168 N.E. 444 | NY | 1929
This case has been here before (
The case coming on for trial, the Special Term, after hearing both sides, granted judgment for the defendant, making full and complete findings of fact and conclusions of law. On appeal, the Appellate Division reversed the judgment upon the law and the facts and granted a new trial. It failed, however, to state what findings of *9
fact made by the trial judge were reversed. Thereupon, the appellant, the successful party, moved the Appellate Division to resettle its order so as to state the findings of fact which that court had disapproved. The motion was denied (
We held in Goodman v. Marx (
Section 584 of the Civil Practice Act gives power to the appellate courts to reverse or affirm wholly or in part, but does not specify how the determination shall *10
be expressed. This has been left to section 602 of the Civil Practice Act. Rule 239 of the Civil Practice Rules cannot modify any provision of the Civil Practice Act, and does not attempt to do so. Where there is a reversal or a modification of a judgment entered on the decision of a court without granting a new trial, the Appellate Division according to this rule may reverse any finding and make such new finding as may be necessary to sustain its decision. Here a new trial was granted and no finding reversed or new finding made. The rule merely carries out the practice to be followed under the requirements of section 584, section 602 and section 620 of the Civil Practice Act. (See, also, to the same effect Partola Mfg. Co. v. General ChemicalCo.,
The respondent in his brief calls our attention to the recent case, Raphael v. Kutsukian, decided by this court on July 11, 1929 (
We, therefore, are bound to presume that the findings of fact made by the Special Term in this case have been affirmed, and the judgment reversed solely on the law. The findings, as made, sustain the judgment. We have previously held that an issue of fact was presented by the pleadings. The trial justice found the facts as alleged by the defendants in their answer. These facts are sufficiently set forth in our previous decision (
These findings stand and justify the conclusion of the trial justice that the plaintiffs, whose property faces on Rutland road, some distance away from Rogers avenue, are not entitled to an injunction.
The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in this court and in the Appellate Division.
CARDOZO, Ch. J., POUND, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Ordered accordingly.