
    MADISON AVENUE BAPTIST CHURCH, Plaintiff and Respondent, v. BAPTIST CHURCH IN OLIVER STREET, Defendant and Appellant.
    SUPPLEMENTAL ACCOUNTING UNDER DECREE.
    In the case at bar, the decree directed the surrender of certain premises to the plaintiff, upon the payment by him of a sum found due defendant, as of May 31, 1875, under an accounting embraced in said decree ; which decree also contained a provision, permitting the plaintiff to apply to the court upon the foot thereof, for an account of the rents and profits from said May 31, 1875, to the date of the surrender of said premises, but the said decree contained no express provision for the recovery of the amount which should appear due upon the said accounting. The plaintiff having paid the said sum due the defendant, and the said premises having been surrendered to him as directed,—
    
      Decided January 7, 1878.
    
      Held, this only operated to satisfy the judgment, piv tanto. It did not cut off plaintiff’s right to rents and profits after May 81, 1875 ; nor did it deprive the court of jurisdiction to enforce payment of the amount thereof, when ascertained in the manner prescribed in the decree.
    The omission of an express provision for the enforcement of the recovery of said amount is of no effect. The equitable powers of the court are not so circumscribed, as that a mere omission to declare thgm in advance, shall preclude their exercise in a case distinctly provided for -by a decree.
    The principles of the supplemental accounting having been settled by the previous orders and judgment of the court, and the general term having affirmed said principles, they must be deemed conclusively settled for the purposes of this case, so long as the judgment at general term remains unreversed.
    Before Sanford and Freedman, JJ.
    By the judgment rendered at special term, August 3, 1875, the defendant was directed to surrender to the plaintiff the possession of the premises described in the complaint, upon payment to it, within one month, of the sum of $4,507.16, which had been found and reported to be due and owing by plaintiff. to defendant, as of May 31, 1875, less the sum of $1,010, being half of the disbursements paid by plaintiff for referee’s fees. The judgment further directed that upon such payment the plaintiff recover such possession and have execution therefor.
    . It was further provided that the plaintiff should be •at liberty to apply to the court, on the foot of such judgment, for an account of the rents and profits of the premises from May 31, 1875, to the time of delivery of the pos>-'-t<sion thereof ; but the judgment contained no express •■'vision for the recovery by either party of the amount, which, upon such accounting, should appear to be due from the other.
    The judgment was affirmed at general term, November 6, 1876.
    Pending an appeal by defendant to the court of appeals, no stay of proceedings having been obtained, the plaintiff, on November 13,1876, paid the amount specified in the judgment, and took possession of the premises.
    On March 22, 1877, pursuant to the reservation contained in the judgment, a reference was ordered to take the supplemental account of the rents and profits, from May 31, 1875, when the account embraced in the judgment ended, down to November 13, 1876, when possession of the premises was surrendered. Upon such supplemental accounting, the sum of $9,681.90 was found and reported to be due to the plaintiff, and the referee’s report, after a hearing of exceptions thereto, was duly confirmed, by order entered at special term, July 27, 1877. On the same day, an order was made and entered reciting the judgment and the reservation to the plaintiff therein contained, of liberty to have such supplemental account taken, the subsequent proceedings pursuant thereto, including the confirmation of the referee’s report thereon, and directing the payment by defendant of the amount ‘therein reported, with costs of the reference.
    The case is now before the court upon the appeal of the defendant from each of such orders.
    
