Thomas Bascombe and Others, Appellants, v. Mary J. Marshall, Respondent, and Others, as Executors, etc., of Mary Ann Bascombe, Deceased, and Emma Lyons

Thomas Bascombe and Others, Appellants, v. Mary J. Marshall, Respondent, and Others, as Executors, etc., of Mary Ann Bascombe, Deceased, and Emma Lyons. (No. 2.) Second Department, December 30, 1908. Practice — trial by court—findings after dismissal of complaint. Although the court at trial dismissed the complaint in a suit to have a deed declared to be a mortgage, it is not thereafter precluded from filing a decision containing findings of fact and conclusions of law as a basis for a final judgment of dismissal. Appeal by the plaintiffs, Thomas Bascombe and others, from an order of the Supreme Court, made at the Richmond Special Term, presided over by the justice who held the Special Term for the trial of issues herein, entered in the office of the clerk of the county of Richmond on the 6th day of April, 1908, denying the plaintiffs’ motion to vacate and set aside the findings of fact theretofore made by the court. Alexander Thain [Otto G. Foelker and Charles A. Strauss with him on the brief], for the appellants. George M. Pinney, Jr., for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This is a suit in equity to declare a deed a mortgage. The record on the appeal from the judgment now before us (Bascombe v. Marshall, No. 1, 129 App. Div. 516), which is in amplification of the record on this appeal, shows that at the close of the plaintiffs’ case the defendant moved to dismiss the complaint on the ground that there was no proof of the cause of action alleged in the complaint. The court granted the motion, under exception. Thereafter the court filed its decision that contained findings of fact that the grantor made, executed and delivered to the defendant Marshall a warranty deed of the premises in question, which was absolute and was not given or intended as a mortgage, and conclusion of law that Marshall was the owner of the premises, entitled to the possession thereof, and that she was entitled to final judgment in her favor dismissing the complaint. Thereupon a judgment was entered in accord. Generally, “ a mere order for a decree ” in equity, “ before it is extended in due form and in apt and technical language, cannot be held to be a complete record of the judgment of the court.” (Thompson v. Goulding, 5 Allen, 84, 85; cited in Freem. Judg. [4th ed.] § 39.) Moreover, the disposition at the trial was not the decision in the case, inasmuch as the decision must be in writing and filed in the clerk’s office. (Code Civ. Proc. § 1010.) The oral declaration of the court of its intended disposition of the case as adverse to the plaintiff was not conclusive upon the court, and did not preclude it from such decision as it finally determined to render. And when it came to the making of its decision in the manner prescribed by law, it was entirely proper that it should state it in its present form. (Wood v. Lary, 124 N. Y. 87.) The order is affirmed, with costs. Woodward, G-aynor, Rich and Miller, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.