Dean v. Marshall , 97 N.Y. Sup. Ct. 335 ( 1895 )

O’BRIEN, J.

The question is, what is the meaning of the term “final judgment,” as used in the stipulation? The Code of Civil Procedure provides for two forms of judgment, one interlocutory and one final; but, as the action in the superior court was to recover a sum of money, in which no interlocutory judgment could be entered, it is evident that the term “final judgment” was not used in the stipulation to distinguish it from such interlocutory judgment. The term is susceptible of two other significations,—one, which, in a strict legal sense, is its true meaning, viz. a determination of the rights of the parties after a trial, whether siich is the subject of review or, not; and the other, its colloquial use or signification, which makes it synonymous with “decisive,” or a judgment that cannot be appealed from, and which is perfectly conclusive upon the matter adjudicated. In Kinney’s Law Dictionary and Glossary (page 318) a final judgment is defined as:

“A judgment which puts an end to an action by declaring that the plaintiff either has or has not entitled himself to recover a judgment from which there is no appeal.”

In Abbott’s Law Dictionary (volume 1, p. 497), where quotations from cases are given, showing the two meanings of the term, it is said, in speaking of “final adjudication, decree, judgment, order, or sentence”:

“These expressions may, indeed, signify a judicial decision which is superior to review; one which conclusively determines the questions involved.”

And in Black’s Law Dictionary (page 493) it is thus defined:

“A judgment which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for. 3 Bl. Comm. 398. So distinguished from interlocutory judgments, which merely establish the right of the plaintiff to recover, in general terms. Id. 397. A judgment which determines a particular cause. A judgment which cannot be appealed from, which is perfectly conclusive upon the matter adjudicated. 24 Pick. 300. A judgment which terminates all litigation on the same right. The term ‘final judgment’ in the Judiciary Act of 1789, § 25, includes both species of judgments as just defined. 2 Pet. 494; 1 Kent, Comm. 316; 6 How. 201, 209. A judgment is final and conclusive between the parties when rendered on a verdict on the merits, not only as to the facts actually litigated and decided, but also as to all facts necessarily involved in the issue.”

See, also, 1 Bouv. Law Dict. p. 677.

The question is, in which of these senses was the term used in the stipulation? Does it mean the judgment entered after the trial of the superior court action, or a judgment finally settling- the rights of the parties to that action beyond all appeal? From a reading of the stipulation itself, we think the meaning and intent of the parties clear. It will be noticed that in the clause numbered second it is provided that, should plaintiffs be defeated in the first trial of the action on its merits, then defendants should have the election to pay the judgment, and have possession of the brandy; if the latter should not so elect, then the goods were to be sold on joint account, and the proceeds deposited, “to await the final determination of the action”; and this language is followed by the clause in dispute, which provides what is to happen in the event that the “final judgment” shall be more or less than $1,750. When we recall that express provision was made as to what was to happen in the event of the first trial going against the plaintiffs on the merits, it is made apparent that the term “final judgment,” as subsequently used, is synonymous with the expression “final determination of the action,” employed in the preceding clause. If this latter term were the one in dispute, we should have little difficulty in reaching the conclusion that by it was meant the final settling of the rights of the parties to the action beyond all appeal. We think the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.