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d. Leave of court.

The appellate division cannot allow an appeal upon questions of fact passed upon by it, as its power in that respect is limited to questions of law.

Matter of Westerfield, 163 N. Y. 209; 57 N. E. 403.

No leave to appeal will be granted when a cause was determined by the appellate division on a question of fact.

Village of Bronxville v. N. Y. Westchester, etc. Co. 46 App. Div. 627; 95 St. Rep. 719; 61 Supp. 719.

The fact that the appellate division has granted permission to appeal to the court of appeals does not require the latter to adopt a rule in determining the questions thus brought before it different from that enforced in ordinary cases where no such allowance is necessary, and if the appeal is from an order not reviewable it must be dismised notwithstanding its allowance.

Caponigri v. Altieri, 164 N. Y. 476; 58 N. E. 667.

The fact that the appellate division did not formulate the questions of law to be reviewed will not prevent the court of appeals from hearing the appeal when the same was granted under $ 191 of the Code of Civil Procedure, but in the case of appeals, permitted under $ 190, the appellate division must formulate the questions of law in order that they may be reviewed.

Young v. Fox, 155 N. Y. 615; 50 N. E. 279; 27 Civ. Pro. 253; 5 Ann. Cas. 189.

In a case where leave to appeal is necessary, the fact that an order is made by the appellate division granting leave to appeal, no notice of appeal being served thereunder, will not render effective the prior unauthorized service of a notice of appeal.

Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England R. Co., 160 N. Y. 1; 54 N. E. 575.

Steamship Richmond Hill Co. v. Seager, 160 N. Y. 312; 54 N. E. 574; 7 Ann. Cas. 125.

And such appeal is not validated by an order of the appellate division al. lowing an appeal nunc pro tunc.

Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England R. Co. 160 N. Y. 1; 54 N. E. 575.

Appellate Division.



(54 App. Div. 132; 100 St. Rep. 396; 66 Supp. 396.)

(Supreme Court, Appellate Division, Second Department. October 26.


1. JUDGMENT-DECISION-SUFFICIENCY. Code Civ. Pro. § 1022, provides that the decision of the court may state

separately the facts found and the conclusions of law, or may state the grounds on which the issues have been decided, and direct entry of judgment, and that where costs are in the discretion of the court the decision must award or deny costs, and, if awarded, must state to whom. Held, that where the court in partition, filed a memorandum decision, "Final judgment may be granted as against the plaintiff, with costs,” and final judgment dismissing the complaint, with costs, was entered thereon prior to the filing of formal findings of fact and conclusions of law and the entry of the interlocutory judgment adjudging partition between the defendants according to their rights, the judg. ment of dismissal was premature, and, being without findings to sup

port it, must be reversed. * 2. APPEAL-JUDGMENTINSUFFICIENT FINDINGS-REVERSAL-NEW TRIAL. Where a final judgment is reversed for lack of a sufficient decision to sup

port it, and the case cannot be remitted to the trial court for entry of a proper decision, because the trial judge is no longer sitting in that department, there must be a new trial.

Appeal from trial term.

Action by Elizabeth W. Burnham against Charles W. Denike and others for partition. From a judgment dismissing the complaint, with costs, after trial by the court, plaintiff appeals. Reversed.

*For note on "Form of Decision of Court, or Report of Referee, after Trial of Issues of Fact,” see 7 Ann. Cas. 497-501.

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Henry B. Heylman, for appellant.

