Upon a subsequent motion for a reargument, the following opinion was given: Motion for reargument on the following grounds:
1. That the rule was misapprehended as to the right of the General Term to reverse a judgment entered upon the report of a referee upon questions of fact, when there was conflicting evidence, and the credibility of witnesses was involved, by reason of which the facts were not presented fully by the plaintiff.
There has never been any doubt that the General Term has a right, and that it is its duty, to consider the facts in such a case, and pass upon them (Code, §§ 348, 268); and when the General Term certifies that the reversal is upon questions of fact, such questions are open to review in this court. (§ 268.) An examination of appellant's brief shows that the facts were very fully presented. We see no reason to change the conclusion upon the questions of fact.
2. That it was the duty of the General Term, instead of reversing the whole judgment, to have permitted the judgment to stand for such items of the account as it approved, at the election of plaintiff.
An item of $1,000, less $215 paid thereon, it seems the General Term regarded as sufficiently proved, and that court had power to reverse the judgment and order a new trial, unless the plaintiff stipulated to reduce it to that amount, but it was discretionary whether such an order should be made, or a reversal and new trial should be ordered.
The Code (§ 330) authorizes the appellate court to affirm, *Page 254 modify or reverse a judgment, "and may, if necessary or proper, order a new trial." Whether necessary or proper to order a new trial, was for the court below to adjudge. It was clearly proper to order a new trial on the whole case. The whole recovery was over $4,000 and it was reversed for errors in both of the principal items. The item of $1,000 allowed by the referee the General Term held was erroneous, because payments of $215 were not allowed; and it held, also, that although the referee was justified, upon the evidence, in allowing $785 upon that item, yet that it was proper to order a new trial.
It was not a legal error to grant a new trial upon the whole case, and the order was ostensibly for the benefit of the plaintiff.
3. That injustice will result to the plaintiff. This may be true, but, to avoid it, he should have gone back for a new trial. The Code (§ 11, sub. 2) is imperative that in such a case this court "shall render judgment absolute upon the right of the appellant." If we could see any legal mode of doing it, we might feel inclined to give the plaintiff the benefit of a new trial, but there is no such mode, without establishing a very loose and dangerous precedent, of permitting a withdrawal of the stipulation, a proceeding for which there is no legal authority. If parties stipulate their cases into this court, instead of availing themselves of the new trial ordered by the court below, they necessarily assume the hazard of injurious consequences. It is the statute which produces the result, and not the court.
4. That no stipulation was necessary when the first notice of appeal was served and none given.
The stipulation was made a part of the original notice by the order of this court.
The motion must be denied.
All concur.
Motion denied. *Page 255