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Verification by an individual party is desirable. If the case is between corporations, an officer who might verify a complaint may verify here as a party.
If there is a natural person capable of verifying as a party, veritication by attorney is not allowable.15
8. The practice. ]- The submission is an enumerated motion. 16
The submission, acknowledgment or proof, and affidavit, if for the Appellate Division, are to be printed and furnished by plaintiff," and the cause is to be put on the calendar.
No decision is necessary.'
9. The judgment.]— The court should grant whatever relief is appropriate, whether legal or equitable ; 19 since the amendment of 1899 to $ 1281 an injunction may be granted.20
The submission should stipulate that a judgment may be directed; and also what its nature shall be in view of the respective contentions of the parties.21 It has been held that only such relief as is asked for in the submission may be granted.22
Under the New York statute23 the court has power to make a computation, or direct a reference or writ of inquiry to enable it
tion of the courts all cases wherein real interests of parties are not affected, and to prevent decisions being demanded where there are no conflicting rights and claims. Did not the statute so provide, decisions could be obtained by parties whose interests are one way which would be sought without the goodfaith contest necessary to a correct decision of all questions of law and fact; and parties might obtain decisions upon questions of law and fact from motives of mere curiosity, where no real conflicting interests exist between them.” S. P., Wood 2. Squires, 60 N. Y. 191; Troy Waste Mfg. Co. v. Harrison, 73 Hun, 528, 26 N. Y. Supp. 109. It is a contempt of court for an attorney to knowingly submit a fictitious controversy. Re Attorney, 10 App. Div. 491, 42 N. Y. Supp. 268.
15 Bloomfield r. Ketcham, 95 N. Y. 657; s. C., more fully, 5 Civ. Pro. Rep. (Browne) 407.
16 See p. 72 of this volume; O'Clair v. Hale, 25 Misc. 31, 54 N. Y. Supp. 346 ; aff'd, 35 App. Div. 77, 54 N. Y. Supp. 388.
17 Id., and N. Y. Gen. Rule No. 41.
21 Marshall v. Hayward, 67 App. Div. 137, 73 N. Y. Supp. 592. It is irregular to provide the character of judgment for plaintiff only, while otherwise “ the parties shall be left in their present condition.” Zarkowski u. Schroeder, 60 App. Div. 457, 69 V. Y. Supp. 893.
22 See Davin v. Davin, 105 App. Div. 580, 94 N. Y. Supp. 281; Kingsland v. Mayor, 42 Hun, 599.
23 N. Y. Code Civ. Pro., & 1215, made applicable by $ 1223, and last clause of $ 1280.
to carry the judgment into effect, though it will not do so for the purpose of ascertaining any fact necessary to enable it to render a final and effective judgment, for all such facts should be stated in the submission.
Costs are discretionary but may be waived by the parties by an express provision in the submission.24 A trial fee is taxable, 25 but no additional allowance can be granted.26
10. Amending. ]— The court has power to allow the filing of an additional statement or amended statement which the parties have agreed upon,27 or to allow the submission to be revoked or withdrawn by either party if it be shown that an erroneous admission has been inadvertently made, and satisfactory excuse be substantiated.28 In such case, however, the fact that the party has once made such admission will be competent evidence against him in other litigation, subject, however, to explanation by him, unless the agreement of submission expressly confines the admission to the purposes of the agreement.
But the court have not power to modify the agreement, either by allowing an allegation to be inserted or to be withdrawn, without consent of both parties.29
24 Real Est. Corp. v. Harper, 174 N. Y. 123; N. Y. Code Civ. Pro., § 1281. 25 Neilson v. Mutual Ins. Co., 3 Duer, 683. 26 People v. Fitchburg R. Co., 133 N. Y. 239.
27 N. Y. Code Civ. Pro., § 1281; and this power exists independent of the statute. See Dept. of Bldgs. v. Field, 9 App. Div. 500.
