
    N. Y. SUPERIOR COURT.
    Mary F. Weyman agt. The National Broadway Bank and Mary Jenkins.
    
      Trials without a jury—Decision of court upon the trial of whole issue of fact— What decision must do in order to authorise entry of judgment upon it— Code of Civil Procedure, section 1032.
    A judge has no authority, on a written opinion delivered by a deceased judge, omitting to state separately the facts found and the conclusions of law, and not directing judgment to be entered thereupon, and which does not indicate the party to whom costs are awarded, to direct the entry of judgment upon it.
    
      Special Term, August, 1880.
    Motion that the opinion of the late chief judge Curtis, filed June 7, 1880, may stand as the findings of fact and conclusions of law, and that judgment be entered thereon.
    
      John B. Whiting, for the motion.
    
      John V. B. Lewis, opposed.
   Russell, J.—

This action was tried before the late chief justice Curtis, without a jury, on the 15th day of March, 1880. On the seventh day of June, judge Curtis handed down an opinion, in which, after reciting the history of the controversy and discussing the law applicable to the questions at issue, he says: The plaintiff is entitled to a judgment for the value of the property claimed. The evidence varies very much as to the value of this property. Giving it such consideration as I have been able to, from the proofs submitted, I find the value of the furniture claimed by the plaintiff, and disposed of by the bank, to be $750.”

On the back of the opinion, in the handwriting of judge Crams, are the words, “ Judgment for the plaintiff; findings to be submitted on five days’ notice. Opinion. W. E. C.”

The proposed findings were prepared by counsel for the respective parties and were submitted on the nineteenth day of June; but before they were settled the lamented death of judge Crams occurred.

It is evident from these facts that at the time neither judge Crams nor the counsel regarded the opinion handed down as constituting such a decision of the court as is required by section 1022 of the Code.

While it is possible from that opinion to ascertain what, in general, were judge Crams’ views upon the facts and the law of the case, the opinion does not state separately the facts found and the conclusions of law. It does not direct judgment to be entered thereupon, and does not indicate the party to whom costs are awarded. All these things a decision must do in order to authorize the entry of judgment upon it (sec. 1022 of the Code).

In Thomas agt. Tanner (14 How. Pr., 426) it was expressly held that a judgment could not be en tered on an opinion, but only on a decision as such (and see Putnam agt. Crombie, 34 Barb., 232; Mills agt. Thursby, 12 How. Pr., 113; Van Slieck agt. Hyatt, 46 N. Y., 262; Rogers agt. Beard, 20 How. Pr., 282; Chamberlain agt. Dempsey, 9 Bosw., 212; Loeschigk agt. Addison, 3 Robt., 331).

The question now arises whether this court has power to give to that opinion a character and force — judge Crams being dead —which it did not have when he was alive. Considering that the case was fully tried before judge Crams, and that after mature deliberation he found for the plaintiff, it is certainly unfortunate if judgment cannot now be entered in' accordance with the conclusions to which he came.

It is a hardship to put the plaintiff to the delay, the expense and the worry of a second trial, if the court has power to relieve her from them. But while there are many provisions of law permitting proceedings begun before one officer to be continued, in case of his death or removal, before another, they are proceedings where the thing remaining to be done is either ministerial in character or a matter of course following what has already been done, and requiring the exercise of no judicial judgment.

Ho authority is shown by counsel, nor have I found any, to do what is here requested. The matter of decisions and entry of judgment is regulated by statute.

If the opinion could be regarded as a decision satisfying the requirements of section 1022,- judgment could have been entered upon it, not only without this motion, but without the findings which were submitted. It wants not an order of the Court to make a decision, and to authorize the entry of judgment thereon (section 1028 of the Code). On the other hand, the order of this court cannot make that a decision which in fact is not one.

The plaintiff's motion is therefore denied, with costs, on the ground of want of power.  