This action was brought to dissolve a marriage contract on the ground of fraud. The defendant made default in pleading, and did not appear at the trial or on the argument of the appeal.
The trial court, after hearing the proof offered by the plaintiff, rendered judgment dismissing her complaint upon the merits, from which she has appealed. The learned trial justice sitting at Special Term made no decision, and there is, therefore, no basis for the judgment. Where the whole issue is one of fact, and is tried by the court without a jury, a decision must be made before a judgment can be rendered. (Code Civ. Proc. § 1228.) This is absolutely necessary; otherwise, there are no facts to sustain the legal conclusion drawn. (Deeley v. Heintz, 169 N. Y. 135.)
We are, therefore, unable to determine whether or not the court erred in rendering the judgment which it did, inasmuch as we are precluded from examining the case on the merits, and for that reason, *44we think, the judgment appealed from should be vacated and the matter remitted to the Special Term to the end that a decision may be made.
Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.
Judgment vacated and case remitted to the Special Term.