The plaintiff’s motion for a new trial was made more than twenty days after the final adjournment of the court at which the action was tried, and more than twenty days after the justice, before whom the action was tried, assumed, by his order of April 16, 1898, to set aside and annul his decision of said case. Assuming that the order of April 16, 1898, was properly made, and, apparently, neither party objected to it, and its validity is not questioned by this appeal, no decision of the case had been made. Certainly, from the date of said order, the parties were in precisely the same position as if no decision had been attempted. The oral statement of the trial justice at the close of the evidence was in no sense a decision.
Section 1010 of the Code of Civil Procedure provides: “ Upon a trial, by the court, of an issue of fact or of law, its decision in writing must be filed in the clerk’s office,” etc.
Section 1022 of the Code of Civil Procedure provides: “ The decision of the court * * * upon the trial of the whole issues of fact may state separately the facts found and the conclusions of law, * * * or the court * * * may file a decision stating concisely the grounds upon which the issues have been decided and direct the judgment to be entered thereon, which decision, so filed, shall form part of the judgment-roll.”
The question is presented by this appeal: In case a justice of the Supreme Court, before whom an issue of fact is tried, neglects to make and file a decision within twenty days after the court at which the trial is had adjourns sine die, what are the rights of the parties ?
Section 1010 of the Code of Civil Procedure is as follows: “ Upon a trial by the court of an issue of fact or of law, its decision in writing must be filed in the clerk’s office within twenty days after the final adjournment of the term where the issue was tried. If it is not so filed, either party may move, at a special term, for a new trial upon that ground. If the decision has not been filed when the motion is heard, the court must make an order for a new trial either absolutely or unless it is filed within a time specified in the order. If an order for a new trial is made or a contingent order for a new trial becomes absolute, the costs of the former trial abide the event.”
The language of the section is not ambiguous, nor is its meaning *358uncertain. The court must file a decision in writing within twenty days after the final adjournment of the court. If not, either party may move for a new trial. If no decision has been filed when such motion is heard, the court must make an order granting a new trial absolutely or specify a time in the order in which a decision will be made.
By the provisions of the section no unreasonable hardship is imposed upon the trial justice. In case no decision is made by him within twenty days after the final adjournment of the court, if a motion is made upon that ground for a new trial, he can make and file a decision before the time of the hearing of said motion. In case such trial justice should then be unable for any reason to make such decision, the section provides that he may, in the order denying a new trial, specify the time within which such decision will be made.- It would seem to be the purpose of the section to give the trial justice all reasonable opportunity to make a decision in any case tried before him, but also to prevent a trial justice from withholding a decision in any case indefinitely, and, perhaps, to the great detriment of either one or both of the parties.
Section 267 of the old Code (so called) of Procedure provided that: “ Hpon the trial of a question of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found and the conclusions of law separately, and upon' a trial of an issue of law the decision shall be made in the same manner, stating the conclusions of law. Such decisions shall be filed with the clerk within twenty days after the court at which the trial took place.”
Under that section of the Code it was held by a long line of authorities that the provision that “ a decision shall be filed within twenty days ” was merely directory. (Lewis v. Jones, 13 Abb. Pr. 427; Burger v. Baker, 4 id. 11; People ex rel. Cahoon v. Dodge, 5 How. 47; O’Brien v. Bowes, 4 Bosw. 657; Stewart v. Slater, 6 Duer, 83 ; Brinkley v. Brinkley, 56 N. Y. 192.)
The courts having decided that section 267 of the old Code (so called) was merely directory, the parties to the action were left in .substantially the same position as they were before the enactment of such section, and it was still within the power of the judge before whom an action had been tried to delay his decision indefinitely, *359and tlie parties liad no redress. To relieve the parties from such embarrassment section 1010 of the Code of Civil Procedure was enacted. Considering the language of the section, as compared with the language of section 267 of the old Code, the conclusion is irresistible that the Legislature intended that the provisions of section 1010 should be mandatory and not. directory, otherwise no intelligent reason can be assigned for the change in the language of the sections.
We think that the provisions of section 1010 are mandatory, and that the court before whom an issue of fact is tried must, within twenty days after the final adjournment of the court at which such trial was had, file a decision of the issues involved -in such action, -and that, in case such court does not file such decision within that time, either party is entitled to make a motion for a new trial; and, in case the court does not make and file a decision before the hearing of such motion, the motion for a new trial must be granted, unless the judge before whom such motion is made specifies in the order denying the motion for a new trial a time in which such decision shall be filed.
Unless this be the correct interpretation of section 1010, the parties to a litigation are left in precisely the same position as they were under the provisions of section 267 of the old Code (so called), and are powerless to procure a decision to be made in any case .against the inclination of the judge before whom such action has been tried.
We think that the Legislature intended, and properly so, that a judge before whom a case had been tried could be compelled to make a decision of such case within a reasonable time, or permit it to be again tried.
In the case of Fleet v. Kalbfleisch (43 Hun, 443), which was decided by the General Term, second department, and which reveiwed an order granting a motion for a new trial, made upon the ground that no decision had been made in writing of the issues involved in the case within twenty days after the final adjournment of the court at which such trial was had, the order was reversed, upon the ground that the moving party was guilty of laches in not having made his motion within a period of ten years after the trial of said case, but the court said : “ Assuming that the section *360(1010) is mandatory, wherever an application thereunder is seasonably made, inexcusable delay will deprive a party of the right to an absolute or conditional order for a new trial on the ground that no-decision in writing has been filed, when that party has apparently acquiesced in the oral decision of the case.”
In the case of Village of Palmyra v. Wynkoop (24 N. Y. St. Repr. 824) it was said by the General Term-, fifth department; “The requirement of the Code (section 1010) is positive that ‘Upon a trial by the court of an issue of fact or of law, its decision, in writing, must be filed, in the clerk’s office, within twenty days after the final adjournment of the term where the issue was tried.’ ”
Without further reference to authority, it would seem clear that-the Legislature, by the enactment of section 1010 of the Code of Civil Procedure, intended to provide a means by which a judge’ before whom an issue of fact or of law was tried without a jury, could be compelled within a reasonable time to decide such case, or-to make an order by which a new trial could be had, unless within a. reasonable time a decision was made. . Section 26/i of the old Code-(so called) had been substantially annulled by the courts in holding-that the provisions of that section were directory only, and, therefore, that a trial judge might withhold his decision in any case for-such length of time after the final adjournment of the court at which such case had been tried as he might see fit.
To remedy this defect section 1010 of the Code of Civil Procedure was enacted, and we think it is mandatory, and that now, in case a decision is not made by any judge before whom an issue of fact is tried within twenty days after the final adjournment of the= court, either party has a right to move for a new trial upon that ground; and in case a decision is not made before the hearing of said motion, the court must grant a new trial, unless in the order-denying the motion for a new trial there is specified a time in which such decision shall be made and filed.
The order denying plaintiff’s motion for a new trial, not having specified a time in which a decision should be made and filed, was-improperly made, and, therefore, should be reversed, with ten dollars costs, and the motion of the plaintiff for a new trial should be-granted, with ten dollars costs of motion; and the judgment entered upon the decision of the justice, made after such motion was denied,. *361should be vacated and set aside, with costs to the appellant to abide the event.
Having reached this conclusion, it is unnecessary to consider the questions involved upon the appeal from the judgment.
The judgment and orders appealed from are reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment and orders appealed from reversed and a new trial ordered, with costs to the appellant to abide the event.