business was transacted by the defendant under the new contract and has so continued to the present time. The referee allowed one-half commissions received from April, 1903, down to the date of liis report, and I think this was error. The plaintiff’s testator died on the 29th day of May, 1900, a little over two months after the arrangement Avas made. The agreement under which the parties acted Avas that the plaintiff’s testator was to aid the defendant in every way to obtain a contract from the raihvays, and in consideration of this transfer of the business and the services of the plaintiff’s testator the defendant was to pay to him “ one- . half (■§•) the commissions you would receive from said Bailways. This arrangement to continue during the term that a contract may be entered into between yourselves and said Bailways.” It is thus clear that the arrangement was to continue during the period that a contract obtained through the testator’s intervention should continue. A contract with the raihvay companies was obtained which was to last until the thirtieth of June of the same year, and before the term of that contract expired the plaintiff’s testator died; but, as no new contract was made, but the business continued under this temporary arrangement, I think it may be said that so long as the arrangement continued under the contract which Avas obtained as a result of the application of plaintiff’s testator to the raihvay companies, the arrangement was continued, and thus I think the plaintiff was entitled to -one-half of all its commissions received, down to the 9th of April, 1903, when the new contract was made between the defendant and the railway companies, and the defendant ceased to act under the contract which had been obtained at the solicitation of the plaintiff’s testator.

I think, therefore, that it was error for the referee to include in a recovery any amount of commissions received by tlie defendant after April 9, 1903, and that the recovery should be limited to the amount received prior to that date. As it would appear that the amount can be ascertained .from the accounts submitted by the defendant, the judgment should be modified by restricting the recovery to the amount due in- accordance with this opinion, and the judgment, as modified, should be affirmed, without costs..

Judgment modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice. .  