Second Department, January, 1921. [Vol. 194. ments of 1914 (Laws of 1914, chap. 443), has the necessary jurisdiction to hear, try and determine the claim as an incident of the accounting. The learned surrogate wrote no opinion, and, therefore, we are not advised of his reasons for denying the motion. It seems to me to be quite clear that prior to that legislation that court did not have the requisite jurisdiction. The terms of the statute as then amended are now very broad, namely, "to try and determine all questions, legal or equitable, arising between any or all of the parties to any proceeding, or between any party and any other person having any claim or interest therein." (Code Civ. Proc. § 2510.) The effect of that amendment and the scope of the enlarged jurisdiction of that court has been defined by this court in several decisions, notably in Matter of Hermann (178 App. Div. 182; affd., without opinion, 222 N. Y. 564); Matter of Coombs (185 App. Div. 312). (See, also, Matter of Malcomson, 188 App. Div. 600.) In the first of those cases this court (Mr. Justice RICH writing) held that that enlarged jurisdiction was not sufficient to enable the Surrogate's Court to refuse probate to a will upon the ground that its execution violated testator's contract to maintain a prior joint will; but in the second case this court (Mr. Justice THOMAS writing) held that that jurisdiction empowered that court upon accounting to try and determine the claim that at his death decedent had certain specific property which it was his duty to transmit by will to the claimant. Perhaps some minds, not over and above acute, might have difficulty in distinguishing the material facts of the latter case from those of the former. However that may be, it seems clear to me that the fair scope of the latter decision includes the instant case. Here the contention is that the claim against the broker Asbury, which nominally belonged to the accounting estate, was in equity property of the mother or of her estate, so that her estate has a claim upon it through the son's estate and is entitled to the full proceeds of that claim as finally realized by the accounting executors. It is to be noted that our opinion in the latter case (Matter of Coombs, supra, 314) is very broad, viz.: "The language [referring to section 2510] is so comprehensive that in association with section 2681 it sweeps away all constraints App. Div.] upon the surrogate's jurisdiction, and the necessity of multiplying remedies in the distribution and transfer of a decedent's property to whomsoever it belongs or should be delivered." It may well be noted that what the respondents now seek to do is, at the most, merely the same thing which was done upon the prior accounting, apparently with the approval of all parties. Upon that the full proceeds of the stock, so far as then realized and indeed as any one expected would be realized, were allowed to the present claimants or to their testatrix then living; whereas upon this accounting the claim is that the balance of those proceeds, since unexpectedly realized, should be disposed of in the same way. Hence, I conclude that the order appealed from was well warranted. Therefore, I advise that the order appealed from be affirmed, with ten dollars costs and disbursements. RICH, PUTNAM, KELLY and JAYCOX, JJ., concur. Order affirmed, with ten dollars costs and disbursements. HYDRAULIC POWER COMPANY OF NIAGARA FALLS, Respondent, v. PETTEBONE-CATARACT PAPER COMPANY, Appellant. HYDRAULIC POWER COMPANY OF NIAGARA FALLS, Respondent, v. CATARACT CITY MILLING COMPANY, Appellant. Fourth Department, January 21, 1921. Trial power of court to make additional findings or rule on questions of law after decision. After the trial judge has rendered his decision he is without power to pass upon or make additional findings of fact or rule upon questions of law. APPEAL by the defendant, Pettebone-Cataract Paper Company, in the first action, and by the defendant, Cataract City Milling Company, in the second action, from orders of the Supreme Court, entered in the office of the clerk of the county of Niagara on the 21st day of October, 1920, denying defendants' motions for orders directing that the proposed findings Fourth Department, January, 1921. [Vol. 194. of fact and conclusions of law annexed to said motions be acted upon by Mr. Justice WHEELER, and that when so acted upon the same be made a part of the record in the actions. Storrs & Storrs [Louis E. Marshall of counsel], for the appellants. Cohn, Chorman & Franchot [Edward E. Franchot of counsel], for the respondent. KRUSE, P. J.: After the trial judge had made his decision in writing the defendants requested him to make additional findings of fact and rule upon questions of law, which the judge declined to do. Thereupon a motion was made at Special Term to have that done. The motion came on for hearing before a judge other than the one who decided the case and it was transferred to a Special Term, at which the trial judge presided. The motion was denied