#### MYERS et al. v. POLHEMUS.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Practice in Civil Cases—Dismissal—Trial before Referee.

On a trial by a referee, it is error to dismiss the complaint at the close of plaintiff's case, unless it appears that the evidence raised no question of fact which the court would have been compelled to submit to the jury had the trial been at circuit.

Appeal from judgment on report of referee.

Action by John R: Myers and others against Josephine Polhemus to recover the value of a quantity of ice alleged to have been sold to defendant. The complaint was dismissed on the merits, and plaintiffs appeal. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Wilmer H. Dunn, for appellants.

P. Q. Eckerson, for respondent.

PUTNAM, J.

On the trial before the referee, the defendant did not offer any testimony or rest her case, but, at the close of plaintiffs7 evidence, moved to dismiss the complaint on the ground, among others, that the plaintiffs had failed to make out a cause of action. As far as the record discloses, no other proceedings were had in the action until the referee dismissed the complaint upon the merits, with costs. Had the referee denied the motion to dismiss, the defendant would have had the right to offer evidence in her own behalf upon the issues raised by the pleadings. It will be seen that the case is like that of Place v. Hayward, 117 N. Y. 487, 23 N. E. 25. In that case, on the close of the plaintiff’s evidence, defendant, without announcing that he rested his case, moved for a dismissal of the complaint on the merits, and the motion was granted. It was held that the action of the referee was equivalent to granting a nonsuit, and that, to maintain the judgment, defendant was bound to show that there *1026were no disputed material questions of fact that, upon a jury trial, would have been required to be submitted to the jury, and that, upon the undisputed evidence, he was entitled to judgment. See, also, Forbes v. Chichester, 125 N. Y. 769, 26 N. E. 914. Hence, to sustain the judgment, it must appear that the evidence failed to raise any questions of fact that, if the trial had been at circuit, the court would have been compelled to submit to the jury.

We do not desire to criticise the findings of the learned referee, or to express an opinion that such findings were not sustained by the evidence; but we think it quite clear that, on the evidence given on the trial, the referee would have been authorized to find that the plaintiffs sold and delivered the ice, for which the action was brought, to the defendant. It was shown that the ice in question was contracted for by Charles W. Polhemus, the conceded manager of defendant’s business, and her agent. When he contracted for the ice, it does not appear that he mentioned any name as a purchaser, or stated for whom he purchased it. He was authorized to purchase ice for the defendant. The ice was taken by defendant’s wagons and teams, and afterwards Anderson, agent of the plaintiffs, went to defendant’s office, and brought his book containing the items of the ice delivered, and compared the same with the book there kept, and found that the books agreed. Here was a sale of ice to defendant’s manager and agent, the name of the purchaser not being mentioned, a delivery of the ice to defendant, and an entry of the ice so delivered on defendant’s book. Of course, there is evidence tending to show that defendant was not the purchaser; as, the draft, the bill, and the testimony of Charles W. Polhemus, who swore that, in addition to working for his mother, the defendant, he carried on an independent business as a wholesale dealer in ice, and bought the ice in question on his own account, arid resold it to defendant before it was delivered. Under the circumstances of the case, however, it was a question for a court or jury as to what credit should be given to his testimony. From the above statement it is evident that a question of fact was raised in the case, to be passed upon by the referee, and that from such evidence the court could have found that defendant was the purchaser of the ice specified in the complaint; and hence, within Place v. Hayward, supra, a judgment of dismissal of the complaint, which, under the circumstances, was a judgment of nonsuit, was not authorized. Had a dismissal of the complaint been proper, however, such dismissal should not have been on the merits. Terry v. Horne (Sup.) 13 N. Y. Supp. 353. The judgment should be reversed, the referee discharged, and a new trial granted; costs to abide the event. All concur.