Clark v. Brooks

The plaintiff brought his action for the dissolution of a copartnership, existing between himself and the defendants, in the Express, a daily newspaper, and for the taking of an account, claiming that he had an interest of one-sixth. The defendants insisted that his interest was only one-sixth of two-thirds, and, upon the defendants’ application, it was ordered that the point in dispute should be tried by a jury.

The trial was a long one, and fills a volume of more than four hundred printed pages. It was most exhaustive in respect to the subject-matter. Great latitude was allowed to the defendants upon the cross-examination of the plaintiff Clark; in the examination of their own principal witness, James Brooks, and by the admission of a large amount of testimony, much of it under the plaintiff’s exception, consisting of newspaper extracts, and the evidence of many witnesses relating to the speculations of the plaintiff in stocks, and as to his management of the money article in the Express, and there was an extensive examination of the books of account and business transactions of the newspaper, extending over the whole time of Clark’s active connection with it, a period of more than seven years. Great attention was paid by the jury to the testimony during the whole investigation. The pertinent and suggestive questions put by them, especially during the examination of the books of account, and in respect to details in the business management of the paper, exhibited so much intelligence and practical business knowledge, that I was induced, in my charge, to make especial reference to the attention they had shown, to the intelligence manifested by their inquiries, and to say that I doubted whether a better jury could have been found for the discharge of the duty imposed upon them.

Forty-one exceptions were taken by the defendants during the progress of the trial, embracing exceptions to the admission or to the rejection of testimony, or to the ruling of the court upon questions of law, but one of which is considered, in the opinion of my colleague, as a ground for granting a new trial, and that was allowed upon the settlement of the case under peculiar circumstances. Bo memorandum of this exception was-*162to be found in my own notes, nor in those of any of the counsel upon either side, nor in the notes of the stenographer. It was to the admission of declaration made by Clark to his attorney, Mr. Bangs, which, from my familiarity with the rules of evidence, I would have supposed I could not have admitted under an exception, but for the fact that it was the impression of the two counsel for the defendants that I did, and I allowed it in deference to their better recollection. Begarding it, therefore, as testimony erroneously admitted under exception, the question arises, whether the reception of it constitutes, in a case like this, a sufficient reason for ordering the cause to be tried over again.

This was an equity suit, in which the defendants were not entitled, as a matter of right, to a trial by jury, but in which the court, in the exercise of its discretion, directed certain facts to be ascertained by the verdict of a jury, and in such a case new trials are not granted with the same facility, nor, in all instances, for the reasons which would be sufficient in an action at law.

