mandamus, reversed, and motion demurrer is sustained, and the comfor mandamus denied. Opinion by Miller, J. All concur, except Earl and Finch, JJ., dissenting. JUDGMENT. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. William H. Robinson, applt., v. Nathaniel Hall, impld., respt. Decided Jan., 1885. No final judgment can be entered upon a dec'sion of the Special Term sustaining a demurrer to one of the causes of action set forth in the complaint, and dismissing the complaint as to that cause of action with costs to the defendant, and directing judgment to be entered accordingly, while the issues of law raised by the other grounds of demurrer remain undetermined. The entry of a judgment for costs by defendant is, in such case, irregular; but the remedy of plaintiff is by application to the Special Term, and not by appeal. Appeal from judgment entered upon decision at Special Term, sustaining a demurrer by defendants. Defendant demurred to the complaint upon the grounds, first, that the causes of action have been improperly united; second, that the complaint in the second and third causes of action therein set forth does not state facts sufficient to constitute a cause of action. The complaint contained five separate causes of action. The issues of law raised by the demurrer were argued at Special Term, and the justice presiding held and decided "that said second cause of action contained in the complaint herein does not state facts sufficient to constitute a cause of action. The plaint must be dismissed as to said second cause of action, with costs to the defendant," and directed judgment to be entered accordingly. Upon this order defendants entered judgment dismissing the Complaint as to said second cause of action, and for $46 costs to the defendants, from which plaintiff appealed. J. M. Dunning, for applt. A. H. Harris, for respt. Held, That no final judgment could be entered while the issues of law raised by the other grounds of demurrer remained undetermined, Code, § 1021; 6 How. 113; 8 Abb., 366; 9 Hun, 633; 8 J. & S., 211, and the entry of judgment for costs by defendant was irregular ; but that the remedy of plaintiff was by application to the Court at Special Term, and not by appeal to this court. 10 N. Y., 570; 22 N. Y., 425. On such an application the Court could set aside the judgment irregularly entered, and make such order as would properly dispose of the remaining issues raised by the demurrer, and in case the demurrer should be overruled as to such issues secure to the defendant the right to answer upon such terms as should be imposed. We are aware that the General Term has entertained an appeal and reversed in similar cases, but it does not appear that the attention of the Court in those cases was called to the question here discussed. We are of the opinion that correct practice requires us to re dividend system as shall cease to be in force before the completion of their respective ten-year dividend periods shall be apportioned equitably among such policies of the same class as shall complete their ten-year dividend period. The ten-year dividend when made shall be applied to the purchase of an annuity on and to continue during the life of the party insured under this policy, and for which the company will issue an annuity bond, and the first payment of such annuity shall be due one year after the termination of the ten-year dividend period, provided that, should the party assured under Frederick Uhlman v. The New this policy request it in writing York Life Ins. Co. Decided Jan. 16, 1885. Where a life insurance policy provides for an accumulation and preservation of div idends which it had earned at the expira tion of ten years from surplus profits derived from lapsed policies, which dividends were to be apportioned equitably and applied to an annuity bond, or paid in value to the assured in cash, Held, That the relation created between the company and the insured is not fiduciary, but rests in contract, and that the insured is not entitled to an accounting; the determination of the amount of dividend being confined to the company, and only to be questioned in an action alleging nonperformance of contract obligation. Motion by defendant for a new trial at General Term under § 1001, Code Civ. Proc. Plaintiff was the holder of a life insurance policy, dated December 29, 1871, issued by the defendant, containing this clause : "All surplus or profits derived from such policies on the ten-year within thirty days from the termination of such ten-year dividend period, the company will pay the value of the bond in cash to Frederick Uhlman or assigns at the date the first payment under such annuity bond shall be due." Upon the expiration of ten years from date of policy the defendant notified plaintiff that he was entitled to an annuity bond or its value in cash, $790.77. Plaintiff therefore demanded an accounting, which was refused, and he then filed this bill praying a decree for an accounting and the issuing to him of annuity bond for the sum he might appear entitled to or payment of its value in cash. The Court be low (Van Hossen, J.), by interlocutory decree, directed an accounting before a referee. William Hornblower, for the motion. Blumenstiel & Hirsch, opposed. Held, That the relation created between the parties to this action by the insurance policy is not fiduciary, but rests in contract. Plaintiff's rights thereunder are: First, An equitable apportionment of the surplus or profits derived by the company from such policies, in plaintiff's class, as shall have lapsed during the tenyear period. Second, That the tenyear dividend may be applied by plaintiff to the purchase of an annuity, for which defendant will issue a bond, or, in certain event, pay its value in cash. The contract obligation of defendant is to equitably apportion the surplus or profits so derived, give the bond or pay the cash. The amount which became due to plaintiff is a dividend, and neither more nor less. Neither by analogy to other corporations declaring dividends, nor under any provision in the contract, is plaintiff to have aught to do with determining the gross surplus or its apportionment. The defendant's obligation under the contract respecting the declaration of a dividend at the appointed time makes the case dissimilar to those adjudications where corporations were parties not bound by like contract. But the principle applies to the amount of the dividend. Determination of amount is a duty confided to the company, and can only be questioned by plaintiff in an action alleging non-performance of contract-obligation. There are no such allegations in this bill. The defendant owes no debt to the plaintiff until after the dividend has been declared. The plaintiff, therefore, can have no right as creditor to an