Heinemann v. Waterbury.

That he was entitled to retain the judgment first entered in favor of the plaintiff, with all the advantages which the entry and docketing thereof and the levy made secured to him; and that if he were to enter a second judgment, or assent to such an entry, such second judgment would waive or annul the first. (Murray v. Judah, 6 Cow., 484.)

Dudley Field, for respondent,

Insisted that it was the duty of the prevailing party to file a judgment roll and enter the judgment, when entitled to a judgment in his own favor, or to see to it that it was done by the clerk, and that in any event, if the plaintiff did not do this, the defendant should be permitted to do so.

Also, that the order of the Special Term in this case is not appealable. (Union Bank v. Mott, 8 Abb., 150; Bowman v. Earle, 3 Duer, 691; Bank of Geneva v. Hotchkiss, 5 How. Pr. R., 478.)

HOFFMAN, J. The Code (§ 272) directs that the report of the Referees upon the whole issue shall stand as the decision of the Court, and judgment may be entered thereon in the same manner as if the action had been tried by the Court.

By section 267 the decision of the Court shall be given in writing, and filed with the clerk. Judgment upon the decision shall be entered accordingly.

By sections 278, 279 and 280 a judgment on the report of a Referee is to be entered in a book kept by the clerk, and called a Judgment Book. Section 281 contemplates that the clerk enters the judgment.

The report must be in writing, and must be filed like the decision of a Judge. Sands v. Church, (2 Seld., 347,) determines that there should be something to authenticate the judgmentsomething that shall place it beyond doubt what is the precise point decided, which must be the written decision of the Judge, although there was not ground enough to reverse the judgment for that omission in the particular case. In Renouil v. Harris, (2 Sandf. S. C. R., 642,) it was stated that it is the clerk's duty to enter up the judgment upon the report being filed; that the duty of the prevailing party ends when he has filed the decision and adjusted the costs. It is then the clerk's duty to enter the judgment and make up the judgment roll. The party has no

Heinemann v. Waterbury.

control, nor anything to do with it beyond seeing that all the he is bound to furnish are on file.

papers

It seems to me that the motion below, and the order appealed

from, were unnecessary.

But it is contended that the order is not appealable; that it does not affect any substantial right.

It is urged by counsel for the plaintiff that the new judgment may supersede the old one, and rob the plaintiff of the benefit of a docket, or of the levy. There cannot be two judgments.

In Miller v. The Eagle Life and Health Insurance Company, (3 E. D. Smith, 184,) it is stated that the practice in that Court had always been, where a judgment had been opened and a new trial ordered, but the judgment allowed to stand as security, to require a new judgment to be entered for the amount recovered on the second trial, without reference to the previous judgment. however, was not the case then before them.

Such,

In Pierce v. Thomas, (4 E. D. Smith, 354,) the Court say that, in relation to the claim made in the notice of appeal to reverse two judgments, it was sufficient to say that, as the first stands only as security for the second, it must fall with it.

These cases cannot be understood as implying that the new judgment could have the effect of destroying the effect of a docket upon real estate or a levy upon personal property, if either had. been obtained. This would be exactly contradicting the determination of the Court, upon the admission of the defendant to defend, that the judgment then existing should stand as a security.

On the other side, the defendant cannot be deprived of all the benefits which he can have, upon the trial and upon an appeal from the decision, of any objections to the cause of action or the adequacy of the proofs to establish it. If he fully succeed, the judgment ordered to stand as security would fall. If he partially succeed, it will be so far affected.

I think the decision in Swarthout v. Curtis, (4 Comst., 415,) may aid our determination. The decree set aside a satisfactionpiece, declared a certain instrument to be a mortgage, and adjudged a foreclosure; referred it to a County Judge to compute the amount due, and directed that, on the confirmation of the report, the premises should be sold, &c., and the plaintiff to Bosw.-VOL. V.

87

Heinemann v. Waterbury.

have execution for any balances. It was held that this decree was not appealable to the Court of Appeals, under the Code. But, after the report had been made and confirmed, it did become appealable.

In Tompkins v. Hyatt, (19 N. Y. R., 534,) this case was recognized and applied. There might be further litigation between the parties as to the amount of an allowance for use and occupation. Until that was settled, it could not be completely adjudged to whom the entire proceeds of the premises directed to be sold would belong.

The following remark of the Court is pertinent to the present case: "It is suggested by the plaintiff's counsel that, if the appeal is not sustained, the judgment of the Supreme Court may be completely executed before an opportunity will be afforded to perfect another appeal, as the Sheriff will be authorized to pay over the whole proceeds of the premises on the filing of the report, before any opportunity is afforded to contest it or to review the judgment. This, we think, is a matter for the Supreme Court to regulate. That Court would, no doubt, by order, suspend the payment of the money until an opportunity to appeal should be afforded, after the final confirmation of the report."

