This action was brought under sections 1638 et seq. of the Code of Civil Procedure to obtain an adjudication of the invalidity of defendant’s claim of title to certain real property of which plaintiff claims to be in possession, and for other incidental relief. The answer by way of defense sets up its own ownership. This defense under section 1642 of the Code of Civil Procedure required that the trial should be had as in an action of ejectment, i. e., before the court and a jury. (See Code Civ. Proc. § 968.)
The cause was accordingly brought on for trial at a Trial Term. The court submitted two questions of fact to the jury, which were answered, but later, on motion of the defendant, the court set aside the verdict and dismissed the complaint, to which plaintiff duly excepted. The question whether or not the court was justified in this course is not brought up by the present appeal. After the dismissal of the complaint plaintiff filed and served upon defendant forty-eight proposed findings of fact and corresponding conclusions of law, the purpose apparently being to lay a foundation for exceptions to the court’s refusal to find as requested, and accordingly, when the court refused to make any findings at all, plaintiff filed and served on defendant exceptions to the refusal to find. These exceptions defendant received but refused to retain.
Section 1021 of the Code of Civil Procedure provides that “ The decision of the court, or the report of a referee, upon the trial of a demurrer, or upon the trial of the issues of fact *186or law, where a nonsuit is granted, must direct the final or interlocutory judgment to be entered thereupon, and in any such case it shall not be necessary for the court or referee to make any finding of fact.”
If it was not necessary for the court to make any finding of fact, the refusal to do so was not error and furnished no ground for an exception.
If it be true that an exception to the dismissal of the complaint was essential to preserve plaintiff’s rights upon appeal (People v. Journal Company, 213 N. Y. 1), the record submitted upon this appeal shows that plaintiff did in fact save its rights by entering an exception in open court when the court announced its decision.
It is true that the defendant afterwards entered an order embodying the court’s decision announced at the close of the trial. This, however, was unnecessary and superfluous and did not require a new exception, since, the cause having been tried at Trial Term, the clerk’s minutes embodied the decision of the court and were sufficient warrant for the entry of the judgment.
Cases constantly come before us in which the complaint has been dismissed at Trial Term wherein the only warrant for the entry of judgment is an extract from the clerk’s minutes, and the only record of an exception is that taken in open court when the dismissal is ordered. It has never been held, nor so far as we are advised suggested, that this does not afford a sufficient and proper foundation to support an appeal.
The order appealed from must, therefore, be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Laughlin and Shearn, JJ., concurred; Dowling, J., dissented.