
    MORGAN L. LIVINGSTON, et al., Respondents v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants. SILVIA LIVINGSTON, Respondent v. The Same. JULIA LIVINGSTON, Respondent v. The Same.
    
      Referee, report of; incorporation therein of the findings made at the request of either party ; Save parties a strict statutory right to such incorporation ?
    In these three cases it was claimed, on the motions in the court below and on appeal, that the reports of the referee in each case did not contain all the facts found by the referee at the request of the defendant, and for that reason the reports should be vacated and referred back to the referee for a report containing all of said findings, and such claim appeared to be in form substantially correct.
    
      Seld, that the reports as made were clear, compact and concise without such findings, and the defendants were not prejudiced by the omissions of the referee to incorporate all the findings proposed by them, and such practice was to he highly commended unless the law (sections 1022, and 1023, of the Code) prescribed, and defendants had a strict statutory right to the incorporation of such findings in the report.
    
      Seld, that on review of said sections 1022 and 1023, and the practice and decisions of the courts, that defendants had no such right, and the decisions of the court below, denying the motions of defendants to vacate and set aside the reports, etc., were affirmed.
    Before Sedgwick, Ch. J., Freedman and Dugro, JJ.
    
      Decided November 10, 1891.
    Appeal by the defendants from an order denying their motions in each of said actions, to vacate and set aside the reports of the referee in each of said actions, and that the referee be directed to make reports therein which shall include all the facts found by him and the conclusions of law found thereon.
    
