Matter of Harry B. Chapman. the referee in stating the account was erroneous. It then declared the manner in which the amount to be charged to the committee should be ascertained. This was by determining the amount of the principal, by assuming without and contrary to the proof how much of it was or should have been kept at interest, by calculating the interest based upon such assumption, by deducting from the amount thus obtained the income admitted by the committee, by dividing the difference by two, and by adding the amount thus obtained to the amount so admitted. It then modified the order appealed from by substituting that amount found by the Special Term and referee. While it may have been competent for the Appellate Division to allow or reject a claim of either party where its amount had been definitely fixed or clearly determined, still it had no authority to determine the facts anew and direct a judgment or order based upon the facts thus determined. That is precisely what the Court did, as it reversed the order as to a part of the account, declared the principle upon which it was adjusted erroneous, and proceeded to adopt a new and different one, and with no sufficient evidence to establish them, assumed certain facts, and upon such assumption proceeded arbitrarily to fix an amount with which the committee should be charged. In doing this it committed an error amounting to $500, so that even if it had power assumed it was erroneously exercised. But we are of the opinion that the Appellate Division had no authority, after practically reversing the action of the referee and Special Term, to thus determine the case. Instead of deciding it upon an assumption of facts and conditions not proved, it should have remitted it to the Court below for a readjustment of the account. That the learned Appellate Division had no authority to pursue the course adopted is well settled by the authorities in this court (Moffet v. Sackett, 18 N. Y., 522; Cuff v. Dorland, 57 N. Y., 560; Whitehead v. Kennedy, 69 N. Y., 462; Andrews v. Tyng, 94 N. Y., 10; Lawrence v. Church, 128 Matter of Harry B. Chapman. N. Y., 324; Porter v. Dunn, 131 N. Y., 314; Altman v. Hofeller, 152 N. Y., 498; Heller v. Cohen, 154 N. Y., 299; Benedict v. Arnoux, 154 N. Y., 715, 724; Snyder v. Seaman, 157 N. Y., 449; New v. Village of New Rochelle, 158 N. Y., 41). In Moffat v. Sackett it was held that while the General Term on appeal had power to reject a claim of either party where its extent had been definitely fixed or determined, yet it had no authority to determine the facts and direct a judgment or order based thereon. The Cuff case was to the effect that the Appellate Court had no power, upon reversal, to render a judgment in favor of the appellant, unless the facts agreed upon which it was founded were agreed upon by the parties or found by the Trial Court or jury. In Andrews v. Tyng it was declared that the Ap pellate Division had no authority to determine the amount of unsettled damages, at least where the facts found below were insufficient to show the true amount. In the Porter case it was held that the General Term had no right to change the judgment, as it had no power to determine any of the questions involved where the evidence was in conflict. Altman v. Hofeller was to the effect that the Appellate Division must either totally affirm or reverse, both as to the recovery and as to the parties, except where there were separate and distinct judgments or an error existed as to a separate claim or defense, which related only to a transaction betwen two of the parties, and in that case that a judgment may be reversed as to them and affirmed as to the remainder. In the Benedict case it was held that the Appellate Division, under section 1022 of the Code of Civil Procedure, upon reversing a judgment, must grant a new trial, and that it could not properly render a final judgment unless the facts were conceded or undisputed, or established by official record, or found by the Trial Court, or it appears that no possible state of proof applicable to the issues would entitle a party to a judgment, and that this rule applies to actions in equity as well as actions at Matter of Harry B. Chapman. law. In that case it was said: "It is one of the fundarental principles of our law that questions of fact are to be tried and determined in a court of original jurisdiction, and it is not the appropriate function of an Appellate Court to determine controverted questions of fact and render final judgment upon such determination." If it be said that the appeal in this case is from an order, and, therefore, the principle of the decisions cited does not apply, the answer is that this was a final order in a special proceeding and is governed by the same rules as are appeals from judgments (Code of Civil Procedure, section 1361). The procedure and rights of the parties upon an appeal from such an order are to be considered in the same manner and are subject to the same powers and limitations as