
    Henry Sproessig, App’lt, v. Julius Keutel et al., Resp’ts.
    
      (City Court of New York,
    
    
      General Term,
    
    
      File February 8, 1892.)
    
    1. Trial—Nonsuit.
    Where defendant moves for a dismissal at the close of plaintiff's evidence, without announcing that he rests his case, he is not entitled to-a dismissal on the merits, but only to a nonsuit.
    2. Mechanics’s lien—Cessation of work by reason of ill treatment.
    Where a contractor is called a swindler, knocked down and ordered, from the building by the owner he is not obliged thereafter to resume work on being notified so to do, or to wait for his payment until the work is? completely finished, but may file lien for the work already done.
    Appeal from judgment dismissing complaint.
    
      Chas JET. Preyer, for app’lt; Edward Grosse, for resp’ts.
   Van Wyck, J.

The plaintiff, a carpenter, sued upon two-causes of action to foreclose a mechanic’s lien and a trial was. had, as is usual in such cases, before the court without a j ary. At the close of plaintiff’s evidence the defendants, without announcing that they rested their case, moved to dismiss the complaint, and thereupon the court dismissed the complaint on both causes of action, and subsequently the judge signed and filed findings holding specifically, against plaintiff’s contention, every fact necessary to justify the conclusion of law “ that the defendants are entitled to judgment of dismissal upon the merits, with costs.”

As defendants moved without announcing that they rested their case they were not entitled to a dismissal upon the merits, but only to a nonsuit. Therefore what the court below granted must and will be deemed, considered and reviewed as a nonsuit under the rule laid down by the court of appeals in Place v. Hayward, 27 St. Rep., 710, which was tried originally before a referee and the defendant therein, after the close of the plaintiff’s evidenceand. without announcing that he rested his, defendant’s, case, moved. “ that the complaint- be dismissed on the merits,” [which was-granted by the referee.

Judge Earl, writing for reversal of the general term, and granting a new trial, says: “ Nevertheless what the referee did was to nonsuit the plaintiff. .We can give no other significance to the proceeding. Therefore he should have made no findings of fact, except such as would justify a nonsuit upon the trial. Under the-Code the referee was required to make findings of fact and of law after granting the nonsuit; but he had no right to make any findings of fact depending upon disputed or inconclusive evidence. Therefore to maintain this judgment the defendant is bound to-show that there was no disputed question of fact which upon a. jury trial the court would have been required to submit to the jury, and that upon the undisputed evidence he was entitled to a. judgment”

The judgment below must be considered as nothing more than a nonsuit, and in reviewing it the question must be considered asoné of law, and hence the plaintiff is entitled to have the evidence •construed in a manner most favorable to his position. All that the evidence in any way tends to prove must be deemed as fully proved; every fact which the testimony and reasonable inferences from it conduce to establish must be assumed to be established. The court of appeals, in Cook v. N. Y. C. R. R. Co., 1 Abb. Ct. App. Dec., 433, say: “On a question for nonsuit all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences which he had a right to ask from the jury are to be conceded to him.” Hence the evidence of the plaintiff in the case now under consideration must be read in the light of these liberal rules of construction which have ever been conceded to a nonsuited party, and the conclusion must be reached that he was improperly turned out of the court below. His complaint alleges, and his evidence shows that he was employed to do work, but not to furnish materials, in and about the building of an addition to a house out of old materials for defendants for $500, to be paid in five equal instalments, that he had earned and been paid the first three instalments, that he had done eighty per cent, of the work required to be done to entitle him to the fourth payment, and twenty per cent, of the work so required under the fifth payment, and that he was while at work under his contract, accosted by one of the defendants, who said to him that he was a swindler and a fraud, and came behind him and knocked him in the head, and knocked him down, and said to him, “ You go out of my building and never come into the building again,” and that when he took his tool box and went to leave he was again kicked very badly.

It does seem that this treatment justified him in abandoning the contract and bringing this action to recover for what work he had already done. But defendants contend that as he admitted he was subsequently notified to finish the work under the contract he could not recover, because it was his duty to resume the work; but this is not so, for he was not bound to obey defendants’ notice after the ill-treatment which he had received from the defendant who had charge of the work; however he did again see this defendant who said to him “ You won’t get a cent out of me before your job is finished all through,” and yet he had done eighty per cent of the work entitling him to the fourth payment of $100, and the job would not be “ finished all through ” until he had earned the fifth and last payment of $100.

He was under no obligation to resume his work if he had. received such brutal treatment from the defendant, nor was he bound to wait until the job was finished for his fourth payment. •So much as to plaintiff’s first cause of action, and as to his second his evidence shows that he made an agreement to do certain specified extra- work with defendants, who agreed to pay him therefor $100, and had paid fifty dollars on account, and that he had performed the same.

The judgment must be reversed and new trial granted, with costs to appellant to abide the event.

McGowit and Fitzsmoes, JJ., concur.  