
    John R. Myers et al., App’lts, v. Josephine Polhemus, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 8, 1894.)
    
    Trial —- Referee—Dismissal.
    Wheré the evidence raises a question of fact, it is error "for the referee to dismiss the complaint.
    Appeal from a judgment dismissing the complaint.
    
      Wilmer H. Bunn, for app'lts; P. Q. Fckerson, for resp’t.
   Putnam, J.

On the trial before the referee, the defendant did not offer any testimony or rest her case, but, at the close of plaintiff’s evidence, moved to dismiss the complaint on the ground, among others, that the plaintiffs had failed to make out a cause of action. As far as the record discloses, no other proceedings were had in the action until the referee dismissed the complaint upon the merits, with costs. Had the referee denied the motion to dismiss, the defendant would have had the right to offer evidence in her own behalf upon the issues raised1 by the pleadings. It will be seen that the case is like that of Place v. Hayward, 117 N. Y. 487; 27 St. Rep. 710. In that case, on the close of the plaintiff’s evidence, defendant, without announcing that he rested his case, moved for a dismissal of the complaint on tl^e merits, and the motion was granted. It was held that the action of tjoe referee was equivalent to granting a nonsuit, and that, to maintain the judgment, defendant was bound to show that there were no disputed material questions of fact that, upon a jury trial, would have been required to be submitted to the jury, and that, upon the undisputed evidence, he was entitled to judgment. See, also, Forbes v. Chichester, 125 N. Y. 769 ; 36 St. Rep. 248. Hence, to sustain the judgment, it must appear that the evidence failed to raise any questions of fact that, if the trial had been at circuit, the court would have been compelled to submit to the jury.

We do not desire to criticise the findings of the learned referee, or to express an opinion that such findings were not sustained by the evidence; but we think it quite clear that, on the evidence given on the trial, the referee would have been authorized to find that the plaintiffs sold and delivered the ice, for which the action was brought, to the defendant. It was shown that the ice in question was contracted for by Charles W. Polhemus, the conceded manager of defendant’s business, and her agent When he contracted for the icey it does not appear that he mentioned any name as a purchaser, or stated for whom he purchased it. He was authorized to purchase ice for the defendant. The ice was taken by defendant’s wagons and afterwards Anderson, agent of the plaintiffs, went to defendant’s office, and brought his book containing the items of the ice delivered, and compared the same with the book there kept, and found that the books agreed. Here was a sale of ice to defendant’s manager and agent, the name of the purchaser not being mentioned, a delivery of the ice to defendant, and an entry of the icé so delivered on defendant’s book. Of ■course, there is evidence tending to show that defendant was not the purchaser; as, the draft, the bill, and the testimony of Charles W. Polhemus, who swore that, in addition .to working for his mother, the defendant, he carried on an independent business as a wholesale dealer in ice, and bought the ice in question on his own .account, and resold it to defendant before it was delivered. Under the circumstances of the case, however, it was a question for a court or jury as to what credit should be given to his testimony. Prom the above statement it is evident that a question of fact was raised in the case, to be passed upon by the referee, and that from ■such evidence the court could have found that defendant xvas the purchaser of the ice specified in the complaint; and hence, within Place v. Hayward, supra, a judgment of dismissal of the complaint, which, under the circumstances, was a judgment of non--suit, was not authorized. Had a dismissal of the complaint been proper, however, such dismissal should have been on the merits. Terry v. Horne, 37 St. Rep. 58; 13 N. Y. Supp. 353.

The judgment should be reversed, the referee discharged, and ■a new trial granted ; costs to abide event.

All concur.  