We are satisfied with the determination of the learned General Term that the judgment of the County Court should be reversed, and with the reasons given for that conclusion. The court below, however, went farther and dismissed the complaint upon the merits. This, as we think, it had no power to do, under the circumstances, because it is not certain but what further evidence may be produced upon another trial that will so change the essential facts as to warrant the conclusion that the payment in question was not voluntarily made. The General Term had power to "reverse or affirm, wholly or partly," or to modify the judgment of the County Court, and "if necessary or proper," to grant a new trial. (Code Civ. Pro. § 1317.) The rule seems to be well settled that in order to justify an appellate court in rendering final judgment against the respondent upon the reversal of a judgment, it is not sufficient that it is improbable that the defeated party can succeed upon a new trial, but it must appear that he certainly cannot. (Guernsey v. Miller, 80 N.Y. 181;Foot v. Ætna Life Ins. Co., 61 N.Y. 571; Griffin v.Marquardt, 17 N.Y. 28; Edmonston v. McLoud, 16 N.Y. 543.) In Griffin v. Marquardt (supra) Judge COMSTOCK said: "It is proper to say, and to say it with great distinctness, as the opinion of this court, that extreme caution ought to be exercised in refusing new trials where judgments are reversed. The discretion of the appellate court should be exercised in that direction only in cases where it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the suit."
In Foot v. Ætna Life Ins. Co. (supra) the court said: "It is not sufficient to refuse a new trial, that it is highly improbable that the party defeated upon the appeal can succeed upon the new trial. It must appear that he certainly cannot." *Page 44
In Brackett v. Griswold (128 N.Y. 644) there had been six trials, and the last was had on the same evidence given on the previous trials. The action had been pending for nearly twenty years, and the counsel had "substantially conceded by the course of the later trials that all the pertinent evidence available" had been procured. Under these circumstances, a judgment of reversal, which also dismissed the complaint on the merits in an action at law, was affirmed, but with the significant suggestion that "if there are any reasons why the plaintiff should have another trial, they can be presented to the Supreme Court on an application to modify its order, that being the proper tribunal to consider and determine such an application."
A distinction was formerly made in the exercise of the power to order absolute judgment against the respondent upon a reversal, between actions at law and suits in equity, as it was held that in the former it should affirmatively appear of inevitable necessity that the party could not succeed upon a new trial, and in the latter that it was only necessary that the appellate court should be satisfied that a final judgment would not work injustice. (Muldoon v. Pitt, 54 N.Y. 269.) This distinction, even if it were still recognized, would be of no importance in the case before us, for it is an action at law, but the distinction no longer exists, as we have recently held inBenedict v. Arnoux (154 N.Y. 715, 723), which leaves nothing to be said, either as to the general rule or the exception that was at one time made.
The evidence in the record now presented is so meagre as to suggest that the facts were not fully developed. We are unable to say that "no possible state of proof applicable to the issues" would "entitle the respondent to judgment." While it is probable that a second trial will not change the result, as this is not certain, we think that the judgment of the General Term of the Supreme Court should be so modified as to reverse that part thereof which dismisses the complaint, with costs, and to grant a new trial, with costs to abide event, and as thus modified affirmed, without costs to either party in this court.
All concur, except MARTIN, J., absent.
Judgment accordingly. *Page 45