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FORM No. 1748. Decision (i. e., findings of fact and conclusions of law, with direction for judgment) by judge, after a trial.13

At a Special Term"4 [etc.; see

Form 820, p. 1174). [Title of action.]

The issues of fact [if only part of them, indicate what, as thus: raised by the answer of the defendant Y. Z.) coming on to be tried by the court at a Special Term held by the undersigned without a jury, * and having been tried on the day of , hard and the 19 , and the allegations and evidence of the parties having been heard; 7 now, after hearing A. T. for the plaintiff, and Z. T. for the defendant, and due deliberation having been had, I decide and find as follows:

posed findings ex parte. Bernheim v. Bloch, 45 Misc. 581, 91 N. Y. Supp. 40. But the practice is more com monly to stipulate that both sides may await indication from court or referee of his intended determination, and secure his opinion if any; then for the prevailing party to submit proposed decision on a notice of settlement to the adversary. The un. successful party must submit his proposed requests at the time specified in the notice of settlement, which is the limit of the power to stipulate. See note 10, supra.

13 See note 9 at beginning of this section.

A judgment entered without a de: cision which conforms to the requirt. ments of $ 1022 as now existing, is unauthorized, and must either be re. versed on appeal and a new trial or dered, or the cause remitted to the Special Term for the making of a proper decision. See Wise c. Coheu, 113 Anp. Div. 859; Lentschner . Lentschner, 80 Apr. Div. 43, 80 N. Y. Supp. 146; Burnham 1. Denike, 54 App. Div. 132, 54 N. Y. Supp. 132; aff'd, 167 N. Y. 625; Shaffer v. Martin, 20 App. Div. 304, 46 N. Y. Supp. 992; Halì i. Beston, 13 App. Div. 116, 43 N. Y. Supp. 304. The rule is the same although the action is at law, in which a jury was waived. Elec.

Boat Co. r. Howey, 96 App. Div. 410, 89 N. Y. Supp. 210.

Such a judgment may also be va. cated on motion. Wise r. Cohen, 113 App. Div. 859; Dobbs v. Brinckerhoff, 98 App. Div. 258, 90 N. Y. Supp. 480.

A decision which merely directs the judgment, but which contains no findings or conclusions of law, affords no basis for the judgment. Newman v. Mayer, 52 App. Div. 209, 65 N. Y. Supp. 294, 7 Anno. Cas, 497.

On settlement of findings, the successful party should see that there are none inconsistent, as the adver'sary is entitled to the benefit of the findings most favorable to him. Nickell r. Tracy, 184 V. Y. 386; Schwinger v. Raymond, 83 N. Y. 193. For this purpose examine the adversary's requests to find; and if any have been granted which are not consistent with the findings, ask re-settlement.

The judge or referee should deter: mine all the material facts, not merely those which may suffice to lead to judgment. Sixth Ave. R. R. Co. v. Gilbert Elev. Ry. Co., 3 Abb. N. C. 372.

It is wholly insufficient for the decision to merely state the evidence as given by the witnesses, and then draw a conclusion unsupported by any finding of fact. Dougherty v. Lion Fire Ins. Co., 183 N. Y. 302.

14 See Vol. I, p. 217, note 18.

FINDINGS OF Fact.15 I. [State each proposition found, separately, and number them.]

ConclusiONS OF Law.17 I. [State each conclusion separately, is and number them.] I accordingly direct judgment $ for (plaintiff] against [defend

15 The findings must be distin. to a finding to the contrary, so as to guished from the conclusions of law. obviate an omission to find upon that A referee's report containing num- issue in the decision. Id. bered paragraphs, but not showing Facts found at request of unsucwhich are the facts found and which cessful party must be incorporated. his conclusions, is insufficient. Led Hudson, etc., R. Co. ('. Jackson, 115 erer 1. Lederer, 108 App. Div. 228, App. Div. 168. 95 N. Y. Supp. 623. See, also, Jeff. Au crroneous finding of fact, luless Co. Bank r. Dewey, 181 N. Y. 98. a mistake in the nature of a clerical

The Court of Appeals is confined error, can only be corrected upon apto the findings as made, and camot peal. Erroneous conclusions of law, add to them, Sweet v. Henry, 173 inacvertently made, may be corrected N. Y. 268; Hay r. Knauth, 169 id. by the trial court before the time to 298.

appeal from the judgment has er: No special forin is essential to con- pired. Rockwell v. Carpenter, 25 fun, stitute a finding of fact. Crawford 529; Coffin v. Lesster, 36 Hun, 317; v. Halsey, 124 U. S. 648, holding that aff'd, 110 N. Y. 645; Bohlen r. lict. the words, “considering that an as: El. R. Co., 31 St. Rep. 888, 121 . Y. signment was made by A. to B. ..

