p. 369holders, to enforce against them contributions for his said claims, in proportion to the amount of said claims accruing during the periods when they were stockholders, and in proportion to the number of shares of stock severally held by them during the same periods.
The action was referred to B. D. Silliman, Esq., as sole referee, who made his report assessing the amounts of contribution of the several defendants to the debt, and also assessing against each a corresponding fractional portion of the plaintiff’s costs. The referee also decided that the plaintiff was entitled to judgment against the respective defendants for the respective amounts so assessed against them; and that in case either or any of said contributions to said debt and costs was or were not paid by the defendants so to contribute, or the same were not or could not be collected by execution against said several defendants, against whom they were severally assessed, or either of'them, then that the appellant be allowed to collect by execution or otherwise, according to the practice of the court, such deficiency or deficiencies against the other defendants, not exceeding certain amounts prescribed as to each, and as to Gustavus A. Sacchi not exceeding $4,675.28. Judgment was perfected, accordingly, on the referee’s report; and Mann «fe Rodman, the plaintiff’s attorneys, docketed the judgment against the several defendants for the several amounts constituting their several ultimate liabilities, and not for the amounts of their primary contributions as assessed against them. Consequently, the docket against Sacchi was $4,675.28, instead of the primary assessment against him of $91.32.
A motion was made at chambers, before Mr. Justice Sutherland, on behalf of Sacchi, to cancel the docket against him, on the ground that it should have been for the amount of the primary contribution charged upon him of $91,32. The motion was granted, and the plaintiff appealed therefrom to the general term.
William D. Booth, for the appellant.
Richard 8. Emmet, for the respondent.
The question in this case is not, whether a judgment might not have been framed and
p. 370entered, on the report of the referee, which would have authorized a docket in the first instance against the defendants severally, for the.amount of their several ultimate liabilities as stockholders, as found and reported by the referee; but the question is, whether the judgment which was framed and entered on the report of the referee did authorize such docket in the first instance, and without any. further application to the court.
In making the order at special term appealed from, I was' mainly influenced by the consideration that the words of the judgment are, “ It is adjudged that the said plaintiff, Robert G. Rankin, recover of the said defendants the amounts which it was found and reported they ought severally to contribute in the first instance to the payment of the plaintiff’s debt and costs,” and that it was not anywhere in words adjudged that the plaintiff recover of the defendants the several amounts of their ultimate liability, as reported and found; and, as leave is expressly given in the judgment-for the plaintiff to apply at any time for further directions, I supposed that the judgment should have been docketed in the first instance only for the amounts which the defendants were severally directed to contribute in the first instance, and that it ought not to have been docketed for the full amount of the ultimate liabilities, without any further determination and order of the court. But I am inclined to think this was an erroneous view of the judgment. It is expressly adjudged, “ That in case either or any of said contributions to said debt and costs is or are not paid by the parties defendants so to contribute as aforesaid, or the same is not or cannot be collected by execution of said parties, or either of them, that the plaintiff be and is allowed to collect by execution or otherwise, according to the practice of the court, said deficiency or deficiencies against the other defendants, &c.” This unqualified adjudication of the right to issue execution for the deficiency or deficiencies involves or carries with it, I am inclined to think, the right to docket the judgment for the full • amount of the ultimate liabilities of the several defendants as reported and determined; particularly as in the judgment “the equities are reserved of the défendants, from whom may be collected an amount exceeding the respective amounts which they are, as above specified, adjudged originally to contribute to the said plaintiff’s said claim.”
p. 371I think the order appealed from should be reversed; "but I come to this conclusion with some hesitation, and, considering the novelty of the question and the want of precedents, I think neither party should have costs on this appeal.
Ingraham, J., concurred.