      William JR. Martin, for appellants, urged :
    —I. The judgment contains no provision for the recovery by the plaintiffs against the defendants of this account.
    II. The voluntary payment by the plaintiffs to the defendants of the amount adjudged due, - as of May 31, 1875, with full knowledge of all the facts, is a liquidation, and a bar to any further recovery (Stenton v. 
      Jerome, 54 N. Y. 485). On such payment, they enforced the execution of their judgment, and have exhausted their rights under it. They recovered in ejectment, with mesne profits, to be set off against the claim of the defendants for moneys advanced, and for which they had an equitable lien. At a period when, on the account as fixed in the judgment, the plaintiffs owed defendants $3,810, they paid it, and took possession on execution. This is their own voluntary liquidation of the account, and enforcement of the judgment. In the absence of any provision for recovery of the amount that might be found due on the subsequent accounting, they can have no relief in respect thereto.
    III. The defendants are entitled to have the expenses of conducting public worship allowed against the pew rents charged to them. At general term, November, 1876, Curtis and Van Vorst, JJ., the grounds stated in affirming the judgment, were : That there was a defect of proof. That the expenses of conducting public worship might be chargeable against other sources of income than the pew rents. That it was not proved that these expenses of conducting public worship were necessary, and formed the consideration for which the pew rents were paid. These fact's now appear in evidence. In the former report, the income of the defendants collected from other sources did appear; and it now appears, that for fifteen years, prior to 1877, the collections and aids towards the expenses of maintaining public worship, have been usually paid over to the defendant’s society or corporation ; and that the expenses of maintaining public worship have been defrayed by these collections and contributions, as well as by pew rentals, before, and also after May, 1875, i. e., during the whole period covered by the accounting. It further appears, that, during the whole period, the defendants had no other sources of income than these pew rents, and these special collections, and that these special collections, of whatever kind, were only resorted to, to make up the deficiency of income from pew rents. It also appears that the pews, from which the rents were derived, were in the main audience room of the church; that this room was opened solely for public worship on Sunday, mornings and evenings ; that it was locked up from the pew-holders, and that they did not have access to the pews at other times. That the exclusive use of the pews, during public worship, was the only use the pew-holders had of their pews for their rents, and that this was the consideration given by the church to these pew-holders for the payment of their rents. That preaching and music was supplied on all occasions of public worship, and that without them, and without light and heat, and the services of the sexton, the pews could °not have been rented. And that this was in accordance with the usage of Baptist churches in New York city. In the management of the church in all these aspects, there was no change after May 31, 1875. They were the same as before, and the same as they had been in the plaintiffs’ church before the union. Upon these facts the defendants rely in support of their argument, that the expenses of maintaining public worship should be deducted from the pew-rents, in the account against them for use and occupation. In the order of management, comes, first, the expenses of maintaining public worship, as the necessary condition of renting pews ; secondly, the collection of pew rents, for the use of the pews during public worship ; thirdly, the making up the deficiency, where the pew rents fall short of meeting the expenses, by special collections.
    
      Addison Brown, of counsel, for respondent, urged :
    —I. This supplemental account was. taken by the referee in the same manner, and on exactly the same principles as the former account embraced in the judgment. The order of reference expressly so directs. These principles have been affirmed at general term by this court in this case, and the defendant is now an appellant therefrom in the court of appeals. ■ As respects this court, the matter is adjudged and cannot be further argued (41 N. Y. Sup. 369).
    II. The defendant endeavored to prove some additional or different facts, with a view to change the principles of taking the account. The evidence was allowed, though objected to by the plaintiff; but nothing material was proved different from the former state, of facts. The witness, Harris, says: “ there was no material change.” But if a change had been proved, it could not affect the principles of the accounting, for these were necessarily fixed by the judgment, and by the order made upon the trial of the cause. Any different rule would subject the judgment to liability to a partial reversal as often as any supplemental reference arose upon it. The decree cannot be thus changed “in the minutest particular” (Daniel Ch. Prac. 1506 * to 1511, * 1203; * 1 Russ. 329, 530).
   By the Court.—Sanford, J.

—The surrender of possession, upon payment of the amount due from plaintiff to defendant, as of May 31, 1875, according to the account which had been taken and stated as of that date, only operated to satisfy and discharge the judgment pro tanto. It did not cut off the plaintiff’s right to the rents and profits which accrued after May 31, 1875, when the account upon which the judgment was based ended, and November 13, 1876, when possession was delivered; nor did it deprive the court of jurisdiction to enforce payment of the amount of such rents and profits, when ascertained in the manner prescribed by the judgment. The reservation to the plaintiff, in the judgment, of liberty to take such supplemental account would be nugatory, but for the implication, necessarily involved, of reserved cognizance and jurisdiction over the cause, to the extent of rendering full and complete satisfaction, between the parties, as their respective rights should upon such accounting be made to appear. The equitable powers of the court are not so circumscribed and fettered as that a mere omission to declare them in advance shall preclude their exercise, in a case distinctly contemplated and provided for by a judgment. The intent to adjudicate finally upon the subject matter in controversy is clearly inferrible from the terms of the reservation, and to refuse such adjudication would be tantamount to a denial of justice.

The principles upon which the supplemental account was taken, were settled and determined by the previous orders and judgment of the court. Those principles have been affirmed, at general term, and must be deemed conclusively settled, for the purpose of this case, so long as the judgment rendered at general term remains unreversed by the court of appeals. The evidence adduced on the supplemental accounting was not such as to render inapplicable the principles upon which the original accounting was directed to proceed.

We are therefore of opinion that each of the orders appealed from should be affirmed with $10 costs.

Freedman, J., concurred.  