National Harrow Co. v. E. Bement & Sons

Parker, Oh. J. The printed case is not without indications that the learned justice who wrote for the Appellate Division intended a reversal upon the facts, but through inadvertence of the court in making or counsel in preparing the order of reversal, it does not show that the reversal was upon the facts, and hence this court is required by statute to presume that the judgment was not reversed upon a question of fact, but upon the law. (Code, section 1338.) That section is in substantially the same form now as when the Code of Civil Procedure was enacted in 1876. The amendment of 1895, to which reference will be made later, in nowise affected an order which did not state that the reversal was upon the facts. In very many cases the court has been invited to review judgments where it was apparent that a mistake had been made in the order of reversal, but it has steadfastly adhered to the command of the statute and refused to sustain the judgment unless it appeared that there was an error of law upon which the General Term or the Appellate Division, as the case might be, could have rested its reversal. Among these cases may be found the following: Weyer v. Beach (79 N. Y. 409); Davis v. Leopold (87 N. Y. 620); Hannigan v. Allen (127 N. Y. 639); Furner v. Seabury (135 N. Y. 50); Mack v. Colleran (136 N. Y. 617); Riendeau v. Bullock (147 N. Y. 269); Bomeisler v. Forster (154 N. Y. 229); Snyder v. Seamam, (157 N. Y. 449); Petrie v. Hamilton College (158 N. Y. 458); People v. Adirondack Ry. Co. (160 N. Y. 225); Gannon v. McGuire (160 N. Y. 476); Lannon v. Lynch (160 N. Y. 483); Spellman v. Looschen (162 N. Y. 268); Shotwell v. Dixon (163 N. Y. 43). Every one of the cases cited is consistent with the requirement of the statute, and not only holds that the statute limits the court in such a situation to the review of questions of law *508 presented by exceptions, but the various questions of law which may be jcassed upon on such a review have 'been considered, and it has been decided that they are confined to rulings touching the admission and rejection of testimony; to the question whether the conclusion of law is supported by the facts found, and also whether any material finding of fact is without evidence to support it. Hot only lias the court in all the cases I have referred to failed to discover any other question of law than those just mentioned, but this court has said again and again, and very recently, as I shall soon point out, that there are no other questions of law which can arise in such a situation as this record presents. Before referring to the special discussion of this subject in the recent decisions of this court, attention is invited to” the fact that section 1338 as originally enacted had one more sentence than at present. The section formerly read as follows: “ § 1338. Upon an appeal to the Court of Appeals from a judgment, reversing a judgment entered upon a referee’s report, on a decision of the court, upon a trial without a jury; or from an order granting a new trial, upon such a reversal ;■ it must be presumed, that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears, in the body of the judgment or order appealed from. In that case, the Court of Appeals must review the determination of the General Term of the court below, upon the questions of fact, as well as the questions of law.” Formerly, therefore, it was the duty of this court where there was a reversal upon the facts to review the questions of fact as well as the questions of law, hut after the adoption of the new Constitution, which took effect January first, 1895, and which provided that the jurisdiction of this court “ except where the judgment is of death, shall be limited to the review of questions of law,” the legislature of that year, for the purpose of conforming the practice to the mandate of the Constitution, amended section 1338 by striking out the last sentence. When that was done the last vestige of the right of this court to review the facts of a trial had before a court or *509 referee, whatever the form of the order of reversal, was swept away. The authorities down to that time consistently held that the facts should not be reviewed save when the reversal was in terms upon the facts, as an examination of the cases cited above will show, and when that right was taken away by repeal of the provision authorizing such review it would seem that the Constitution and the statute together had securely barred our entrance to the record for the purpose of examining the evidence and determining what judgment such evidence calls for and deciding the appeal accordingly. The learned counsel now proposes that we shall do just that and nothing more. The proposition is presented differently, of course, and far more seductively, but reflection shows that the result aimed at is not and cannot be less than that. • If, in the absence of decision, there were room for argument as to whether the effect of the repeal of the provision of section 1338 authorizing this court to review the facts where there is a reversal upon the facts, was to invest the court with a power which it did not have at the time of such repeal, namely, the power to review the facts where the reversal was not upon the facts, it cannot be listened to now for that question has been otherwise decided, and, therefore, is no longer an open one. The court has had before it since the amendment of 1895, a number of cases where the extent of the power of review in this court where