
    Edmund Griffin v. Hiram Cranston, Curtis Judson et al.
    
    1. When an action is tried before the Court without a jury, and the decision does not dispose of all the questions in controversy but directs a reference to state an account, no appeal regularly lies to the General Term from the order or decree until after such reference and final judgment thereon.
    2. But when the trial of an action is begun all the issues should be tried and disposed of, so far as the reference ordered to take the account does not embrace them. There are not to be two trials, one before and one after the reference. Where a reference is ordered on a trial, in order to enable the Court to give judgment, the hearing which may be had on the coming in of the report of the Referee is not to be a trial, but a mere review of what has been done before the Referee, and its confirmation or the contrary, and the application of the decisions already made on the trial to .the account stated.
    3. If the trial begun before the Court is terminated without deciding all the questions which ought to be determined before the reference is directed, and is left so unfinished that it should properly be deemed a mistrial, then an order made on such a trial, ordering a reference and appointing a Receiver, may be appealed from. Such a case is not within section 268 of the Code, forbidding the review of what is done on a trial before a Judge, except by appeal from the judgment.
    4. And where an appeal to the General Term was taken from an order made on a trial without a jury, appointing a Receiver and directing a reference to state an account between the parties, and such appeal was argued and decided upon the merits, all of the proceedings on the trial being reviewed and considered and a new trial ordered, the Court refused to vacate the order granting a new trial and so reinstate the order of reference and appointment of a Receiver, which they have decided to be erroneously made.
    5. The proceedings on the appeal to the General Term in the case, as last stated, were not without jurisdiction, in such sense that the order of the General Term was void; nor will those proceedings embarrass the plaintiff in prosecuting his case on the new trial and subsequent proceedings to final judgment.
    (Before all the Justices.)
    Heard, November 12th;
    decided, November 26th, 1859.
    Motion by the plaintiff to vacate an order for a new trial, made at a previous General Term. The action was brought by a judgment creditor of one member of an alleged co-partnership, in carrying on a hotel, to set aside an assignment and for an account of the debtor’s interest in the business. It was tried at Special Term before a Judge without a jury, and after the cause had been submitted for decision the Judge determined some of the questions in controversy; the fact -of co-partnership, the terms thereof, and the liability, to account, and right to distribution, and directed a reference to state an account between the parties. And he also directed the Eeferee (in case certain security was not given by the defendant) to appoint a Eeceiver who should take possession of the property of the co-partnership, carry on the business of the hotel until a sale could be made, sell the property, and collect the debts and hold all proceeds to be disposed of and appropriated according to the rights of the parties as they may be finally settled; and, reserving the question at what day the partnership is to be deemed to have terminated, the Eeferee was to so state the account that on the determination of the precise day the account would furnish the materials for directing a distribution or-appropriation of the property as might be just, which soever of the disputed days might be determied thereafter by the Court as the day of the dissolution.
    From the order (in the nature of an interlocutory decree under our former Chancery system,) an appeal was taken to the General Term. On that appeal the general merits of the cause were considered and the principles of the decision and the exceptions taken on the trial, and a new trial was ordered.
    A more full statement of the nature of the controversy, the issues between the parties, the order made at the trial and the decision of the General Term, are contained in the report thereof. (1 Bosw., at page 281, et seq.)
    
    From the order granting a new trial the plaintiff appealed to the Court of Appeals, giving the stipulation required by the act of 1857. (Laws of 1857, chap. 723; § 11 of Code, subd. 2.)
    That Court dismissed the appeal upon the ground that until a complete and final disposition of all questions, whether of liability or its amount, capable of being litigated in the cause, no appeal would lie to that Court; and that the act of 1857, allowing an appeal from an order granting a new trial, would only apply to cases in which judgment absolute could be directed, finally disposing of all such questions. And in the memorandum of the views of the Court, said to exhibit the grounds of dismissal, it was intimated that the appeal to the General Term of this Court was premature, and that the order granting a new trial might perhaps be vacated by this Court.
    
      Thereupon the plaintiff moved this Court in General Term to vacate the order reversing the decision at Special Term and directing a new trial, which was entered on the decision reported in 1st Bos worth. That report and the opinion given on this motion give all the facts which it is material to state.
    
