#### Warren Delano, Jr., Plaintiff, *v.*Isaac L. Rice, Defendant.

(Supreme Court, New York Special Term,

February, 1899.)

Judgment — Final judgment cannot be entered in an action at law after a trial of only a part of the issues at Special Term.

There can be but one final judgment in an action and where, in a legal action, an equitable issue raised by a counterclaim is ordered to be first tried at Special Term, the prevailing party cannot properly, while the legal issues remain untried, enter a final judgment upon the Special Term decision; and the same, if entered, will be vacated as irregular.

Motion at Special Term by the defendant for an order vacating and setting aside the judgment herein in favor of the plaintiff, dismissing the defendant’s counterclaim, entered in the clerk’s office of the county of New York on the 7th day of February, 1899. The facts of the case are stated in the opinion.

Nathan Bijur, for motion.

Horace E. Deming, opposed.

Beekman, J.

The cause of action set out in the complaint and put in issue by the defendant’s answer is a common-law one, and the issues thus raised must, therefore, be tried before a jury. The de>fendant, however, has also pleaded a counterclaim of an equitable nature, to which the plaintiff has replied, thus presenting an issue triable at Special Term. By an order of this court the issues thus raised upon the counterclaim were ordered to be separately tried, and to that end to be placed on the Special Term calendar. When they were reached for trial, the defendant declined to piit in any proof, and having thus virtually abandoned his counterclaim, the trial justice made and filed a written decision dismissing it, and directing judgment accordingly in favor' of the plaintiff, with costs and an additional allowance. Upon this the plaintiff has caused a final judgment to be entered pursuant to the decision, and adjudging that the plaintiff recover of the defendant the sum of $782.58 for the costs as taxed and the additional allowance. The issues of fact raised by the complaint and answer are now on the Trial Term calendar awaiting their ultimate disposition by a jury.

*503The counsel for the defendant now moves to vacate the judgment which has been entered, on the ground that it is irregular and improper inasmuch as it is claimed and purports to be a final judgment, whereas there can be but one final judgment in an action, which can only be entered after all the issues between the parties have been disposed of. I think the point is well taken, and that the judgment in question should be vacated.

The theory of the counsel for the plaintiff seems to be that the order of the court directing a separate trial of the Special Term issues operated as a sort of severance of the counterclaim from the original action, turning what was formerly one action into two, each with all the attributes of a separate existence; so that when the remaining issues are tried, all subsequent proceedings will be had as though no counterclaim had been interposed, and a further final judgment will be necessary upon the verdict rendered on such trial. But the general and time-honored rule is that there can be but one final judgment in an action (2 Bumsey’s Practice, 565), and while by express statutory authority an action may be severed in certain cases, and, therefore, separate judgments entered (where, for instance, the defendants are severally liable for the same debt), the general rule which I have stated remains otherwise unimpaired. Certainly no express statutory authority can be found for the entry of final judgment such as has been attempted here.

The sections of the Code of Civil Procedure under which the order for a separate trial of the counterclaim was made (§§ 967 and 974) do not provide for any disruption of the action, but only for an orderly trial of the issues in the action as their nature may require. The action continues single, although the processes by which a final result is reached may be different, and being single, it must terminate in oye final determination of the rights of the parties upon all of the issues, which is the final judgment.

It is unnecessary to comment upon the various inconveniences and difficulties which would arise if the theory upon which the judgment in question is based should be sustained. They will readily suggest themselves upon a little reflection. So far as authority is concerned, it is, I think, adverse to the plaintiff’s contention. In the case of Bucking v. Hauselt, 9 Hun, 633, the point was directly involved in the decision which held that such a judgment as that under consideration was irregular and should be set aside, on the ground that a final judgment cannot be entered *“*while a portion of the material issues remain undetermined.” It is contended, how*504ever, that this decision was rendered when the old Code was in force, and that the present Oode of Civil Procedure has since expanded the power of the court with respect to the matter under consideration. I have examined both Codes, in so far as they bear upon the subject, but fail to find any such variation between them as to impair the value of the case cited as an authority.

Reference has been made to the case of Post v. Moran, 10 Daly, 502, as being adverse to the views I have expressed. Without entering upon a discussion of the opinion in that case, it is enough to say that all that was said upon the subject germane to this motion was entirely *obiter*and in no way necessary to the decision of the case.

When the remaining issues in this action are disposed of, the plaintiff will then be in a position to secure a final judgment, which will express a complete adjustment of the rights of the parties upon the basis of both trials. He cannot do so earlier. The practice adopted by the defendant in moving to vacate the judgment was regular.

The motion is accordingly granted, with $10 costs.

Motion granted, with $10 costs.