#### Mary O. Simis, Resp’t, *v.*Daniel S. McElroy, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed April 17, 1891.)*

Appeal—Judgment boll.

The record on appeal in an equity action contained no findings signed by the justice, but contained a paper entitled in the supreme court, which contained conclusions of law, but which was unsigned. *Held,*that as there was no evidence that the trial justice ever signed any decision, as required by the Code, the appeal could not be considered.

Appeal from a judgment, entered upon a decision of the court without a jury.

*Daniel*Daly, for app’lt; *Sidney S. Harris,*for resp’t.

Van Brunt, P. J.

This action was brought to recover the purchase price remaining unpaid upon a contract for the purchase of real estate. The complaint alleging compliance by the plaintiff with her contract, by the tender of the deed which was •called for by the said contract.

The defendant, in his answer, admitted the contract and payment of $250 on account of the purchase price therein named, and denied each and every other allegation of the complaint.

And for a further answer, that the plaintiff could not give a good title to the whole of the premises, that he had spent $250 in examining the title, and suffered other damage, and demanded a judgment against the plaintiff for these damages.

The plaintiff replying to this affirmative defense set up what was substantially a general denial.

It seems to have been assumed by the parties that the issues thus raised should be tried at a circuit court held in and for this county before a jury, in which they were probably correct, but whether such issues were ever actually tried we cannot determine, as no findings signed by the justice whom it is alleged tried the cause are contained in the record. There is a paper called a decision, which is however unsigned by anybody and which is entitled in the supreme court, and according to which it is asserted .that the action was tried in the circuit court before a judge without a jury.

If the action was tried in the circuit court it could only be as a common law action and the only conclusion of law proper to be made would be to the same purpose as a verdict of a jury, had •the case been tried before a jury, viz.: that the plaintiff was entitled to recover from the defendant a sum certain, or that the defendant was entitled to recover from the plaintiff a certain sum or that the defendant was entitled to judgment dismissing the complaint upon the merits.

Instead thereof we find conclusions of law giving a judgment *4equitable in its nature and which a circuit court had no power to-make, having no equitable jurisdiction except so far as such jurisdiction may be necessary for the trial of equitable defenses to common law actions.

The postea follows these conclusions.

This practice is irregular and we cannot allow it to pass unnoticed. We cannot, however, consider this appeal upon the present papers because the record contains no evidence that the justice before whom the case purports to have been tried has ever-signed any decision as required by the Code.

The cause must be stricken from the calendar, in order that the’ parties may present a proper case. If the parties will have the record corrected they may resubmit the case even after the adjournment of the court, by handing the papers to the clerk.

Daniels and Lawrence, JJ., concur.