New York Institution for Instruction of Deaf & Dumb v. City of New York

Headnote

N. Y. Inst, for Deaf & Dumb v. City of New Yorh, 181 App. Div. 184 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 18, 1918, which affirmed an order of Special Term denying a motion to vacate and set aside the return by the defendant of a notice of exceptions and notice of filing the same, previously

served upon said defendant. The following questions were certified: “ 1. In an action in the Supreme Court, brought under section 1638 of the Code of Civil Procedure to quiet title to real property, where an issue of fact is joined and defendant in its answer claims an estate in said property, and at the close of a trial had before a jury at defendant’s request, under the provisions of section 1642 of said Code, the evidence of both parties having been put in in full, should the trial court, who submitted two of the many material "questions of fact to the jury at defendant’s request, and thereafter, on defendant’s motion, set aside the jury’s findings in plaintiff's favor on the questions submitted and dismissed the complaint, the defendant asking no determination as to its estate in the property as set forth in its answer, have passed upon proposed findings of fact and conclusions of law, which plaintiff deemed warranted by the evidence and duly submitted by the plaintiff before the complaint was dismissed? 2. Was it the duty of the trial court to have made findings of fact and conclusions of law as a basis for its decision in the above-entitled action? 3. Did plaintiff have the legal right to have the proposed findings of fact and. conclusions of law appearing in the record and submitted by it to the trial court passed upon by said court? 4. Should defendant be compelled to receive and retain the notice of exceptions duly filed and served by the plaintiff appearing in the record? ”