
    Robert J. Dean et al., Resp’ts, v. August Marshall et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    Contract—Construction—Final judgment.
    Where the plaintiff and defendant stipulate that, if plaintiff should be defeated at the first trial of the action by a third party for the value of liquor in which defendant had an imerest, on the merits, defendant could elect to pay the judgment and have possession of the brandy, but, if he should not elect to do so, and plaintiff should elect to appeal, the brandy should be sold, and the proceeds deposited to await final determination of the action, and that, if final judgment against the plaintiff should be less than a certain amount, defendant should do one thing, or, if more than such amount, another thing, “ final judgment ” means the final settling of the rights of the parties to the action beyond all appeal.
    Appeal from a judgment after trial without a jury.
    The plaintiffs and defendants, both being interested in certain casks of brandy stored in bonded warehouse, and the brandy being also claimed by the First National Bank of Chicago, which had begun a suit for the value thereof in the superior court, the following stipulation was entered into:
    “New York Supreme Court.
    “ First National Bank, Plaintiff, vs. R. J. Dean & Company, Defendants.
    “ Stipulation.
    “ Whereas, R J. Dean & Company and Marshall, Spellman & Company are both interested in the result of the above-entitled action, and are also interested in the twenty barrels of brandy involved herein should not be forfeited to the government for nonpayment of tax, and that the United States government have threatened to forfeit said brandy unless said tax is paid immediately; Now, therefore, in consideration of the foregoing recital and one dollar ($1) in hand paid by each of the parties to the other, it is understood, agreed, and promised by and between the subscribers hereto as follows: First. That Marshall, Spellman & Co. will pay the United States government tax on the twenty barrels of brandy stored with R. J. Dean & Co., in bonded warehouse, promptly on the execution of this agreement. Second. That in the event that R J. Dean & Co. are defeated at the first trial of this action on its merits, then, and in that event, Marshall, Spell-man & Co. shall have the election to pay the judgment, and have possession of the brandy. That in the event Marshall, Spellman & Co. shall not elect to pay said judgment and take said brandy, and R. J. Dean & Co. shall elect to take an appeal, that then, and in that event, the goods shall be sold on joint account and consent by both parties, and the proceeds thereof, less the amount paid for government tax, shall be deposited in some trust company, to await the final determination of the action; and the amount, of said government tax shall be repaid to Marshall, Spellman & Co. That in the event that the final judgment against B. J. Dean & Co. shall be less than seventeen hundred and fifty dollars ($1,750), that Marshall, Spellman & Co.,shall pay the judgment, and take either the brandy or the proceeds. That in the event that final judgment shall be more than seventeen hundred and fifty dollars ($1,750), and Marshall, Spellman & Co. shall elect not to pay said judgment aforesaid, that then, and in that event, B. J. Dean & Co. shall refund the tax paid by Marshall, Spellman & Co., and Marshall, Spellman & Co., shall release to B. J. Dean & Co. and assign all their right, title, and interest in and to the brandy, and the warehouse receipts issued by B. J. Dean & Co. If B. J. Dean &. Co. are finally successful in this action, that then, and in that event, they shall deliver to Marshall, Spellman & Co. the brandy upon receipt of bond of indemnity against damage by reason of the outstanding negotiable receipts. In witness whereof we have hereunto set our seals and subscribed our names this sixth day of April, 1891. “ B. J. Dean & Co. [Seal.]
    “ Marshall, Spellman & Co. [L. S.] ”
    The action in the superior court resulted'in a judgment against Dean & Co. for the sum of $1,742.35. Defendants did not elect to pay the judgment and take the brandy, but paid the government tax thereon, and sold the brandy, and after deducting from the proceeds the amount of tax, deposited the balance in a trust company to the joint order of themselves and Dean & Co. The plaintiffs appealed from the judgment to the general term, and subsequently to the court of appeals, in both of which the judgment was affirmed, and upon the remittitur from the latter court a judgment was entered for $1,984.21. The plaintiffs, claiming that the judgment'entered on the trial of the action was the “final judgment” referred to in the stipulation, which was for less than $1,750, demanded the payment of one-half of the counsel fees and expenses of the trial and of the amount of the original judgment entered thereafter. The defendants, claiming, that the judgment entered upon the remittitur of the court of appeals was the “final judgment ” referred to in the stipulation, refused to pay or accede to plaintiffs’ demands. Upon the trial the court construed the stipulation in accordance with the plaintiffs’ contention, and rendered a decision upon which the judgment was entered from which this appeal is taken.
    
