
    THE PRODUCE BANK of the CITY OF NEW YORK, Plaintiff, v. JOSEPH MORTON, LEON WEIL, ALPHONSE WEIL and AUSTIN BALDWIN, Assignees, &c., Defendants.
    I. NEW TRIAL.
    
    1. MOTION FOR, AT GENERAL TERM, UNDER § 268 OF THE CODE.
    
      (a.) FlNAI, JUDGMENT, WHAT CONSTITUTES.
    1. One setting aside a transfer as fraudulent and void, directing the transferee to account before a referee, thereby appointed, for all property and effects and proceeds thereof received or held by him under the transfer; directing the referee to examine the accounts and doings of the transferee and decide with what sums of money or property he is chargeable, and report thereon; further directing that within ten days after notice of filing the report the transferee, in case no exceptions are filed, or in case exceptions should be filed, then in ten days after the confirmation of the report, pay and deliver over all such moneys and property to a receiver thereby appointed; further directing that out of the proceeds of such property and moneys the receiver pay the plaintiff $458.50 the amount of plaintiff’s judgment against the transferors, with interest thereon, together with the costs of the action, and hold the residue, if any, to abide the further order of the court; and further directing that any of the parties thereto might apply to the court for such other or further judgment or decree as might be just, constitutes A FINAL JUDGMENT.
    Overrules in this respect the former decision in this case. 40 N. 7. Super. Ct. 328.
    
    H. COURT OF APPEALS.
    1. Decisions not strictly binding authority, effect of.
    
      (a.) A decision pronounced in the very case in hand, through the opinion of one of its distinguished judges, after careful consideration and cogent reasoning, is, although in strictness not binding authority, is entitled to very great weight.
    
    Before Sedgwick and Speir, JJ.
    
      Decided June 25, 1877.
    This action, in the .nature of a creditor’s bill, was brought to set aside an assignment for the benefit of creditors, and was tried in April, 1875, at special term.
    The decision was in favor of the plaintiff, and • on July 12, 1875, the findings of the court or decision were filed, whereby it was found that the assignment was void, and that a receiver should be appointed to take charge of such property and effects as should be found by a referee in the hands of the assignee, to which the plaintiff was declared to be entitled ; and that the receiver should pay out of such property or effects to the plaintiff or its attorneys the costs of the action and the amount of the judgment of July 14, 1874.
    Judgment was entered herein pursuant to such decision on July 21, 1875, in favor of the plaintiff.
    The particular directions of the judgment are given in the head-notes.
    The defendants filed exceptions to the findings, and made a motion for a new trial at general term, under section 268 of the Code, which was argued in December, 1875.
    The motion was granted, and a new trial ordered by decision rendered January 3, 1876.
    
      D. J. Newland, of counsel, and attorney, for plaintiff.
    Fransioli, Tilney & Mosher, attorneys; A. C. Fransioli, and J. F. Mosher, of counsel, for defendants.
    
      
       After the entry of the judgment on the decision at the special term, defendants moved at general term for a new trial. The plaintiff on the argument of that motion insisted that it was not a proper case for such a motion. The motion was granted (40 N. Y. Super. Ct. 328). The plaintiff appealed to the court of appeals. That court dismissed the appeal, on the ground that the subject matter in controversy did not exceed $500; but the learned judge who delivered the decision of the court in the course of his opinion considered the subject as to whether the case presented was a proper one for a motion at general term for a new trial, and came to the conclusion that it was not (1 Abb. New Cas. 174). Thereupon plaintiff moved at general term for a re-argument of the motion for a new trial, and the motion was granted (see ante, this volume, p. 124).
      The foregoing opinion was delivered on the re-argument.
    
   By the Court.—Speir, J.

This is a motion of the defendants for a new trial on a case and exceptions under section 268 of the Code. The general term of this court, in 1875, granted the same motion then originally made, and the plaintiff appealed to the court of appeals. The appeal was dismissed for the reason that the amount in controversy was held by it to be under five hundred dollars.

The court, however, gave a full opinion.

It comes before this court again on a re-argument of the defendants’ motion for a new trial, as originally made at the December term, 1875, after leave obtained on the application of the plaintiff to the January general term last.

The only question before the court now is, was the case properly before the general term, on this motion for a new trial, or should the defendants have appealed ? On the part of the plaintiff it is claimed that it is not a case under section 263, and that the defendants’ remedy was by appeal. If this position be correct, it is plain that the court could not, and did not obtain jurisdiction, or power to hear and determine the case on its merits.

The language of the Code, in section 268, is “ that where the decision filed under section 267 does not authorize a final judgment, but directs further proceedings before a referee .or otherwise, either party may move for a new trial at general term, and for that purpose may within ten days after notice of the decision being filed, except thereto, and make a case or exceptions as above provided in case" of an appeal.”

The point presented is sharply and clearly defined. Did the decision of the court below authorize a final judgment ? If it did, then the defendants erred in bringing the case for review before the general term on a motion for a new trial instead of appealing.

The power of the general term and its jurisdiction to hear a motion brought before it for a new trial is derived exclusively under the provisions of section; 268 as therein expressed, and can be applied only to the particular case coming under that section. The' only power the court has to act at all upon such a motion is to dismiss it where, by the character of the' decision of the special term, it is not and cannot be brought under the requirements of the section. Whether ttie judgment below was a final judgment between the parties in any case must depend upon this : Was there any further question or issue between them to be litigated? The plaintiff’s right to be paid does not depend upon the result of the receiver’s action, whatever that may be; nor does it depend upon the amount which may be in the assignees’ hands. The right to recover through the agency of the receiver the judgment, a fixed and definite sum, with interest thereon, and the costs of the action, or so much thereof as the sum found will pay, has been finally determined by the judgment between the parties to the suit. ‘ ‘ A judgment (defined by the Code, section 245), is the final determination of the rights of the parties in the action.” The judgment itself neither in terms nor by the import of its provisions suggests the existence of any matter of further litigation between -the plaintiff and defendants. This question was virtually decided by Bosworth, Ch. J., in Gray v. Cook (24 How. Pr. 432); where it was held that a direction that the plaintiff have judgment for a certain amount against the defendant as administrator, and that he pay said moneys into court, to await the further order of the court, and to be distributed according to law, is a final judgment against the defendant as between the parties (See also Geery v. Geery, 63 N. Y. 255).

The court of appeals have pronounced their views on the question in a full opinion. But the defendants claim that this opinion of the court on this point is not a binding authority on this court, as the appeal therein was dismissed. This in stricttiess is undoubtedly true. But as it is the decision of the court pronounced through the opinion of one of its distinguished judges in this very case after careful consideration and sustained by cogent reasoning, it seems to me to be entitled to very great weight. The court say:

“We are inclined to the opinion that this point is well taken, and that the judgment was final and reviewable by appeal. There was nothing left to be judicially determined. The Amount of the plaintiff’s claim was ascertained, judgment was rendered that the assignment be set aside, that the assignee deliver over the assigned property to a receiver, and that the plaintiff be paid out of the proceeds the amount of his claim and costs. This was a final disposition of the whole controversy, and no further judgment was to be rendered. The machinery of a reference and receivership was for the sole purpose of carrying the judgment into execution, and not the foundation of any further judicial action in the case.”

The defendant’s motion for a new trial must be dismissed with costs.

Sedgwick J., concurred.  