a decision stating concisely the grounds upon which the issues have been decided, and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment-roll

Whenever judgment is entered on a decision which does not state separately the facts found, the defeated party may file an exception to such decision, in which case, on an appeal from the judgment entered thereon upon a case containing exceptions, the Appellate Division of the Supreme Court shall review all questions of fact and of law, and may either modify or affirm the judgment or order appealed from, award a new trial or grant to either party the judgment which the facts warrant."

This section now gives a judge or referee the option to make findings of fact and law as formerly, or to incorporate his decision in narrative form, "stating concisely the grounds upon which the is"sues have been decided," so that the short decision may be used as a substitute for the old findings of fact and conclusions of law (Bomeisler v. Forster, 154 N. Y. 229, 236), the principal difference being that the old findings were numbered and paragraphed, while the new short decision is a running statement of the facts found by the judge and his legal conclusions thereon.

Now wherever, on an appeal, it is sought to review the facts, or to contend that the findings or decision, whether in the old or new form, are not supported by the evidence, or to raise any question whatsoever where a review of the facts is sought, a" case" containing the evidence, or such portions of it as are material to the review sought, must be made by the appellant; which means, of course, the evidence taken at the trial reduced to narrative form. But it was well settled under the old practice, before the amendments, that a case" was unnecessary where it was only sought to review the question whether the findings of law were consistent with the findings of fact; the appellant relied solely on his exceptions to the judge's conclusions of law, and, conceding the facts to have been correctly found by the judge, claimed that his (the judge's) conclusions of law were inconsistent with the facts as found.

It was sometimes contended by the respondent in such an appeal that it must be assumed, in the absence of a "case," that there was evidence which, if known to the appellate court, would sustain the trial judge's conclusions of law, though such facts did not appear in the findings; and this was claimed even where the judge's findings repelled the existence of such facts; but in Rochester Lantern Co. v. Stiles & Parker Co. (135 N. Y. 209, 211), Judge Earl said:

"The defendant does not complain of the findings of fact made by the referee, but it finds fault with his rulings upon matters of law, and the sole question before us is, whether the rulings are justified by the facts found. In other words, do the facts found justify the judgment? The learned counsel for the plaintiff contends that if the findings of fact contained in the record are insufficient to uphold the judgment, then we may assume that there was evidence upon the trial sufficient to justify other findings of fact which would support the conclusions of law. Such, undoubtedly, is the rule where upon an appeal a case has been made containing the evidence. Then the appellate court may look beyond the findings of fact into the evidence, and see if there is any evidence to support the conclusions of law, and it may affirm the judgment even if the findings of fact actually made do not support it, if it finds sufficient evidence to justify it.

"But there is no foundation for this rule when the appeal is on the judgment-roll alone, and the evidence is not before the court. Then the appellate court can know nothing about the evidence, except as it is embodied in the findings of fact, it cannot know that there was any other evidence, and there is no room or grounds for presuming that there was any. In the former case there is no presumption that there was any other evidence than that contained in the record, but finding the evidence there the court may presume, for the purpose of upholding the judgment, that the judge or referee found the facts which the evidence justified. But in the latter case the rule contended for on behalf of the plaintiff (respondent) would require the court to presume, not only the evidence, but the findings of fact based upon it. For this there is no reason. The party succeeding on a trial before a judge or referee must see to it that he has findings of fact sufficient to uphold his judgment, and if he does not he is exposed to the peril of a reversal of his judgment by an appeal based solely upon the exceptions of the defeated party to the conclusions of law. If the rule contended for by the plaintiff (respondent) be sustained, then very rarely, if ever, would it be safe for a defeated party to appeal without a case, as it would nearly always be possible to presume facts were proved, although not actually found, which would support the judgment."

This decision makes it clear (1) that where there are findings of fact a case is not necessary on an appeal where only the judge's conclusions of law are sought to be reviewed; (2) that in an appeal on the law the court will consider the facts found as

the only facts in the case, and not assume there was other evidence which if known would support the judgment, and (3) that, a fortiori, when the facts are stated by the judge, it will not be presumed that the evidence, if known, would show them to be otherwise than as so stated. This is concededly the settled practice where there are regular findings (Schwarz v. Weber, 103 N. Y. 658). Coming now to consider the short form of decision, it would seem quite natural that, if it is a substitute for the old findings, the same rules would apply to it as apply to findings, and that an appeal can under like circumstances be taken without a case. The short decision, it is held, is entitled to all the intendments which would support the verdict of a jury (Amherst College v. Ritch, 151 N. Y. 282, 320), or, in other words, that it is supported by the evidence. In commenting upon the practice, Judge Gray, in Bomeisler v. Forster (154 N. Y. 229, 236), says:

"The grounds of the decision of the issues which section 1022 authorizes to be concisely stated, as a substitute for separate findings of fact, must be regarded as containing statements of those facts, which the trial judge or referee deemed to be established by the evidence, and his decision has the support of the same presumptions which go to the support of a general verdict."

It is apparent from this that the appellate court should assume that the evidence sustains the judge's statement of facts, so that, as the learned judge goes on to say:

"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 entitled to the equitable relief awarded him, and if there was no error in that respect, whether there were errors of law committed in the rulings upon the trial."

