
    The National Board of Marine Underwriters v. The National Bank of the Republic.
    (New York Superior Court— General Term,
    October, 1894.)
    Where appeals are taken by both parties from a judgment founded upon separable items, plaintiff claiming that it is inadequate and defendant that the recovery is excessive, the General Term has power to affirm the judgment upon the plaintiff’s appeal and award a new trial upon the defendant’s appeal, and an order declaring the judgment rendered upon both appeals is in proper form.
    Motion to resettle order.
    The plaintiff recovered judgment against the defendant after a trial had before a referee, and both parties appealed; plaintiff on the ground that the referee should have awarded $4,914.62, instead of $2,803.27, the sum allowed; and defendant on the ground that even the reduced sum was an excessive recovery.
    The court determined (1) on the plaintiff’s appeal, that the judgment was not inadequate, and disposed of such appeal by affirming the judgment as against the plaintiff. (2) It determined on the defendant’s appeal that the judgment was excessive, and that it inust be reversed and a new trial had, unless the plaintiff stipulated to reduce the recovery from $2,803.27 to $1,370.42, in Avhich case the judgment for that amount would be affirmed. Proper provision was also made as to the costs upon the íavo aqipeals.
    The plaintiff agreed upon the form of the General Term order.' Plaintiff, liowever, declined to stipulate to reduce the' recovery, so that one judgment was entered on the order, affirming the judgment on the plaintiff’s appeal, but awarding a neAv trial on the defendant’s'appeal. See 9 Mise. 362; 60 N. T. St. Repr. 625; 29 N. T. Supp. 698.
    The plaintiff iioav moves to resettle the order by having it contain the simple award of a neAv trial.
    
      G. A. Black, for motion.
    
      Hastings & Gleason, opposed.
   McAdam, J.

Although the referee reduced the plaintiff’s-demand to $2,803.27, either party aggrieved by the decision had the right to appeal ; the plaintiff for inadequacy, and the defendant because the judgment, even in its reduced form, was excessive. Code, § 1294. Such a right was sustained in Monnet v. Merz, 60 N. Y. Super. Ct. 256; 131 N. Y. 146.

In that case, as in this, the defendant claimed that, notwithstanding a deduction made in the plaintiff’s demand by the referee, the judgment was still excessive. The Court of Appeals made a further deduction on the defendant’s appeal. The plaintiff also appealed from the same judgment on the ground that certain other deductions allowed by the referee from the plaintiff’s claim should have been disallowed. An application to dismiss the plaintiff’s appeal was denied. Monnet v. Merz, 60 N. Y. Super. Ct. 256. The appeals were heard separately, and the plaintiff succeeded upon his appeal in this court (46 N. Y. St. Repr. 251; 18 N. Y. Supp. 280) and in the Court of Appeals as well (138 N. Y. 673).

In the case cited, as in the one under review, there were double appeals, and the court was called upon to hear each and to render appropriate judgments upon both. See, also, Genet v. Davenport, 60 N. Y. 194. The judgment directed by the referee in this case, as in those cited, was founded upon items easily distinguishable and separable, so that the General Term could readily determine which constituted liabilities against the defendant, and which were not of an enforcible character, that final judgment might be rendered thereon.

The order sought to be resettled declares the judgment rendered by the General Term upon both appeals, and it could not have been well expressed in any other form.

The plaintiff’s argument is that as a new trial was ordered as to part of the plaintiff’s demand, it should have been so directed as to all, and Goodsell v. Western U. Tel. Co., 109 N. Y. 147, is cited to sustain his contention. It will be found, on examination, that in that case, as well as in the authorities therein cited,-there was but one appeal taken from the original judgment, and it was held that upon such an appeal there could not be a new trial as to part of an entire demand, and an affirmance as to the residue, leaving a fragmentary part to be tried in the court below, and the residue to go to the Court of Appeals. But the principle decided there does not reach the question in the form in which it arises here, nor has any reported case been called to our attention which holds that upon double appeals, such as were taken in this instance, the court cannot dispose of both by rendering such judgment thereon by way of affirmance, reversal or modification as the nature of the case and justice require.

For these reasons, the motion to resettle the order must be denied, with ten dollars costs.

Freedman and Gildersleeve, JJ., concur.

Motion denied, with ten dollars costs.  