This is an appeal from an order made at a special term held in Monroe county, denying a motion made by Messrs. Eield and Shearman, as attorneys for “ Church and others,” to set aside all proceedings taken upon the “ alleged judgment,” entered 31st December, 1869, to require the receiver, Eobert L. Banks, to retake possession of the property of which he was originally made receiver, and the persons to whom he has surrendered it to restore possession to him or some other receiver, and to vacate and set aside the alleged judgment and the decision therein mentioned, as irregular, or, in the alternative that so much of the motion be denied, then that the said “ alleged judgment” be set aside, and the said decision and findings be sent back to the judge who tried the cause, for re-examination and re*206settlement, and for other and further relief, &c. The opinion below is reported 8 Abb. N. S. 122. It is not entirely certain, from the papers before us, in behalf of what parties the motion was made, as the notice of motion was given by Messrs. Field and Shearman, as attorneys for the defendants Church and others, and nothing appears in the papers to .show for what other defendants, besides Church, Messrs. Field and Shearman had appeared as attorneys.
The appeal, however, was argued upon the assumption on both sides that the motion was made in behalf of the persons claiming to be directors of the railroad company, who had assumed to elect Walter S. Church, Esq., as president, and who on the argument were, and herein for convenience will be, styled the Church directors, and was resisted by those claiming to be directors of the company, who had assumed to elect Joseph H. Ramsey, Esq,, as president, and who were, and will be herein, styled the Ramsey directors. Both sets oi; directors, with the presidents by them respectively elected, were parties defendants to the suit. The appeal before us, as appears from the notice of appeal, was taken by the Church directors and one A. J. Phelps. The complaint in the action is not among the papers submitted to us, and from the papers before us we are unable to discover the connection of Mr. Phelps with the case. But it was not claimed upon the argument that he had any interest or right, other than such as was asserted in behalf of the Church directors.
These rival sets of directors had been contending for the possession of the franchise and property of the road, and not only were a great variety of suits commenced, and injunctions issued, in the interest of these respective parties, but the public peace was seriously endangered and even disturbed by their controversies. Under these circumstances the governor of the State, at the request of *207both parties to the controversy, and in the interests of public order, took, by his agents, temporary possession of the road and its property, and therefore the attorney-general, upon the request of the governor, instituted this action, the main object of which was to determine whether either, and if either, then which of the rival sets of directors had been lawfully chosen, and was entitled to the possession of the franchises and property of the company.
The action was tried before Justice E. Darwin Smith, at the Monroe special term, held on the 29th day of November, 1869. The said justice delivered an elaborate opinion in the case, which it appears was published in the Rochester morning papers of December 31st, 1869, and on that day the findings of fact and conclusions of law arrived at by the said justice, and stated by him in writing, were duly filed, and the judgment or order complained of was entered on the- same day, at 2 o’clock and 30 minutes, p. m. By this judgment or order the Ramsey directors were declared to have been duly elected, and to be the lawful directors of the company. It was ordered that certain of the defendants recover their costs of the action against the Church directors; that it be referred to Hon. Samuel L. Selden to pass the accounts of the receiver,' and to report what would be a proper extra allowance in the action, and to which of the defendants it should be paid; “ to settle such other matters of detail as may be necessary to carry this judgment into effect;” and that the Ramsey directors be let into immediate possession of the property and effects of the road company; and that Mr. Banks, the receiver, transfer to them all the property and assets of the railroad company in his hands, retaining out of the moneys in his hands as such receiver, his fees, expenses and charges to be adjudged by the referee.
The special term which made the order now appealed from, as a part of the order, directed the suppression of *208certain affidavits on both sides, and a certain certificate used on the motion.
The points insisted upon by the counsel for the appellants will, for convenience, be considered seriatim in the order in which they are presented by their brief.
