Schultheis v. McInerny

13 N.Y.S. 684 | N.Y. Sup. Ct. | 1891

Van Brunt, P. J.

It is conceded upon the papers submitted upon this appeal that the referee did not include in his report all the facts found by him. This clearly made his report irregular, because by section 1022 of the Code it is provided that the decision of the court or the report of the referee upon the trial of the whole issue of fact must set out the facts found and the conclusions of law. This is an express direction that the facts found must be set out in the decision or report, and the reason for this is. apparent, because an appeal may be taken, and such appeal founded upon errors contained in the report itself, viz.: That the conclusions of law do not follow from the facts found by the referee; and, in order that the appellant may bring up this question, it is necessary that there should be contained in the report or decision all the facts found. An inspection of section 1023 reinforces this view, as it is there provided that either party may request findings of fact, and the referee is bound to mark on the margin of the papers submitted his rulings upon such requests, which papers may be returned to the parties, and never enter into the judgment roll, and only come before the court as part of the case, if a case is made and annexed to the judgment roll. Therefore it is' apparent from this section also that the facts found by the referee, no matter whether at the request of one side or the other, must be incorporated in his report. This court has repeatedly refused to entertain appeals, wnere it appeared that this provision of the Code had not been complied with. We think, therefore, that the case should have been sent back to the referee in order that he might make a report complying with the provisions of the Code, including therein all the facts found by him. It is true no such relief was asked specifically in the order to show cause, but the order asked' for such further or other relief as might be just, and under this provision the court had authority to make the order suggested. It appearing that the respondents have offered to the appellants to make such an order, the reversal of the order in the court below, should be without costs, and an order should be made sending the case back to the referee, in order that he may make a report in which shall be included all the facts found by him. All concur.