
    Central Trust Company, as Trustee, Appellant, v. Manhattan Trust Company, Respondent, Impleaded with West India Improvement Company.
    First Department,
    June 28, 1912.
    Appeal—power of Appellate Division to make findings.
    The Appellate Division has no power to make findings, even upon undisputed evidence.
    Hence, although it appears upon appeal that the plaintiff proved and was entitled to substantial instead of nominal damages, it can recover them only after a new trial, so that the judgment finally rendered may be supported by appropriate findings of fact.
    
      Reargument of an appeal by the plaintiff, the Central Trust Company, ■ as trustee, from part of a judgment of the Supreme Court entered upon the report of a referee, and from an order denying a motion for an extra allowance. (See 149 App. Div. 941.) ' •
    
      William D. Guthrie, for the appellant.
    
      Henry W. Taft, for the respondent.
   Scott, J.:

This appeal comes before us for reargument. The action is for conversion and the judgment appealed from while in form one in favor of plaintiff, was in reality favorable to defendant because it was found liable only for nominal damages. This court, being of the opinion that the undisputed and apparently incontrovertible facts not only established the plaintiff’s right to substantial damages, but also established the amount of such damages, modified the judgment by awarding to plaintiff substantial instead of nominal damages, and affirmed it as so modified. Our attention is now called to the fact that under .existing rules of procedure, as construed by the Court of Appeals, it was erroneous to modify the judgment in the respect indicated because we have at present no power to make findings, even upon undisputed evidence, and the referee’s finding of fact that the plaintiff suffered no damage still stands and is inconsistent with the judgment entered upon our modification of the judgment appealed from.

While, therefore, it is still our opinion that the plaintiff proved and was entitled to recover substantial damages, yet as above indicated it can recover them only after a new trial, so that whatever judgment is finally rendered may be supported by appropriate findings of fact.

In order that the new referee, to whom the action will of necessity be referred, may not be embarrassed by our former opinion as to the quantum, of the damages, it is proper to say that the amount for which we directed judgment was that for which, upon the evidence then before us, we considered that the defendant was certainly liable. It does not follow, however, that the plaintiff may not be found,, upon the evidence to be presented upon a new trial, to be entitled to the recovery of a different or even a greater sum. There is no question left in the case except as to the amount of damages to which the plaintiff is entitled. We were of the opinion, and still are, that upon the evidence presented in the present record the referee erred in finding that such damages were merely nominal. There must, therefore, be a new trial when the question as to the quantum of damages will be determined upon the evidence then presented.

The judgment should be reversed and a new trial granted before another referee, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed and new trial granted before another referee, costs to appellant to abide event. Order to be settled on notice.  