The judgment in this action of foreclosure dismissed the plaintiff’s complaint. Another action was brought to foreclose the same mortgage, and the trial court held that the judgment in the former action was an adjudication of the rights of the parties, and that, therefore, the plaintiff could not recover. Thereupon the plaintiff made a motion and obtained the order appealed from at a Special Term held by the judge before whom the first trial was had, striking from the judgment roll in that action the findings and decision, and directing that a judgment of nonsuit be entered in place of the judgment entered, said judgment of nonsuit to show that the dismissal was not upon the merits.
A final judgment dismissing a complaint does not prevent a new action for the same cause unless the judgment expressly declares, or it appears by the judgment roll, that it is rendered upon the merits. (Code Civ. Proc. § 1209.) The judgment does not state that it is upon the merits. The question, therefore, is, does it appear by the judgment roll that it was rendered upon the merits ? In other words, does it appéar that it has been determined that the plaintiff has no cause of action upon the mortgage ? The judgment roll shows just what was *330decided. The complaint was the ordinary one in foreclosure. The answer admitted the execution of the bond and mortgage and, upon information and belief, denied the other allegations of the complaint. The plaintiff produced the mortgage and evidence computing the amount and showing that the bond could not be found. The record continues: “Plaintiffs rest. Defendant’s motion for á non-suit was denied. The court made findings of fact and conclusions of law, which were filed.” The findings show that a bond accompanied the mortgage. The material finding is: “Ninth. That no proof was offered upon the trial to show the amount due or unpaid upon the bond and mortgage referred to in the complaint, or for what amount a cause of action accrued, or what cause of action the plaintiffs had at the time of the trial. And I do find and decide as matters of law as follows: That the complaint of the plaintiffs herein be dismissed, with costs and disbursements.” There was no finding that the mortgage had been paid or that for any reason it was not an enforcible obligation. The case went off upon a question of practice, namely, whether the plaintiff could recover without proof that the debt is unpaid. The question was not free from doubt, but the court evidently construed Conkling v. Weatherwax (181 N. Y. 258) as casting upon the plaintiff the burden of proof on the question of payment. I am able to state, as a member of this court who participated in the decision, that no other question was considered here, and we may infer that the Court of Appeals found no other question in the case. If the judgment in itself would not prevent a second action upon the mortgage, the affirmance of the judgment in the Appellate Division and "the Court of Appeals (See 130 App. Div. 892; 200 N. Y. 596) could give it no greater effect. There is nothing to show that either court passed upon any question except the one whether it was necessary for the plaintiff to show non-payment affirmatively. We quote from Clark v. Scovill (198 N. Y. 219, 283): “The judgment roll is the primary but not the exclusive guide to determine the question and when it appears therefrom that the judgment might have been rendered on the merits, or upon a ground not involving the merits, the presumption is that it was not upon the merits and the burden is upon the one who claims it *331is a bar to show by extrinsic evidence consistent with the judgment roll that it was in fact rendered on the merits.”
If a formal nonsuit had been granted the court would necessarily have determined that the burden of proof of non-payment rested upon the plaintiff and that he had produced no evidence upon that subject. While findings were made they involve the same determination and none other. The question is one of substance and not of name. We are, therefore, discussing technicalities when we consider whether this is a judgment of nonsuit or a judgment upon the merits. The effect in any event is the same. The fact that findings were made is quite immaterial, and is only important as showing what the court decided. Instead of finding that the mortgage was paid we have a finding, in substance, that there is an absence of proof on that subject. The judgment, therefore, only establishes that no proof was offered on that subject and for that reason a recovery could not be had.
It is urged that Keyes v. Smith (183 N. Y. 376) and Oakes Mfg. Co. v. City of New York (206 id. 221) are opposed to these views. Properly understood those cases only emphasize the rule we are contending for. In the Keyes case the action was brought to reform the assignment of a written instrument, absolute upon its face, it being claimed that it was only intended as collateral and that by mistake and fraud it took its form. The defendam moved for a nonsuit at the close of the plaintiff’s case. Formal findings of fact were made by the court. It was found as a fact that the instrument was not made or induced by any fraud or false or fraudulent statement, and that there was no mutual mistake of the parties, and as a conclusion of law the complaint was dismissed. The plaintiff sought a reversal upon the ground that there was some evidence and, therefore, a nonsuit was improper. The Court of Appeals found that there were findings upon all the questions at issue and, therefore, the judgment could not be treated as a nonsuit, and it could not review the facts but must affirm the judgment; that the plaintiff had mistaken his remedy and instead of appealing should have applied to correct the judgment, if it was erroneously entered.
In the Oakes case the trial court intimated that there should *332be a nonsuit, but made findings involving the merits of the case. The following quotation from the opinion of the Court of Appeals (p. 225) indicates the effect of its decision: “Unfortunately, however, for the plaintiff it and the defendant decided to submit requests for findings, and those submitted by the former, numbering thirty-seven requests to find facts and several requests to find conclusions of law, were all passed on by the trial justice, and the result was that, between passing on these requests and various others which I understand to have been submitted by the defendant, findings were made generally on the merits of the action and on which' a judgment was entered dismissing the complaint.”
The decision in those cases, therefore, proceeded upon the ground that the findings as made actually disposed of the merits of the case.
If the findings in the case at bar had been that the mortgage had been paid, it would be a final determination between the parties so long as that finding remained in the record. The fact that findings were made is, therefore, not in itself very material; the important question is, what are the findings ? Do they show that the same matter now before the court was decided in the former case ? A judgment is res adjudicata only as to the matters decided. The trial judge, at Special Term, has granted the motion to strike out the findings upon the ground that his determination in fact was a nonsuit and not a trial. As we have said, it is immaterial what it is called, the effect of it is that the plaintiff was nonsuited because he offered no evidence upon the only issue before the court, and the decision was placed solely upon that ground. I think the former judgment is not a bar to this action and that this motion was entirely unnecessary. Nevertheless, it was made, and was decided against the appellant. But it does no harm. The effect of the judgment with the findings out or in is the same. He is, therefore, not aggrieved by the decision. Courts are organized to decide actual controversies between the parties, and the appellate court is to correct prejudicial errors, if any, made by the trial court. It has no interest in correcting errors which are not of substantial importance. It grants relief only to a party aggrieved. Its duty is performed if it' *333disregards technical errors and only passes judgment upon questions which affect the substantial rights of the parties. Sitting at Special Term I should have denied the motion upon the ground that the amendment is unnecessary. The court held otherwise, and it is immaterial whether its decision was technically right or wrong so long as it does not affect any substantial rights of the parties. It imposes no costs. The appellant will have no benefit from a reversal of the order. I favor an affirmance, without costs.
All concurred, except Woodward, J.-, dissenting in opinion.