Where an issue of fact is joined in an action of law, the verdict of the jury, if not disturbed, is final, and the judgment of the court is given in accordance with it. For this reason it has been deemed more important that courts should, upon .such trials, enforce the principle that the rights of parties are to be determined strictly by legal evidence, and the most effectual means of enforcing it is to order a new trial, if improper evidence is submitted against the remonstrance and objection of the party complaining. Hence it has been held in this State, that a new trial will be granted in an action at law where erroneous evidence is admitted under exception, unless it is shown that the verdict was not affected by it. That it will not suffice that the party excepting was not probably injured by it, but it must be shown beyond a doubt that he could not have been prejudiced by it (Anthoine v. Coit, 2 Hill R. 40; Gillett v. Mead, I Wend. 193; Clark v. Vorce, 19 Id. 232; Farmers’ Bank v. Whinfield, 24 Id. 419 ; Clark v. Crandall, 3 Barb. 613; Dresser v. Ainsworth, 9 Id. 619 ; Boyle v. Coleman, 13 Id. 42 ; Williams v. Fitch, 18 N. Y. 546; Erben v. Lorrillard, 19 Id. 299). This, in most cases, it is difficult to show, as it is gener*163ally impossible to say what effect the evidence may or may not have had upon the minds of the jury, and it is for this reason that it has been held, that the proper course in such a case is to grant a new trial (Marquand v. Webb, 16 Johns. 89 ; Osgood v. The Manhattan Co. 3 Cow. 612). But even upon this point the authorities in this State are by no means harmonious, for it has also been held that though such evidence was objected to, a new trial would be denied, unless there should be strong probable grounds for believing that the merits had not been fully and fairly tried, and that injustice had been done (Crary v. Sprague, 12 Wend. 47; Northrup v. Wright, 24 Wend. 223; Depuyster v. Columbian Insurance Co. 2 Cai. 90). And Judge Wright, in Forrest v. Forrest (25 N. Y. 510), says that it is hardly the rule now in courts of law that a new trial must be granted, because evidence has been received that ought to have been rejected, for that “latterly even these courts undertake to judge for themselves as to the materiality of evidence found to have been improperly admitted or rejected, and when satisfied that no injustice has been done, and that the verdict would have been the same with or without such evidence, they have refused a new trial.” The same want of agreement exists in the English courts. In the Common Pleas, a new trial will not be granted for the admission of improper testimony, if there is enough evidence in the case to warrant the verdict, and if, in their judgment, the evidence improperly admitted, ought to have had no effect (Doe v. Taylor, 6 Bing. 561; Horford v. Wilson, 1 Taunt. 14; Nathan v. Buckland, 2 Moore, 153). While the King’s Bench has refused, after mature consideration, to follow the rule of the Common Pleas, and declare that they will not undertake to determine such a question, as they cannot say what effect the evidence may have had upon the minds of the jury, and that, if they refused to grant a new trial, when inadmissible evidence has been received under exception, it might cause the rules of evidence upon trials to be less carefully considered (Crease v. Barrett, 5 Tyrwh. 475; De Rutzen v. Farr, 4 Ad. & E. 53). The rule of the King’s Bench has hitherto been the prevailing one in this State, while, in most of the other States of the Onion, the rule of the Com*164mon Pleas, after a full examination of the subject, has been adopted as the one which the result of experience has shown to be the best adapted for the attainment of the ends of justice (Hamblett v. Hamblett, 6 New Hamp. 333; Deerfield v. North-wood, 10 Id. 269; Prince v. Shephard, 9 Pick. 176; Thompson v. lothrop, 11 Id. 336; Thorndike v. Boston, 1 Met. 242; Page v. Homan, 2 Shep. 478; Commonwealth v. Shephard, 6 Binney, 283 ; Steelman v. Steelman, 1 Harr. 66 ; Barringer v. Nesbitt, 1 Smedes & Marsh, 22 ; Carrol v. Mays, 8 Dana, 533).

But the strict rule which has been applied in courts of law, has never been recognized in courts of equity. Where "a trial by jury has been directed in a suit in equity, to ascertain certain facts, the trial is simply for the information of the court, with whom the ultimate decision of the case rests, and it is not therefore necessarily conclusive. The court, says Mr. Gresley, in his work upon Equity Evidence, “ may, if it thinks fit, make no use of the verdict, but treat it as a nullity. It will often pay no heed to the most flagrant misdirection on the part of the judge, or mistakes as to the admission of evidence, if the court, is satisfied that the verdict is as it ought to have been, upon the evidence which is sound, and it may either send the case back to another jury, or decide it even in the teeth of a verdict” (Gresley upon Evidence in Courts of Equity, pp. 527, 528). Although a court of equity would have been satisfied if the verdict had been the reverse of what it is, it will not, for that reason, send the case back for another trial. There must be something which shows that the verdict is clearly wrong—something which satisfies the court that it cannot be right (Northern Bridge and Road Co. v. London & Southampton Rail Co., 11 Simmons, 42). The test in every case is the satisfaction of the conscience of the court, and this standard, as Mr. Gresley has remarked, being itself so vague, the rules in equity, for granting a new trial, are necessarily indefinite. The only general rule to be obtained from an examination of the cases, is, that whether the error complained of was the admission of improper testimony, or the rejection of that which was proper, or misdirection on the part of the judge, another trial will not be ordered, unless the court, taking the whole of the evidence to*165gether, and connecting it with the judge’s charge, thinks that injustice has been done by the error committed, and it is dissatisfied with the verdict (Head, v. Head, 1 Turn. & Russ. 141; Baxter v. Ray, 2 Russ. 63; Winchelsea v. Wanchape, Id. 446, 454; Slancy v. Wade, 7 Sim. 595 ; Northern Bridge Co. v. London & Southampton Railway Co., Id. 42; O’Connor v. Cook, 8 Ves. 532; Warden of St. Paul’s v. Morris, 9 Id. 165, 169 ; Pemberton v. Pemberton, 11 Id. 52 ; Booth v. Blundell, 19 Id. 503; Bateman v. Willoe, 1 Sch. & Lef. 201; Tatham v. Wright, 2 Rus. & Myl. 1; Apthorpe v. Thomas, 2 Paige, 482 ; Murlock v. Murlock, 1 Edw. c. 18; Paterson v. Ackerson, Id. 96; Lansing v. Russell, 13 Barb. 520; Trenton Banking Co. v. Russell, 1 Green, c. 511; Lyles v. Lyles, 1 Hills, c. 76; Gilman v. Cameron, 1 Geo. Decis. 142; Clayton v. Farrington, 33 Barb. 146 ; Forrest v. Forrest, 25 N. Y. R. 512).

