
    John S. Wise and Henry A. Wise, Respondents, v. Pauline Cohen, Appellant, Impleaded with Adolph Cohen and Others, Defendants.
    (No. 1.)
    First Department,
    June 15; 1906.
    Practice — decision, of court required when cause tried without a jury— case on appeal from order refusing to sign decision, when sufficient. .
    In cases tried without a jury, whether in equity or at law, there must be a. decision signed by the court directing the judgment to, be entered. Such a decision, signed and filed by the trial judge, is the basis for the judgment and a necessary prerequisite to the entry thereof. .
    
      On an appeal from an order denying a motion to. vacate a judgment in an equity action, which was entered without a decision by the trial justice, only questions of practice are involved, and there is no justification for printing all the evidence. A mere statement of the facts by affidavit is sufficient.
    Laughhn, J., dissented, as to refusal to allow costs..
    Appeal by the defendant, Pauline Cohen, from an order of the Supreme Court, made at the New York' Special Term and entered in the office of the clerk of the county of New York on . the 19th ’ day of April, 1906, denying the .said defendant’s motion to vacate what purports to be a judgment in this action and remitting the case to the trial justice.
    
      Edward W. S. Johnston, for the appellant.
    
      Evan Shelby, for the respondents.
   Ingraham,, J.:

This action is in equity to enforce an attorney’s lien upon a cause of action which has been settled between the parties without his consent. The case was tried at Special Term," At the opening Of the case the defendant’s counsel moved to dismiss the complaint upon the,ground that it did not state facts sufficient to constitute "a cause of action. The court announced that it reserved its decision upon this motion, whereupon witnesses were called for the plaintiff ■ and were examined and cross-examined., The plaintiff then rested and the defendant then renewed his motion to dismiss the complaint on various grounds and the decision- of this motion was also reserved, whereupon the' defendant called his witnesses and their, testimony was taken and’ the; defendant rested. Counsel for the'defendant then renewed his motion to dismiss the- complaint on- the' various . grounds stated. The court again reserved it¡s decision but gave . counsel an opportunity to submit briefs. These briefs having been submitted the .court filed an opinion overruling some of the objections made by the defendant, but held that as'there was no proof of the solvency or insolvency of the client the attorneys must look -> to her for tlie'ir compensation,, and that defendants were" entitled to judgment on the ground that no proof was presented as to the responsibility of the plaintiffs’ client to" respond in an action' at law, whereupon the defendants presented to the court what they called a decision.wliicii consisted of twenty-six pages of printed record and a proposed judgment. The court refused to sign this decision or judgment, but subsequently- signed what purported to be a judg-' ment which' recited that the action came on for trial at a Special. Term of the Supreme Court, and the defendants having moved at the close of the evidence for a dismissal of the complaint on the ground that the plaintiffs failed to establish a cause of action, and due deliberation-having-been had thereon, it was ordered, adjudged and decreed that-the complaint.be dismissed without prejudice for failure of proof, with directions as to the costs of the action. This judgment having been signed, counsel for the defendant made, a motion at Special Term that the case be sent back to the trial justice to sign and file a decision and judgment in the trial of the action. This motion seems to . have been referred to the trial justice, who denied it, and from that order the defendant appeals. I think the defendants are entitled to have the trial court sign and tile a decision in the action. The action was in equity, and the complaint asked for specific equitable relief.

Section 10Í0 of the Code of Civil Procedure provides that upon a trial by the court, of an issue, of fact or of law, its decision in writing must be filed in the clerk’s office within twenty days after the final adjournment of the term where the issue was tried. Section 1021 provides that the decision of the court or the report of a referee upon the trial of a demurrer, or upon the trial of issues of fact or of law, where a nonsuit is granted, must direct the final or interlocutory judgment to be entered thereupon, and in such a case it shall not be necessary for the court or referee to make any finding of fact.

Section 1022 provides that the decision of the court or the report of a referee, upon the trial Of the whole issues of fact, must state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, which1 decision so filed shall form part of the judgment roll. Judgments are regulated by. chapter 11 of the Code.