      Davies & Rapallo, attorneys, and Julien T. Davies, Brainard Tolles and Sidney Smith of counsel, for appellants, argued:—
    The learned judge at special term erred in refusing to send the reports back for amendment. Section 1022 of the Code of Civil Procedure provides as follows: “ The decision of the court on the report of the referee upon the trial of the whole issue of fact, must state separately the facts found and the conclusions of law; and it must direct the judgment to be entered thereupon.” This section clearly requires all the facts found by the referee to be embraced in the report. There is no distinction made by the Code between findings of fact and conclusions of law proposed by either plaintiffs or defendants but all the facts and conclusions, by whichever party offered, and found by the court or referee, are to be included in the report or decision, as the case may be. The. decision or report is based upon all the facts found and they are each and every one necessary to support the judgment. It is not to be presumed that any of the findings or rulings of the referee are immaterial to the issues before him, or can be eliminated from his report without lessening its force and effect, and when he has passed upon such findings affirmatively they necessarily express liis conclusion, founded upon an examination of the evidence, that they are needed to uphold the judgment. This being so it is apparent that all the facts found by the referee should appear in his report. The provision of the Code is explicit. There is no discretion left to the court or referee, the language is mandatory. “ The referee must state separately the facts found and the conclusions of law.” These appellants were therefore entitled as a matter of right to have the findings which were omitted from the report inserted therein. If there is any rule of practice to the contrary it must yield to the statutory provision. The learned judge at the special term in his opinion says that “ the time honored practice was for the referee to find such facts as he deemed necessary to sustain his conclusions, and to pass upon the requests submitted by the adverse party. Both were printed in the appeal book, and the case was disposed of as if all the findings had been written upon the sheet of paper. This may have been the practice in the City Court of which he was for a long period the honored chief justice, but it does not appear that this method was in vogue in other courts. In Nobis v. Pollock, 17 Civ Proc. Rep., 243-245, the mode of making up the referee’s report is very clearly stated. This case is directly in point and the opinion of the presiding justice succinctly states the practice on this question. An appeal was taken by the defendant from a judgment entered at special term in favor of the plaintiff, in an action foreclosing a mechanic’s lien. Yan Brunt, P. J., said: “ Upon an examination of the case as presented, it appears that there has been no compliance with the provisions of the Code, section 1022, requiring the court upon a trial of the whole issue of fact to state separately the facts found and the conclusions of law. The learned court in this case has apparently filed a decision containing certain facts found and certain conclusions of law. But upon an investigation, in separate parts of the case, Ave find that he has found other facts apparently upon the request of one of the parties, and has not embraced them in his decision which is filed. This is clearly not a compliance Avith the provisions of the Code, and renders it impossible for this court to revieAV the judgment upon a record so imperfectly made up. “ All the findings of fact on which the judgment is founded formed part and parcel of the judgment roll, and it will be seen by reference to section 1023 that the papers which are submitted to the court containing requests to find upon behalf of either part, and upon which the court is bound to rule, form no part of the judgment roll, because the court has a right either to file these papers or to return them to the attorneys, his rulings having been entered therein; and we have the further significant provision that the omission to note these rulings thereon shall not affect the validity of the decision or report; making it apparent that these papers form no part of the judgment and no part of the decision of the court. Therefore, the only purpose which they would serve is as the basis of an exception to a refusal to find. The case must therefore be sent back in order to have the proper findings prepared.” In this opinion Brady and Daniels, JJ., concurred. A later case in the same court reiterates the principles laid down in the one just cited, and the learned presiding justice states more carefully even than in the preceding opinion the conclusion that section 1022 of the Code requires all the facts found by the court or referee to be inserted in the report or decision. This last case is ahnost identical in point of facts to the one at bar. • On trial of the action before the referee the plaintiff and the defendants named each proposed separate findings of fact and conclusions of law, and submitted them to the referee. He marked on the margin the disposition by him of each proposition, and returned the proposed findings to the attorneys of the respective parties, and made a report which did not contain all the findings made by him at the request of the parties. A motion was made to set aside the referee’s report, which was denied and defendants appealed. Van Brunt, P. J., said : “ It is conceded upon the papers submitted upon this appeal that the referee did not include in his report all the facts found by him. This clearly made his report irregular, because by section 1022 of the Code it is provided that the decision of the court or the report of the referee upon the trial of the whole issue of fact must set out the facts found and the conclusions of law. This is an express direction that the facts found must he set out in the decision or report, and the reason for this is apparent, because an appeal may be taken, and such appeal founded upon errors contained in the report itself, viz.: that the conclusions of law do not follow from the facts found by the referee; and, in order that the appellant may bring up this question, it is necessary that there should he contained in the report or decision all the facts found. An inspection of section 1023 reinforces this view, as it is there provided that either party may request findings of fact, and the referee is bound to mark on the margin of the papers submitted his rulings upon such requests, which papers may be returned to the parties, and never enter into the judgment roll, and only come before the court as part of the case, if a case is made and annexed to the judgment roll. Therefore it is apparent from this section also that the facts found by the referee, no matter whether at the request of one side or the other, must he incorporated in this report. This court has repeatedly refused to entertain appeals, where it appears that this provision of the Code has not been complied with. We think, therefore, that the case should have been sent back to the referee in order that he might make a report complying with the provisions of the Code, including therein all the facts found by him. * * * '* An order should be made sending the case back to the referee, in order that he may make a report in which shall be included all the facts found by him.” All concur. Schultheis v. McInery, et al., 13 N. Y. Supp., 685. That the court has power to remit the report or decision for the purpose of adding findings or rendering the document more clear, see 84 N. Y., 285; 39 N. Y. State Rep., 231, and cases just cited. These unanimous opinions of the general term of the Supreme Court definitely settle the method of procedure in that court, and while perhaps not binding, upon this general term, or court, as stated in the opinion of the learned special term judge, they establish very clear and forcible precedents which may be safely followed. It is intimated very strongly that the practice of this court is similar to that in the Supreme Court, by a very recent case decided by this general term in May last. This was an action brought against these same defendants, and the facts appear in the opinion. The court said: “ It is objected as a sufficient cause for reversal that certain findings and conclusions of law, found at the request of the defendants, were omitted from the decision made by the judge. In such a condition of the case there is no subject-matter of an appeal. There is no action of the court which may be reviewed. If the omission were irregular, the defendants might have made a motion for the correction of ' the omission, and they would have a right to appeal from a denial of the motion. In the absence of such a motion and order, the omission appears to be without objection on the part of the defendants, and that evinces a consent that the case proceed and appeal be heard on the decision as made. Judgment affirmed, with costs.” Altmayer v. Met. and Man., 14 N. Y. Supp., 311, 312. The language of the court here is significant, and the clear meaning of the opinion is that these findings and conclusions should have been inserted in the decision in order that a proper case might be made for appeal.
    
