Oliver v. French , 82 Hun 436 ( 1894 )

MAYHAM, P. J.

This action was tried by a judge, who made and filed his conclusions of fact and law, none of which were excepted to on the trial. Upon such findings, the judge, after hearing the attorneys for the respective parties as to the form and substance of the decree to be entered in the action, made, signed, and filed the same, and judgment was duly entered thereon. Afterwards, on an order to show cause granted by the trial judge, a motion was made by the plaintiff to modify the decree upon the ground that the same did not conform to the findings of fact and law found by such trial justice, and the plaintiff asked on such motion that the judgment be so modified as to malee it conform to the facts and law found. The judge denied such motion, and from the order denying the same the plaintiff appeals. The only question, therefore, before ,us on appeal, to be considered, is whether or not the decree conforms substantially with the facts found.

No decision separate from the findings of fact and law seems to have been made by the judge. The objection is taken by the respondents that the order to show cause, which in this matter operates as a notice of motion, is so defective, in not stating the precise irregularity complained of, that the motion was for that rea-, son properly denied. Standing upon the order to show cause, alone, such objection is well taken-; but the appellant seems to rely upon the affidavit on which the order was granted to cure that defect. The order was granted, as appears on its face, upon the affidavit of one of the counsel in the case, who states that, from inspection of the findings of fact and conclusions of law, such judgment, inadvertently or otherwise, fails to conform in many particulars with the findings of fact and conclusions of law; and upon the printed case, which appears in this record to contain 92 pages of printed matter. If the judgment is not such as is authorized by the findings, it is an irregularity, and may be corrected on motion. Howland v. Howland, 20 Hun, 472; Ingersol v. Bostwick, 22 N. Y. 425. Rule 27 of the general rules of practice of this court provides that when a motion is for irregularity the motion or order shall specify the irregularity complained of. The judge at special term wrote no opinion, and the precise ground upon which it was denied does not appear. We do not think that the notice of motion or order to show cause, and affidavit on which it was made, specified the irregularity within the meaning of rule 27. The affidavit expressed the opinion and conviction of the affiant that the judgment failed to conform in many particulars with, the findings and conclusions of the trial judge. Is that such a specification of the irregularity as, under the rule, calls the attention of the judge at special term or this court specifically to the irregularity complained of? We think not. If the special term or this court were to examine the voluminous case,—affidavit, order to show cause, findings, and judgment,—and make an analytical examination of all of these documents, the court might not be able to reach the alleged irregularity aimed at by the affidavits and order, while a concise statement in the moving papers could easily have directed the attention of the court to the alleged irregularity, and thus secured a definite determination of the precise point upon which a review could be taken; and the exact point determined with definiteness and precision. Such was doubtless the object of the rule and policy of the law. As the case is presented, this court cannot determine .whether the special term disposed of the case upon the ground of the insufficiency of the motion papers, or upon the merits. In Lewis v. Graham, 16 Abb. Pr. 126, it was held that where the irregularity is not specified in the notice, and the motion is denied, the court on appeal may presume that the motion was denied on the ground of defect in the notice. Roche v. Ward, 7 How. Pr. 416; Baxter v. Arnold, 9 How. Pr. 445. In the case at bar the learned trial judge, after a full hearing of the parties, with his findings of fact and law and judgment before him, denied the motion. In the absence of any specific designation of the particulars in which the judgment and decree are at variance with the findings of fact and law made by the judge, I think his order denying the motion to modify the judgment must be affirmed. Order affirmed, with $10 costs and printing disbursements, without prejudice to a renewal of the motion, on additional papers in compliance with rule 37, above referred to, on payment of costs of this motion.

HERRICK, J., concurs. PUTNAM, J., concurs in result.