Corley v. Spitzer

235 A.D. 703

Opinion

Appeal dismissed, without costs, and the matter remitted to Special Term for the trial justice to make findings and direct the entry of judgment. The record contains no decision or proposed findings, although the memorandum decision required findings and judgment to be submitted. Apparently the judgment was entered on the mere unsigned memorandum of the court. Such a judgment has no validity. (Ventimiglia v. Eichner, 213 N. Y. 147; Langling Co. v. Elflein, 230 App. Div. 731.) The present judgment should be vacated and proposed findings submitted and passed upon, as the court directed. The amount of damages allowed seems to be excessive, for the value of the lot upon which the encroachment was made, as testified to by plaintiff’s expert, was only $800. Furthermore, as the defendants acted in good faith in pursuance of a survey they had made before erecting their garage, the judgment might well provide for permanent damages instead of an injunction. (Crocker v. Manhattan Life Ins. Co., 61 App. Div. 226; Amerman v. Deane, 132 N. Y. 355; Goldbacher v. Eggers, 38 Misc. 36; affd., 82 App. Div. 637; 179 N. Y. 551.) Lazansky, P. J., Young, Cars-well, Tompkins and Davis, JJ.,Pconeur.