p. 312CATHARINE S. HUNTER, Respondent v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.Headnote
Practice—Marking requests to find pursuant to section 1023 Of the Code of Civil Procedure—When general endorsement at foot of findings sujfi- • dent.The action was for an injunction and incidental damages against defendants’ elevated railroad. The trial court failed to note its disposition of the proposed findings of fact and conclusions of law in the margin opposite each proposition as required by section 1023 of the Code of Civil Procedure, hut endorsed upon the proposed findings and conclusions the following ruling: “ Each of the within requests is to he marked 1 Refused,’ except so far as covered by the findings of fact and conclusions of law settled and signed by me.” Held, that while this mode of passing upon defendants’ propositions was not in strict compliance with the provisions of section 1023 of the Code of Civil Procedure, the court did indicate the manner in which each proposition had been disposed of and hence complied substantially with the statute. The question, however, is not properly presented by the record to the general term.' The better practice would have been to apply to the court below to have the omission complained of supplied, or the mistake, if one, corrected, and, in case of refusal, to, have made the application and refusal a part of the record.
Before Dugro and Gildersleeve, JJ.Appeal by defendants from a judgment entered upon the decision of a judge rendered after trial at special term. The facts are' sufficiently stated in the opinion.
Davies & Rapallo, attorneys, and R. L. Maynard of counsel, for appellants.
p. 313Ira O. Miller, attorney, and David B. Ogden of counsel, for respondent.
The judgment directs that the plaintiff! recover of the defendants the sum of $12,556.25, damages and interest, and $941.23, costs and extra allowance. It also restrains defendants from maintaining or using them elevated railway in front of plaintiff’s premises, unless the defendants shall, within the time and in the manner specified therein, pay to the plaintiff the sum of $12,000, with interest from the date of this judgment, in exchange for a conveyance and release of the property appropriated hy the defendants.
A fair preponderance of evidence sustains the findings of the court below, and justifies the judgment. There are no exceptions to the admission or exclusion of evidence that are of sufficient importance to require discussion.
The omission of the court below to comply strictly with the letter of section 1023 of the Code of Civil Procedure would not warrant a reversal of this judgment. It will not be denied that if the court below disregarded defendants’ requests and made no response to any of them, it neglected its duty ; and if the error prejudiced the appellants, the judgment should he reversed (Matter of Hicks, 14 State Rep., 323); but if such neglect is not prejudicial to the appellants, it is not ground for reversal. Uhlenhaut v. Manh. Ry. Co., 18 N. Y. Supp., 797 .
Section 1023 of the Code provides that “ at or before the time when the decision or report is rendered, the court or referee must note in the margin of the statement the manner in which each proposition has been disposed of,” etc. The court below endorsed upon the defendants’ proposed findings of fact and conclusions of law the following ruling : “ Each of the within requests is to be marked ‘Refused,’ except so far as
p. 314covered by the findings of facts and conclusions of law settled and signed by me.” This is not a strict compliance with the requirements of section 1023 of the Code, inasmuch as this ruling was endorsed upon the proposed findings, instead of being noted in the margin of the statement, as required by the statute. The action of the court below did, however, indicate “ the manner in which each proposition has been disposed of,” but did not note it “ in the margin of the statement.” Hence, although it is not an absolute compliance with the terms of the statute, it is a substantial compliance (Livingston
v. Manh. Ry. Co., 17 N.
Y. Supp., 486 ); for the purpose of the section is, doubtless, to require the court or referee to pass upon each request, and indicate the manner in which it has been disposed of. In the case at bar, each and all of defendants’ requests were refused, except so far as they had been covered by the findings settled and signed by the court. This disposes of the requests substantially in accordance with the purpose of the section referred to.
In the case of Livingston v. Manh. Ry. Co., supra, the general term of this court held that, “ While, therefore, it maybe technically the duty of a judge or referee to pass upon such requests, that duty will be fully performed by a specific denial of each and every one of them demanding a fact to be found which either is immaterial or has already been substantially covered by the findings embodied in the decision or report.” And in the case of McCulloch v. Dobson, 30 N. E. Rep., 641 , the Court of Appeals held that the omission of a referee to indicate upon the margin of the paper or otherwise his disposition of certain propositions of fact and law submitted to him, under section 1023 of the Code, is not ground for reversal, where “the propositions- were nearly all either covered by the findings made by the referee, and stated in his report, or they were immaterial.”
p. 315In any view, we do not think the grounds here urged for reversal are properly before the general term. The better practice in such a case would have been to apply to the court below to have the omission supplied or mistake, if one, corrected, and, in the event of the request being refused, to have made the application and refusal a part of the record. Such a course would have enabled the court below to supply an omission that might have been the result of oversight or mistake, and would have secured the presentation of a record prepared in accordance with the views of the trial judge. McCulloch y. Dobson,
supra.We are of opinion that the judgment appealed from should be affirmed, with costs.
Dugro J., concurred.