Johnson v. Lawson

1 A.D.2d 762, 147 N.Y.S.2d 261, 1955 N.Y. App. Div. LEXIS 3624

Opinion

Case held, decision reserved and matter remitted to Hon. Lee L. Ottaway to make findings of fact. Memorandum: The trial court’s memorandum opinion contains a finding that the respondents were not given “ formal ” notice of the ejectment action and that no demand was made upon them to defend the same. Formal notice of the commencement of the action and express notice to defend are not essential to the maintenance of this action, (Browning v. Stillwell, 42 Misc. 346, affd. 93 App. Div. 613, affd. 182 N. Y. 538; Prescott v. Le Conte, 83 App. Div. 482.) As to whether respondents had informal notice and knowledge of the suit, there is no finding, the memorandum merely stating that the evidence of any notice is disputed and that the nature of such notice “ even if given ” is indefinite. In the absence of a definite finding of notice or lack of notice to the respondents, we are unable to review the judgment. All concur. (Appeal from a judgment of Chautauqua Trial Term dismissing the complaint in an action for damages for an alleged breach of warranty of title to realty.) Present — McCurn,. P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.