(dissenting in part). In my opinion the cause should be remitted to the Special Term for decision of the questions which the trial justice failed to decide.
The appeal is from an interlocutory judgment which leaves undetermined almost all the issues tendered by the pleadings. These the justice at Special Term declined to decide for the reason, as stated in his opinion, that he felt "unable to do so on the record before him. That, however, was no sufficient reason for failing to decide the case. (Stokes v. Stokes, 87 Hun, 152; O’Brien v. Bowes, 17 N. Y. Super. Ct. 657.) The court failed to make findings of fact on most of the issues, and the judgment which has been entered also fails to determine the rights of the parties.
It is now suggested that this court should undertake to determine the questions of fact which the Special Term has failed to decide. Should we do so, it would not constitute the exercise of appellate jurisdiction over the action of the Special Term but would be an exercise of original jurisdiction concerning issues which have never been decided by any trial court. (Compare Feist v. Fifth Avenue Bank, 280 N. Y. 189.)
*596It is the settled rule that in the absence of findings of fact by the trial judge, as required by section 440 of the Civil Practice Act, the cause must be remitted to him for further disposition even where his conclusions are expressed in an opinion and by a judgment. (Minner v. Minner, 238 N. Y. 529; Ventimiglia v. Eichner, 213 id. 147; Smith v. Geiger, 202 id. 306; Gilman v. Prentice, 132 id. 488; Wood v. Lary, 124 id. 83; Bridger v. Weeks, 30 id. 328; Kent v. Common Council, 90 App. Div. 553; People ex rel. Havron v. Dalton, 77 id. 499; Shaffer v. Martin, 20 id. 304; Hall v. Beston, 13 id. 116.) How much more must this be true where the findings, the opinion and the judgment demonstrate that on most of the issues the trial judge has made no determination whatever.
The judgment should be reversed and the cause remitted to the Special Term for further decision.
Judgment reversed, with costs, and judgment directed for the defendant directors dismissing the complaint on the merits, with costs. Settle order on notice reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.