Ross v. Caywood

• Decision Date: 13 March 1900
• Citation: 56 N.E. 629,162 N.Y. 259
• Parties: ROSS v. CAYWOOD et al.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 259

56 N.E. 629

ROSS

v.CAYWOOD et al.

Court of Appeals of New York.

March 13, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by Lewis P. Ross against Chauncey C. Caywood and another, impleaded. From a judgment of the appellate division (58 N. Y. Supp. 1148) reversing a judgment in favor of defendants, and rendering a final judgment for plaintiff, defendants appeal. Reversed.

Landon, J., dissenting.

David B. Hill, for appellants.

David Hays, for respondent.

VANN, J.

This was a creditors' action brought to set aside a transfer of personal property from the judgment debtor to the appellants, and the substantial issue was a question of fraud. After hearing witnesses on both sides, the special term filed a decision in two sentences, the first of which stated the nature of the action, and the second was in these words: ‘The defendants, Caywood and Donovan, are entitled to judgment dismissing the complaint, but without costs.’ Without filing any exception to this decision, the plaintiff appealed from the judgment entered thereon to the appellate division, which not only reversed said judgment ‘upon questions of fact and of law,’ but directed final judgment for the plaintiff, setting aside the transfer as fraudulent, requiring the defendants to account for the property covered thereby, appointing a referee to ascertain and report the value thereof, and authorizing the plaintiff upon the coming in of the report to apply at special term for further judgment. An interlocutory judgment was entered accordingly, and when the report of the referee came in the special term confirmed the same, and thereupon final judgment was entered. The defendants appealed to this court from the final judgment, and gave notice of their intention to also review the interlocutory judgment, and the order of the special term confirming the report of the referee.

The appellate division, upon reversing a judgment of the trial court where there was an issue of fact, cannot render final judgment in favor of the appellant, but must grant a new trial, unless the facts are conceded, or are established by written instruments, or are found in full by the trial judge, or the evidence is not only undisputed, but diverse inferences cannot be drawn therefrom, and it is manifest that no evidence can be produced which will entitle the respondent to recover. Heller v. Cohen, 154 N. Y. 299, 305,48 N. E. 527;Benedict v. Arnoux, 154 N. Y. 715, 724,49 N. E. 326;Snyder v. Seaman, 157 N. Y. 449, 453,52 N. E. 658;New v. Village of New Rochelle, 158 N. Y. 41, 52 N. E. 647. There was a question of fact in this case, which did not depend upon documentary evidence, but on conflicting oral testimony. The facts were not found by the trial court, and it is obvious that further evidence relating to the question of fraud might be produced upon a new trial. The judgment of the appellate division, therefore, must in any event be so modified as to strike out the part which granted affirmative relief; and unless that court had power to review the decision of the trial justice, although it was not excepted to, its judgment must be wholly reversed, and that of the special term affirmed, for the exceptions taken during the progress of the trial are not entitled to serious consideration.

The decision of the trial justice did not ‘state separately the facts found and the conclusions of law,’ nor did it state ‘concisely the grounds upon which the issues' were ‘decided,’ as permitted by section 1022 of the Code of Civil Procedure. Neither the facts nor the grounds of the decision are stated, but merely the nature of the action and the direction for judgment. The judgment entered simply dismissed the complaint, without stating that it was rendered upon the merits, and, as it does not prevent a new action for the relief demanded, is in the nature of a nonsuit. Code Civ. Proc. § 1209. The decision seems to be that authorized by section 1021, which states that ‘the decision of the court, or the report of a referee, upon the trial of a demurrer, or upon the trial of the issues of fact or law, where a nonsuit is granted, must direct the final or interlocutory judgment to be entered thereupon, and in any such case it shall not be necessary for the court or referee to make findings of fact.’ Although the action was tried upon the merits, witnesses were called on either side, both parties rested, and the trial court reserved its decision and wrote an opinion, still the form of the decision and the judgment entered thereon indicate that the...