
    Daniel M. Griffen and Sarah E. Griffen, Executors, etc., of Joseph C. Griffen, Deceased, Appellants, v. Mechanics and Traders’ Bank, Respondent.
    
      Monsuit—when it will be set aside—what is a decision on the merits.
    
    Upon a trial before a referee the plaintiffs called as witnesses the only persons, who were in any way related to the transaction or were familiar with the facts, and the defendant, upon the cross-examination of such witnesses, brought out the facts which it deemed necessary to establish its defense. At the close of the evidence the plaintiffs formally rested and the defendant made a motion to dismiss the complaint upon the ground that the plaintiffs had failed to show facts constituting a cause of action. The referee then said: “ That motion will be decided when I go over the motion and decide the case. If on all this proof I think he has made out his. case, I shall deny the motion and decide in his favor. T don’t Know of anything else but that question involved here, whether, the plaintiff has made out his case. That is the question on all his testimony.’ The plaintiffs’ counsel then stated his theory of the case, and the defendant, without formally resting, made a motion to dismiss the complaint upon the merits upon the following grounds: Mirst, that the evidence failed to establish a cause of action; second, that the evidence affirmatively established that the plaintiff had no good cause of action against the defendant; third, that the evidence clearly establishes the following facts, etc.
    The matter, without objection on the part of the plaintiffs, was then left in the hands of the referee, who subsequently filed a short decision dismissing the complaint upon the merits, to which the plaintiffs filed an exception.
    
      Held, that the plaintiffs could not be heard to assert that the referee’s decision was in effect a nonsuit and not a determination of the case upon the merits.
    
      Senible, that if it were a nonsuit, the plaintiffs would be entitled to‘a reversal of the judgment entered upon the decision, if there was any evidence in the case sufficient to support.a finding of a jury in favor of the plaintiffs.
    Appeal by the plaintiffs, Daniel M. Grillen and Sarah E. Griffen, executors, etc., of Joseph O. Grillen, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office; of the clerk of the county of Westchester on the 20th day of November, 1900, upon the report of a referee dismissing the complaint upom the merits.
    
      William G. CooTce, for the appellants.
    
      Isaac N. Mills [Gha/rles Strauss with him on the brief], for the respondent.
   Woodward, J.:

The plaintiffs in this action are the executor and executrix of Joseph O. Grillen, deceased, who claim that the defendant, a New York State banking institution, has converted to its own use certain, bonds left in its custody and which were the property of the plaintiffs. The issues joined by the pleadings were sent to' a referee to hear, try and determine, resulting in the dismissal of the complaint upon the merits. As the entire theory of the appellants is based upon the proposition that the action of the referee in dismissing the complaint constituted a nonsuit rather than a determination of the merits of the case, and that, as there was some evidence in support of the plaintiffs’ contention, it was error to make this disposal of the controversy, it is only necessary to examine this phase of the question. If the dismissal of the complaint was in fact a nonsuit, there can be no doubt that under the well-established rule prevailing in this State the plaintiffs are entitled to a reversal of the judgment if there is any evidence in the case sufficient to support a finding of a jury in favor of the plaintiffs. '(Place v. Hayward, 117 N. Y. 487, and authorities cited.) It is important to understand, then, just what took place upon the trial. The plaintiffs called six witnesses, who appear to -have been the only persons who were in any way related to the transaction, or who were familiar with the facts; and the •defendant, on cross-examination of plaintiffs’ witnesses, brought out .the facts necessary to establish the defense urged. It may be conceded for the purposes of this appeal that the hostile witnesses necessarily called by the plaintiffs became, in fact, the witnesses of the defendant upon the cross-examination, and that the testimony as to '¡the matters outside of.the direct examination is not conclusive upon the former, so that there may be said to have been a conflict of evidence between Fernando Baltes and the documentary and other evidence submitted by the plaintiffs. But this cannot help the latter in the view that we take of the case. The.evidence covers over fifty-six pages of the record, involving direct examinations, cross-examinations, redirect and recross-examinations, so that it was apparent to counsel on both sides that all the material facts were in the possession of the witnesses called by the plaintiffs. At the close of this evidence the plaintiffs formally rested, and Hr. Strauss, in behalf of the defendant, moved to dismiss the- complaint upon the ground that the plaintiffs had failed to show facts constituting a cause of action, adding: “ I would like you to hear argument on the motion.” The referee said : “ That motion will be decided when I go over the motion and decide the case. If on all this proof I think he has made out his case, I shall deny the motion and decide in his favor.' I don’t know of anything else but that question involved here, whether the plaintiff has made out his case. That is the question on all his testimony.” Hr. Oooke, in behalf of the plaintiffs, said: “ Hy claim is that the bank took the bonds and hypothecated them to raise money for the bank, which the bank- had. That’s what I claim. I don’t care a straw about the bailment. I won’t speak of it, and I don’t want counsel to take up their time or take up the time of the Court, or my time in talking about it.” Judge Hills, in behalf of the defendant, then said: “ I would like to restate the motion to dismiss. The defendant moves, to dismiss the complaint upon the merits upon the following grounds: first, that the evidence fails to establish a cause of action; second, that the evidence affirmatively establishes that the plaintiff has no cause of action against the defendant; third, that the evidence clearly establishes the following facts; ” etc.

