
    Susan Baker, App'lt, v. William Moore, as Executor, etc., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    1. Appeal — Referee's decision.
    Where the referee gives no basis for his decision, and it is impossible to-discover on which ground set forth in the motion to confirm.the decision' made, or whether on all of them, the judgment, entered thereon, cannot be reviewed.
    3. Same — Remand of cause to referee.
    The general term of the supreme court will, where the referee makes no findings of fact or conplusions of law,,remand the cause to.the ¡referee,,to-have the grounds of his decision stated, if the case involves important questions, and a refusal ito review may work an injustice to appellant.
    Appeal from a judgment, entered in favor of defendant.
    
      J. M. Whitman, for app’lt; King & Ashley, for resp’t.
   Fursman, J.

— In June, 1890, a claim against the estate of Abel Scripture, deceased, was presented by the plaintiff to the executor of his last will, and by him rejected. Thereafter, in due course, the matter was1 referred by the surrogate. The plaintiff presented her evidence in full before the referee, and at the close thereof a motion was made on behalf of the executor to “dismiss the claim and nonsuit the plaintiff on tho merits’’ on five several grounds. Thereupon the referee granted the motion, and made and filed his. decision as follows (after the usual formal statements):

“I do order, decide, and direct that the said motion be granted, and that the plaintiff’s complaint or claim * * * be dismissed on the merits, and that the defendant have judgment dismissing the same with costs, and I order judgment accordingly.”

Afterwards, on motion, this decision was confirmed at special term. Ho other report or decision was made. This decision is not a compliance with section 1022 of the Gode of Civil Procedure. There is no fact found, nor any conclusion of law stated, nor are any grounds of the decision set forth, as required by this section. A considerable amount of evidence was given which, upon such a motion, must be taken to be true.' The referee gives no basis for his decision, and it is impossible to discover on which ground set forth in the motion the decision was made, or whether on all o£ them. It has been repeatedly held by the court of appeals that in such case the judgment cannot be reviewed. In Wood v. Lary, 124 N. Y. 83; 85 St. Rep. 53, this was distinctly decided, and at page 87, 124 N. Y., the court say :

“But in every case triable before a court without a jury or heard by a referee, if any evidence be presented, a decision stating separately the facts found and the conclusions of law must be made. If it be not done, the judgment cannot be reviewed.”

It is true that the decision was prior to the amendment to section 1022, allowing a- decision “stating concisely the grounds” upon which it is made to be substituted for separate findings of fact and conclusions of law, but it is clear that the same rule must apply in either case. The latter portion of the section is only made to apply to cases where there are no separate findings, and entirely omits any reference to decisions which do not state the grounds on which they are based. In this case there was an unmistakable decision, and no grounds thereof are stated. The case, therefore, falls within the rule aboved stated. McNaughton v. Osgood, 114 N. Y. 574; 24 St. Rep. 531; Gilman v. Prentice, 132 N. Y. 488, 491; 44 St. Rep. 611. The same rule prevails in the supreme court. Nobis v. Pollock, 53 Hun, 441; 26 St. Rep. 155; People v. Ranson, 2 St. Rep. 78; Drury v. Wigg, 19 Wkly. Dig. 417. An examination of this case discloses some important questions, however, which we think ought to be reviewed. It is possible that to refuse such review for the reason above given might work an injustice to the plaintiff. A motion might have been made at special term to send the case back to the referee to have the grounds of his decision stated, as required by section 1022, but this court undoubtedly has the same power, and, we think, ought to exercise it in the present case. This course was pursued in Nobis v. Pollock, aboved cited, and may properly be followed here. Without expressing an opinion upon the other questions raised'on this appeal, this case is ‘therefore sent back to the referee, to have his decision amended in accordance with this opinion.

All concur.  