
    Anna Hodecker, Appellant, v. Frederick Hodecker, Respondent.
    
      Mew trial — motion therefor on the ground that a decision has not been made within twenty days— Code of Civil Procedure, § 1010, is mandatory.
    
    Under section 1010 of the Code, of Civil Procedure, in case a decision is not made by a judge before whom an issue of fact is tried, within twenty days after the final adjournment of the court, either party has a right to move for a new-trial upon that ground; and, in case a decision is not made before the hearing of such motion, the court must grant a new trial unless, in the order denying the motion for a new trial, there is specified a time in which such decision shall be made and filed.
    The provisions of section 1010 of the Code of Civil Procedure must, when considered in connection with the different language used in section 367 of the Code of Procedure, which it was intended to replace, be regarded as mandatory and not directory.
    Appeal by the plaintiff, Anna Hodecker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 2d day of July, 1898, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the plaintiff’s complaint upon the merits; also from an order made at the Monroe Special Term and entered in said clerlc’s office on the 3d day of June, 1898, directing that the plaintiff’s motion for a new trial, made upon the ground that the decision therein had not been filed within twenty days after the adjournment of the term at which the action' was tried, be heard on the lltli day of June, 1898; also from an order made at the Monroe Special Term and entered in said clerk’s office on the 30th day of June,, 1898, denying such motion for a new trial.
    The action was commenced on the 12th day of November, 1897, to set aside a certain agreement dated the 18th day of November, 1889, made and entered into by and between the plaintiff and the defendant (who were husband and wife, but had lived ajiart since October, 1889), which agreement, it was' alleged, was procured by fraud and undue influence, and Avhich, among other things, provided, in substance, by its terms, that, in consideration of the. sum of about §13,000, paid by the defendant to the plaintiff and which she received, the plaintiff released the defendant from all claims and demands arising by reason of their relation of husband and wife, and covenanted and agreed that she would live separate- and apart from her husband, release all dower interest which she might have in the real estate which he then owned, or might thereafter acquire, and would not make any claim or demand upon him for support or maintenance as his wife.
    Issue was joined in said action by the service of an answer on the 11th day of April, 1898, which, in substance, denied the allegations, of the complaint that said agreement was procured through fraud and duress on the part of the defendant and alleged its validity.
    The issues so joined were brought to trial at a Special Term of the Supreme Court held in and for the county of Monroe on the lltli day of April, 1898. The plaintiff and defendant were each . represented by counsel, and the testimony of a large number of witnesses was taken tending to support the contention of the parties respectively. The taking of testimony was concluded on the following day, the 12th of April, 1898, at which time the learned trial justice announced that, for reasons stated by him orally, the plaintiff’s complaint must be dismissed, and thereupon orally directed that the plaintiff’s complaint be dismissed, but without costs.
    On the 13th day of April, 1898, and while the court in which the-action had been tried was in session, the justice made and signed findings of fact and conclusions of law, which conclusions of law, among other things, directed that the plaintiff’s complaint should be dismissed upon the merits and judgment rendered in favor of the defendant. On the same day a judgment was entered in the clerk’s office of Monroe county in conformity with said findings of fact and conclusions of law, and on the same day the defendant’s attorney served upon the attorney for the plaintiff, said findings of fact and conclusions of law, which were signed by the trial justice, and which purported to be the decision in said action; and also served upon the attorney for the plaintiff a copy of the judgment entered against her as aforesaid upon such decision.
    Thereafter, and on the 16th day of April, 1898, at the term of court at which said action had been tried, and apparently upon the court’s own motion, the attorneys for the respective parties being present and not objecting, an order was made setting aside the findings and decision hereinbefore referred to and vacating the same; and said order further provided:
    “That the parties may submit proposed findings of law and fact herein to the trial court. Also further ordered, that the clerk of this court enter the foregoing order in the said action accordingly.”
    Thereafter, and under date of April 17, 1898, the attorney for the plaintiff submitted to the court proposed findings of fact and conclusions of law.
    Thirty days thereafter, upon an affidavit dated the 17th day of May, 1898, which, among other things, stated that no decision had been made in writing by the court for more than twenty days after the final adjournment of the court at which said action had been tried, and for more than twenty days after the decision and findings made by said court had been vacated and set aside by its order of April 16, 1898, a motion was made by the plaintiff for a new trial, under section 1010 of the Code of Civil Procedure, upon the ground that a decision had not been made in writing by the court within twenty days after the final adjournment of the court at which said action was tried ; and in the motion it was also asked that the judgment which had been entered upon the findings, which were after-wards vacated and set aside by the trial justice, as hereinbefore stated, should be canceled of record. Said motion was made returnable at a Special Term of the Supreme Court, appointed to be held at the court house, in the city of Rochester, in the county of Moni’oe, on the 3'0th day of May, 1898.
    On said return day, said motion was ordered to be heard at a Special Term of the Supreme Court appointed to be held in and for the county of Monroe on the 11th day of June, 1898, before the justice by whom said action was tried, who was designated to hold said term. On said 11th day of June, 1898, said motion came on to be heard before said justice, and, after hearing counsel for the respective parties, an order was made which, among other things, directed that the plaintiff’s motion for a new trial, upon the ground that no decision had been made by the justice before whom such trial had been had, within twenty days after the adjournment of said term of court, be denied, and said order directed that that part of plaintiff’s motion which ashed that the judgment, entered upon the findings which had been vacated, be set aside and annulled, and that the clerk be directed to strike the same from his docket and from the record, be granted.
    Thereafter, and on the 28th day of June, 1898, the learned trial justice, before whom the above-entitled action was tried, made and signed findings of fact and conclusions of law in this case, which conclusions of law, among other things, directed that the plaintiff’s complaint be dismissed upon the merits, and also directed judgment in favor of the defendant, but without costs. Upon said last-mentioned findings of fact and conclusions of law, the defendant, on the 2d day of July, 1898, entered judgment dismissing the plaintiff’s complaint on the merits.
    To the findings of fact and conclusions of law, upon which said last-mentioned judgment was entered, the plaintiff duly excepted. From that judgment so entered this appeal is taken; and an appeal is also taken from the order which denied plaintiff’s motion for a new trial, made upon the ground that a decision had not been made and filed by the justice before whom the action was" tried, for more than twenty days after the final adjournment of the court at which such action had been tried.
    