Applying this rule to the present case, there is no ground for a new trial, as all that was given in evidence, by proving what Clark said to his attorney, Mr. Bangs, was substantially established and afiirmed in every material particular afterward, by the testimony of James Brooks himself, so that the evidence could have had no injurious effect upon the result, or operated in any way prejudicially to the defendants. This is even the rule in courts of law, in which a new trial will not be granted, if facts are clearly proved by competent testimony, and the jury have found in accordance with them, though in a certain stage of the case improper evidence may have been admitted, establishing or tending to prove the same facts (Mayor v. Wittberger, Geo. Dec. Part 11, 20; Primee v. Shephard, 9 Pick. 176; Thompson v. Lathrop, Id. 336 ; Emmon v. Lord, 6 Shep. 351; Hutchinson v. Moody, Id. 393; Bunting v. Allen, 3 Harr. 299: Steelman v. Steelman, 1 Id. 66; Barrington v. Nesbitt, 1 Smedes & Marsh, 22).

The plaintiff, to show that his interest was that of one-sixth, relied upon a written paper, Exhibit C, signed by James Brooks, in which it is declared that he was the owner of two-thirds of the Express, and that he would, on the 1st of January, 1856, sell to the plaintiff one-sixth of his interest in the paper, thereby reducing his own interest in it to one-half, for the sum of *166$13,333^-; $2,500 of which was to be paid upon the delivery of this memorandum, and which $2,500 James Brooks admitted that he had received. This memorandum of an agreement, thereafter to be executed, was dated the 30th of November, 1856, and would have been conclusive upon the point in dispute, but for the fact of the existence of another paper, bearing the same date, a copy of which the plaintiff served with his complaint, which was signed by James Brooks, and which transfers to the plaintiff one-sixth part of James Brooks’ interest in the paper, which is declared by it to be two-thirds of the whole.

It lay with the plaintiff to account for the conflict between these two instruments, by one of which one-sixth of the whole was to be, and, by the other, one-sixth of two-thirds was transferred, both being of the same date. The plaintiff testified, that after making up the account in January, 1860, he told James Brooks that he wanted something more than the first memorandum, and suggested that thele should be a formal bill of sale, and that he would give Brooks a chattel mortgage, securing him for the balance which was due him, and to which Brooks assented. That accordingly he went to his lawyer, Mr. Bangs, to get a mortgage and a legal bill of sale from James Brooks drawn, to be executed in place of what he regarded as an informal memorandum. That he gave Bangs the memorandum, Exhibit O, and instructed him as to what he wanted ; that Bangs drew a paper, as the plaintiff supposed, in accordance with the memorandum, and with the instructions that had been given. That Bangs gave him the paper and he gave it to Brooks, and told him it was the bill of sale that Bangs had drawn, and asked him to examine it; that Brooks returned it to him in a few days, and that he kept it in his desk for three years, not being able to get it executed. That, at the end of that time, having paid up the residue of the purchase money, he desired to have a formal article of copartnership executed, which was agreed to by the defendants, and that in December, 1862, he went to another lawyer, Mr. Lawton, and employed him to draw the articles, at the same time giving him the paper which Bangs had prepared without examining it, and requested him to make a copy of it, that it might be ex*167ecuted. That he received the draft of the articles of copartnership, and the copy of the bill of sale, and on the 30th of January, 1863, the articles were signed by himself and James and Erastus Brooks, and the bill of sale was executed by James Brooks and witnessed by Erastus Brooks. This bill of sale, Exhibit A, is the one already referred to as transferring only one-sixth of two-thirds. It was shown to have been copied by Lawton’s clerk, from another paper, but the clerk could not say from whom he had received the original paper. The articles of copartnership which took effect from their date, the 1st of January, 1863, declare that the plaintiff and James and Erastus Brooks are the owners of the Express ; James Brooks of the one-half, Erastus of one-sixth, and the plaintiff of one-sixth; and that as such owners and proprietors they had therefore published the Express under the name of J. & E. Brooks, and that they had for the purpose of continuing the paper and carrying on the business establishment thereof, agreed to become copartners under the name of J. & E. Brooks & Co. The plaintiff also testified that the paper prepared by Bangs, the original of Exhibit A, was destroyed by him, together with an unexecuted mortgage prepared by Bangs, upon clearing out the papers from his desk, some -time between the execution of the articles of copartnership and the commencement of this suit, that is, between the 30th of January and the 1st of July, 1863. That he destroyed them with other papers supposing them to be of no further use; and that he never discovered that Exhibit A was different from Exhibit C, until his attention was called to it, after the commencement of this suit. That he supposed the mortgage was the same as Exhibit A, upon the supposition, that if Bangs made a mistake in the one, he continued it in the other.

