p. 441CHARLES T. NOBIS, Respondent, v. WILLIAM J. POLLOCK and Others, Appellants.Headnote
Trial by the court — the findings of fact must be included in the decision — Code of Civil Procedure, sec. 1022."Upon an appeal from a judgment in favor of tlie plaintiff, in an action brought to foreclose several mechanics’ liens, it appeared that the court had filed a decision containing certain facts found and certain conclusions of law, and in a separate part of the case, it appeared that the court had also found other facts, apparently upon the request of one of the parties, and had not embraced them in its decision.
Jleld, that this was clearly not a compliance with the provisions of section 1022 of the Code of Civil Procedure, and rendered it impossible for this court to review the judgment upon a record so imperfectly made up.
Appeal from a judgment in favor of the plaintiff, recovered :at a Special Term beld in tbe county of New York, which was entered in the office of the clerk of the county of New York on November II, 1888.
Almon Goodwin, J. E. Ackley and Roger Foster, for the appellants.
C. B. Meyer, for the respondent.
Upon an examination of the case, as presented, it appears that there has been no compliance with the provisions of the Code of Civil Procedure, section 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 con elusions 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.
p. 442All the findings of fact of wbicli the judgment, is founded form part and parcel of the judgment-roll, and it will be seen by reference to section 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 the 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.
Beady and Daniels, JJ\, concurred.
Case sent back in order to have proper findings prepared.