
    Frederick R. Vernon and Francis J. Vernon, Respondents, v. J. W. O’Bannon Company, Appellant.
    A complaint containing two. causes of action, ■ to each of which a counterclaim is interposed—an order setting aside a verdict, as to one came of action and, granting a new trial involves a new trial of both causes of action and of the counterclaim-^-right thereto, not waived by not moving to resettle an improper order.
    
    The complaint in an action contained two separate and distinct causes of action. The answer denied certain allegations of the complaint in two counts thereof and as a separate defense set up a counterclaim to both causes of action, arising out of the alleged breach of the contract which was the basis of the plaintiffs’ second cause of action. At the trial three orders were made, viz,, an ■ order setting aside as inadequate a verdict in favor of the plaintiffs upon the first cause of action and granting a new trial of that , cause of action; an order denying the defendant’s motion to set aside a verdict in favor of the plaintiffs . upon the second cause of action, and an order dismissing the counterclaim. Upon an appeal to the Appellate Division the three orders were affirmed, but the order of affirmance made nó provision for a new trial. Upon the second trial the trial judge ruled that only the first cause, of action was before the court, and that neither the second cause of action nor the counterclaim could be again litigated. . ...
    
      Held, that the order setting aside the'verdict of the jury as to the first cause of "action and granting a new trial thereof necessarily involved a retrial of the . 'whóle'.controversy, including the second cause of action and the counterclaim; That the failure of the defendant to move for a resettlement of the order of the Appellate Division and for the insertion therein of a provision defining the; scope of the new trial, or for such a disposition of the appeal from the, respective orders as would result in itself in a trial of the whole case de novo, did not preclude the defendant from objecting to the ruling of the trial judge; That the defendant could not be deprived of a substantial right by mere acquiescence in the form of the order by which he was defeated.,
    Appeal by the defendant, J. W. O’Bannon Company, from a. judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 2-2d day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. Campbell Thompson [ Anson Burlingame Cole with him on the brief], for the appellant.
    
      Frederick Seymour, for the respondents.
   Hirschberg, J. :

The main facts sufficiently appear in the opinion written by Mr. Justice Willrad Baetlett, when this case was before the court' on appeal from the results of the first trial. (See Vernon v. O'Banon Co., 71 App. Div. 618.) It is only necessary now to recall that the complaint contains two separate and distinct causes of action, while the answer, after denying certain allegations of the complaint, in two counts thereof, sets up a counterclaim to both causes of •action arising out of the alleged breach of the contract, which is the basis of the plaintiffs’ second cause of action. On the first trial three orders were entered, and on appeal all three were unanimously affirmed, viz.: An order setting aside the verdict of the jury in favor • of the plaintiffs upon the first cause of action as'inadequate; an order denying the defendant’s motion to" set aside the verdict of the jury, in favor of the plaintiffs upon the second cause of action, and an order dismissing the counterclaim. In the order of this court, on affirmance, no provision was made for a new trial, and as the order setting aside the verdict on the first cause of action granted a new trial in terms as to that cause of action, the learned trial justice ruled upon the second trial that only the first cause of action was then before the court, and tried the case upon the theory that neither the second cause of action nor the counterclaim could be again litigated. I was inclined on the argument to the belief that; even if this ruling were error it would be unavailing to the defendant, since it might have moved for a resettlement of the order of" this court and thereby have procured the insertion of a precise provision with respect to the scope of the new trial, or such a disposition of the appeal from the respective orders as would result in itself in' a trial of the whole case de novo, but I am satisfied on reflection that a litigant cannot be deprived of a substantial right by. mere acquiescence in the form of the order by which he is defeated,, especially in a case where there may possibly be doubt as to the-right of further appeal. The utmost that can be said of the order is that it did not settle the scope of the new trial, but left it to be-determined in accordance with the law, and, therefore, acquiescence would not necessarily involve a waiver of the right to present the question now under consideration.

It seems to be well settled that there cannot he two final judgments in this case and that the setting aside of the verdict of the jury as to the first cause of action and the granting of a new trial thereon necessarily involved a retrial of the whole controversy, including-the second cause of action and the counterclaim. As to the latter-doubt was expressed on the former hearing (71 App, Div. 619) whether an appeal would lie from the order of dismissal, and the-question was regarded as presented by an exception taken to a ruling on the trial. But that the whole case should have been sent for retrial would seem to be decided by the cases of Goodsell v. Western Union Telegraph Co. (109 N. Y. 147) ; Board of Underwriters v. Nat. Bank (146 id. 64) ; Altman v. Hofeller (152 id. 498, 504), and Freel v. County of Queens (154 id. 661).

It follows that the judgment and order must be reversed and a. new trial granted of the entire case.

Goodrich, P. J., Bartlett, Woodward and Jenks, JJ.,„ concurred.

Judgment and order reversed and new trial of the entire case granted, costs to abide the event.  