The plaintiff then called Bangs. He- remembered the plaintiff calling upon him, but could recollect only one interview. He was asked what transpired, to which the defendant objected ; the objection was overruled and the defendants excepted. The witness then stated that the plaintiff brought him a paper, and was about to state what occurred between the plaintiff and himself, when the defendants objected ; the objec*168tion was overruled, and the defendants excepted. Bangs then testified that the plaintiff exhibited to him the paper as containing the terms of arrangement for the purchase, by him, of an interest in the Express. That he could only state the substance of the instructions he had received. That they were substantially that the paper brought by the plaintiff had been in existence for some time, and that nothing had been executed to carry it out; that the plaintiff wanted a paper executed to carry out the one shown by him to the witness, and that his instructions were to draw such a paper. That Clark said something about the property of the Express consisting of subscription lists, type, &c., and that they agreed that the larger part of the property of a newspaper establishment was somewhat indefinite. This was the whole of the evidence of what the plaintiff said to Bangs, and for the admission of which,' the defendants ask to have a new trial. Bangs further said upon the direct that he drew a paper for the plaintiff, but he had no recollection of delivering it to any one, although he had no doubt that he did. That he recollected that the paper shown to him by the plaintiff was a blue one and a short one, but he did not remember its contents, but this latter evidence, even if it had been excepted to, was admissible, the question being, how these two conflicting papers, of the same date, came to be executed.

The witness was cross-examined by the defendants, and the result of it was this: that he tried to he a careful man in drawing papers, but he had made mistakes. Would not say that he had in this instance, for he did not know. It was always a rule with him to read a paper to a party after it was drafted, to see if it expressed what the party meant, but he had a doubt whether he had read the paper he prepared in this instance to the plaintiff, as,he had no recollection of delivering it. He had not the slightest recollection of the details of it. Exhibit C he did not recognize, nor Exhibit A, but he may have seen it. He then read both papers, and said that he had drafted a paper like Exhibit A. That, as nearly as he could recollect, the paper he drew corresponded in substance with Exhibit A. That he prepared a paper, which, according to his *169recollection of its contents, corresponded substantially with Exhibit A. That it was his impression that the paper which the plaintiff showed him was not left with him ; that his recollection was, that he became acquainted with its contents, and then drafted the paper which he drew.

The substance, then, of this witness’s testimony was, that the plaintiff had brought a paper to him, of the details of which he had not the slightest recollection, and that he drew a paper from it for the plaintiff, the contents of which to the best of his recollection, corresponded with Exhibit A. So far, therefore, as his general testimony went, it was as favorable for the defendants as for the plaintiff. x