But it is argued that the Court of Appeals means that it is the judgment and not the decision that is the equivalent of a jury's verdict, and that in the absence of a case it must be assumed there was evidence adduced at the trial which would support the judgment. Precisely this argument was expressly repelled by Judge Earl in Rochester Lantern Co. v. Stiles & Parker Co. (supra), and the principle there laid down should be extended to the short form practice, if indeed it is a substitute for the old practice, as the Court of Appeals has said.

Strangely enough the Appellate Divisions of the First and Second Departments have treated the short form of decision as a thing quite by itself

and of an entirely different nature from the findings of fact. In Health Department v. Weekes (22 App. Div. 110), Judge Barrett says:

"A single exception to the decision is sufficient and hence the thirteen specific exceptions here taken by the appellant to different portions of the decision were quite unnecessary and useless. Upon a single general exception the Appellate Division is required to review all questions of fact and of law. How can it review the questions of fact without having the evidence before it? Or how without the evidence, can it exercise its prerogative of rendering such judgment as the facts warrant?

"We think that the amendment in question leaves the whole case open for direct consideration by the Appellate Division both on the law and the facts. The grounds of decision are but the reasons which actuated the lower court in deciding as it did, and they are inserted for the assistance of the appellate court not to control its action. These reasons may be statements of facts general or partial; or they may be argumentative suggestions, or mere statements of the trial judge's view of the law. But if these grounds or reasons be insufficient, there may still be ample grounds or reasons justifying the decision. The decision stating concisely the grounds, without findings, is tantamount in fact, to the general verdict of a jury.

"Undoubtedly we might review such a judgment as the present in the manner now attempted, if, upon the records, it could not be supported by adequate proof of all the facts stated in the petition. In other words, if it appeared that the court had no jurisdiction, or that the petition failed to state facts sufficient to constitute a cause of action. Under such circumstances no findings of fact would have been necessary even under the old practice. But such is not the present case. Averments are distinctly made in the petition which, if proved in their entirety, would establish the fact that the condemned building is a public nuisance and that it should be abated."

In Gardiner v. N. Y. Mutual S. & L. Assn. (67 App. Div., 141), where it was sought to appeal from a decision in the short form, without a case, on the ground that the judge's conclusions of law were inconsistent with the facts as found by him, and that consequently the decision was self-annihilating; Judge Bartlett, writing for the Second Department, decides, on the authority of Health Department v. Weekes (supra), that the appeal will not lie without a case, and reiterates Judge Barrett's arguments. In the absence of a definite adjudication by the

Court of Appeals, the effect of these decisions is to prohibit an appeal without a case where there are no formal findings of facts, and where the trial judge or referee has exercised the option given to him by section 1022 to make his decision in the short form.

It is quite evident that where a review both of the facts and the law is sought, or, in other words, where the decision is appealed from in its entirety, that a case containing the evidence is necessary. But where the appellant, being satisfied that the judge's conclusions of law are inconsistent with the facts as stated by the judge himself, contends that the decision is erroneous on its face, and is willing to accept the facts as stated in a decision adverse to him, does it not seem rather an anomaly that he should have to go to the labor and expense of preparing a case on appeal?

While these decisions imply that the trial judge cannot be trusted to give a comprehensive statement of the facts in a short decision, they apparently assume that his law must be correct, and that if it is inconsistent with the facts he has stated that there must have been other facts which he considered but casually omitted to state, and which, if known, would bolster up his legal conclusions. Though why this should apply any more to a short decision than it does to findings is not disclosed.

If indeed the court below, as in Hall v. Beston (13 App. Div., 116); Shaffer v. Martin (20 App. Div., 304), and Newman v. Mayer (52 App. Div., 209), has not stated any facts, or the decision is incoherent or so meagre as not to be more than a direction for a judgment, the Appellate Division may well send the case back to the trial judge, as it actually did in these cases, with a direction to him to write a decision complying with section 1022. As Judge Bartlett said in Newman v. Mayer (supra):

'The obligation to give these reasons, either in the form of findings of fact and conclusions of law, or in a concise statement of the grounds upon which the issues have been decided, is conducive to a degree of care in the consideration and disposition of the cause which otherwise might not be observed."

form), to so seriously embarass the right to appeal on a question of law raised on the face of the decision?

The most critical analysis of section 1022 cannot properly lead to the conviction that the making of a case is necessary, except in the event provided for in the latter part of the section, namely, where a review of the questions of fact as well as of law are sought. Was not this clause intended to save a mass of exceptions to fact and law, and to provide that a single exception should be sufficient where a review of the decision in extenso was sought?

It is at this point that our lower court judges fall into the error of assuming that the use of the short decisions is limited to the special method of appealing on a single exception here indicated, and that it is confined to such use. In other words that the clause in question is exclusive and not merely permissive, and that it excludes any other use of the short decision. Such a view cannot be reconciled with the following provisions of section 998:

"It is not necessary to make a case, for the purpose of moving for a new trial, upon the minutes. of the judge, who presided at a trial by jury; or upon an allegation of irregularity or surprise; or where a party intends to appeal from a judgment entered upon the referee's report, or a decision of the court upon a trial, without a jury, and to rely only upon exceptions, taken as prescribed in section 994 of this act."

Section 994 is as follows:

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"Where an issue of fact is tried by a referee, or by the court, without a jury, an exception to a ruling, upon a question of law, made after the cause is finally submitted must be taken The exception may be so taken, at any time before the expiration of ten days after service, upon the attorney for the exceptant, of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon. * It constitutes a part of the papers upon which an appeal from the judgment must be heard."

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Shall now the remedy be so construed as to make