I think that in reversing the orders in this case our action in no way conflicts with the provisions of the Constitution. The constitutional provision is (Art. VI, § 9): "No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court shall be reviewed by the Court of Appeals." We hold that a unanimous affirmance by the Appellate Division of a judgment based on findings of fact imports a unanimous determination that the findings of fact are supported by the evidence. We also hold that the constitutional provision applies to special proceedings as well as to actions and, therefore, in any special proceeding where there are findings of fact those findings are conclusive upon this court. But there are many special proceedings in which no findings of fact are made, but a mere decision is found. If we construe the constitutional provision as strictly limited to its language, the cases last mentioned would not fall within the provision at all. We have not, however, so construed it, but have applied the constitutional rule to special proceedings where an examination of the case showed that the order was based on the decision of questions of fact. It cannot, however, be extended to cases where it is apparent the decisions have proceeded on questions of law. Otherwise it would be impossible to review final orders in special proceedings where no findings of fact were made, because in nearly all such cases it is theoretically possible to imagine facts which justified the decisions below, *Page 547 although it is apparent that the decisions proceeded solely on questions of law. An inspection of the record in this case shows that the award was not based on any determination as to the value of the land taken free and clear from incumbrance, but on the theory that the conveyances of the plaintiff had incumbered the land so as to practically destroy its value. Whether those conveyances had the effect given them presents a question of law.
Holding this view as to what the appeal presents, I concur in the opinion of CHASE, J.