
    Frederick Wandelt, Respondent, v. David Cohen, Impleaded, Appellant.
    (New York Common Pleas—General Term,
    December, 1895.)
    1. Refebence^- Findings.
    •If, inhi's decision; the judge or referee declares án issue to be imma.- • terial, it is conclusive that he did not pass upon it. ' •
    ■3. Judgment—Findings.
    If the decision of a judge' or referee fails to find or state all the.facts necessary to a judgment, the finding of such facts may, nevertheless, 'be inferred in support of the judgment; .but-if it expressly negatives •such inference, and places the 'judgment upon untenable grounds, . an error of law is apparent reviewable under the general exception ' ' . to the decision. •
    Appeal by the defendánt Cohen from a personal judgement for $970.64 against him in this court in .favor tif the plaintiff, entered upon the decision of á referee, in an action . in this court brought to .foreclose a m'echanic’s lien' and for a personal judgment.
    
      David Levetritt, for appellant.
    
      Frank Barker, for respondent.
   Daly, Ch. J.

The plaintiff claimed a mechanic’s lien for

services as architect in preparing, at defendant’s request, pitas , for buildings'to be erected in Cherry and Water streets hr" this city. The lien was disallowed by the referee because: building was never commenced upon, the premises, but the:' referee allowed a personal judgment for the value of the work of preparing the plans, which he found-to be $450. - The claim was contested on the ground that the plaintiff had never delivered nor offered to' deliver the plans to the defendant: Delivery was not alleged in the ■ complaint, nor, in fact, made; but the plaintiff testified that it was agreed' between the defendant and himself that when the plans were ready- he should notify the defendant, who was then to' call at his office and examine them; and that, he did send such a-. notice to the defendant, who failed to call as agreed. Under-.such circumstances proof of delivery was not necessary ■although had it been otherwise plaintiff would have .been •bound-, if employed to make plans, to show that they were delivered, or tendered when completed. It was necessary, therefore, to establish the agreement to call and examine the plans upon notice, and a judgment in plaintiff’s favor could only be rendered upon a finding of such an agreement.

Such finding was not made by the referee, although it was. an issue’ in the case upon conflicting.testimony.. On the contrary, his decision shows that he regarded the agreement as. wholly immaterial' to a recovery. The language of the . decision, after stating that the plans were prepared underemployment by defendant, is as follows: “I do not regard it. as essential to plaintiff’s cause of action that notice to the-defendant of the completion of such preliminary plans should be shown, but I am satisfied from the evidence that plaintiff sent a notice by mail to defendant Cohen at his residence in Pike street, in the city of New York, on or about the 6th day of March, 1893, of the completion of such preliminary plans,, .which notice was delivered in regular course of mail at such residence of the said defendant Cohen.”

The notice which the referee finds was sent and received, was as follows:

“ Dear Sir — I wish you would call to see the drawings for your Market slip property. If you have any suggestions to make, an alteration in the plan would be little trouble now. X have called at your house twice and ■ never found you, and. have written you to call too, but saw nothing of you. Please-advise me what to do.”

This letter was not a tender of the plans nor an offer of' delivery. It was undoubtedly written in pursuance of the. alleged agreement which was in dispute, and depends for its. effect upon that agreement, the existence of which the referee considers immaterial. The decision that the notice was not essential to the plaintiff’s cause of action indicates clearly that the referee did not pass upon the issue of fact as to whether there was an agreement for such notice, and we cannot, there- . fare, assume, as we-might'in the absence of an express, finding, .or- of any reference to. the point in' dispute, that a fact necessary to the. judgment, had been found in favor of the* party . who was- bound to prove it.,

A decision by a. referee that a certain fact is immaterial is equivalent to an instruction by a trial judge to a jury to the ■' same effect, and" if such issue be material to á recovery a verdict, or decision, under the circumstances, could not be sustained. If in. his decision the judge or referee declares an i^sue to be immaterial it is conclusive that lie did not pass 1 upon it. Since, findings have been dispensed with, the decision of the court is made a part of the judgment roll, and cam ■ not.be treated as mere opinion. If it fails to find or state all the facts necessary to a judgment,, the finding of such facts may nevertheless be inferred in support, of the judgment; but if. it expressly negatives such inference^, and "places the judg- ■ . ment upon. untenable .grounds, an error of law is apparent, revdewable under the general exception to-the decision. Code1, § 1.022, amd. 1894.

As the plaintiff’s right to recover for the work upon1 the plans without proof of delivery depended upon his establishing a-n agreement of the defendant to call and examine* them when notified, and the referée, in face * of a conflict of testimony as to the existence of. such an agreement, has declined to decide the issue, a judgment in "plaintiff’s favor is. unwarranted, and must ,be reversed..

Judgment reversed and new trial ordered, with costs, to. abide the event.

Bischoff and Peyoe, JJ., concur.

Judgment reversed and,new trial ordered, with costs1 to abide event.  