Hudson & Manhattan Railroad v. Jackson

100 N.Y.S. 737 | N.Y. App. Div. | 1906

Per Curiam:

This is an appeal from an order denying a motion by defendant Wendel that a decision be returned to a referee with instructions to include therein certain facts found by him at the request of the defendant and not included in the decision as filed. The proceeding was instituted under the Condemnation Law for the purpose of acquiring title to certain parcels of real estate in the city of Hew York owned by the appellant. The defendant answered and the issues raised by her answer were referred to a referee to hear and determine the same. At the close of the trial the defendant submitted to the referee certain requests to find, and some of these requests, as to matters of fact, the referee did allow and did find as requestéd by defendant, but the final report or decision filed by the referee did not contain the findings thus made by him at defendant’s request. The defendant thereupon made the motion involved in this appeal asking that the decision be returned to. the referee and that he be instructed to include therein all facts found by him at the request of the defendant Josephine J. S. Wendel and 'not included in the decision theretofore filed. The plaintiff met this application by showing that the referee had filed with the county clerk, on the same day that he had filed his decision, the requests to find submitted to him by appellant, having noted thereon -his allowance or disallowance of each of said requests, and that the referee had left the city for an indefinite and uncertain period of time. The plaintiff also offered a written stipulation that said requests to find, with the rulings of the referee thereon, should be included in and annexed to the judgment roll, and that such of said requests as were allowed by the referee should have the same force and effect as if the findings of fact so allowed were incorporated in the referee’s report and decision. Ho criticism is made as to the form of this stipulation, nor does it appear that the defendant on the motion suggested any other form of stipulation which would have been more satisfactory to her. She stood and now stands upon what she deems to be the strict letter of the law, that all the facts found must be included in the decision or report, and that this requirement is not complied with by filing with the report a separate paper containing a ■ statement of facts found by the referee, but not incorporated in his decision. Strictly speaking, the appellant is right in her contention (Schultheis v. McInerny, 27 Abb. N. C. 193; Nobis v. Pollock, 53 Hun, 441), and although the question may not be of great importance to any one in the present case, yet since it is squarely presented by the appeal it must be answered in appellant’s favor We feel bound, therefore, to reiterate the rule laid down in the cases cited, and clearly authorized by sections 1022 and 1023 of the Code of "Civil Procedure, that the decision of a court or the report of a referee upon the trial of the whole issues of fact must contain and state within itself all the facts found by the justice or referee. It follows that the appellant’s motion should have been granted, and the. order denying it must he reversed. We are not ajilé to perceive, however, and no attempt has been made to show that, in view of the plaintiff’s stipulation, the defendant has been put to any disadvantage by reason of the error in practice of which she complains. She cannot, of course, desire to except to the findings which she herself requested to .be made, and the stipulation tendered by plaintiff secured to her all the ad vantage of the findings as facts established in the case. We see no occasion to make such an order as will nullify any proceedings which may have been had in the action since the filing of the decision. The order will, therefore, be reversed, with ten dollars costs and disbursements, and the motion so far granted as to direct that the referee’s decision be returned to him with instructions to include therein all facts found by him at the request of the defendant Josephine J. S. Wendel and not included in the decision as heretofore filed, and that the decision as so corrected be filed by said refereemmcpro tunc as of the '6th day of July, 1906, without prejudice to any proceedings which may have been had in this action since said 6th day of July, 1906.

Present — O’Brien, P. J., Ingraham, Clarke, Houghton and Scott, JJ.

Order reversed, with ten. dollars costs'and disbursements, and motion granted to the extent stated in opinion. Settle order on notice.'

Case Details

Case Name: Hudson & Manhattan Railroad v. Jackson

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Oct 19, 1906

Citation: 100 N.Y.S. 737

Court Abbreviation: N.Y. App. Div.