Herman v. Michel — 36 A.D. 127

Majority

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Max Herman and M. Charles Guinzburg, Appellants, v. Moses Michel and Others, Respondents.

Headnote

Stipulation that one action “ abide the final event ” of another.

Pending an appeal to the Appellate Division by the defendants in one action from a judgment in favor of the plaintiffs therein, the parties thereto and in two other actions on the Special Term calendar awaiting trial, in October, 1897, entered into a stipulation which provided that such actions were to “abide the final event” of another-action by one Blumenthal and others agáinst the same defendants, and that judgment-might be entered in the first-mentioned actions in favor of the plaintiffs in the event of the affirmance of the judgment in the Blumenthal action,‘in which action judgment had been entered in favor of the plaintiffs therein on June 18,1897, “from which judgment the defendants have duly taken an appeal.”

On the appeal taken in the Blumenthal action to the Appellate Division the judgment therein was affirmed as to all the defendants except two, as to whom the judgment was reversed and a new trial was ordered; and the defendants'as to whom the judgment was affirmed appealed therefrom to the Court of Appeals and perfected such appeal.

Upon a motion made by the plaintiffs for leave to enter judgment in accordance with the judgment of the Appellate Division in the Blumenthal action, so far as it affirmed the judgment below, and asking to sever the action as against the defendants in whose favor the new trial was ordered,

Held, that such stipulation, having been entered into after entry of the final judgment in the Blumenthal action, could only apply to the result of the proceeding taken to review that judgment;

That the motion should be denied, with leave to renew it after the decision of the appeal in the Court of Appeals.

Appeal by the plaintiffs, Max Herman and another, from an order of the Supreme Court, made at the New York Special Term, bearing date the 17th day of November, 1898, and entered in the

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office of the clerk of the county of New'York, denying the. plaintiffs’ motion for leave to enter judgment upon a stipulation made between the attorneys for the respective parties.

Wales F. Severance, for the appellants.

John Frankenheimer, for the respondents.

It appears that Ferdinand Blumenthal and others, judgment creditors, commenced an action which was tried and resulted in a judgment in favor of the plaintiffs against all of the defendants, from which an appeal was taken to this court.' Pending such appeal, and on October 13, 1897, the parties entered into a stipulation whereby this action and two others against the same defendants, then on the Special Term calendar of the court for trial, were to “ abide the final event of the action in this court of Ferdinánd Blumenthal, Clarence M. Stiner, Jacob Stein and Andrew M. Levy against the above-named defendants, which has been tried, and in which judgment was entered in favor of the plaintiffs on June 1.8th, 1897, and from which judgment the defendants have duly taken an appeal. * * * In the event of the affirmance of said judgment in the Blumenthal action, the above-named plaintiffs shall be at liberty to enter judgment as prayed for in the complaint in appropriate form, with costs.” Oh the appeal taken to this court the judgment in the Blumenthal action was affirmed as to all the defendants, except the defendants Zeimers andFeldstein, as to whom the judgment was reversed and a new trial ordered. The defendants, as to whom the judgment was affirmed, appealed from the judgment of affirmance to the Court of Appeals, and have perfected such appeal. After the decision of that appeal the plaintiffs-moved for leave to enter judgment in accordance with the judgment of this court so far as it affirmed the judgment-in the Blumenthal action, asking to sever the action as against the defendants in whose favor the new trial was ordered. That' motion was denied, with leave to renew after the decision of the appeal in the Court of Appeals. The pleadings in this action and in the Blumenthal action were not made a part of the record upon this appeal, and the precise nature of these actions does not appear by the papers

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presented. Nor does it appear whether leave has been obtained to appeal to the Court of Appeals from the affirmance of the judgment by this court. An appeal, however, has been taken and perfected, and is still pending and undisposed of. When this stipulation was entered into, a final judgment in the Blumenthal action had been entered in favor of the plaintiffs against all the defendants. The parties, by the stipulation in this action which was then on the calendar for trial, agreed that it should abide the final event of the Blumenthal action. If such stipulation had been entered into before final judgment in the Blumenthal action, it might be held to have-applied to the judgment when finally directed in that action, but: the judgment in the Blumenthal action having been entered when, the stipulation was made, such stipulation could only apply to the-result of the proceeding taken to review that judgment. This stipulation is not to abide the final event of the appeal then pending, but'the final event of the Blumenthal action, and a fair construction; would be that the final result was to be that which settled the right of the plaintiffs to recover, including the determination of such appeals as were necessary to review the judgment then entered.

The proceedings show that an appeal was pending from the partial affirmance of the judgment to the Court of Appeals, and the issues as to the defendants who succeeded on the appeal and obtained a reversal of the judgment are undisposed of. Consequently the Blumenthal action has not reached a final result. The further provision of the stipulation upon which the appellants rely does not, we think, entitle them to the entry of the judgment. That provided that in the event of the affirmance of the Blumenthal action the plaintiffs in this action should be entitled to enter judgment as prayed for in the complaint in an appropriate form, but the judgment in the Blumenthal action was not entirely affirmed. It was-affirmed as to a number of the defendants and reversed as to the-others. The judgment which had then been obtained and from, which an appeal was taken was not affirmed. We think, reading-the whole stipulation together, that it must be construed to mean that when this action was finally determined the plaintiffs were to-have the same judgment as such final determination awarded in' the. Blumenthal action.

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We agree with the court helow, therefore, in the disposition that it made of this application, and the order appealed from is affirmed) with ten dollars costs and disbursements.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.