—I have read the voluminous case in this matter very many times, but in the view I take of it, it will not *172be necessary for me to allude, to any considerable extent, to the testimony.
It is a singular case in many respects. The main point in dispute was, whether the plaintiff was the owner of one-sixth of the whole or of but one-sixth of two-thirds of the newspaper called the Express. Attached to the plaintiff’s complaint were two papers, inconsistent with each other, by one of which the smaller interest was conveyed to the plaintiff, and by the other of which it was recited that he was entitled to the larger. Upon the part of the plaintiff it was claimed that, by a paper -dated the 30th day of November, 1855, it was agreed that there should be sold to him one-sixth of the whole concern; and that the instrument of the same date conveying to him but one-sixth of two-thirds was designed to fulfill that agreement, and was accidentally erroneously drawn. The defendants insisted that the writing agreeing to sell to Mr. Clark one-sixth of the whole property, was but one of three propositions, all drafted in the form of agreements to sell, signed by Mr. James Brooks, and left with Mr. Clark for consideration, and that that proposition was rejected by Mr. Clark, and one of the others, by which he was to have one-sixth of two-thirds, precisely as specified in the conveyance of November 30, 1855, was accepted by him. The inconsistency exhibited at the start of the case by the conflict between the two papers appended to the complaint, continued throughout it in almost every stage, including the trial of the issues, upon which the two highly reputable gentlemen, plaintiff and defendant, who ‘are the principal actors in the suit, flatly contradicted each other in almost every material and' leading point. Mr. Brook’s evidence, that he had such confidence in Mr. Clark that he signed almost any thing that the latter presented to him without reading it, and the theory that, having no taste for accounts (which is sustained by Mr. Clark’s oath that when all the partners met at Mr. Brook’s house in Fifth avenue he went asleep over them), he did not comprehend or acquiesce in those which Mr. Clark says Mr. Brooks received during the partnership, are not more improbable nor more open to remark than the statement of Mr. Clark, that he received from Mr. Bangs a paper which conveyed to him *173but one-sixth of two-thirds of property, when he designed and had instructed the.lawyer to make it a bill of sale of one-sixth of the whole; that he read it and kept it in his possession for years, and yet never detected that it varied in that important point from the real agreement and intention, until after the commencement of this litigation. But I do not intend to go through the case to specify the contradictions, or to consider which of the theories of these gentlemen strikes my mind as the more probable, or consistent with the circumstances and the evidence generally.
It will readily be perceived that the conflict was great and irreconcilable, and that, from the nature of the question, any evidence which would corroborate the theory or testimony of the one side, would be likely to be important and effective in deciding the issue against the other; and if any such has been improperly allowed, even conceding that the doctrine of Forrest v. Forrest, which is nothing but a reaffirmation of the old rule in chancery, is to be applicable to all equity trials, it seems to me to be impossible to say that, when the question was one of credibility, the erroneous admission of testimony calculated to sustain one side, has not “ produced injustice in the general result” to the other. Applying that test— whether the erroneous testimony produced injustice in the general result to the defendants in the case before us—I think a new trial should be allowed, because of the ruling upon the objection to the evidence of Mr. Bangs as to statements made to him by Mr. Clark, the plaintiff, in the absence of the defendants. It was mere hearsay, and I see no principle upon which it should have been received. It is to be observed also, that Mr. Clark, when on the stand, testified about his going to Mr. Bangs, and about the bill of sale being drawn by the latter; but he was not examined as to what he said to Mr. Bangs, when the defendants could have cross-examined him upon its truthfulness; yet Mr. Bangs was permitted, under exception, to tell the substance of what Mr. Clark said to him. I think this, tending as it did to sustain and corroborate Mr. Clark’s version, or at least his recollection, in an essential particular, may easily, on a nice question of credibility, have *174turned the jury against the defendants, and that for that reason, especially as the verdict necessarily seriously reflects upon the witness whose evidence must have been disregarded, we ought not critically to review the testimony to see whether the finding of the jury is not so consistent with many circumstances as to require us to pronounce it satisfactory; but seeing that the evidence erroneously received may have influenced the jury to believe Mr. Clark, and to discredit Mr. Brooks, and recognizing that a question of credibility is essentially one proper to be submitted to “ men accustomed to examine facts in the light in which people generally view them, rather than in the close method of judges and lawyers,” we ought to say that the error may have “ done injury ” to the defendants, and may “ have produced injustice in the general result ” (Forrest v. Forrest, 25 N. Y. at p. 512); and that, therefore, the verdict should be set aside, and a new trial ordered.
