Greenwald v. Bullock

Action to impress a trust upon a fifty-share building and loan certificate. Judgment dismissing the complaint upon the merits unanimously affirmed, with costs. In an equity action where the defect in the plaintiff’s proof is due to quality rather than quantum, the court may make a decision dismissing the complaint on the merits. (Civ. Prac. Act, § 482; McNully Brothers v. Offerman, 141 App. Div. 730, 732.) Ordinarily this may occur only where a defendant has rested, but parties may so conduct themselves that their acts are equivalent to resting without giving any evidence. Here the defendants’ conduct was equivalent to resting without the giving of any evidence, the court having indicated that it did not believe plaintiff’s evidence in view of the documentary proof which it accredited. The trial court, under the circumstances, properly refused to believe the plaintiff’s version of the transaction upon which her claim was founded. Present — Hagarty, Carswell, Davis, Adel and Taylor, JJ.