188 N.Y. 431 | NY | 1907
Lead Opinion
This appeal comes to this court from a judgment entered upon a decision of the Appellate Division rendered after the hearing of a submitted controversy under section 1279, Code of Civil Procedure. The question decided by that court, which we are asked to review, is whether a building which the defendant proposes to build upon a parcel of land owned by him and located in 148th street, New York city, is of such a character that its erection will constitute a violation of a covenant designed to prevent the erection of a tenement house upon lands owned by the respective parties. The fate of this appeal depends wholly upon the nature of the issue embraced in the controversy submitted to the learned Appellate Division. If the submitted case presented a pure question of law, the Supreme Court had power to decide it and we are charged with the duty of reviewing the correctness of that decision; but if the question of law could not be decided without first disposing of conflicting or equivocal inferences of fact, the court below was without jurisdiction, the judgment herein must be reversed and the proceeding dismissed.
The submission of controversies for judicial decision without litigation is of statutory birth. It seems to have had its origin in this state in the report of the commissioners appointed to revise our practice and procedure under the Constitution of 1846. That report contained a section which the legislature adopted as part of the Code of Procedure of 1848 in which it was first designated as section 325, and later as section 372. It is now section 1279 of the Code of Civil Procedure.
The portion of the present section which is material to the controversy at bar is substantially identical with the original enactment. It provides that, "The parties to a question in difference, which might be the subject of an action, being of full age, may agree upon a case, containing a statement of the facts; upon which the controversy depends; and may present a written submission thereof to a court of record, which would have jurisdiction of an action, brought for the same *433 cause." In reporting the original section as one of the amendments to our procedure the commissioners said: "This provision, it is believed, will be useful in many cases where a question as to a legal right exists between fair and honorable men, there being no dispute about the facts."
The language of the statute, supplemented by the sentence quoted from the report of the commissioners, leaves no doubt as to the nature and scope of the proceeding described in the statute. It was not intended to embrace issues where any dispute of fact was involved, but was to be confined to causes depending wholly upon question of law. That is the plain and unmistakable import of the words used in the statute. That was clearly the understanding of the commissioners who reported this amendment to our law of procedure, and that has been the view entertained by our courts since it has been a part of the two Codes referred to. (Neilson v. Com. Mut. Ins. Co., 3 Duer, 455; Clark v.Wise,
In the light of the history of our statute and the decisions which bear upon its scope and meaning, a short review of the facts submitted in the controversy at bar will disclose that they are not of such a conclusive character as to obviate or exclude the necessity of drawing inferences of fact essential to a complete determination of the controversy. On the contrary, the facts submitted are purely evidentiary in their nature, leaving the essential, decisive or ultimate fact to be decided by the court. As will be seen by reference to the record, the facts agreed upon are merely descriptive. They disclose the dimensions of the building which the defendant desires to erect; its external appearance; its internal arrangements; the materials of which it is to be composed, and the estimated cost of the whole, with the rentals expected to be realized. Before a court can determine whether the proposed building would be in contravention of the terms of the covenant against the erection of a tenement house, it must first be decided whether this building as thus described is an apartment house within the definition of that term recently approved by this court in Kitching v. Brown
*435
(
It is suggested that this decision will tend to discourage the laudable efforts of disputants to submit their differences for *436 decision without the expense and delay incident to litigation. We do not think so. It is farthest from our intention or desire to impair in the slightest degree the usefulness of this summary manner of settling legal disputes. It seems thus far to have afforded to parties an inexpensive and expeditious method of securing the judgments of the courts without the delay and circumstance inseparable from regular actions and has amply vindicated the wisdom of the commissioners upon whose report it was inaugurated. We are promulgating no new rule of law as to this proceeding, but are simply following the authorities which define its scope and its limitations as clearly indicated in the statute. When the ultimate as well as the evidentiary facts upon which a legal conclusion depends are all agreed upon and properly submitted, a case falls within the purview of section 1279 of the Code of Civil Procedure. But when the facts agreed upon and submitted give rise to other inferences of fact which may be conflicting, then resort must be had to an action for the adjudication of the matters in difference.
