Opinion
March 11, 1936.
Appeal from Supreme Court of Niagara County.
Jacob Weissfeld [ Philip Halpern of counsel; Milton H. Friedman and Emil L. Cohen with him on the brief], for the appellants.
Robert L. Rice, Jr. [ George M. Donohue with him on the brief], for the respondent.
Present — SEARS, P.J., TAYLOR, EDGCOMB, CROSBY and LEWIS, JJ.
This action was brought to bring about the cancellation and discharge of a certain mortgage upon real property, an action triable by the court without a jury, sometimes known as an "equity action." Upon motion of the plaintiffs questions of fact were framed to be answered by a jury under the supervision of a trial justice. That trial came on, testimony was given, the plaintiffs rested and defendant moved for a dismissal of the complaint. The trial court without submitting any of the questions to the jury dismissed the complaint upon the merits, made findings of fact and conclusions of law, directed judgment accordingly and judgment has been entered for the defendant on the merits. This appeal has resulted. The court was without authority to dismiss the complaint under the circumstances. ( Mac Naughton v. Osgood, 114 N.Y. 574, 578; Moore v. Metropolitan Nat. Bank, 55 id. 41; Birdsall v. Patterson, 51 id. 43.) The plaintiffs excepted to the court's dismissal of the complaint and have done nothing to waive any of their rights. We are also of the opinion that the testimony presented was of such a character that the jury should have been permitted to answer the questions prepared for them.
All concur.
Judgment reversed on the law and matter remitted for further proceedings, with costs to the appellants to abide the event.