
    Max Freedman and Louis Halpern, Appellants, v. Hyman Sirota , and Others, Respondents.
    Second Department,
    December, 1905.
    Tr.ial -— error to dismiss complaint on merits "when no evidence taken — findings — error to make findings without taking evidence.
    When in a suit in equity the court has refused topllow an amendment to' the complaint or grant an adjournment, and on its own motion has dismissed the complaint without taking evidence, it is error thereafter to make findings of fact and law and allow j udgment, dismissing the complaint on the-merits.. The proper judgment is nonsuit and the plaintiff is entitled T;o have such record corrected. '
    Appeal by the plaintiffs, Max Freedman •;and another, from a portion of an order ’ of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the-county of Kings on the 10th day of July, 1905.
    
      David Steckler, for the appellants.
    
      Adolph Kiendl,for the respondents.
   Hirschberg, P. J.:

The action is for the specific performance of a contract, to sell real estate. ■ When the. case was called for trial the plaintiffs stated that they desired to amend the complaint by alleging depreciation in the value of the property, and to demand an adjudication establishing a vendee’s lien for the amount paid or deposited by them or on their behalf under the contract. The application to amend was denied. A long colloquy ensued betw'een court and counsel during which it appeared that the plaintiffs did not wish to proceed with the trial for the purpose of compelling specific performance, in the course of which colloquy the defendants tendered the plaintiffs deeds of the property, which the plaintiffs refused to accept at that tim3. The plaintiffs asked for an adjournment, but declined to state explicitly whether they would ultimately take the title. The adjournment was refused. The plaintiffs finally asked leave to discontinue the action without costs, which was denied; and the court then, without motion, announced that the complaint is dismissed, with costs.” . No evidence was offered on either side, and no question of fact or of law involved in thé issues was submitted to the court for determination. The court made formal findings of fact and of law,- and thereon a final judgment in favor of the defendants'dismissing the complaint upon the merits was entered. A motion was thereafter made at Special Term before the justice who presided at the trial to amend the judgment, and the appeal is from so much of the order entered on the hearing of that motion as refused to convert the judgment into one of nonsuit, and to vacate and set aside the findings and decision on the merits.

It was error to render judgment pn the merits. There was nothing before the court on which .to base any findings determinative of the issues. The dismissal could only be in default of proof, and in the absence of proof on either side could not involve a judicial determination of the merits of the controversy. (Kruger v. Persons, 52 App. Div. 50, 52; citing Martin v. Cook, 14 N. Y. Supp. 329; affd., 142 N. Y. 654, arid Stokes v. Atlantic Avenue R. R. Co., 89 Hun, 2.) The proper judgment to. be entered was one of nonsuit. As was said in Deeley v. Heintz (169 N. Y. 129, 132): “ 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.”

The plaintiffs’ practice in moving to correct the record is supported by authority. (See Columbia Bank v. Gospel Tabernacle Church, 127 N. Y. 361; Simmons v. Craig, 137 id.. 550; Woodbridge v. First Na.: Bank, 166 id. :238, 244, 245.)

The order, in so far as appealed from, should he reversed and the motion to that extent granted.,

Bartlett, Woodward, Jenks and Rich, JJ., concurred.

Order, in so far as appealed from, reversed, with- tfen dollars costs and disbursements, and motion granted, with costs.  