Opinion
July 6, 1909.
Fletcher C. Peck, for the appellants.
Charles D. Newton and Charles W. Stevens, for the respondent.
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 other issues. The defenses to which they addressed the proofs were sufficient to defeat the cause of action, and their adequacy has been affirmed by the Court of Appeals. If, instead of the court directing the jury to find for the defendants, the trial judge had by consent of the parties retained the case and made the findings the same as the jury found and dismissed the complaint, the decision would have been on the merits. Such is the rule even where no affirmative proof has been presented on behalf of the defendant. ( Keyes v. Smith, 183 N.Y. 377; Deeley v. Heintz, 169 id. 129.)
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 is as 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 prima 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 involved only in the question of the genuineness of the signature to the note. The defendants are not limited to that defense. They set out other defenses in their answer which have been held to be good. They have successfully maintained these defenses, and the judgment, even if not in form declared to be on the merits, is so in fact. The plaintiff elected her tribunal by filing the consent. She chose to abandon that tribunal and try another one and thus put herself in a situation so that other defenses were available to the defendants. She still persisted in the prosecution of the action instead of withdrawing it, and these defenses have ripened into a judgment based upon them. Experiments of this kind are not to be tolerated. It may be unfortunate to her, but she alone is responsible for the condition confronting her. A party may have two remedies open to him, and if he choose one and it turns out to be an unwise choice, he is still bound by the selection made. So either of two courts may be available to a suitor, but his unsuccessful venture in one does not enable him to start anew in the one of concurrent jurisdiction.
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.