p. 231Gibson W. Fairman, App’lt, v. Charles B. Brush, Ex’r, et al., Resp’ts.(Supreme Court, General Term, First Department,Headnote
1. Referee—Code Crv. Peo., §§ 1022, 1023.The court, at special term, has power, in the interest of justice, to remit his findings to a referee with directions to make them more definite and certain by adding to them.
Where a broker brings an action to recover commissions, alleging that ■he made some eight sales, a finding by a referee that plaintiff was employed in “ individual instances, in some of which he was not fully paid,” is too indefinite.
Plaintiff brought this action against defendant as executor of John McLaren, deceased, claiming commissions under an alleged agreement with testator, whereby plaintiff was to have commissions on all sales procured by him, some eight in number. The referee to whom the case was sent found that he was employed by decedent in “ individual instances,” in some of which he was not fully paid for all the services; and this appeal was brought from an order of special term denying a motion to send the case back to the referee to make his findings of fact sufficiently definite to enable the appellant to present the point actually decided.
Theodore B. Gates, for app’lt; B. Estes, for resp’ts.
—There is nothing in §§ 1022 and 1023 of the Code of Civil Procedure which deprives the court of power to require proper findings. These sections undoubtedly change the
p. 232former 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 revisors’ note to § 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 §§ 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; Law Journal, April 22, 1891; 37 N. Y. State Rep., 537,and we no see 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 presentedi 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.
Van Brunt, P. J., and Patterson, J., concur.