Lyon v. Water Commissioners

224 A.D. 568, 232 N.Y.S. 26, 1928 N.Y. App. Div. LEXIS 10067

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1928
• Status: Published

Opinions

Per Curiam.

The paper writing, in the general form of an opinion, closes with the words “ judgment may be prepared accordingly, with costs of the action to the plaintiffs,” and is signed by the trial justice. The words “ may be prepared ” were intended to, and may be well understood to, mean “ may be entered.” In these papers are statements of fact and conclusions of law, but these are not separately stated. Still, in view of the closing words, this was intended to be more than an opinion. The paper writing in the form of plaintiffs’ requests to find contains findings of fact and conclusions of law separately stated and numbered, and in the conclusions of law is stated the judgment to which plaintiffs are entitled; it has at the end the words “ Found and refused as indicated,” and is signed by the trial justice. That each statement of fact and conclusion of law is marked found or refused does not destroy the effect of the signature at the end of the findings. To these findings as numbered the defendants filed detailed and specific exceptions. Thereafter the defendants’ attorney stipulated that plaintiffs might apply at a named Special Term for judgment “ in accordance with the findings of fact and conclusions of law heretofore made; ” also “ for an additional allowance ” and “ hereby waived ” notice of such application. Application was accordingly made and the trial justice signed the judgment. Never until this motion was made, which was three years after the judgment was entered of record, was the regularity of the proceedings on which the judgment rests questioned; for these three years defendants acquiesced. The stipulation was more than a waiver of notice of application for judgment; it was a stipulation that a sufficient decision and sufficient findings had been made and that the proceedings upon which the judgment was to be entered were regular. The parties plainly so intended, and the stipulation means that the requirements of section 440 of the Civil Practice Act had been substantially complied with. The defendants are in position to prosecute their appeal, but not to question the sufficiency or regularity of the proceedings prior to the entry of judgment; both laches and waiver bar them. An appeal has been taken and, if it be thought that there is not a sufficient decision stating the facts and conclusions of the court, all the questions of law and fact will be presented for review and the appellate court may direct such judgment as the facts warrant (Koster v. Pain, 41 App. Div. 443.) In People v. Adirondack Railway Co. (160 N. Y. 225, 235) it was said that where the decision did not separately state the facts found and the Appellate Division did not state that the judgment was reversed upon a question of fact, “ it must be presumed that all the facts warranted by the evidence and necessary to support the judgment were found by the Special Term.” The absence of a decision in due form is not fatal to a judgment. If there was irregularity in the proceedings prior to the entry of judgment, the defendants could waive it and could still have their rights fully protected in the appellate court on an appeal from the judgment. And further there is no uncertainty as to the facts found or the judgment which the court authorized to be entered. The irregularity is in the form, not the substance.

The order should be affirmed, with costs.

Van Kirk, P. J., Hinman, Davis and Whitmyer, JO., concur; Hasbrouck, J., dissents, with an opinion.