1st. It is claimed that it was the duty of the successful party, after making a draft of their judgment, to submit it to the adverse party to propose amendments, and that the omission to do so renders the judgment irregular. We do not understand that the service of a draft of judgment and the other proceedings referred to is required by any present provision of law or rule of court, or has been usual under the present practice. Under the former practice of the Court of Chancery, it was customary, in cases where the decree was very special in its character, to .serve a copy of the proposed decree upon the opposite party, with notice of settlement before the register. This practice apparently grew out of the fact that there was no other guide to the form of the decree than the mere minute of the decision, or the opinion delivered by the court.
In case the register did not understand the decision, he was in that case only to apply to the court for information.
But it does not appear that it was the practice of that court to set aside a decree merely upon the allegation that a draft had not been previously served and a settlement made on notice.
There was no specific finding of all the facts or conclusions of law accessible to the register or the parties. As the Code now provides that the justice who tries the cause shall give a decision in writing, which shall contain a statement of the facts found and the conclusions of law separately, and that “judgment upon the decision shall be entered accordingly, the reason for the former practice is in a great measure done away with, though something similar may be, and often is, convenient under our present *209system, (a) It is not unusual, at present, when the judgment requires provisions of a special character, for the court in its discretion to order it to be settled before, not the clerk, but itself or one of its members. This is often done in the Supreme Court, and sometimes in the Court of Appeals. An instance of the latter occurs in the case of Schermerhorn v. Tallman, (14 N. Y. Rep. 94,) where it was ordered that the judgment be settled before Judge Selden. Owing to the certainty which the clerk and the attorneys may now arrive at in regard to the decision of the court, touching all questions of fact and law intended to be decided by it, the former practice has been long since abandoned, and the settlement of the form of a judgment upon notice, now takes place only by the express direction of the court, or by the special agreement of the parties. And it is necessary, before a party can set aside or even modify a judgment for want of notice of settle*210ment, to show that in some material particular, to be pointed out, it is entered otherwise than in accordance with the findings of fact or law, as stated by the judge or referee.
2d. It is said this judgment should be set aside for what is called a “mistrial,” by reason of the omission of Justice Smith to decide the issues which were in the case and contested on the trial.
On this point it might be sufficient to say that the appeal papers do not disclose to us the evidence in the cause, so that we are unable to see what was contested on the trial. But assuming the position of the counsel for the appellants to be well founded in fact, we are of the opinion that whatever may be the remedies to which a party may resort, in case of the omission to find a fact supported by the evidence, and deemed material, a special motion to set aside the judgment for irregularity is not among them, according to a recent decision of the Court of Appeals; the remedy, in case the fact is established.by - uncontroverted evidence, is by appeal. (Mason v. Lord, 40 N. Y. Rep. 476.) Where the evidence is conflicting as to the fact, the omission to find which is complained of, the remedy is, at the time the case is presented to the judge for settlement, to present and leave a request to find such facts and conclusions of law as he deems necessary to be found in order to protect the rights of the party; and it is the duty of the judge to pass upon such requests, and to find as requested or then refuse to find, so that the party may have the benefit of an exception to his refusal.
Such we understand to be the construction of section 268 of the Code, which requires the judge, on the settlement, of the ease, to specify the facts found by him, and his conclusions of law. (b) *211The omission to find the alleged fact may have resulted from inadvertence on the part of the justice who tried the cause; on the other hand,'it may have resulted from his having determined the fact against the party complaining of the omission, or he may have determined the fact to be immaterial in the case.
In either of the two latter alternatives, a motion at *212special term would be simply a review of the decision of the special term which decided the cause, and a review of a judgment at special term cannot be had at another special term.
3d. It is claimed that no judgment has yet been perfected, so as to be the subject of review on appeal. That until it becomes complete and final it is not in a condition *213to be executed, and that all proceedings taken under it ought to be set aside.
Conceding that this were, as claimed by the counsel for the appellants, not a final judgment, but in the nature of "a decretal order, or interlocutory decree, the proceedings under it which they ask to set aside are simply the surrender of the property by the receiver, and the taking of the possession by the Ramsey directors.
