dition that no questions as to the correctness of the exceptions taken to the testimony adduced upon the trial, or to the charge or refusals to charge of the trial judge, should be raised in this court; the reason of such restriction being that no such questions were raised or considered in the appellate division. The plaintiff's attorneys heretofore served upon the attorneys for the defendant papers upon a motion to dismiss the appeal, which motion was noticed for hearing before this court on June 4th. The hearing of this motion was stayed, by an order made by Judge Vann, to give the defendant an opportunity to apply to the appellate division for an amendment of its judgment. That application was made and granted, and the judgment of the appellate division now, in part, recites: "Ordered, Justice McLENNAN sitting, but not voting, and the remaining four judges concurring, that the said judgment so appealed from be affirmed." Hiscock, Doheny, Williams, & Cowie, for appellant. Jenney & Marshall, for respondent.

In

WERNER, J. (after stating the facts). This is not a unanimous affirmance. The cases of Harroun v. Brush Electric Light Co., 152 N. Y. 212; 46 N. E. 291; 38 L. R. A. 615, and McDonnell v. New York Cent. & H. Railroad Co., 159 N. Y. 524; 53 N. E. 1127, are not in conflict with this decision. the former case the record recited four justices as sitting, and they all concurred. In the latter case all the justices composing the court heard the argument, but one of them died before it was decided. In this case one of the sitting justices did not vote, although he had the right to do so. The motion should be denied, with $10 costs.

PARKER, C. J., and O'BRIEN, BARTLETT, VANN, LANDON, and CULLEN, JJ., concur.

Motion denied.

1900]

Newman v. Mayer.

NEWMAN v. MAYER.

[52 App. Div. 209; 99 St. Rep. 294; 65 Supp. 294.]

(Supreme Court, Appellate Division, Second Department. June 12, 1900.)

DECISION OF COURT-STATEMENT OF GROUNDS-JUDGMENT.

Under the requirement of Code Civ. Pro. § 1022, that the decision state concisely the grounds on which the issues have been decided, a decision merely directing judgment, without any statement of grounds, will not support a judgment.

Appeal from Putnam county court.

Action by Augustus S. Newman and others, executors of Allen G. Newman, deceased, against Thomas M. Mayer, impleaded. From an order, so far as it denied said defendant's motion to set aside the decision and judgment, he appeals. Reversed.

NOTE. FORM OF DECISION OF COURT, OR REPORT OF REFEREE, AFTER TRIAL OF ISSUES OF FACT.

This question is of interest principally because of the introduction of what is called the short decision, which was first provided for by the amendment of 1894 to § 1022 of the Code of Civil Procedure.

Prior to June 1, 1894, the requirements of the Code as to the form of the decision were as follows:

"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 thereupon. In an action where the costs are in the discretion of the court, the decision or report must award or deny costs; and, if it awards costs, it must designate the party to whom costs, to be taxed, are awarded."

§ 1022 of the Code of Civil Procedure.

In 1894 a clause was introduced giving the court or the referee the option of making separate findings as formerly or of making what is now termed a short decision. Since that time the section has stood substantially as it is now, viz.:

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

H. Huffman Browne, for appellant.

Merritt E. Haviland, for respondents.

WILLARD BARTLETT, J. The paper in this action which is called a "decision" is simply a direction for judgment, and nothing more. There is no attempt to state the facts found and the conclusions of law, and it is evident that the learned county judge intended to render the other sort of decision prescribed in section 1022 of the Code of Civil Procedure, "stating concisely the grounds upon which the issues have been decided," and directing the judgment to be entered thereon. The trouble is that he has utterly neglected to comply with the requirement that he should state the grounds upon which the issues have been de

FORM OF DECISION OF COURT, OR REPORT OF R FEREE, AFTER TRIAL OF ISSUES OF FACT.-continued.

"The decision of the court or the report of the referee, upon the trial of the whole issues of fact, may state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, or the court or referee 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. In an action where the costs are in the discretion of the court, the decison or report must award or deny costs, and if it awards costs, it must designate the party to whom the costs, to be taxed, are awarded. Whenever judgment is entered on a decision which does not state separately the facts found, the defeated party may file an exception to such decision, in which case, on an appeal from the judgment entered thereon upon a case containing exceptions, the appellate division of the supreme court shall review all questions of fact and of law, and may either modify or affirm the judgment, or order appealed from, award a new trial, or grant to either party the judgment which the facts warrant."

§ 1022 of the Code of Civil Procedure.

