Mike Mario, Appellant, v. May De Oteris, Respondent

Mike Mario, Appellant, v. May De Oteris, Respondent. [MAJORITY] The record discloses that at the conclusion of the evidence the case was finally submitted to the trial court, without request for permission to submit findings or requests to find. No decision was made until upwards of three weeks thereafter. Under such circumstances, section 439 of the Civil Practice Act has no application. However, since the judgment in favor of defendant was on the merits, and not a nonsuit, a decision, stating the facts which the trial court deemed essential, was required. (Civ. Prae. Act, § 440; Aufiero v. Aufiero, 222 App. Div. 479; Murphy v. Murphy, 223 App. Div. 701; Minner v. Minner, 238 N. Y. 529.) We are unable to determine, on the basis of the decision in the record, what facts the trial court deemed essential, or the allegations of the complaint as to which the trial court concluded that the plaintiff had not sustained the burden of proof. A new trial is not required, but a proper decision is necessary as a basis for the judgment appealed from. Since the case is remitted, and while we do not so direct, the court at Special Term may, if so advised, consider and pass upon the findings and requests to find heretofore submitted. Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ., concur.