Opinion
Argued June 10, 1889
Decided June 18, 1889
George L. Stedman for appellant.
Esek Cowen for respondents.
George Richards for trustees, respondents. Dickinson W. Richards for The Osgood Dredge Company, respondent.
This action was brought by the plaintiff to obtain a judgment restraining the defendants, who are officers of the Osgood Dredge Company, from paying to themselves salaries, voted to themselves, and to compel them to refund to the corporation, amounts paid as salaries before the commencement of the action. After setting forth the facts which it is claimed give rise to the cause of action, the complaint demands judgment as follows: "Wherefore the plaintiff demands judgment that the defendant Osgood, Howe and Blessing, and each of them, be enjoined and restrained from paying to the said Howe $400 per month as salary, to the said Osgood $200 per month as salary, and that the said Howe and Osgood, respectively, repay to the said Osgood Dredge Company the moneys already received by them; * * * and that the acts of said trustees fixing the salaries of said Osgood and Howe be declared fraudulent and in violation of their duties, and for such other and further relief as may be just and proper." The defendants all answered. The record before the court shows that the action was bought to trial at the circuit in the city of Albany January 22, 1880. At the close of the testimony the defendants' counsel moved to dismiss the complaint, and the plaintiff asked to go to the jury upon certain questions of fact. The latter motion was denied and the complaint dismissed, to all of which plaintiff excepted. The court then ordered the exceptions to be heard in the first instance at the General Term, and stayed proceedings meanwhile. The case was heard at General Term and decided in May 1886, by which decision the exceptions were overruled and the plaintiff's motion for a new trial was denied, and an order entered accordingly. A judgment then appears to have been entered, which recites the trial, the direction for the dismissal of the complaint, and the exceptions thereto, the order that the exceptions be heard in the first instance at the General Term, the motion for a new trial upon such exceptions and the decision thereon of the General Term, and adjudges that the complaint be dismissed and that the defendants recover of the plaintiff the costs and disbursements. From the judgment so entered the plaintiff appealed to this court specifying in his notice of appeal his intention to bring up for review the order of the General Term denying the motion for a new trial.
The action was one triable by the court, and neither party was entitled to a trial by a jury. (Code of Civ. Pro. §§ 968, 969.) Questions of fact arising upon the issues might, however, have been directed by the court to be tried by a jury. (§ 971.) The determination of the jury upon such questions is not, however, controlling on the court upon the facts involved in the issue.
Prior to the Code the practice was to award a feigned issue and take the verdict of a jury thereon to aid the chancellor; and, though differing in form under the Code, the practice is substantially the same. ( Vermilyea v. Palmer, 52 N.Y. 471.) For like purposes issues may be framed and sent to the circuit for trial by a jury, and the court, upon further hearing of the case, may adopt the findings of the jury upon the facts or may modify or reject them altogether. The action must be brought to a hearing before the court, and the court's decision must be made in writing in the same manner as if there had been no verdict of the jury on the issues. ( Acker v. Leland, 109 N.Y. 5; Carroll v. Deimel, 95 id. 252.)
For the purpose of a review upon the merits there must be a decision in writing, in which the facts found and the conclusion of law must be separately stated, and such decision must direct judgment to be entered thereupon. (Code, § 1022.) And appropriate exceptions must be taken to such conclusion of the court in the manner provided by statute. (§ 994.) In this case the record before us does not present any question for review upon the merits. No question of fact was directed to be tried by a jury and none was submitted to the jury that was impanneled at the circuit. If we regard that proceeding as a trial by the court, no decision has ever been made in the manner directed by the Code. There was no authority to direct exceptions in a case triable by the court to be heard in the first instance at the General Term. That proceeding is limited to a case triable by a jury. (§ 1000.)
A motion for a new trial, except in the cases specified in sections 999, 1000 and 1001 of the Code, must, in the first instance, be made at the Special Term. And in an equity action the complaint cannot be dismissed on a trial of questions of fact by the jury. A verdict must be rendered upon all the questions submitted and the case afterwards determined by the court. ( Moore v. Met. Nat. Bk., 55 N.Y. 41; Birdsall v. Patterson, 51 id. 43.) The proceedings contained in the record were, therefore, irregular and unauthorized. There has been no trial in the manner provided by law, and no decision appears in the case; and there is nothing to support the judgment appealed from, and no question upon the merits of the case is before this court.
The judgment should be reversed, without costs, with leave to the parties to proceed de novo at the Special Term in such manner as they shall be advised.
All concur, except PARKER, J., not sitting.
Judgment accordingly.