Raabe v. Squier

• Citation: 42 N.E. 516,148 N.Y. 81
• Parties: RAABE et al. v. SQUIER et al.
• Decision Date: 19 December 1895
• Court: New York Court of Appeals

148 N.Y. 81

42 N.E. 516

RAABE et al.

v.SQUIER et al.

Court of Appeals of New York.

Dec. 19, 1895.

Appeal from common pleas of New York city and county, general term.

Action by Henry Raabe and another against Albert C. Squier and others to establish a lien. The issues were referred to Charles A. Runk, Esq., as referee, to hear and determine. The report of the referee directed the dismissal of the complaint for insufficiency of the proof, and the judgment entered thereon was affirmed by the general term (25 N. Y. Supp. 463), and plaintiffs appeal. Reversed.

Herman Aaron, for appellants.

Ernest Hall, for respondents Jencks and Stokes.

Alex. Thain for respondents Squier & Whipple.

HAIGHT, J.

This action was brought to recover the sum of $2,800, the balance claimed to be due on contracts between the defendants Squier & Whipple and the plaintiffs, in which the plaintiffs undertook to furnish the woodwork for 10 houses which the defendants Squier & Whipple were building on West End avenue, in the city of New York, which were owned by the defendants Jencks and Stokes. The complaint alleges that the defendants Jencks and Stokes ‘promised and agreed with the plaintiffs to be answerable to the said plaintiffs for the payments to be made under the contracts aforesaid, and guarantied the payments therein mentioned, in consideration of the plaintiffs fulfilling and completing the contracts aforesaid, and promised and agreed to pay the plaintiffs for all the work, labor, and services and material furnished under the aforesaid contracts, if the said Squier & Whipple would not pay.’ The complaint also alleged the filing of a mechanic's lien by the plaintiffs, and concluded by demanding judgment for the foreclosure thereof, and also a judgment against the defendants Squier & Whipple for the balance due under their contracts,and against the defendants Jencks and Stokes for such balance under their promise to pay in case of the default of Squier & Whipple. The case was tried before a referee, who, at the conclusion of the plaintiffs' testimony, on motion of the defendants, dismissed the plaintiffs' complaint, to which ruling the plaintiffs took an exception. Fifteen days thereafter the referee made and filed a report, on which the judgment appealed from was entered.

It is contended on behalf of the defendants that there is no question which the plaintiffs can have reviewed; that, the plaintiffs having neglected to make requests to find facts, it is now the duty of the court to assume that there was sufficient evidence to sustain the judgment. But the plaintiffs may take exceptions to the findings as made, and, if there is not any evidence tending to sustain them, they may be regarded as rulings upon questions of law. Code Civ. Proc. § 993. The plaintiffs have not only taken exceptions to the findings of fact and conclusions of law, but, as we have seen, have also taken an exception to the order of the referee dismissing their complaint.

It is also contended that the report of the referee contained negative findings of fact; that such findings are unauthorized, and should be treated as a nullity; and that exceptions taken to such findings are of no avail upon review. If the report is to be treated as a nullity, there is nothing upon which the judgment can stand, for there must be a report. Code Civ. Proc. § 1022. If there be no report, the party aggrieved may be relieved under section 1010 of the Code. Gilman v. Prentice, 132 N. Y. 488, 491,30 N. E. 981. The action of the referee was, in effect, a nonsuit, and we think the exceptions taken present questions for review. In Place v. Hayward, 117 N. Y. 487, 23 N. E. 25, the trial was before a referee. At the close of the plaintiff's evidence the defendant, without announcing that he rested his case, moved that the complaint be dismissed. The referee granted the motion, and the plaintiff excepted. Thereafter the referee made his report, containing findings of fact, and a conclusion of law, that the complaint should be dismissed. The practice adopted in that case was the same as that which we now have under review. In that case Judge Earl, in delivering the opinion of the court, said: ‘What the referee did was to nonsuit the plaintiff. We can give no other significance to the proceeding. Therefore, he should have made no findings of fact except such as would justify a nonsuit upon the trial. Under the Code, the referee was required to make findings of fact and of law after granting the nonsuit, but he had no right to make any findings of fact depending upon disputed or inconclusive evidence. Therefore, to maintain this judgment, the defendant is bound to show that there was no disputed question of fact which, upon a jury trial, the court would have been required to submit to the jury, and that upon the undisputed evidence he was entitled to judgment;’ citing Scofield v. Hernandez, 47 N. Y. 313. In Forbes v. Chichester, 125 N. Y. 769, 26 N. E. 914, the same practice was adopted on the trial. The judgment was reversed in this court, upon the exception taken to the dismissal of the complaint, upon the ground that the trial court erred in holding as matter of law that upon the evidence adduced the plaintiff failed to establish a cause of action. The case of Wood v. Lary, 124 N. Y. 83, 26 N. E. 338, is not in conflict with the cases above referred to. In that case the referee had filed no report whatever, and it was then held that section 1010 of the Code afforded the plaintiff ample protection.

In so far as the action was...