p. 132Elizabeth A. Burnham, Appellant, v. Charles W. Denike and Others, Defendants, Impleaded with Mary A. Denike, Respondent.Headnote
■Mnal judgment in partition, entered, on a memorandum opinion, before the filing of a decision and of an interlocutory judgment, set aside.A final judgment in an action, tried before the court without a jury, entered . upon a memorandum opinion stating: “ Final judgment may be granted as against the plaintiff, with. costs,” before the filing of a decision embracing findings of fact and conclusions of law,-and before the entry of an interlocutory judgment providing that the question of costs should be fixed by the final judgment, should be reversed.
. In such a case, where it appears that the judge who tried the case has been assigned to the Appellate Division, a new trial should be ordered.
Appeal by the plaintiff, Elizabeth A. Burnham, from a final judgment of the Supreme Court in favor of the defendant, Mary A: Denike, entered in the office of the clerk of the county of Kings on the 11th day of August, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment in favor of said defendant, entered in said clerk’s office on the 21st day of September, 1899, upon the decision of the court.
Henry B. Heylman, for the appellant.
H. J. Morris and Percival S. Menken, for the respondent.
The appellant in this case urges that the judgment is not supported by a decision of the court as prescribed by. section 1022 of the Code of Civil Procedure. The action was tried by the court without a jury, and on the 17th day of July, 1899, the court filed a memorandum opinion in which it said: “ Final judgment may be granted as against the plaintiff, with costs.” The decision of the court, which embraced findings of fact and conclusions of law, was rendered on the ninth day of September, and on September twenty-first an interlocutory judgment was entered decreeing a partition of the premises in dispute and adjudging the defendant Mary A. Denike
p. 133to be the owner of two-thirds of the property. The .final judgment, . which is involved in this appeal, was entered on. the 11th day of August, 1899, prior to the decision and interlocutory judgment. The interlocutory judgment provided that the question* of costs (which, by the provisions of section 1022 of the' Code of Civil Procedure, must be awarded by the decision of the court or report of • the referee) should be fixed by the final judgment, and this had already been entered when the decision was made. There can be no doubt, therefore, that the judgment now before us, being without findings or a decision to support it, should he reversed.
(Hall v. Beston, 13 App. Div. 116 ;
Shaffer v.
Martin, 20 id. 304, and authorities cited.)
It appears necessary, under the circumstances, which are substantially the same as those presented in Reynolds v. Ætna Life Ins. Co. ( 6 App. Div. 254 ), that there should be a new trial. If practicable, we should remit the case to the trial court in order that proper findings or a formal decision might there be made, as was done in the two cases first above cited; .hut this course cannot be pursued, inasmuch as the judge who tried the case is now a justice of the Appellate Division in the third department.
All concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.