Opinion
December Term, 1902.
Alexander H. Geismar, for the appellant.
James McKeen, for the respondents.
This case must be sent back to the judge before whom it was tried in order that he may make and file a decision. The proceeding is based upon an alternative writ of mandamus. The Code of Civil Procedure provides that an issue of fact, joined upon such a writ, must be tried by a jury unless a jury trial is waived or a reference is directed by consent of the parties. (Code Civ. Proc. § 2083.) In the present case a jury trial was waived, and the issues were tried before a judge, who determined them in favor of the respondents; and made a final order dismissing the writ. The appeal papers, however, indicate that he omitted to make and file a decision as the basis of this final order. We are of opinion that such a decision is requisite. Section 2082 of the Code of Civil Procedure prescribes that the proceedings upon an alternative writ of mandamus, after issue is joined, are, in all respects, the same as in an action; and section 2084 directs that upon the trial of an issue of fact, joined upon an alternative writ, the verdict, report or decision must be returned to the Appellate Division or the Special Term, as the case requires. When, therefore, the issues are tried before a judge, instead of before a jury, they are to be decided in the same way as the issues in an action; that is to say, by making and filing findings, or a short decision, as prescribed in section 1022 of the Code.
Where the requisite findings or decision have been omitted upon the trial of an action and the case on appeal has disclosed such omission, it has been the custom of this court to remit the case to the trial judge, in order that the requisite decision may be made nunc pro tunc. ( Hall v. Beston, 13 App. Div. 116; Shaffer v. Martin, 20 id. 304.) The same course should be pursued in the present case.
All concurred.
Proceeding remitted to the trial judge for decision.