Kent v. Common Council of Binghamton — 90 A.D. 553

Majority

p. 553

George A. Kent, an Abutting Owner on Court Street and a Taxpayer of the City of Binghamton, Respondent, v. The Common Council of the City of Binghamton and The Binghamton Railroad Company, Appellants.

Headnote

An unsigned opinion, stating after a discussion of the facts and the law “ Judgment is granted accordingly, with costs,” is not a decision — if otherwise sufficient, the statement as to costs is defective.

An unsigned opinion written by a justice who presided at the trial of an action at the Special Terfti, which after a lengthy discussion of the facts and law concludes as follows: “If I am correct in the conclusions reached, the plaintiff is entitled to the relief demanded in his complaint and to a permanent injunction restraining the municipality from enforcing the tax levied. Judgment is granted accordingly, with costs,” cannot take the place of the formal decision required by" section 1022 of the Code of Civil Procedure, and in the absence of such a decision, the judgment rendered' in the action will be reversed and the case remitted to the Special Term for a decision.

Semble, that the' case being one in which costs were in the discretion of the court, even if the opinion could be regarded as a decision, it did not comply with the provision of the Code which directs that “ in an action where the costs are in the discretion of the court, the decision or report must award or deny costs, and if it awards costs, it must designate the party to whom the costs to be taxed are awarded.”

Appeal by the defendants, The Common Council of the City of Binghamton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of April, 1903, upon, as stated in said judgment, the decision of the court, rendered after a trial at the Broome Special. Term, restraining the defendants from collecting any part of the expense of paving a certain portion of Court street in the city of Binghamton.

C. A. Collin, for the appellants.

D. H. Carver, for the respondent.

The record on appeal does not show that there has been any decision in this case as required by section 1022 of the Code of Civi Procedure. The attorneys have apparently regarded the unsigned

p. 554

opinion of the learned justice at Special Term as a decision, and tipon that alone the clerk has entered the judgment which has been appealed from. The opinion, after a lengthy discussion of the facts and law, concludes as follows: “If I am correct in the conclusions reached, the plaintiff is entitled to the relief demanded in his complaint and to a permanent injunction restraining the municipality from enforcing the tax levied. Judgment is granted accord ingly, with costs.”

This is an action where the costs are in the discretion of the court, and the section of the Code alluded to provides that “ in an action where the costs are in the discretion of the court,, the decision or report must award or deny costs, and if it awards, costs, it must designate the party to whom the costs to be taxed are awarded.” Even if the opinion could properly be regarded as a decision, the clause quoted therefrom, which is all there is touching the question of costs, shows that there has been no compliance with this provision of the Code and that the court has not designated the party to whom the costs to be taxedare awarded. We think, however, that the opinion cannot stand in the place of the formal decision required by the Code. It is apparent it was not intended as such, and if it was intended by the justice as a “ short. decision ” he would undoubtedly have signed it and he' would have inserted therein proper directions concerning the entry of the judgment and in relation to costs. As it is, there has been no compliance with the section referred to as it stood, at the time of the trial, which was before the amendment thereto made by chapter 85 of the Laws of 1903, and which section required the decision to “ state separately the facts found and the conclusions of law,” or to state “concisely the grounds upon which the issues have been decided,” and in either case to “direct the judgment to be entered thereon.” (See Laws of 1895, chap. 946.) The judgment, therefore, has been entered ' without any decision upon which to base it. The case has been tried, but so far as this record show's lias not been decided. It is true that the justice has expressed the opinion that the plaintiff is entitled to the relief demanded in the complaint, but on that opinion a formal decision should have been prepared as required by the Code as a foundation for the judgment. The section of the Code cited requires that the decision when filed shall form part of

p. 555

the judgment roll, and the stipulation annexed to- the record is, that it contains a true copy of the judgment roll. No decision being found therein, we may assume that none has been filed and that the judgment, so far as this record shows, has been wrongly entered.

■ There are numerous authorities to the effect that in a situation like this the appeal is not in a condition to be heard upon the merits. (Hall v. Beston, 13 App. Div. 116 ; McManus v. Palmer, Id. 443 ; Burnham v. Denilce, 54 id. 132 ; Osborne v. Heyward, 40 id. 78; Peynolds v. ¿Etna Life Insurance Go., 6 id. 254; Shaffer v. Martin, 20 id. 304; Wood v. Lary, 124 N. T. S3.)

No motion having been made to vacate the judgment for want of a decision, we must reverse it and will do so, without costs to either party, and remit the case to the Special Term for decision.

All concurred.

Judgment reversed, without costs, and case remitted to Special Term for decision.

Cases cited

Hall v. Beston 13 App. Div. 116 N.Y. App. Div. 1897-01-26 p. 555