Opinion
February 4, 1960
Appeal from the Niagara Equity Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Judgment unanimously reversed on the law and facts, with costs to the appellant, and a new trial granted. Memorandum: The trial of this separation action was completed and the trial court reserved decision. At a later date a memorandum was handed down deciding "that the motion for judgment in his favor by the defendant is granted." The court thereafter signed a judgment dismissing the complaint on the merits. It is difficult to determine from the memorandum the basis of the court's decision. If the dismissal of the complaint was upon the law the action was erroneous. (Cf. Kazansky v. Bergman, 4 A.D.2d 79, 85.) Inasmuch as the court in its memorandum recited and weighed the evidence of the respective parties it seems more likely that the dismissal was upon the facts. If this is so then the memorandum does not contain adequate findings of fact that may be reviewed by this court.