William C. Adams and Grace F. Adams, His Wife, Respondents, v. Elias L. M. Bristol, Appellant, Impleaded with Samuel F. Adams and Others, Respondents

William C. Adams and Grace F. Adams, His Wife, Respondents, v. Elias L. M. Bristol, Appellant, Impleaded with Samuel F. Adams and Others, Respondents. Judgment in an equity case, the issues in which were determined at the Trial Term and the judgment in which was entered at Special Term — what recitals should appear therein. The issues of fact arising in a partition suit, pursuant to an order theretofore made were brought on for trial before the court and a jury at a Trial Term of the Supreme Court, at which time the parties stipulated that the jury be dismissed and that the case proceed and be completed before the justice presiding at the Trial Term, with the same force and effect as if the trial had been had before said justice sitting at Special Term. The trial proceeded pursuant to this stipulation, and after the justice bad announced his decision, the defendant presented proposed findings of fact and conclusions of law, which were duly passed upon. Thereupon the plaintiffs served notice of motion for judgment and a proposed decision of the Special Term. Such decision was, in form, a decision of the Special Term held by another justice, and recited that the action had come on for trial at the Special Term and the proceedings at the Trial Term; it also contained the findings of fact and conclusions of law made by the justice before whom the case was tried. After the interlocutory judgment had been entered in accordance. with such proceedings, the defendant made a motion to resettle the decision and(the inter- . locutory judgment by reciting therein the notice of motion for judgment,-the affidavits submitted in opposition thereto, and the requests to find passed upon ■by the justice before whom the .case was tried. The court denied the motion, . but ordered that the papers which the defendant sought to have recited be - annexed to the judgment roll. ", ■ Held, that the proceedings, which resulted in the entry of the interlocutory judgment were regular and proper, but that in view of section 1353 of the Code of . Civil .Procedure, 'which specifies the papers upon which an appeal from an interlocutory judgment shall be heard, and ;of rule 3 of the General Rules of Practice, which requires that the papers be recited in the order directing judgment, the defendant was entitled to have the interlocutory j udgment, but not the decision, resettled by reciting therein the notice of motion for judgment . and- the affidavits used thereon -and the requests to find passed upon by -the judge presiding at the Trial.Term at which the action was tried; That it was not sufficient for the court to direct that the 'paperSj which the . defendant sought to. have recited in the-interlocutory judgment, be .annexed to the judgment roll. . Appeal by the" defendant, Elias L. M. Bristol, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office'of the clerk of the county of Hew York ón the 12th day of July, 1905, as denies the said defendant’s motion to resettle and correct a decision and an interlocutory judgment theretofore entered in the above-entitled action. . .Arthur O. Townsend, for the appellant Payson Merrill, for the respondents. [MAJORITY — Ingraham, J.:] Ingraham, J.: This action was for the partition of real property in which the appellant - interposed an 'answer. It came on .for trial at Special Terra; where upon the consent of the parties an order was entered sending.the issues of fact raised by the pleadings to the Trial Term for trial bv a jury.'' The trial of these issues came On at Trial Term, whereupon, .by- stipulation, the jury was dismissed and the case submitted to the justice presiding, and it was stipulated that ;the trial of all issues arising upon the pleadings proceed and be completed before Mr. Justice Clarice without a jury, trial, by jury being hereby waived by all the parties who; have appeared herein, and that the determination of said justice may be embodied in findings of fact and conclusions of law, such findings of fact and conclusions of law to have the same force and effect as if the trial hereof had been begun and lieayd before Mr. Justice Clarke, sitting at a Special Term of this court, and the parties hereby waive a submission to the jury of the questions of fact in issue in this case.” The trial then proceeded before Mr. Justice Clarke without a jury, who subsequently announced his decision. The appellant presented proposed findings of fact and conclusions of law which the court passed upon, whereupon the plaintiffs served upon the attorney for appellant notice of motion for judgment, serving a proposed decision of the Special Term and interlocutory judgment. This decision was in form a decision of the Special Term, presided over by Mr. Justice Gtldersleeve, and recited that the action had come on for trial at a Special Term ; that the issues raised by the pleadings had been, referred by a.Special Term to a Trial Term to be tried by a jury; that after the' said trial had been begun before the jury the parties to the action had stipulated in writing a waiver of submission to the jury of the questions of fact in issue in the case and that the said trial should proceed before Mr. Justice Clarke and that the said trial. having proceeded as stipulated and that Mr. Justice Clarke having embodied his determination in. findings of fact and conclusions of law and certified the same to the court at Special Term, “ JSTow, after reading the pleadings and evidence of the parties and the findings of fact and conclusions. of law of Mr. Justice Clarice aforesaid, and after hearing the attorneys for the plaintiffs and defendants, and due deliberation having been had, I decide and find as follows.” Then follow twenty-two findings of fact and five conclusions of law, finding in favor of the plaintiffs and directing that an interlocutory judgment be entered for the partition and sale of the premises, and the court at the same time entered an interlocutory judgment in accordance with the decision. Whereupon, the appellant made a motion to resettle this decision and interlocutory judgment by reciting therein the notice of motion for judgment dated June 24, 1905, and .returnable June 29, 1905, at the Special Term of the court, the requests presented to and passed upon by Mr. Justice Clarke, before whom the case was tried at Tibial Term, and the affidavits submitted