Dann v. Palmer

Headnote

Dann v. Palmer, 151 App. Div. 151 , reversed.

Appeal, by permission, from.an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 7, 1912, which affirmed an order of Special Term denying a motion that the court pass upon certain requests to find submitted in the above-entitled action.

The following questions were certified:

“1. Under the facts and circumstances disclosed in the record was it the right of defendants to have the proposed findings which they submitted to the trial justice on

December 16, 1911, ruled upon by him as prescribed by section 1023 of the Code of Civil Procedure ?

“ 2. Were said proposed findings in the form required by said section ?

“ 3. Was the Appellate Division justified, in the exercise of its discretion, in affirming the order and in refusing to require the trial justice to pass upon the propositions submitted, upon the ground that the statement thereof was not submitted in the form prescribed by section 1023 of the Code of Civil Procedure, in that it did not contain a statement of the facts deemed established by the evidence or of the rulings upon questions of law, so prepared that the court could conveniently pass thereon, or that the same was not timely submitted ?

“ 4. Was defendants’ motion at a Special Term held by the same justice a proper method of reviewing his refusal to pass upon the proposed findings ? ”