Deeley v. Heintz

• Decision Date: 20 December 1901
• Citation: 169 N.Y. 129,62 N.E. 158
• Parties: DEELEY v. HEINTZ.
• Court: New York Court of Appeals Court of Appeals

169 N.Y. 129

62 N.E. 158

DEELEY

v.HEINTZ.

Court of Appeals of New York.

Dec. 20, 1901.

Appeal from supreme court, appellate division, First department.

Action by Maude A. Deeley against Carl Heintz. From a judgment of the appellate division (57 N. Y. Supp. 583) affirming a judgment for defendant on dismissal of the complaint, plaintiff appeals. Affirmed.

Vann, J., dissenting.

Eugene Sondheim and Leopold Sondheim, for appellant.

Henry W. Rudd and McCready Sykes, for respondent.

O'BRIEN, J.

This appeal involves simply a contention concerning the proper name which should be given to the judgment appealed from. The plaintiff avers that on the 21st day of October, 1895, the defendant, residing and doing business at the city of Cologne, in the German empire, sold and delivered to the plaintiff's assignor 130 casks of carbonate of potash, warranted to contain 80 to 85 per cent. of potash. It is then alleged that there was a breach of this warranty on the part of the defendant, in that the goods delivered did not contain the requisite percentage of potash. The answer put in issue these allegations, and the issues were tried by the court, and the complaint dismissed. The judgment entered upon this decision has been unanimously affirmed at the appellate division.

The evidence given at the trial consisted largely, if not entirely, of the written correspondence between the seller and buyer, and upon the plaintiff's construction of this correspondence there was some evidence tending to support the claim. It was not a case where it could be said that there was absolutely no evidence to support the claim of a warranty of the goods, but it was of such a character that the court was required to construe correspondence on both sides, and to determine the meaning of certain technical terms used in the trade and generally the intention of the parties. The learned counsel for the plaintiff who brings the appeal now contends, virtually, that he was nonsuited at the trial, which means, of course, that the trial court refused to weigh or to consider the testimony, or to determine the facts involved in the issue, but simply held that there was no evidence whatever to consider. We do not think that this contention is supported by the record. A nonsuit is the name of a judgment given against the plaintiff when he is unable to prove a case, or when he refuses or neglects to proceed to the trial of the cause after it has been put at issue without determining such issue. A voluntary nonsuit is an abandonment of his cause by the plaintiff, who allows a judgment for costs to be entered against him by absenting himself, or failing to answer when called upon to hear the verdict. An involuntary nonsuit takes place when the plaintiff, on being called, when his case is before the court for trial, neglects to appear, or when he has given no evidence on which a jury could find a verdict. Pratt v. Hull, 13 Johns. 334; 2 Bouv. Law Dict. (last Ed.) p. 510, ‘Nonsuit.’ The record shows very clearly that no such judgment was entered in this case. It appears that the plaintiff gave all the testimony that she had, consisting of the correspondence between the buyer and the seller, and also some proof in regard to the character and quality of the goods actually delivered, and on the subject of damages, and then rested. The defendant's counsel then moved to dismiss the complaint on the ground that the plaintiff had failed to establish any cause of action, that the theory of the complaint was a claim for damages on account of breach of warranty, and that the plaintiff had failed to establish any such breach by the proof given. This motion was granted, and the plaintiff excepted. Subsequently the trial judge made specific findings of fact and conclusions of law, in which he stated that the defendant refused to give any warranty of the character and quality of the goods such as was alleged in the complaint, and therefore the plaintiff failed to prove the cause of action alleged. He then stated, as a conclusion of law, that the defendant was entitled to judgment dismissing the complaint upon the merits, and directed judgment accordingly, and stated that the grounds upon which the decision was made are contained in the foregoing findings of fact.

It is very clear, I think, that this was not a judgment of nonsuit, but a trial of the issues, and a decision of the same upon the merits. The learned counsel, in support of the appeal, contends that inasmuch as the defendant gave no evidence, and made no statement that he rested, the judgment must aecessarily be a nonsuit. A defendant may rest his case upon the plaintiff's proofs, and, when the plaintiff proves a case for the defendant, he may take the benefit of such proof without saying anything. It may be, and it was probably true, that the defendant had no proof to give, and it was not necessary to say to the court that he rested, when he had not yet begun. It has been held by this court that when a defendant moves for a nonsuit, and says nothing more, it amounts to a submission by him to the court of any question of fact involved in the case. Trimble v. Railroad Co., 162 N. Y. 84, 56 N. E. 532,48 L. R. A. 115. If this be so, then it is perfectly safe to say that in this case, when the defendant moved to dismiss the complaint, and said nothing more, it amounted to a submission on his part of every question involved in the case for the determination of the court. His conduct was equivalent to a statement by him that he rested, although he had no evidence to give. The court was authorized to determine all the issues in the case, and to decide all questions of fact and law as fully as it would have been had the defendant's counsel expressed the legal effect of his action in words. The...