Opinion
December Term, 1901.
Thomas Abbott McKennell, for the appellant.
John E. Ruston [ William Hepburn Russell and William Beverly Winslow with him on the brief], for the respondent.
This is an appeal from a judgment in an action at law, tried before the court without a jury. The decision is in the short form prescribed by section 1022 of the Code of Civil Procedure, and concludes with a direction for judgment dismissing the complaint upon the merits, with costs. The appeal is based solely upon the judgment roll, the appeal book containing no portion of the evidence taken upon the trial. The idea of the appellant seems to be that by reason of his exception to the short decision the case is in the same condition as it would be if exceptions had been taken to a decision in which the findings of fact and conclusion of law were stated separately; in which event if the findings of fact did not suffice to sustain the conclusion of law, a reversal could be obtained.
This view seems to be erroneous. In Matter of Health Department v. Weekes ( 22 App. Div. 110) the Appellate Division in the first department unanimously held that in the absence of the evidence taken upon the trial a judgment based upon the short decision permitted by section 1022 of the Code should be upheld, notwithstanding the fact that the grounds specified in such decision are insufficient to warrant the judgment. Such a decision without findings was declared to be tantamount in fact to the general verdict of a jury. "Findings of fact and conclusions of law may still be made," says Mr. Justice BARRETT. "Where they are so made an appellant may, by excepting to the conclusions of law, raise the question whether such conclusions are justified by the findings of fact. But this cannot be done where there are no distinct findings of fact."
In view of the condition of the record, I recommend an affirmance of the judgment upon the authority of the case cited.
GOODRICH, P.J., WOODWARD, HIRSCHBERG and JENKS, JJ., concurred.
Judgment affirmed, with costs.