H. J. Morris and Percival S. Monken, for respondents.

WOODWARD, J. The appellant in this case urges that the judgment is not supported by a decision of the court, as prescribed by section 1022 of the Code of Civil Procedure. The action was tried by the court without a jury, and on the 17th day of July, 1899, the court filed a memorandum opinion in which it said, “Final judgment may be granted as against the plaintiff, with costs.” The decision of the court, which embraced findings of fact and conclusions of law, was rendered on the 9th day of September, and upon that date an interlocutory judgment was entered, decreeing a partition of the premises in dispute, and adjudging the defendant Mary A. Denike to be the owner of two thirds of the property. The final judgment, which is involved in this appeal, was entered on the 11th day of August, 1899, prior to the decision and interlocutory judgment. The interlocutory judgment provided that the question of costs (which, by the provisions of section 1022 of the Code of Civil Procedure, must be awarded by the decision of the court or report of the referee) should be fixed by the final judgment, and this had already been entered when the decision was made. There can be no doubt, therefore, that the judgment row before us, being without findings or a decision to support it, should be reversed. Hall v. Beston, 13 App. Div. 116; 77 St. Rep. 304; 43 Supp. 304; Shaffer v. Martin, 20 App. Div. 304; 80 St. Rep. 992; 46 Supp. 992, and authorities cited. It appears necessary, under the circumstances, which are substantially the same as those presented in Reynolds v. Aetra Life Insurance Co. 6 App. Div. 254; 39 Supp. 885, that there should be a new trial. If practicable, we should remit the case to the trial court, in order that proper findings or a formal decision might there be

N. Y. A. C.


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made, as was done in the two cases first above cited; but this course cannot be pursued, inasmuch as the judge who tried the case is now a justice of the appellate division in the third de partment.

Judgment reversed, and new trial granted; costs to abide the final award of costs. All concur.



[54 App. Div. 358; 100 St. Rep. 560; 66 Supp. 560.

(Supreme Court, Appellate Division, First Department. November 9, 1900.)

Where a defendant is sued by, a foreign corporation in a county other

than that of its residence, it may change the place of trial to the
county of his residence, under Code Civ. Pro. $ 984, providing that an
action must be tried in the county in which one of the parties resided
at the commencement thereof, though such corporation held a certifi-
cate issued under Laws 1892, c. 687, $$ 15, 16, authorizing it to do busi-
ness in New York; since it was a foreign corporation before the certifi.
cate was issued, and remained so afterwards without domicil or resi-
dence in New York.


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An action, not specified in the last two sections, (actions affecting real property, for penalties, against public officers and for chattels distrained), must be tried in the county, in which one of the parties resided, at the commencement thereof. If neither of the parties then resided in the state, it may be tried in any county, which the plaintiff designates, for that purpose, in the title of the complaint.

$ 984 Code of Civil Procedure.


Remington & Sherman Co. v. Niagara County Nat. Bank.

Appeal from special term, New York county.

Action by the Remington & Sherman Company against the Niagara County National Bank. From an order denying a inotion to change place of trial from New York county to Niagara county, defendant appeals. Reversed.

Argued before Van Brunt, P. J., and Hatch, RUMSEY, MCLAUGHLIN, and INGRAHAM, JJ.

Lyman A. Spalding, for appellant.

William E. Warland, for respondent.


1. Domestic corporation.

The place of trial of an action brought by a resident of this state against a domestic corporation is either in the county where plaintiff resides or where the corporation has its principal place of business.

Loretz v. Metropolitan Street Ry. Co. 34 App. Div. 1; 87 St. Rep. 1059; 53 Supp. 1059.

Where an action is brought in a county in which neither of the parties resides, a domestic corporation has the right to demand a change to the county in which its principal office is located.

Ganz v. Edison Electric Illuminating Co., 79 Hun, 409; 61 St. Rep. 344; 29 Supp. 810.

A domestic corporation cannot bring an action in the county in which it has an office for the transaction of its financial business, when its certificate of incorporation was filed in another county and stated that its principal business was to be carried on therein, and its land, furnaces and mines were situate and a large part of its business for many years had been carried on exclusively in said county, which was also the residence of the defendant.

Rossie Iron Works v. Westbrook, 59 Hun, 345; 36 St. Rep. 555; 13 Supp. 141.

In an action brought by non-residents against a domestic corporation, the proper place of trial is the county where the corporation has its office and carries on its general business.

Conroe v. National Protection Insurance Co. 10 How. Pr. 403.

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