Baker v. Moore

In June, 1890, a claim against the estate of Abel Scripture, deceased, was presented by the plaintiff to the executor of his last will, and by him rejected. Thereafter, in due course, the matter was referred by the surrogate. The plaintiff presented her evidence in full before the referee, and at the close thereof a motion was made on behalf of the executor to “dismiss the claim and nonsuit the plaintiff, on the m'erits” on five several grounds. Thereupon the reféree granted the motion, and made and filed his dec! sion as follows (after the usual formal statements):

“I do order, decide, and direct that the said motion be granted, and that the plaintiff’s complaint or claim * * * be dismissed on the merits, and that the defendant have judgment dismissing the same with costs, and I 03-der judgment accordingly.”

Afterwards, on motion, this decision was confirmed at special term. No other report or decision was made. This decision is not a compliance with section 1022 of the Code of Civil Procedure. There is no fact found, nor any conclusion of law stated, nor are any grounds of the decision set forth, as required by this section. A considerable amount of evidence was given which, upon such a motion, must be taken to be true. The referee gives no basis for his decision, and it. is impossible to discover on which ground set forth in the motion the decision was made, or whether on all of them. It has been repeatedly held by the court of appeals that in such case the judgment cannot be reviewed. In Wood v. Lary, 124 N. Y. 83 , 26 N. E. 338 , this was distinctly decided, and at page 87, 124 N. Y., and page 338, 26 N. E., the court say:

" “But in every case triable before a court without a jury or heard by a referee, if any evidence be presented, a decision stating separately the facts found and the conclusions of law must be made. If it be not done, the judgment cannot be reviewed.”

It is true that this decision was prior to the amendment to section 1022, allowing a decision “stating concisely the grounds” upon which it is made to be substituted for separate findings of fact and conclusions of law, but it is clear that the same rule must apply in either case. The latter portion of the section is only made to apply to cases where there are no separate findings, and entirely omits any reference to decisions which do not state the grounds on which they are based. In this case there was an unmistakable decision, and no grounds thereof are stated. The case, therefore, falls within the rule above stated. MacNaughton v. Osgood, 114 N. Y. 574 , 21 N. E. 1044 ; Gilman v. Prentice, 132 N. Y. 488 , 491, 30 N. E. 981 . The same rule prevails in the supreme court. Nobis v. Pollock, 53 Hun, 441 , 6 N. Y. Supp. 273 ; People v. Ranson, 2 N. Y. St. Rep. 78 ; Drury v. Wigg, 19 Wkly. Dig. 417 . An examination of this case discloses some important questions, however, which we think ought to be reviewed. It is possible that to refuse such review for the reason above given