I dissent. Two actions were brought against these defendants, growing out of certain false and fraudulent statements made in a circular alleged to have been issued and circulated by the defendants. One action was brought by one Lehman-Charley and the other by this plaintiff. The two actions, so far as the facts are concerned, are practically the same. Lehman-Charley recovered a judgment which was affirmed in the Appellate Division (135 App. Div. 674) and in this court (202 N.Y. 524). The present action has been pending since 1909. The plaintiff has recovered a judgment which has been affirmed in the Appellate Division. It is argued that this judgment should be reversed because of the alleged inconsistency in the findings made by the trial court. Upon the appeal to the Appellate Division it was held that the findings were not necessarily inconsistent and the evidence was reviewed and held to sustain the findings of fact which established the plaintiff's right to recover. The Appellate Division did not make new findings, but the position taken by the majority of that court in reference to this case clearly appears from their opinion reviewing the evidence. Inasmuch as the opinion of the Appellate Division is now made a part of the judgment roll or papers on appeal (Section 1237 of the Code of Civil Procedure), I think that we should consider the judgment *Page 40 appealed from in the light of the opinion of the Appellate Division. This is an equity suit, and the Appellate Division, in reviewing it, has the same power to render the judgment that ought to be rendered that the Special Term possessed. (Bonnette v. Molloy, 209 N.Y. 167; Lamport v. Smedley, 213 N.Y. 82.) The Appellate Division has reviewed the facts and found that they entitle the plaintiff to judgment, and there is evidence which sustains this conclusion. Under these circumstances it is immaterial that the decision of the Special Term may have been based on inconsistent findings. It is a simple matter for the Appellate Division, if the cause is remitted to it, to modify the findings of the Special Term so that they shall accord with the views expressed in the opinion of the Appellate Division. The fact that the plaintiff did not appeal to the Appellate Division does not present any reason why the Appellate Division in reviewing the cause cannot modify a finding in favor of the defendant if in its judgment that finding is not sustained by the evidence. The plaintiff could not appeal from the findings that were adverse to him and he could not appeal from the judgment because it was in his favor. Under section 1317 of the Code of Civil Procedure the Appellate Division can modify the findings so as to eliminate those that are in favor of the appellants, if in its judgment those findings are not supported by the evidence. Section 1317 provides that the Appellate Division shall "render judgment of affirmance, judgment of reversal and final judgmentupon the right of any or all of the parties, or judgment of modification thereon, according to law," etc. Thus in terms, the section does not limit the appellate court to modifying the judgment in so far as it affects adversely the appellant alone, but authorizes it to render final judgment according to law "upon the right of any or all of the parties." From the terms and purpose of this section I think that the legislature intended to confer upon the Appellate *Page 41 Division in any cause not tried by a jury which was brought before it upon appeal by any of the parties, the power to render such judgment as should be warranted by the facts and the law. If this cause is now reversed and sent back for a new trial and the same evidence is then presented as is now in the record and the Special Term should render judgment for the defendants and the plaintiff appealed to the Appellate Division, there is no doubt that the Appellate Division could reverse the findings upon which such judgment was based and make new findings identical with the findings now made except the alleged inconsistent findings. This course would leave the case precisely where it now is, but accomplishes the result in a roundabout way which I think was the design of section 1317 to obviate. This cause having been before the Appellate Division and that court having, as appears from its opinion, reviewed the evidence and determined that it supported the findings which established the liability of the defendants, we should not reverse the judgment and order a new trial simply because there is in the record inconsistent findings of fact made by the Special Term.
I vote in favor of remitting the cause to the Appellate Division to make findings in accord with the views expressed in its opinion filed in this case.
COLLIN, CUDDEBACK, HOGAN and CARDOZO, JJ., concur with MILLER, J.; SEABURY, J., reads dissenting opinion; WILLARD BARTLETT, Ch. J., not sitting.
Judgment reversed, etc. *Page 42