St. John v. Andrews Inst. for Girls

• Citation: 85 N.E. 143,192 N.Y. 382
• Parties: ST. JOHN v. ANDREWS INSTITUTE FOR GIRLS et al.
• Decision Date: 12 June 1908
• Court: New York Court of Appeals

192 N.Y. 382

85 N.E. 143

ST. JOHN

v.ANDREWS INSTITUTE FOR GIRLS et al.

Court of Appeals of New York.

June 12, 1908.

On motion for reargument and to recall and amend remittitur. Motion for reargument denied, and motion to recall and amend remittitur granted.

For former opinion, see 83 N. E. 981. See, also, 117 App. Div. 698,102 N. Y. Supp. 808.

Chase, Gray, and Haight, JJ., dissenting.

Henry Wollman and Virgil P. Kline, for motion to amend remittur.

Volney Rogers, Allan R. Campbell, and Henry M. Earle, opposed.

James W. Hawes, for executor.

Frank W. Hackett and Edmund Wetmore, for motion for rehearing.

James W. Hawes, Henry Wollman, and Virgil P. Kline, opposed.

CULLEN, C. J.

The question presented by this motion is whether certain of the next of kin to the testator, who failed to appeal from the judgment of the Supreme Court, which declared that they had no right to any part of the estate of said testator, can take advantage of a reversal of said decree by this court, made upon the appeal of certain other of the next of kin. It may first be well to dispose of the notion or suggestion that a judgment, in an action for the construction of a will, differs in effect from judgments in other actions. The substance of the argument is that the action by the executors is for instructions, and that there cannot be inconsistent instructions given by the court in the same action. The judgment of the Special Term, however, was not merely advisory, but settled and declared the rights of the parties thereto among themselves. The right to maintain such an action is not confined to the executors, but may be exercised by any beneficiary under the will, though not by one claiming in hostility to it. Chipman v. Montgomery, 63 N. Y. 221. The qualification that the action cannot be brought by a party claiming in hostility to the will is, so far as relates to personalty and to proceedings in the Surrogate's Court, abrogated by section 2624 of the Code of Civil Procedure, which requires the surrogate, on the application of any party to the proceeding, to determine the validity, construction, or effect of any disposition of personal property contained in the will. See Matter of Mount, 185 N. Y. 162, 77 N. E. 999. In such actions or proceedings every party thereto may assert his claim or right, and the judgment rendered is as conclusive on such right as it would be in any other litigation. The case of Bryant v. Thompson, 128 N. Y. 426, 28 N. E. 522,13 L. R. A. 745, is decisive of this question. There the beneficiaries under the will of the plaintiffs' testator were his widow and a daughter by a former marriage, an infant at the time of the testator's decease. The will contained a clause forfeiting any provision in favor of a party who might contest the will. The will was contested by the special guardian of the infant. The action was brought by the executors against the infant and the widow, the residuary legatee, to determine whether the contest by the guardian forfeited the infant's legacy. The Special Term held it did not. The executors appealed to the General Term, where the judgment of the Special Term was affirmed. The executors then appealed to this court. The residuary legatee took no appeal from the judgment of the Special Term nor from that of the General Term. The appeal of the plaintiffs, executors, was dismissed by this court, on the ground that the executors had no interest in the controversy, and were not aggrieved by the judgments below. Judge O'Brien, writing for the court, said: ‘The plaintiffs clearly had the right to bring this action, in order to obtain a judicial determination of the question as to which of the two claimants was entitled to the fund, and also to obtain the instructions of the court in regard to their duties under the will. They have obtained these instructions and this determination from the highest court of the state possessing original and general jurisdiction. * * * They had an interest, and it was their duty to procure a judicial determination of the questions presented by the facts alleged, but no interest or duty in obtaining a decision according to some view of the law that they may have themselves entertained or have been advised by counsel. * * * The plaintiffs are not concerned, in the slighest degree, in any legal sense, with the question whether the provision for the daughter be held for her, or deemed revoked under the other clause and secured to the widow.’ The case cited also disposes of the suggestion that on appeal the executors represented in some way the nonappealing defendants, or that they had some duty to secure a reversal in their favor. As a matter of fact the plaintiff in this case, the executor, did not appeal, and had he appealed, under the authority cited, his appeal would have been dismissed.

