Opinion of the Court, by FREEDMAN, J. ing the final application of the proceeds of the sale. The levy under the attachment was a violation of plaintiff's rights at the time, in case Turner had no interest whatever in the property levied upon; but the moment the execution issued upon the judgment of Charles White and others against Turner and the plaintiff was delivered to the sheriff, 'namely, June 7, 1864, the said property was bound for the amount of that execution without a levy (3 Rev. Stat. [5 ed.] p. 644, § 13). An actual levy is necessary only against a purchaser in good faith and without notice of the execution (Id. § 17). At common law the writ of fieri facias bound the goods of the debtor from the time when the writ was tested, which often preceded by a whole vacation the time of its delivery to the sheriff. This effect given to the writ by relation, often operated very unjustly, especially as against bona fide purchasers; and to prevent that evil, the rule was changed by statute (Roth v. Wells, 29 N. Y. 489; Bond v. Willett, 1 Keyes, 384, per DAVIES, J.). The priority of executions and the application of the moneys realized from sales are also regulated by the Revised Statutes, and it makes no difference whether a sale takes place under the first or under a junior execution (Peck v. Tiffany, 2 N. Y. 451). But the executions must have been issued against the same defendant (3 Rev. Stat. [5 ed.] §§ 14, 15). Although, therefore, in case Turner had no interest whatever in the property in question, and a wrong application of the proceeds was fiually made by the sheriff, Charles White and others as execution creditors might have an action against the sheriff for a false return, and although upon the same facts, but coupled with proof of special damage, perhaps even the plaintiff might maintain an action on the case, yet under the complaint in this action which alleged nothing beyond a naked trespass, plaintiff could not proceed as if his action had been on the case or for a false return. It is Statement of the Case. only where the complaint sets forth facts sufficient to constitute a different action from the one intended to be pleaded, in addition to those which had to be pleaded to make out the latter, that the plaintiff, upon failure to prove the latter, may sometimes be permitted to recover upon the former (Conaughty v. Nichols, 42 N. Y. 83). But even if the complaint in the case at bar was broad enough, which it is not, to authorize a recovery upon any such theory, in case of failure to prove prespass, the plaintiff could recover only upon proof of special damage. No such proof was given or offered. The appeal from the direction of the verdict should be dismissed, with ten dollars costs; plaintiff's exceptions should be overruled and judgment absolute ren dered for the defendant upon the verdict, with costs. CURTIS and SPEIR, JJ., concurred. JAMES BISHOP, ET AL., PLAINTIFFS AND APPELLANTS, . THE EMPIRE TRANSPORTATION COMPANY, DEFENDANT AND RESPONDENT. I. FINDINGS OF FACT AND LAW, WHEN NOT NECESSARY. 1. When the complaint is dismissed on plaintiff's own proof. a. In such case, where the trial is by a court, the decision dismissing the complaint may be entered in the minutes of the clerk, and a judgment of dismissal entered upon a copy of such minutes without any findings. And where the trial is before the referee, he may simply report that on the trial before him he dismissed the complaint on plaintiff's own showing, and direct the entry of a judgment of dismissal, and such judgment may be entered on such report. Opinion of the Court, by FREEDMAN, J. II. REVIEW OF SUCH A DECISION.-CASE.-EXCEPTIONS.-PRACTICE. 1. Request to insert findings in the case. a. If in such case a plaintiff desires a review on the evidence, he may prepare a case or exceptions and request the insertion therein of such findings as he might deem necessary, then in case of the judge's or referee's refusal to comply with the request, an exception to his ruling will, on appeal, present the questions involved. Before FREEDMAN, CURTIS and SPEIR, JJ. Decided January 31, 1874. Appeal from order denying plaintiffs' motion to set aside judgment dismissing their complaint for irregularity. Edward L. Andrews, for appellants. John L. Cadwalader, for respondent. BY THE COURT.-FREEDMAN, J.