It is true that the defendant did not formally rest its case, but it is difficult to understand how there could be any mistake as to the' understanding of the parties. All of the available witnesses had been sworn ; the merits of the case had been fully developed; the referee had announced that he would hold his decision of the motion to dismiss until he decided the base, without any suggestion on the part of either party that the motion should be decided as of the time it was made, and plaintiffs’ attorney had announced to the court, in somewhat informal language, it is true, the only claim upon which it is pretended that the plaintiffs have a right to recover. With matters in this situation defendant’s counsel restated the motion to dismiss, involving the determination of questions of fact, and without any objection on the part of the plaintiffs, the matter was left in the hands of the referee, who subsequently filed a short decision under the provisions of section 1022 of the Code of Civil Procedure, dismissing the complaint upon the merits. To this decision the plaintiffs filed an exception, thus bringing before this court, on review, all questions of law and fact involved in the controversy.

It is difficult to distinguish this case from that of- Neuberger v. Keim (134 N. Y. 35, 39) where, after the plaintiffs rested, the counsel for the defendants moved to dismiss the complaint on the ground that the plaintiffs had failed to prove facts sufficient to constitute a cause of action. The court replied: “£ I will not dismiss the complaint, but I say, upon the evidence as it now stands, I would not feel justified in finding that this conveyance in question was made with the intention of defrauding creditors.’ ” Both parties prepared findings and submitted them to the court. The complaint was dismissed upon the merits. The court,, commenting upon this state of facts, say: “ It appears to us that, under these circumstances, the case must be deemed to have been submitted to the court in such a way as to permit it to weigh the evidence, draw the legitimate inferences therefrom and determine the facts. * * * We do not regard it as necessary that a court charged with the duty of deciding the facts should be required to continue its sittings and take the evidence that the defendant may be able to produce when its mind is satisfied upon the close of the plaintiff’s case that, under the facts disclosed, the plaintiff ought not to recover.”

In the case at bar all of the evidence was before the referee; his attention had been called to the claim of the plaintiffs, and it can hardly be doubted that both parties to the litigation understood that the case was submitted to the determination' of the referee. Can the plaintiffs now be heard to assert that because the defendant did not, in form, rest its case, the decision which was based upon the facts disclosed by the evidence was, in effect, a ■ mere nonsuit and not a determination of the case upon the merits % “ It seems to me,” says Martin, J., in Bliven v. Robinson (152 N. Y. 333, 338), that to so hold would be carrying the doctrine of the case of Place v. Hayward .altogether too far.”

This whole question has recently been under review in the Court of Appeals in the case of Woodbridge v. First Nat. Bomk (166 N. Y. 238, 244), where, after reviewing the authorities, the court say: <£ The decision herein is in the- short ’ form. To this decision the ■plaintiff took a general exception. Under the authorities above cited this was not enough. If the plaintiff desired to have defendant’s motion to dismiss the complaint treated as a motion for a non-suit, and to have the decision of the court made in conformity with the motion, a- proper correction of the record should have been sought. The failure to do this, coupled with the filing of the general exception to the decision upon the merits, constitutes such a waiver of the alleged error as to preclude plaintiff from raising the question upon appeal.” We are of opinion that this case, in connection with the authorities cited, is decisive of the point on which the appellant relies in the case at bar, and that the dismissal of the com-' plaint upon the merits was within the scope of the referee’s duty.

It is conceded by the appellant that there was a conflict of evidence in respect to the material question raised before the referee, and we are cléárly of the opinion that the evidence is sufficient to sujiport the decision reached. The material issue was whether the defendant bank received the money which had been borrowed upon the collateral in the hands of Mr. Baltes, and while it was shown that the check by which the money was transferred was made payable to the order of the bank, it was in evidence that the endorsement upon the back of this check was such as would appear there in the natural course of business ; and Hr. Baltes testified positively that no part of the proceeds of the check went to the bank, but that it was used by himself to make good a prior loan which he had personally negotiated upon the same securities, which securities he had taken from the box belonging to the plaintiffs. If the referee believed this testimony, there was an end of the case, and we are satisfied that the plaintiffs failed to establish the fact that the money went to the benefit of the defendant, and that the case was properly disposed of upon the merits.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  