28 A stricter rule was laid down in Lang v. Ropke, 1 Duer, 701, where it was said by high authority that an action for relief was necessary. But this is discretionary. See Union Bank v. Bush, 36 N. Y. 631, 636, where, on the question of amending a confession of judgment, the court well say: “A motion is only a summary appeal to the equitable powers of the court, and is everywhere treated as a summary and simple substitute for an action in equity [citing Chichester v. Cande, 3 Cow. 39, note]; and see pp. 000-000 of this volume.
29 Fearing v. Irwin, 5 Daly, 383 ; Kingsland v. Mayor, 42 Hun, 599.
FORM No. 353. Statement of facts agreed for submission.30 New York Supreme Court. Appellate Division; First Depart
[Names of all32 the] plaintiffs
against [.Vames of all32 the defendants.
Submission of Controversy under SS 12791281 of the Code of Civil Procedure.
The above-named parties being of full age, for the purposes of this action and submission only, 33 hereby agree upon the following facts upon which the controversy between them depends, and hereby submit the same to this court for decision: [State carefully and completely all the facts relating to the controrersy, including as well all inferences which the court shall draw from the facts.]34
Plaintiff claims that upon the foregoing facts he is entitled to [state claim], which defendant denies, and claims [state adverse claim.]
The controversy hereby submitted for decision is whether or not upon the foregoing facts the plaintiff is entitled to judgment [specifying it with certainty], or whether the defendant is entitled to judgment [specifying it.]35
The parties agree that the court shall render such judgment as shall be proper on the above facts, [but such judgment shall be without costs.] [Date.]
[Signatures of all parties.] Attorney for plaintiff.
Attorney for defendant. [Acknowledgment as in Form No. 1, p. 3, or proof as in Form No. 6, p. 5, and certified when necessary.]
30 See, generally, paragraphs 5-9, pp. 610-613 (above), for the principles relating to such a submission.
31 Any other court of record (excluding probably the City Court of the City of New York) that would have jurisdiction of an action.
32 All must be named. Dickenson t. Dickey, 76 N. Y. 602.
33 For the advantages of such a qualification, see STIPULATION and TRIAL; Leither v. Clay, 100 Va. 236.
34 See paragraphs 5, 6, pp. 610, 611 (above).
35 See paragraphs 5, 9, pp. 610, 613 (above),
FORM No. 354.
Verification of agreed statement of facts.36
A. B., being duly sworn, says that he is the plaintiff above named; that the controversy mentioned in the foregoing case and depending upon the facts stated therein, and herewith submitted to the Supreme Court of the State of New York for decision thereof, is real, and the submission thereof is made in good faith for the purpose of determining the rights of the parties. [Jurat.]
[Signature.] FORM No. 355. Order of Appellate Division for judgment upon submission.
At a Term of the Appellate Division
[etc., as in Form 9ta, p. 256.] [Title.]
A case agreed between the parties above named, and duly executed and acknowledged by them on the 19 , having been submitted to this court;
Now, after hearing M. N., of counsel for the said plaintiff, and 0. P., of counsel for the said defendant, and due deliberation having been had thereon, it is, on motion of C. D., attorney for [plaintiff]
ORDERED that the [plaintiff] have judgment [state its character] together with taxable costs and disbursements.
FORM No. 356.
Judgment on agreed statement of facts.37 Supreme Court; County. [Title of the cause.]
A case agreed between the parties above-named, duly executed and acknowledged on the
19 , having been duly submitted to the Appellate Division of the Supreme Court for the
Department, and said Appellate Division having duly rendered its decision thereon, and having duly ordered and adjudged that the [plaintiff] have relief as herein directed, and that the [plaintiff] recover of the [defendant] its taxable
37 See paragraph 9, p. 613 (above).
36 Only one of the parties need make the verification. Code Civ. Pro., & 1279.
costs and disbursements, and said costs and disbursements having been duly taxed at dollars, now, and on motion of M. N. [or, O. P.], attorney for said A. B. [or, Y. Z.],
It is ADJUDGED [state relief granted as in other judgments]. [Dated.]
38 The Court of Appeals may modify the judgment as granted by the Appellate Division. See Assoc. Alumni
v. Gen. Theo. Seminary, 163 N. Y. 417.