upon the ground that the trial judge was then without authority to pass upon the requests, and also in the exercise of judicial discretion if such power then existed. While I think the failure to timely submit the requests was excusable, and that the defendants could be relieved from such inadvertence and mistake, under the provisions of the Code of Civil Procedure (§§ 721, 724), if the judge had authority to then pass upon the requests, I am of opinion that after a trial judge has rendered his decision he is without power to pass upon or make additional findings of fact or rule upon questions of law. The only authority for submitting such requests is contained in section 1023 of the Code of Civil Procedure, and that section provides that it may be done before the case is finally submitted, or within such time afterwards, and before the decision or report is rendered, as the court or referee allows. Before this section became the law it had been the practice, where a trial judge or a referee failed to pass upon material questions of fact and law, to send the case back for him to pass upon such questions or resettle his report or decision. (Van Slyke v. Hyatt, 46 N. Y. 259; Potter v. Carpenter, 71 id. 74.) Under the general rules of the Supreme Court a party was permitted to present proposed findings of fact upon the settle App. Div.] Fourth Department, January, 1921. ment of the case, and the judge or referee was required to pass upon them, but that practice was superseded by the provisions of section 1023 of the Code of Civil Procedure. (Gormerly v. McGlynn, 84 N. Y. 284.) Under the present practice a party may submit proposed findings of fact, also require rulings to be made upon questions of law, but such requests must be submitted before the decision is rendered. Broadly speaking, the submission of such requests is a part of the trial, and the procedure analogous to requests for submitting specific questions to a jury and ruling upon requests to charge embodying questions of law. After a decision has been rendered no substantial change can be made by the trial judge or referee in his report or decision, neither in the findings of fact, nor in the conclusions of law and direction for judgment. (Chester v. Buffalo Car Mfg. Co., 183 N. Y. 425, 439; Herpe v. Herpe, 225 id. 327.) The conclusion here reached is supported by former decisions and reasoning in the opinions of the appellate courts. (Gormerly v. McGlynn, 84 N. Y. 284; Palmer v. Phenix Ins. Co., 22 Hun, 224; Gardiner v. Schwab, 34 id. 582; Sisson v. Cummings, 35 id. 22; Dann v. Palmer, 151 App. Div. 151; 206 N. Y. 678.) The order should, therefore, be affirmed, with ten dollars costs and disbursements. All concur. In the first case: Order affirmed, with ten dollars costs and disbursements, upon the ground that the trial judge was without authority to pass upon the requests. In the second case: Order affirmed, with ten dollars costs. and disbursements, upon the ground that the trial judge was without authority to pass upon the requests. Second Department, January, 1921. [Vol. 194. THE PEOPLE OF THE STATE OF NEW YORK (on Complaint of ROBERT KEEGAN), Respondent, v. JOHN H. MEYER, Appellant. Second Department, January 21, 1921. Crimes operating motor vehicle without license — conviction improper where defendant had license though he did not exhibit it on demand of officer presumption arising under Highway Law, section 289, on failure to exhibit license overcome by uncontradicted evidence. The conviction of the defendant of operating a motor vehicle without a license in violation of section 289 of the Highway Law was improper where it appeared that the defendant, who was driving an automobile bearing a Massachusetts license plate, had a New York operator's license on his person and an operator's button on his hat at the time the officer demanded that he exhibit his New York license. That part of section 289 of the Highway Law, by which the failure of an operator to exhibit his license on demand by an officer is made presumptive evidence that he is not licensed, is a rule of evidence merely, and the presumption which it affords was overcome by the uncontradicted evidence. APPEAL by the defendant, John H. Meyer, from a judgment of a Court of Special Sessions of the City of New York, Borough of Brooklyn, Traffic Court, entered in the office of the clerk of said court on the 22d day of December, 1920, convicting him of operating a motor vehicle without a license. Albert W. Seaman, for the appellant. Ralph E. Hemstreet, Assistant District Attorney [Harry E. Lewis, District Attorney, with him on the brief], for the respondent. JENKS, P. J.: On December 15, 1920, the defendant drove a motor car in a street of the borough of Brooklyn and finally into a garage. There a police officer who had followed the defendant demanded exhibition of his operator's license from the State of New York. But the defendant showed only such a license from the State of Massachusetts. Thereupon the officer served a summons upon the defendant. |