Smith v. Geiger

• Decision Date: 30 May 1911
• Parties: SMITH v. GEIGER.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 306

95 N.E. 706

SMITH

v.GEIGER.

Court of Appeals of New York.

May 30, 1911.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Jeffrey Smith against William Geiger. From a judgment of the Second Appellate Division (118 N. Y. Supp. 1143) affirming a judgment for defendant, plaintiff appeals. Reversed and remitted.

This action was brought by a real estate broker to recover the compensation alleged to be due him from the defendant for his services in procuring a purchaser of certain real estate in the town of Babylon, county of Suffolk. The complaint alleges that the defendant employed the plaintiff as a broker to find and procure a purchaser, and that the plaintiff did find and procure one, who entered into contract accordingly. He demanded judgment for the sum of $364.68, alleged to be the reasonable and usual commission in such cases. The defendant by his answer put at issue all the material allegations of the complaint. A judgment entered dismissing the complaint, with costs, was affirmed by the Appellate Division, one of the justices dissenting, and the plaintiff appealed to this court.

Sidney H. Swezey, for appellant.

Percy L. Housel, for respondent.

VANN, J. (after stating the facts as above).

[1] The issues in this action were duly referred to Clinton M. Flint, Esq., to hear and determine, and the case was tried and submitted to him for decision. He has made no report as yet, although judgment has been entered in favor of the defendant. He wrote a brief opinion and signed it as referee, stating that he was unable to find from the evidence that the plaintiff was the procuring cause of the sale and giving his reasons for reaching this conclusion. He found no facts therein, however, and gave no direction for judgment. A paper appears in the judgment roll headed, ‘Plaintiff's requests to find,’ which recites the reference to Mr. Flint and states that: ‘I, Clinton M. Flint, referee, do hereby make and find the following findings of fact and conclusions of law with respect thereto.’ Then follow 19 findings of fact with four conclusions of law, underneath each of which is written, ‘Found, C. M. F.,’ or ‘Refused, C. M. F.’ The final conclusion of law as requested is ‘that the plaintiff is entitled to recover from the defendant the sum of $364.68 with interest.’ Underneath this is written, ‘Refused, C. M. F.’ There is also another paper headed ‘Defendant's requests to find,’ which states that ‘the defendant requests the court to find as facts,’ and then follow 35 separate statements of fact, and underneath each of these is written, ‘Found, C. M. F.,’ or ‘Refused, C. M. F.’ Three conclusions of law were requested, each one of which was marked, ‘Found, C. M. F.,’ the third being ‘that the defendant is entitled to judgment upon the merits,’ but there was no direction for judgment. Other than these requests to find thus marked by the initials of the referee there is nothing in the record to authorize the entry of judgment. The clerk, however, entered a judgment, which after reciting that the case had been duly referred and that the referee had made and filed his decision directing that the defendant have judgment on the merits, dismissed the complaint, with costs.

Section 1019 of the Code of Civil Procedure provides for a ‘written report,’ and section 1022 requires that ‘the decision of the court or the report of a referee upon the trial of the whole issues of fact must state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment roll.’ We find in the record no decision such as this section requires, but simply an opinion and the requests of both parties with the dispostion thereof by the referee as required by section 1023 of the Code. There was no direction for the entry of judgment dismissing the complaint on the merits, with costs, although judgment was entered by the clerk in that form.

[2] Moreover, the requests were not signed by the referee, except with his initials, and those proposed by the defendant contained nothing by way of recital or otherwise to show whose initials they were or in what capacity they were attached. The referee evidently did not intend that judgment should be entered upon the requests as disposed of by him, but that the attorney for the prevailing party should prepare formal findings and present them to him for his official signature. The general practice requires this; and, while the Code does not in terms say that the referee must sign the decision by subscribing his name, the intention of the Legislature in that regard is plainly to be implied.

[3] A report in writing must be authenticated by the signature of the referee, and mere initials are not a signature in legal proceedings. The surname is an essential part of an official signature, preceded either by the initials or by the entire given name. It would be loose and unsafe to allow the use of mere initials in the place of the usual signature to authorize the entry of judgment for hundreds of thousands, or even for millions of dollars. While the decisions of the appellate courts are not usually signed by the judges in any way, they are handed to the clerk in open court and thereby authenticated most completely. The report of a referee, however, and the decision of the whole issues of fact and law after the trial of a case by the court without a jury, are not handed down in open court, and should be authenticated by the official signature at length. It is true that in the transaction of certain kinds of business initials are sufficient to satisfy the law. Thus, signing by the initials of the party to be charged has been held to comply with the statute of frauds. Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 14 L. Ed. 493;Sanborn v. Flagler, 9 Allen (Mass.) 474; Phillimore v. Barry, 1 Campb. 513. So it was held in Palmer v. Stephens, 1 Denio, 471, that one may become liable as maker of a note by signing the initials of his name thereto, intending thereby to bind himself, but this case has not escaped criticism . Sheffield v. Ladue, 16 Minn. 392 (Gil. 346), 10 Am. Rep. 145. The initials of the name of the holder of a check written on the back of it were held in an early case enough to charge him as indorser. Merchants' Bank v. Spicer, 6 Wend. 443. The signing in these cases, however, was by private individuals in the transaction of private business, and we think that...