*214We see. no reason to doubt that the court may, by order in the nature of an interlocutory decree, direct ii^s receiver in the action to surrender the property in his possession as such receiver, to some of the parties to the action, to another receiver, or even, as has sometimes been done, to a third party claiming it. And whether such order be interlocutory or final, an appeal lies to the gen: eral term, at least.
*2154th. It is next claimed that the proceedings taken under the judgment or order should be set aside, because they were taken in despite of the two orders to stay proceedings, made by Mr. Justice Barnard, and of the appeal and undertaking.
The first order of Justice Barnard was to stay all proceedings on the <c decision” of Justice Smith, until the findings of fact and conclusious of law had been served *216upon all the parties, with notice of settlement, and that judgment be not entered until the settlement of such findings and conclusions, upon due notice of settlement to all the parties.
This order appears to have been founded on the affidavit of Amasa A. Bedfield, to the effect that he had learned that the justice had decided the cause adversely to the deponent; that deponent had received no formal *217notice of the findings of fact or conclusions of law, as found by Justice Smith; and that according to his belief no such findings of fact had been filed or judgment entered. This seems to have been substantially the same application which had been previously made by Mr. Martindale to Justice Smith, on the same state of facts, and by him denied, which circumstance was not disclosed in the affidavit presented'to Justice Barnard, and was perhaps unknown to the attorneys who made the application to the latter justice. (See Rule 23d) However this may he, it is apparent on the face of Justice Barnard’s order, that it was not intended to operate as a stay of proceedings after the judgment or order to be entered on Justice Smith’s decision; and as it was not served till after the entry of that judgment or order, it became functus officio before service. A second order was made by Justice Barnard, staying all proceedings under the judgment until the entry of an order on the motion to set aside the judgment, not exceeding twenty days.
The act of the Ramsey directors in taking formal possession of the property occurred on the 31st of December; the order in question was not served upon any person till some time on the 1st of January. On that -day proceed*218ings were taken before Justice Peckham, in Albany, on notice to the receiver, apparently with a view of obtaining the possession of the key of the safe. These proceedings before Justice Peckham were instituted by an order to show cause, founded upon affidavit, showing that the Ramsey directors had the day before taken possession of the office of the company, and by a formal resolution reciting the fact of the judgment, had assumed to take possession of all the property of the company. That Mr. Banks, the receiver, declined to deliver the key of the safe, and the order was to show cause why he (the receiver) should not deliver all the keys of the company in his possession. The proceedings before Justice Peckham, after hearing counsel for the.receiver, resulted in an order made by that justice on the 1st of January, that the receiver should deliver over to Mr. Ramsey the keys of the safe, and all the other property of the railroad company in his hands, and, furthermore, declaring that the orders of Justice Barnard did not in any way affect the obligation and duty of the receiver to comply with the requirements of the judgment. The appeal papers do not show that anything was done in pursuance of the order of Justice Peck-ham. They do not show that the second order of Justice Barnard was served before those proceedings were instituted, although it’appears that the order to stay had been served on the receiver before the final order made by Justice Peckham. There is nothing, therefore, to set aside, except the final order made by Justice Peckham.
It was held by Justice Mason, in a case quite analogous, that a proceeding such as that before Justice Peckham was not a proceeding upon the judgment. ( Welch v. Cook, 7 How. Pr. 282.) There the application was for an order to deliver the books and papers belonging to the State treasurer. If that decision be correct, it is obvious that the order of Justice Barnard, made in this action, to stay proceedings on the judgment, could not have the effect *219to stay the proceedings before Justice Peckham; and, at all events, we think the order of Justice Peckham could not be set aside except upon some direct proceedings to set it aside by motion, certiorari or otherwise.
bio act is shown to have been done under that order, and we do not feel called upon simply to set the order aside on this somewhat collateral motion, the notice of which does not refer to the order.