      Olin, Rives & Montgomery, attorneys, and G. L. Rives of counsel, for respondents, argued :—
    This appeal brings up the single question whether Mr. Justice Mo Ad am was right in declining to follow the practice laid down for the Supreme Court by its general term in Schultheis v. McInerny, 13 N. Y. Supp., 684; mem of dec., 59 Hun, 626. On the trial of these actions, before Mr. Hamilton Odell, as referee, the plaintiffs and defendants each proposed separate findings of fact and conclusions of law, and submitted them to the referee. He marked on the margin the disposition, made of each proposition, and returned the proposed findings to the attorneys of the respective parties. At the same time, April 21, 1891, the referee delivered to the attorneys for the plaintiffs his report in each of these actions, made up by himself. It is asserted by the defendants that the reports as made up do not contain all the facts found by the referee at their request; and it may be admitted that this assertion is, in form, correct. There are, in the case of Morgan L. Livingston, 57 requests to find facts and 23 to find conclusions of law; in the case of Julia Livingston, there are 55 requests to find facts and 24 to find conclusions of law; in the case of Silvia Livingston there are 57 requests to find facts and 24 to find conclusions of law; or about 80 requests in each case. Though the three cases are all alike —relating to three contiguous parcels of land—the requests to find are ingeniously confused so as to be different in each case. The very experienced referee who tried these cases, adopted what Mr. Justice McAdam calls in his opinion, a the time honored practice ” of including in his report all such facts as he deemed necessary to sustain his conclusions. He has, so far as we can observe, included every fact found at the defendants’ request which was of the slightest materiality. The result is a clear, compact and comparatively concise report, identical (except as to dimensions, names, amounts, etc.) in each of the three cases. What incoherent, cumbersome and altogether ridiculous documents these would be if the defendants’ motion were granted, will appear to the court if it will attempt the task of reading over the defendants’ requests to find, and imagining their interpolation into the body of Mr. Odell’s well drawn reports. The practical objections pointed out by Mr. Justice Mo Ad am to the rule in Schultheis v. McInerny need not be further insisted on. The only purpose of this motion is to cause delay and confusion. The only argument in favor of granting it is based on the literal wording of sections 1022 and 1023 of the Code of Civil Procedure. Taking all the language together, we respectfully submit that the learned general term of the Supreme Court fell into error in supposing that every word of every request favorably passed on by the referee must necessarily be included in his report. See editor’s note to Nobis v. Pollock, 23 Abb. N. C., 279. No such proposition has as yet been announced—so far as we can learn—by the general term of this court. In Altmayer v. Met. Elev. R’way Co., 38 N. Y. State Rep., 530, decided nearly two months before the cases now at bar, this court (Sedgwick, Ch. J., and McAdam, J.), merely held that if the omission to include certain findings were irregular, a motion to correct the irregularity should have been made, and that the question could not be raised on appeal from the judgment.
   By the Court.—Freedman, J.

In each of the above entitled actions the defendants moved that the report of the referee be vacated and set aside and that the action be sent back to the referee and that he be directed to make a report including all of the facts found by him and all the conclusions of law found thereon. The motions were denied and the defendants appealed.

Each of these actions was the usual action by an abutting owner for an injunction and for damages by reason of the construction, maintenance and operation of an elevated railroad in front of such owner’s premises. By consent of the parties the actions were referred to a referee to hear and determine the same, and they were so tried. On the trial the plaintiffs and the defendants proposed separate findings of fact and conclusions of law and submitted them to the referee. He marked on the margin the disposition made of each proposition, and returned the proposed findings to the attorneys of the respective parties. At the same time the referee delivered to the attorneys for the plaintiffs his report in each action, made up by himself, in which he found that the plaintiffs were entitled to an injunction and to damages.

