This court has no jurisdiction to hear this appeal upon the record now before us and the appeal should be dismissed.
The reasons for this conclusion I will now state in as brief a manner as possible.
The jurisdiction of this court is limited to questions of law arising upon settled facts or upon exceptions. Unless the facts are settled by the verdict of a jury or the findings of some court it is not within the province of this court to grope through the evidence and pick up a statement or a circumstance here and there and find the facts for itself like a court of original jurisdiction. If no facts have been found by the courts below or any conclusions of law stated, there is nothing for this court to examine. This court cannot pass upon the appeal in this case without resolving itself into a trial court for the determination of the facts. It must either take to itself the powers of a trial court or assume the functions of a jury, and that it is prohibited from doing. *Page 249
This action was brought to recover upon a policy of insurance whereby the New York Lloyds insured the plaintiff's property to the extent of fifteen hundred dollars against destruction by fire. The defendant stands in the place of and represents the insurers. The pleadings in the case presented questions of fact and incidentally questions of law to be determined, none of which have yet been determined in such a manner as to authorize this court to review the case. The situation is this: The parties went to trial upon the pleadings before the court and a jury and a trial was had. At the close of the trial the learned judge directed a verdict in favor of the plaintiff for $116. There was no exception taken to this direction and no request to submit any question to the jury. Subsequently, on a motion for a new trial, he set aside the verdict so directed and directed a new trial; so that up to this point it is very plain that nothing had been determined. The parties were left in just the position that they were in before the trial commenced.
But the plaintiff appealed to the Appellate Division from the action of the learned trial judge in setting aside his own decision directing a verdict. That appeal was heard and the learned court below reversed the order of the learned trial judge setting aside the verdict which he had himself directed and denied the motion for a new trial; thus leaving in force the original direction of a verdict for the plaintiff by the learned trial judge. It is very apparent, therefore, that not a single fact necessary to the decision of this case has yet been found, and as already stated, this court can only pass upon the case by groping through the record to find from the evidence what the real facts are. In other words, it can get at the facts only by assuming the functions of a trial court clothed with the power to determine the issues. It is necessary in order to decide the case to determine, in some conclusive way, either by a verdict or some specific finding, what the facts are.
There can be no doubt that it was of the first importance in this case to determine where the contract of insurance was *Page 250 made and it was made at the place where delivered. There is no proof whatever as to where it was delivered, whether by mail or otherwise. The plaintiff's principal office was in New Jersey and whether it was delivered at the principal office or at some other office is a fact not found. But it is said that inasmuch as the policy is headed "Home Office, New York City," and subscribed at the city of New York it can be presumed that it was there delivered. Now, that is a presumption that possibly might have some weight with a jury or a trial court, but this court cannot say that it amounts to a conclusive finding of fact, upon which this court can act. The caption of a contract, whatever it may be, or the date or the place where signed by one of the parties, does not prove, by any means, conclusively the place where the contract was made. The contract was not signed nor executed by the plaintiff and it became operative only when delivered and the place of the delivery is an important question of fact in this case and this court is not clothed with the functions of determining the fact from evidence.
So it was also an important question of fact in this case to determine whether the plaintiff was a stock corporation or something else; but it is said that it appearing from the evidence that it was engaged in the business of manufacturing fertilizers, that that proof is equivalent to a conclusive finding that it was a stock corporation. Not at all. A stock corporation is defined by section three of the General Corporation Law as a corporation having a capital stock which is authorized by law to distribute dividends upon surplus profits. The mere fact that the company may have issued certificates of stock does not prove that it was authorized by law to make dividends. We have not the plaintiff's charter before us or any of the certificates issued, and, hence, we can have no conclusive knowledge as to whether this is a stock corporation or not. Here again it is proper to say that this circumstance would be very proper for a jury or a trial court to consider and might be held to be very persuasive in determining the fact, but the difficulty is this court does not possess the powers *Page 251 of a jury or of a trial court. So also it was an important fact to determine whether the plaintiff had ever procured the receipt required by the Tax Law. In other words, whether it had paid the tax or not. It could not pay the tax until it was assessed, and how do we know whether it ever was assessed. The defendant alleges that it was not paid, but there is no conclusive finding in the case that it ever was assessed or the time when it was assessed, or the amount of the tax, and the circumstance that the defendant alleges it in its answer does not prove it. These were all matters of fact which this court is seeking to determine for itself from the evidence.
The verdict directed against the defendant was for $116, and if it desires to resist its liability to pay that small sum upon technical defenses that have no relation to the merits then it ought to be required to pursue correct practice and not ask this court to become a court of original jurisdiction to read the evidence and find the facts.
It is very plain to my mind that the defendant has neglected to pursue the proper practice in order to obtain a hearing in this court. That practice is described very clearly in section 1339 of the Code. It is there enacted that where an appeal is brought to this court in a case like this, and has been perfected, a special case must be made by or under the direction of the Appellate Division. That special case must contain a concise statement of the facts and questions of law arising thereon and the determination of those questions by the Appellate Division. It was for the defendant to prepare that special case and have it settled before it could properly come here. This case, when settled by the court below, is to be annexed to the judgment roll, and when that is done this court has jurisdiction to hear the appeal, but not until then. Whatever may be the probative force of the evidence in the record with respect to the facts, whether conclusive or otherwise, makes no difference. We must take the facts and the questions of law decided, not from the evidence, but from the case which the Appellate Division is required to send here. *Page 252 That is what this court has held in at least three unanimous decisions. (People v. Featherly, 131 N.Y. 597; Cowenhoven v. Ball, 118 N.Y. 231; Jaycox v. Cameron, 49 N.Y. 645;Reinmiller v. Skidmore, 59 N.Y. 661.) The learned trial judge did not make the direction subject to the opinion of the Appellate Division, but it was subject to a review by himself, and such review was had. It makes no difference whether the directed verdict was disturbed by the trial judge himself or by the Appellate Division. The clear purpose of the section was to enable this court to exercise its legitimate powers, namely, the decision of questions of law arising upon exceptions or upon settled facts, and to relieve this court from the necessity of reading the evidence in a record in order to find facts upon which to apply the law. I am, therefore, in favor of dismissing the appeal, with costs.
CULLEN, Ch. J., GRAY, VANN, WERNER and WILLARD BARTLETT, JJ., concur with CHASE, J.; O'BRIEN, J., reads dissenting opinion.
Judgment reversed, etc.