Hyman v. New York Mortgage & Security Co.

Rich, J.: At the close of the plaintiff’s evidence a motion was made by the defendant to dismiss the complaint upon the ground that the plaintiff had not made out a cause of action, whereupon the court permitted the plaintiff to open his case and introduce further evidence. While plaintiff’s attorney was examining a witness, the learned trial justice of his own motion discharged the jury, took the case under advisement, and subsequently dismissed the complaint on the merits. Ho evidence was given by the defendant; no motion for a dismissal of the complaint upon the merits was made, and the action was not submitted to the trial court for decision upon the merits. The only motion before it was for a nonsuit, and the dismissal of the complaint upon the merits was erroneous. ( Ware v. Dos Passos 162 N. Y. 281; Keuthen v. Stache, 121 App. Div. 521; Crecelius v. City of New York, 114 id. 801.) I do not think that the learned trial justice would have been justified in granting a nonsuit upon the merits. The action was brought to recover a balance of $2,500, which it was alleged the defendant agreed to advance to the plaintiff upon bonds and mortgage of $2,750 each, upon five separate parcels of ground upon each of which a building was to be erected ■ or was in process of erection. These five bonds and mortgages had been executed and delivered to the defendant. The five buildings had been erected in conformity with plans and specifications, and during their erection the defendant had made advances according to the terms of its contract. After their completion the plaintiff sold them subject to the mortgages held by the defendant. When plaintiff demanded the last payment of $500 on each parcel, the defendant refused payment upon the ground that the buildings were not satisfactory to the company and not constructed just as it wanted them. The only indi 256 cation of the ground upon which the trial court acted in disznissing the complaint is contained in a stateznent made upon the argument for a nonsuit, as follows: “ They had the right to say they would not advance him any more money under the agreement. I don’t think you have established a jprima facie cause of actiozz.” The only provision in which the satisfaction of the defendant is a factor appears in the 9th subdivision of the 7th section, which isas follows : “ If the applicant does not erect said buildings in accordance with plans and specifications, which az'e satisfactozy to the party of the second part, and which have been approved by the Bureau of Buildings for the Borough of Brooklyn.” This provision does not secure to the defendant the right to repudiate its contract if the •buildings erected were not satisfactozy to it. If they were ez-ected in accordance with plans and specifications which were satisfactozy to the defendant and had been approved by the bureau of buildings, the defendant had no cause for complaint. The evidence established the existence of plans and specifications, that the buildings had been erected in conformity therewith, and that the dfefendazit had knowledge of such construction. This was sufficient to entitle the plaintiff to go to the jury. Upon the evidence a nonsuit cannot be justified. The judgment must be reversed and a new trial granted, costs to abide the event.