It is now claimed, as it was claimed on the motions below, that the reports so made up do not contain all the facts found by the referee at the request of the defendants, and that for this reason the reports should have been vacated and set aside and the actions referred back to the referee for a proper report. The claim that the reports do not contain all these facts, is, in form, correct.

The first question then is whether the defendants were prejudiced by the omission.

Each report is complete in itself and appears to comply with the substantial requirements of the Code and the practice heretofore observed. It contains a full statement of facts found, a statement of conclusions of law based thereon, and a direction for the appropriate judgment. There were made by the defendants in the case of Morgan L. Livingston, 57 requests to find facts and 23 requests to find conclusions of law; in the case of Julia Livingston, 55 requests to find facts and 24 to find conclusions of law; and in the case of Silvia Livingston, 57 requests to find facts and 24 to find conclusions of law. Of these many were found as requested, with the remark that they had been so found in the report; others were found with a qualification; still others were simply marked found,” and the remainder were refused. The referee included in his report in each case all such facts as he deemed necessary to support his conclusions of law. Each report contains 20 findings of fact and 8 conclusions of law. The result is a clear, compact and comparatively concise report, identical (except as to dimensions, names, amounts, etc., etc.), in each of the three cases—a practice to he highly commended, unless the law clearly calls for a different one. Though the three cases are substantially all alike—relating to three contiguous parcels of land and the differences relating only to names, descriptions, amounts, etc.,—the defendants’ requests were ingeniously confused so as to be different in each case. After having passed upon them, the referee included in his report of each case all the facts and conclusions of law so found which he deemed material or in any wise calculated to affect the decision.

I have carefully examined those which were omitted from the reports and found that, in view of the law applicable to this class of cases, they are utterly inefficient to work a result different from that which was reached, provided the findings of fact which were stated in the reports are supported by sufficient competent evidence, which latter question cannot be determined at the present time. In no aspect which can be taken can the defendants lose anything on their appeals from the judgments in these cases by reason of the fact that in each case the findings of the referee are written upon two pieces of paper and not one. The rulings as to the omitted findings appear in his notes on the margins of the requests, and the defendants can file them and print them and have them considered as part of their appeal papers. Their appeal may be brought both upon the facts and the law, and, if proper steps are taken, they may at the same time have a review of the order denying their motions to send the reports back, and upon such review obtain the relief to which they may then show themselves entitled.

No prejudice by the omission having been established, the only remaining question is whether the defendants, although not prejudiced, have a strict statutory right to the relief demanded by them on their motions.

Prior to the decisions made by the general term of the Supreme Court of the First Department in Nobis v. Pollock, 23 Abb. N. C., 279, and Schultheis v. McInerny, 13 N. Y. Supplement, 684, it was generally considered and believed that no such right exists. The solution of the question depends upon the interpretation and construction of sections 1022 and 1023 of the Code of Civil Procedure.

Section 1022 prescribes that the decision of the court, or the report of the referee, upon the trial of the whole issue of fact, must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereon. Sections 267 and 272 of the old Code also provided that the decision or report should contain a statement of the facts found and the conclusions of law separately.

Under the old Code it became well settled that the statement of facts thus required consisted of a statement of the material facts necessary to support the conclusions of law based thereon, and no more, and that no detailed findings were required specifying the particulars of the general conclusions of fact, or explaining the means or processes by which such general conclusions were reached. Avery v. Foley, 4 Hun, 415; Wilson v. Knapp, 42 N. Y. Super. Ct., 25, affirmed 70 N. Y., 596; Beck v. Sheldon, 48 N. Y., 365.

In Pollock v. Pollock, 71 N. Y., 137, the Court of Appeals even held that a decision of the special term consisting of a statement that the court found plaintiff guilty of the adultery as charged in the answer, and of a direction that the complaint be dismissed, was a sufficient compliance with the provision of the Code that the facts and the conclusions of law should be separately found and stated.

