Opinion
June Term, 1897.
Sidney V. Lowell, for the appellant.
Josiah T. Marean, for the respondent.
When this case was before us upon an appeal from the order which permitted the judgment herein to stand, and directed a rehearing before the referee and an application for an amendment of the judgment on the coming in of such report, we held that such order was beyond the power of the court to make and reversed the same. But we then said: "The Special Term should have vacated the judgment and ordered the case back to the referee for a further hearing and new trial, and on the report of the referee a new judgment, settling the rights of the parties should be entered." ( Ferguson v. Bruckman, 16 App. Div. 67.) The present order vacates the judgment and the order appointing a receiver thereunder, and orders a new trial before another referee upon certain conditions. The report of the referee shows the condition of the property and accounts and the rights of the parties therein, so far as the property and rights are considered. Such finding is not attacked by the plaintiff, and nothing appears in his affidavit or in those of his attorney making any complaint in respect thereto.
The only matter which remains at issue between the parties, so far as the status is disclosed by the record, relates to the money collected by the plaintiff on outstanding accounts due the firm. Through inadvertence this sum was not proved before the referee, and the matter was not presented to him for adjudication. While there is much contradiction in respect of conversations between the counsel for the plaintiff, the defendant and his representative, there is no dispute regarding the essential fact. The counsel for the plaintiff does not controvert the fact that the plaintiff collected from the outstanding accounts due the firm, about the sum of $1,100, and of that sum he has only paid to the receiver $119.12. The plaintiff is undoubtedly correct in his position that this sum is all that he was compelled to pay over by virtue of the provisions of the judgment. But it by no means follows that he ought not to pay over more in good conscience and morals. Unless he have valid offsets, he holds moneys belonging to the defendant equal to one-half of the sum collected, and the defendant should not have inflicted upon him in the form of conditions, before he can have relief, a sum which practically eats up the whole amount, and against which he may not reimburse himself if he finally succeeds. He should be compelled to pay what the inadvertence of counsel has fairly cost the plaintiff and no more. It is within the power of the court to grant relief and protect the rights of both parties in their present condition, without imposing excessive burdens upon either. ( Ladd v. Stevenson, 112 N.Y. 325; Day v. Allaire, 31 N.J. Eq. 303; Millspaugh v. McBride, 7 Paige, 509.)
We think that the rights of each party will be secured by vacating the judgment and continuing the trial before the referee heretofore appointed, allowing the testimony already taken to stand, with liberty to each party to offer such further testimony as he may be advised, upon the conditions stated in our decision.
All concurred.
Order appealed from modified as to read as follows:
Ordered: That the motion of the defendant be granted; that the report of the referee and the judgment entered thereon in this action be vacated and set aside, and that the trial of the action be continued before the referee hitherto appointed herein, the testimony already taken to stand, and either party to be at liberty to offer such additional evidence as he may elect; the defendant, as a condition of this relief, to repay to the plaintiff within twenty days the amount paid on said judgment, $459.35, and pay $50 costs, and pay the costs of the receiver to him. In case the defendant fails to make the payments within said time, then the motion to open said judgment be, and the same is hereby denied. Order to be settled before Justice HATCH on two days' notice.