
    Thomas M. King et al., Resp’ts, v. Reon Barnes et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 25, 1887.)
    
    1. Appeal—Interlocutory judgment—Appeal not authorized.
    Where the special term enters an interlocutory judgment against a defendant determining certain matters in controversy and orders an accounting, defendant appealing to the general term and asking for a new trial, the motion being denied by the general term and the judgment modified, but still providing for an accounting. Held, that such judgment is interlocutory from which an appeal is not authorized.
    2. Same—Matters of discretion not reviewable—Code Crv. Pro., § 723.
    It is provided by Code of Civil Procedure. § 723, that the court, in its discretion, may permit amendments to the pleadings, which do not substantially change the claim or defense. When the general term, on appeal from an order refusing leave, allowed plaintiffs to amend their complaint: Held, that such amendment was in the discretion of .the court and not appealable.
    3. Same.
    The reversing of an order by the general term granting a stay of pro* ceedings pending an appeal, is in the discretion of the court and is not reviewable by this court.
    There are four separate appeals taken by the above-named appellants in this action, and special motions by the respondents, brought on by a single notice, are made to" dismiss, the same. The appeals are as follows, viz.:
    
      First. An appeal from a judgment of the general term, which, under the pretense of modifying an interlocutory judgment, substitutes therefor a new judgment final and sweeping in its provisions, and directing the referee therein named to carry those provisions into immediate execution without waiting for the entry of any further judgment in the action.
    
      Second. An appeal from an order of the general term reversing so much of an order of the special term as directs a stay of proceedings pending the decision of this court upon the above-mentioned appeal from the general term judgment.
    
      
      Third. An appeal from an order of the general term reversing an order of the special term refusing to amend the complaint upon the trial, and making the precise amendments which the trial court refused to make.
    
