than those which had been submitted to the jury, and also certain conclusions of law embodying his determination of the legal effect of the facts established by the verdict and his own findings. The verdict of the jury was rendered on October 13, 1899, and the findings above referred to were dated on the same day. The attorneys for the defendants had no knowledge that the trial justice had been asked to make such findings, and their first intimation that he had signed any such paper was received as hereafter stated. It is proper to say, in passing, that there is not the slightest intimation of bad faith on the part of the plaintiffs’ attorneys in the matter, they believing that their practice was entirely regular. On November 18, 1899, plaintiffs’ attorneys noticed a motion at special term, part 3, for judgment on the verdict, and thereafter, and on December IT, 1899, they served upon defendants’ attorneys a copy of said findings, together with a notice that the same had been filed in the county clerk’s office on that day, and would be read on their motion for judgment. The attorneys for defendants now move for an order vacating and setting the same aside. It seems to me quite clear that the learned trial justice had no authority whatsoever to make any findings in the matter. The cause was not before him for final determination, but only for the trial of the issues by jury. His only function was to preside at the trial, and to submit such issues to the jury for their determination, and to cause their verdict to be returned to the court at special term for its consideration there, in proceedings to be there had for a final determination of the action. The cause is one cognizable in equity. It was properly on the special term calendar, and still continued there, notwithstanding the direction for a jury trial which had been given, and the proceedings to that end had at the trial term. The action was not transferred to the trial term, but remained on the equity side of the court awaiting the return of the verdict. When the function of the trial justice as above defined had been performed, his jurisdiction over the action ceased. He had no power to find facts which the jury had not found, much less to determine what legal conclusions should be drawn from any fact which had been, or which he deemed had been, established on the trial. All of that rightfully belonged to the court at special term, when the verdict had been duly certified to it. My conclusion is that this motion should be granted, as I am satisfied that, inasmuch as the so-called “findings” are without legal sanction for their support, they should be vacated, and eliminated from the record. They are now upon the files of this court, forming a part of the record of this cause, and may be used to the disadvantage of the defendants. Under such circumstances, and in the interest of orderly procedure and practice, it seems quite clear that the defendants are within their right in asking the court to adjudge the invalidity of this paper, and, constructively at least, to expunge it from the record. Motion granted, with $10 costs.
Motion granted, with $10 costs.