Opinion
April 17, 1950.
In an action for specific performance, defendant appeals from the final judgment and from an order granting a motion to amend and resettle the interlocutory judgment and to confirm in part the report of an Official Referee. The order appealed from combines the resettled interlocutory judgment with the provisions for confirmation of the Referee's report. Final judgment vacated on the law, and the interlocutory judgment, as originally entered, unanimously affirmed, without costs. Order of August 4, 1949, insofar as it granted the motion to amend and resettle the interlocutory judgment dated April 29, 1949, and entered May 2, 1949, reversed on the law and the motion is to that extent denied. Insofar as the order grants the motion to confirm the report of the Official Referee, it is modified on the law by striking from the second ordering paragraph the words "only to the extent that it is found under the terms of said judgment, as resettled hereby, that there is due and owing to the plaintiff from the defendant the sum of $21,716.67 with interest thereon from June 9, 1949", and substituting therefor "in all respects"; by striking from the third ordering paragraph "the said sum of $21,716.67" and substituting therefor "the sum of $20,543.59," and by striking from the fourth ordering paragraph the words "as modified hereby". As so modified, the order is unanimously affirmed, without costs. The notice of appeal sufficiently describes the orders sought to be reviewed and permits a review of the order of August 4, 1949, in its entirety because it materially affects the final judgment. (Cf. Trust Co. of America v. United Boxboard Co., 213 N.Y. 334, 340.) The order does, as respondent urged on the settlement of the case on appeal, contain the resettled interlocutory judgment, and the appeal, therefore, authorizes a review of the proceedings resulting in the interlocutory judgment. The informal findings of the Trial Justice are supported by the evidence and are affirmed. No error in the rulings at trial warrants a reversal of the interlocutory judgment as originally entered. However, the reference directed thereby and the specification of items to be included in the account were matters judicially determined. In the absence of any showing that the items were inserted through mistake or did not conform to the decision of the Trial Justice or were contrary to law, or in disregard of equitable principles, the interlocutory judgment should not have been resettled so as to eliminate the item whereby defendant was to be credited with actual rents received by plaintiff. The Official Referee had heard the parties in accordance with the interlocutory judgment. His report, in the absence of any contention that he had not proceeded properly under the interlocutory judgment as originally entered, should have been confirmed. Only if the defendant, after service of a copy of the order of confirmation stating the amount due, in accordance with the interlocutory judgment, fails to take the deed and to make the payment, can plaintiff enter final judgment. Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.