      Jacob Spahn, for the appellant.
    
      C. C. Werner, for the respondent.
   McLennan, J.:

The plaintiff’s motion for a new trial was made more than twenty days after the final adjournment of the court at which the action was tried, and more than twenty days after the justice, before whom the action was tried, assumed, by his order of April 16, 1898, to set aside and annul his decision of said case. Assuming that the order of April 16, 1898, was properly made, and, apparently, neither party objected to it, and its validity is not questioned by this appeal, no decision of the case had been made. Certainly, from the date of said order, the parties were in precisely the same position as if no decision had been attempted. The oral statement of the trial justice at the close of the evidence was in no sense a decision.

Section 1010 of the Code of Civil Procedure provides: “ Upon a trial, by the court, of an issue of fact or of law, its decision in writing must be filed in the clerk’s office,” etc.

Section 1022 of the Code of Civil Procedure provides: “ The decision of the court * * * upon the trial of the whole issues of fact may state separately the facts found and the conclusions of law, * * * or the court * * * may file a decision stating concisely the grounds upon which the issues have been decided and direct the judgment to be entered thereon, which decision, so filed, shall form part of the judgment-roll.”

The question is presented by this appeal: In case a justice of the Supreme Court, before whom an issue of fact is tried, neglects to make and file a decision within twenty days after the court at which the trial is had adjourns sine die, what are the rights of the parties ?

Section 1010 of the Code of Civil Procedure is as follows: “ Upon a trial by the court of an issue of fact or of law, its decision in writing must be filed in the clerk’s office within twenty days after the final adjournment of the term where the issue was tried. If it is not so filed, either party may move, at a special term, for a new trial upon that ground. If the decision has not been filed when the motion is heard, the court must make an order for a new trial either absolutely or unless it is filed within a time specified in the order. If an order for a new trial is made or a contingent order for a new trial becomes absolute, the costs of the former trial abide the event.”

The language of the section is not ambiguous, nor is its meaning uncertain. The court must file a decision in writing within twenty days after the final adjournment of the court. If not, either party may move for a new trial. If no decision has been filed when such motion is heard, the court must make an order granting a new trial absolutely or specify a time in the order in which a decision will be made.

By the provisions of the section no unreasonable hardship is imposed upon the trial justice. In case no decision is made by him within twenty days after the final adjournment of the court, if a motion is made upon that ground for a new trial, he can make and file a decision before the time of the hearing of said motion. In case such trial justice should then be unable for any reason to make such decision, the section provides that he may, in the order denying a new trial, specify the time within which such decision will be made.- It would seem to be the purpose of the section to give the trial justice all reasonable opportunity to make a decision in any case tried before him, but also to prevent a trial justice from withholding a decision in any case indefinitely, and, perhaps, to the great detriment of either one or both of the parties.

Section 267 of the old Code (so called) of Procedure provided that: “ Hpon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found and the conclusions of law separately, and upon' a trial of an issue of law the decision shall be made in the same manner, stating the conclusions of law. Such decisions shall be filed with the clerk within twenty days after the court at which the trial took place.”