Section 1022 of the Code of Civil Procedure has been uniformly interpreted in like manner upon this point, and notably so in Dolan v. Merritt, 18 Hun, 27, and Wesfelman v. Manhattan R. R. Co., 32 N. Y. State Rep., 682.

Under the old Code, however, a practice had sprung up not founded upon any requirement of the Code, but upon a rule. Rule 32 of the general rules of practice in force at that time, permitted a party, after the. report of a referee or the decision of a court, upon the settlement of a case, to present proposed findings of fact, and the judge or referee was thereupon required to pass upon such questions of fact so presented by either party as should be material to the issue. The practice under this rule, in cases where the referee refused to make additional findings, became awkward and inconvenient. No exception to such refusal would lie, and the remedy of the party aggrieved was by motion in court for an order sending back the report with instructions requiring findings upon questions decided to be material. Rogers v. Wheeler, 52 N. Y., 262. As shown by Finch, J., in Gormerly v. McGlynn, 84 N. Y., 284, this inconvenience was sought to be remedied in the revision which produced the Code of Civil Procedure. By section 993 it was provided that a refusal to make any finding whatever, upon a question of fact as to which a request was reasonably made by either party, is a ruling upon a question of law. If the change had stopped here, its only effect would have been that a new and additional remedy would exist in the case of a refusal to make a finding upon a material question of fact. But the change went further. By section 1023 it was provided as follows : “ § 1023. 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. The statement must be in the form of distinct propositions of law, or of fact, or both separately stated; each of which must be numbered, and so prepared, with respect to its length, and the subject and phraseology thereof, that the court or referee may conveniently pass upon it. 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.”

In enacting this section the legislature rendered Rule 32, as it then stood, inoperative, and determined that thereafter all requests should be made before the decision or report is rendered, and that the requests so made should be passed upon at or before the time when the decision or report is rendered. I cannot find that this new section worked any change in the law, as it then stood, as to the actual incorporation of findings made at the request of either party into the decision or report. While the requests must now be made before the rendition of the decision or report, they may be passed upon either at or before the time when the decision or report is rendered. Under the familiar rule that, in the interpretation or construction of a statute, effect must be given, if possible, to every word of the statute, the word “ at ” cannot be ignored. On the other hand, pursuant to the requirements of the preceding section the decision or report, when rendered, must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereon. It must be complete in these particulars. How then can it be held that additional facts found at the request of either party at the very moment of the rendition of such a complete decision or report must appear in such decision or report ? I cannot come to such a conclusion and am firmly convinced that, if the legislature had intended to work such a result, language would have been employed which, in unmistakable terms, disapproved of the prevailing practice and prescribed the new method to be pursued.