      David Dudley Field, for the plaintiff, in support of the motion argued:
    1st. That the General Term, before which the appeal was argued and by which the order of reversal and for a new trial was made, had no jurisdiction to hear or determine the appeal.
    2d. That there was no power to stop a trial which was in progress before a single Judge; that in this case the trial was unfinished; that the plaintiff was entitled to go on and finish the trial, and have the questions which had been left undecided, determined. The decisions which the Judge had made at Special Term to stand, and to govern the reference which should now proceed upon the principles directed at Special Term, just as if no appeal had been taken to the General Term, and that a Eeceiver should be appointed as directed.
    3d. That the order of the General Term having been made without jurisdiction should nevertheless be vacated as an incumbrance to the record, and possibly embarrassing the orderly conduct of the cause in the future.
    
      H. F. Olarlc, for the defendants in opposition, insisted:
    1st. That the General Term had jurisdiction to hear the appeal which they did hear and determine; that so far as the order appealed from appointed a Eeceiver, it was appealable by the express terms of the Code as an order granting a provisional remedy. (Code, § 249.)
    2d. That on the merits the order for a Eeceiver should have been reversed as it was.
    3d. That the plaintiff did not raise the objection that the appeal was not properly taken when the said appeal was heard, and he 'is therefore concluded. He is now too late, after a reversal of the order appealed from, to ask that the reversal be vacated on any such ground. He should have moved before the hearing to dismiss the appeal.
   By the Court—Woodruff, J.

The Court of Appeals have decided that no appeal will lie to that Court from the order or decree made herein, until the reference thereby directed shall have been had and a final judgment entered: that such decree, or order, is not a final judgment within the meaning of that term, as used in the Code.

The insuperable obstacle to a hearing of an appeal in the present stage of the action is, that that Court has no jurisdiction to entertain the appeal.

This Court, in General Term, have decided, in a similar case, (Lawrence v. The Farmers’ Loan and Trust Co., 6 Duer, 689; 15 How. Pr. R., 57,) on a motion to dismiss an appeal, that a decision made on a trial by the Court without a jury can only be reviewed on an appeal from the judgment, and that, where the decision and order direct a reference to take an account, that appeal cannot be taken until the account has been taken and all questions arising upon it have been disposed of at Special Term; and that an appeal, such as was heretofore taken in this cause from the order or decree in question, will be dismissed on motion; and that the term “judgment,” from which an appeal may be taken to the General Term, means the same thing as a judgment from which an appeal can be taken to the Court of Appeals.

In the present case, the order or decree appealed from directed the Referee, (in the event that certain security was not given by the defendant,) to appoint a Receiver, who should take possession of all the property alleged to belong to the partnership to which the controversy relates, and should carry on the business of the hotel in question until a sale could be made; should sell the property and collect the debts, &c., and hold the proceeds (as Receiver) to be disposed of according to the rights and interests of the parties as they may be finally settled. '

If the proceedings had at Special Term are not so defective that they must be deemed a mistrial, then, unless the circumstance that provision was thus made tor the appointment of a Receiver creates a material distinction from the case decided in this Court, it is to be deemed now settled, not only that the Court of Appeals have no jurisdiction to entertain an appeal in the present stage of this cause, but that this Court would have been bound to dismiss the appeal which was taken herein to the General Term, had the respondent moved for such dismissal.

The present motion, therefore, seems to us to raise two questions only which are open to discussion:

First, Do the conduct of the cause on the trial, the unfinished state in which the trial was left, and the appointment of a Receiver in the order, so distinguish this case from Lawrence v. The Farmers' Loan and Trust Company as to make the order appealable? and,

Second, Was the General Term of this Court without jurisdiction to hear and determine the appeal, in that sense that their determination was either void or so erroneous that it will render the future proceedings in the cause also erroneous ?

1. In relation to the first question, it should be stated that the order or decree in question does not purport to determine all of the matters in issue.

A question, upon which the result of the litigation may depend, is reserved until the coming in of the report of the Referee, viz., whether the partnership between the defendants terminated on the 5th of December, 1854, or continued down to the present time. Upon the decision of that question may depend the question whether there is any property belonging to the defendant Judson, or any interest in the co-partnership property which the plaintiff, his creditor, can reach. For, if the co-partnership be then deemed dissolved, the whole property may be necessary for the payment of the co-partnership debts.

The case, then, is one in which, a trial having been begun, the Court determine a part only of the issues, and, not deciding one without which the rights of the parties cannot be determined, order the cause to a reference and appoint a Receiver. It is not a cause in which every question on which the rights of the parties depend is decided, and the application of the decision to the state of the accounts by mere computation only remains to be done.

In a suit brought for an accounting, a trial may be had, and, on determining all the questions material to the issues, an accounting may be directed as the very relief prayed for, and such accounting may be directed to be had after the trial and before a Referee.

