
    Nobis v. Pollock et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Trial by Court—Findings.
    Code Civil Froo. N. Y. § 1033, requires the court, on a trial of a whole issue of fact, to state separately the facts found and the conclusions of law. Section 1033 provides that the requests to find on which it is necessary for the court to pass may he either filed in court, or returned to the attorneys, with the rulings of the court thereon, but an omission so to do will not affect the validity of the finding. Held, that where a court has filed a decision containing certain facts found and certain conclusions of law, but the papers show that on the request of one of the parties he has found other facts not embraced in the decision, the case will be remanded, to have proper findings prepared.
    Appeal from special term, New York county.
    Charles T. Nobis sued W. J. Pollock and others to foreclose certain liens Prom a judgment in his favor defendants appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Thompson, Ackley & Kaufman, for W. J. Pollock and D. W. Haynes. Vanderpoel, Green <6 Cuming, for J. B. Shotwell. Roger Foster, for L. A. Pollock. Chas. B. Meyer, (Alwin Goodwin, J. Fdward Ackley, and Roger Foster, of counsel,) for respondent.
   Van Brunt, P. J.

Upon an examination of the case as presented it appears that there has been no compliance with the provisions of the Code, § 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, we 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 with the provisions of the Code, and renders it impossible l'or this court to review 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 j udgment 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 party, 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 his attorneys, his rulings having been entered thereon; and we have 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. All concur.  