a. Stay of proceedings on appeal.-The appeal from the judgment does not stay the proceedings on the judgment. To stay the proceedings on the judgment security must be given. But no security need be given unless a stay of proceedings is required (see § 348, and note thereto).

b, Case on appeal to general term, what to contain.—On an appeal from a judgment for plaintiff rendered by the court without a jury [or by a referee], the case must show not only the facts on which the grounds of defendant's liability are based, but also the facts on which the amount for which judgment was entered depends (Watson v. Barker, 16 Abb. 203).

c. Where the case omitted the referee's findings, the general term suspended the argument that they might be supplied (Watson v. Barker, 16 Abb, 203); for such a defect the court of appeals dismissed an appeal (see Bissel v. Hamlin, 13 Abb. 23; 20 N. Y. 519).

d. On an appeal from a judgment on the report of a referee, where it appeared that the referee wrote an opinion which was not inserted in the case, the argument of the appeal was postponed to have the opinion brought before the court (Warren v. Warren, 22 How. 142).

e. On an appeal from a judgment entered on the report of a referee, the appellant may be heard on exceptions taken to the referee's conclusions of law upon the facts found, although the printed case does not contain any of the evidence. But in such case he cannot be heard upon his exceptions to the findings of fact. It must be assumed that they were found upon competent and sufficient evidence (Frost v. Smith, 7 Bosw. 108); and whenever the appellant desires to review only the conclusions of law of the referee from the facts found by him, he can do so without inserting the testimony in his case (Ferguson v. Hamilton, 35 Barb. 427; see Bissel v. Pearse, 21 How. 134; see in note to § 268).

f. Case how settled.-Where on appeal from the decision of three referees the case was settled by two in the absence of the third, and without notice to him, held irregular, and that the case must be resettled (Fielden v. Lahens, 14 Abb. 48). A mandamus is the proper remedy to compel a referee to settle a case (see The People v. Baker, 14 Abb. 19; 35 Barb. 105).

g. Date of issue on appeal.-On an appeal from a judgment on a report of a referee, the date of the issue on the general term calendar, must be the day of filing the report (Gould v. Chapin, 5 How. 358).

h. Proceedings on appeal.-Where there is no exception to a referee's report the court cannot on appeal give any relief as to matters of law (Tyler v. Willis, 33 Barb. 328); a wrong result upon undisputed evidence is an error of law (Brown v. Penfield, 24 How. 64). To raise a question of law an exception must be taken and set forth in the case (Ingersoll v. Bostwick, 22 N. Y. 425).

i. Semble, where the facts are correctly found, the court may disregard the conclusions of law if erroneous, and direct the entry of such judgment upon the facts found as may be proper (Hannay v. Hannay, 3 E. D. Smith, 432; and see Griffin v. Marquardt, 17 N. Y. 28; Edmonston v. McLoud, 16 N. Y. 543).

j. An exception taken on a trial before a referee, although inserted in the case, but not argued nor mentioned on the points, will be regarded as abandoned (Flanders v. Crolius, 1 Duer, 209; Cumings v. Morris, 3 Bosw. 560 ; and see Brown v. Colie, 1 E. D. Smith, 269).

k. The general conclusion of the referee is to be construed as involving a finding upon all the material questions, though such a finding be not expressed in terms (Grant v. Morse, 22 N. Y. 323).

7. Where there is evidence sufficient to sustain a report, but the fact established by such evidence is not expressly found in the report, and there is no finding of such fact, the court in support of the judgment will presume the fact was found in accordance with the evidence (Sinclair v. Tallmadge, 35 Barb. 602).

m. Where a finding on a question of fact is clearly against evidence, a new trial will be granted (Thompson v. Menck, 22 How. 431).

a. A judgment on the report of a referee will not be reversed for the improper admission of testimony, when the court can see that the testimony so admitted did not influence the result (Lowery v. Steward, 3 Bosw. 506).

b, Where evidence bearing directly on the question in issue has been erroneously admitted, a new trial must be granted, although there may be unobjectionable evidence sufficient to sustain the decision (Williams v. Fitch, 18 N. Y. 546).

