After the trial judge had handed down his opinion, deciding the case in favor of the plaintiffs, but before he had signed his formal decision, the defendants submitted to the trial judge proposed findings of fact and law (as they are designated), upon which the judge declined to pass further than as found in his formal decision, upon the ground that they were not sub*153mitted to him until after he had decided the issues and delivered his opinion to counsel.
After the formal decision had been signed, application was made at Special Term, at which the same judge presided who decided the case, to have him pass upon the proposed findings. The application was denied and from the order entered upon that decision this appeal is taken.
The case was submitted to the judge for decision in March, 1909, upon oral arguments and briefs, without any suggestion that any party would thereafter submit to him requests to find facts or to rule upon questions of law; nor was any such suggestion made until after the judge had delivered his opinion, as has been stated.
The defendants contend that the proposed findings were submitted under the provisions of section 1023 of the Code of Civil Procedure, and were timely submitted. That contention seems to rest upon a statement at the close of the opinion, stating that findings may be submitted, and what occurred thereafter. But the judge seems not to have so understood that statement.
What the judge seems to have had in mind was not to reopen the case to permit requests to find to be submitted, but to receive such suggestions from the attorneys for the respective parties as might aid him in putting into a formal decision what he had already decided. That practice was in vogue long before the enactment of the present Code of Civil Procedure and has been resorted to more or less by trial judges since the enactment of section 1023. in its present form, and is entirely independent of the course of procedure provided by that section.
The purpose of submitting requests under section 1023 is not only to protect the rights of parties upon appeal, but as well to aid the trial judge in determining the case. The opinion shows that the judge had considered the questions of fact as well as law, and had reached a conclusion thereon. TTis opinion is a very full and complete statement of the facts found, and an elaborate discussion of the law, and directs the judgment to be entered, although it is not a formal decision. Undoubtedly the judge had the right, after delivering his opinion, to reconsider his conclusions and revise his decision, or *154make an entirely different one, at any time before he had made the formal decision as required by the Code of Civil Procedure ,(§§ 1010, 1022), and to that end to permit requests to find to be submitted under section 1023. But, as I have stated, it does not seem to me that that was the purpose of the judge.
Furthermore, that section requires the statement to be in the form of distinct propositions of law or of fact, or both, separately stated, each to be numbered and so prepared with respect to its length and the .subject and phraseology thereof, that it may be conveniently passed upon. Its purpose is to aid the judge, and not to entrap him.
Of the one hundred and twenty-seven proposed findings, sixty-seven are denominated “Findings of Fact,” and sixty ‘ ‘ Law. ” Many of them are mere recitals of the evidence; others are covered by the formal decision, and the statement as a whole, I think, is not such as the section contemplates.
If the judgment is against the weight of the evidence, that may be reviewed in this court, and, if any of the findings are without any evidence to support them, they may be excepted to as a ruling upon a question of law (Code Civ. Proc. §§ 992, 993), and are reviewable upon appeal in the Court of Appeals as well as in this court.
If the defendants desired to submit requests to find, they should have done so seasonably. They made no case relieving them from their default, and no relief was asked upon that ground. They contended, and still contend, that the requests yvere seasonably made and in proper form. I think that position is not tenable..
The order should be affirmed, with ten dollars costs and disbursements.
All concurred, except McLennan, P. J., and Foote, J., who dissented in an opinion by Foote, J.