in opposition to the motion.' This motion was denied, the court ordering that the plaintiffs’ notice Of motion and the affidavits and requests to find presented by the appellant with the ruling of the justice thereon be added to andmrade a part'of the judgment roll upon which said interlocutory judgment was entered., The. action was in equity and properly upon the Special Tente calendar. The parties, however, being entitled to a trial of the'issues. of fact by a jury under section 1544 of the Code of Civil Procedure, the court by consent Ordered such issues to be tried by a jury, Section 972 of the Code of Civil Procedure provides that “ if the questions directed to be tried by a jury, as prescribed in the last two sections, do not embrace all the issues of fact in the action, the remaining issues of fact must be tried by the court or by a referee.” These issues having been sent to be tried by a jury, the parties- stipulated that a jury should be waived and that the trial be liad before Mr. Justice Clarke without a jury, and that the determination of said justice might be embodied in findings of fact and conclusions of law, such findings of fact and' conclusions of law to have'the same force and effect as if the trial had been begun and heard before Mr. Justiee Clarke at a Special Term of the court. .' Proceeding under this stipulation, Mr. Justice Clarke presumably disposed of all the issues presented, whether- of. law or of fact, signed his decision and passed upon the requests to find presented by the appellant and Which decision was transmitted to the Special Term. All.-that Was left then in the case was to" apply to the'Special Term for judgment in accordance with the findings of fact and conclusions of law settled by Mr. Justice Clarke, upon the trial before him,- and that was, the course adopted by the plaintiffs, and the case was- then brought on at the regular Special Term for judgment. It does not. appear that any., issue remained to be disposed of,' and the parties had certainly stipulated that all iásues in the action should be determined by Mr. Justice Clarke. It would appear that the judgment at Special Term might have been entered upon the' findings of fact and conclusions of law as found by Mr. Justice Clarke. . Upon pres'enting the case at Special Term; however, the court signed a decision.which apparently embodied /the determination of Mr. Justice Clarke and then directed' an interlocutory judgment. As "there were other parties to. the action, the plaintiffs were bound to make it appear that there were no other issues in the action, and, therefore, an affidavit of regularity to be presented at the Special Term was . necessary. It would seem that the proceeding was regular, but I think the appellant was entitled to have recited, in the interlocutory judgment, the papers upon which it was based, with the notice of motion and the affidavits thereto annexed and the affidavits in opposition submitted by the appellant. There being a presumption of the correctness of the recitals in a judgment, it is only fair to the parties that the recital should be a substantially correct account of the proceedings upon the trial and the method by which the case was tried before the court. Annexing these papers to the judgment roll does not make them a part of the papers before the court upon which the judgment was granted, and I think a party is entitled to have recited in the judgment the notice by which the question was brought before the court and upon which the judgment was entered, and this becomes important in case an appeal should be taken from the interlocutory judgment, for by section 1353 of the Code of Civil Procedure it is provided that “ an appeal from an interlocutory judgment, or from an order, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal and of the papers used before the court, judge or justice upon the hearing of the demurrer, application for judgment or motion, as the case requires,” and these papers are required by rule 3 of the General Rules of Practice to be recited in the order directing judgment. This is in accordance with our decision in Farmers' National Bank v. Underwood (12 App. Div. 269). I think, therefore, that the order appealed from should be reversed and the interlocutory judgment amended by striking out all of page 44, folio 132, of the record, after the words “ June 10th, 1905,” and inserting in lieu thereof the words “ and the plaintiff having brought on the action for final judgment by a notice dated June 24,1905, and the court having adopted the decision of Mr. Justice Claeke at Trial Term, and made and filed a decision finding the facts and conclusions of law in accordance with such decision of Mr. Justice Claeke, on the 29th of June, 1905, whigli decision confirmed the findings of fact and conclusions of law of Mr. Justice Claeke as aforesaid, and directed the interlocutory judgment to be entered thereon.. And after reading and filing the summons and proof of its > due service on the defendant, as aforesaid/and the pleadings herein- and the order for a jury trial, made and entered on March 13, 1905; and the minutes of the trial, including the exhibits and the stipulation waiving the jury as aforesaid, .and the findings of fact and conclusions of law made by Mi'. Justice Clarke, and dated June 10, 1905, and the proposed findings of fact and conclusions-of law submitted by the defendant, with the determination thereon by Mr. Justice'Clarice, before whom the c,ase was triedyand the notice of the application for an interlocutory judgment served by the plaintiffs, upon the attorneys for the defendants, dated June 12, 1905, with the affidavits of Alfred EL Holbrook, Esq., verified the 21th day of June, 1905, in support of this application and the affidavit of Arthur O. Townsend, Esq., verified the 29th day of June, 1905, and the affidavit of Paul Gorham, verified the 28th day of June, 1905, in opposition thereto, and the decision of this court made on the 29th day of June, 1905.” It is not required that the decision should be resettled, as the decision should not recite the papers upon which the judgment was entered or the former proceedings in the action. The appellant to have ten dollars costs and the disbursements of this appeal. O’Brien, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred. ‘ * Order reversed and order entered as directed in opinion, with ten dollars costs and disbursements of appeal to appellant. Code Civ. Proc. chap. 12, tit. 4.— [REP.