Ware v. Passos

• Citation: 56 N.E. 742,162 N.Y. 281
• Parties: WARE v. DOS PASSOS et al.
• Decision Date: 27 March 1900
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 281

56 N.E. 742

WARE

v.DOS PASSOS et al.

Court of Appeals of New York.

March 27, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by William R. Ware against Benjamin F. Dos Passos and others. From a judgment of the appellate division affirming a judgment of nonsuit, plaintiff appeals. Reversed.

Robert Weil and Arnold Charles Weil, for appellant.

Samuel G. Adams, for respondents.

HAIGHT, J.

This action was brought to recover a broker's commissions claimed to have been earned by the plaintiff in procuring a purchaser of the defendants' real estate on Fulton street, in the city of New York. Upon the first trial of this action a judgment was rendered in favor of the plaintiff, but it was reversed by the appellate division, and a new trial ordered. 38 N. Y. Supp. 673. Upon the new trial the complaint was dismissed, and a judgment entered in favor of the defendants, which has been unanimously affirmed by the appellate division. 42 N. Y. Supp. 1135. If the trial court found the facts established by the evidence in favor of the defendants, and upon such findings, dismissed the complaint upon the merits, no review, under the constitution, could be had in this court. If, however, as the appellant contends, the trial resulted in a nonsuit, the appellant is entitled to succeed upon this appeal if there was some evidence supporting his cause of action. Scofield v. Hernadez, 47 N. Y. 313;Place v. Hayward, 117 N. Y. 487, 23 N. E. 25. Upon referring to the record, we find that the trial took place before a judge without a jury upon the stipulation that the evidence should be the same as that taken upon the former trial, and read from the printed case on appeal; and, if the court found for the plaintiff, it should award to him $1,012.50, that being 1 per cent. on the purchase price, and the usual broker's commissions, with interest from March 11, 1893. Following the stipulation is a motion by defendants' attorney to dismiss the complaint on the ground that the plaintiff had failed to make out a cause of action. The motion was granted, and an exception was taken by the plaintiff. This appears to be the entire record of the trial upon which the judgment in this case was entered. There is no verdict of a jury, report of a referee, or decision of a court upon which a judgment could be entered. A decision of a court upon the trial of an issue of fact or of law must be in writing, signed by the trial judge, and must state separately the facts found and the conclusions of law, or must state concisely the grounds upon which the issues have been decided, and direct the judgment to be entered thereon. The decision must be filed with the clerk, and made a part of the judgment roll. Code Civ. Proc. §§ 1010, 1022; Wood v. Lary, 124 N. Y. 83, 26 N. E. 338;Gilman v. Prentice, 132 N. Y. 488, 30 N. E. 981;Raabe v. Squier, 148 N. Y. 81, 84,42 N. E. 516;MacNaughton v. Osgood, 114 N. Y. 574, 21 N. E. 1044. It is therefore apparent that no judgment upon the merits is before us for review. In case of a nonsuit no findings of fact are required (Code Civ. Proc. § 1021), and, in view of the condition of the record and the admission of counsel upon the argument, we think we must, under the circumstances, treat the judgment as...