Opinion
April 25, 1949.
In an action to impress a trust on real property, based on defendant's alleged oral promise to convey to plaintiff, tried at Special Term without a jury, judgment was entered upon a decision by the trial court in which it was stated that plaintiff had "failed to establish the allegations of his complaint by a fair preponderance of the credible evidence." The decision contained no other statement of the facts which the court deemed essential, and granted judgment "in favor of defendant on the merits". Plaintiff appeals from the judgment, and from an order denying his application to have the court pass upon requests to find submitted by him after the decision of the action. Order affirmed, without costs. Judgment reversed on the law, without costs, and the action remitted to the court at Special Term for a proper decision, pursuant to section 440 of the Civil Practice Act. 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. Prac. 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.