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Fairman v. Brush

27 Abb. N. Cas. 197 Court N. Y. Supreme Court, General Term, First Department; English

Delivered by Barrett, J.

Contents

Majority

p. 197
FAIRMAN v. BRUSH.
N. Y. Supreme Court, General Term, First Department;
June, 1891.

Headnote

1. Reference ; power of court to order correction of referee's findings Code Civ. Pro. §§ 1022, 1023—providing for findings of fact and conclusions of law in a referee’s report—does not deprive the court of its inherent power to send the report of a referee back to him that he may add to his findings so as to properly raise the questions presented.[1]
2. The same.] Upon a claim against the estate of a decedent for commissions in procuring sales, which had been referred under the statute, a finding of the referee that the plaintiff rendered services for the testator which the latter paid in full is too indefinite, and the report containing such finding may upon motion be sent back to the referee in order that he may find specifically on each item of plaintiff’s demand and the amount paid by testator.
Appeal from an order denying a motion to send the case back to the referee to make further findings.
Gibson W. Fairman presented a claim to Charles B. Brush as executor, and Emma S. McLaren as executrix of John McLaren, deceased, for commissions fo services in the sale of goods for testator.
The claim was referred by consent under the statute. The material finding of the referee was as follows:—“ I find that Gibson W. Fairman, the plaintiff, as a broker in the business carried on by and before the death of John McLaren, the defendant’s testator, rendered services for the said John McLaren, to wit: soliciting customers as purchasers of the testator’s goods, wares and merchandise, but that before the death of said John McLaren he paid said plaintiff in full, and
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at the time' of his death was not indebted to him, said plaintiff, in any amount whatever.”
On plaintiff’s application an order to show cause was made why the referee should not be required to make further findings, as follows: ist. Specifying the
individual instances where the plaintiff was employed and was entitled to commissions. 2d. Specifying what amount of money was paid by the testator to the plaintiff on account of such commissions; and for such other and further relief as to the court may seem just.
Ingraham, J.—Denied the motion upon the above order to show cause on the authority of Gardiner v. Schwab, 34 Hun, 582 (General Term, Third Department), which reversed an order remitting a report to a. referee with instructions to add to it, the court there (citing Gormerly v. McGlynn, 84 N. Y. 284 ; Bamc v. Neuss, 2 Civ. Pro. R. [Browne] 185 ; Palmer v. Phoenix Ins. Co., 24 Hun. 130 ).
Plaintiff appealed from the order denying the: motion.
Theodore B. Gates, for appellant.
I. The ' court had power to send back the report (citing Schultheis v. McInerny, 2 7 Abb. N. C. 193 ; In re. Boyer, 54 Hun. 190 ).
II. Parties seeking to review a judgment have a right to know the precise grounds upon which an adverse decision is put (citing Rogers v. Beard, 20 How. 282 ; Van Slyck v. Hyatt, 46 N. Y. 259 ).
Benj. Estes for respondent.
I. The report is in compliance with the Code (citing Code Civ. Pro. §§ 1022, 1023).
II. Referee is not required to negative facts (citing Nelson v. Ingersoll, 27 How. Pr. 1 ; Dolan v. Merritt, 18 Hun. 27 ).
III. After a referee has made and delivered his
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report it cannot be sent back to him with instructions to make additional findings (citing Code Civ. Pro. § 1023; Gardiner v. Schwab, 34 Hun. 582 ; Gormerly v. McGlynn, 84 N. Y. 284 ; General Rules of Practice, No. 32 ; First National Bank of West Troy v. Levy, 41 Hun, 461 ; Matter v. Kranz, 4 R. S. [8th ed.] 2562, § 37).
IV. If the court has power, there is no reason shown why further findings should be directed (citing Smith v. Smith, 43 Super. Ct. [J & S.] 140; Thompson v. Taylor, 13 Hun, 201 ; Walts v. Nichols, 32 Id. 276 ; Morehouse v. Yeager, 41 Super. Ct. [J. & S.] 135 ; First National Bank v. Levy, 41 Hun, 461 ).

There is nothing in sections 1022 and 1023 of the Code of Civil Procedure which deprives the court of power to require proper findings. These sections undoubtedly change the former practice, whereby findings, originally insufficient in form or indefinite in substance, might be clarified upon the settlement of the case. This was all that was decided in Gormerly v. McGlynn ( 84 N. Y. 284 ), where the revisers’ note to section 1023 was referred to, and their view was seemingly approved, that the method of proceeding by motion to compel findings, where the referee refuses to make them at all, has not been abolished.

Cases where the power in question has been denied have proceeded either upon a misapprehension of what was decided in Gormerly v. McGlynn, or upon a too narrow view of what was contemplated by sections. 1022 and 1023.

We have no doubt that the special term has power,, in the interest of justice, to add to the findings made by it, and we think it equally clear that the court may remit his findings to a referee for a similar purpose. We, so held, in Schultheis v. McInerny ( 27 Abb. N.

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pronounced. This is a power which is so far inherent that it would' require an express prohibition to deprive the court of its exercise. It is analogous to the power always exercised by the court over its judgments, records and proceedings in the interest of justice.

In the present case the applicatioh should have been granted. The finding that the plaintiff rendered services for the testator, which the latter paid in full, is too indefinite to raise the questions presented. The referee should have found specifically on each of the items of the plaintiff’s demand, and then he should have specifically found the amount paid.

The order should be reversed, with costs, and the motion granted.

Van Brunt, P. J., and Patterson, J., concurred.

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