28 How. Pr. 395 | N.Y. Sup. Ct. | 1865
The action was brought to recover for an injury sustained by the plaintiff, by falling in the night time, into a post hole which had been made on the lands of the defendant, or on the line of the road in front thereof, and a general denial, and various alleged defences were interposed on the part of the defendant. The issues were tried before a sole referee, who reported that “ the plaintiff was entitled to recover against the defendant the sum of $200 damages, as alleged in the complaint.” And he ordered judgment accordingly, with costs, but he did not report any findings of fact, nor any conclusions of law, except as above set forth. Upon this report the plaintiff entered a judgment, and the defendant now moves to set aside the report, judgment and subsequent proceedings, for irregularity, but does not ask for costs of the motion.
The Code of Procedure as amended in 1851, directs that the referee “ must state the facts found and the conclusions of law separately,” and that “ the report of the referee
It is also true that where the referee finds the facts and conclusions of law separately, the judgment entered thereon is not irregular, although the findings do not contain all that they should do to present the true state of the case; and in such case the party desiring to do so may obtain the further findings in the way above pointed out. (Dana agt. Howe, 3 Kern. 306; Johnson agt. Whitlock, 3 Kern. 344, 348.) But where there are no findings of facts, unless the defeated party chooses to waive the irregularity, he is entitled to have the judgment set aside, and to require that the referee in the first instance report the facts and conclusions of law found by him. (Church agt. Erben, 4 Sandf. 691; Van Steenburgh agt. Hoffman, 6 How. Pr. Rep. 492; Dake agt. Peck, 1 Code Rep. 54; Denny agt. Post, 1 Code Rep. 121.)
The report and judgment are irregular, and must be set aside, with all the subsequent proceedings on the part of the plaintiff. And the referee upon the proofs and allegations already made and taken before him, must make a new report, stating all the material facts found by him, with his conclusions of law separately.