account, because the settling of the account and the declaration of a dividend must precede and constitute him a creditor. The position is not tenable that because a complicated account is necessary to ascertain and apportion the surplus the plaintiff is entitled to invoke the exercise of equitable jurisdiction. This could only be so if plaintiff had any right to interfere in the account. The contract gives him none by its terms or intendment, and there are neither mutual accounts, complicated dealings, nor fiduciary relationship. Judgment reversed and new trial ordered, costs to abide event. Opinion by Beach, J.; Daly, Ch. J., concurs. Larremore, J., dissenting, wrote: ***These dividends, I think, constituted a trust fund in the hands of the company for the benefit of its policy-holders, who have a right to know the facts and figures upon which such dividends were allowed. The defendant, by its answer, has raised the issue of an accounting, and so complicated in its nature that its consideration by a jury is evidently impracticable. This case is distinguishable from "Taylor v. Charter Oak Life Insurance Co., 9 Daly, 489, and like cases, in which the policies had not matured, and in which the rights of the assured were contingent." NEW TRIAL. Code, and more than four years N. Y. SUPREME COURT. GENERAL elapsed from entry of judgment TERM. FIFTH DEPT. John Fisher, respt., v. Stephen M. Corwin, applt. Decided Jan., 1885. A new trial, on the ground of newly discovered evidence, must be denied after the judgment has been affirmed on appeal. Appeal from Special Term order, denying defendant's application for to making this motion. The judgment must not be disturbed on the grounds stated. Order affirmed, with $10 costs and disbursements. Opinion by Barker, J.; Haight, Bradley and Lewis, JJ., concur. LEASE. new trial on the ground of newly- N. Y. SUPREME COURT. GENERAL discovered evidence. The issues were tried by a referee who reported in plaintiff's favor, and judgment was entered Dec. 8, 1877. Defendant appealed to General Term, which Court in October, 1881, ordered a new trial unless plaintiff stipulated to reduce the damages. Plaintiff made the required stipulation, and the judgment was accordingly affirmed. Thereupon, without delay, this motion was made at Special Term. John W. Beckley, for applt. Held, That the motion comes too late. It is not the practice to grant new trials on the ground of newlydiscovered evidence after judgment has been affirmed on appeal. Before and since the first code the practice has been not to entertain motions of this character after appeal from final judgment. current of decisions is not to entertain the motion after entry of judgment. 15 Johns., 354; 4 Hill, 125; 27 How., 358; 30 Barb., 656; 33 Id., 155; 38 N. Y., 42. The This motion is of the same class as those enumerated in § 724 of the TERM. FOURTH DEPT. iel J. Cushman, respt. John P. Vidvard, applt., v. Dan Daniel J. Cushman, respt., v. John P. Vidvard, applt. Decided Jan., 1885. A new stipulation may, by consent of the parties, be added to a contract after its execution, if such stipulation is evidenced and executed in the mode that the original contract is required to be evidenced and executed. Where the added stipulation is written in the lease by the lessor in the presence and with the assent of the lessee, it is unnecessary to re-sign the lease. Appeals from judgments, entered upon decision at Special Term, adjudging that the parties have the right to use a stairway in common. Oct. 25, 1879, V. leased of R. Bros. the premises No. 27 John St., Utica, for five years, from May 1, 1879, by a lease not under seal. Dec. 1, 1878, C. leased of R. Bros. the adjoining premises No. 29 John St., until Jan., 1881, by lease under seal. Both leases were executed in duplicate, each party retaining one. In No. 27 is the stairway in dispute, by which the upper floors in both buildings are reached, a doorway opening from the hallway on the second floor into No. 29. A controversy arose between V. and C. as to the right of the latter to use the stairway as a means of entrance to the upper floors of No. 29. The trial court found that after the execution of the leases it was P. C. J. De Angelis, for applt. Held, That in the face of this evidence and of V.'s failure to explain this Court would not be justified in reversing the finding of fact. It cannot be said that the weight of evidence is greatly in favor of V. It is difficult to see how Judge Cox, who must have written from the dictation or upon information received from V., came to write the provisions referred to if there had been no talk in respect to the stairwas then written in the duplicate provision is correctly stated in apway. Assuming that the added lease held by the lessors in the pre-pellant's brief, it certainly does not agreed between V. and his lessors, in consideration of $35 paid by the lessors to him, that the tenants of Nos. 27 and 29 should use the stair way in No. 27 in common, and that a clause expressing the agreement sence and with the assent of V. The evidence on this question was conflicting. R. and V. squarely contradicted each other. R. testified that after the alteration had been made, and before the suits were begun, V. exhibited his duplicate lease, and that the new provi sion was written therein in the handwriting of Judge Cox. V.'s duplicate was produced on the trial and showed that some provision had been interlined and erased, oc cupying the same position as the added clause in the lessors' duplicate, but its terms do not appear except as stated in appellant's brief. It there appears as follows: "The parties now occupying No. 29 John St. shall have the right to use the stairway in No. 27 for the period of one month." V. testified V. testified that when the $35 was paid, "Nothing was said about the stairway at all, sir." It does not appear that V. attempted to explain why the clause was written in the lease or why it was erased. the evidence of V. By the consent of the parties a new stipulation may be added to a contract subsequent to its execution, if the new stipulation is evidenced and executed in the mode that the original contract is required to be evidenced and executed. 9 East, 350; Whart. Ev., § 624; 1 Chit. Cont. (11 Am. Ed.) 155; Reed on Stat. of Frauds, § 454; Leake's Cont., 795. The original lease, and the lease as modified, being for terms longer than a year, were required by the Statute of Frauds to be in writing and signed by the lessors. The original lease was in writing, as was the modified lease. It is claimed that the new lease is not binding, because it was not re-signed by the lessors and re-delivered. Held, Untenable. The added stipulation was written in the lease by one of the lessors in the presence and with the assent of the lessee. |