In a note appended by Mr. Austin Abbott to the report of the case of Nobis v. Pollock, 23 Abb. N. C., 279, the learned annotator arrived at the following conclusions and stated them so well that, in view of their great importance, I shall quote them in full, viz.: “ Note on the effect of findings of fact. The conflict in the cases, and the diversity of practice on this subject, is noteworthy. Under the new procedure, in which, at law as well as in equity, all defences must be pleaded together in one answer, and in which cross claims are set up by answer instead of cross bill, the cases are very frequent in which complex issues are presented for trial, all of which are material to be tried, But any one or less than all are sufficient to determine the cause. The object of the Code in its present form seems to be to separate the findings which are material to support the conclusions of law and resulting judgment, from those which are not material for that purpose, although they were material for the purposes of the trial; and to require the statement in one decision of all that go to support the judgment, at the instance of whatever party made, while those which are made on questions not material to the judgment are to be left in the judge’s allocatur upon counsel’s requests, so that the refusal to find any fact material to the judgment may be reviewed by the party prejudiced thereby. This accords with the principle that a finding or refusal not material to support the judgment ought not to be embodied in the decision in such manner as to be apparently res judicata, for a successful party cannot appeal from a judgment in his own favor merely for the purpose of getting rid of a finding against him on a point which proves not material to the judgment.” The conclusions arrived at-by Mr. Abbott are correct as far as they go. It may be well, however, to continue the discussion a little farther, and to point out that under the Code of Civil Procedure, as it now stands, it is, in most cases, more expedient to refuse all requests upon immaterial points, than to find, the immaterial facts. Formerly, as I have already shown, an exception did not lie to a refusal to make a subsequent additional finding under Rule 32, but now a refusal to make any finding whatever upon a question of fact, where a request was seasonably made by either party, is, under § 993, a ruling upon a question of law within the meaning of § 992, and as such it may be excepted to under § 992 and reviewed pursuant to § 1346 upon the appeal from the judgment. Upon such appeal the exception fully presents the question whether upon the whole evidence the finding should or should not have been made, and such question must be determined with due regard to the rights of the parties. Upon such appeal any order may also be reviewed refusing to send the case back to the referee for further findings, provided the notice of appeal asks for a review of the order (see §§ 1301 and 1316). The same rule prevails both at general term and in the Court of Appeals, for in a case tried by a judge without a jury or by a referee, both may review the facts as well as the law, and the question whether a certain request for a finding of fact whicji was refused should or should not have been complied with, will always be determined, if raised by an exception to the refusal, with reference to the materiality of the fact involved and its tendency to vary the result. No advantage can be derived, therefore, from findings upon immaterial facts. If a fact does affect the result in the slightest degree, its proper place is in the body of the decision or report; but if, under the law as it stands, it cannot affect the result in any way, it should not be found at all.

These remarks are added because of late years a tendency has manifested itself to request detailed findings of all the particulars which go to make up the general facts necessary to be stated, and even of the evidence thereof and of the means and processes by which the general facts are arrived at, and because in many instances it has been found that there is too much willingness and readiness to comply with such useless requests and that consistency becomes sometimes impaired in consequence thereof. The three cases at bar afford a good illustration. In each the substantial controversy turned upon only two points, namely, the loss of rental value during a certain period, and the permanent depreciation of the fee value, and yet in each case the defendants presented at least 55 requests to find facts and 23 requests to find conclusions of law. Such practice must he discouraged. It puts upon trial judges and referees a work of supererogation which should not be imposed upon them and which serves no useful purpose. While, therefore, it may be technically the duty of a judge or referee to pass upon such requests, that duty will he fully performed by a specific denial of each and every one of them demanding a fact to be found which either is immaterial or has been already substantially covered by the findings embodied in the decision or report.

I think I have now sufficiently demonstrated that the additional facts which may be found pursuant to the direction of § 1023 need not he inserted in the decision^ or report, if they are immaterial or if they have been already substantially covered by the findings contained in the decision or report, and I close with a reference to the concluding sentence of § 1023, by which it is expressly provided that an omission on the part of a judge or referee to comply with the directions of said section does, not affect the validity of the decision or report. No rule of court can, therefore, he made inconsistent with the provisions of that section, for the power to make rules is limited to such rules as are not inconsistent, but in harmony with, the provisions of the Code of Civil Procedure. Gormerly v. McGlynn, 84 N. Y., 284.

For the reasons stated the conclusion is unavoidable that, while the court does possess the power to send a case back to the referee for further findings upon material points not covered by the report, or to have findings made specially at the request of either party incorporated into the report, no error was committed by the learned judge below in refusing to send back the cases at bar.

The conclusion reached finds strong support in the opinion of Earl, J., in Redfield v. Redfield, 110 N. Y., 671, and the opinion of Ruger, Ch. J., in Green v. Roworth, 113 N. Y., 462. Both judges recognize, under the practice prescribed by the Code of Civil Procedure, the continued existence of the two classes of findings hereinbefore discussed. They speak of the findings contained in the body of the decision or report as formal or general findings, and of the additional findings made at the request of either party at the time of the rendition of the decision or report, as special findings, and they lay down the rule that, in case of any conflict between the formal and special findings, the courts are hound to attempt to reconcile them.

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

Sedgwick, Ch. J., and Dugro, J., concurred.  