As to the claim that the proceedings were stayed by the appeal and undertaking, the decision of Justice Mason, that the proceeding is not a proceeding on the judgment, equally applies, but moreover, as appears from the papers before us, the appeal was from the entry as a judgment, and the only undertaking filed is for the costs and damages to be awarded against the appellants on the appeal. The judgment appealed from directed the delivery of a large amount of real and personal property.
Section 348 of the Code provides that an appeal from a judgment entered on the direction of a single judge of the same court does not stay the proceedings, unless security be given as on an appeal to the Court,of Appeals. Therefore to stay the proceedings on the appeal in this case, at least so far as regarded the delivery and taking possession of the property ordered to be delivered, it was requisite that security should be given, as provided in sections 336 and 338 of the, Code. This was not done, or attempted.
5th. It is stated that the proceedings of the Eamsey party were taken for the purpose of forestalling an appeal and stay of proceedings.
We cannot inquire into the motives of the parties, but only whether they have been exercising their legal rights.
Under this point it is claimed that it is irregular for the judge to furnish the successful party with his findings before they are filed, or to permit the attorney for the successful party to draw up the proposed findings.
We think, on the contrary, this will be found to have *220been the usual practice. Sometimes the counsel for the respective parties submit, at the time of the summing up, the form of the findings and conclusions of law which they respectively claim should be arrived at in the case; and when this is not done formally and in writing, it is supposed that the arguments of the counsel have been addressed to the question of what conclusions of fact and law ought to be found and stated, upon the evidence.
And we think it has been quite usual in practice, especially in cases where the findings are long, for the justice who tried the cause to furnish the attorney of the successful party with a brief minute of his decision, and request him to prepare in form the statement of the findings of fact and conclusions of law ] and when these have-been submitted, and altered and amended according to the actual decision of the judge, the latter often, instead of going, or sending them, to the clerk’s office, personally delivers them to the attorney to be filed. Sometimes the justice is in one place, the attorney for the successful party in another, and the clerk’s office in a third, and in such cases it has not been unusual for the justice to send the fihdings, when signed, by mail to the attorney for the successful party, to be filed, and certainly in most cases, without any communication to the unsuccessful party.
In fact the decision of the judge as to drawing up, delivery and filing, has in practice been treated in the same manner as the report of a referee, and for the same reason. We are not aware that complaint has ever been made that a referee did not file his report personally; that it was drawn up by the successful party; or that it was not communicated before filing, to the opposite party; and we see no reason for a difference of practice in the two cases.
The sixth and last point made by the appellants relates to the supression, on the motion below, of the certificate and affidavits. This was. a motion to set aside the judgment or order for irregularity. The certificate was to the *221effect that the opinion of Justice Smith, delivered in the case, was erroneous. Obviously this had no bearing on the question of the regularity of the judgment. It is equally clear that the affidavits touching what transpired in the interview between Mr. Martindale and the justice, at the house of the latter, and again when the order to stay proceedings was moved for and denied, had no relevancy to the question.
[General Term, Fourth Department, at Buffalo,
June 6, 1870.
Matters set forth in papers presented to the court, or filed, which are not material to the decision, are impertinent, and if reproachful, are scandalous. (1 Barb. Ch. Prac. 202.) This certificate and the affidavits in question being irrelevant, were impertinent, and the affidavits tending to impute to the justice vacillation of purpose or opinion', and to the counsel for the Church directors great infirmity of temper, were also scandalous. In such case affidavits and other papers, on a motion, may be suppressed by the court, on inspection. (1 Barb. Ch. Prac. 574.)
We are of the opinion that the order appealed from should be affirmed, with ten dollars costs, and order accordingly.
The order appealed from having been made by Justice Johnson, he did not sit on the hearing of the appeal.
Order affirmed.
Mittin and Talcott, Justices.] ,