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Schley v. Andrews

151 N.Y.S. 429 Court N.Y. Sup. Ct. English

Delivered by GIEGERICH, J.

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p. 429
SCHLEY v. ANDREWS.
(Supreme Court, Special Term, New York County.
October, 1914.)

Headnote

1. Trial (§ 395[1] ) — Findings-of Fact — Evidentiary Facts.
Findings are not reguired on evidentiary facts leading to the ultimate facts, but should be confined to the ultimate facts in issue under the pleadings.
[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. § 395.*]
2. Trial (§ 395*) — Conclusions of Law — Contents.
Findings of law should be conclusions of law from the facts found, and should not include argument or comment.
Action by James Monfort Schley, Jr., against Morna Cliff Andrews, formerly known as Morna Cliff Schley. Order made on request for findings.
Herman Joseph, of New York City, for plaintiff.
James Spiller, of Snyder, Tex., for defendant.

The plaintiff has submitted only proposed findings of fact. If he does not intend to submit any proposed conclusions of law, then let a copy of such proposed findings-be served on the defendant’s attorney within two days after the publication of this memorandum. On the other hand, if the plaintiff wishes to submit proposed conclusions of law, as well as requests for findings of fact, he may withdraw the proposed findings already submitted' and serve new requests within the time above mentioned.

p. 430
[1] Many of the defendant’s requests for findings of fact are purely evidentiary in character. Findings are not required on evidentiary facts leading to the ultimate ones (2 Nichols, Practice, p, 2380), but should be confined to the ultimate facts in issue under the pleadings (Adler v. M. E. R. Co., 138 N. Y. 173 , 178, 33 N. E. 935 ; Jacobson v. Brooklyn Lumber Co., 184 N. Y. 152 , 158, 76 N. E. 1075 ; Tyndall v. Pinelawn Cemetery, 151 N. Y. Supp. 428 ).

[2] The findings of law should be conclusions of law from the facts found, and they should not include argument or comment. 2 Nichols, Practice, p. 2381. Many of the defendant’s proposed conclusions of law violate these rules. If the defendant’s counsel desires, he may, within two days after the publication hereof, withdraw the requests heretofore submitted, and substitute, with proof of service, corrected requests for findings. The papers have in the meanwhile been returned to the custody of the clerk.

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