James Brooks testified, that about the time referred to by Bangs, a paper corresponding with Exhibit A, was brought to him, together with a chattel mortgage, by the plaintiff. That he told the plaintiff that there was no use in his giving a chattel mortgage, that they could get along amicably; that he, the plaintiff, was paying the purchase money, and would pay it in due time, and that he would have his conveyance in legal time. That they were trusting each other, and that he, Brooks, did not see any necessity for drawing pap'ers in a legal form because they could get along as partners, so that the fact of the preparation and existence of these papers was established also by the testimony of Brooks. He also proved that the paper under which they were doing business, when the interview occurred with Bangs, had been in existence for some time, and that nothing had been executed to carry it out until January, 1862. He said it was signed by him in January, 1856. That it was a memorandum of the arrangement made in these words : “ I will sell and deliver to Clark one-sixth of my two-thirds interest, giving him the assets for his share.” That it was the proposition contained in Exhibit A; so that, for all that appears from this portion of the testimony of Bangs, this may as well have been the paper which the plaintiff brought to Bangs, and to which he referred as Exhibit C. Bangs did not swear that the paper brought to him was Exhibit C, for he had not the slightest recollection of its contents; nor did this inadmissible testimony in any way *170tend to prove it to be so ; nor did it in any way conflict with, or contradict, the testimony of Brooks. It could, therefore, in no way have operated to the prejudice of the defendants. What was said about the property of the Express, consisting of subscription lists, types, &c., and of the indefinite character of such property, was entirely immaterial, and had no bearing upon any question involved in the case.

Two facts in the testimony of Bangs, one of which was admissible, even if it had been excepted to, and the other of which was brought out by the defendants upon the cross-examination of the witness, may have had an influence upon the jury. He testified that the paper brought to him was of a blue color, in this respect corresponding with Exhibit C ; and that it was his impression that the paper was not left with him ; that he became acquainted with its contents,’ and then drew the paper which was the original of Exhibit A. The jury may possibly, from this circumstance, have inferred that Bangs, not having Exhibit C before him, and remembering that the interest of James Brooks was two-thirds, and that the sale was to be made by him, may, by mistake, have drawn the bill of sale and the mortgage for one-sixth of two-thirds only. These two facts, I say, may, in connection with other testimony in the case, have led the jury to that conclusion; but every other part of Bangs’ testimony was as favorable to the defendants as to the plaintiff, or if it had any tendency either way, it was toward producing the impression that the paper brought to him stated the plaintiff’s interest to be as it was expressed in the original of Exhibit A.

This will suffice to show that the reception of this testimony had no injurious effect upon the defendants. The same general remark may be applied to the other exceptions. They are too numerous to go over in detail, and I will advert only to those which are contained in the appellants’ points. The questions put to Bangs (fols. 515, 517), as to what he would have done in the cases suggested, were inadmissible, as calling for the opinions and conjecture of the witness. The issues to be tried were framed by the questions. Any pertinent evidence was admissible under them, and upon the trial of them the court *171had nothing to do with amending the pleadings. Exhibit 0 was admissible as doenmentary evidence directly bearing upon a fact involved in the issues. The manner in which Clark’s interest was to be paid for was immaterial; the question being what his interest was. The exception (at fol. 1195) referred to in the defendants’ points, was taken by the plaintiff. The witness afterward testified fully as to the conditions which were inquired about by the question put at fol. 710 ; and the same remark applies to the next question, fol. 711. The question at fol. 1079 was unnecessary and immaterial, as Exhibit 1 showed where the profits of the first six months came from, by deducting the expenses during that period from the next, and they were specifically stated in figures in the exhibit. There was conflicting evidence upon the question, whether the plaintiff used the character and credit of the newspaper in private trade and business. The plaintiff testified that he did not write the money article referred to by General Dix, and he denied that he ever made the statements sworn to by Coekroft, Lawrence, Cohen, &c. It was, therefore, for the jury to judge of the question of relative credibility, and their finding upon the point is conclusive. And upon the other branch of the question, there was no evidence sufficiently certain to warrant a finding that the partnership was deprived of any of the skill, industry, time, and attention of the plaintiff by his speculating in stocks. The appellants’ points state that some of the exceptions to the charge of the court were well taken. They are not pointed out; and I find none, in my judgment, were well taken. This embraces a review of all the exceptions relied upon or stated in the defendants’ points. And I will now add, that I heard the evidence in this case; that, since the argument, I have read the whole of it carefully over, and collated and compared different parts of it, and my conclusion is, that the weight of the testimony is in favor of the verdict.

Beady, J., concurred.

—I have read the voluminous case in this matter very many times, but in the view I take of it, it will not *172be necessary for me to allude, to any considerable extent, to the testimony.