And when it is necessary tnat an account be taken for the information of the • Court, no doubt that may be directed to be taken before the trial of the cause in a case proper for the submission of the other questions to the Court or to the jury. But we apprehend that, whenever the trial is begun, whether it be the trial of the issues before the account is taken, or the trial of the remaining questions after the account is taken, it must be finished; and that part of the issues cannot be tried before the account is taken, and the residue afterwards at a subsequent term.

Where a trial is had before an accounting is directed, it should determine all the issues. Such questions as arise on taking the account are, of course, to be disposed of by the Referee; but we do not think that there can regularly be two trials of the same cause—one before and one after the accounting is had. A hearing on the report of the Referee, if any hearing is necessary in such case, is not a trial; it is a mere review of what has been done on the reference and the confirmation or setting aside of the report, or the application of the decisions made on the trial to the account stated.

The question, then, recurs: Is an order or decree, made on an unfinished trial, deciding some of the issues and appointing a Receiver, appealable?

We are not prepared to hold that every order which a Judge may make in a cause after he has begun a trial thereof, which he does not finish, is an order that cannot be reviewed on appeal, although it purports to be founded on the facts proved before him.

If, in fact, though the trial is begun, it is not completed, but is, in truth, a mistrial, it seems to us that the orders made and entered by the Judge may be appealed from as interlocutory •orders. That there should be some mode of setting aside, or of reversing, such orders, cannot be doubted.

If we hold that section 268 is applicable to such orders, and that they can only be reviewed on appeal from the judgment, then no motion to set them aside could be entertained; and, if not appealable, they must stand as valid orders in the action until a future trial shall be had and a final judgment rendered.

■This is not the meaning or effect of the section referred to. That has no application to a mistrial or the orders made thereon.

If this be correct, and the view above suggested of the trial" herein be just, then the order herein was appealable, and we ought not to disturb the order of reversal and order granting a new trial, merely because it was made upon a review of the merits and not on the grounds above stated.

Indeed, it seems to us that one of three views must be taken of the present condition of the cause.

Either the proceedings had at Special Term must be treated as of no effect, because the trial, though begun, was not finished and the term was ended;

Or, the orders there made should be set aside on motion, for the same reason;

Or, those orders were properly appealable, because made on what has practically proved to be no trial.

We regard the latter as the most suitable and orderly mode of avoiding such orders, and that nothing in section 268 forbids it. They are not made under the circumstances contemplated by that section.

But, without resting the determination of the present motion on this ground alone, we inquire,

2. Assuming that the proceedings at Special Term are to be regarded as a trial of the action, (although unfinished,) was the General Term without jurisdiction to hear and determine the appeal, in such sense that their determination was either void or so erroneous that it will render the future proceedings in the cause also erroneous ?

The remaining question is thus stated, because, if the proceedings heretofore had upon the appeal are wholly void, they ought not to incumber the record and present a palpable incongruity and conflict between the orders of the Court and the subsequent proceedings which, in that view, may properly be taken in disregard thereof. And if, though not wholly void, the proceedings are so erroneous as to render the subsequent proceedings in the cause, had in conformity with the directions of the General Term, also erroneous, then the error ought to be corrected at once, to save expense and delay in the prosecution of further and future appeals to correct the error.

But, on the other hand, if, when the respondent did not move to dismiss the appeal, but suffered the same to proceed to a hearing and determination, the question is- one of regularity merely, and the decision of the General Term is operative and binding on the parties, and will not render such subsequent proceedings erroneous, then, although the General Term would have dismissed the appeal had a motion to dismiss been made, we ought not now to set aside "the proceedings,, for two reasons: First, Because, viewed as a mere irregularity, it is cured by the appearance of both parties to argue and the actual argument of the merits; and, Second, Because, on the merits, the General Term have decided that the order appealed from was erroneously made, and, therefore, to now vacate the reversal and send the parties to a reference in the face of that decision, under which the whole must hereafter be reversed, (when the reference has been had,} is- apparently subjecting the parties to great expense, trouble and delay for no useful purpose; and, in respect to the Receivership, it would break up the defendants’ business by force of a decision decided by the General Term to be wrong.

It is true that a General Term of this Court may, on the coming up of a future appeal, be so constituted that the opinions of the General Term already announced herein will not be followed; but we do not think our action here should recognize such a possibility. We should regard the decision which was in fact made; and if so, the setting aside of the order of reversal can be of no advantage to either party, but quite the contrary, and we are satisfied that, if the plaintiff proceeds to the new trial which has been ordered, his proceeding will be, in all respects, safe, and cannot be assailed by the defendants. The motion should be denied; the costs of the motion, (under the peculiar circumstances in which the motion was made,) to be costs in the cause, and abide the event.

Ordered accordingly.  