The plaintiff recovered a judgment against the defendant, upon the report of a referee, which awarded to it less than the damages demanded in the complaint. It appealed from so much of that judgment as awarded the damages. The defendant also appealed from the whole judgment. The General Term made the following order: "That the judgment from which the plaintiff appeals be * * * affirmed with costs and it is further ordered that the judgment from which the defendant appeals be * * * in all respects reversed and a new trial ordered with costs to the defendant to abide the event unless the plaintiff shall file a stipulation * * * agreeing to reduce the recovery," etc. Judgment was entered upon that order in accordance with its terms; fixing the sum of plaintiff's costs and, because of the plaintiff's failure to stipulate to reduce its recovery, as suggested in the order, absolutely reversing the judgment upon the defendant's appeal and ordering a new trial, with costs to abide the event, etc. Subsequently, the plaintiff moved the court, at General Term to vacate its order and to enter "the proper order * * * in conformity with the decision," etc. The motion was denied. The plaintiff then appealed to this court from so much of the judgment entered, etc., as affirmed the judgment entered upon the report of the referee and, also, appealed from the order of the General Term denying the motion to vacate its order.
We think there was no authority for such an order by the *Page 67 General Term, or for the judgment entered thereupon and that the plaintiff's motion to vacate them should have been granted. Their provisions are glaringly inconsistent. First, the judgment upon plaintiff's appeal is affirmed and then it is reversed in all respects; costs being given to each party by the judgment. The plaintiff's recovery of damages is affirmed; but it is also reversed. Such a practice cannot be approved, for it would lead to the utmost confusion and permit what has been condemned in this court; namely, that one portion of the cause could be sent back for a new trial and that the other portion might be brought here. (Story v. N.Y. H.R.R. Co., 6 N.Y. 85; Goodsell v.W.U. Tel. Co., 109 id. 147.) If the judgment must be reversed for error, the error necessarily reverses the entire judgment and the new trial must be as to the entire claim. (Wolstenholme v.Wolstenholme Co., 64 N.Y. 272.) The anomalous condition is presented where a judgment decisive of an action to recover damages is at once affirmed and reversed, without other distinctive elements in the order of the appellate court than those of separate appeals by the plaintiff and defendant. It is scarcely conceivable that such a decision can stand and the logical result, whether we regard the order or look at the reasons assigned in the opinion, is that a reversal of the judgment is effected. The separate appeals by the plaintiff and the defendant call for but one of the dispositions authorized by the Code to be made by the General Term and, as that court found error in the referee's conclusions, they should either have simply ordered the reversal of the judgment and a new trial of the issues; or do what was probably in mind (and what, because, in our judgment, the conclusion reached by the General Term was correct, would have been proper), modified the judgment to the extent mentioned in the opinion. Not having done so, the order of the General Term should be reversed and an order should be entered reversing the judgment entered upon the report of the referee absolutely and ordering a new trial before another referee, with costs to abide the event. *Page 68
As to the plaintiff's appeal from the judgment, we think that, in view of the plaintiff's attitude towards the order of the General Term, it should not have been taken and must fail. It was open to the plaintiff to take a new trial of the cause upon the General Term order if it desired it; but, with an absolute reversal of the judgment and a new trial ordered, it could only come here upon appeal upon a stipulation for judgment absolute in case of affirmance. Our determination upon the plaintiff's appeal from the order of the General Term denying the motion to vacate its judgment, necessarily, leads to the dismissal of its appeal from the judgment.
The appeal from the judgment is, therefore, dismissed, but, under the circumstances, without costs to either party as against the other. The order of the General Term, which disposed of the appeals of the parties, is reversed and an order should be entered reversing the judgment, entered upon the report of the referee, and ordering a new trial, with costs to abide the event.
Costs as upon an appeal from an order are awarded to the appellant.
All concur.
Ordered accordingly.