295 N.Y. 354 | NY | 1946
The Appellate Division order here appealed from, while it is in part a reversal and while stated therein to be a modification on the facts and the law, and while it strikes out the Special Term findings of fact, does not set forth any new findings of fact. Accordingly, we are required by section 602 of the Civil Practice Act to presume that the questions of fact were not considered by the Appellate Division. We must, therefore, treat the Appellate Division order as being a determination on the law only. So much of that order as affirms the dismissal on the law of the 1939-40 writ is correct, since service on the city was not made within the time limited by section 166 of the New York City Charter. As to the other three tax years, since the record contains testimony supporting the Special Term findings of fact, reversal of that part of the order, on the law, was not warranted. We must, therefore, *357 as to so much of the order appealed from as concerns the tax years 1941-42, 1942-43 and 1943-44, "remit the case to the appellate division for determination upon the questions of fact raised in that court" (Civ. Prac. Act, § 606).
The order should be affirmed, with costs, so far as it concerns the 1939-40 assessment; otherwise remitted to the Appellate Division for resettlement, so as to state the court's determination on the facts as to the other three tax years, without costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur.
Ordered accordingly.