At the same time (1894) that the amendment of § 1022 was enacted providing for the short decision, § 1023 of the Code of Civil Procedure, providing for the submission of requests for findings and requiring the court or ref eree to pass upon such requests, was repealed.

cided. No matter how concisely they were stated, a decision stating the grounds would doubtless be sufficient to form a basis for the judgment, but he has omitted to set them forth at all, and this omission induced the defendant to make the motion now under consideration. In a case where evidence has been taken we are of the opinion that a judgment by direction of a court or referee finds no support in a decision under section 1022 of the Code of Civil Procedure, which contains neither any findings nor any statement whatever of the grounds upon which the issues have been decided. The requirements of that section in this respect are not merely formal, but relate to a matter of substance. They manifest the purpose of the legislature that the parties to a lawsuit which is tried by a referee or a judge without a jury shall be informed, to some extent at least, of the reasons which

FORM OF DECISION OF COURt, or Report of Referee, AFTER TRIAL OF ISSUES OF FACT,-continued.

Both of these changes went into effect June 1, 1894. The grounds of the decision of the issues, which section 1022 authorizes to be concisely stated, as a substitute for separate findings, must be regarded as containing statements of those facts which the trial judge or referee deems to be established by the evidence.

Bomeisler v. Forster, 154 N. Y. 229; 48 N. E. 534.

In Shaffer v. Martin, 20 App. Div. 304; 80 St. Rep. 992; 46 Supp. 992, Follett, J., said: "The repeal of section 1023 and the amendment of section 1022 were to remedy the practice (which had grown into an abuse) by the attorneys of litigants asking courts and referees to pass on evidentiary facts, on facts simply relevant to the issue, instead of on the facts in issue the facts upon the existence of which the right or liability of the litigants in the action depends. It was not intended to relieve trial courts from deciding the issues of fact and law-those upon the existence of which the right or liability of the litigants depends-and from disclosing how those issues were decided. The facts found, and the conclusions of law, need not be separately stated, but the issues of fact and law, as above defined, must be decided, and the decision must disclose how they are decided, otherwise it is impossible to state concisely the grounds on which the issues were decided.

"Section 1022, as amended, commands the appellate division, in case the decision concisely states the grounds upon which the issues have been decided, to review all questions of fact and law, and authorizes that tribunal to modify or affirm the judgent or order appealed from, award a new trial,

have led to the determination reached. The obligation to give these reasons either in the form of findings of fact and conclusions of law or in a concise statement of the grounds upon which the issues have been decided is conducive to a degree of care in the consideration and disposition of the cause which might not otherwise always be observed; and carelessness might soon come to be the rule, instead of the exception in the determination of equity cases, if all the judge had to do at the end of the trial was to direct the judgment to be entered without disclosing why. In his well-known history of the Criminal Law of England, Mr. Justice Stephen, in arguing that trial by a judge without a jury may be made completely just in almost every case, says:

"Juries give no reasons, but judges do in some cases, and ought to be made to do so formally in all cases if juries were dispensed with. This in itself is a security of the highest value for the justice of a decision. A unskilled person may, no doubt, give

FORM OF DECISION OF COURT, OR REPORT OF REFEREE, AFTER TRIAL OF ISSUES OF FACT,-continued.

or grant to either party the judgment which the facts warrant. But this provision was not intended to relieve trial courts and referees from deter mining the essential issues, and from disclosing, by their decisions, how the issues were determined, and thus cast the burden on the appellate divisions of so deciding and stating the issues of fact and law that the judgment can be reviewed by the court of appeals. The appellate division cannot see the witnesses face to face and hear them testify, and ordinarily is not as well qualified to determine and state the facts as the trial courts. One of the grievances sought to be remedied by the constitution of 1846 was the taking of testimony in equity cases before masters, and leaving the issues to be decided by tribunals which had never seen or heard the witnesses. Section 10 of article 6 provided: "The testimony in equity cases shall be taken in like manner as in cases at law,' which provision is contained in section 3 of article 6 of the present constitution. It is of little use to decide issues of fact or of law unless it be disclosed how they are decided. If the practice adopted in this case is to prevail, the evil of allowing tribunals, who have not heard the witnesses, to decide and state the issues of fact, will be restored, not only in equitable actions but in legal ones as well."

Since the amendment of 1894 to § 1022 of the Code of Civil Procedure a trial court is without power to find facts, at the request of a party, not embraced within the decision signed, and, in case such findings are made