Redondo Steamship Co. v. Irving Bank-Columbia Trust Co.

221 A.D. 694, 225 N.Y.S. 38, 1927 N.Y. App. Div. LEXIS 6543

Opinions

Young, J.

The action was tried on June 1 and 2, 1927,. and it is alleged by the attorney for the receiver, in his affidavit in support of the motion, that the court allowed counsel until the following Monday, June sixth, to file briefs; that he received no notice or information of any kind that the court had reached any determination and no announcement appeared in the New York Law Journal; that his first intimation as to the decision of the case came through a telephone call on Saturday, June 18, 1927, between eleven-thirty and twelve o’clock, to the effect that plaintiff’s counsel was endeavoring to collect the judgment from the defendant bank and threatening execution unless the money was immediately paid; that the decision and judgment were never served upon him and he had no notice of settlement thereof.

On the other hand, it is alleged by the plaintiff’s attorney that the cause was finally submitted to the court according to its instructions given at the end of the trial on June 6, 1927, and at that time the plaintiff submitted its proposed judgment and decision, and when the case was decided and judgment and decision were signed, he entered the judgment; that no time was allowed by the court for the submission of findings other than the direction above stated that the cause should be submitted on June sixth.

The receiver’s attorney, in a replying affidavit, controverts this statement of plaintiff’s attorney and alleges that his recollection of what occurred at the end of the trial was that he had already submitted to the court his trial memorandum, and when the evidence was concluded, plaintiff’s counsel and counsel for the indemnity insurance company asked for time in which to submit briefs and the court fixed the following Monday, June 6, 1927, but stated that it already had the receiver’s brief and would require nothing further from him; that nothing was said upon the trial, either by the court or counsel, as to a final submission or as to the time for submitting findings of fact and conclusions of law.

It is quite true, as urged by appellants, that it is the usual practice by counsel to await the handing down by the trial justice of a memorandum of his decision. It was formerly held, under section 1023 of the Code of Civil Procedure (now Civ. Prac. Act, § 439), that the trial court has no power to pass upon or make additional findings after the formal decision has been rendered. (Hydraulic Power Co. v. Pettebone-Cataract P. Co., 194 App. Div. 819.)

The case last cited, however, has been distinguished in McCall v. McCall (129 Misc. 127), in that the former was decided under the Code of Civil Procedure, and it was held that, in an action for divorce, the defendant who had failed to file requests to find before entry of the decree might, under the broad provision of section 105 of the Civil Practice Act, and in the discretion of the court, be permitted to so file, nunc pro tunc, in the interests of justice, but that, while the trial justice might pass upon said requests, his findings thereon could not vary or be inconsistent with the findings and decree previously made and entered.

Section 105 (supra) provides that “ At any stage of any action, special proceeding or appeal, a mistake, omission, irregularity or defect may be corrected or supplied, as the case may be, in the discretion of the court, with or without terms, or, if a substantial right of any party shall not be thereby prejudiced, such mistake, omission, irregularity or defect must be disregarded.”

I think we should approve the ruling made in the case last cited. There is no good reason, in my opinion, why the appellants should be deprived of the benefit of the rulings by the trial justice upon their proposed findings and conclusions simply because they followed an ordinary and usual practice and awaited the memorandum of the decision by the trial justice before submitting such proposed findings, with the result that the formal decision and judgment were entered before the submission of their proposed findings and conclusions.

The order should be modified so as to grant them this relief. It is, of course, unnecessary to vacate the judgment and decision already made.

Rich, Kapper and Lazansky, JJ., concur; Hagarty, J., dissents, with the following memorandum: