Opinion
279 A.D. 442 111 N.Y.S.2d 180 JAMES BENDER, Plaintiff, v. EUGENE HUTTON et al., Defendants. JAMES BENDER, Respondent, v. EUGENE HUTTON et al., Appellants.
Supreme Court of New York, Fourth Department. March 5, 1952
APPEAL (1) from an order of the Supreme Court at Special Term, entered September 27, 1951, in Erie County, which reversed a judgment of the City Court of Buffalo (RYAN, J.), dismissing the complaint in the second above-entitled action and directed entry of judgment in favor of plaintiff in said action, and (2) from the judgment entered thereon. In the second above-entitled action plaintiff sought to recover $400 as rent for the month of March, 1951, of premises located at 1143 Sheridan Drive in the township of Tonawanda, which plaintiff as landlord had leased to defendants as tenants. Defendants alleged that prior to March 1, 1951, they had been evicted from a portion of the premises covered by the lease and as a result were not liable for the rent. There was evidence that the leased premises included a rear room approximately eight feet by twelve feet; that defendants had not been able to get possession of that room, and that on January 10, 1951, a fire occurred which allegedly rendered the premises untenantable.
COUNSEL
Joseph May for appellants.
Louis N. Blatt for respondent.
Per Curiam.
At the close of the trial of this case in the City Court of Buffalo without a jury, counsel stipulated that the court might view the premises. The record indicates that a view was had. As was said in Weiant v. Rockland Lake Trap Rock Co. (61 A.D. 383, 388, affd. without opinion 174 N.Y. 509): 'The method of his personal examination and the facts which he ascertained thereby do not appear upon the record, but must necessarily have been influential factors in his decision; and unless such decision is at variance with uncontradicted evidence, we may not disturb it.'
Section 56 of the Buffalo City Court Act makes the provisions of the Civil Practice Act applicable to the proceedings in that court when not in conflict with the City Court Act. We find nothing in that act as to the form of decision; consequently section 440 of the Civil Practice Act applies. That section required the court to incorporate in his decision the facts which he deemed essential to the decision which he made. As was stated by this court in Metropolitan Life Ins. Co. v. Union Trust Co. (268 A.D. 474, 479): 'That obviously means the facts upon which the rights or liability of the parties depend'.
In the instant case the court does not tell us what facts he found as a basis for his decision. Two questions of fact were presented by the defendants' proof, first the adequacy of the repairs after the fire, second the question of the storeroom. We are unable to tell from this record the findings of fact on either of those questions.
The Special Term has reversed the judgment and given judgment to the plaintiff. Were it not for the 'view' of the trial court, we would hold that the record supports that judgment. Under the circumstances here disclosed, we think the interests of justice require a new trial in the City Court.
All concur. Present--TAYLOR, P. J., MCCURN, KIMBALL, PIPER and WHEELER, JJ.
Judgment and order of Erie Special Term and judgment of Buffalo City Court reversed on the law and facts and a new trial granted in Buffalo City Court, with costs in all courts to abide the event. [See 279 A.D. 976.]