      Fourth. An appeal from an order of the general term affirming an order made by the trial justice at special term refusing to correct an admitted mistake in the sixteenth finding of fact, on the ground alone of want of power to do so.
    The facts, so far as it is necessary to present them, are as follows:
    The action was brought for the specific enforcement of an alleged verbal contract between the plaintiffs and the defendant Barnes, providing for the acquisition, by the said parties, of a large amount of real estate on Staten Island, and the organization of the defendant corporation. The appellants, Post, Carpenter, Disosway and Guión, were made defendants because they were directors and officers of the said corporation. The defendant Barnes, in his answer, denies the making of the alleged contract, and all the material allegations of the complaint.
    The other appellants, in their answers, say that they have no knowledge or information sufficient to form a belief respecting the alleged contract and transactions between the plaintiffs and the defendant Barnes, and deny those allegations of the complaint which seek to connect the plaintiff with the affairs, transactions and property of the defendant corporation, or with the conduct of its directors and officers.- None of the defendants, except these appellants, ever appeared in the action, or took any part in this litigation. Upon the trial at the Bichmond county circuit and special term, held by Justice Cullen, in May, 1886, the , complaint was, at the close of the plaintiff’s case, dismissed with costs, as to all the appellants except Barnes. The court also denied the plaintiff’s motion to amend the complaint on the trial, and an order to that effect was entered. The court decided that the contract set up in the complaint was not made as alleged, nor any other valid and enforceable contract, but proceeded, upon the idea of a partial performance of an incomplete and invalid contract, to decree the transfer to the plaintiffs, Garrett, Spencer, King, Cowen and Davis, of 109 shares each of the stock of the defendant corporation, for which the appellant Barnes was an original subscriber, upon the organization of the company, and which had been issued to him as such subscriber, and made findings, declaring the making by the plaintiffs and the defendant Barnes, of a contract, entirely and essentially different from that set up in the complaint. On August 3, 1886, an interlocutory judgment was entered in accordance with such decision, and providing for an accounting between the plaintiffs and the defendant Barnes. From this judgment, the plaintiffs and the defendant Barnes appealed to the general term. The latter also moved for a new trial, under section 1001 of the Code. The plaintiffs also appealed, from the order refusing to amend the complaint on the trial. Upon these appeals, the general term reversed the dismissal of the complaint at the trial, but did not order a new trial as to the defendants who had been so dismissed. On the contrary, it proceeded to render a final judgment upon all the questions in which they had an interest, as though they had had a trial, and opportunity to be heard, and directed the referee therein named to carry those provisions into immediate execution. The general term further reversed other provisions of the interlocutory judgment, made to protect the rights of the defendant Barnes, and. then proceeded, without making any new findings of fact, to give a series of directions not supported by the findings of the trial court but in several instances contrary thereto, and not only contrary to the evidence, but embracing subject matters of which the court had never acquired jurisdiction, because the complaint contained no allegations with respect thereto.
    And the referee was commanded to execute these extraordinary provisions, without waiting to make his report to the court, or for the entry of judgment thereon, as required by the interlocutory judgment. Finally, the motion of the defendant, Barnes, for a new trial was denied. From this judgment the above named appellants appealed to this court, and the defendant, Barnes, also appealed from the denial therein of a new trial on his motion therefor. The motion, No. 1, to dismiss this appeal, is made upon the-ground that said judgment was interlocutory, and, therefore, not appealable to this court. The general term also-made an order reversing the refusal of the trial court to-amend the complaint, and amending the same. From this-order the appeal is taken, to dismiss which the respondent’s third motion is made” as stated; and made upon the sole-ground that the refusal to amend at the trial was purely discretionary. The stock of the defendant corporation, which is the subject matter of the said general term judgment, was not in the appellants’ possession, so that they could secur’e a stay of proceedings, as a matter of course, by depositing it in court, under section 1328 of the Code. They, therefore, made a motion before Justice Cullen, at-special term, and obtained an order referring on its face to section 1328 of the Code, and professing to be made, in pursuance thereof, directing the defendant, Coudert, who had. the stock in his posession, to deliver the same to Thomas S-Moore, the referee under the judgment; and further directing that, upon the bringing of the same into court by the delivery thereof to him, all proceedings by him to cancel 7,000 shares of said stock, as directed by the said general term judgment, be stayed; and that, upon the transfer into the name of the said referee of 654 other shares of said stock, the transfer and delivery of any portion thereof to any of the plaintiffs be stayed; and further directing that, upon the completion of the accounting before the said referee and the entry of judgment upon his report, all proceedings by the plaintiffs to enforce said judgment be stayed until the decision by this court of the aforesaid appeal from the said general term judgment. The stock, was immediately delivered to the said referee by the said defendant, Coudert, and the 654 shares thereof were transferred into the name of said referee in pursuance of said order. From so much of this order as directed a stay, but not from that portion of it which directed the delivery and transfer of the stock to the said referee, the plaintiffs appealed, and the general term reversed so much of the order as had been so appealed from. From this order of the general term the appeal was taken, to dismiss which motion No. 2 is now made by the plaintiffs upon the sole ground that the special term order in question was purely discretionary.
    This appeal is now on the motion and day calendar of the court, No. 1143, and is ready for argument. After the entry of the said general term judgment the defendant. Barnes made a motion before Justice Cullen at special term to correct the sixteenth finding of fact, as made by him, by striking therefrom a sentence which both he and. the plaintiffs admit was introduced through the inadvertence and mistake of the said justice. This motion he denied solely upon the ground of want of power. The defendant Barnes appealed to the general term, which affirmed the order.
    From this order of affirmance the said defendant appealed, to this court on September 6th, 1887, but the return has not yet been filed. To dismiss this appeal, motion No. 4 is now made on the sole ground that the order was discretionary with the trial justice.
    
      John H. Post, for app’lts; Noah Davis, of counsel; W. W. McFarland, for resp’ts.
    
      
       See 4 N. Y. State Rep., 893.
    
   Earl, J.

