Fairman v. Brush

New York Supreme Court

Fairman v. Brush

15 N.Y.S. 44, 67 N.Y. Sup. Ct. 442, 27 Abb. N. Cas. 197, 39 N.Y. St. Rep. 231, 60 Hun 442, 1891 N.Y. Misc. LEXIS 3041

CourtNew York Supreme Court

DecidedJune 12, 1891

StatusPublished

Cited by6 cases

This text of 15 N.Y.S. 44 (Fairman v. Brush) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fairman v. Brush, 15 N.Y.S. 44, 67 N.Y. Sup. Ct. 442, 27 Abb. N. Cas. 197, 39 N.Y. St. Rep. 231, 60 Hun 442, 1891 N.Y. Misc. LEXIS 3041 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Barrett, J.

There is nothing in sections 1022 and 1023 of the Code of Civil Procedure which deprives the court of po.wer to require proper findings. These sections undoubtedly change the former practice, whereby findings originally insufficient in form or indefinite in substance might be clarified upon the settlement of the case. This was all that was decided in Gormerly v. McGlynn, 84 N. Y. 284, where the revisers’ note to section 1023 was referred to, and their view was seemingly approved,—that the method of proceeding by motion to compel findings, where the referee refuses to make them at all, has not been abolished. Cases where the power in question has been denied have proceeded either upon a misapprehension of what was decided in Gormerly v. McGlynn, or upon a too narrow view of what was contemplated by sections 1022 and 1023. We have no doubt that the special term has power, in the interest of justice, to add to the findings made by it, and we think it equally clear that the court may remit his findings to a referee for a similar purpose. We so held in Schultheis v. McInerny, 13 N. Y. Supp. 684, and we see no reason for altering the opinion there pronounced. This is a power which is so far inherent that it would require an express prohibition to deprive the court of its exercise. It is analogous to the power always exercised by the court over its judgments, records, and proceedings in the interest of justice. In the present case, the application should have been granted. The finding that the plaintiff rendered services for the testator which the latter paid in full is too indefinite to raise the questions presented. The referee Should have found specifically on each of the items of the plaintiff’s demand, and then he should have specifically found the amount paid. The order should be reversed, with costs, and the motion granted. All concur.

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Barrett, J.

There is nothing in sections 1022 and 1023 of the Code of Civil Procedure which deprives the court of po.wer to require proper findings. These sections undoubtedly change the former practice, whereby findings originally insufficient in form or indefinite in substance might be clarified upon the settlement of the case. This was all that was decided in Gormerly v. McGlynn, 84 N. Y. 284, where the revisers’ note to section 1023 was referred to, and their view was seemingly approved,—that the method of proceeding by motion to compel findings, where the referee refuses to make them at all, has not been abolished. Cases where the power in question has been denied have proceeded either upon a misapprehension of what was decided in Gormerly v. McGlynn, or upon a too narrow view of what was contemplated by sections 1022 and 1023. We have no doubt that the special term has power, in the interest of justice, to add to the findings made by it, and we think it equally clear that the court may remit his findings to a referee for a similar purpose. We so held in Schultheis v. McInerny, 13 N. Y. Supp. 684, and we see no reason for altering the opinion there pronounced. This is a power which is so far inherent that it would require an express prohibition to deprive the court of its exercise. It is analogous to the power always exercised by the court over its judgments, records, and proceedings in the interest of justice. In the present case, the application should have been granted. The finding that the plaintiff rendered services for the testator which the latter paid in full is too indefinite to raise the questions presented. The referee Should have found specifically on each of the items of the plaintiff’s demand, and then he should have specifically found the amount paid. The order should be reversed, with costs, and the motion granted. All concur.

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Bluebook (online)

15 N.Y.S. 44, 67 N.Y. Sup. Ct. 442, 27 Abb. N. Cas. 197, 39 N.Y. St. Rep. 231, 60 Hun 442, 1891 N.Y. Misc. LEXIS 3041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairman-v-brush-nysupct-1891.

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