
    James H. Goodsell, Resp’t, v. The Western Union Telegraph Company, App’lt.
    
    
      (Court of Appeals,
    
      Filed April 10, 1888.)
    
    1. Practice—New trial—Power oe appellate court to grant—Code Civ. Pro., § 1317.
    Under Code Civil Procedure, § 1317, a new trial in a common law action against a single defendant can be granted only as to the whole action.
    2. Same—Mat modify judgment.
    If, however, in such a case there is error affecting only part of the judgment, and the record be in such condition that by a reversal in part or a modification thereof, the error can be eliminated, the judgment can thus be made right without a new trial, the Code confers power upon appellate courts to make the correction or modification. So, too, where there are several defendants, and there is error affecting only one who has a separate defense, the judgment, as to him, may be reversed, and a new trial ordered, leaving final judgment to stand as to others.
    3. Same—May affirm judgment upon condition.
    If the general term finds error it should reverse the entire judgment and grant a new trial. Or it can affirm the judgment as to one eause of action upon condition that the plaintiff will stipulate to abandon or waive his recovery upon the other cause of action.
    4. Same—Code Crv. Pro., § 1317, embodies Code of Pro., §§ 12 and 330
    Code Civ. Pro., § 1317, embodies and takes the place of Code of Pro., §§ 12 and 330, and in no way enlarges the powers or jurisdiction of appellate courts.
    
      
      Wager Swayne, for app’lt; George W Miller, for respt.
    
      
      
         See 13 N. Y. State Rep., 278.
    
   Earl, J.

This action was brought to recover upon two separate and distinct causes of action. The first was for a balance due on account of moneys actually collected by the defendant and which it should have accounted for and paid over to the plaintiff; the second was for damages for breach of contract. The cause was referred to a referee who reported in favor of the plaintiff for upwards of $16,000 upon his first cause of action, and for upwards of $220,000 upon his second cause of action; and judgment was rendered in favor of the plaintiff for a gross sum of upwards of $240,000 besides costs. From that judgment the defendant appealed to the general term, and there the judgment as to the first cause of action was affirmed, and as to the second cause of action it was reversed and a new trial granted! Judgment of affirmance as to the first cause of action having been entered the defendant appealed therefrom to this court.

This was a common law action to recover money only, and a judgment for a gross sum of money was rendered therein in favor of the plaintiff against a single defendant. In such a case it is well settled that the general term did not have authority to affirm the judgment as to one cause of action, and to reverse it and grant a new trial as to the other. If the general term found error it should have reversed the entire judgment and granted a new trial. Or it could have affirmed the judgment as to the first cause of action upon condition that the plaintiff would stipulate to abandon or waive his recovery upon the second cause of action. The rule of law upon this subject is so well settled in this court as to be no longer open to discussion.

In Story v. New York and Harlem Railroad Company (6 N. Y., 85), the action was to recover for work done by the plaintiff under a contract with the defendant in the construction of a portion of its roadway, and also to recover for damages sustained by him by reason of the suspension of work by the defendant, and thus preventing him from completing his contract. The case was tried before a referee who reported in favor of the plaintiff for upwards of $19,-00.0 of which sum $6,624.44 was shown by the report to have been wholly for damages for suspending the work, and the residue was for work done and materials furnished in the performance of the contract, and interest thereon. Upon a writ of error to the supreme court the judgment was affirmed as to the amount allowed for the work and materials with interest, and as to the damages allowed for the suspension of the work, the judgment was reversed on account of error in the rule of damages adopted by the referee and improper evidence admitted, and a new tril was ordered. Both parties then appealed to the court of appeals, and it was there held that a judgment cannot be affirmed as to part of the amount recovered and reversed as to the residue where a new trial is ordered as to the part reversed. Gardner, J., writing the opinion of the court said: The judgment should be reversed and the cause sent back, upon the ground that, on a bill of exceptions the court have affirmed part and reversed part of an entire judgment of the superior court. One portion of the cause, therefore, has been sent back for a new trial, and the other is brought here. The different sections of the cause, separated by the judgment of the supreme court, have continued to diverge until one fragment is to be found in the court of original jurisdiction, and the other in the court of last resort. With a view to a reunion, I am of opinion that the judgment should be reversed and the whole case remanded for a new trial.”

In Wolstenholme v. Wolstenholme File Manufacturing Company (64 N. Y., 272), it was held that in an action to recover damages for breach of contract, where plaintiff has recovered judgment allowing one item of damage claimed and rejecting another, he cannot retain the amount allowed and ask upon appeal for a retrial as to the item rejected; that if a reversal and new trial is granted it must be of the entire judgment and claim. Miller, J., writing the opinion of the court said: “There is no authority for the practice that in an action at law on an account or for damages, that an appellate court can affirm a judgment allowing one item of a claim interposed, and send it back for a new trial as to another.

The error alleged as to a part, necessarily reverses the entire judgment, and the reversal and new trial must be as to the entire claim,” and that, “there is no rule by which in an action at law, the party who has obtained a judgment can retain the amount and ask for a re-trial as to one of the claims which he has made, and which has been rejected. Such a practice would render every case , embracing a number of items or claims, open for a reversal in part and for a new trial as to the residue, and cannot be upheld.” These decisions were rendered under the Code of Procedure which provided in section 12, that “the court of appeals may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties.” And in section 330, that “upon an appeal from a judgment or order the appellate court may reverse, affirm or modify the judgment or order appealed from in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial.”

But the learned counsel for the respondent claims that the powers of appellate courts were increased by section 1317 of the Code of Civil Procedure, which reads as follows: “Upon an appeal from a judgment or an order the court, or- the general term to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify the judgment or order appealed from, as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing.” This section embodies and takes the place of sections 13 and 330 of the Code of Procedure, and it in no way enlarges the powers or jurisdiction of appellate courts. The two authorities above referred to, must therefore control our decision in this case. A new trial in a common law action against a single defendant can be granted only as to the whole action, and so far the common law rule is still in force.

If, however, in such a case there is error affecting only part of the judgment, and the record be in such condition that by a reversal in part or by a modification thereof the error can be eliminated and the judgment can thus be made right without a new trial, the Code confers power upon appellate courts to make the correction or modification. So, too, where there are several defendants, and there is error affecting only one who has a separate defense, the judgment as to him may be reversed, and a new trial ordered, leaving final judgment to stand as to the others. Frank v. Mutual Life Ins. Co., 102 N. Y,, 266; 1 N. Y. State Rep., 681.

The rule laid down in the two cases cited, so far as we have any knowledge, has been quite uniformly followed, and has not been attended with any embarrassing consequences, although there are doubtless cases where a different rule would operate advantageously, and we do not-feel at. liberty to adopt any other rule without legislative sanction.

The general term might, with propriety, have made its reversal conditional upon the abandonment by the plaintiff of his second cause of action, and that the plaintiff may still have the benefit of such a disposition of the appeal, our order should be that the judgment of the general term and that entered upon the report of the referee be reversed, and a new trial granted, costs to abide event, unless the plaintiff shall stipulate, within twenty days after the entry of this order, to abandon his second cause of action, in which event the present appeal may, at any time, be brought to a hearing in this court upon its merits.

All concur.  