It is a singular case in many respects. The main point in dispute was, whether the plaintiff was the owner of one-sixth of the whole or of but one-sixth of two-thirds of the newspaper called the Express. Attached to the plaintiff’s complaint were two papers, inconsistent with each other, by one of which the smaller interest was conveyed to the plaintiff, and by the other of which it was recited that he was entitled to the larger. Upon the part of the plaintiff it was claimed that, by a paper -dated the 30th day of November, 1855, it was agreed that there should be sold to him one-sixth of the whole concern; and that the instrument of the same date conveying to him but one-sixth of two-thirds was designed to fulfill that agreement, and was accidentally erroneously drawn. The defendants insisted that the writing agreeing to sell to Mr. Clark one-sixth of the whole property, was but one of three propositions, all drafted in the form of agreements to sell, signed by Mr. James Brooks, and left with Mr. Clark for consideration, and that that proposition was rejected by Mr. Clark, and one of the others, by which he was to have one-sixth of two-thirds, precisely as specified in the conveyance of November 30, 1855, was accepted by him. The inconsistency exhibited at the start of the case by the conflict between the two papers appended to the complaint, continued throughout it in almost every stage, including the trial of the issues, upon which the two highly reputable gentlemen, plaintiff and defendant, who ‘are the principal actors in the suit, flatly contradicted each other in almost every material and' leading point. Mr. Brook’s evidence, that he had such confidence in Mr. Clark that he signed almost any thing that the latter presented to him without reading it, and the theory that, having no taste for accounts (which is sustained by Mr. Clark’s oath that when all the partners met at Mr. Brook’s house in Fifth avenue he went asleep over them), he did not comprehend or acquiesce in those which Mr. Clark says Mr. Brooks received during the partnership, are not more improbable nor more open to remark than the statement of Mr. Clark, that he received from Mr. Bangs a paper which conveyed to him *173but one-sixth of two-thirds of property, when he designed and had instructed the.lawyer to make it a bill of sale of one-sixth of the whole; that he read it and kept it in his possession for years, and yet never detected that it varied in that important point from the real agreement and intention, until after the commencement of this litigation. But I do not intend to go through the case to specify the contradictions, or to consider which of the theories of these gentlemen strikes my mind as the more probable, or consistent with the circumstances and the evidence generally.

It will readily be perceived that the conflict was great and irreconcilable, and that, from the nature of the question, any evidence which would corroborate the theory or testimony of the one side, would be likely to be important and effective in deciding the issue against the other; and if any such has been improperly allowed, even conceding that the doctrine of Forrest v. Forrest, which is nothing but a reaffirmation of the old rule in chancery, is to be applicable to all equity trials, it seems to me to be impossible to say that, when the question was one of credibility, the erroneous admission of testimony calculated to sustain one side, has not “ produced injustice in the general result” to the other. Applying that test— whether the erroneous testimony produced injustice in the general result to the defendants in the case before us—I think a new trial should be allowed, because of the ruling upon the objection to the evidence of Mr. Bangs as to statements made to him by Mr. Clark, the plaintiff, in the absence of the defendants. It was mere hearsay, and I see no principle upon which it should have been received. It is to be observed also, that Mr. Clark, when on the stand, testified about his going to Mr. Bangs, and about the bill of sale being drawn by the latter; but he was not examined as to what he said to Mr. Bangs, when the defendants could have cross-examined him upon its truthfulness; yet Mr. Bangs was permitted, under exception, to tell the substance of what Mr. Clark said to him. I think this, tending as it did to sustain and corroborate Mr. Clark’s version, or at least his recollection, in an essential particular, may easily, on a nice question of credibility, have *174turned the jury against the defendants, and that for that reason, especially as the verdict necessarily seriously reflects upon the witness whose evidence must have been disregarded, we ought not critically to review the testimony to see whether the finding of the jury is not so consistent with many circumstances as to require us to pronounce it satisfactory; but seeing that the evidence erroneously received may have influenced the jury to believe Mr. Clark, and to discredit Mr. Brooks, and recognizing that a question of credibility is essentially one proper to be submitted to “ men accustomed to examine facts in the light in which people generally view them, rather than in the close method of judges and lawyers,” we ought to say that the error may have “ done injury ” to the defendants, and may “ have produced injustice in the general result ” (Forrest v. Forrest, 25 N. Y. at p. 512); and that, therefore, the verdict should be set aside, and a new trial ordered.

Order denying motion for a new trial affirmed.*

Subsequently, in the same case, pending an appeal to the Court of Appeals from the foregoing decision, the defendants applied to the Court, at special term, for an order staying all proceedings upon the judgment until such appeal could be heard and determined.

