The practice in this case has long prevailed in the third department, and it ought to be upheld, unless we are required by MacNaughton v. Osgood, 114 N. Y. 574, 21 N. E. Rep. 1044, to declare it improper. The practice, in brief, is this: Equity cases are placed upon the circuit calendar. Eo issues are previously settled. The case is brought to trial before the court. A jury is impaneled, with the understanding that if the court, after the testimony is given, desires to submit any issues to them, the court will frame them then and there in the form of questions, and submit them to the jury for decision. The jury, having heard the arguments of counsel and the charge of the court, render a verdict by answering the questions submitted. The court then approves or disapproves of them. If the court disapprove, it finds the fact in accordance with its own judgment, and finds upon the other issues in the case, and thereupon decides the whole case, making the decision in writing, covering the material issues. In the case before us the record recites that at the close of the plaintiff’s testimony the defendant’s counsel moved for a nonsuit, taking the usual ground that, assuming all the inferences of fact in the plaintiff’s favor, he had made out no case. The court concurred and directed that the complaint be dismissed' upon the merits, with costs, and judgment, signed by the clerk, was after-*825wards entered. In the case cited the practice differed from that here pursued, in that the trial court dismissed the complaint upon the close of the testimony, and then directed that the exceptions be heard in the first instance at the general term. The court of appeals, second division, held that such a direction as to the exceptions could only be made in cases triable by a jury. The direction that the exceptions be heard in the first instance at the general term prevented the entry of judgment until the decision of the general term was made, and, of course, prevented a decision directing judgment by the trial term. When the case came to the court of appeals, it had no decision of the trial court directing judgment, and no judgment of that court. The practice pursued in the present case was substantially in accord with that approved in Acker v. Leland, 109 N. Y. 5, 15 N. E. Rep. 743, except that no findings of fact or of law are signed by the court, unless the judgment signed by the clerk be considered such. The signature of the clerk is the signature of the court. The judgment is equivalent to a finding of fact by the court that the testimony adduced by the plaintiff did not, taken in the aspect most favorable to him, establish the case alleged in his complaint. It is also a finding that the court did elect not to submit any question to the jury. The direction for judgment finds that on the merits the plaintiff is ■not entitled to recover. If the court had awarded affirmative relief, it would have been proper to have made a decision setting forth the facts, from which the direction of judgment would follow as the necessary levai conclusion. But the necessity for setting forth findings of inconsequent facts, and then formally finding as a conclusion of law that they are inconsequent, is not so obvious. We think the judgment signed by the clerk, in a case in which the result is a dismissal of the complaint upon the merits, a sufficient compliance with section 1022. The case of MacNaughton v. Osgood does not hold otherwise. There is no difficulty in reviewing upon appeal such a case.
The court dismissed the complaint upon the supposed authority of Harvey v. McDonnell, 1 N. Y. Supp. 83. That case has since been reversed. 113 N. Y. 526, 21 N. E. Rep. 695. It is held in that case that a general creditor ■of an intestate may, under chapter 314, Laws 1858, where the administrator-refuses to disaffirm a transfer made by the intestate to defraud creditors, and where the assets in the hands of the administrator are insufficient to pay the debts of the intestate, himself bring an action for his own benefit, and that of the other creditors, to reclaim the propel tv, making the administrator a party. The supposed difficulty in that case was that the general creditor, in the absence of judgment and execution, had no equity, because he had not shown that he had exhausted his legal remedies. The court of appeals held that the act of 1858 dispensed with a resort to judgment and execution in the cases embraced in it. Here the administrator, not the creditor, proceeds. He recognizes the validity of the claims set forth in the complaint, alleges the inadequacy of assets, the fraudulent transfer by his intestate, and asks to set it .aside for the benefit of the creditors. The statute confers upon him the power, and, if the facts are as he alleges, it is his duty to proceed. We think the evidence was sufficient to put the defendant upon her defense.
The defendant’s title to the real estate in question is, in any event, valid against the administrator, except to the extent necessary to satisfy the creditors of the intestate. If upon a new trial the plaintiff should recover, this court iould take to itself the administration of the fund realized from the real estate; but we incline to the opinion that it would be wiser to adjudge that the ■defendant’s title is invalid against the claims of the creditors of the intestate, including such costs as may be awarded the plaintiff, and against such proceedings as may be taken in the due course of administration in the surrogate’s -court for the sale or mortgage of the property, and against the title thus granted. The judgment should provide that the defendant be allowed full *826opportunity to contest all claims not determined in this action. Judgment reversed, new trial granted, costs to abide the event.
Fish, J., concurs.