Under that section of the Code it was held by a long line of authorities that the provision that “ a decision shall be filed within twenty days ” was merely directory. (Lewis v. Jones, 13 Abb. Pr. 427; Burger v. Baker, 4 id. 11; People ex rel. Cahoon v. Dodge, 5 How. 47; O’Brien v. Bowes, 4 Bosw. 657; Stewart v. Slater, 6 Duer, 83 ; Brinkley v. Brinkley, 56 N. Y. 192.)

The courts having decided that section 267 of the old Code (so ■called) was merely directory, the parties to the action were left in .substantially the same position as they were before the enactment of such section, and it was still within the power of the judge before whom an action had been tried to delay his decision indefinitely, and tlie parties liad no redress. To relieve the parties from such embarrassment section 1010 of the Code of Civil Procedure was enacted. Considering the language of the section, as compared with the language of section 267 of the old Code, the conclusion is irresistible that the Legislature intended that the provisions of section 1010 should be mandatory and not. directory, otherwise no intelligent reason can be assigned for the change in the language of the sections.

We think that the provisions of section 1010 are mandatory, and that the court before whom an issue of fact is tried must, within twenty days after the final adjournment of the court at which such trial was had, file a decision of the issues involved -in such action, -and that, in case such court does not file such decision within that time, either party is entitled to make a motion for a new trial; and, in case the court does not make and file a decision before the hearing of such motion, the motion for a new trial must be granted, unless the judge before whom such motion is made specifies in the ■order denying the motion for a new trial a time in which such ■decision shall be filed.

Unless this be the correct interpretation of section 1010, the parties to a litigation are left in precisely the same position as they were under the provisions of section 267 of the old Code (so called), ■and are powerless to procure a decision to be made in any case .against the inclination of the judge before whom such action has been tried.

We think that the Legislature intended, and properly so, that a judge before whom a case had been tried could be compelled to make a decision of such case within a reasonable time, or permit it to be again tried.

In the case of Fleet v. Kalbfleisch (43 Hun, 443), which was ■decided by the General Term, second department, and which reveiwed an order granting a motion for a new trial, made upon the ground that no decision had been made in writing of the issues involved in the case within twenty days after the final adjournment of the court at which such trial was had, the order was reversed, upon the ground that the moving party was guilty of laches in not having made his motion within a period of ten years after the trial of said case, but the court said : “ Assuming that the section (1010) is mandatory, wherever an application thereunder is seasonably made, inexcusable delay will deprive a party of the right to an absolute or conditional order for a new trial on the ground that no-decision in writing has been filed, when that party has apparently acquiesced in the oral decision of the case.”

In the case of Village of Palmyra v. Wynkoop (24 N. Y. St. Repr. 824) it was said by the General Term-, fifth department; “The requirement of the Code (section 1010) is positive that ‘Upon a trial by the court of an issue of fact or of law, its decision, in writing, must be filed, in the clerk’s office, within twenty days after the final adjournment of the term where the issue was tried.’ ”

Without further reference to authority, it would seem clear that-the Legislature, by the enactment of section 1010 of the Code of Civil Procedure, intended to provide a means by which a judge’ before whom an issue of fact or of law was tried without a jury, could be compelled within a reasonable time to decide such case, or-to make an order by which a new trial could be had, unless within a. reasonable time a decision was made. . Section 26/i of the old Code-(so called) had been substantially annulled by the courts in holding-that the provisions of that section were directory only, and, therefore, that a trial judge might withhold his decision in any case for-such length of time after the final adjournment of the court at which such case had been tried as he might see fit.

To remedy this defect section 1010 of the Code of Civil Procedure was enacted, and we think it is mandatory, and that now, in case a decision is not made by any judge before whom an issue of fact is tried within twenty days after the final adjournment of the= court, either party has a right to move for a new trial upon that ground; and in case a decision is not made before the hearing of said motion, the court must grant a new trial, unless in the order-denying the motion for a new trial there is specified a time in which such decision shall be made and filed.

The order denying plaintiff’s motion for a new trial, not having specified a time in which a decision should be made and filed, was-improperly made, and, therefore, should be reversed, with ten dollars costs, and the motion of the plaintiff for a new trial should be-granted, with ten dollars costs of motion; and the judgment entered upon the decision of the justice, made after such motion was denied,. should be vacated and set aside, with costs to the appellant to abide the event.

Having reached this conclusion, it is unnecessary to consider the questions involved upon the appeal from the judgment.

The judgment and orders appealed from are reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment and orders appealed from reversed and a new trial ordered, with costs to the appellant to abide the event.  