the reversal of a referee or trial court is not upon the facts has been considered. In Bomeisler v. Forster (supra) the court, speaking through Judge Gray, and after calling attention to the fact that the exception to the decision made it the duty of the Appellate Division to review all questions of fact and law, stated the rule as to the effect of an order of reversal, which is silent as to its grounds, to be that this court is bound to presume that the reversal was upon questions of law. The opinion then proceeds to state the limit of our authority in such a case in the following words : “Our review is, therefore, confined to the consideration of whether, upon the decision made by the trial court upon the facts, the legal conclusion followed that the plaintiff was *510 entitled to the equitable relief awarded him and, if there was no error in that respect, whether there were errors of law com-. mitted in the rulings upon the trial, which would, in any event, have justified a reversal of the judgment and rendered a new trial necessary.” In that decision the facts were not separately stated, but it was what is known as a short decision, and the court considered the effect of its substitution for separate findings of fact and reached the conclusion that such a-decision has in its support the presumption that all the facts-warranted by the evidence and necessary to support the-judgment were impliedly found. In support of that proposition the court cited the case of Amherst College v. Pitch (151 N. Y. 282). The case of Petrie s. Trustees of Hamilton College (supra) was a case where the referee’s report was also general in form, and the court followed the decision in the Bomeisler and Amherst College cases in holding that all the facts warranted by the evidence and necessary to support a judgment in such a case were impliedly found by the referee, and it adopted the rule of the Bomeisler case as to the boundaries of the right of review in this court where the order of reversal does not state that it is upon the facts. The form of the decision was the same in People v. Adirondack Railway Co.(supra), and this court, following the cases already referred to, Judge Vann writing, said: “ It must be presumed that all the facts warranted by the evidence and necessary to support the judgment were found by the Special Term, and that the reversal by the Appellate Division was based wholly upon errors of law, the facts standing approved by that court.” This case was cited in Gannon v. McGuire (supra) in support of the proposition, in which all of the court agreed, that “According to the order of reversal, the learned Appellate Division did not disturb the facts presumed to have been found by the trial court, which include all facts warranted by the evidence and necessary to support the judgment.” And Judge O’Brien, in Lannon v. Lynch (supra), after referring to the requirement of section 1338 of the Code in a case where it does not appear in the order appealed from that the *511 judgment was reversed upon the facts, said: “ There is no such statement in the order now before us. It simply states that there was a reversal aud a new trial directed. We are commanded by the statute to treat the decision as one not interfering with the facts found at the trial.” Spellman v. Looschen (supra) was a case in which the record disclosed no exceptions taken to the admission aud rejection of testimony aud where undispntedly the conclusion of law followed from the facts found and so Judge Laudon said : “ The only question of law presented by the record for our review is whether the learned trial court found, without evidence to support it, any fact material to the judgment.” I have called attention to a sufficient number of cases to show not only that the form of the order is a familiar one in this court, and ofttimes the subject of consistent adjudication, but also that the form of the decision under review is not strange to this court, for it has received careful consideration, since the amendment of section 1338 of the Code in 1895, and the adoption of the new Constitution depriving this court of the jurisdiction to review facts with the exception therein' provided, and such decisions have been almost universally made by a unanimous court, and, without exception, they deny the power of this court, in such a case as this, to search through the record for facts not in harmony with the referee’s or the court’s decision, and to incorporate them as facts into that decision in' order to support a determination by this court that the conclusion of law of the referee was not supported by the facts found by him; and we should be governed by-these decisions even if, according to our present view, they were not well considered, for they have been consistent with each other from the beginning, as the records, covering now more than half of the volumes of the deeisiotis of this court; show. It is true that in none of these cases did the court say that in a short decision an omission to find a material fact not requested does not present an error of law, aud for the reason doubtless that-in all-the struvo-les to-avoid the rieor of section *512 1338, it has never occurred to the minds of counsel before to press such a claim on the attention of the court. But when in various cases this court, as in the Bomeisler and Petrie and other cases, undertook to state the boundaries of our authority to review where the reversal is not upon the facts, and in express terms said that the only questions of law which