Page images


FORM No. 239.

Formal parts of stipulation. [Title of court and cause.]"

It is hereby stipulated by and between the parties to this action [or, if the stipulation operates wholly in favor of one party, it may be limited to the other, as : by the defendant] that [state clearly the character and extent of the stipulation, with any desired limitations upon its continued operation, "la as] and that this stipulation apply only to the trial now about to be had, and to no subsequent trial of this action. [Date.]

[Signature of], attorney for plaintiff.
[Signature of], attorney for defendant.

FORM No. 240.

Stipulation waiving right of appeal.72 [Title of court and cause.]

The parties hereto hereby stipulate [by their respective attorneys], that the judgment of this court upon the trial of this action shall be final and conclusive, each party hereby waiving his right of appeal. [Date.]

[Signature of], attorney for plaintiff.
[Signature of], attorney for defendant.

71 A slight error in the spelling of a party's name is immaterial if the court finds the stipulation was intended to be given in a particular cause. Eidam v. Finnegan, 48 Vinn. 53, 16 L. R. A. 507, 50 N. W. Rep. 933.

71a Otherwise it continues of binding force throughout all stages of the case. Voisin v. Com. Mut. Ins. Co., 67 Hun, 365, 22 N. 1. Supp. 348; Herbst 1. Vacuum Oil Co., 68. Hun, 222. 22 N. Y. Supp. 807.

72 See p. 436, paragraph 7 (above). This Form is sustained by Pike v. Emerson, 5 N. H. 393, where such a stipulation, though only by one side, and expressing no consideration, was sustained; but though unquestionably sound in form, the question whether the attorney has implied authority to waive the right of appeal has been denied. The better opinion is that before judgment he

has, provided the stipulation be on a consideration and not a mere surrender. In Townsend v. Masterson, etc., Stone Dressing Co., 15 N. Y. 587, stipulation after judgment at Special Term, to speed an appeal to General Term and that there should be no appeal to the Court of Appeals, expressed as made, by the parties, and admitted, by the party repudiating it, to have been made by his personal direction, was enforced. Compare People v. Stephens, 52 N. Y. 306, enforcing attorney-general's waiver of appeal on the part of the State, made after decision but hefore judgment; and People v. Mayor, , etc., of N. Y., 11 Abb. Pr. 66, hold. ing mutual stipulation of counsel to city defendant, with attorney for plaintiff. made after judgment, unauthorized : and paragraph 7, supra, p. 436, and Service, pp. 385, 386, of this volume.


FORM No. 241.

The same; from judgment to be entered upon referee's report.78 [Title of court and cause.]

It is stipulated and agreed that neither party hereto will appeal from the judgment to be entered on the report of the referee, or make any motion in arrest or stay of the said judgment, or of the execution to be entered thereon, or appeal from any order denying any motion that may be made by the defeated or aggrieved party for a new trial, the object of this stipulation being to bring this litigation to a speedy and final determination. [Date.]

[Signature of], attorney for plaintiff.
[Signature of], attorney for defendant.

FORM No. 242. Stipulation that one cause abide the result of another.74 [Title of court and of cause stayed."5]

The parties hereto hereby stipulate, by their respective attorneys, that all proceedings herein shall be and are hereby stayed until the trial, decision, and final judgment [on the trial about to be had"] in the case of the same plaintiff against Y. Z.,78 and in case of an appeal thereupon, then such proceedings are stayed until the final determination of the cause after ap


73 From Smith v. Barnes, 9 Misc. 368, 29 N Y. Supp. 692, 24 Civ. Pro. 49, the court upholding the attorney's authority to make such stipulation without the client's knowledge or authority and dismissing an appeal taken in violation of the stipulation.

event, this would be implied as to trial at least, if not expressed. Murphy v. Keyes, 4 Sup. Ct. (T. & C.) 561.

74 See p. 435, paragraph 6 (above). Relief from such a stipulation will not be granted, if entered into advisedly, and upon a consideration already enjoyed. Slaven v. Germain, 64 Hun, 506, 19 N. Y. Supp. 492.

75 In McKinley v. Wilmington Star Min. Co., 7 Bradw. 386, a stipulation in the cause which was to be tried was held to control the others, and that it was not waived by delay. ing the trial of that cause.

76 In a mere stipulation to abide

77 This clause would preclude delay pending appeal, if the following clauses were not used.

78 A subsequent amendment of the issues in the other cause does not necessarily impair the stipulation. Gilmore 19. Am. Centr. Ins. Co., 67 Cal. 366, 7 Pac. Rep. 781; Galbreath v. Rogers, 45 Mo. App. 324. Defenses not raised in the test case are waived. McNeil v. Andes, 40 Fed. Rep. 45. So, as to exceptions not raised in test case, under stipulation that findings should be the same. State ex rel. V. Hannibal, etc., R. Co., 34 Mo. App. 591.

peal, **9 and upon such final determination, decision, and judgment,
in said cause ( appeal or otherwise), either party may apply (with-
out notice and upon this stipulation and a certified copy of the final
judgment in said action] for an order directing judgment to be
entered in this cause corresponding to the result in that cause,
[except that costs of this action shall be taxed in favor of the
party entitled to costs at the sum of dollars.

[Signature of], attorney for plaintiff.
[Signature of], attorney for defendant.

