Opinion
November 9, 1942.
In connection with the settlement of the order directed by the decision herein handed down June 29, 1942 ( 264 App. Div. 429), it has been called to the court's attention that by affirming the judgment it has affirmed the conclusions of law therein contained, several of which, in the separate findings and conclusions, had been reversed. Since the trial court had found the facts and made conclusions of law separately, their incorporation in the judgment was improper. "The judgment should contain nothing but a statement that the court has made its findings of fact and conclusions of law, and then decree the relief to which the plaintiff was entitled. All of these recitals should, therefore, be stricken from the judgment." ( Beebe v. Mead, 101 App. Div. 500, 506.) The settling of their accounts, as presented, and the relief granted to respondents, was the ultimate right determined in the action, and not the legal predicates upon which said right to settle their accounts was based. On the court's own motion, therefore, the decision of this court handed down June 29, 1942 [ 264 App. Div. 429], is amended to read as follows: Judgment, in so far as appealed from, and order, unanimously affirmed, with costs to all parties filing briefs, payable out of the estate. Findings of fact 37 and 39, and conclusions of law VIII and X are reversed and new findings will be made, as set forth in opinion herein by Close, J. Paragraphs VII to XIII, inclusive, and paragraph XVII of the judgment are struck therefrom as forming no part of a proper judgment, without prejudice to the proceedings heretofore had herein. Lazansky, P.J., Johnston and Taylor, JJ., concur; Carswell, J., concurs in the result on the findings made and the grounds stated by the trial court; Opinion by Close, J., amended accordingly. Settle order on notice.