¶1The referee dismissed the complaint for failure of proof. He expressly states it was “not on the merits.” He passed upon "the requests of both parties to find, and refused to make the findings proposed by either side. Where there is an entire failure to prove the allegations of the complaint, and, as in this case, no evidence is offered by the defendants, and the motion to dismiss is made and granted on the ground that the allegations of the complaint have not been proven, fit is difficult to see what findings of fact could have been made, unless *754the failure to prove the plaintiffs’ case entitled the defendants to absolute findings of fact in their favor on the issues raised, and, if that were so, they would have been entitled to a judgment on the merits. Wood v. Lary, 124 N. Y. 87, 26 N. E. Rep. 338, is a case in which the complaint was dismissed “on the merits of the case,” and the general statement in the opinion that in every case a judge or referee must find facts separately is based on the authority-of Bridger v. Weeks, 30 N. Y. 328, while there was very conflicting testimony on both sides, and the decision of the- court below went upon the ground that the plaintiff had mistaken her remedy.
¶2In the case at bar the referee could find no facts, for none were proven. He held there was a complete failure of proof to establish any, and the motion to send back his report must be denied, with $10 costs.