After issue was joined in the action, the court had power to award a separate trial as to each cause of action set out in the complaint. *352Neither party then asked for or sought to hare a separate trial. Both parties proceeded to a judicial examination of the issues before a referee. In virtue of the trial, report and decision of the referee, whose report stands as the decision of the court (Code § 1223), the plaintiff became entitled to a judgment in his favor upon both counts of the complaint.
When defendant presented a case and exceptions, with his appeal to the General Term, the questions to be considered related to the right of the plaintiff to hold the judgment given by the referee upon both counts or causes of action. The court in examining the case and exceptions, found error in the progress of the trial as to the second count, and no error was supposed to exist as to the first count. In pursuance of its decision a new trial was ordered as to all the issues, unless plaintiff consented to modify the judgment entered on the report of the referee so that it should stand simply as a judgment upon the first count. That consent was given, and thereupon the judgment as so modified was retained by the court, and affirmed as so modified. With such consent given, the General Term had power to so modify the judgment. (Hayden v. The Sewing M. Co., 54 N. Y., 221; Whitehead v. Kennedy, 69 N. Y., 462; Code of Civil Pro., §§ 1317, 1319.)
Had the judgment entered upon the report of the referee been upon one cause of action, or its provisions been “ connected and dependent,” the General Term would not have had power to modify the judgment resting upon conflicting evidence. (Murphy v. Spaulding, 46 N. Y., 556; Whitehead v. Kennedy, supra; Cassin v. Delany, 38 N. Y., 178.)
But it now appears from the record, that when the case was heard in the Court of Appeals, the judgment of the General Term, modifying and retaining part of the judgment entered upon the report of the referee, was wholly reversed and a new trial ordered. The order for a new trial, as directed by the Court of Appeals, is unlimited and unrestrained by any terms of restriction or limitation to the issue relating to the first count of the complaint. Literally construed, it is an award of a new trial of the issues in the action. If the award by that court had been of a new trial of the issues as .to the first count of the complaint, a different question would have been presented. (Code of Civil Pro., § 1220.) Again, it does not appear *353from the order of tbe General Term that there was an intention to give a final judgment against the plaintiff upon a second cause of action. The case does not therefore fall within section 1224 of the Code, which authorizes the General Term “in its- discretion to render final judgment.”
Nor does it appear from the order of the General Term that the plaintiff’s complaint as to the second count was dismissed upon the merits, and the action of the General Term does not therefore stand as a bar to a second action or a second trial of the issues as to the second count. There remains no judgment expressly declaring, or judgment-roll mating it appear that a jndgment has been rendered upon the merits of the second count against the plaintiff. (Sec. 1209.)
The effect of the stipulation to reduce the judgment entered upon the report of the referee, to the amount found due on the first count was to vacate all other parts of the judgment based upon the report if the referee. The defendant has treated the stipulation as having chat effect, for he has not entered an order or judgment, reversing the other parts of the judgment, or dismissing plaintiff’s complaint as to the second cause of action. Had the defendant allowed the modified judgment to stand, he might have insisted with force that the plaintiff had lost the right to try the issue as to the second count in this action. But the defendant was not content with such modified judgment, and the stipulation given as a precedent necessity for the entry of such judgment modifying the judgment entered on the report of the referee, but appealed therefrom, and then took from the Court of Appeals a total reversal of the judgment of the General Term, and from that court an absolute and unconditional order for a new trial of the action.
Plaintiff’s inducement leading him to stipulate is gone. It was taken away by the course pursued by the defendant, resulting in the judgment and award for a new trial obtained in the Court of Appeals. We cannot escape the conclusion that there is no judgment or stipulation now in force to prevent the plaintiffs from insisting that they are entitled to a trial of all the issues in the action, those relating to the second as well as those relating to the first count in the complaint.
No case has been cited exactly in point, and we have found none, giving effect to an order awarding a new trial in a similar case. *354However, for the reasons already assigned, we have come to the conclusion that all the issues in the action are open for a new trial.. We therefore affirm the order of the Special Term.
Smith, P. J.,. and BARKER, J"., concurred.Order affirmed, with ten dollars costs and disbursement!!.