118 N.Y.S. 235 | N.Y. App. Div. | 1909
We think the court erred in correcting the judgment.- The plaintiff established a prima facie case as effectively as if a dozen witnesses had testified to the genuineness of the note. A motion for nonsuit was not made and could not properly have been granted. The defendants not only interposed a general denial, but also the short Statute of Limitations, and the execution and filing of the consents for the determination of the claims in Surrogate’s Court. They gave proof tending to establish both defenses. There was no disputed fact. The defendants were.not obliged to give proof on the
The facts are found by the jury in pursuance of the direction with the same effect as if embodied in formal findings made by the court. The Statute of Limitations or the pendency of the other proceeding which the plaintiff had elected to adopt is a defense on the merits to the action. A judgment involving only questions of law isas conclusive as one involving conflicting questions of fact. (Hirshbach v. Ketchum, 79 App. Div. 561; 84 id. 258; Henck v. Barnes, 84 Hun, 549.)
The evidence in the case was undisputed as to both of the defenses referred to. If the plaintiff had been able to dispute "these two propositions so that they had been submitted to the jury as questions of fact under instructions that if either should be found favorable to the defendants a verdict of no cause of action must be rendered, otherwise the plaintiff was entitled to" a verdict for the amount of the claim, a verdict for the defendants would be on. the merits. It is none the less so where the evidence is undisputed and the defense becomes established as matter of law. In either event the defendant has succeeded in maintaining a defense to -the plaintiff’s cause of action, If the- plaintiff has failed to make a jprima facie case so" that a nonsuit follows, the judgment entered is not on the merits. This is. true even if the nonsuit is not granted until the close of the evidence and is.designated a dismissal of the complaint. If the vice is in the plaintiff’s cause of action there is no conclusive determination. If, however, the dismissal of the Complaint or the direction of the verdict for the defendant is based upon an issue which has been tendered as a defense to the cause of action, then the decision is on the merits. This, it seems to me, must be the test.
The counsel for the plaintiff seems to assume that the merits, are
The appeal was taken from the judgment on the merits. It has been sustained by the Court of Appeals, and its judgment made the judgment of the court below. I doubt very seriously the power of the Supreme Court to amend' or modify the judgment so that it differs in substance from the one which was reviewed by the appellate courts.- Another appeal will then be permissible. A suitor cannot have the propositions in his case determined by piecemeal either in the appellate or trial court.
The order should be reversed.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.