Nobis v. Pollock — 26 N.Y. St. Rep. 155

Majority

p. 155

Charles T. Nobis, Resp’t, v. William J. Pollock, App’lt.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Appeal — Case—Findings—Code Civ. Pro., § 1022.

Where it appears that there has been no compliance with the provisions, of the Code Civil Procedure, § 1022, requiring the court, upon the trial of a whole issue, to state separately the facts found and the conclusions of law, and the court has filed a decision containing a finding of facts and. conclusions of law, and from the papers submitted it appears that the. court has found other facts apparently upon the request of one of the parties, and not embraced in the decision, the case will be sent back to have the proper findings prepared.

Appeal from judgment entered at special term in favor of the plaintiff in an action to foreclose several mechanic’s liens.

Almon Goodwin, J. E. Ackley and Roger Foster, for app’lt; C. B. Meyer, for resp’t.

Upon an examination of the ease as presented, it appears that there has been no compliance with the provisions of the Code, § 1022, requiring the court, upon a trial of the whole issue of fact, to state separately the facts found and the conclusions of law.

The learned court, in this case, has apparently filed a decision containing certain facts found and certain conclusions of law. But upon an investigation, in separate parts of the case we find that he has found other facts, apparently upon the request of one of the parties, and has not embraced them in his decision which is filed. This is clearly not a compliance with the provisions of the Code, and renders it impossible for this court to review the judgment upon a record so imperfectly made up.

All the findings of fact on which the judgment is founded formed part and parcel of the judgment-roll, and it will be seen by reference to § 1023 that the papers which are submitted to the court, containing requests to find upon behalf of either party and upon which the court is bound to rule, form no part of the judgment-roll because the court has a right either to file these papers or to return them to rhe attorneys, his rulings having been entered thereon; and we have further significant provision that the omission to note these rulings thereon shall not affect the validity of the decision or report, making it apparent that these papers form no part of the judgment and no part of the decision of the court. Therefore, the only purpose which they would serve is as the basis of an exception to a refusal to find

The case must, therefore, be sent back in order to have the proper findings prepared

Daniels and Brady, JJ., concur.