[Title of action.]

At a Special Term1 [etc.; see Form 820, p. 1174].

posed findings ex parte. Bernheim v. Bloch, 45 Misc. 581, 91 N. Y. Supp. 40. But the practice is more commonly 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 unsuccessful 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 decision which conforms to the requirements of 1022 as now existing, is unauthorized, and must either be reversed 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 v. Coheu, 113 App. Div. 859; Lentschner v. Lentschner, 80 App. Div. 43, 80 N. Y. Supp. 146; Burnham r. 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; Hall r. 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. t. Howey, 96 App. Div. 410, 89 N. Y. Supp. 210.

Such a judgment may also be va cated on motion. Wise v. 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.

Ön 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 v. Tracy, 184 N. 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 determine 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.

Led

The Court of Appeals is confined to the findings as made, and cannot add to them. Sweet v. Henry, 175 N. Y. 268; Hay v. Knauth, 169 id. 298.

No special form is essential to constitute a finding of fact. Crawford v. Halsey, 124 U. S. 648, holding that the words, "considering that an assignment was made by A. to B. . . it is adjudged," etc., was a finding of fact.

So finding a party guilty of the adultery as charged in the answer, is sufficiently formal. Pollock v. Pollock, 71 N. Y. 137. But a finding that all the material allegations are true is not sufficient. Nor is a finding that fraudulent statements were made, but specifying no statement. Everett v Everett, 180 N. Y. 452.

A finding contrary to an admission in the pleadings is error unless the admission has been waived. Dunham v. Cudlipp, 94 N. Y. 130; Rodgers v. Clement, 162 id. 422. The findings need not include facts admitted in the pleadings. Jacobson v. Brooklyn Lumber Co., 184 N. Y. 152. A finding founded on an admission in the pleadings, without evidence, should not deviate from the admitted alicgations, either affirmatively or negatively. Bonn v. Steiger, 21 Hun, 219.

16 Every issue of fact tendered by the pleadings must be passed upon and decided, one way or the other, in the findings incorporated in the de cision, otherwise a mistrial results. Morehouse. Brooklyn Heights R. K. Co., 185 N. Y. 520. And a refusal to find a fact at the request of the unsuccessful party is not tantamount

to a finding to the contrary, so as to obviate an omission to find upon that issue in the decision. Id.

Facts found at request of unsuccessful party must be incorporated. Hudson, etc., R. Co. r. Jackson, 115 App. Div. 168.

An erroneous finding of fact, uules; a mistake in the nature of a clerical error, can only be corrected upon appeal. Erroneous conclusions of law, inadvertently made, may be corrected by the trial court before the time to appeal from the judgment has expired. Rockwell v. Carpenter, 25 fun. 529; Coffin v. Lesster, 36 Hun, 347; aff'd, 110 N. Y. 645; Bohlen v. Met. El. R. Co., 31 St. Rep. 888, 121 N. Y. 546; Boyd v. Campbell, 12 Misc. 351, 33 N. Y. Supp. 557; aff'd, 146 N. Y.

403.

The Appellate Division cannot make an affirmative finding of fact and overturn a contrary finding of the trial court, although it may sup ply a finding warranted by the deci sion on the facts as made and necessary to sustain the judgment. See Levin v. Dietz, 106 App. Div. 203, 94 N. Y. Supp. 419.

When a decision with findings has been unanimously affirmed at the Appellate Division, the only question for determination by the Court of Ap peals is whether such facts authorized the judgment rendered. Ide r. Brown, 178 N. Y. 26.

17 A correct decision based on a wrong reason will be allowed to stand, if no prejudice be shown. Ward v. Hasbrouck, 169 N. Y. 407.

Direction for judgment, or a con clusion of law equivalent thereto, is essential. Benjamin . Allen, 33 Hun, 115.

A direction for judgment may avail as a sufficient conclusion of law. Murphy v. Snyder (Cal., 1885), 8 Pac. Rep. 2. So a conclusion of law may avail as a direction for judgment. Hathaway v. Russell, 46 N. Y. Super. Ct. 103.

day of

submitted.]21

For the test of the distinction be tween findings of fact and of law, compare Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 506; s. c., 12 Ins. L. J. 194; Sohn v. Freiberg, 9 Cinc. L. Bul. 290; Spies v. Nat. City Bank, 174 N. Y. 222; Hotchkiss v. Mosher, 48 N. Y. 478.

