Opinion
December 19, 1949.
On July 29, 1946, plaintiff's assignors signed a "contract order" on the printed form of respondent for five cabin cruisers, and delivered to respondent a check for $13,500, payable to the order of the nonappealing defendant, as part payment. Respondent turned the check over to the nonappealing defendant, which collected the proceeds. Plaintiff's assignors never received any boats. By this action plaintiff seeks to recover the $13,500 from both defendants. After trial before the court without a jury, the amended complaint was dismissed on the merits against respondent, and appellant was granted judgment against the nonappealing defendant, who defaulted in appearance at the trial because it was then bankrupt. This appeal is by appellant from so much of the judgment as dismisses the amended complaint against respondent. Judgment, insofar as appealed from, reversed on the law, without costs, and the action remitted to the court at Trial Term for a proper decision, pursuant to section 440 of the Civil Practice Act. Since the judgment in favor of respondent was on the merits, and not a nonsuit, a decision, stating the facts which the trial court deemed essential, was required. (Civ. Prac. Act, § 440; Mario v. De Oteris, 275 App. Div. 790.) The theory of the cause of action against respondent is claimed to be breach of contract and money had and received. The defense was a general denial, together with affirmative defenses of the Statute of Frauds and novation. We are unable to determine, on the basis of the decision in the record, what facts the trial court deemed essential, or the theory on which the trial court dismissed the amended complaint as against this respondent. A new trial is not required, but a proper decision is necessary as a basis for the judgment appealed from. Nolan, P.J., Johnston, Adel, Sneed and MacCrate, JJ., concur.