Opinion
December 30, 1955
Appeal from the Chautauqua Trial Term.
Present — McCurn, P.J., Vaughan, Kimball, Wheeler and Van Duser, JJ.
Case held, decision reserved and matter remitted to Hon. LEE L. OTTAWAY to make findings of fact. Memorandum: The trial court's memorandum opinion contains a finding that the respondents were not given "formal" notice of the ejectment action and that no demand was made upon them to defend the same. Formal notice of the commencement of the action and express notice to defend are not essential to the maintenance of this action. ( Browning v. Stillwell, 42 Misc. 346, affd. 93 App. Div. 613, affd. 182 N.Y. 538; Prescott v. Le Conte, 83 App. Div. 482.) As to whether respondents had informal notice and knowledge of the suit, there is no finding, the memorandum merely stating that the evidence of any notice is disputed and that the nature of such notice "even if given" is indefinite. In the absence of a definite finding of notice or lack of notice to the respondents, we are unable to review the judgment. All concur.