We are earnestly requested by the counsel for the plaintiff to modify our judgment in this case, given at the last term, so far at least as that the *Page 429 plaintiff may, in some form, have the benefit of the actual payment of $1,200 upon the subscription of Edgerton for twenty shares of the stock of the defendant's company, which required the payment of $2,000, the fact being that $800 of this amount never was paid according to the contract, and never has been offered to be paid by Edgerton or the plaintiff.
The form in which the case comes before us is, I think, not as favorable to any equities the plaintiff may be supposed to have, as it possibly might otherwise have been. The plaintiff claimed that he was entitled to twenty shares of the capital stock in the defendant's corporation, and in this claim he succeeded at a Special Term in the Supreme Court. On an appeal by the defendant, a General Term of that court ordered a new trial, and the case came before us, upon an appeal by the plaintiff from that order, upon the usual stipulation for final judgment against him in case the order should be affirmed. After a very careful examination, we came to the conclusion that the order appealed from should be affirmed, and ordered final judgment against the plaintiff. This judgment was given under a peremptory mandate of the statute (Code, § 11, sub. 2) that, if no error had been committed in granting the new trial, a final judgment must be awarded according to the stipulation.
It has been held, under the very large power conferred by section 12 of the Code of Procedure, that it was the duty of a General Term of the Supreme Court, where the facts require it, to reverse a judgment as to one or more of several defendants, and affirm it as to others. (Gardner v. Ogden, 22 N.Y., 327;Hubbell v. Meigs, 50 id., 480.) A reference to these cases will show that this rule was adopted without the slightest apparent consideration of the provisions of subdivision 2 of section 11 of the Code; but it is sufficient for us that it has been so decided in cases where separate judgments may be ordered for or against separate defendants. As to the modification of a judgment, in the case of a sole defendant, upon an appeal of this character, we might find some difficulty; if the determination of that question was necessary *Page 430 to the proper disposition of this motion. But, we think, it is not. And, indeed, it may be said that this application is not strictly within any rule of practice on motions for a reargument; but, as our judgment is challenged with earnestness and apparent sincerity, we prefer, for a moment, to reconsider it. It is not necessary to repeat the facts in great detail. Edgerton subscribed for twenty shares of stock in the defendant's company, which required him to pay $2,000, as it should be called for by its directors. He paid $1,000 on this subscription, and then absolutely declined further performance. The result was a suit against him by the company to recover five installments of $200 each, to which, among other things, he interposed a defence of the statute of limitations. This plea was successful as to four of the installments sued for, but unsuccessful as to the fifth, and judgment was had against him for $200, interest and costs, which he paid. It, therefore, happened that Edgerton was compelled to pay on his subscription $200 more than he ever intended to pay, and, but for the statute of limitations, he would have been ordered to pay $800 more. This judgment establishes his obligation to pay the full sum of $2,000 upon his subscription, but he is relieved from the payment of $800, because the defendant did not prosecute him in due season. In this condition of things the plaintiff, after some lapse of time and change of circumstances in respect to both parties, demanded a certificate for twenty shares of the stock of the defendant, and this was refused, and this action was brought to enforce that demand, no offer having been made to pay the balance of $800 yet due on the subscription of Edgerton. This demand was approved at a Special Term of the Supreme Court, and the plaintiff had judgment. At General Term this judgment was reversed and a new trial ordered, and from this order the plaintiff appealed, giving the usual stipulation. We thought at the last term this order was right and directed the necessary judgment. If, when Edgerton had paid for ten shares of the twenty he had subscribed for of the stock of the defendant's company, he had called at the *Page 431 defendant's office and said he would pay no more money, and wanted a certificate of stock for ten shares, and it had been refused him, no one would claim that any court would or should have given him what he demanded.
As an original question it is difficult to see how the plaintiff is now in any better position. The refusal of Edgerton to perform his contract was manifested in the most positive form, in his defence of the suit brought against him for the recovery of one-half of the amount due upon his subscription for stock. He sought to repudiate his obligation, and did succeed to the extent of exactly $800. This sum we have not and do not regard as an actual payment, and so we have decided, for reasons before assigned. It thus appears that, for reasons satisfactory to himself, Edgerton refused to perform his contract with the defendant, and we have not been able to discover what further duty was due from it to him or the plaintiff.
The real difficulty on the present motion is that the plaintiff has no substantial merit. He wanted twenty shares of stock, to which it must be conceded he was not entitled. If he wanted twelve shares he never asked it, and was not entitled to it. He wanted twenty shares, and had not paid $800 that was due, and it was not offered to be paid. There was no obligation on the company to issue the stock, without the equivalent, under any circumstances. It hence follows that, when this action was commenced, the plaintiff was not entitled to any relief whatever.
The cases to which we are referred, holding that the courts may give any relief to a party to which he may be entitled upon the facts of his case, without regard to the prayer of his complaint, do not appear to aid the plaintiff on this motion.
The only error committed was at the Special Term, which the General Term corrected by granting a new trial.
If the plaintiff had gone back for a new trial, it may be possible that the case might have got into some position more favorable to him. We think no case was made, as the *Page 432 record now stands, entitling the plaintiff to relief anywhere, and it would be very inconsistent for us to reverse or modify an order or judgment which we regard as entirely correct. The case shows, and the fact cannot be disguised, that at a time when the defendant was in pecuniary extremity, and its stock comparatively worthless, Edgerton refused to perform his contract and pay the amount due on his subscription for stock. When sued for its recovery in the courts, he resisted with success, upon the plea of the statute of limitations, to the extent of $800. Long afterward, when a change of condition had made the stock of the defendant valuable, the plaintiff, as the representative of Edgerton, demands a certificate for twenty shares of stock, when money equal to twelve shares only had been paid, and we held the demand was properly refused. What questions might have arisen if a tender had been made of the unpaid $800 and interest we cannot consider. We have only to dispose of the case as it appears to us on the record, and on that we find no occasion to interfere with the judgment previously rendered.
The motion is denied, with ten dollars costs.
All concur.
Motion denied.