546; Boyd . Campbell, 12 Misc, 351, it is adjudged,” etc., was a finding of 33 N. Y. Supp. 557; aff'd, 146 N. Y. fact.

403. So finding a party guilty of the The Appellate Division cannot adultery as charged in the answer, is make an affirmative finding of fact suhciently formal. Pollock v. Pole and overturn a contrary tinding of lock, 71 N. Y. 137. But a finding that the trial court, although it may supall the material allegations are true ply a finding warranted by the deciis not sufficient. Nor is a finding that sion on the facts as made and neces. fraudulent statements were made, but sary to sustain the judgment. See specifying no statement. Everett V. Levin v. Dietz, 106 App. Div. 203, Everett, 180 N. Y. 452.

94 N. Y. Supp. 419. A finding contrary to an admission When a decision with findings has in the pleadings is error unless the been unanimously affirmed at tie Apadmission has been waived. Dunham pellate Division, the only question or v. Cudlipp, 94 N. Y. 130; Rodgers 6. determination by the Court of Ap. Clement, 162 id. 422. The findings peals is whether such facts authorized need not include facts admitted in The judgment rendered. Ide 1. Broki, the pleadings. Jacobson v. Brooklyn 178 N. Y. 26. Lumber Co., 184 N. Y. 152. A find. 17 A correct decision based on a ing founded on an admission in the wrong reason will be allowed to stand, pleadings, without evidence, shoull if no prejudice be shown. Ward o. not deviate from the admitted alie Hasbrouck, 169 N. Y. 407. gations, either affirmatively or nega Direction for judgmeni, or a con: tively. Bonn v. Steiger, 21 Hun, 219. clusion of law equivalent thereto, is

16 Every issue of fact tendered by essential. Benjamin C. Allen, 33 the pieadings must be passed upon Hun, 115. and decided, one way or the other, in A direction for judgment may the findings incorporated in the de. arail as a sufficient conclusion of law, cision, otherwise a mistrial results. Jurphy v. Snyder (Cal., 1885), 3 Pie. Morehouse 1. Brooklyn Heights R. R. Rep. 2. So a conclusion of law may Co., 185 N. Y. 520. And a refusal to avail as a direction for judgment. find a fact at the request of the un- Hathaway v. Russell, 46 N. 1. Super. successful party is not tantamount Ct. 103.

18 Harris 1. Hey (Pa., 1886), 2 Cent. Rep. 530.

ant]19 for [stating sum or special relief, or may say: for the relief as demanded in the complaint: for direction of interlocutory judgment, see Form 1793], with costs,20 which are hereby awarded to the [plaintiff] against the [defendant] to be taxed. [Such judgment to be entered nunc pro tunc as of the day of

, 19 , being the day on which this cause was finally submitted.721

[Or, where the defendant is successful, substitute at $: for defendant dismissing the plaintiff's complaint on the merits22 — or, specify any affimative judgment awarded with costs, etc.]

[Signature of judge in full,23 with title.]25a For the test of the distinction be. Hun, 82; Law r. McDonald, 9 Hun, tween findings of fact aud ut law, 23 (compare N. Y. Code Civ. Pro., compare Sun Mut. Ins. Co. 2. Ocean § 3230); Dill 1. Wisner, 88 N. Y. 153, Ins. Co., 107 U. S. 485, 506; s. c., 12 2 Am. Prob. 509. Ins. L. J. 194; Sohn 1. Freibery, 3 The remedy for error in the exer. Cinc. L. Bul. 290; Spies «. Nat. City cise of discretion in the direction as Bank, 174 N. Y. 222; Hotchkiss v. to costs, in findings, is to except ani! sher, 48 N. Y. 478.

appeal (Rosa 1. Jenkins, 31 Hun, 384; But compare Briggs 1. Briggs, 46 and see Adams v. Sullivan, 42 id. Vt. 571.

