Wilkinson v. State

• Citation: 192 N.Y.S.2d 962,9 A.D.2d 859
• Decision Date: 11 November 1959
• Docket Number: No. 30979,30979
• Parties: Charles N. WILKINSON, Appellant, v. STATE of New York, Respondent. Claim
• Court: New York Supreme Court Appellate Division

Page 962

192 N.Y.S.2d 962

9 A.D.2d 859

Charles N. WILKINSON, Appellant, v. STATE of New York, Respondent.

Claim No. 30979.

Supreme Court, Appellate Division, Fourth Department.

Nov. 11, 1959.

Ferdinand D. Tomaino, Utica, for appellant.

Louis J. Lefkowitz, Atty. Gen. (George H. Rothlauf, Albany, of counsel), for respondent.

Before McCURN, P. J., and KIMBALL, WILLIAMS, GOLDMAN, and HALPERN, JJ.

PER CURIAM.

The claimants-appellants are husband and wife. The Court of Claims made an award to the passenger wife and dismissed the claim of the driver-husband. The husband has appealed on the ground that the holding of the court that the claimant was guilty of contributory negligence is against the weight of evidence. We are confronted, upon this appeal, with a failure of the trial court of make adequate findings of fact so as to enable this court to determine whether the findings should be approved or disapproved. In accordance with the practice of the Court of Claims, the claimants and the State duly submitted proposed findings. The Trial Judge, in his memorandum decision, 14 Misc.2d 616, 178 N.Y.S.2d 55, 58 stated that the requests by both parties were 'not acted upon since the requests consist almost entirely of a restatement of all the evidence in the record rather than a statement of ultimate and essential facts.'

We have heretofore expressed the opinion that the proper practice, where findings have not been waived by the parties, is that the trier of the facts should pass upon the proposed findings. Condello v. Stock, 283 App.Div. 400, 128 N.Y.S.2d 357; Millett v. Slocum, 3 A.D.2d 981, 162 N.Y.S.2d 681. Where the trial court has not followed this practice, the appellate court must look solely to the opinion or memorandum decision of the trial court for a statement of the facts found upon which the judgment appealed from rests.

While this court may make new findings, we deem it inadvisable to do so in the absence of knowledge as to what facts were found by the trial court. In the cases before us, there was a sharp issue as to the contributory negligence of the claimant-driver. The trial court's memorandum specifically states that there was a 'sharp conflict in the evidence as to the light conditions.' We are not informed as to what testimony the court believed and as to what he determined the conditions to be. There is only the conclusion that the claimant-driver neglected his duty of ordinary care and that such neglect was a contributing cause of the accident. The factual situation in the case of Karrat Bros. & Co. v. State of New York, 3 N.Y.2d 993, 169 N.Y.S.2d 909, cited by the court, is quite different from the situation presented by this record. In the case of the passenger-wife, the claim was for personal injuries, pain and suffering and...