Some propositions seem to me clear. There can be no appeal to the General Term, under section 348 of the Code, until the judgment becomes final, by the decision of the Referee being entered as a judgment. (6 Duer, 689.) The lien, by docket or levy of the judgment by default directed to stand as security, cannot be impaired by the plaintiff himself entering up the final judgment. The Court has the power to render the docket or levy available, by directing the execution heretofore issued to be carried into effect.

But the plaintiff was under no legal duty to do that which the order directed him to do. By the 281st section, the absolute duty of making up the roll is imposed upon the clerk, which he is to do immediately after entering up the judgment. The section gives liberty, merely, to the party, or his attorney, at his option, to furnish a judgment roll, enabling him to hasten the act. His obligation only extends to the filing of such of his own papers as, in the progress of the cause, his adversary may require to be filed; which papers, (if he do not choose to furnish a judg

The Rector, &c., of The Church of the Holy Innocents v. Keech.

ment roll,) the clerk must collect in making up the roll, and annex thereto the copy of the judgment.

If, when the clerk makes up the roll, it appear that any of the pleadings or proceedings on the part of such prevailing party, which form a part of the judgment roll, have not been filed, doubtless, on the motion of the adverse party, he may be required to file them; but that was not the motion made in this action, and it is not the order appealed from. The order should be reversed, but without costs.

The Justices before whom the appeal was argued concurred in reversing the order, and in the points stated in the head-note of the decision.

Order reversed, without costs to either party.

THE RECTOR, &c., OF THE CHURCH OF THE HOLY INNOCENTS, Appellants, v. THOMAS KEECH, Respondent.

1. Where a party obtains the privilege of building a party wall, one-half on his own lot and one-half on the lot of another, and covenants that he will build such wall, but does not extend the wall so far as, by his covenant, he is bound to do, and thereupon the other party enters upon the ground and begins to extend the wall upon the land of each to the stipulated point or line, the latter will not be restrained by an injunction, at the instance of such party in default, from making the extension.

2. Even if, in such case, the party extending the wall has not obtained a strictly legal title to any of the ground of the other, or to the use thereof, still a Court of equity will not restrain him from doing what ought to be done, and what the other was bound to do for him.

3. But, where the point, or line, to which the party wall was to be extended by the party covenanting, is in dispute, and it is not clear what, in that respect, is the true construction of the covenant, and where, also, the extension of the wall, as attempted by the other, will require the cutting away of a stone stoop or portico and do permanent injury to the building of the former, the Court will interpose by injunction, pendente lite, and restrain the extension until the right can be ascertained and settled by the aid of such extrinsic facts as may be properly proved to aid in determining the true meaning and effect of the covenant.

(Before HOFFMAN, WOODRUFF, PIERREPONT, and MONCRIEF, J. J.)

Heard, April 21; decided, April 28, 1860..

The Rector, &c., of the Church of the Holy Innocents v. Keech.

THIS action is brought for the purpose of restraining the defendant from removing a portion of the stone stoop or portico of the plaintiffs' building on the southerly side of Thirty-seventh street, and from extending the westerly party wall thereof, northerly, in part on the plaintiffs' ground, to the southerly line of the

street.

The complaint shows that the defendant, being owner of the adjoining lot, is about to do the acts thus specified and has actually begun to dig away the earth for that purpose. It also shows an agreement between the plaintiffs and the defendant, by which, the plaintiffs being about to erect a building on their lot, it was agreed that "so much of the westerly wall of said building as is hereinafter mentioned shall stand one-half on the land of each of the parties;" and the instrument described such part of the wall, and gave the privilege of placing it one-half on the defendant's land, thus: "it shall and may be lawful for the parties of the second part to erect one-half of the westerly wall of the said building, from the front wall thereof to the front wall of the building now standing on the rear of the said lot of the party of the first part, being sixty-six feet five inches in length upon the lot of the party of the first part, and the same so to continue forever as and for a party wall." The plaintiffs covenanted forthwith to erect the said wall, and that the defendant should have the privilege of using it upon the payment of one-half the value of so much as he shall use.

The front of the building erected by the plaintiffs had near its centre a projecting bay window, nine feet in length on a foundation wall eighteen inches in thickness, the front of which was on the line of the street; but the front wall on each side of the window retreated from the street line two feet eight inches, so that at the northwest corner, where it reached the defendant's lot, it was two feet eight inches from the street line, and the party wall built by the plaintiffs began at that front wall at the northwest corner and ran southerly, (six inches on the land of each party.) to the defendant's rear building. At this northwest corner the plaintiffs erected a stone stoop or portico extending westerly to the division line between the two lots.

The defendant claimed that the party wall should have been extended northerly to the street line, and the plaintiffs neglecting to