
    LIVINGSTON v. MANHATTAN RAILWAY CO.
    [Affirming 28 Abb. N. C. 200.]
    
      N. Y. Superior Court, General Term,
    
    
      December, 1891.
    1. Alpeal. Denial of motion to have referee's findings upon requests Sín^luded in report.] Although the court possesses power to send a case back to the referee to have findings made specially at the request of either party incorporated into the report, a refusal to do so is not error if the omitted findings would not affect the result reached. Whether- the findings of fact stated in the report are supported by evidence cannot be determined upon appeal from such order of refusal only.
    2. The same.] Upon appeal from a judgment both on questions of law and fact, the special findings on the requests of the parties may be printed as a part of the papers on appeal, and if properly mentioned in the notice of appeal, a review of the order denying the motion to send back the report to have such findings included may also be had at the same time. A party is not therefore prejudiced for the purposes of appeal by a denial of the motion to send the report back to have findings included.
    3. Reference. Findings.] Code Civil Procedure, section 1023, in requiring a referee to pass upon the requests to find “ at or before ” the time when the report is rendered, does not give a party an absolute right to have all the findings of the referee included in the report, independent of the question whether , their omission was prejudicial.
    4. The same.] It seems in most cases that it is more expedient for a court or referee to refuse all requests to find that do not affect the result.
    Appeal from an order denying a motion to vacate and set aside the report of a referee and to have the case sent back to the referee, so that he might include in his report all facts found by him and conclusions of law.
    The further facts are fully stated in the opinion.
    
      Davies & Rapallo, for appellants.
    
      Olin, Rives & Montgomery, for respondents.
   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, fifty-seven requests to find facts and twenty-three requests to find conclusions of law; in the case of Julia Livingston, fifty-five requests to find facts and twenty-four to find conclusions of law; and in the case of Sylvia Livingston, fifty-seven requests to find facts and twenty-four 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 twenty findings of fact and eight conclusions of law. The result is a clear, compact and comparatively concise report, identical (except as to dimensions, names, amounts, etc.) in each of the three cases—a practice to be 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 anywise 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 fey 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. McInery (p. 193 of this volume,) it was generally considered and belived that no such right exists. The solution of the question depends upon the interpretation and construction of §§ 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. R. 25; affirmed, 70 N. Y. 596; Beck v. Sheldon, 48 Id. 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 adultery as charged in the answer, and of a direction that the complaint be dismissed, was a sufficient complianee 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. N o 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 Gomerly 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: “ Section 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 the 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 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 ^uch 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 equity, all defenses 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 request, 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 adjudicata, 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 section 993, a ruling upon a question of law within the meaning of section 992, and as such it may be excepted to.under section 992 and reviewed, pursuant to section 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 secs. 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 which 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 fifty-five requests to find facts and twenty-three requests to find conclusions of law. Such practice must be 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 be 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 section 1023, need not be 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 section 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 be 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, C. J., in Green v. Roworth (113 N. Y. 462). Both judges recognized, 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 bound to attempt to reconcile them.

The order should be affirmed, with $10 costs and disbursements.

Sedgwick, C. J., and Dugro, J., concur. 
      
       See note on p. 218 of this vol.
     