
    Edward H. Dann and Others, Respondents, v. Manning C. Palmer and Others, Defendants, Impleaded with Charles M. Crouse and Others, Appellants.
    Fourth Department,
    May 1, 1912.
    Practice — submission of requests to find after opinion handed down by trial judge—when submission not timely — appeal—review of findings not warranted by evidence.
    Where a cause was submitted to a judge for decision in 1909 upon oral arguments and briefs without suggestion by either party that they would thereafter submit requests to find facts and conclusions of law, the judge may decline to pass upon requests to find which were not submitted until after he had handed down an opinion deciding in favor of one of the parties. This is true although the opinion at its close stated that findings may be submitted, for such words should be construed to ' mean, not that the judge would reopen the case to permit requests to be submitted, but would merely receive suggestions from the parties in order to aid him in framing a formal decision.
    
      It seems, that a judge after delivering his opinion may reconsider his conclusions and revise his decision, or make an entirely different one, at any time before he has made the formal decision required by sections 1010 and 1033 of the Code of Civil Procedure, and to that end may permit requests to find to be submitted, under section 1033.
    
      It seems, that if the judgment entered on such decision is against the weight of evidence it may be reviewed by the Appellate Division, and if any findings are without evidence to support them they may be excepted to as a ruling upon a question of law and are reviewable in the Appellate Division and in the Court of Appeals.
    McLestnait, P. J., and Foote, J., dissented, with opinion.
    Appeal by the defendants, Charles M. Crouse and others, from an order of the Supreme Court, made at the Oneida Special .Term and entered in the office of the clerk of the county of Onondaga on the 8th day of February, 1912, denying the said defendants’ motion, to have the court pass upon certain proposed findings of fact and law.
    
      Levi S. Chapman, for the appellant Charles M. Crouse.
    
      Jerome L. Cheney, for the appellants George J. Sager and others.
    
      T. E. Hancock, for the appellants Theodore E. Hancock and Charles E. Crouse.
    
      John W. Hogan, for the appellant Salem Hyde.
    
      Charles P. Ryan, for the respondents.
   Kruse, J.:

After the trial judge had handed down his opinion, deciding the case in favor of the plaintiffs, but before he had signed his formal decision, the defendants submitted to the trial judge proposed findings of fact and law (as they are designated), upon which the judge declined to pass further than as found in his formal decision, upon the ground that they were not submitted to him until after he had decided the issues and delivered his opinion to counsel.

After the formal decision had been signed, application was made at Special Term, at which the same judge presided who decided the case, to have him pass upon the proposed findings. The application was denied and from the order entered upon that decision this appeal is taken.

The case was submitted to the judge for decision in March, 1909, upon oral arguments and briefs, without any suggestion that any party would thereafter submit to him requests to find facts or to rule upon questions of law; nor was any such suggestion made until after the judge had delivered his opinion, as has been stated.

The defendants contend that the proposed findings were submitted under the provisions of section 1023 of the Code of Civil Procedure, and were timely submitted. That contention seems to rest upon a statement at the close of the opinion, stating that findings may be submitted, and what occurred thereafter. But the judge seems not to have so understood that statement.

What the judge seems to have had in mind was not to reopen the case to permit requests to find to be submitted, but to receive such suggestions from the attorneys for the respective parties as might aid him in putting into a formal decision what he had already decided. That practice was in vogue long before the enactment of the present Code of Civil Procedure and has been resorted to more or less by trial judges since the enactment of section 1023. in its present form, and is entirely independent of the course of procedure provided by that section.

The purpose of submitting requests under section 1023 is not only to protect the rights of parties upon appeal, but as well to aid the trial judge in determining the case. The opinion shows that the judge had considered the questions of fact as well as law, and had reached a conclusion thereon. TTis opinion is a very full and complete statement of the facts found, and an elaborate discussion of the law, and directs the judgment to be entered, although it is not a formal decision. Undoubtedly the judge had the right, after delivering his opinion, to reconsider his conclusions and revise his decision, or make an entirely different one, at any time before he had made the formal decision as required by the Code of Civil Procedure ,(§§ 1010, 1022), and to that end to permit requests to find to be submitted under section 1023. But, as I have stated, it does not seem to me that that was the purpose of the judge.

Furthermore, that section requires the statement to be in the form of distinct propositions of law or of fact, or both, separately stated, each to be numbered and so prepared with respect to its length and the .subject and phraseology thereof, that it may be conveniently passed upon. Its purpose is to aid the judge, and not to entrap him.

Of the one hundred and twenty-seven proposed findings, sixty-seven are denominated “Findings of Fact,” and sixty ‘ ‘ Law. ” Many of them are mere recitals of the evidence; others are covered by the formal decision, and the statement as a whole, I think, is not such as the section contemplates.

If the judgment is against the weight of the evidence, that may be reviewed in this court, and, if any of the findings are without any evidence to support them, they may be excepted to as a ruling upon a question of law (Code Civ. Proc. §§ 992, 993), and are reviewable upon appeal in the Court of Appeals as well as in this court.

If the defendants desired to submit requests to find, they should have done so seasonably. They made no case relieving them from their default, and no relief was asked upon that ground. They contended, and still contend, that the requests yvere seasonably made and in proper form. I think that position is not tenable..

The order should be affirmed, with ten dollars costs and disbursements.

All concurred, except McLennan, P. J., and Foote, J., who dissented in an opinion by Foote, J.

Foote, J. (dissenting):

This action was tried at Special Term. The justice presiding ' vrdte an opinion in which he stated at length his views of disputed questions of fact and the law of the case. At the conclusion of his written opinion is the following: “ Findings maybe submitted.” Defendants’ counsel had not submitted proposed findings, nor had their time to do so heen extended; hence, their right to do so was gone, unless the presiding justice should thereafter and before his formal decision allow them to be submitted as authorized by section 1023 of the Code. The memorandum at the end of his opinion, “Findings may be submitted,” was a direction to plaintiffs’ counsel to submit findings in accordance with the opinion. It did not authorize or allow defendants’ counsel to submit proposed findings to be ruled upon in accordance with section 1023 of the Code. Plaintiffs’ counsel prepared findings and gave notice of their presentation to the justice for settlement, with a motion for an extra allowance of costs, on the eighteenth of November. At this time, after the motion for extra allowance of costs was heard and disposed of, the moving affidavits state: “ That thereupon the question of findings. were (sic) brought up by said respective attorneys, who were appearing. * * * [The counsel] stated to the court that sufficient time had not been had by the attorneys for the various defendants liable for judgment Under said opinion, in which to examine the proposed findings and opinion, and that the. said defendants desired an additional one week’s time to examine said findings, and if deemed necessary to present additional findings themselves and that it was thereupon agreed between the court and said counsel that an adjournment should be taken for one week until Saturday, November 25, 1911, at the same time and place, for the purpose of settling the findings in said action.”

This clearly was not an allowance by the trial justice of further time within which defendants might submit proposed findings and rulings to be passed upon by the trial judge under section 1023 of the Code. The trial justice might well have understood that defendants’ counsel wished further time to examine the findings submitted for plaintiffs, with a view to criticising their form or sufficiency or suggesting changes or additions. It would seem, however, that defendants’ counsel were, or soon became, of opinion that either because of what had been said at this hearing or of the' statement in reference to findings at the end of the court’s written opinion, they were to be allowed to submit proposed findings to be. formally ruled upon by the presiding justice. Accordingly, they applied to the justice for further time in which to submit their proposed findings, and the moving affidavits state that on the twenty-fourth of November they appeared before the said justice and explained to him “ the necessity of additional time in which to prepare proposed findings .of fact and of law in said action in behalf of said defendants,” and that said justice granted the application for an adjournment of two weeks until December ninth at the Special Term on that day “for the purpose of presenting proposed findings,” and that said justice ordered “ that copies of said proposed findings should be served on the plaintiff’s attorneys not later than Wednesday, December 6th, 1911.” Thereupon defendants’ counsel prepared proposed findings, which they served upon plaintiffs’ counsel on December sixth. On December eighth, at the request of plaintiffs’ counsel, and because he had not had sufficient time to examine defendants’ proposed findings, the hearing in reference to findings was further adjourned to December sixteenth by agreement of counsel, and a letter written by one of defendants’ counsel to said justice in which it was stated: “ We served our proposed findings or request for findings upon Wilson, Cobb & Eyan, Wednesday, agreeable to your order, but Mr. Eyan has found himself so occupied with other matters that he will not be able to look them over in time for Saturday, and I have agreed with him that the matter may go over, until a week from Saturday. Trusting that this will be agreeable to you, I am, yours truly.” On December sixteenth counsel for the respective parties appeared before said justice and each submitted their proposed findings and an argument was had in reference thereto. So far as appears from the motion papers, no claim was made by plaintiffs’ counsel that defendants’ time within which to submit proposed findings had expired, nor did the trial justice state or intimate that he would not allow defendants’ proposed findings to be then submitted for. his rulings thereon. Accordingly, both sets of findings were left with the trial justice, apparently with the impression on the part of counsel on both sides that defendants were regular in their practice and that rulings would be made upon their proposed findings. Up to this time, no decision of the case had been made such as the court is required to make by section 1022 of the Code. The written opinion of the trial judge w‘as not such a decision. The case still remained under the control of the trial justice, and notwithstanding his written opinion, he was at perfect liberty to make the formal findings and decision in such form as seemed to him then to be proper, even if inconsistent with or adverse to the views stated in his opinion.

There is no substantial controversy as to the facts above stated. The affidavit of one of plaintiffs’ attorneys was read in opposition to the motion, in which it is stated: “No findings or requests to find or statement of fact or rulings of the defendants before the cause was finally submitted as aforesaid or before the decision was rendered; nor was the time of any defendant to submit such findings, requests to find, statement or rulings ever extended; that the case was decided on or about the 31st day of October, 1911.” There is no denial in this affidavit of the specific facts contained in the moving affidavits as to what took place before the trial justice and between counsel. Hence, I conclude that the statement above quoted is the statement of the opinion or conclusion of the affiant that the facts stated in the moving affidavits do not constitute an extension of the time of any defendant to submit requests to find and that the opinion delivered October thhty-first is a decision. In this view I do not concur. The trial justice received the proposed findings of each party on the sixteenth of December, retaining them in his possession until on or about the 7th of January, 1912, when he delivered to plaintiffs’ attorneys the findings which they had prepared, duly signed by him, and to defendants’ attorneys the proposed findings which they had submitted, without having ruled upon any of them and with the following indorsement: “The foregoing-requests to find were not submitted to me until after I had decided the issues in the cause and delivered my opinion to the counsel. I, therefore, decline to pass upon these requests and to find further in the action than as I have found in my formal decision. Dated January 6, 1912.”

This indicates, I think, that the learned justice considered that he was without authority to pass upon defendants’ proposed findings; that his written opinion which had been made and delivered to counsel on October thirty-first was a decision of the cause within the meaning of section 1023 of the Code, which provides, “ Before the cause is finally submitted to the court or the referee or within such time afterwards, and before the decision or report is rendered, as the court or referee allows, the attorney for either party may submit, in writing, a statement of the facts which he deems established by the evidence, and of the rulings upon questions of law, which he desires the court or the referee to make.” I think the decision referred to in this section is the formal decision, required to be made by section 1022, which must state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment roll.” And assuming that to, be so, it was within the right of the trial justice on the nineteenth of December to permit defendants to submit their proposed findings to be ruled upon by him. His receipt of these findings submitted for that purpose in the presence of opposing counsel, who did not object, together with what had already occurred, I think gave defendants the right to have these findings ruled upon, or such of them as were in proper form for that purpose. I think also a motion at a term presided over by the same justice was a proper and appropriate method of bringing the question up for examination and decision. No doubt where a judge is in the attitude of refusing absolutely to perform a judicial duty, mandamus is the proper remedy, but here the learned justice was • laboring under what, I think, was an erroneous impression that the time within which he might properly and lawfully act upon these findings had expired. The motion below presents that question in form to be examined and reviewed, and there was no occasion to resort to the . more drastic remedy of mandamus.

The order appealed from should be reversed and the defendants’ proposed findings should be resubmitted to the trial justice for his rulings thereon, with ten dollars costs and disbursements to the appellants.

McLennan, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.  