Palmer v. Phenix Insurance

Headnote

Settlement of case — judge or referee cannot malee additional findings on — Code of Civil Procedure, § 1023.

Under section 1023 of the Code of Civil Procedure, and the other sections thereof touching the subject, a judge or referee cannot be required or per-,

mitted to make additional findings of fact or of law upon the settlement of the case, after his report or decision has been rendered.

1S0 far as Rule 32 conflicts with these sections it is inoperative.

Appeal from, an order made at a Special Term, denying a motion for a re-settlement of the case, and exceptions herein.

Judgment in favor of the plaintiff having been entered upon bhe trial of this action by the court without a jury, the defendant's counsel proposed a case on which to review the judgment herein, in which he inserted twenty-two new findings of fact, and four new conclusions of law, which he had not requested the court to pass upon before the case was decided. The plaintiff proposed .an amendment striking all these findings out. Justice Tappan •allowed the amendment “ on the ground that no proposed findings were submitted to* the court before decision and judgment, and none can be made on settlement of the case.” The defendant then moved, before the same justice at Special Term, for an order ■•directing him to re-settle the case, and allow the proposed findings, •conclusions and exceptions. This motion was denied, and defend.aut appeals from the order denying it.