Lazarus v. Metro. Ry. Co.

• Decision Date: 16 April 1895
• Citation: 40 N.E. 240,145 N.Y. 581
• Parties: LAZARUS et al. v. METROPOLITAN RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 581

40 N.E. 240

LAZARUS et al.

v.METROPOLITAN RY. CO. et al.

Court of Appeals of New York.

April 16, 1895.

Appeal from supreme court, general term, First department.

Action by Sarah Lazarus, individually, and others, against the Metropolitan Railway Company and others, for an injunction and damages. From a judgment of the general term (32 N. Y. Supp. 48) affirming an order denying a motion to send back the referee's report, and to vacate the same, defendants appeal. Affirmed.

REPEAL OF STATUTE-EFFECT-REMEDY IN PENDING ACTION.

Code Civ. Proc. s 1023, provided that either party might submit a statement of the facts he deemed established by the evidence, and of rulings on questions of law he desired the court or referee to make, and that the court or referee should note in the statement the manner in which each proposition was disposed of Held, that since a law changing procedure applies thereafter to cases pending unless such are specially excepted, and since the right to have the court or referee note the disposition of the propositions was not accrued or accruing, within the statutory construction act of 1892, s 31, declaring that the repeal of a statute shall not impair any accrued or accruing right, Laws 1894, c. 688, repealing Code Civ. Proc. s 1023, absolves the referee from noting the disposition of propositions in a statement submitted to him before the repeal. 32 N. Y. Supp. 48, affirmed.

Brainard Tolles, for appellants.

Nelson S. Spencer, for respondents.

ANDREWS, C. J.

This is an equity action, and was referred to a referee for trial and decision by an order entered May 27, 1893. The evidence was taken, and the case was submitted to the referee for decision, March 22, 1894. On the same day the defendants submitted to the referee proposed findings of fact and conclusions of law. The referee's time in which to make his decision was, upon his request, extended by stipulation to October 27, 1894. On the 22d day of October, 1894, he made and delivered his report in favor of the plaintiffs, stating generally the grounds of his decision. Intermediate the submission of the case to the referee and the making of his report, namely, on the 12th day of May, 1894,¹ the legislature repealed section 1023 of the Code of Civil Procedure. That section authorized the attorney of either party to an action tried before a court or referee, before the cause is finally submitted for decision, or within such time afterwards, and before the decision, as the court or referee may allow, to submit a written statement of the facts which he deemed established by the evidence, and of rulings upon questions of law which he desired the court or the referee to make. The section then declared: ‘At or before the time when the decision or report is rendered, the court or referee must note in the margin of the statement the manner in which each proposition has been disposed of, and must either file or return to the attorney the statement thus noted.’ The referee did not note on the statement submitted by the attorney for the defendants the disposition of the propositions contained therein, and thereupon the defendants moved for an order requiring him to do so. The court at special term denied the motion, and from the order there made the defendants appealed to the general term, where the order was affirmed, and from the order of affirmance they appeal to this court.

The only question is whether the repeal of section 1023 after the case was submitted to the referee for decision, and after the defendants had submitted proposed findings of fact and law, operated to release the referee from the duty imposed by that section to note his disposition of the several propositions presented by counsel on the statement submitted. The learned counsel for the defendants rests upon the general rule that statutes are to be construed prospectively, and not retrospectively, unless either by express words or necessary implication a different intention appears. The further ground is taken that the right of the defendants to have the referee pass upon the proposed findings accrued upon the submission of the statement, and that such right is saved from the operation of the repealing act by section 31 of the statutory construction law of 1892, which declares that the repeal of a statute ‘shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected.’ It is incumbent on the defendants, as the first step in the argument based on the general rule adverted to, to show that, if the repeal of section 1023 is held to relieve the referee from the duty...