
    Eliphalet Wood, App’lt, v. Valentine L. Lary, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    1. Appeal—Findings op pact—Code Orv. Pro., § 1022.
    In any 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 1 ased thereon must be made. If it be not done the judgment cannot be reviewed.
    3. Same.
    When a complaint is dismissed before the introduction of testimony or judgment is rendered on the pleading, § 1022, Code Civ. Pro., does not apply.
    Appeal from a judgment of the general term of the supreme court, first department,, entered on an order affirming a judgment of the special term.
    
      John C. Ten Eyck, for app’lt; Robert W. DeFreest and Marcus T. Run, for resp’t
    
      
       See 15 N. Y. State Rep., 209.
    
   Parker, J.

This was a suit in equity and the relief demanded, among other things, was that a certain mortgage be declared to be void and of no effect; that it be delivered up to be cancelled of •record; and that the bonds sought to be secured thereby be likewise delivered up for cancellation. The answer admitted certain allegations of the complaint specifically. Others it admitted in a qualified, manner making in connection therewith other allegations of fact by way of explanation and justification, and denied others.

The cause coming on for trial before a court without a jury, the plaintiff presented such evidence as he deemed necessary and rested. Thereupon the defendant made a motion to dismiss the complaint Decision was reserved. About two months later the court granted the motion to dismiss and a judgment was subsequently entered dismissing the complaint upon the merits of the case.

The appeal to this court from the judgment of affirmance thereof must be dismissed because the trial court failed to comply with the following provisions of § 1022 of the Code of Civil Procedure: “ 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.” When a complaint is dismissed before the introduction of testimony it is a determination that the complaint does not state facts sufficient to constitute a cause of action and in such case a situation is presented which does not come within the purview of that section. Neither does a case where judgment is rendered on the pleadings. Eaton v. Wells, 82 N. Y., 576. But in any and 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 based thereon must be made. If it be not done the judgment cannot be reviewed. Bridger v. Weeks, 30 N. Y, 328.

The Code afforded to the plaintiff ample opportunity for protection against the omission of the court. (§ 1010.) But he did not avail himself of it. He did not even submit in writing a statement of facts which he deemed established, and desired the court to find as provided by § 1023.

A difference of opinion has heretofore existed in several of the departments as to the conditions which bring a case within the command of § 1022. Colton v. Ranson, 2 N. Y. State Rep., 78; Benjamin v. Allen, 7 Civ. Pro., 202; Rousseau v. Bleau, 29 N. Y. State Rep., 334; Grange v. Palmer, 31 id., 612; Bishop v. Empire Trans. Co., 37 Supr. Ct., 12.

An examination of the questions to which the counsel for the appellant called our attention at the argument led to the conclusion that no error was committed at general term, but as we have concluded that the appeal ought to be dismissed, the occasion does not call for an expression of the reasons inducing such conclusion.

The appeal should be dismissed.

All concur, except Bradley, J., not voting.  