-Plaintiffs' notice of motion did not specify, as required by rule 46, the irregularity complained of, and for such defect alone the order appealed from might be affirmed (Lewis v. Graham, 16 Abb. Pr. 126). It appearing, however, that the motion was decided upon the merits, we have examined the question dis cussed below. The action, being an ordinary action at law, was tried, with the consent of the parties, by a judge of this court without a jury, and the sole ground of the motion was that the said judge, in rendering his decision by which the complaint was dismissed on plaintiffs' own showing, did not specify the facts found and his conclusions of law thereon. Prior to the Code, a plaintiff could be compelled, at the trial, to submit to a nonsuit, when the evidence adduced was not sufficient to support the declaration. He could not be nonsuited, if he proved all that was Opinion of the Court, by FREEdman, J. laid in the declaration, because that was available on demurrer (2 Wend. 158). But in case of the insufficiency of the proof to support the declaration, it was the duty of the court to take the case from the jury and to nonsuit (1 Wend. 376; 6 Id. 436). The power to do so was held to be inherent in the courts and to result necessarily from the fact that they are the judges of the law of the case when no facts are in dispute (Pratt v. Hull, 13 Johns. 334). By the judiciary act of 1847 (ch. 280, § 80), power was conferred upon the courts to try, with the consent of the parties, issues of fact in actions at law without a jury, and it was prescribed that the finding of a judge on such issues should in all respects have the same effect as the verdict of a jury thereon. Section 267 of the Code, as originally enacted (§ 222 of 1848), further prescribed, that such decision should be in writing, and that it should contain, first, a statement of facts, and then the conclusion of law based thereon. The latter requirement was repealed by the amendment of 1849, and remained repealed until 1860. During this period it was sufficient if the decision of the judge stated in general terms the judgment to be entered thereon, and it was necessary only for the purpose of an appeal that the proper findings of fact and of law should appear in the case or bill of exceptions, which had to be prepared or settled for that purpose (Otis v. Spencer, 16 N. Y. 610; Johnson v. Whitlock, 13 Id. 344). In 1860, section 267 was amended by the reinsertion of the requirement that upon the trial of a question of fact by the court, the decision shall contain a statement of the facts found, and the conclusions of law separately. Since that time this section has undergone further amendments in other respects, but the said requirement was retained on these occasions, and it is still in force. It applies to every case in which ultimate facts which constitute the foundation for a judgment upon Opinion of the Court, by FREEDMAN, J. the merits of the controversy, are either to be determined upon conflicting testimony or to be deduced from a number of isolated circumstances that appear in evidence (Bridger v. Weeks, 30 N. Y. 328). It therefore applies to an inquest on which the plaintiff seeks to establish the facts which have been put in issue by the answer, and which he is bound to establish by competent testimony, before he can recover. Burger v. Baker (4 Abb. Pr. 14), although decided prior to 1860, is undoubtedly good law upon this point at the present time. Whenever, therefore, findings of fact are necessary, they should not only be made, but all the facts which enter into and form the basis of the judgment to be entered upon the decision, must be found. No fact, is or can be implied from the conclusions of law; the latter follow as the result of the facts separately stated (Tomlinson v. Mayor, &c. of New York, 23 How. Pr. 452). But facts not found are necessarily negatived by implication (Sermont v. Baetjer, 49 Barb. 362; McAndrew ». Whitlock, 2 Sweeny, 623); and hence it follows that in a decision dismissing the complaint on plaintiff's own proof, which is simply a ruling that, as matter of law, the plaintiff failed to substantiate the allegations of the complaint, just as the order for a compulsory nonsuit under the old practice was a ruling that, as matter of law, the plaintiff had failed to support the declaration, and which in no wise affects the merits and does not bar another action, no special findings are necessary. Upon this point the old practice is not inconsistent with the Code, and therefore it is still in force (Code, § 469). Thus it was held in Nelson v. Ingersoll, 27 How. Pr. 1, that the defendant having failed to establish his counter-claim, the referee was not bound to find upon the facts of such counterclaim specially, but that, in finding for the plaintiff, he had negatived the counter-claim by implication. |