The motion was denied, and the defendants appealed.

Daly, F. J. The undertaking required by section 334 of the Code would not stay proceedings, for the reason that the cases provided for in section 342 are cases in which a judgment is appealed from; and it has consequently been held that that section- does not apply to. an appeal from an order granting or refusing anew trial (McMahon v. Allen, 22 How. 193; Valton v. The National Loan Fund Life Assurcmce Society, 19 Id. 513; Tiers v. Carnahan, 3 Abb. 69).

*175The rule laid down in Tompkins v. Hyatt, 19 N. Y. 534; Hollister Bank of Buffalo v. Vail, 15 Id.; Swartwout v. Curtis, 4 Id. 415, that there must be a final judgment before an appeal can be taken to the Court of Appeals, does not, in my opinion, apply where the appeal is from an order granting or refusing a new trial. The amendments of the eleventh section of the Code in 1857, and 1862, allow an appeal in such a-case, with no other limitation or restriction than that which is imposed in the case of an appeal from an order granting a new trial. The three cases above cited were not appeals from an order either granting or refusing a new trial; and, as I under*stand the decision of the Court of Appeals, it was simply, that that court will not review a judgment until it is actually entered, and is in all respects final in its character, which is something very different from hearing an appeal from an order granting or refusing a new trial.

It was held by the Court of Appeals (in Lansing v. Russell, 2 N. Y. 563), that the granting or refusing a new trial, in an equity case, where certain issues were directed to be tried by a jury, was a matter resting entirely in the discretion of the court below, and that no appeal would lie to the Court of Appeals in such a case. The merits of the controversy had not been disposed of when the appeal in this case was brought; and Chief Justice Bronson, in delivering the opinion of the court, said that whether the order refusing the new trial could be considered after there had been a decree upon the merits of the controversy, was a point that need not at that time be settled.

The Court of Appeals did, in an appeal after final judgment, review an order refusing a new trial in an equity case (in Forrest v. Forrest, 25 N. Y. 501), in which case they affirmed the judgment; but express authority is given to that court, upon an appeal from a judgment to review any intermediate order involving the merits, and this was such an order. All the judges in that case concurred in the opinion that where a trial by jury had been ordered in an equity case, it was to be reviewed not as upon a strict bill of exceptions, but upon the principles on which a court of equity examined the trial of a feigned issue, awarded for the information of its own conscience.

*176Justice Wright, by whom the opinion of the court was delivered, declared that the application for a new trial was in the discretion of the equity judge; that it was not material whether evidence was improperly admitted or rejected; and that a court of equity was not bound to award a new trial unless the errors were so substantial as to lead to the conclusion that the trial had been an unfair one, or that injustice had been done; which was the rule upon which this court acted in refusing a new trial in the present case. Justice Wright, however, remarked further, that the discretion with which an equity court was clothed was not an arbitrary one, and that if the error committed plainly led to injurious and unjust effects, of which the defendant has a right to complain, and there was reasonable doubt of the justice of the result, a retrial of the issues should be ordered. This, I apprehend, applies where a coürt of equity-gives judgment in accordance with the finding of the jury, regarding it as satisfactory, and treating it as conclusive upon the questions at issue; but, as was said by Chief Justice Bronson (in Lansing v. Russell, supra), and as had been held in other cases, the court may decree in accordance with the verdict, or it may disregard the finding of the jury, and decree the other way; that, in short, as Chief Justice Bronson said, “ the jury and the verdict are things which the court may use or let alone as it sees good; ” and the use which the court has made of the verdict does not come under review until an appeal is taken from its judgment.

In the present question the jury passed upon the real question at issue upon the pleadings, and the court has made a decree upon the merits, in accordance with their finding, so that it is an open question whether the defendant must wait until they appeal from the judgment before they can have a review in the Court of Appeals of the order refusing a new trial, or whether they can review it under the appeal allowed by the amendment of 1862. If it is reviewable only as an order involving the merits, upon an appeal after final judgment is entered, then the judgment may be practically carried into effect and executed before such an appeal can be brought. It is possible, therefore, that the Court of Appeals may conclude *177that they can review the decision of the general term refusing to grant a new trial upon an appeal from the order, irrespective of the judgment, and as that is at least possible, the question is, whether we should stay all proceedings until the order can be reviewed by the Court of Appeals.

