Fairman v. Brush — 15 N.Y.S. 44

Majority

p. 44

Fairman v. Brush et al.

(Supreme Court, General Term, First Department.

June 12, 1891.)

Headnote

1. Recommitting Report of Referee—Inherent Power of Court.

There is an inherent power in the supreme court of New York to remit a report to a referee with directions to make his findings more definite and certain, and there is no statutory prohibition of that power. Following Schultheis v. Melnernu, 13 N. Y. Supp. 6S4.

2. Report of Referee—Insufficient Finding.

In an action by a merchandise broker to recover commissions for services rendered defendant’s testator, a finding by a referee that plaintiff rendered services to testator, for which testator paid in full, was too indefinite. ' The referee should have found, specifically, each item of plaintiff’s demand, and then, specifically, the amount paid thereon.

Appeal from special term, New York county.

Action by Gibson AV.. Fairman against Charles B. Brush, executor of John McLaren, deceased. McLaren, in his life-time, was a manufacturer of steam-engines, and plaintiff claimed that he had an agreement with decedent whereby he (plaintiff) was to have commissions on all sales procured by him. He claimed to have procured eight different customers for decedent, and that he was entitled to 10 per cent, commission on the amount of decedent’s sales to them. The case was sent to a referee, who found that plaintiff was employed by decedent in “individual instances,” in some of which he was entitled to compensation, but that the proof failed to show that he was not fully compensated for all such services. ‘From an order denying his motion to require the referee to make more definite findings, plaintiff appeals. Code Civil Froc. N. Y. § 1022, provides: “The decision of the court, or the report of the referee, upon the trial of the whole issue of fact, must state separately the facts found and the conclusions of law; and it must direct the judgment to be entered thereupon. 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 costs, to be taxed, are awarded.” Section 1023 provides; “Before the cause is finally submitted to the court or referee, or within such time afterwards, and before the decision or report is rendered, as the court or referee allows, the attorney for either party may submit, in writing, a statement of the facts which he deems established by the evidence, and of the rulings upon questions of law which he desires the court or referee to make. The statement must be. in the form of distinct propositions of law or of fact, or both, separately stated; each of which must be numbered, and so prepared, with respect to its length and the subject and phraseology thereof, that the court or referee may conveniently pass upon. At or before the time when the decision or report is rendered, the .court or the referee must note, in the margin of the statement, the manner in which each proposition has been disposed of, and must either file, or return to the attorney, the statement thus noted; but an omission so to do does not affect the validity of the decision or report. ”

p. 45

Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.

Theodore B. Gates, for appellant. B. Estes, for respondent.

There is nothing in sections 1022 and 1023 of the Code of Civil Procedure which deprives the court of po.wer to require proper findings. These sections undoubtedly change the former practice, whereby findings originally insufficient in form or indefinite in substance might be clarified upon the settlement of the case. This was all that was decided in Gormerly v. McGlynn, 84 N. Y. 284 , where the revisers’ note to section 1023 was referred to, and their view was seemingly approved,—that the method of proceeding by motion to compel findings, where the referee refuses to make them at all, has not been abolished. Cases where the power in question has been denied have proceeded either upon a misapprehension of what was decided in Gormerly v. McGlynn, or upon a too narrow view of what was contemplated by sections 1022 and 1023. We have no doubt that the special term has power, in the interest of justice, to add to the findings made by it, and we think it equally clear that the court may remit his findings to a referee for a similar purpose. We so held in Schultheis v. McInerny, 13 N. Y. Supp. 684 , and we see no reason for altering the opinion there pronounced. This is a power which is so far inherent that it would require an express prohibition to deprive the court of its exercise. It is analogous to the power always exercised by the court over its judgments, records, and proceedings in the interest of justice. In the present case, the application should have been granted. The finding that the plaintiff rendered services for the testator which the latter paid in full is too indefinite to raise the questions presented. The referee Should have found specifically on each of the items of the plaintiff’s demand, and then he should have specifically found the amount paid. The order should be reversed, with costs, and the motion granted. All concur.

Cases cited

Gormerly v. McGlynn 84 N. Y. 284 N.Y. 1881-03-01 p. 45