EUGENE A. RUDIGER and JOHN M. RUDIGER, Respondents,
JAMES S. COLEMAN, Defendant, Impleaded with JULES BREUCHAUD and Others, Appellants.
APPEAL by the defendants, Jules Breuchaud and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 26th day of May, 1911, upon a remittitur from the Court of Appeals, and also from an order entered in said clerk's office on the same day directing the entry of said interlocutory judgment.
Morgan J. O'Brien [Charles Haldane and David McClure, with him on the brief], for the appellants.
John C. Wait [Charles A. Winter with him on the brief], for the respondents.
Upon the trial of this action the learned court at Special Term made elaborate findings of fact, and reached the conclusion of law that the plaintiffs' complaint should be dismissed upon the merits, with costs to the defendants. The case had been previously tried. Upon the first trial of the action the defendants were directed to specifically perform the contract between the parties for the formation of a corporation. The interlocutory judgment was reversed. (112 A.D. 279.) Upon a retrial of the case it was held that the plaintiffs had failed to establish a case calling upon a court of equity to intervene, and dismissed the complaint upon the merits, with costs to the defendants. Upon an appeal to this court the judgment was affirmed. (129 A.D. 916.) An appeal was taken to the Court
of Appeals, where the judgment of this court was reversed (199 N.Y. 342, 347), and the judgment of the Special Term modified 'so as to direct a reconveyance by the defendants to the plaintiffs of the Field farm; and a reassignment of the contract for the 15 acres of the Horton farm upon condition that the plaintiffs reimburse the defendants for any payments they may have made upon the contract for that part of the Horton farm.' It was further held that the judgment should 'be further modified so as to direct an accounting for rents collected by the defendants, for the trial court has found that the defendants erected tenements upon said premises and collected rents therefrom, for which they have not accounted to the plaintiffs.' The court then says: 'Although the judgment as thus modified probably falls far short of doing ideal justice between the parties, the nature of the contract and the conclusive character of the judgment as far as it goes make it impossible for the court to do more.'
That is, if we understand language, the trial court having found that there was no ground for equitable interference in adjusting questions of waste, rents, issues and profits, and this judgment having been unanimously affirmed by this court (129 A.D. 916), the power of the court was limited to the modifications in the judgment above recited, and which are contained in the opinion of the court. Notwithstanding this positive declaration of limitation upon the power of the court 'to do more,' the learned counsel for the plaintiffs moved the court for a reargument of the appeal, or, in the alternative, for an amendment of the remittitur, upon the ground, among others, 'that the said decision and opinion failed to indicate whether the plaintiffs are entitled to the rents only, or the rents, incomes and revenues derived from the premises in question, and for what period or periods, and to what extent they are entitled to recover for waste, damages done to the premises by the defendants during their occupancy of the same, and as to the disposition of moneys received upon condemnation of parts of same by the city of New York, and as to the plaintiffs' rights under the contract of purchase and lease of mineral rights.' This motion was supported by an affidavit of plaintiffs' attorney, and was denied, without opinion, the court significantly
referring to the opinion on the original appeal (200 N.Y. 536).
It seems entirely obvious to us that, if the Court of Appeals had had any doubt upon the questions suggested upon this motion there would have been some intimation upon the point. The opinion, as originally handed down, clearly by its language limited the modification in reference to rents to those which had been 'collected by the defendants,' for, as it is pointed out, 'the trial court has found that the defendants erected tenements upon said premises and collected rents therefrom, for which they have not accounted to the plaintiffs.' Can there be any doubt of the rents the court had in mind in directing this modification?
Notwithstanding this plain dissent of the Court of Appeals to the suggestion that the court had failed to make clear its determination, the learned counsel for the plaintiffs, upon defendants' motion to make the determination of the Court of Appeals the judgment of the Supreme Court, introduced various affidavits, statements, etc., and generally went into the merits of the litigation, resulting in an order which, instead of making the determination of the Court of Appeals the judgment of the Supreme Court, makes a very different determination, giving the plaintiffs relief which was denied in the action and affirmed on appeal, the learned court at Special Term declaring in a memorandum that 'This Court in giving intelligent effect to the determination of the Court of Appeals must take account of these changes. Its power and duty is not limited to a parrot-like adoption of the language of the remittitur. The judgment to be entered will, therefore, direct a reconveyance of the Field farm except such portions as have been condemned, an assignment of the awards, if uncollected, and payment over of the awards so far as collected, with interest, also an account to date of rents, issues and benefits received out of the property, meaning thereby all ...