c. Where there is legal ground for reversing a judgment, the court will not sustain it for the reason that an equivalent error has been committed against the respondent (Ward v. Kalbfleish, 21 How. 283).

d. To warrant the reversal of a judgment on the report of a referee, the weight of evidence must be clearly against his finding (N. Y. Car. Oil Co. v. Richmond, 6 Bosw. 214; Westerloo v. De Witt, 2 Trans. App. 332).

e. Where the statement in the report of the facts found differs from the statement in the case of facts found, the latter will control, and if the facts do not sustain the conclusion, the judgment on the report will be reversed (Hartman v. Proudfit, 6 Bosw. 191).

f. Where the facts found by a referee authorize his decision, the judg ment will not be reversed merely because his report does not formally dispose of all the issues, where there is nothing to warrant a finding of any issue not passed on, in favor of the appellant (Alger v. Raymond, 7 Bosw. 418).

9. The appellant is bound to procure such a statement of the facts as will show, necessarily, that the law is in his favor (Grant v. Morse, 22 N. Y. 323; Bishop v. Main, 17 How. 162); or the judgment will be affirmed (id.)

See further in note to § 348.

h. Appeal to court of appeals from judgment on report of referees.—To warrant an appeal to the court of appeals there must be a case (Goodyear v. Bishop, 2 Keyes, 651), and exceptions, either taken during the trial, or to the final decision of the referees (Mills v. Thursby, 12 How. 418; Brewer v. Irish, id. 481; Hunt v. Bloomer, 13 N. Y. 341; Johnson v. Whitlock, id. 344). On the appeal the court will not consider questions not raised before the referees and excepted to (Morris v. Husson, 8 N. Y. 204), nor questions of fact (Borst v. Spelman, 4 N. Y. 284; Newton v. Harris, 1 Code Rep. N. S. 414). Where the decision of a referee on a question of fact is affirmed by the court at general term, it is conclusive; that question cannot be reviewed in the court of appeals (Ref'd Prot. Dutch Church v. Brown, 24 How. 76).

i. Where the finding by the referee is reversed by the general term on a question of fact, and a new trial is ordered, on a review in the court of appeals, all the questions are open to consideration (Westerloo v. De Witt, 2 Trans. App. 332). But if in the court below the reversal is without interference with the finding of facts, then the court of appeals do not weigh the evidence (McMahon v. Allen, 32 How. 313). It is only in clear cases that the court will reverse for referee refusing to nonsuit (Metcalf v. Mattisons, 32 N. Y. 464). The onus to show error is upon the appellant (Mead v. Bunn, 32 N. Y. 275). Every intendment is in favor of the report (Hoyt v. Hoyt, 8 Bosw. 511; and see Morris v. Second Ave. R. R. Co. id. 679).

j. Where the reference is to report facts, questions arising on the facts thus found, may be reviewed on appeal without exceptions (Kirby v. Fitzpatrick, 18 N. Y. 454). But if in such a case any question be made depending, not on the facts found, but on any error in the proceedings on the trial, or in the determination of the facts, the point must be raised by exception, and there can be no review in the court of appeals of the correctness of the determination of the facts (Marshall v. Smith, 20 N. Y. 251).

k. A hearing on the report of a referee to take an account, to enable the court to give judgment, is not a re-trial of the case, but a review only of the proceedings before the referee (Griffin v. Cranston, 5 Bosw. 658).

CHAPTER VI.

Manner of entering judgment.

SECTION 274. Judgment may be for or against any of the parties to the action; may grant defendant affirmative relief. Complaint may be dismissed for neglect to prosecute the action. Judgment against married woman.

275. The relief to be awarded to the plaintiff.

276. Rate of damages, where damages are recoverable.

277. Judgment in action for recovery of personal property. 278. Judgment, how directed.

279. Clerk to keep a judgment-book.

280. Judgment to be entered in judgment-book.

281. Judgment-roll.

282. Judgments, how and when to be docketed.

§ 274. (Am'd 1849, 1852, 1862.) Judgment may be for or against any of the parties; may grant defendant affirmative relief. Complaint may be dismissed for neglect to prosecute action. Judgment against married woman.