But compare Briggs v. Briggs, 46 Vt. 571.

As to difference in effect between a finding of fraud as matter of fact and as a conclusion of law, see 38 Hun, 482. It will not do to state findings of fact as if they were findings of law, or conversely. Eilers v. Boatman, 111 U. S. (Davis) 356; Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 501; Hays v. Miller, 70 N. Y. 112; Jarvis v. Jarvis, 66 Barb. 331. Although for the purpose of sustaining a judgment, where the evidence is all in the record, and undisputed, a conclusion of law may be treated as a finding of fact. Germ. Life Ins. Co. v. Casey, 98 App. Div. 88. 90 N. Y. Supp. 418.

19 A positive direction of judgment is necessary. Reynolds v. Ætna Life Ins. Co., 6 App. Div. 254, 39 N. Y. Supp. 885. And it should clearly specify the provisions of the judgment to be entered, for the guidance of the clerk.

20 Costs in equity cases do not depend on any statute, nor do they absolutely depend on the determination of the cause. Belmont v. Ponvert, 38 N. Y. Super. Ct. 425; compare Biddle v. 1omlinson, 6 Cent. Rep. 903; Couch v. Millard, 41 Hun, 212, rev'g 8 Civ. Pro. Rep. (Browne) 431; s. c., 3 How. Pr. (N. S.) 22; Daniel's Chancery Pr., p. 1394.

And this rule was not altered by the new Code. Black v. O'Brien, 23

Hun, 82; Law v. McDonald, 9 Hun, 23 (compare N. Y. Code Civ. Pro., § 3230); Dill r. Wisner, 88 N. Y. 153, 2 Am. Prob. 509.

The remedy for error in the exercise of discretion in the direction as to costs, in findings, is to except and appeal (Rosa v. Jenkins, 31 Hun, 384; and see Adams v. Sullivan, 42 id. 278); not by motion (Woodford 1. Bucklin, 14 Hun, 444). But where the costs are not discretionary, a disregard of the statute ruie should be corrected on motion. Boardway v. Scott, 31 lun, 378.

21 Such a provision is proper, and within the power of the court, to avoid the embarrassment of some fact arising subsequent to submission and before decision, e. g., the birth of a child entitled to representation. See Jewett v. Schmidt, 108 App. Div. 322, 95 N. Y. Supp. 631.

22 When the trial judge or referee may properly dismiss upon the merits, see Deeley v. Heintz, 169 N. Y. 129; Woodbridge v. First Nat. Bank, 166 id. 238. These cases seem authority for the proposition that whenever a decision containing findings is prop erly made, the judgment in defendant's favor should be on the merits. See, also, Freedman v. Sirota, 109 App. Div. 874; and notes to Form No. 1776.

23 Signature is necessary. Benjamin v. Allen, 35 Hun, 115; Smith v. Davidson, 45 Ind. 396; Service v. Gambrel (Ind., 1887), 9 West. Rep. 94; but see Bietman v. Hopkins, 7 West. Rep. 264; McNaughton Chave, 5 Abb. N. C. 225.

v.

As to signing nunc pro tunc, see Fulton r. Fulton, 8 Abb. N. C. 210.

23a Must be filed within twenty days after adjournment of term.

day of

[Title of court and cause.]

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 exceptions, and the limit is thirty days.

By Code Civ. Pro., § 1351, service of a copy of the judgment, with written notice of its entry, is necessary to limit 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 exceptions; 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 1: ake a case and exceptions without waiting for the entry of judgment and notice thereof. 18 Abb. N. C., 63, 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 written notice and copy of decision or report 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.

on the

particulars:

day of

66

referring to exceptions taken after trial, by way of objections to the conclusions of law, is to be distinguished from 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 makes 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 for review, although no exceptions to the 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 v. Dunleavey, 88 App. Div. 601, 84 N. Y. Supp. 562; Nat. Prot. Assoc. v. Cuming, 53 App. Div. 227, 65 N. Y. Supp.

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, 166 N. Y. 380. If the Appellate Division was unanimous, then the Court of Appeals cannot look into the record to see whether or not there was any evidence. 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 v. Colcord, 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 necessary, 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 v. 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.