The record on appeal does not show that there has been any decision in this case as required by section 1022 of the Code of Civi Procedure. The attorneys have apparently regarded the unsigned *554opinion of the learned justice at Special Term as a decision, and tipon that alone the clerk has entered the judgment which has been appealed from. The opinion, after a lengthy discussion of the facts and law, concludes as follows: “If I am correct in the conclusions reached, the plaintiff is entitled to the relief demanded in his complaint and to a permanent injunction restraining the municipality from enforcing the tax levied. Judgment is granted accord ingly, with costs.”
This is an action where the costs are in the discretion of the court, and the section of the Code alluded to provides that “ in an action where the costs are in the discretion of the court,, the decision or report must award or deny costs, and if it awards, costs, it must designate the party to whom the costs to be taxed are awarded.” Even if the opinion could properly be regarded as a decision, the clause quoted therefrom, which is all there is touching the question of costs, shows that there has been no compliance with this provision of the Code and that the court has not designated the party to whom the costs to be taxedare awarded. We think, however, that the opinion cannot stand in the place of the formal decision required by the Code. It is apparent it was not intended as such, and if it was intended by the justice as a “ short. decision ” he would undoubtedly have signed it and he' would have inserted therein proper directions concerning the entry of the judgment and in relation to costs. As it is, there has been no compliance with the section referred to as it stood, at the time of the trial, which was before the amendment thereto made by chapter 85 of the Laws of 1903, and which section required the decision to “ state separately the facts found and the conclusions of law,” or to state “concisely the grounds upon which the issues have been decided,” and in either case to “direct the judgment to be entered thereon.” (See Laws of 1895, chap. 946.) The judgment, therefore, has been entered ' without any decision upon which to base it. The case has been tried, but so far as this record show's lias not been decided. It is true that the justice has expressed the opinion that the plaintiff is entitled to the relief demanded in the complaint, but on that opinion a formal decision should have been prepared as required by the Code as a foundation for the judgment. The section of the Code cited requires that the decision when filed shall form part of *555the judgment roll, and the stipulation annexed to- the record is, that it contains a true copy of the judgment roll. No decision being found therein, we may assume that none has been filed and that the judgment, so far as this record shows, has been wrongly entered.
■ There are numerous authorities to the effect that in a situation like this the appeal is not in a condition to be heard upon the merits. (Hall v. Beston, 13 App. Div. 116 ; McManus v. Palmer, Id. 443 ; Burnham v. Denilce, 54 id. 132; Osborne v. Heyward, 40 id. 78; Peynolds v. ¿Etna Life Insurance Go., 6 id. 254; Shaffer v. Martin, 20 id. 304; Wood v. Lary, 124 N. T. S3.)
No motion having been made to vacate the judgment for want of a decision, we must reverse it and will do so, without costs to either party, and remit the case to the Special Term for decision.
All concurred.
Judgment reversed, without costs, and case remitted to Special Term for decision.