Section 1236 of the Code provides that every interlocutory judgment or final judgment shall be signed by the clerk and filed in his office, and such signing and filing shall constitute the entry,of the judgment. These provisions have been in force many years, and are entirely • consistent and 'easily understood. Upon the final judgment in an action tried.by a court without a jury or by a referee, the decision of ¡-the .court is the basis of the judgment to be entered. That decision must be In writing ánd signed by the judge and filed with the clerk, and must direct the final or interlocutory judgment to be entered thereon. The judgment entered thereon must -be signed by the clerk and filed in his office, and such signing atid filing is an entry of judgment. Where the issue is one of law or where a nonsuit 'is granted,'the facts need not be found" separately, blit there must be -a decision which must, direct tile final or interlocutory judgment to be entered thereon." The provisions, in relation to nonsuit can, 'strictly speaking, apply only to actions at law. Where in an action in .equity for lack of proof or want of equity the complaint is: dismissed, it may be upon the merits, or it may.be because the plaintiff has failed to prove a particular fact, which is fatal to his right to :a judgment,- and a final judgment dismissing the complaint .does riot prevent a new action unless it expressly declares, or it appears by ' the judgment roll that it is rendered upon the merits. (Code Civ. Proc. •§ 1209.) The. cases cited by respondents are all actions at law. ' ' • -

In Weeks v. Van Mess (104 App. Div. 7) the action was: for damages resulting from the abuse of legal process, and, therefore," an action at law.

Martin v. Cook (14 N. Y. Supp. 329) was an action to recover damages: for injuries sustained by the plaintiff in the employ of the defendant. Ware v. Dos Passos (162 N. Y. 281) was an action át law to recover a broker’s conmiissions in securing a purchaser of the - defendant’s real estate. The action was tried before a court without a jufy upon the stipulation that the evidence should be the same as that taken on a former trial- and iie'ad from- the,printed case on appeal." Following the stipulation there was a motion by the defendant’s counsel to dismiss .the complaint on tlie ground that the plaintiff had'failed to make out a cause of action. The motion'was granted, and an exception ■ taken by the plaintiff. The plaintiff appealed from that decision, and' the court" in reversing the judgment said: 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 coiirt 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. * * ■* The decision must be filed with the clerk and made a part of the judgment roll,” The court then treated the judgment as entered upon a nonsuit and reversed the judgment. Deeley v. Heintz (169 N. Y. 129) was also an action at law for damages on a breach of warranty for the sale and delivery of personal property." In the discussion'of the question there presented the court said : A nonsuit is the name of a judgment given against the plaintiff when lie 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 coiild find a verdict. * * * The record shows very clearly that no such judgment was entered in this cáse.. It appears that the plaintiff gave all the testimony, that she had. * * * 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 it was held that this was not a judgment of nonsuit, but a trial of .the issues and a decision of the saíne upon the merits.

It has, however, been universally held that* in cases tried by the court without a jury, whether in equity or at law, there must be a decision of the court which must direct the judgment to be entered (Sommer v. Sommer, 87 App. Div. 434 ; Lentschner v. Lentschner, 80 id. 43 ; Gein v. Little, 86 id. 503 ; Lederer v. Lederer, 108 id. 228); such a decision is.the only basis for a judgment. With the form of the decision or the judgment to be entered thereon we have nothing to do upon this appeal; all that is necessary for us now to determine is that no judgment can be entered until a decision is filed, and for that reason the trial judge should have made and filed a decision as provided for by sections 1021 and 1022-of'the Code of Civil Procedure. The record on this appeal to present this question consists of 267 printed pages and the appellant’s brief consists of 52 printed pages. There was no justification in presenting this question, which is merely one of practice, as to requiring the papers on appeal to contain all of the evidence taken before the trial judge, including all of the exhibits on which he heard the case., A mere statement of the facts by affidavit would have been sufficient, and the respondent should not be compelled to pay the cost of printing this absolutely unnecessary record,

The order appealed from should be reversed, with ten dollars costs and disbursements for printing the points on appeal, and the case remitted to the Special Term to be decided according to law.

O’Brien, P. J., Patterson and Clarke, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting) :

- I dissent in so far as costs and disbursements are not allowed to the appellant.

Order reversed, with ten dollars costs and the disbursements for printing the points on appeal, and case remitted to Special Term to be decided according to law. Order filed.  