      Gibson Putzel, ‘for app’lts ; J. W. Booihby, for resp’ts.
   O’Brien, J.

The question is, what is the meaning of the term • “final judgment,” as used in the stipulation? The Code of Civil Procedure provides for two forms of judgment, one interlocutory and one final; but, as the action in the superior court was to recover a sum of money, in which no interlocutory judgment could be entered, it is evident that the term “final judgment” was not used in the stipulation to. distinguish it from such interlocutory judgment. The term is susceptible of two other significations,—■ one, which, in a strict legal sense, is its true meaning, viz.: a determination of the rights of the parties after a trial, whether such is the subject of review or not; and the other, its colloquial use '01' signification, which makes it synqnymóus with “ decisive ” or a judgment that cannot be appealed from, and which is perfectly conclusive upon the matter adjudicated. In Kinney’s Law Dictionary and Glossary (page 318) a final judgment is defined as :

“A judgment which puts an end to an action by declaring that the plaintiff either has or has not entitled himself to recover a judgment from which there is no appeal.”

In Abbott’s Law Dictionary (volume 1, p. 497), where quotations from cases are given, showing the two meanings of the term, it is said, in speaking of “final adjudication, decree, judgment, order, or sentence ”:

“These expressions may, indeed, signify a judicial decision 'which is superior to review; one which conclusively determines the question involved.”

And in Black’s Law Dictionary (page 493) it is thus defined:

“A judgment which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. 3 Bl. Comm. 398. So distinguished from interlocutory judgments, which merely establish the right of the plaintiff to recover, in general terms. Id. 397. A judgment which determines a particular cause. A judgment which cannot be appealed from, which is perfectly conclusive upon the matter adjudicated. 24 Pick. 300. A judgment which terminates all litigation on the same right. The term ‘final judgment’ in the Judiciary Act of 1789. § 25, includes both species of judgments as just defined. 2 Pet. 494; 1 Kent, Comm. 316; 6 How. 201, 209. A judgment is final and conclusive between the parties when rendered on a verdict on the merits, not only as to the facts actually litigated and decided, but also as to all facts necessarily involved in the issue.”

See, also, Bouv. Law Diet. p. 677.

The .question is, in which of these senses was the term used in the stipulation ? Does it mean the judgment entered after the trial of the superior court action, or a judgment finally settling the rights of the parties to that action beyond all appeal ? Prom a reading of the stipulation itself, we think the meaning and intent of the parties clear. It will be noticed that in the clause numbered second it is provided that, should plaintiffs be defeated in the first trial of the action on its merits, then defendants should have the election to pay the judgment, and have possession of the brandy; if the latter should not so elect, then the goods were to be sold on joint account, and the proceeds deposited, “ to await the final determination of the action ” ; and this language is followed by the clause in dispute, which provides what is to happen in the event that the ‘‘final judgment” shall be more or less than $1,750. When we recall that express provision was made as to what was to happen in the event of the first trial going against the plaintiffs on the merits, it is made apparent that the term “final judgment,” as subsequently used, is synonymous with the expression “ final determination of the action ” employed in the preceding clause. If this latter term were the one in dispute, we should have little difficulty in reaching the conclusion that by it was meant the final settling of the rights of the parties to the action beyond all appeal. We think the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur  