The appeal from a judgment of the Appellate Division affirming a judgment of the Special Term of the Supreme Court herein was recently heard in this court, and the opinion handed down with the decision is reported in 191 N.Y. 254.
Two of the next of kin of the testator who were made defendants in the action and appeared and answered at the Special Term did not appeal from the judgment entered therein.
This motion is made to amend the remittitur of this court so as to deny to said next of kin who did not appeal the right to partake in the division of the income upon the fund in the hands of the plaintiff which accrued between the time when the testator died and the organization of the Andrews Institute *Page 392 for Girls. It is made in behalf of said Andrews Institute for Girls to whom said income was directed to be paid by the judgment entered at the Special Term.
Where an appeal is taken by some one or more of the parties to an action aggrieved by the judgment therein it does not enable other parties to the action who have not appealed to be heard in opposition to the judgment in the appellate court. By failing to appeal the right to be heard is waived. (Levy v. Schreyer,177 N.Y. 293; Cherokee Nation v. Blackfeather, 155 U.S. 218.) The appellants could discontinue the appeal without consulting the non-appealing parties and thus leave the judgment in full force and effect.
Although a person who has not appealed cannot be heard in the appellate court the judgment rendered on the appeal may inure to his benefit. Whether it will inure to his benefit depends upon the nature of the action and the form of the judgment. The question as to the power of the court to reverse a judgment in part and affirm in part frequently arises where all of the parties are before the court as appellants or respondents and their several interests are fully considered. This court in Cityof Buffalo v. Delaware, Lackawanna Western Railroad Co. (176 N.Y. 308), discussing such question, say: "Where a judgment consists of distinct parts so separate and independent in form and nature as to be easily severed, and each is, in fact, a distinct adjudication, the Supreme Court may upon appeal affirm the adjudication not affected by error and reverse the adjudication which is affected by error and grant a new trial as to that portion of the issues only. This rule has frequently been stated as if it were confined to actions in equity to which indeed it mainly applies, because there are but few judgments except those rendered by courts of equity which consist of distinct and independent adjudications. We think the rule to be applied depends upon the form and nature of the judgment rendered rather than upon the forum of the action and the statute regulating appeals, which simply codifies the practice as it had long prevailed. * * * Thus, if in an action of *Page 393 ejectment for separate parcels of land, each depending upon an independent chain of title, there is a verdict for the plaintiff as to one and for the defendant as to the other, and each party appeals from the separate adjudication against himself, we see no reason why it is not within the power of the court to affirm as to one and reverse as to the other. * * *. Inconsistent judgments cannot arise from such a course, because the determination of the one controversy does not involve the other."
A judgment can be reversed as to one plaintiff or defendant and affirmed as to another when a separate award of damages is made to each and such disposition of the appeal can be had without materially affecting the rights of the parties. (Van Siclen v.City of New York, 172 N.Y. 504; Wilson v. MechanicalOrguinette Co., 170 N.Y. 542; Goodsell v. Western Union Tel.Co., 109 N.Y. 147.)
In Altman v. Hofeller (152 N.Y. 498) this court in considering the question of the power of the court to reverse the judgment in part and affirm in part, say: "The rule seems to be well settled that upon an appeal from a judgment which is entire and against several defendants, the appellate court must either totally affirm or reverse, both as to the recovery and as to all the parties. But in cases where there are separate and distinct judgments, or where an error exists as to a separate claim or defense, which relates only to a transaction between the plaintiff and one of the defendants, the judgment may be reversed as to such a claim or defense, and only as to the parties interested therein, and affirmed as to the remainder. These rules are not of recent origin. They existed and were practically the same at common law, under the Revised Statutes, the Code of Procedure and the Code of Civil Procedure. (Citing authorities.)"
In the same case this court further say: "Our attention, however, has been called to no authority which sustains the doctrine that where there is error which requires a reversal, the judgment can be properly reversed and a new trial granted as to some of the defendants and affirmed as to others, unless *Page 394 in a case where their interests and the issues between them are so far separate that upon a new trial the issues between the plaintiff and the defendants as to which it is affirmed will not be involved or determined; so that there cannot be two different and inconsistent judgments upon the same issue in the action. The rule in this respect must, we think, be the same in a suit in equity as in an action at law. If the subject or issue as to which a new trial is granted is so far separate and distinct from the other issues in the case, is one in which the party in whose favor it is granted is alone interested so that any judgment that may be rendered upon it can in no way affect the other parties who are joined with him, then, doubtless, the court would be authorized to grant a new trial as to one and affirm as to the others. In such a case the only parties interested are the plaintiff and the defendants as to whom the new trial is granted. It is the same so far as that issue is concerned as it would have been if there were no other parties to the suit. But when a new trial is granted as to an issue that affects all the parties, and when all are interested in any judgment that may be rendered thereon, it should be either entirely reversed or affirmed as to all the parties. In such a case the court has no authority to reverse and grant a new trial as to part and affirm as to the others. Any other rule would result in conflicting judgments in the same action, affecting the same parties, and would produce a degree of confusion and uncertainty that would render the proper and orderly administration of the law quite impossible."
The rules applicable to cases where some of the parties to an action appeal from the judgment rendered therein and some of the parties similarly affected by the judgment fail to appeal are not unlike those that we have quoted in cases where an appeal has been taken by all of the parties to the action and the question is involved as to the power of the court to reverse the judgment as to some of the parties and affirm as to others.
A judgment can be reversed as to an appealing party and left to stand against a non-appealing party when such judgment *Page 395 is in separate and distinct parts or in a case where the action could have been severed. (Van Siclen v. City of New York,supra; Levy v. Schreyer, supra; Belden v. Andrews, 14 App. Div. 630. )
The courts do not overlook the controlling force and effect of a judgment as against a person who has not appealed therefrom when by reversing it as against an appealing party it is necessary because of the entirety of the judgment to reverse as to all the parties to it.
Where the defendants are partners or interested in a joint venture a reversal of a judgment on an appeal by one necessitates a reversal as to the other. (Boice v. Jones, 106 App. Div. 547. )
In an action in equity brought by a creditor in behalf of himself and other creditors to enforce the statutory liabilities of directors of a corporation it was held that a reversal of an interlocutory judgment on an appeal by some of the defendants inured to the benefit of all of the defendants since the action could not have been severed in the trial court. (Bauer v.Hawes, 115 App. Div. 492.)
It is the general rule that only the rights of parties before the court can be adjudicated on appeal, and the rights of persons who are not parties to the appeal cannot ordinarily be considered. But where the parties appealing and those not appealing stand upon the same ground and their rights are involved in the same question and equally affected by the same decree or judgment the court will consider the whole case and settle the rights of all the parties. (3 Cyc. 411.)
It is provided by section 1205 of the Code of Civil Procedure as follows: "Where the action is against two or more defendants, and a several judgment is proper, the court may, in its discretion, render judgment, or require the plaintiff to take judgment, against one or more of the defendants; and direct that the action be severed, and proceed against the others, as the only defendants therein."
In a case where the court at the trial or Special Term has power to sever the action as between the parties thereto and *Page 396 subsequently after judgment some of the parties appeal therefrom and others fail to appeal, the appeal in behalf of some of such parties will not inure to the benefit of the non-appealing parties, but where the parties to an action are necessarily joined by reason of some contractual or other relation, or by virtue of some statute, or because they constitute a class, and the action could not have been severed at the trial or Special Term the appeal in behalf of some one or more of such parties and a reversal of the judgment as to them, will result in a reversal as to all.
This action was brought by the plaintiff as executor and trustee for the construction of the will of the testator and for the instructions of the court. In his complaint the plaintiff alleges:
"That as to his duty in the execution of the trusts and obligations imposed upon him by said will of said Wallace C. Andrews, deceased, he is advised by his legal counsel and believes that various questions and doubts have arisen as to the construction thereof, and the validity of certain provisions therein by reason of which plaintiff cannot safely proceed to pay over the residue of said estate without the instruction and judgment of this court, and by this action he desires to submit said questions and doubts to the determination of this court and himself to its directions concerning the same. Among which question and doubts are the following * * * Whether the heirs at law or next of kin of said testator are entitled to any portion of his estate."
Although the judgment of the Special Term was satisfactory to the plaintiff and he did not appeal therefrom the purpose of the action remained and the decision of this court is a construction of the will in a matter relating to the next of kin as a class. No construction of the will could have been had upon the pleadings or at the Special Term that would have given to some of the next of kin an interest in the testator's estate, or of the income thereon and deprived others of the next of kin therefrom.
If this court had directed a new trial of the action it would, under the authority of Altman v. Hofeller (supra), have been *Page 397 directed as against all of the next of kin. The fact that a new trial was not ordered does not, it seems to us, affect the determination of the question now before us. If the modification of the judgment directed by us does not apply to all of the next of kin it will result in inconsistent judgments upon the same issue and the court will instruct the plaintiff as executor and trustee to distribute the income of the estate for the time mentioned to a part of a class and withhold the shares from the others of said class, not pursuant to any possible construction of the will or in accordance with the judgment of the court based upon the duty of the executor and trustee, but pursuant to the claimed rights of the parties growing out of the practice in connection with the appeal. The appeal taken from the judgment was general and no question relating to the identity of the next of kin is involved.
I am of the opinion that the reversal of the judgment in part, as stated in the opinion previously filed herein, inures to the benefit of the next of kin as a class. The motion should be denied, with ten dollars costs.
Motion to recall and amend remittitur granted, and remittitur amended so as to read as follows: "Order and adjudge that the judgments of the Appellate Division and Special Term of the Supreme Court appealed from herein be and the same hereby are modified so as to award to each of the next of kin of the deceased who have appealed from the judgment of the Special Term herein and from the judgment of the Appellate Division herein affirming said judgment of the Special Term, his proportionate share of the income from the rest and residue of the estate from the date of the death of the testator to the date of the incorporation of the Andrews Institute, and as modified affirmed as to the parties to this appeal, with costs to all the parties appearing in this court and filing briefs, payable out of the principal fund."
WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur with CULLEN, Ch. J; GRAY and HAIGHT, JJ., concur with CHASE, J.
Ordered accordingly. *Page 398