
    ROBERTS v. BAUMGARTEN.
    [Aff’g. 34 State Rep. 586.]
    
      N. Y. Court of Appeals ;
    
    May, 1891.
    
      Ejectment; new triall\ In ejectment the new trial allowed as a matter of course, under Code Civ. Pro. § 1525, cannot be had unless the judgment sought to be vacated was rendered upon questions of fact. It cannot, therefor, be had, where a judgment absolute has been directed by the court of appeals upon a stipulation therefor given upon an appeal from an order granting a new trial.
    
    Appeal from an order of the General Term of the ■superior court affirming an order of the Special Term of that court granting a motion to vacate an order vacating a judgment in an action of ejectment, and allowing a second trial therein.
    The action was brought by Edward Roberts against August Baumgarten and others to recover possession of eight lots of land on the southerly side of One hundred and seventh street just east of Third avenue in the city of New York.
    Upon hearing the motion at special term upon which the order appealed was made, Dugro, J., held that it should be granted on the ground that a judgment absolute had been rendered by the court of appeals (110 N. Y. 380) upon a stipulation required by Code of Civ. Pro. § 191 upon an appeal from an order granting a new trial, and that, therefore, no right to a new trial existed under §§ 1524, 1525, providing that a new trial must be granted in ejectment after a “ final judgment,”“rendered upon the trial of an issue of fact.”
    The general term affirmed the special term in view of the rulings of the court of appeals in Godfrey v. Moser, 66 N. Y. 250 ; Hiscock v. Harris, 80 Id. 402, and Conklin v. Snider, 104 Id. 641 ; but stating in the opinion by Freedman, J., that the question was a novel one, and could only be settled by the court of appeals.
    The circumstances under which the motion was made are fully set forth in the opinion.
    
      Daniel G. Rollins, for plaintiff, appellant. (Robert Hunter McGrath, Jr., of counsel).
    I. The only limitation upon the right to successive trials in ejectment is found in the Code of Civ. Pro, ; and the unsuccessful party, after the trial of an issue of fact is entitled as a matter of course to one new trial (citing Code Civ. Pro. §§1524, 1525 ; Adams on Ejectment, p. 351; Taylor v. Horde, 1 Burrows, 60, 114; Jackson v. Dieffendorf, 3 Johns. 269; Bates v. Stearns, 23 Wend. 483 ; Equator Co. v. Hall, 106 U. S. 87; Heeler v. Dennis, 39 Hun, 31; Howell v. Eldridge, 21 Wend. 631; Rogers v. Wing, 5 How. Pr. 50).
    II. The judgment entered upon the remittitur from the court of appeals is a judgment rendered upon the trial of an issue of fact (citing Bay v. Gage, 36 Barb. 447, 448; Lang v. Ropke, 1 Duer, 701; Christie v. Bloomingdale, 18 How. Pr. 12; Phyfe v. Masterson, 45 Super. Ct. 338).
    III. The provision of Code of Civ. Pro. requiring a stipulation for judgment absolute by a party appealing from an order of the general term granting a new trial does not affect the right to a second trial in ejectment (citing Mackay v. Lewis, 73 N. Y. 382; Krakeler v. Thaule, Id. 608; Simon v. Canaday, 53 Id. 298 ; People v. Dennison, 8 Abb. N. C. 145).
    IV. The plaintiff applied for an order vacating the judgment within three years.-
    V. If the judgment is not a judgment rendered upon the trial of an issue of fact, it is not within the provision of any statute, and plaintiff is relegated to his common law rights (citing Equator Co. v. Hall, 106 U. S. 87).
    
    
      Cephas Brainerd, for defendant, respondent.
    I. The operation of Code of Civ. Pro. § 1525, permitting new trials in ejectment is to be confined with utmost strictness to the case specified in it (citing Bay v. Gage, 36 Barb. 448 ; Sacia v. O’Connor, 79 N. Y. 260; Towle v. De Witt, 7 Hun, 93 ; Chautauqua Bk. v. White, 23 N. Y. 347; Christie v. Bloomingdale, 18 How. Pr. 12 ; Lang v. Ropke, 1 Duer, 701; Equator Co. v. Hall, 106 U. S. 87; Spence v. McGowan, 53 Tex. 30 ; Miles v. Cauldwell, 2 Wall. 35; Sedgwicke & Waite Trial of Titles to Lands, §§ 608-9).
    II. The judgment in the action is not a judgment on an issue of fact (citing Inglehart v. Hotel Co., 109 N. Y. 454, 462 ; Baylies New Trials, p. 210).
    III. The absolute judgment directed by the court of appeals is conclusive against the plaintiff as to every right involved in the action (citing Cobb v. Hatfield, 46 N. Y. 535 ; Hitchings v. Van Brunt, 38 Id. 335, 341, 345 ; Hiscock v. Harris, 80 Id. 402 ; Godfrey v. Moser, 66 Id. 250 ; Caswell v. Hazard, 121 Id. 491).
    
      
       For a discussion of the effect of such a stipulation, see 8 Abb. N. C. 147.
    
   Ruger, Ch. J.

The plaintiff by this proceeding, seeks to avail himself of the right to a new trial in an ejectment case, conferred by §§ 1524 and 1525 of the Code of Civil Procedure. Those sections substantially provide, first, that, except as otherwise expressly provided, a final judgment in ejectment rendered upon the trial of an issue of fact is conclusive, as to the title established in the action, upon each party against whom it is rendered, and all persons claiming through or under him. Section 1525, “ The court at any time within three years after such a judgment is rendered, and the judgment roll is filed, upon the application of the party against whom it was rendered, his heir, devisee or assignee, and upon payment of all costs,” and certain specified damages “ must make an order vacating the judgment and granting a new trial in the action.”