Therefore, the effect of the reversal of the judgment before us on the rights of the nonappealing defendants is to be determined by the same rules that apply to similar appeals from judgments generally. The rule is stated by Mr. Freeman in his work on Judgments (volume 2, § 481): ‘Where a judgment is against two or more persons, one only of whom appeals, its reversal, if the judgment was binding upon the defendants jointly, or if all must co-operate in complying with the judgment, affects the parties who did not appeal to the same extent as those who did. Pittsburg, etc., Ry. Co. v. Reno, 123 Ill. 273, 14 N. E. 195. But if a defendant does not appeal, and is not made a party to the appeal by the service on him of notice thereof, an appeal by his codefendant, followed by a reversal of the judgment, cannot authorize the retrial of the cause as against the nonappealing defendant, and the new trial must be confined to the issues between the parties to the appeal.’ Minturn v. Baylis, 33 Cal. 129, 134;Nichols v. Dunphy, 58 Cal. 605;Little v. Superior Court, 74 Cal. 219, 15 Pac. 731;Withers v. Jacks, 79 Cal. 297, 21 Pac. 824,12 Am. St. Rep. 143. So a joint judgment, such as that rendered against partners or against joint obligors, cannot be affirmed as to one defendant and reversed as to another, but must be reversed in its entirety, except so far as the rule is modified by statute (1 Black on Judgments, § 211 et seq.), and this rule is applicable to a judgment in equity as well as to one in an action at law. Altman v. Hofeller, 152 N. Y. 498, 46 N. E. 961. But the question remains, and this is the only substantial question in the case, was the judgment rendered by the Special Term, and from which no appeal was taken by certain of the defendants, a joint judgment or a several judgment? For even in an action at law against several joint tort-feasors, the liability of the defendants being several, though in form a single judgment may be entered against them all, the judgment may be reversed on appeal as to one defendant and affirmed as to the other. Hubbell v. Meigs, 50 N. Y. 480. See McIntosh v. Ensign, 28 N. Y. 169;Bullis v. Montgomery, 50 N. Y. 352.

Up to this point I understand my Brother CHASE and myself to be in accord. Out difference is whether the judgment is a joint or a several judgment. Here I may dispose of the suggestion that the judgment is against a class. There is no authority for suing a class, as such, as distinguished from the individuals composing that class, except that given by section 448 of the Code of Civil Procedure, where if the parties of a class are too numerous to render it practicable to join them all as parties to the action, one or more may be selected as representing the class. No such situation existed in the present case, nor was there any attempt to sue one defendant as representing the others, but each person in interest was made a party that he might defend or assert his rights in person and on his own behalf. The argument of my Brother seems to proceed on the theory that, because the issues on which the case was disposed of at the Special Term were common to all the defendants, the next of kin, therefore the judgment against them was necessarily joint. I think the question of the identity of issue between the several parties has no necessary bearing on the question whether the judgment is joint or several. The distinction between the interest in a question and interest in a particular judgment is well illustrated by the rule which disqualifies judges from hearing causes. A judge cannot sit in the hearing of an appeal from a judgment in an action in which he is interested or he is related to the parties within the specified degree, and the judgment rendered by a court in which such disqualified judge takes part is a nullity (Oakley v. Aspinwall, 3 N. Y. 547); but, on the other hand, interest of the judge in the question involved in the case has no effect on his qualification to sit and determine it (People v. Edmunds, 15 Barb. 529). Another illustration is the case of a judgment against two tort-feasors. The issue on which the parties have been held liable may be identical and the ground on which the judgment has been reversed may be as fatal to the recovery against one defendant as against the other, yet, as already stated a reversal against one will inure in no respect against the other. Such was the case of Geraud v. Stagg, 10 How. Prac. 369. The action was for libel against two defendants. From a judgment in favor of the plaintiff only one defendant appealed. The judgment was reversed on the ground that the plaintiff's own evidence did not show a cause of action. The order entered by the General Term of the Common Pleas reversed the judgment as to the appealing defendant only. A motion was thereupon made to amend the order so as to reverse the entire judgment. The motion was denied, in an opinion written by an eminent judge, Woodruff, afterwards a judge of this court. What then does determine the question whether the judgment in this action was joint or several? Had the cause been determined at the Special Term in accordance...