Gardiner v. Schwab , 41 N.Y. Sup. Ct. 582 ( 1885 )

By the Court.

In Gormerly v. McGlynn (84 N. Y., 284) it was held that section 1023 of the Code Civil Procedure had abolished that part of Rule 32 as it then existed which permitted findings of fact to be made on the settlement of a case. That rule has now been modified to conform to those sections. And it has further provided that after a court or referee has made and settled the findings and conclusions requested before the submission of the action for decision, he shall not make additional findings of fact or conclusions of law. This new provision in Rule 32 did away with the practice which had existed of sending a report or decision back to the referee or court for further findings or conclusions. It was felt that after an action had been once decided by the court or referee, it was dangerous to permit an attempt to modify the decision by new findings or new conclusions; that the report or decision was like the verdict of a jury after they had been discharged. If the referee or the court is to make further findings or conclusions, is there any reason why the parties should not be heard before him as to those findings and conclusions? This would result in a retrial. We cannot limit the matter, and say that the report or decision may be sent back to remedy accidental omissions. If sent back* at all, why may not the court or referee change his former findings and conclusions altogether; or at least add such findings and conclusions as will quite reverse the former result. In the late revision of rules the justices deemed the practice unsafe and did away with it; if indeed 1 it was not done away with by sections 1023 and 993, the revisers note to the contrary notwithstanding. This is the view taken in Bamc v. Neuss (2 Civ. Pro. R. [Browne] 185) by the General Term of the First Department. Palmer v. Phœnix Insurance Company (in this dept., 24 Hun, 138) held that the court or referee could not be permitted to make additional findings of fact or law on the settlement of the case. That decision by analogy applies here.

Order reversed, with ten dollars costs and printing disbursements, and motion denied with ten dollars costs.

Present. — Learned, P. J., Bookes and Landon, JJ.

So ordered.