Opinion
May 7, 1958
Appeal from the Erie Trial Term.
Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.
Judgment insofar as appealed from reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The plaintiffs appealed from that part of the judgment which dismissed their complaint after a trial before the court without a jury. The defendant took no appeal from that part of the judgment which dismissed his counterclaim. In reversing the judgment, insofar as appealed from, all that need be said is that there are no findings of fact by the trial court which this court may review. There was no determination of the issues. The memorandum decision of the trial court frankly so stated as follows: "In view of the conflicting testimony and the exaggerated claims of the plaintiffs, it would require a Solomon to arrive at a mathematical conclusion as to the merits of this action." However that may be, it was requisite that the facts be found and a determination made upon the merits. Since the Judge presiding at the trial may not now take further action in the case, we cannot remit it for findings of fact. This court, therefore, has no recourse except to reverse the judgment insofar as appealed from and direct a new trial of the plaintiffs' cause of action. All concur.