If nothing further were involved than the review oí our order, and if the plaintiff could be secured against all the consequences of the delay, we should not hesitate to grant the application. If the suit involved nothing more than the recovery of a certain sum of money, a stay might be granted upon giving security for its ultimate payment. But the difficulty in the present case is, that the appeal, if it should be entertained by the Court of Appeals, cannot be heard, in its regular order, short of two or three years, and there is no means, at least none that occurs to Judge Brady or myself, with whom I have consulted, as the application was made in the first instance to him, by which the plaintiff could be secured from the consequences, if the property should in the mean time depreciate. It is a species of property, a proprietorship in a daily newspaper, which may be affected by a great variety of causes, for the pecuniary value of a newspaper depends upon its popularity and the amount of patronage it receives. The proportional part of the joint interest to which the plaintiff is entitled has been determined by the verdict of the jury, and by the decree which the court has made in accordance with it; but the value of the joint interest is not known, and cannot be known until the property has been disposed of by a public sale, and what the plaintiff will be entitled to will be his proportional part of the proceeds after the property has been sold. If it should diminish in value, his share will be proportionally diminished, and in property of this nature such a possibility is a matter which cannot be overlooked.

It has been settled by a course of judicial decisions that if, in an action for the dissolution of a copartnership, the parties cannot agree as to the value of their pecuniary interest, the only mode of determining it is by a sale of the whole of the partnership property at public auction, and this must take place sooner or later in this case, for the only point in dispute is the *178extent of the plaintiff’s interest. It was held by Justice Hoffman, in Dayton v. Wilkes (17 How. Pr. 510), that the full protection of the property in a newspaper requires that the receiver should be empowered to carry it on until sufficient time is allowed to dispose of it advantageously; and Chancellor Walworth held in Martin v. Yam, Schaick (4 Paige, 480), that a court of equity will not take upon itself the responsibility of continuing the publication of a political newspaper by a receiver any longer than is absolutely necessary to prevent a sacrifice of the property; that if a receiver is appointed, he must proceed and sell the establishment without delay; that in the mean time the business must be carried on by him as usual, so that the good will of it may be secured to the purchaser, and the full value of it realized by the partner, on the sale.

We have gone much further than this by continuing the publication of the paper through the instrumentality of a receiver, during the litigation of this court, a period now of nearly three years and a half, and the reasons must be very grave ones which would warrant us in staying the sale now that the plaintiff has obtained a decree in his favor, the defendants having failed to establish any of the defenses which they had interposed. We refused a new trial, on the very ground upon which the Court of Appeals say (in Forrest v. Forrest, supra) a court of equity ought to refuse it, giving to the case a most careful consideration, and setting forth, in an elaborate opinion, the authorities and the reasons which, in the judgment of the majority of the court, were conclusive upon the.point. We do not presume upon the infallibility of our own judgment. It is our duty to afford every reasonable facility to enable the defendants to review our judgment in a higher tribunal, when we can do so without prejudice to the rights of the other party; but no security which the defendants can offer, in the shape of the ordinary written undertaking, would guard against the result to the plaintiff of a diminution in the pecuniary value of the paper, during the long period which must elapse, before the appeal from the order refusing a new trial can be heard in the Court of Appeals. If we should stay the sale until the appeal is disposed of, the value of the plaintiff’s interest would depend *179upon the value of the paper then, and we have no right by an arbitrary exercise of power to subject him to the chances of such a contingency. It is admitted in the pleadings that the plaintiff was a partner, and that the partnership was dissolved in the mode prescribed by the articles ; and such being the fact, he is entitled, upon the authority of adjudged cases, to have the joint property sold at the earliest period that it can be done advantageously, whatever may be the subsequent adjudication of the court upon the distribution of the proceeds.

We can see no way in which the plaintiff can be protected against the possibility of a diminution in the value of the property, unless the defendant should agree that his valuation of his interest upon the trial should be deducted from the proceeds, in the event of the orders of the general term being affirmed, and should be guaranteed by the giving of proper security. We do not impose any such condition, or say that the defendants ought to agree 'to it. All that we do say is, that we should not be justified in staying the sale any longer, unless the plaintiff can be secured in some way against the possibility of a diminution in the value of his interest; and unless something of this kind can be suggested, a motion for a stay must be denied.

In the views above expressed, Judge Beady concurs.