—First. The judgment of the special term entered on the 2d day of August, 1886, was an interlocutory judgment. It finally determined certain matters in controversy between the parties, but it ordered an accounting between them and appointed a referee for that purpose;. and final judgment could not be entered until the accounting was had and report made. From that judgment the defendant Barnes appealed to the general term, and he also served notice of a motion at the general term under section 1001 of the Code for a new trial upon the exceptions. The motion and the appeal came on to be heard at the general term at the same time, and the motion was denied and the judgment was modified. But the modification of the judgment in no way affected its character as an interlocutory judgment. The accounting between the parties was stiÜ to be had, and its scope was enlarged and all questions as to costs and expenses of the reference, as to the distribution by the referee of moneys which should come into his hands under the judgment, and as to the satisfaction of a certain mortgage for $250,000, were reserved, and thus there was to be further judicial action. From the last named judgment Barnes and certain of the other defendants appealed to this court from the order of the general term which denied his motion for a new trial. The plaintiffs now move to dismiss the appeal to this court from the interlocutory judgment as not authorized. The contention of the appellants is that it is final and not interlocutory. As we have come to the conclusion that it is interlocutory, the appeal therefrom to this court is not authorized by the Code, and it must be dismissed, with costs.

Second. At the trial the plaintiffs made a motion to amend their complaint by inserting therein certain additional allegations. The motion was denied and a formal order denying it was entered. From that order the plaintiffs appealed to the general term and it reversed the order and allowed the amendment. The amendment did not substantially change the claim of the plaintiffs, and it was therefore within the discretion of the court to grant it under section 723 of the Code. From the order of the general term certain of the defendants appealed to this court. A motion is now made to dismiss the appeal. As the general term had power, in its discretion, to grant the amendment, its order is not appealable to this court and the appeal must be dismissed, with costs.

Third. The judgment of the general term ordered that certain shares of the capital stock of the New York Transit and Terminal company should be delivered by one of the defendants in whose possession it was as a mere depositary to the referee appointed by the judgment, to be disposed of by him as directed in the judgment.

Upon the appeal of the defendants from the judgment of the general term to this court they gave the security requisite to perfect the appeal under section 1326 of the Code. They then made a motion that the depositary or custodian of the. stock should, in pursuance of the judgment, be required to deliver the stock to the referee, and that motion was granted and the stock was so delivered. Certain of the defendants then made a motion that the plaintiffs’ proceedings upon the judgment be stayed until the hearing and decision of their appeal to this court, which was granted.

From that order the plaintiffs appealed to the general term, and there the order was reversed. From the order of reversal the defendants appealed to this court. They claim that the proceedings were stayed under section 1328 of the Code, which provides as follows: “If the appeal is taken from a judgment or order directing the assignment or delivery of a document, or of personal property, it does not stay the execution of the judgment or order until the thing directed to be assigned or delivered is brought into the court below, or placed in the custody of an officer or receiver designated by the court, or the appellant gives a written undertaking, as prescribed in the next section.”

It is not needful now for us to determine whether the proceedings are, as claimed by the appellants, stayed under this section; for if they are the appellants are yet not entitled as matter of right from the court to an order staying the proceedings. Whether the court below would grant such an order rested in its discretion; and that discretion is not reviewable here. If the appellants claim that they have an absolute statutory stay they may move to set aside or vacate any proceedings taken in violation of the stay or treat such proceedings as void, and thus their right to a stay and the construction and effect of the section quoted can be brought before the courts for construction and determination. The appeal should, therefore, be dismissed with costs.

Fourth. The defendants moved here to amend the return upon the appeal from the order of the general term which allowed the amendment of the complaint by inserting the complaint 'in the return. As we have concluded to dismiss that appeal the motion is unnecessary and must be denied.

Fifth. After the entry of the general term interlocutory judgment, the acounting therein ordered was had before the referee and his report was made and final judgment thereon entered, and the defendants also appealed to th|g court from that final judgment, and in their notice of appeal, they gave notice that they would also bring the interlocutory judgment up for review. They now move to have the appeal from the interlocutory judgment and the final judgment consolidated and heard together. As we have concluded to dismiss the appeal from the interlocutory judgment this motion must be denied.

Sixth. The defendants made a motion for a further stay of plaintiff’s proceedings until a hearing and decision of the appeals and motions which we have above disposed of.

• The disposition made of those appeals and motions requires us to deny the motion for a stay.

Unless something in the numerous papers submitted to

• us has escaped our attention, we have now considered and disposed of all the motions pending in this case before us, and orders may be entered carrying into effect our conclusions. The result of these motions cannot much embarrass or prejudice any legitimate interests of the defendants, as the appeals from the final judgment and from the denial of the new trial will bring to this court for review every question which is reviewable here.  