(1.) Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves.

(2.) And it may grant to the defendant any affirmative relief to which he may be entitled.

(3.) In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper.

(4.) The court may also dismiss the complaint, with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served.

(5.) In an action brought by or against a married woman, judgment may be given against her as well for costs as for damages, or both for such costs and for such damages, in the same manner as against other persons, to be levied and collected of her separate estate and not otherwise. And in any proceeding to en

force such judgment, the supreme court shall have jurisdiction, though the amount be less than one hundred dollars.

Note to Subdivision 1.

a. Judgment against one of several defendants.-The code has modified the common law rule that in an action on an alleged joint contract, the plaintiff must recover against all the defendants or be defeated in the action. -Where the contract sued upon, is in fact joint only, there can, if the nonjoinder be properly insisted upon, be no recovery against one only of the joint contractors, except in cases where the defense is personal to one or more of the other defendants, as infancy, &c. (Fowler v. Kennedy, 2 Abb. 347; Zink v. Attenburg, 18 How. 108; Brown v. Richardson, 4 Rob. 603); where the plaintiff sues some only of the parties jointly liable on contract, and the non-joinder is not set up as a defense either by demurrer or answer, the plaintiff may recover against the parties sued, although it may appear on the trial that others are jointly liable with them (Fowler v. Kennedy, 2 Abb. 347). Where several are made defendants, as upon a joint contract, and it appears on the trial that only a portion of the defendants made the contract, the plaintiff may recover against such of the defendants as in fact are liable (Zink v. Attenburg, 18 How. 108; see also Witherhead v. Allen, 28 Barb. 666; and Sluyter v. Smith, 2 Bosw. 673; Claflin v. Butterly, 2 Abb. 446; 5 Duer, 327; McKenzie v. Farrell, 4 Bosw. 193). Thus, where the action was against the defendants, B. & D., as partners, and it appeared that D., without the knowledge or assent of B. had signed the name of B. and D. to the instrument in suit, and on which it was conceded that B. was not liable, it was held that the plaintiff might have judgment against D. alone (id.) And see Parker v. Jackson, 16 Barb. 33; Harrington v. Higham, 15 Barb. 525; Merrifield v. Cooley, 4 How. 272; Fielden v. Lahens, 6 Abb. N. S. 341; McIntosh v. Ensign, 28 N. Y. 169; see Niles v. Battershall, 27 How. 381; 18 Abb. 161; and Sager v. Nicholls, 1 Daly, 1; and in Brumskill v. James, 11 N. Y. 294, which was an action by Brumskill against two defendants described as William L. James and Eliza Eaglesum, and was for the recovery of the amount of two promissory notes alleged to have been made by the defendants "under and by their copartnership name of Eaglesum & Co." The defendant described as Eliza Eaglesum did not appear or answer. The defendant James by his answer denied that he, jointly with said Eliza, either under the firm name of Eaglesum & Co., or otherwise, made the notes, or that he ever jointly, with her, either under said firm name or otherwise, made the promises in the complaint alleged. On the trial it appeared that the notes were signed by the defendant James with the name of Eaglesum & Co., and that at the date of the notes the defendants carried on business under the firm name of Eaglesum & Co., and that at the time of the making of the notes the defendants were husband and wife, held that plaintiff could recover against the defendant James.

b. So in an action against two or more defendants upon a contract made by or in behalf of a firm or association, if one of the defendants makes default and others appear and deny their liability, it is sufficient on the trial for the plaintiff to prove that the contract was made by the firm or association, and that the defendants who appeared are members thereof; and it is not necessary for the plaintiff to prove that the defaulting defendant is also a member (Ďowning v. Mann, 9 How. 204; 3 E. D. Smith, 36; Pruyn v. Black, 21 N. Y. 300). And whenever a plaintiff establishes a cause of action against one or more of the defendants in an action for a tort or upon contract, and it appears in the latter case that the defendants were not joint contractors or jointly liable, he is entitled to a judgment against those as to whom he estab lishes his cause of action. Thus, in an action on a joint and several bond purporting to have been executed by the defendants, on the trial it appeared that only one of the defendants had signed the bond. The breach of the

condition of the bond was proved, and the plaintiff recovered against the defendant who had signed (The People v. Cram, 8 How. 151). And the plaintiff may have judgment against one or more of several defendants whenever upon the facts of the case a cause of action appear against such defendants (Harrington v. Higham, 15 Barb. 525; Bonsteel v. Vanderbilt, 21 id. 26; Marquat v. Marquat, 12 N. Y. 342; and see Benson v. Paine, 17 How. 408; 9 Abb. 28; Witherhead v. Allen, 28 Barb. 661).

a. In action of tort, as a several judgment may be rendered against the guilty, and the others acquitted, a misjoinder of defendants is not available in any form (Montford v. Hughes, 3 E. D. Smith, 591). And in an action against husband and wife for an assault, held that plaintiff might recover against the husband only (Wagner v. Bill, 19 Barb. 321). So an action against several defendants to recover the possession of personal property, where a taking of the goods by one of the defendants is fully proved, it is not a ground for a nonsuit generally, as to all the defendants, that no joint taking by them was proved (Woodburn v Chamberlin, 17 Barb. 446; Lomer v. Meeker, 25 N. Y. 361, 364). If nothing appears either in the pleadings or the evidence, to charge a portion of the defendants, they will be entitled to a nonsuit, and the plaintiff may proceed and try the issue between himself and the other defendants (id.) In an action against several partners, on a promissory note, signed with the partnership name, where one of the defendants set up as a defense, that the note was in renewal of a note made by another firm, of which he was not a member, and that the firm name to the note in suit was signed without his authority, and the jury find for such defendant, a verdict may be entered for him and against the other defendants (Parker v. Jackson, 16 Barb. 33).

b. In an action against partners to recover money lost in gaining a recov ery against one of the defendants without amendment is regular (Betts v. Hillman, 15 Abb. 184).

c. In an action against the maker and indorser of a note, either defendant may have the complaint dismissed as to him on the trial (Lomer v. Meeker, 25 N. Y. 361).

d. In an action against three persons as partners, one not being served with summons nor appearing, the partnership being put in issue, on proof of the partnership of the defendants served, held that the plaintiff might have judgment against all of the defendants (Pruyn v. Black, 21 N. Y. 300).

e. Where two defendants were sued on a joint liability, and one answered and one failed to answer, on the trial of the issue raised by the answer, the defendant who answered alone appearing, judgment was taken against both defendants, without any proof of no answer having been received from one defendant, held that no such proof was necessary and that the plaintiff was regular (Catlin v. Billings, 13 How. 511).

f. One of several defendants in an action for a tort is entitled to a verdict, before the case of his codefendant is submitted to the jury, if the testimony be such that, if he were sued alone, he would be entitled to a nonsuit (Dominick v. Eacker, 3 Barb. 18; McMartin v. Taylor, 2 Barb. 356). This is not a matter of discretion but of right (id.)

g. In an action against seven defendants as joint makers of a promissory note the plaintiff on the trial was allowed to strike out the names of two of the, defendants and take judgment against the remaining five. But the plaintiff had to pay the defendants whose names were struck out their costs of defending (Marks v. Bard, 1 Abb. 63).

h. This provision is to be construed in connection with § 118 (Wells v. Smith, 7 Abb. 261; and see Ford v. David, 1 Bosw. 570).

į. Judgment on recovery by plaintiff with costs to the defendant. When on a recovery by the plaintiff in an action for a money demand, the defendant is entitled to costs, the costs should be set off against the plaintiff's recovery, and there should be but one judgment entered and execution awarded for the excess of the one over the other (Johnson v. Farrell, 10 Abb. 384). A separate judgment for defendant's costs in such a case would be irregular (id.) See § 370, post.