The question presented upon this record is whether that which an Official Referee denominated a "memorandum", following a trial before him as Referee to hear and determine, is a decision within the meaning of the Civil Practice Act. The concluding two paragraphs of the "memorandum" are as follows, and we quote them to indicate how serious was the deprivation to plaintiff of the opportunity to have findings of fact passed upon by the Official Referee:
"The evidence fails to warrant a finding of any willful withholding by the bank of knowledge pertinent to the sale of these mortgages, or to their value or desirability, which it was in duty bound to disclose, or of any misstatement of a past or existing fact. Without such a misrepresentation, or something equivalent thereto, there can be no fraud, and nothing for the other party to rely upon. The misrepresentation being missing here, plaintiff cannot recover, and it becomes unnecessary to inquire whether the other elements required to sustain an action for fraud and deceit have been established.
"If I am correct in the conclusions already reached, it follows that the complaint should be dismissed with costs. Judgment *Page 261 is so ordered. Prepare findings in accordance with this memorandum and send me for my signature."
Following the filing of the "memorandum" on May 2, 1943, attorneys for the plaintiff sent to the Official Referee the following letter:
"We would like to submit to you requests to find on behalf of the plaintiff. Since receiving your decision I have been busy preparing for a certiorari trial which commences next Tuesday and may run into the following week. It will probably not be until June 1st that I will be able to submit our requests. Also, I would appreciate it very much if the proposed findings of fact and conclusions of law be settled on notice, so that we might have opportunity of examining them.
Thanking you for sending back the exhibits which we received in due course. With kindest personal regards."
On May 10th, the Official Referee wrote in reply:
"Your letter just received. I note that you wish to submit requests to find in the Metropolitan Insurance Co. case. I think you should have that privilege, and will be glad to give it to you.
I also note that you want to have the defendant's findings settled on notice. I am sending a copy of this letter to Mr. Sutherland, and am asking him to serve a copy of his proposed findings on you, and if you cannot agree upon them, I will be glad to settle them. Let me know when it would be agreeable to you and Mr. Sutherland to settle any dispute between you, and I will try to take care of you at that time."
The Official Referee died on June 7, 1943, before proposed findings of fact had been served by defendant or prepared by plaintiff.
There can be but one decision, and it seems clear that the only inference which may be drawn from the reference by the Official Referee to the paper filed by him as a "memorandum" and the correspondence quoted is that the Official Referee did not intend the "memorandum" to be a decision but was directing the submission to him of a proposed formal decision. The Official Referee makes clear his intention at the time of filing his "memorandum" by indicating in his letter of May 10th that he proposed to "settle" the findings, prior to their incorporation in a decision, if the counsel could not agree upon them. The learned Official Referee labored under no impression that his judicial power had been exhausted and that judgment could be *Page 262 entered forthwith without further ado upon his "memorandum."
The intent of the Official Referee is further made clear by the affidavit of counsel for plaintiff, submitted in support of his motion to restore the case to the calendar, which stands uncontradicted:
"After the evidence had been closed on December 3, 1942, the said referee directed on the record that briefs be exchanged between the parties, and that the case be orally summed up on approximately March 1, 1943. Prior to the placing on the record of the dates on which briefs should be exchanged and the case orally summed up, there was considerable discussion on the subject off the record. During this discussion deponent asked Judge EDGCOMB [the Official Referee] whether he wished to have requests and findings submitted with the briefs. He indicated that the matter of submitting findings and requests should be left until a later date."
The learned Official Referee knew well from his long experience the distinctions and differences among memoranda, opinions and decisions. The learned Official Referee never intended thereafter to file a "memorandum" which would deprive counsel of the opportunity afforded by law "to submit findings" before the case was "finally submitted", and such a distinguished lawyer and jurist would never request submission of findings "in accordance" with his "memorandum" if he had intended that judgment should be entered by the clerk before there was opportunity for him to sign such findings.
The "memorandum" would constitute a "decision" if it appeared that the Official Referee intended that the papers should be his final determination of the issues and of fact submitted to him, and that a judgment might be entered by the clerk as directed therein, "on filing the decision or report" in accordance with rule 198 of the Rules of Civil Practice. The record of the proceedings discloses, it seems to us, that the contrary was the intention of the Official Referee.
The judgment appealed from should be reversed, with costs, and a new trial granted.
DESMOND, THACHER and DYE, JJ., concur with LEWIS, J.; CONWAY, J., dissents in opinion in which LEHMAN, Ch. J., and LOUGHRAN, J., concur.
Judgment affirmed. [See 294 N.Y. 962.] *Page 263