The circumstances under which this motion was made were as follows: On the trial of an ejectment action before the court without a jury, judgment was awarded upon findings of fact, as we assume, in favor of the plaintiff. Upon appeal, however, this judgment was reversed by the general term and a new trial ordered. The plaintiff then appealed from this order to the court of appeals, stipulating that in case the order was affirmed judgment absolute should be rendered against him. The order was affirmed in this court and judgment absolute against the plaintiff was ordered, and such judgment was duly entered in the court below in pursuance of the remittitur from this court. The plaintiff now claims that he is, by virtue of the statute referred to, entitled to a new trial, as matter of course, he having paid all' costs and damages awarded against him by the judgment.

Prior to the Revised Statutes, judgments in ejectment at common law, were not conclusive evidence of the title to the property involved, and successive actions could be maintained by a plaintiff by the adoption of fictitious allegations in his complaint varying the demise under which the plaintiff made his claim. Such actions could be restrained only by an action in equity, prohibiting the bringing of repeated actions for a cause which has been sufficiently litigated in prior actions (Equator Co. v. Hall, 106 U. S. 86).

The sections of the code referred to were a substantial re-enactment of the provisions of the Revised Statutes and have continued unchanged in any respect important to notice from 1828 till the present time. The Revised Statutes made radical changes in the law governing actions relating to real estate as they had previously existed, and, among other things, provided that judgments rendered upon the trial of questions of fact in actions of ejectment, should be conclusive as to the title adjudicated, upon the parties to the action and those claiming under them, except that an unsuccessful party on such trial might have a new trial, if he chose to apply for it, upon payment of the costs and damages awarded by the judgment sought to be vacated. This exception to the general practice was. based upon the peculiar importance which the common law attached to actions involving the title to real estate and its reluctance to take land from a party in possession, until after the facts upon which the claim of title was based, where they were disputed, had been passed upon by two juries or other triers of questions of fact. It has been decided that judgments in such actions rendered upon submitted cases, by default, consent, or upon question of law, stand upon the same footing in respect to their conclusiveness, as adjudications, as those in actions generally (Sacia v. O’Connor, 79 N. Y. 260; Christie v. Bloomingdale,. 18 How. Pr. 12 ; Chautauqua Bank v. White, 23 N. Y. 347). As regulated by the Revised Statutes, therefore, a new trial could be had, as matter of course under the statute, only when the judgment sought to be opened was rendered upon questions of fact. The obvious purpose of the statute was to leave such judgments, in respect to other conditions, the same as judgments in actions generally.

The judgment sought to be vacated in this case was one which was entered in the superior court upon a remittitur from this court ordering judgment absolute in favor of the defendant. This judgment xvas based upon a stipulation given in pursuance of the statutes by the plaintiff, agreeing that judgment absolute should be rendered against him in case the judgment appealed from should be affirmed in this court. Such a judgment isjm no respect based upon a trial and determination of an issue of fact; but is founded solely upon the consent of the party making the stipulation. It did not, in any respect, depend upon the merits of the controversy as between the parties or the determinations of questions of fact originally made by the trial court, but was founded upon the agreement of the parties that a certain result should follow the decision of this court upon the questions of law presented to it by the record in court (Cobb v. Hatfield, 46 N. Y. 533, 535 ; Hiscock v. Harris, 80 N. Y. 402). The plaintiff had the option presented to him by the order of the general term granting a new trial, to go back and have another trial of the case, or, by stipulating that judgment absolute in the case might follow the decision of this court, to come here and reviexv the decision of the General term upon questions of laxv. The plaintiff had no right to appeal to this court except upon the condition that he would submit the whole controversy upon the result reached in this court. This subjected him to the risk of being defeated in the action by an adverse result, in this court upon the special questions submitted to it. by the court, and he must be deemed to have considered that question and deliberately consented that the judgment ordered by this court should be final in respect, to the cause of action stated in the complaint.

There can be no question but that a party has for consideration the right to waive privileges given him by a statute and agree upon a mode of trial which shall preclude him from afterwards availing himself of rights which he might otherwise have. By giving the stipulation in question the plaintiff secured a right of review which he could not otherwise have had, and there is no reason or justice in permitting him to violate his agreement because his experiment has not turned out as he expected it would. The statute is explicit that a party cannot review in this court an order of the general term granting a new trial, except upon the condition that he shall stipulate for judgment absolute in case he does not succeed in obtaining a reversal of the order appealed from (sub. 3, § 12, Code of Procedure 1848 ; sub. 3, § 191, Code of Civil Procedure), and to hold that the party who sustains such an order in this court does not secure an absolute judgment, would nullify the express provisions of the statute, and deprive the stipulation of the party of any meaning or effect. These provisions of the Code are general and no exception has been made in the case of actions of ejectment, and no authority exists for omitting such actions from the operation of the rule prescribed by the Code. To hold otherwise would involve the right of the court to disregard the express statutory provisions, and establish a broad exception to the operation of a statute which was undoubtedly intended to be general and comprehensive in its requirements.

The order of the court below should, therefore, be affirmed, with costs.

All concur.  