278); not by motion (Woodford 1. As to difference in effect between Bucklin, 14 Hun, 444). But where a finding of fraud as matter of fact the costs are not discretionary, a dis. and as a conclusion of law, see 38 regard of the statute ruie should be Hun, 482. It will not do to state corrected on motion. Boardway 1. findings of fact as if they were find- Scott, 31 Jun, 378. ings of law, or conversely. Eilers v. 21 Such a provision is proper, and Boatman, 111 U. S. (Davis) 356; within the power of the court, to Sun Blut. Ins. Co. v. Ocean Ins. Co., avoid the embarrassment of soine fact 107 U. S. 485, 501; Hays v. Miller, arising subsequent to submission and 70 N. Y. 112; Jarvis i. Jarvis, 66 before decision, e. g., the birth of a Barb. 331. Although for the purpose child entitled to representation. See of sustaining a judgment, where the Jewett v. Schmidt, 108 App. Div. 322, evidence is all in the record, and un- 95 N. Y. Supp. 631. disputed, a conclusion of law may be 22 When the trial judge or referee treated as a finding of fact. Germ. inay properly dismiss upon the merits, Life Ins. Co. v. Casey, 98 App. Div. see Deeley v. Heintz, 169 N. Y. 129; 88, 90 N. Y. Supp. 418.

Woodbridge v. First Nat. Bank, 166 19 A positive direction of judgment id. 238. These cases seen authority is necessary. Reynolds v. Ætna Life for the proposition that whenever a Ins. Co., 6 App. Div. 254, 39 N. Y. decision containing findings is propSupp. 885. And it should clearly erly made, the judgment in defendspecify the provisions of the judgment ant's favor should be on the nierits. to be entered, for the guidance of See, also, Freedman v. Sirota, 109 the clerk.

App. Div. 874; and notes to Form 20 Costs in equity cases do not de. NO. 1776. pend on any statute, nor do they ab. 23 Signature is necessary. Benja. solutely depend on the determination min v. Allen, 35 Hun, 115; Smith v. of the cause. Belmont v. Ponvert, 38 Davidson, 45 Ind. 396; Service v. N. Y. Super. Ct. 425; compare Biddle Gambrel (Ind., 1887), 9 West. Rep. 0. Tomlinson, 6 Cent. Rep. 903; Couch 94; but see Bietman v. Hopkins, 7 0. Millard, 41 Hun, 212, rev'g 8 Civ. West. Rep. 264; McNaughton r. Pro. Rep. (Browne) 431; S. C., 3 Chave, 5 Abb. N. C. 225. How. Pr. (N. S.) 22; Daniel's Chan. As to signing nunc pro tunc, see cery Pr., p. 1394.

Fulton r. Fulton, 8 Abb. N. C. 210. And this rule was not allered by 23a Must be filed within twenty the new Code. Black v. O'Brien, 23 days after adjournment of term. FORM No. 1749. Notice of decision or report, and entry of judgment thereon, to limit time

to file exceptions to findings or refusals; to make case; and to appeal.A [Entitle, unless indorsed on copy.]

Please take notice, that the within [or, the foregoing] is a copy of the decision of Mr. Justice J. K. [or, the report of the referee] herein, which was duly filed in the office of the clerk of , on this [or, the] day of , 19 , (and if also desired to limit time to file exceptions, make a case, and to appeal, serve at the same time a correct copy of the judgment, with a notice of its entry. ] 25

[Date, signature, and addresses, as in Form 1656.]

II. EXCEPTIONS; CASE; AND NEW TRIAL.

FORM No. 1750 Notice of exceptions to findings and refusals to find of court (or referee),

after a trial.26 [Title of court and cause.]

The plaintiff [or, the defendant Y. Z.]27 hereby excepts to the decision of Mr. Justice J. K. [or, the report of R. F., Esq., the

But failure so to do will only result in the Special Term, upon motion, fixing a future time for filing. Code Civ. Pro., $ 1010.

24 By N. Y. Code Civ. Pro., $ 994, service of a copy of the decision, or report of the referee, with written notice of the entry of judgment, is necessary to limit the time within which to except; and the limit is ten days thereafter.

By Gen. Rule No. 32 the like notice and copy is necessary to limit time to make a case, or a case and exceptions, or case containing excep. tions, and the limit is thirty days.

By Code Civ. Pro., & 1351, service of a copy of the judgment, with writ. ten notice of its entry, is necessary to limnit the time to appeal; and the limit is thirty days. Service of the judgment and notice for this latter

27 Parties not absolutely united in interest should file separate excep. tions; if joint exceptions are filed, they will be sustained only if good as

purpose does not avail for the former, without a copy of the decision or report. Schwartz v. Weber, 18 Abb. N. C. 60, 103 N. Y. 658.

The unsuccessful party may lake a case and exceptions without wait. ing for the entry of judgment and notice thereof. 18 Abb. N. 1., 53, note.