Order denying motion for a new trial affirmed.*
Subsequently, in the same case, pending an appeal to the Court of Appeals from the foregoing decision, the defendants applied to the Court, at special term, for an order staying all proceedings upon the judgment until such appeal could be heard and determined.
The motion was denied, and the defendants appealed.
Daly, F. J. The undertaking required by section 334 of the Code would not stay proceedings, for the reason that the cases provided for in section 342 are cases in which a judgment is appealed from; and it has consequently been held that that section- does not apply to. an appeal from an order granting or refusing anew trial (McMahon v. Allen, 22 How. 193; Valton v. The National Loan Fund Life Assurcmce Society, 19 Id. 513; Tiers v. Carnahan, 3 Abb. 69).
*175The rule laid down in Tompkins v. Hyatt, 19 N. Y. 534; Hollister Bank of Buffalo v. Vail, 15 Id.; Swartwout v. Curtis, 4 Id. 415, that there must be a final judgment before an appeal can be taken to the Court of Appeals, does not, in my opinion, apply where the appeal is from an order granting or refusing a new trial. The amendments of the eleventh section of the Code in 1857, and 1862, allow an appeal in such a-case, with no other limitation or restriction than that which is imposed in the case of an appeal from an order granting a new trial. The three cases above cited were not appeals from an order either granting or refusing a new trial; and, as I under*stand the decision of the Court of Appeals, it was simply, that that court will not review a judgment until it is actually entered, and is in all respects final in its character, which is something very different from hearing an appeal from an order granting or refusing a new trial.
It was held by the Court of Appeals (in Lansing v. Russell, 2 N. Y. 563), that the granting or refusing a new trial, in an equity case, where certain issues were directed to be tried by a jury, was a matter resting entirely in the discretion of the court below, and that no appeal would lie to the Court of Appeals in such a case. The merits of the controversy had not been disposed of when the appeal in this case was brought; and Chief Justice Bronson, in delivering the opinion of the court, said that whether the order refusing the new trial could be considered after there had been a decree upon the merits of the controversy, was a point that need not at that time be settled.
The Court of Appeals did, in an appeal after final judgment, review an order refusing a new trial in an equity case (in Forrest v. Forrest, 25 N. Y. 501), in which case they affirmed the judgment; but express authority is given to that court, upon an appeal from a judgment to review any intermediate order involving the merits, and this was such an order. All the judges in that case concurred in the opinion that where a trial by jury had been ordered in an equity case, it was to be reviewed not as upon a strict bill of exceptions, but upon the principles on which a court of equity examined the trial of a feigned issue, awarded for the information of its own conscience.
*176Justice Wright, by whom the opinion of the court was delivered, declared that the application for a new trial was in the discretion of the equity judge; that it was not material whether evidence was improperly admitted or rejected; and that a court of equity was not bound to award a new trial unless the errors were so substantial as to lead to the conclusion that the trial had been an unfair one, or that injustice had been done; which was the rule upon which this court acted in refusing a new trial in the present case. Justice Wright, however, remarked further, that the discretion with which an equity court was clothed was not an arbitrary one, and that if the error committed plainly led to injurious and unjust effects, of which the defendant has a right to complain, and there was reasonable doubt of the justice of the result, a retrial of the issues should be ordered. This, I apprehend, applies where a coürt of equity-gives judgment in accordance with the finding of the jury, regarding it as satisfactory, and treating it as conclusive upon the questions at issue; but, as was said by Chief Justice Bronson (in Lansing v. Russell, supra), and as had been held in other cases, the court may decree in accordance with the verdict, or it may disregard the finding of the jury, and decree the other way; that, in short, as Chief Justice Bronson said, “ the jury and the verdict are things which the court may use or let alone as it sees good; ” and the use which the court has made of the verdict does not come under review until an appeal is taken from its judgment.
In the present question the jury passed upon the real question at issue upon the pleadings, and the court has made a decree upon the merits, in accordance with their finding, so that it is an open question whether the defendant must wait until they appeal from the judgment before they can have a review in the Court of Appeals of the order refusing a new trial, or whether they can review it under the appeal allowed by the amendment of 1862. If it is reviewable only as an order involving the merits, upon an appeal after final judgment is entered, then the judgment may be practically carried into effect and executed before such an appeal can be brought. It is possible, therefore, that the Court of Appeals may conclude *177that they can review the decision of the general term refusing to grant a new trial upon an appeal from the order, irrespective of the judgment, and as that is at least possible, the question is, whether we should stay all proceedings until the order can be reviewed by the Court of Appeals.