FORM No. 243. The same-reserving question of damages. [As in previous form to*, continuing:] That the issues in this case, except the q!lestion of the amount of damages, abide the result of said action, and that in case said action should finally reenlt ir favor of the plaintiff all the questions of fact and law in this action are thereby decided in favor of the plaintiff in this action, except the question of damages.


FORM No. 244.

Stipulation limiting issues.82 The defendant stipulates that in case the plaintiff shall [deliver to the clerk of this court the conveyance of the ease

79 Even where the stipulation referred to final determination of such appeal, it was held that a reversal and order for new trial did not exhaust the stipulation, but the ultimate judgment controlled. Gilmore v. Am. Centr. Ins. Co., supra.

A stipulation to abide the final event” of another action, prevents entry of judgment until decision of a final appeal taken. Herman v. Michel, 36 App. Div. 127, 55 N. Y. Supp. 359. So, as to a stipulation conditioned upon the

“ final determination of the issue." Laney v. Rochester Ry. Co., 81 Hun, 346, 30 N. Y. Supp. 893.

mere stipulation that one cause abide the event of another implies this. U. S. V. Humason, 7 Sawy. 252, 8 Fed. Rep. 71; Niagara Fire Ins. Co. v. Scammon, 35 Ill. Anp. 582. A stipulation that the “ findings and decree” shall be in accordance with the decision in the

test case, does not bind the action of the appellate court on an appeal. Kimberlin 1. Tow, 133 Ind. 696, 33 N. E. Rep. 770.

As to right to costs, see Koch v. Koch, 1 City Ct. 25.); Audenreid r. Wilson, 2 Wkly. Dig. 108; Hauselt P'. Godfrey, 3 Civ. Pro. R. (Browne) 116; Moses v. McDivitt, 2 Abb. N. C. 47; rev'd on another point, in 88 N. Y. 62.

81 From Slaven 1. Germair., 64 Hun, 506, 19 N. Y. Supp. 492, where the effect of the stipulation was held to be to turn the trial into an assess. ment of the damages.

82 From Hine v. N. Y. El. R. Co., 149 N. Y. 154. The court held that the stipulation bound the defendant to an assumption by the court that the plaintiff was the owner, and justified the court in excluding proof offered to establish the contrary.

See also Bleakley v. Sullivan, 140 N. Y. 181.

80 A

ments of light, air, and access to said premises, duly executed and acknowledged] then the defendant shall not [file or serve any supplemental answer, or apply for leave to serve any supplemental answer, or prove, or offer to prove, upon any future trial in this action, or upon any proceeding to enforce judgment thereon, any transfer of interest of the plaintiff herein to the premises do scribed in the complaint herein.]

FORM No. 245.

Stipulation admitting facts.83 [Title of court and cause.]

It is hereby stipulated by and between the respective parties to this action that upon the [first] trial thereof the following facts shall stand admitted for all purposes of such trial: [state the facts clearly.]

FORM No. 246 Stipulation admitting correctness of document or transcript. [Title of court and cause.]

It is hereby stipulated between the parties to this action that the foregoing [or, annexed] agreement [or, otherwise identify it] is genuine, and may, if otherwise relevant and competent, be admitted in evidence upon the [first] trial of this action without proof of its execution.

See also other forms in vol. 2, chap. XIII, covering stipulations as to evidence, etc.

83 See paragraph 9, supra, as to the construction of such a stipulation if

not limited in its terms to a particular trial.

See other forms in vol. 2, chap. XIII.



1. Nature of suggestion.
2. Effect.
(247) Suggestion of death of a


(248) Suggestion on minutes in

open court, or before referee, with order thereon.

1. Nature of suggestion.]— There is a class of facts occurring during an action, and affecting the propriety of the record, which are within the knowledge of the attorney, and rarely contested; so that the statement of them by the attorney, if unchallenged by his adversary, is enough for the court to act upon without proof by affidavit. 84

2. Effect.]— Such a suggestion if made in open court, in the presence of the adverse party, and entered on the minutes, or as is the practice when a hearing is not pending, made in writing and filed and notice thereof given, is a sufficient justification for thereafter omitting a party from the record, who should be cmitted if the suggestion be true, or for dropping a guardian ad litem on the infant attaining majority, etc. If any doubt can be raised on the fact, it is better to ask leave to file the sug


If the fact is suggested as the foundation of bringing in a new party, or otherwise making an affirmative change in the record, leave should be asked, if the suggestion is not made in open court, and an order should be entered.86

84 For example, a previous discontinuance of the action. See Am. Audit Co. 1. Industrial Fed. of Am., 87 App. Div. 275, 84 N. Y. Supp. 369. Death of a party. Stoetzell 1. Fullerton, 44 Ill. 108. An infant party represented by a guardian ad litem coming to maturity pending trial of the action. Breese v. Met. Life Ins. Co., 37 App. Div. 152, 55 N. Y. Supp. 775.

85 Leave to file nunc pro tunc may be granted to perfect the record title in an action affecting real property. See Waring v. Waring, 7 Abb. Pr. (N. Y.) 472.

86 Suggestion on the record of the plaintiff's death, made in the presence of the adversary, and an order of court making his devisees parties, prima facie show his death. Stebbins v. Duncan, 108 U. S. 32.

Although the death of one of the partners defendants may be inferred from the testimony of the survivor given at the trial, plaintiff waives any irregularity on the part of the court in rendering judgment for the defendants in the absence of a suggestion on the record of the party's death. Blum v. Goldman, 66 Tex. 621, 1 S. W. Rep. 899.

« PreviousContinue »