25 See Form 2036 and notes.

26 Under N. Y. Code Civ. Pro., $ 994, file in clerk's office, and serve copy on the attorney for each adverse party (and this includes co-defendants adversely affected), with notice of filing indorsed, within ten days after writ. ten notice and copy of decision or re. port filed, and of entry of judgment thereon. But it is not necessary to await judgment.

The “ notice of exceptions," or, as it is often called, the exceptions, to all the parties jointly excepting. See Bosley v. Nat. Mach. Co., 123 N. Y. 550.

referee] herein filed in the office of the clerk of the county of

on the day of , 19 , in the following particulars :

referring to exceptions taken after triał, by way of objections to the con elusions of law, is to be distinguished frcin the paper known as “excepticns," and formerly called bill of exceptions, referring to exceptions taken at the trial to rulings made in its progress.

For the purpose of reviewing objections to rulings at the trial, the party must have an exception noted at the time in the minutes, and if he subsequently niakes a case containing exceptions or a bill of exceptions, those trial exceptions will then appear in their place in the narrative of the proceedings on the trial. An appeal from the judgment, on a case, will bring these trial rulings up ior review, although no exceptions to thc decision were filed. Pilz v. Yonkers R. R. Co., 83 App. Div. 29, 82 N. Y. Supp. 220; Lanier v. Hoadley, 42 App. Div. 6, 58 N. Y. Supp. 165.

But for the purpose of interposing exceptions to the conclusions of the judge or referee embodied in the decision or report as filed, and to the refusal of the judge or referee to find as requested, the party must, after the decision or report has been filed, serve and file a notice of exceptions, as in the above Form. Dunleavey w. Dunleavey, 88 Ápr. Div. 601, 84 N. Y. Supp. 562; Nat. Prot. Assoc. v. Cum ing, 53 App. Div. 227, 65 N. Y. Supp. 946.

The exceptions interposed by this notice may afterward be incorporated wi!h any exceptions taken on the trial and noted in the minutes, when the “bill of exceptions,” or “case containing exceptions,' comes to be made and settled.

No exceptions are necessary to enable the Appellate Division to review the questions of fact, on an appeal from the judgment. Matter of Mosher, 103 App. Div. 459, 93 N. Y. Supp. 123; aff’d, 185 N. Y. 435 (Don. nellan v. Ketchum, 78 App. Div. 144, to the contrary, may be considered overruled, and cases under the old " short form" decision have no application. Otten v. Man. R. Co., 150

N. Y. 395, 400; Ross v. Caywood, 162 id. 259, 263).

Findings which are not without support in the evidence are conclusive in the Court of Appeals, although the Appellate Division was not unanimous. Nat. Bank of Dep. v. Rogers, 100 N. Y. 380. If the Appellate Divi. sion was unanimous, then the Court of Appeals cannot look into the record to see whether or not there was any eridence. Genet v. Del. & H. Canal Co., 167 N. Y. 608.

An exception must be specific in pointing out the proposition to which it is directed. Turner v. Weston, 133 N. Y. 650. Hence an exception “to each and every finding of fact and conclusion of law” and “to each and every refusal to find as requested ” without making a separate statement of an exception as to each, amounts to nothing (Drake v. N. Y. Iron Mine, 156 N. Y. 90; Gilmour 1. Col. cord, 183 N. Y. 342; Matter of Mosher, 103 App. Div. 459, 93 N. Y. Supp. 123; Henderson v. Dougherty, 95 App. Div. 346, 88 N. Y. Supp. 665), unless, perhaps, every one of the findings or rulings is erroneous. It is not neces. sary, however, to use the same language as the findings. Language which points with certainty to the intended finding is enough (Spaulding v. Strang, 38 N. Y. 9), and the court, at least the Appellate Division, have power to correct error in a clear case, notwithstanding too great generality in an exception (Mandeville v. Marvin, 30 Hun, 282).

When the “short form” decision was permitted, a general exception was sufficient. Jeff. Co. Nat. Bank v. Dewey, 181 N. Y. 98. Where there was but one conclusion of law, the court held that a general exception was sufficient. Eckerson 1. New York, 80 App. Div. 12, 80 N. Y. Supp. 168; aff'd on opinion below, 176 N. Y. 609.

On exceptions thus taken to conclusions of law, the exceptant may appeal from judgment, to review those conclusions without making a case. Schwartz v. Weber, 18 Abb. N. C. 60, 103 N. Y. 658.

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