Edinger v. McAvoy

134 A.D. 869, 119 N.Y.S. 327, 1909 N.Y. App. Div. LEXIS 3004

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1909
• Status: Published

Opinion

Robson, J.:

The record before us on this appeal contains proposed findings of fact and of law, submitted by the attorney for defendant Thomas McAvoy, and separate and distinct proposed findings of fact and law, submitted by the attorney for the other defendant. These proposed findings were evidently presented to the court pursuant to section 1023 of the Code of Civil Procedure. Instead of noting in the margin of these statements the manner in which each proposition was disposed of, as the section referred to requires, the court signed the two statements of findings proposed at the end of each. The record presents no other decision signed by the court.

No reference is made in either statement to the other; and, if we were permitted to consider either as a decision of the trial court, there is nothing in the papers themselves to indicate which one is to be regarded as the decision and which as the court’s disposition of proposed findings.

We think the two separate sets of proposed findings, signed by the trial judge, do not make nor can they be treated as' making the decision by the trial court required by section 1022 of the Code of Civil Procedure.

The requisite decision not having been made the judgment entered was premature. (People ex rel. Havron v. Dalton, 77 App. Div. 499.)

No application having been made by any party to set aside the judgment for the reason that no sufficient decision had been made, or on the ground of irregularity of the decision of the trial court, no costs of this appeal are awarded to any party. (Shaffer v. Martin, 20 App. Div. 304.)

All concurred.

Judgment reversed and case remitted to the trial judge for decision to be made nunc pro tune, without costs of this appeal to either party.