
    Norwegian Lutheran Trinity Church of Brooklyn and Vicinity, Appellant, v. Meyer Krelsovitch, Respondent, Impleaded with Patrick H. Quinn, as Sheriff of Kings County, Defendant.
    Second Department,
    November 17, 1911.
    Court—jurisdiction—Special Term for motions — direction to Special Term for trials — practice — failure to make findings — mandamus — appeal — case — comments of trial court.
    A justice at Special Term for motions cannot review or control the acts of another justice at Special Term for trials.
    Thus, a justice at a Special Term for motions cannot direct a justice at Special Terms for trials to pass upon requests to find, he having refused to do so.
    Where a referee has failed to make findings upon material matters, an application should be made at Special Term to remit the ease back to him in order that the findings may be made; but such practice is not applicable to a case tried before the court at Special Term.
    Where the court at Special Term refuses to pass iipon requests to find, which have been seasonably made, the party aggrieved may apply to the Appellate Division for a writ of peremptory mandamus tq compel the court to perform its duty as provided in section 1023 of the Code of Civil Procedure, and the hearing of an appeal from the judgment may be stayed until the application for the writ is disposed of.
    Where no exceptions aire taken to the comments of the trial court the official stenographer is not required to transcribe them, and they should not be inserted in the case on appeal. If so-inserted they maybe struck out as surplusage.
    Appeal by the plaintiff, Norwegian Lutheran Trinity Church of Brooklyn and Vicinity, from two orders of' the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of April, 1911, and the 29th day of June, 1911, respectively, the first' denying the plaintiff’s motion for an order directing the justice before whom the action was tried to pass upon certain propositions of fact and questions of law, and the second denying its motion for a resettlement of. the case on appeal.
    
      Irving Paine [James A. Deering with him on the brief], for the appellant.
    
      Samuel Frank, for the respondent.
   Carr, J.:

The plaintiff appeals from two orders, entered respectively on April 28 and June 29, 1911. This action was brought in Kings county to remove a cloud upon the title to real property situate in said county. The action was tried at Special Term and resulted in a decision and judgment in favor of the defendant. At the close of the trial the court announced that it.would grant judgment for the defendant.. Thereafter the defendant served upon the plaintiff copies of a proposed decision and judgment, with notice of settlement thereof' before the trial court on the 27th day of March, 1911, at ten o’clock in the forenoon. At the time noticed for the settlement of the decision and judgment the plaintiff submitted certain requests to find as to facts and law. Apparently all the papers, both of defendants and plaintiff, came before the trial court at the same time. The trial court, refused to consider the requests to find submitted by the plaintiff, and indorsed on the back of the copy thereof, “Requests to find came too late.” Thereupon the plaintiff applied for an order at Special Term for motions, directing the Special Term for trials to pass upon said requests to find in manner as is required by section 1023 of the Code of Civil Procedure. This motion was denied, and from the order entered accordingly on April 28, 1911, the plaintiff now appeals.

The order denying this- motion was made properly, as it is. not within the power' of a justice at Special Term for motions to review or control the acts of another justice at Special Terms for trials. (Platt v. N. Y. & Sea Beach R. Co., 170 N. Y. 451, 458.) If is the settled practiefe that where a referee has failed to make findings upon material matters an application should be made at Special Term to remit the case back to him in order that such findings should be made. (Van Slyke v. Hyatt, 46 N. Y. 265; Lefler v. Field, 47 id. 407; Rogers v. Wheeler, 52 id. 262; Meacham v. Burke, 54 id. 217; Woodhull v. Rosenthal, 61 id. 382, 390.) No precedent is to be found in which this practice is made applicable to a case tried before the court at Special Term. The plaintiff, however, is not without its remedy. If the trial court refuses to pass upon requests to find which have been made seasonably, then an application may be made to this court for a writ of peremptory mandamus to compel the performance of the duty cast upon the trial court by section 1023 of the Code of Civil Procedure, and the hearing on the appeal from the judgment may be stayed until the application for a 'mandamus is disposed of.

There is now to be considered the appeal from the order of the trial court entered June 29, 1911, which denied plaintiff’s motion for a resettlement of the case on appeal. On receipt of the plaintiff’s proposed case on appeal, the defendant proposed eighty-three amendments thereto. The plaintiff allowed twenty-two of the amendments and objected to the remainder. On a settlement of the case on appeal, the trial court allowed the remaining sixty-one amendments proposed by the defendants. Thereupon the plaintiff moved for a resettlement, of the case in order that the trial court might change its action as to said amendments. The motion for a resettlement was denied, and hence the appeal. In order to ascertain whether the plaintiff has any real grievance on this branch of the case, this court has been obliged to examine with care each of the sixty-one disputed amendments. Inasmuch as the case on appeal is very short, it is surprising that so many points of controversy could be found within so small a compass. The whole difficulty seems to have arisen from the fact that the trial court settled the case on appeal according to the minutes of the official stenographer, while the plaintiff proposed the case on appeal on the minutes of trial as taken by its own private stenographer. The substantial difference between the parties on this appeal is that there was throughout the trial a running fire of comment by the trial court, and of colloquy between court and counsel. No exceptions were taken to the comments of the trial court. The official stenographer did not transcribe this comment and colloquy. He was under no. duty to do so Section 295 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) requires him to take note of every remark or comment of the trial judge when the trial is by jury, and either party requests such note. Section 1323a of the Code of Civil Procedure provides for a review on appeal of “every remark or comment of the presiding judge during the trial, duly excepted to.” Where there is no exception to the comment, there is, therefore, no necessity for including it in a proposed case on appeal, and it may be struck out as surplusage. The comments and colloquy so struck out indicate very forcibly that the court refused from the beginning credence to the testimony of the plaintiff’s witnesses. The defendants produced no evidence and, as the case was disposed of on the plaintiff’s proofs alone, there will be enough before this court in the appeal from the judgment to enable an adequate review of the court’s decision, comment and colloquy excluded.

The order entered April 28,1911, should be affirmed, without costs and without prejudice to such other application as the plaintiff may be advised to make; the order entered June twenty-ninth should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Hirschberg, Thomas and Rich, JJ., concurred.

Order entered April 28, 1911, affirmed, without costs and without prejudice to such other application as the plaintiff may be advised to make; order entered June twenty-ninth affirmed, with ten dollars costs and disbursements.  