we may review must relate to the admission and rejection of testimony, to the question whether the conclusion of law is supported by the facts found, or whether any material finding of fact is without any evidence to support it, we necessarily excluded the question under discussion, with all others not named; that is, we decided that certain questions can be reviewed and that no others can, and to the latter class belongs the alleged question of law which we are considering. Assuming, however, for the sake of argument, that the question has never been decided — that it is as open for decision as if the dozens of cases which have been before this court during the last five years had never been decided, and it seems to me quite clear, to say the least, that it suggests no error in the decisions made. Now, in what does this alleged error of law consist % It is said to consist in the omission of the referee to find a material question of fact which was conclusively proved. If that constitutes an error of law, then in every case where the reversal is not upon the facts, the attention of this court will be invited to an investigation of the record to see whether some fact was not conclusively proved which does not appear in the decision, and it will be strange indeed if it cannot be found, whereupon the ingenuity of counsel will be exerted to convince us that it is a material fact. What then would be left of the command of section 1338 of the Code ? Nothing, practically; for experience teaches that we should become investigators of the facts, and in cases such as this, where inferences of fact may be drawn from facts and circumstances proved, it will be argued that the fact was conclusively proved. But passing the effect of such a decision, we come to a consideration of the question whether .an omission to find a fact *513 not requested constitutes an error of law. The precise form in which the proposition is presented is as follows: “ Where a fact is pleaded and conclusively proved on the trial, which is fatal to the judgment rendered, the failure to find that fact is an error of law for which the judgment is properly reversed by the Appellate Division as erroneous in law.” There are several answers to this contention. One is that it cannot be legal error to omit to insert in a report of a referee, or in a decision of a trial court, a material finding of fact, the finding of which has not been requested, for the reason that the statute explicitly asserts that this need not he done. (Code, section 1022.) That section provides in terms that a court or referee may state separately the facts found and the conclusions of law, or may file a decision stating concisely the grounds upon which the issues have been decided. Clearly, it cannot be seriously contended, when the statute provides that the facts need not be separately stated, but that it is sufficient to state concisely the grounds upon which the issues have been decided, that an omission to find a material fact in a short decision constitutes error of law. In other words, that, in doing what the law expressly permits, error of law is committed by a trial court or a referee. In this case the. referee filed a decision stating concisely the grounds upon which he decided the issues. In so doing, he conformed to the requirements of the statute, and whatever errors he may have committed in passing upon either questions of law or fact, he did not commit an error of law in omitting to incorporate into his decision every material finding of fact established conclusively or otherwise by the evidence. There are still other answers to the contention made, one of which is that there is no exception which presents for our review any such question as that suggested. It is true that formerly it was held to be an error of law to omit to find a fact requested, when conclusively established, and that an exception taken to such a refusal presented an error of law for review in this court. But there is no such request here and no exception taken to a refusal to find, and furthermore *514 it never was the law in this state that an omission to find a fact not requested constituted error of law. The presentation of requests to find finally became so burdensome to the courts and so unfruitful in results that in 1894 section 1023 of the Code was literally swept away. How, upon the happening of that event, the rule of law which had been builded by the courts, and subsequently incorporated into the Code, that a refusal to find a fact requested, which was conclusively established by the evidence, if excepted to, constituted error of law ■ re viewable in this court, either survwed the repeal of section 1023 or passed away with it. If the rule of law formerly in vogue survived the repeal of section 1023, then the law upon that subject is that a request for a finding must be made and refused and an exception noted in order to present a question of law for this court. Clearly no such thing happened in this case. If the rule of law formerly obtaining went out of existence with the repeal of 1894, it is as dead as the section repealed, and can no more be invoked in this court than the repealed section. ' It is my view that the repeal of section 1023, considered in connection with the repeal in the year following of section 993 and the various amendments to other provisions of the Code by chapter 946 of the Laws of 1895 (a chapter in part made necessary by the amendment to the Constitution affecting the powers of both this court and the Appellate Division), operated to wipe out of existence the practice touching the review of findings of fact in this court. The legislature was of the opinion that only radical measures could accomplish that result, and hence the absolute repeal of section 993, which read as follows: “ Upon the trial of an issue of fact by a referee, or by the court, without a jury, a refusal to make any finding whatever, upon a question of fact, where a request to find thereupon is seasonably made by either party, or a finding without any evidence tending to sustain it, is a ruling upon a question of law, within the meaning of the last section.’’ What, possible purpose could the legislature have had in repealing that section except to take away from this court the temptation to follow in the beaten paths of *515 decision. Now, however, although the statute which it was supposed was our guide in such cases has been repealed, we are invited to go a step further than either the statute or the decisions ever went and hold that a mere omission to make a finding of fact, although not requested, constitutes an error of law reviewable in this court. But I forbear further discussion of this question. The suggestion is also made that if it must be held that the effect of the amendment of section 1338, considered in connection with tiie repeal of section 993 and the various amendments made to other sections of the Code, was to prohibit the court from holding that a failure to find any material fact proved presents an error of law there is nothing to prevent the court from holding that a failure by the referee or trial court to give effect to a fact proved is an error of law. To my mind that suggestion needs no other answer than that during all the years that our system of practice has been developing this court has neither held nor said that a failure to give effect to a fact proved but not found constitutes error of law, but on the contrary has stated what the questions of law are that may be reviewed, and has thus excluded this and other alleged questions of law that may be hereafter evolved. Again, it is not pretended that under the practice existing prior to the repeal of section 993 there was any such rule of law in existence, but it is in effect argued that the right to say whether it was error to refuse to find a particular fact, having been taken away from this court, it should now be held that the result was to confer upon this court the right to examine the entire record, and if as a result we find that a certain fact was proved, which, had it been given effect, would have led to a different conclusion, we may hold that an error of law was committed. There is nothing in any amendment to the Code suggesting such a purpose on the part of the legislature. On the contrary, there is to be found therein conclusive evidence that the legislature intended to cut off all possibility of a review of facts by this court whether under the guise of a review of questions of law or otherwise. The Constitution that went into *516 effect January, 1895, sought to prohibit this court from reviewing questions of fact, and to that end, in terms, limited the jurisdiction of the court to questions of law. It also provided that the legislature might “ further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto.” In the presence of this situation the legislature set about the enactment of such legislation as should give effect to this new policy of the organic law, which intended to make a court of great dignity, consisting of five justices of the Supreme Court, called the Appellate Division, the court of final review as to all questions of fact and in many cases as to questions of law as well. And as section 993 afforded the only statutory opening through which this court could enter upon a review wholly or partially of the evidence when the reversal of a court or referee was upon the law, it was repealed — not amended, but effaced from the pages of the Code. Other amendments to various sections of the Code were made by the same act (Chapter 946 of the Laws of 1895), but all that were germane to this question tended in the same general direction. I shall not stop, however, to analyze them, but content myself with the assertion made as there is no room for controversy as to the tendency of the amendments. Our duty in the premises is plain. It is to observe the boundaries of our jurisdiction faithfully and thus to carry into effect the scheme which the framers of the Constitution devised and the people approved. And while .thus observing them we shall have- the satisfaction of knowing that harm will not result to litigants because we are prevented from reviewing facts, for section 1022 provides that “ the Appellate Division of the Supreme Court shall review all questions of fact and of law.” It may be that occasionally in the future as in the past effect may not be given to the intentions of the court by the draughtsman of the order or judgment, but the remedy is to be found in an application to the Appellate Division to so amend the order or judgment as to express the will of the court, not in an appeal to this court to assume jurisdiction over questions that have been advisedly taken from it. *517 We are unable to find in this record any errors of law upon which the Appellate Division could reverse the judgment, and as the form of the order requires us to assume that the reversal was had upon errors of law, we must reverse the judgment. The judgment of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs.