
    Horace B. Claflin et al., Resp’ts, v. James C. Dubois, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    Judgment—Hot based upon pacts—Revebsal.
    Where a judgment was based, not upon the deliberate action of the tribunal before which the cause was tried, but upon the assumed decision of another tribunal which had made no disposition of the facts, other than to direct their proper investigation, Meld, that the judgment should be reversed, and a new trial ordered.
    Appeal from a judgment on trial at a circuit without a jury.
    
      Marston Niles, for app’lt; S. F. Kneeland, for resp’ts.
   Brady, J.

—This case has been twice disposed of. ■ On the first trial the learned judge presiding on a motion made for that purpose directed a verdict for the defendant on the ground that there was no evidence on which a verdict for the plaintiff could be sustained. The plaintiff appealed, and we held it our duty to reverse the judgment for the reason that there was sufficient evidence to require the submission of the questions in issue to the jury for their consideration and determination, and that there must, therefore, be a new trial. This was had before the same justice who presided at the first trial and without a jury.

The record presents these facts, viz.: that although findings are made in favor of the plaintiff, they are so made, not on consideration of the evidence, but in defense to the - judgment of this general term already mentioned.

It was assumed that the general term had passed upon the chief element against the defendant, which is the utter falsity of the representations which were made by him prior to his purchase from the plaintiff. The learned judge says: “I think there should be judgment for the plaintiffs as on the findings of the general term, the test they rely on is the only evidence on that subject. My own view of the case has not changed, but I am controlled by that decision.”

This is an entire misconception of the judgment and ■opinion of the general term. That tribunal found no fact passed upon, no question of fact in any form, but declared merely that the evidence taken should have been submitted to the jury. And it is quite apparent, the controversy having been submitted to the learned justice on precisely the same evidence as given upon the former trial, it was his duty, if his view of it were unchanged, to have found for the defendant. He did not consider the evidence however, but was controlled by our judgment which he construed as a finding in favor of the plaintiffs, and based his finding on that in violation of his own views. The defendant has had no trial. This he was entitled to, and could not be deprived of it.

Whether the declarations made by him were true or false, and whether, if false, they were fraudulently made, were the questions this court thought should have been submitted to the jury, and which were in fact submitted to the learned judge on the second trial for his examination and judgment. It would be a failure of justice to sustain such a judgment, standing as it does, not upon the deliberate action of the tribunal entrusted with it, but upon the assumed decision of another tribunal, which had made no disposition of the facts other than to direct their proper investigation. What the jury were not allowed to do and ought to have done, the learned judge has also failed to do. This result arises, of course, from a misconception of the judgment of the general term and the duty imposed by it, and though unfortunate for the litigants, because of the delay which ensues, can nevertheless be corrected.

Dor these reasons the judgment must be reversed and a new trial ordered, with costs to the appellants, to abide ■ event.

Van Brunt, Oh. J., and Daniels, J., concur.  