Di Giulio v. Di Giulio

Final judgment reversed on the law and facts and the issues raised on the account remitted to the Special Term for a new trial. Memorandum: The final judgment herein cannot be sustained in the absence of a decision or finding and conclusions by the Official Referee as required by section 440 of the Civil Practice Act. We do not condone the action of appellant’s counsel in his consistent neglect to recognize his obligation to proceed with the trial of these issues. No sufficient showing has been made that the other court engagements of counsel justified his persistent failure to conclude the trial of this matter. The new trial should proeed without further delay. All concur. (Appeal from final judgment and order of Erie Supreme Court for plaintiff in an action to impress a trust.) Present —McCurn, P. J., Kimball, Bastow, Goldman and Halpern, JJ.