
    H. Koehler & Co., Respondent, v. James W. Brady, Appellant.
    
      Where a judgment in equity is valueless the court cannot by a supplemental interlocutory judgment provide for the payment of damages as a substitute ■—if no appeal be taken from such interlocutory judgment a final judgment conforming thereto will not be disturbed.
    
    Where a tenant, who had been unlawfully evicted from the demised premises, obtains, in' an action in equity, a judgment awarding him possession of such premises, the fact that such judgment has, because of the defendant’s unlawful acts, become valueless to the plaintiff, does not authorize the court to grant the plaintiff a supplemental interlocutory judgment declaring him entitled to compensation for the injuries suffered by him and to appoint a referee to ascertain such damages.
    Where, however, the defendant neglects to appeal from this interlocutory judgment and appeals from the final judgment entered upon the report, of the referee without specifying, in the notice of appeal, that he intends to bring up ■ for review the interlocutory judgment, the Appellate Division has no power to review the interlocutory judgment and will affirm the final judgment in so far as it follows the interlocutory judgment.
    Appeal by the defendant, James W. Brady, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of April, 1902, upon the report of a referee, directing a sale of the interest of said defendant in certain premises therein described.
    It appears from the opinion delivered upon the former appeal that the plaintiff corporation had leased of the defendant corporation certain premises in which it desired to carry on a liquor business ; that it was illegally evicted from the premises by the defendant and brought this action to recover possession thereof; that it obtained a judgment awarding it possession of the. premises, but that, in the interim, the right to conduct the liquor business upon the premises had been lost because of the defendant’s unlawful acts, so that the judgment was valueless to the plaintiff.
    
      Moses Weinman, for the appellant.
    
      Emanuel J. Myers, for the respondent.
   Per Curiam:

The nature of this action and of the judgment here sought to be reviewed are stated in the former appeal, reported in 82 Appellate Division, 279. By the order or supplemental judgment of the Special Term, dated October 15, 1901, it was ordered, adjudged and decreed that the judgment entered in the action on the 31st day of December, 1897, and the judgment entered on the 21st day of May, 1900, be enforced and carried into execution as thereinafter provided in aid of and supplementary to the said judgments; that specific performance of the judgments "having failed, the plaintiff was entitled to compensation by way of damages, if any, suffered for the acts and misconduct of the defendant, and a referee was appointed to ascertain and determine the value, if any, of the certain lease of the premises set forth in the judgment, dated September 16, 1896, and to ascertain and determine the value, if any, of the personal property, if any, belonging to the plaintiff in and upon the said premises on the 31st day of March, 1894; and it was further adjudged that the plaintiff recover of and have judgment against the defendant for the amount that the referee should determine as aforesaid.

We think this judgment or order had no relation to the enforcement of the original judgment, but sought to inject into a purely equitable action a demand for damages which had no relation to the relief originally asked for which had been granted by the final judgment entered after a trial of the action. The court, by final judgment, having awarded to the plaintiff the relief to which it was entitled, based upon a cause of action in equity, as alleged in the complaint, the enforcement of that judgment was the only relief in this action to which the plaintiff was entitled, and. the court was without authority to turn the action in equity in which final judgment had been entered into one for the recovery of damages, and then, in a summary way, appoint a referee to ascertain the damages and give the plaintiff judgment therefor: Tt is not pretended that the defendant refused to comply with the judgment as entered; and because plaintiff subsequently discovered that the jtidgment that he had asked for and which had been awarded him would be valueless, the court was not justified in turning the action into one for the recovery of damages and depriving the defendant of his right to try that question in a manner that was assured to him by the Constitution. (Art. 1, § 2.) We think the whole proceeding erroneous and unauthorized.

It is claimed by the plaintiff, however, that the defendant having failed to appeal from this order or interlocutory judgment, and appealing only from the final judgment entered upon the report of the referee, he is estopped from questioning the validity of the interlocutory order. Section 1301 of the Code of Civil Procedure provides that where'an appeal is from a final judgment and the appellant intends to bring up for review thereupon an interlocutory judgment, or an intermediate order, he must in the notice of appea distinctly specify the interlocutory judgment, or intermediate order, to be reviewed. The defendant having failed to specify in his notice of appeal that he intended to review this order of October 15, 1901, we have no power to review the propriety of that order, and the only question upon the appeal from the final judgment would seem to be whether or not it correctly followed the interlocutory • order or judgment of October fifteenth. That order adjudged to the plaintiff judgment against the' defendant for the amount, if any, which the referee shall determine as thereinbefore provided. So far, therefore, as the final order or judgment awards a recovery against the defendant for the amount of damages reported by the referee, it is not subject to review on this appeal, All of the , order or judgment appealed from, however, in addition to that which awards judgment in favor of the plaintiff against the defendant Brady for damages ascertained by the referee, was unauthorized by the interlocutory order of October 15, 1901, and to that extent the judgment appealed from must be modified by striking out all after the provision awarding judgment in favor of the plaintiff against the defendant Brady for. the sum of $2,777.21, and as so; modified the order or judgment appealed from is affirmed, without costs. .

Present — Van Brunt, P. J., Pattebson, O’Brien, McLaughlin and Laughlin, JJ.

Judgment modified by striking out all after the provision awarding judgment in favor of plaintiff against the defendant Brady for the sum of $2,777.21, and as so modified affirmed, without costs.  