We think there is nothing in the foregoing views which conflicts with our decision in Kitching v. Brown (
The judgment appealed from should be reversed and the proceeding dismissed, without prejudice to any action, without costs to either party. *437
Dissenting Opinion
I am unable to concur in the conclusion reached by my associates. To my mind it seriously impairs one of the most valuable remedies given by the Code, that of permitting parties to submit their controversies upon facts agreed upon. If the facts in this case are not such as can be submitted to the court for its determination of the rights of the parties, I apprehend that the legal profession in the future will find it difficult to determine the facts and cases that may be submitted.
The rule, as I understand it, is that the facts agreed upon should be such that conflicting inferences of fact may not be drawn therefrom, and that they should be sufficiently or so fully stated as to enable the court to award judgment thereon.
The defendant is the owner of a tract of land on One Hundred and Forty-eighth street in the city of New York, upon which there is a covenant against the erection of a tenement house. He has planned to erect thereon a building which he claims to be an apartment house. The plaintiff seeks to enjoin him from the construction of the building, upon the ground that the building would be a tenement house, and, therefore, prohibited by the covenant. The only question, therefore, in controversy is as to whether the proposed structure would constitute a tenement or an apartment house. For the purpose of having this controversy determined, they have agreed upon all of the facts pertaining to the proposed structure, together with the character of the buildings existing upon that block and of the surrounding territory. The building is to be one hundred feet in width at its front on 148th street, eighty-seven feet in width in the rear, and eighty-one feet in depth. It is to be six stories high, constructed of brick and stone, with tile floors for the main hall, marble wainscoting, divided into apartments which contain a private hall, parlor, dining room, kitchen, bedroom, servants' room, private bathroom and closet; each apartment to be finished with hard wood, heated by steam, equipped for lighting by electricity and gas, provided with hot and cold water, openwork plumbing, gas ranges for cooking, a dumbwaiter and a *438 long distance telephone. The building is to have an electric elevator, is to cost one hundred and twenty-five thousand dollars, and the apartments are expected to rent for about eleven dollars per room per month, making from fifty-five to sixty-six dollars per month for an apartment; detailed plans of the proposed building are given, and also an architect's picture of the front elevation as the building will appear when completed. Other details of the work are embraced in the statement of facts which need not now be stated. It is not suggested that any essential fact has been omitted from the agreement, or that could be proved upon a trial that would further aid the court in determining the question upon which the parties differ. It is contended, however, that all of the facts submitted are purely evidentiary in their nature, leaving the essential, decisive or ultimate fact as to whether the structure would constitute a tenement or an apartment house undisposed of. If they had been able to agree upon that question, there would have been no controversy to submit to the court. If a person goes to a grocery store and buys a quantity of tea for two dollars, sugar for three dollars, and flour for five dollars, I presume the three purchases would be evidentiary facts upon the question as to the amount that would be owing the groceryman. But with the items of the three purchases agreed upon, I apprehend no court would hesitate about ordering judgment for the amount due.
In the case of Kitching v. Brown (
It is further contended that the facts agreed upon are not only merely evidentiary, but that they are also such that conflicting inferences of fact may be drawn therefrom. If so, my associates are correct in the conclusion which they have reached. But what conflicting inference is there that can be drawn from these facts? My attention has been called to none. Stone is stone, marble marble, and brick brick. I am not aware that any conflicting inference can be drawn from the fact that the building is to be constructed out of these materials, nor am I able to discover any of the other facts stated which are open to change or modification by inferences of fact which may be drawn therefrom. This is not a case involving the intent of a person which may only be determined from inferences drawn from his acts, conduct and expression. It is a case in which the submission consists of the facts stated, which mean what they state and nothing more, which to my mind are not subject to change by conflicting inferences.
I, therefore, am of the opinion that the question submitted ought to be determined upon its merits.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, WILLARD BARTLETT and HISCOCK, JJ., concur with WERNER, J.; HAIGHT, J., reads dissenting opinion.
Judgment reversed, etc. *440