68 N.Y. 443 | NY | 1877
The motion made to dismiss the plaintiff's complaint at the close of the case was not passed upon at the time when presented, and the referee finally reported upon the entire case adversely to the plaintiff upon the facts and found as a conclusion of law that the complaint be dismissed. The plaintiff's counsel duly excepted to the findings of fact and to the conclusions of law, and it is now claimed by the counsel for the appellant that the decision of the referee is to be regarded the same as if a motion had been made for a nonsuit, without weighing any contradictory evidence, and if, upon any view of the evidence, the plaintiff was entitled to recover the decision was erroneous and should not be upheld. This position we think cannot be maintained, and as the referee has disposed of the case upon the entire evidence, making special findings of facts, it must be considered as decided upon all the testimony presented on both sides upon the trial before him. Any other course would leave out of view the testimony given by the defendants, and prevent a consideration of the same. Such a practice is not authorized in cases of a similar character. In order to raise a question of this character and *445 present the same for review, the case made up should show that it was raised and decided upon the trial, and before he had passed upon the facts.
Assuming that upon a motion to dismiss the complaint at the close of the testimony a question arises the same as upon a motion for a nonsuit, a distinct ruling should be had at the time when the motion was made, or as of that time and before the final submission of the whole case to the consideration of the referee. At least he should have been requested to decide the motion as of that time, and if he had refused to do so an exception taken to such refusal. If the motion had been granted an exception should have been taken to his decision. All of these matters should be made to appear in the case and thus present the question. As this was not done and an exception merely taken to the report of the referee upon the facts and to his conclusion of law, the point is not before us.
The case of Scofield v. Hernandez (
The judgment should be affirmed.
All concur.
Judgment affirmed.