If nothing further were involved than the review oí our order, and if the plaintiff could be secured against all the consequences of the delay, we should not hesitate to grant the application. If the suit involved nothing more than the recovery of a certain sum of money, a stay might be granted upon giving security for its ultimate payment. But the difficulty in the present case is, that the appeal, if it should be entertained by the Court of Appeals, cannot be heard, in its regular order, short of two or three years, and there is no means, at least none that occurs to Judge Brady or myself, with whom I have consulted, as the application was made in the first instance to him, by which the plaintiff could be secured from the consequences, if the property should in the mean time depreciate. It is a species of property, a proprietorship in a daily newspaper, which may be affected by a great variety of causes, for the pecuniary value of a newspaper depends upon its popularity and the amount of patronage it receives. The proportional part of the joint interest to which the plaintiff is entitled has been determined by the verdict of the jury, and by the decree which the court has made in accordance with it; but the value of the joint interest is not known, and cannot be known until the property has been disposed of by a public sale, and what the plaintiff will be entitled to will be his proportional part of the proceeds after the property has been sold. If it should diminish in value, his share will be proportionally diminished, and in property of this nature such a possibility is a matter which cannot be overlooked.
It has been settled by a course of judicial decisions that if, in an action for the dissolution of a copartnership, the parties cannot agree as to the value of their pecuniary interest, the only mode of determining it is by a sale of the whole of the partnership property at public auction, and this must take place sooner or later in this case, for the only point in dispute is the *178extent of the plaintiff’s interest. It was held by Justice Hoffman, in Dayton v. Wilkes (17 How. Pr. 510), that the full protection of the property in a newspaper requires that the receiver should be empowered to carry it on until sufficient time is allowed to dispose of it advantageously; and Chancellor Walworth held in Martin v. Yam, Schaick (4 Paige, 480), that a court of equity will not take upon itself the responsibility of continuing the publication of a political newspaper by a receiver any longer than is absolutely necessary to prevent a sacrifice of the property; that if a receiver is appointed, he must proceed and sell the establishment without delay; that in the mean time the business must be carried on by him as usual, so that the good will of it may be secured to the purchaser, and the full value of it realized by the partner, on the sale.
We have gone much further than this by continuing the publication of the paper through the instrumentality of a receiver, during the litigation of this court, a period now of nearly three years and a half, and the reasons must be very grave ones which would warrant us in staying the sale now that the plaintiff has obtained a decree in his favor, the defendants having failed to establish any of the defenses which they had interposed. We refused a new trial, on the very ground upon which the Court of Appeals say (in Forrest v. Forrest, supra) a court of equity ought to refuse it, giving to the case a most careful consideration, and setting forth, in an elaborate opinion, the authorities and the reasons which, in the judgment of the majority of the court, were conclusive upon the.point. We do not presume upon the infallibility of our own judgment. It is our duty to afford every reasonable facility to enable the defendants to review our judgment in a higher tribunal, when we can do so without prejudice to the rights of the other party; but no security which the defendants can offer, in the shape of the ordinary written undertaking, would guard against the result to the plaintiff of a diminution in the pecuniary value of the paper, during the long period which must elapse, before the appeal from the order refusing a new trial can be heard in the Court of Appeals. If we should stay the sale until the appeal is disposed of, the value of the plaintiff’s interest would depend *179upon the value of the paper then, and we have no right by an arbitrary exercise of power to subject him to the chances of such a contingency. It is admitted in the pleadings that the plaintiff was a partner, and that the partnership was dissolved in the mode prescribed by the articles ; and such being the fact, he is entitled, upon the authority of adjudged cases, to have the joint property sold at the earliest period that it can be done advantageously, whatever may be the subsequent adjudication of the court upon the distribution of the proceeds.
We can see no way in which the plaintiff can be protected against the possibility of a diminution in the value of the property, unless the defendant should agree that his valuation of his interest upon the trial should be deducted from the proceeds, in the event of the orders of the general term being affirmed, and should be guaranteed by the giving of proper security. We do not impose any such condition, or say that the defendants ought to agree 'to it. All that we do say is, that we should not be justified in staying the sale any longer, unless the plaintiff can be secured in some way against the possibility of a diminution in the value of his interest; and unless something of this kind can be suggested, a motion for a stay must be denied.
In the views above expressed, Judge Beady concurs.
An appeal was' taken from this decision to the Court of Appeals, and, on motion, the appeal was dismissed, on the ground that the judgment was not appealable. The opinion of the court, by Hunt, J., is reported in 2 Abbott Pr. ÍT. 8. 404.