
    Joseph E. Dobbs, Respondent, v. Chilion B. Brinkerhoff, Appellant.
    
      Decision — a transcript from a stenographer's minutes, unsigned and undated, is not —a judgment entered thereon may be moated on motion—question of new trial relegated to the Special Term.
    
    At the close of a trial before the court without a j ury, the court orally announced its views of the controversy, which statements were recorded by the stenographer in his minutes. The statements were then transcribed and without being entitled, dated or signed, were included in a judgment roll. Judgment was entered without any other decision or findings than this informal and unsigned opinion of the trial court.
    
      Held, that the defendant, against whom the judgment was entered, was entitled to have the judgment vacated upon motion;
    
      That the order denying the defendant’s motion to vacate the judgment should be reversed, and that upon the question of a new trial the matter should be remitted to the Special Term for such action pursuant to the provisions of section 1010 of the Code of Civil Procedure as might be proper.
    Hirschberg, P. J., dissented upon the ground that the remedy was by an appeal from the judgment.
    Appeal by the defendant, Chilion B. Brinkerhoff, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 25th day of April, 1904, denying the defendant’s motion to vacate the judgment for a new trial on the ground that no findings or formal decision had ever been filed.
    
      Lincoln B. Haskin, for the appellant.
    
      Willoughby B. Dobbs, for the respondent.
   Hooker, J.:

This action was brought to trial at a Special Term of the Supreme Court held in Nassau county, and upon consent of the parties a jury was waived. At the close of the evidence the court orally announced its views of the controversy, in which it discussed some of the evidence and argumentatively deduced conclusion therefrom. It further said: Consequently, that payment must be held to be on account of the $600 note, thereby reducing the note to $500, for which sum plaintiff is entitled to judgment, with interest less the payments made; the last date of payment of interest to defendant’s father is in April, 1898. Now, the payment of $50 in 1899 will be first applied to the interest then due, and the balance, if any, on account of principal; interest on the sum then found to be remaining unpaid to this time, with costs, to plaintiff; in other words, crediting the defendant with the $100 paid in 1895 and the interest so shown to have been paid.”

These statements of the court were taken in the stenographer’s minutes and transcribed, and as so transcribed, without being entitled, without date and without signature, were included in the judgment roll, and judgment was entered based upon no other decision or findings than this informal and unsigned opinion of the trial court. The defendant waited until twenty days had expired after the close of the term, and then moved to vacate the judgment and for a new trial, under section 1010 of the Code of Civil Procedure, on the ground that no findings or formal decision had ever been made or filed. The motion was denied and the defendant appealed.

In Hall v. Heston (13 App. Div. 116) a similar question was presented. Mr. Justice Babtlett, writing for the court, said: There are no findings stating separately the facts found and the conclusions of law, nor is there any decision stating concisely the grounds upon which the issues have been decided and directing the judgment to be entered thereon, as prescribed by section 1022 of the Code of Civil Procedure. The opinion cannot be regarded as the equivalent of the findings or formal decision contemplated by the Code as the basis of the judgment in a case in which the whole issues of fact are tried by the court. The declaration at the end of this opinion, that ‘ the plaintiffs are entitled to judgment for $1,194.48,’ was, strictly speaking, no more a direction of the judgment to be entered in the cause than were the words judgment for defendants, with costs,’ at the end of the opinion in Reynolds v. AEtna Life Ins. Co. (6 App. Div. 254), which this court held to be insufficient. It is- plain from an inspection of the record that the opinion in the present case -was intended by the trial judge simply as a discussion of the interesting question of law involved, and in no wise as the formal decision and direction to enter judgment essential to an effective adjudication.” The same conclusion was reached in Burnham v. Denike (54 App. Div. 132); Osborne v. Heyward (40 id. 18); Lentschner v. Lentschner (80 id. 43.), and Kent v. Common Council (90 id. 553).

The order appealed from should, therefore, be reversed so far as it refuses to vacate the judgment, and the motion should be granted in that respect. Upon the question of a new trial, the matter should be remitted to the Special Term for such action, pursuant to the provisions of section 1010 of the Code of Civil Procedure, as may be proper.

All concurred, except Hibsohbebg, P. J., who dissented upon the ground that the only remedy is by appeal, and that in his view the motion was, therefore, properly denied.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.  