Callan v. M. Patane Co.

Judgment reversed on the law, without costs, and a new trial granted. This case was tried before the court without a jury, and there is no decision supporting the judgment. (Civ. Prac. Act, § 440.) While it is the practice in such cases as this to dismiss the appeal and remit the case to the trial justice to make findings (Ventimiglia v. Eichner, 213 N. Y. 147; Langling Co. v. Eichner, 230 App. Div. 731; Corley v. Spitzer, 235 id. 703), the learned justice who presided over the trial has retired from the court, and the case must be retried. Therefore, to clear the record and to grant the required relief, we reverse the judgment and grant a new trial. (Smith v. Geiger, 202 N. Y. 306, 311, 312.) As both sides are in fault, neither should recover the costs. Young, Hagarty, Carswell and Tompkins, JJ., concur; Kapper, J., dissents and votes to affirm.