
    Abraham Elterman, Appellant, v. Jacob Hyman, Respondent.
    First Department,
    February 8, 1907.
    Practice — case on appeal s- requests to find not part of judgment roll.
    In trials by the court-or before a referee, the formal decision directing a judgment must contain every finding of fact made by the justice or referee, and no fact not thus incorporated-in the decision forms any"part of-the judgment roll or the case on appeal, or can be considered for any purpose by the appel- ■ • late court. A party lias no right to, incorporate in a judgment roll or ease on appeal his requests .to find submitted to ihe court or referee under section 1023 of the Code of Civil Procedure, unless the court refuses to find, in which case the requests refused may he inserted -in the appeal book, unless incorporated in the decision.
    • The practice of incorporating the requests to find is without authority and is discountenanced. Propositions which are found should be inserted in the decision, and if by inadvertence they are omitted, the decision should be resettled so as t-o embrace them, and a defeated party wishing "to take advantage upon appeal of a finding so made must see to it that the finding is properly incorporated in the-decision.
    -It follows that an appellant can take no advantage „of any supposed inconsistencies between the facts as found at his request and those appearing in the formal decision. ,
    
    Appeal by the plaintiff, Abraham Elterman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk' of the Bounty of Hew York on the 1st day of February, 1906, upon the decision of the -court, rendered after a trial at the Hew York Special Term, dismissing the .complaint upon the merits.
    
      Edward W. S. Johnston, for the appellant.
    
      Jsidor Wasservogel, for the respondent.
   Scott, J.:

The plaintiff sues to recover an amount of money paid by him upon a contract for the purchase- of .real estate, and his expenses incurred in examining the title, and to establish a lien therefor. -The court below has found the objections to the title to be unsubstantial, and insufficient to warrant the plaintiff’s refusal to complete the contract, and-upon the findings of fact embraced in the decision, all of which find support in the evidence, we conclude that the judgment below- dismissing the complaint was right and. Should be affirmed.

It would be unnecessary to say more were it not for the fact -that the case presents, in an extreme form, a method of making up the judgment roll and- appeal book which is not uncommon, and yet is entirely unauthorized by the Code of Civil Procedure or by the rules of the court.

The appellant calls our attention to certain findings of fact which, as he asserts, are inconsistent with each other, and invokes the well-established rule that where there are conflicting findings the appellant is entitled to the one most favorable to.himself. The judgment is based''upon a written decision signed by .the justice who tried the case, and- containing findings of fact and conclusions of law.

We find no inconsistent findings in this decision. .We do find," however, in the appeal book, and apparently bound tip as a part- of the judgment roll,-a paper entitled “Plaintiff’s requests to find,”- and' containing a request to the justice to find thirty-six distinct ■ statements of fact, some of which are marked “found” and some of which are marked “refused..” The inconsistencies upon which appellant'relies are said to be between certain of these propositions thus marked “ found,”' but not embraced in the signed decision, and other findings of fact -which are embraced in the formal, signed decision.

.We assume, although the fact does not clearly appear, that, the words “ found ” and “ refused ” indicate the disposition made by tlie justice of the requests'presented to him. Section 1022. of the Code of Civil Procedure provides that: “ The decision of the court or the report of a referee upon the trial of the whole issues of fact 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.” Section 1023 provides as follo.ws: 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-tlie 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. * * * At or before the time when the decision or report is rendered, the court or the referee must note in the margin of the statement the manner in which each proposition has been disposed of, and must either file or return to the attorney the statement thus noted; but an omission so to do does not affect the validity of the decision or report. An exception may be taken to .a refusal of the court or referee to-find any request thus submitted.”

The plain meaning of the Code is that the formal decision directing the judgment to be entered must contain every finding of fact made By the justice, and that no fact not thus incorporated in the decision forms any part of the judgment-roll, or case on appeal, or can be considered for any purpose by the appellate courts. Ho party has the .right to present propositions after the caitse has been finally submitted to the justice, unless his time to do so has been expressly extended, and in any event, such propositions must be submitted before the decision, for it is expressly required that they, shall be passed upon at or before the decision is rendered, and not afterwards. Being so presented and passed upon, these propositions which are found should be inserted in the decision, and if, by inadvertence, they are omitted therefrom the decision should be resettled so as to embrace them, and if the defeated party wishes to take any advantage upon appeal of a finding so made it is incumbent upon him to see to it that the finding is properly incorporated in the decision. It’ is only to a refusal'to find that an exception lies, and it is only these requests which are refused which have any proper place in fhe appeal book, unless incorporated into the decision. Although this plain and obvious requirement of the Code of Civil Procedure is seemingly often overlooked, attention has frequently been called to it by appellate courts. (Schultheis v. McInerny, 27 Abb. N. C. 193; Nobis v. Pollock, 53 Hun, 441; O’Brien v. Buffalo Traction Co., 31 App. Div. 632; affd., 165 N. Y. 637; Hudson & Manhattan R. R. Co. v. Jackson, 115 App. Div. 168.) In O'Brien v. Buffalo Traction Co. {supra) the precise question arose which is presented by the appellant here, and the court said : “ If it be urged that this conclusion is contrary to- the second finding of fact not embraced within the signed decision of the court, but found upon the request of the plaintiff and stated outside of the decision, it must "be answered that since the amendment of the Code of Civil Procedure in 1894 (Chap. 686, Laws of 1894) a trial court or referee is without power to find facts not embraced within the decision signe’d, and in case a court " or referee assumes to find and state facts outside of the signed decision which are inconsistent with the facts admitted in the pleadings and those found in. the signed decision, the facts found -and stated outside of the signed decision will be disregarded on appeal.” In Hudson & Manhattan R. R. Co. v. Jackson (supra) we held very recently that the report of a referee should be returned to him to include in his report findings -of fact made at the request of á party, but not included in the -report. It follows that upon the record before us the appellant can take no advantage of any supposed inconsistency between the facts as found and embraced in the formal signed decision and those found at his request but not .incorporated into the decision.

The judgment must be affirmed, with costs.

. Patterson, P. J., McLaughlin, Houghton and Lambert, JJ., concurred.

Judgment affirmed, with costs. Order filed. 
      
      See Laws of 1894, chap. 888.—[Rep.
     