in an action where the same issues are involved (People ex rel. Man. R'y r. Barker, 152 N. Y., 417). Upon the argument it was claimed by the appellant that the petitioner had no standing or authority to institute. this proceeding; that the incompetent was a necessary party to it, and that she was not properly made such, and that section 2729 of the Code of Civil Procedure has no application to this case, and, hence, that the courts below were in error in holding that the committee was not entitled to credit in excess of $500 for amounts expended by him for which no vouches were produced. We deem it unnecessary to decide any of those questions at this time. We are of the opinion that, after practically reversing the action of the referee and Special Term, the Appellate Division had no authority to proceed to determine the case in the manner it did. Instead of deciding it upon the assumption of certain facts and conditions not proved, the case should have been remitted to the Special Term for a resettlement of the committee's account. We think that should be done at this time. The respondent will then be in a position where the errors, if any, in the manner of instituting the proceeding, or the omission of necessary Lambert D. Tyler v. Celestia A. Ballard. parties, may be remedied by the inauguration of a new proceeding or otherwise, as he may be advised. The order of the Appellate Division should be reversed, with costs to the appellant payable out of the fund, and the proceeding remitted to the court below for further action. PARKER, Ch. J.; O'BRIEN, BARTLETT, HAIGHT and VANN, JJ., concur; LANDON, J., not sitting. Order reversed, &c. LAMBERT D. TYLER v. CELESTIA A. BALLARD. SUPREME COURT-SPECIAL TERM-BROOME COUNTYDECEMBER, 1899. SS 1251, 1380, 1393. Pension moneys-Property purchased with-Lien of a judgment on. The exemption provided by section 1393 of the Code is one of the exceptions especially provided by law referred to in section 1251 as to the lien of a judgment binding and being a charge for ten years after filing the judgment roll on real property and chattels real in that county which the judgment debtor has at the time of docketing the judgment or thereafter acquired. Defendant purchased land with pension money subsequent to the entering of judgment against her obtained by the plaintiff. Defendant died intestate and plaintiff seeks to issue execution on the real property so purchased which has passed to defendant's heirs. Held, That the judgment never became a lien on the property and that upon the death of the pensioner it passed to the heirs free from the lien of the judgment. The exemption from levy and sale under section 1393 is an absolute exemption from any lien or claim of creditors and it was the plain intention of the statute that property necessary for the support of the pension money should be as exempt from the claims and liens of creditors as the money itself. (Decided December, 1899.) EDWARD W. HYATT, for assignee of judgment. Lambert D. Tyler v. Celestia A. Ballard. H. AUSTIN CLARK, for administrators and for Antoinette Dimmick, heir of deceased defendant, and owner. LYON, J.-Application of Ellis M. Santee for an order granting leave to issue an execution upon a judgment for $130.50, recovered in September, 1889, by plaintiff against defendant in the Supreme Court of this State, and in that month duly docketed in Tioga County, and in December, 1897, assigned to the applicant. The defendant above named acquired title to a house and lot of one acre of land, and to an adjoining lot of twenty-two acres of land situate in Tioga County in 1891. She immediately conveyed the twenty-two acre parcel to Antoinette Dimmick, but retained the title to the house and lot until the time of her death, which occurred in October, 1895. She died intestate and administrators of her estate were appointed in 1896. No part of the judgment was ever paid, and no execution was ever issued thereon. It is conceded that both pieces of real property were purchased wholly with pension moneys received by the defendant in or about the year 1889, as the widow of Gardner Ballard, who was a soldier in the Union Army in the late Civil War. The applicant for the order, as assignee of the judgment, contends that the judgment became a lien upon both pieces of real property as soon as the title thereto vested in Celestia A. Ballard, the defendant, and that the judgment has ever since remained a lien, although not enforcible by a sale under execution during the lifetime of the pensioner. Manifestly the order can not be granted unless the judgment is a lien upon the real property. I think it is not a lien and never was a lien. Section 1251 of the Code of Civil Procedure provides that "except as otherwise specially prescribed by law, a judgment .. binds and is a charge upon, for ten years after filing the judgment roll, the real property and chattels real in that county which the judgment debtor has at the time of so docketing it, or which he acquires at any |