Village of Palmyra v. Wynkoop — 60 N.Y. Sup. Ct. 82

Majority

p. 82

THE VILLAGE OF PALMYRA, by its President, CHARLES H. BRIGHAM, Respondent, v. ALONZO WYNKOOP and Others, as Administrators of the Estate of LYMAN LYON, Deceased, Appellants.

Headnote

Appeal-book must contain a written decision — order for judgment on the trial of a demurrer, unmcessm'y.

On. an appeal irom an interlocutory judgment, overruling a demurrer to tlie complaint, the appeal-hook must contain a decision by the court determining the issues of law made by the demurrer.

There can be no judgment on a demurrer, either final or interlocutory, without such written decision.

An order for judgment is not necessary in such a case, nor can such order take the place of a decision in writing by the court which should direct the judgment to be entered thereupon.

p. 83

Appeal by tbe defendants from an order made at tbe Monroe County Special Term, dated tbe 24th day of September, 1888, overruling a demurrer and directing tbe entry of an interlocutory judgment, and from an interlocutory judgment, entered in tbe Monroe county clerk’s office, bearing date November 20, 1888.

Tbe action was brought to trial on issues of law arising on a demurrer interposed by tbe defendants to tbe plaintiff’s complaint, to tbe effect that tbe court bad no jurisdiction of tbe subject of tbe action; that tbe complaint did not state facts sufficient to constitute a cause of action, and that tbe plaintiff bad not legal capacity to sue.

Tbe action was brought to obtain an adjudication that tbe money, chattels and credits, of which Lyman Lyon died seized, were impressed with a trust in favor of the complainant to tbe amount of $2,l'lr8.Y3, with interest.

S. B. McIntyre, for tbe appellants.

Aldrich & Sawyer, for the respondent.

Either tbe record on this appeal is not properly made up or the practice lias not been in accordance with tbe requirements of tbe Code of Civil Procedure. Tbe appeal-book contains no decision by tbe court of tbe issues of law joined by tbe demurrer.

Tbe requirement of tbe Code is positive that: “ Upon a trial by tbe court of an issue of fact or of law, its decision in writing must be filed in tbe clerk’s office within twenty days after tbe final adjournment of tbe term where tbe issue was tried,” (Sec. 1010.) And, further, “ tbe decision of tbe court * * * upon tbe trial of a demurrer, must direct tbe final or interlocutory judgment to be entered thereupon.” (Sec. 1021.) There is no room for doubt as to tbe meaning and effect of these provisions of tbe statute. There can be no judgment on a demurrer, either final or interlocutory, without a decision in writing of the issue or issues of law which have been tried. Such decision is as necessary on tbe trial of a demurrer as on tbe trial of an issue or issues of fact. In either case such decision in writing, signed by tbe judge, is what is commonly denominated tbe “findings” of the court — in tbe one case embracing findings of fact and conclusions of law, in the other case

p. 84

embracing conclusions of law only. In neither case is an order for judgment necessary, nor can sucb order take the place of the decision in writing by the court; the decision itself directs the judgment to be entered thereupon. (Sec. 1021, supra.)

By the demurrer m this case, issue was joined upon three distinct propositions of law: 1st. That the court had not jurisdiction of the subject of the action. 2d. That the complaint did not state facts sufficient to constitute a cause of action. 3d. That the plaintiff had not legal capacity to sue. These issues were to be severally decided by the court, and the only manner in which its decision could be properly entered in the judgment-roll and in the record on appeal was by the decision in writing, to be made and filed as required by the section of the statute above quoted. Without such decision the case is not properly here for review. If such decision has been made and filed, the record may be amended by its insertion. If it has been made and not filed, application may be made at Special Term for leave to file it n/une pro tunc. If such decision has not been made, and cannot be supplied by reason of the retirement from office of the judge who tried the demurrer, it would seem to be a case of mistrial, and the parties must avail themselves of such remedy as the practice affords. We must decline to consider the appeal upon the record as it stands.

All concurred.

The court declines to consider the appeal for the reasons stated in the opinion by Dwkjht, J.