
    Raabe et al. v. Squier et al.
    (New York Common Pleas—General Term,
    October, 1893.)
    In an action by material men against their contractors and the owner, to foreclose a mechanic’s lien, every material allegation of the complaint was controverted by the answers of the several defendants. Plaintiffs rested after the introduction of their direct evidence, and on motion, the complaint was dismissed for insufficiency of proof. The referee’s report omitted the finding of every fact alleged in the complaint and. essential to plaintiff's recovery against all or any of the defendants. Held, that exceptions to the referee's conclusions of law were unavailing.
    
      Held, also, that as plaintiff made and submitted no requests to find, there was no error calling for a reversal of the judgment.
    A party to an action against whom relief is sought is not required to establish the nonexistence of the alleged facts of which the claim for relief is predicated ; if the alleged facts are neither found or established by evidence, relief should be denied.
    Some of the defendants were sought to be held both as owners and as guarantors of the defendant contractors, and the facts required in addition to those of which the liability of the contractors was predicated in order to justify a recovery against them were expressly negatived by the referee under so-called findings of fact, to which plaintiffs filed exceptions. Held, that, assuming the alleged findings to have been proper as such, the error was immaterial, in the absence of facts required to show the contractors’ liability as principals.
    No liability having been shown on the part of the contractors, no right of recovery was shown against the owners and guarantors, and the so-called findings were no findings at all, and exceptions thereto unavailing.
    ■ Appeal from the judgment of a referee which directed the dismissal of the complaint for insufficiency of the proof.
    Action by subcontractors and material men against contractors and alleged owners to establish a lien claimed pursuant to the provisions of the Mechanics’ Lien Law (Laws 1885, chap. 342), which was discharged by the order of the court upon the filing of a bond, as by the same statute in such cases also provided, and to recover personal judgment against the contractors and against the owners as alleged guarantors.
    
      Alfred Taylor, for plaintiffs (appellants).
    
      Ernest Hall, for defendants (respondents) Stokes and Jencks.
    
      Alex. Thain, for defendants (respondents) Squier and Whipple.
   Bischoff, J.

Every material allegation of the complaint having been controverted by the several answers of all the defendants, it devolved upon plaintiffs to establish them by sufficient evidence. This they attempted to do, but having-rested after the introduction of direct evidence, the referee, on motion of counsel for all the defendants, dismissed the complaint for insufficiency of the proof. The referee’s report omits the finding of every fact alleged in the complaint and essential to plaintiffs’ recovery against all or any of the defendants. Exceptions to the conclusions of law are, therefore, unavailing (Daniels v. Smith, 3 Silv. Ct. App. 672); and as the record is destitute of any exception to a refusal by the referee to find as requested on plaintiffs’ behalf, no such requests having in fact been submitted, there can be no error apparent for which the. judgment appealed from should be reversed. Wood v. Lary, 124 N. Y. 83; Burnap v. Nat. Bank of Potsdam, 96 id. 125 ; West v. Van Tuyl, 2 Silv. Ct. App. 501. Nor will the appellate court reverse the judgment merely because, if a request to find has been made, it would have been error to have refused it. Lyons v. Cahill, 18 N. Y. St. Repr. 375; Hugg v. Shank, 1 Silv. Sup. Ct. 153.

Defendants Stokes and Jencks were sought to be held in the double capacity of alleged owners and guarantors, and the facts required in addition to those of which the liability of the other defendants was predicated to authorize plaintiffs’ recovery against the first-mentioned defendants, are expressly negatived by the referee’s report under so-called findings of fact to which plaintiffs have filed exceptions. If we assume these alleged findings to be proper as such, but contrary to the evidence, the error is wholly immaterial in the absence of the facts required to show Squier and Whipple’s liability as contractors and principals. As a matter of course if there are no facts justifying the conclusion that Squier and Whipple are liable as contractors and principals, no right of recovery against Stokes and Jencks as owners and guarantors is shown. But these so-called findings are plainly no findings at all and the exceptions thereto are equally unavailing. Patterson v. Graves, 11 How. Pr. 91; Matter of Fithian, 25 N. Y. St. Repr. 557. The party to an action against whom relief is sought is not required to establish the nonexistence of the alleged facts of which the claim .for relief is predicated. If the alleged facts are not found, or have not been established by the evidence, it follows as the only proper and inevitable conclusion of law that the claim for relief should be denied. Hence the findings of facts which are comprehended by section 1022 of the Code of Civil Procedure refer to an affirmation of the facts upon which the demand for relief is founded, and not to a negation thereof. This is conclusively apparent from sections 992 and 993, which are to the effect that a finding without any evidence tending to sustain it is reviewable, if duly excepted to, as a ruling upon a question of law. It requires no argument to demonstrate that these last-mentioned provisions cannot apply to a mere negation of the facts essential to recovery.

We find no merit in the exceptions taken to rulings on the trial. In every instance the testimony excluded was subsequently admitted.

The judgment should be affirmed, with costs.

Pryor, J. (concurring).

Upon the record, no error of law or of fact in the decision of the referee is presented for review.

No question of law is raised, because the legal conclusions are justified by the findings (Daniels v. Smith, 3 Silv. Ct. App. 612), because no finding is wholly without evidence (Halpin v. Ins. Co., 118 N. Y. 165), and because there was no refusal of a request to find. Code, § 993.

Neither is any question of fact before us, because the appellants made no request for a finding. Hugg v. Shank, 1 Silv. Sup. Ct. 153; 23 N. Y. St: Repr. 312; Bishop Code Pr. 395; 2 Rumsey’s Pr. 334. Facts not found, and as to which no finding was requested, may not be considered for the purpose of reversing a judgment. Burnap v. Bank, 96 N. Y. 126; Thomson v. Bank, 82 id. 1.

Judgment affirmed.  