Edinger v. McAvoy — 134 A.D. 869

Majority

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Charles P. Edinger, Appellant, v. Thomas McAvoy, Appellant, Impleaded with Ellen McAvoy, Respondent.

Fourth Department,

November 17, 1909.

Headnote

Practice—failure to make proper findings—judgment not based on decision — appeal — costs.

Where codefendants present separate and distinct proposed findings of fact and law, and the court, instead of noting on the margin the manner in which each proposition is disposed of as required by the Code of Civil Procedure, merely signs the two proposed findings at the end and makes no decision, the two sets of findings cannot be treated as a decision.

Under such circumstances a judgment is premature.

But no costs on an appeal from such irregular judgment will be awarded to either party where it is not attacked on the ground that there was no proper decision to support it.

Separate appeals by the plaintiff, Charles P. Edinger, and the defendant, Thomas McAvoy, from a judgment of the Supreme Court in favor of the defendant Ellen McAvoy, entered in the office of the clerk of the county of Onondaga on the 3d day of April, 1907, upon the decision of the court rendered after a trial at the Onondaga Special Term, the plaintiff appealing from the whole of said judgment and the defendant Thomas McAvoy from certain parts thereof.

Charles S. Kent, for the plaintiff, appellant.

John P. Hennessey, for the appellant Thomas McAvoy.

John J. B. Hickey, for the respondent.

The record before us on this appeal contains proposed findings of fact and of law, submitted by the attorney for defendant Thomas McAvoy, and separate and distinct proposed findings of fact and law, submitted by the attorney for the other defendant. These proposed findings were evidently presented to the court pursuant to section 1023 of the Code of Civil Procedure. Instead of noting in the margin of these statements the manner in which each proposition was disposed of, as the section referred to requires, the court

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signed the two statements of findings proposed at the end of each. The record presents no other decision signed by the court.

No reference is made in either statement to the other; and, if we were permitted to consider either as a decision of the trial court, there is nothing in the papers themselves to indicate which one is to be regarded as the decision and which as the court’s disposition of proposed findings.

We think the two separate sets of proposed findings, signed by the trial judge, do not make nor can they be treated as' making the decision by the trial court required by section 1022 of the Code of Civil Procedure.

The requisite decision not having been made the judgment entered was premature. (People ex rel. Havron v. Dalton, 77 App. Div. 499 .)

No application having been made by any party to set aside the judgment for the reason that no sufficient decision had been made, or on the ground of irregularity of the decision of the trial court, no costs of this appeal are awarded to any party. (Shaffer v. Martin, 20 App. Div. 304 .)

All concurred.

Judgment reversed and case remitted to the trial judge for decision to be made nunc pro tune, without costs of this appeal to either party.