This proceeding was instituted to recover damages for the death of plaintiff's intestate claimed to have been caused by the negligence of the state. Thus far she has sustained a determination in her favor on the theory that by legal findings, proper in form, sufficient in substance and supported by necessary evidence, it has been established that her intestate met his death as the result of the negligence of the defendant and without any negligence on his part. It seems to me that this theory is confronted by difficulties which it cannot survive.
There are no findings properly signed and made.
In Ostrander v. State (192 N.Y. 415) we held that on a trial of issues of fact the Court of Claims was required to state separate findings of fact and conclusions of law in conformity to the practice of the Supreme Court as prescribed by section 1022 of the Code of Civil Procedure. Since that decision was made, by chapter 856 of the Laws of 1911, section 263 and various other sections of the Code of Civil Procedure have been so amended as to substitute a Board of Claims for the Court of Claims. I do not find, however, that any such amendment of the Code has been *Page 146 made as requires us to apply to the practice and procedure of the Board of Claims on this point any different rule than that which we applied to the Court of Claims in the Ostrander case. In fact section 265 remains precisely as it was written at the time of the Ostrander decision without even the substitution of "Board" of Claims for "Court" of Claims, and prescribes that "except as otherwise provided in said rules and regulations (to be adopted by said Court or Board), or the Code of Civil Procedure, the practice shall be the same as in the Supreme Court." It was, therefore the duty of the Board of Claims on the trial of this claim to make proper findings of fact and conclusions of law. There is a superabundance of purported findings, three sets having been made, of which two are recited to be made by "the Court * * * upon the request of the claimant," and one set recites that it was proposed by the state. None of these findings, however, appear to have been signed and made by and in the name of the Board of Claims through all or any one of its members, nor does any set appear to have been signed by all or a majority of the members of the Board of Claims. We simply find that many of the findings are separately marked "Found," "Refused," "J.J.R.," and it is assumed that the letters "J.J.R." are the intials of John J. Rooney, the chairman of the Board of Claims at the time the purported findings were made. It is so conclusively settled by this court that this was not a proper or sufficient manner in which findings should be made by said board that it is unnecessary to take time in discussing the question. (Smith v. Geiger, 202 N.Y. 306.)
But beyond the trouble just pointed out there is a still more substantial and serious objection to these purported findings and to the attempted determination of this claim. The claim in the aspect most favorable to the claimant involved close questions of fact. This is sufficiently indicated by the circumstance that on a former trial on substantially the same evidence as now presented the claim *Page 147 was unanimously dismissed by the Court of Claims as unsustained by evidence.
When the present trial and submission of the claim were completed Robert L. Luce was chairman of the board and Mr. Rooney was not even a member thereof. Some time after the submission of the case Mr. Luce was appointed judge in one of the courts of New York city and Mr. Rooney was appointed chairman of the Board of Claims in his place, and without having heard the evidence or taken part in the trial of the claim, he not only took part in its decision but apparently the predominating part. Of course this was entirely improper. I know of no principle and have found no statutory provision which permitted a member of this board who had not taken part in the trial of a claim to take part in and perhaps control the decision thereof.
It seems to me that these irregularities in the findings and decision of the case call for its reversal. It is suggested that they may be cured by remitting the claim to the board for decision and determination as was done in Smith v. Geiger (supra). If the membership of the board were the same now as when the claim was tried this doubtless might be done. But that is not the situation. The membership has changed, and in my judgment the course of remission cannot be pursued without leading to one of two results of which both will be prejudicial to the defendant and irregular.
If the claim shall be remitted for determination and findings by the board as at present constituted then the defendant will be compelled on a printed record to submit its case for decision to a court of which one member took no part in the trial, did not hear such witnesses as were sworn and has had no benefit from the arguments and discussion which we may assume then occurred.
I do not overlook the fact that on the last trial a large part of the claimant's evidence was given by reading testimony taken on the preceding trial under a stipulation *Page 148 which would have permitted the State to cross-examine the witnesses anew and which permitted the swearing of new witnesses as was in fact done. The parties of course had a right to do this. There may have been adequate reasons at that particular time which led them so to do. But because they did it then we have no right to compel them, and especially the appellant, to do it again before a different court. Whether or not this case is governed by Code, sections 46, 1, 263, the state cannot be thus compelled to submit the decision of its case to one who has not taken part in its trial. (Le Cocq v. Pottier, 65 Hun, 598, 600; Maicas v. Leony, 113 N.Y. 619, 621; Heerdegen v.Loreck, 17 App. Div. 515; Griffin v. Miner, 22 J. S. 46.)
The other course which might be ordered on remitting a case would be that it should be decided and proper findings be made by two members of the board who were also members when the claim was tried, but this I think would be objectionable.
There is in my judgment a question whether the parties can be compelled against their protest to submit to the decision of two commissioners without the participation of a third commissioner who has taken part in the trial. Whether this is so or not, on the facts disclosed by the record and the further fact that there is a difference of opinion in this court as to whether upon the evidence a recovery in favor of the plaintiff should stand, I think that this case should not be sent back to two commissioners to make a decision. The case should go back for a new trial before the commission as now constituted and for a decision and determination by them upon the evidence so presented.
For these reasons I think that the judgment appealed from should be reversed.
WILLARD BARTLETT, Ch. J., MILLER and SEABURY, JJ., concur with CARDOZO, J.; HISCOCK, J., reads opinion dissenting in part, and CHASE and HOGAN, JJ., concur.
Judgment accordingly. *Page 149