Opinion
March 8, 1939.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Certain findings of fact disapproved and reversed. Memorandum: The judgment sets aside a conveyance of real property. The decision contains a finding merely of the making of "false and fraudulent representations" over a period of three months prior to the date of the conveyance without the slightest intimation of the nature or content of the representations, and also contains findings as to the defendant's knowledge of the falsity of the representations thus wholly undefined and the reliance by plaintiff thereon in making the transfer. Requests by plaintiff as to the nature and content of the representations claimed to have been made by the defendant were not passed upon by the court and are, therefore, deemed to have been refused. (Civ. Prac. Act, § 439.) The findings in the decision are mere conclusions wholly lacking in fact to give them support. We, therefore, discover nothing in the decision upon which the judgment can be based. ( Davin v. Isman, 228 N.Y. 1.) The issue as to the making of representations such as the plaintiff claimed in his requests (which are deemed denied) was sharply contested. We feel that it would be best for the justice who sees and hears the witnesses to make the findings on this issue. We have, therefore, concluded to order a new trial. All concur. (The judgment is for plaintiff in an action to set aside the conveyance of realty on ground of fraud.)