
    Henry Raabe et al., App’lts, v. Albert C. Squier et al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed October 2, 1893.)
    
    1. Appeal—Absence op findings.
    Where the complaint has been dismissed for failure of proof and the record contains no finding of facts essential to a recovery, and no exception to a refusal by the referee to find as requested by the plaintiff, no such request having been made, no error for which the judgment should be reversed is presented.
    2. Same—Findings.
    Findings negativing the existence of facts claimed are no findings at all,, and exceptions thereto are unavailing. The findings of fact which are-comprehended by § 1022 of the Code refer to an affirmation of the facts, upon which the demand for relief is founded, and not to a negation thereof.
    Appeal from the judgment of a referee which directed the dismissal of the complaint for insufficiency of the proof.
    Action by sub-contractors and material men against contractors and alleged owners to establish a lien claimed pursuant to the provisions of the Mechanics’ Lien Law (Laws 1885, ch. 842) 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 app’lts; Ernest Hall, for resp’ts Stokes and Jencks ; Alex. Thain, for resp’ts 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;, 42 St. Rep., 644; and as the record is destitute of any exception to a refusal by che 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; 35 St. Rep., 53; Burnap v. Natl. Bank of Potsdam, 96 N. Y., 125 ; West v. Van Tuyl, 2 Silv. Ct. App., 501; 28 St. Rep., 549. Mor will the appellate court reverse the judgment merely because, if a request to find had been made, it would have been error to have refused it. Lyons v. Cahill, 18 St. Rep., 375 ; Hugg v. Shank, 1 Silv. Sup. Ct., 153; 23 St. Rep., 312.

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 St. Rep., 557. The party to an action against whom relief is sought is not required to establish the non-existence 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 fact which are comprehended by § 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 §§ 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 submitted.

The judgment should be affirmed, with costs.

Pryor, J.

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., 672; 42 St. Rep., 644, because no finding is wholly without evidence, Halpin v. Ins. Co., 118 N. Y., 165; 28 St. Rep., 788, and because there was no refusal of a request to find. Code, § 993.

N either 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 St. Rep., 312; Bishop on Code Practice, etc., 395; 2 Bumsey’s Practice, 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, with costs.  