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ARTICLE VI.

DEMURRING.

(A complete list of Forms, with authorities, will be found in the second volume of ABBOTT'S FORMS OF PLEADING (edition of 1898), and they are, therefore, not here repeated.]

ARTICLE VII.

SEVERING ACTION.

1. Inherent power of the court. 2. Statutory power to sever.

Fobus.
(1049) Ordering severing action

where an issue of law and
an issue of fact arise with

respect to different causes

of action. (1050) Order severing ejectment

against distinct occupants, (1051) Order severing action against

defendants severally liable, after judgment against part.

[ As to severance on admission of part of claim, see page 1426; as to sever. ance on death, see PABTIES.)

1. Inherent power of the court.] — The court has inherent power to sever an action, in furtherance of justice, as, for instance, where, by the joinder, the competency of witnesses62 or other remedies, may be prejudiced.

2. Statutory power to sever.] — The Code has conferred power to sever an action in the following cases: against defendants severally liable, on entry of judgment against some ($ 456); after improper joinder ($ 497); on judgment for part admitted due (s 511); on judgment against some of the defendants against whom a several judgment is proper ($ 1205); 64 when issue of law and of fact joined upon several causes of action, and plaintiff entitled to judgment on one or more ($ 1220); in ejectment ($S 1516, 1522–3); in partition (S 1547).

52 See Hill v. Alvord, 19 Hun, 77. 53 See, for Forms thereon, Nos. 1103-1107, post.

54 Stedeker v. Barnard, 102 N. Y. 327.

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FORM. No. 1049. Order severing action where an issue of law and an issue of fact arise with respect to šifferent causes of action.55

At a Special Term [etc., as in

Form 820, p. 1174]. [Title of action.]

It appearing to the court that an issue of law and an issue of fact have arisen, with respect to different causes of action set forth in the complaint herein, and final judgment can be taken with respect to the (first] cause of action therein set forth,without prejudice to either party hereto in maintaining the action or defense [or, counterclaim), with respect to the remaining causes of action, or in the recovery of final judgment upon the whole issue,

Now, upon the pleadings herein, and on reading and filing the notice of motion, dated

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and the affidavit of A. T., verified on the

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thereto annexed, and after hearing A. T., of counsel for plaintiff, for the motion, and M. N., of counsel for defendant, opposed, it is, on motion of A. T., attorney for the plaintiff,

ORDERED, that this action be and the same is hereby divided into [two] actions, one of which shall be upon the cause of action numbered “one in said complaint, and the other action shall be upon the causes of action numbered respectively “two” and “three” in said complaint; and it is further

ORDERED, that plaintiff have leave to enter final judgment in his favor in the action based upon the cause of action numbered “one” in said complaint, and that the parties proceed upon the remaining causes of action as if originally brought in a separate action.

FORM. No. 1050.
Order severing ejectment against distinct occupants.56

At a Special Term [etc., as in

Form 820, p. 1174]. [Title of action.]

It appearing satisfactorily to the court by the answers herein, that the defendant, W. X., occupies [or, that the defendants, W. X. and U. V., jointly occupy] a distinct parcel of the lands for the recovery of which this action is brought, and that the defendant [name or names) possesses the other parcel thereof in severalty

65 Under Code Civ. Pro., & 1220. See ance was allowed in an action based Stokes v. Stokes, 31 Abb. N. C. 464, upon separate libels. 30 N. Y. Supp. 153, where such sever- 56 N. 'Y. Code Civ. Pro., § 1516;

Judson v. Malloy, 40 Cal. 299.

[or, jointly]; and on reading and filing proof of due notice of this motion and after hearing W. T., of counsel for plaintiff, and T. X. [or, no one appearing) for the defendants in opposition; and dve deliberation having been had; now, on motion of W. T., attorney for plaintiff:

ORDERED, that this action be divided into (two] several actions, one of which shall be by said A. B. against W. X. [or, against W. X. and U. V.] for the recovery of the parcel hereinafter described as parcel A. with such other relief, as under the complaint, may be had in respect thereto, and the other by said A. B. against Y. Z., for the recovery of the parcel hereinafter described as parcel B., and such other relief in respect thereto:

[May add:] This severance is without prejudice to the proceedings already had herein; and the clerk is directed to make on the margin of the notice of pendency of this action, a memorandum referring to this order.

[May add any conditions imposed.]
[Add descriptions respectively.]
Enter: [signature of judge by initials of name and title.]

FORM. No. 1051.

Order severing action against defendants severally liable after judgment

against part.57 [Title of court and action.]

It appearing that in this action summons has been issued against all the above-named defendants, and that they are alleged in the complaint to be severally liable, and that said summons has been duly served upon all of said defendants, as appears by

The application must be made by the plaintiff. See Hennessy v. Paul. sen, 12 Misc. 384, 33 N. Y. Supp. 638.

As to severance after death of a party, see Form 1195, and Code Civ. Pro., $8 1522, 1523.

57 Entered by the clerk without Reed of application to the court. N. Y. Code Civ. Pro., $ 456, and see & 1205.

The statute is only applicable where the obligation is several, or where the obligation is joint and sereral, or, joint or several. Strauss r. Trotter, 6 Misc. 77, 26 N. Y. Supp.

20. The action cannot be severed where the obligation is wholly joint, as, a partnership note. Oneida Co. Bank v. Lewis, 23 Misc. 34, 51 N. Y. Supp. 826, aff'd, 35 App. Div. 631. Entry of judgment against one of two joint obligors discharges the other (Candee v. Smith, 93 N. Y. 349), but when such a judgment has been entered by inadvertence, it will be vacated if no prejudice is shown. Weston v. Cit. Nat. Bank, 88 App. Div. 330, 84 N. Y. Supp. 743.

the affidavit of C. D., hereto annexed, and judgment having been duly entered pursuant to law in favor of the plaintiff and against the defendant Y. Z.; now, on motion of A. T., attorney for plaintiff :

ORDERED, that the action be severed, and that the plaintiff may proceed against the defendant W. X. [naming all the defendants severally liable against whom judgment was not taken], as if he were the only defendant named therein. [Date.]

[Signature of] Clerk.

ARTICLE VIII.

SUPPLEMENTAL PLEADING.58

FORMS.

1052. Affidavit to niove for leave to

file supplemental pleading. 1053. answer setting up pas.

ment or release. 1054, Order to show cause why a

party should not have leave to

serve a supplemental pleading. 1055. — granting leave to serve a sup.

plemental pleading. 1056. Supplemental pleading.

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FORM. No. 1052. Affidavit to move for leave to file supplemental pleading. [Title of court and action.] [Venue.]

A. B., being duly sworn, says:

I. That he is the [plaintiff] above named; that this action was commenced in this court by the service of a summons and complaint on the

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;

that the action is brought for the purpose of [state briefly the object of the suit, as, the foreclosure of a certain mortgage particularly described in the complaint herein]; that issue has been joined herein, and the cause is now upon the calendar of this court, awaiting trial.

II. Deponent further says, that he has read the annexed draft of the proposed supplemental (complaint), duly verified by him.59 That said facts did not occur [or, did not come to the knowledge of this deponent, nor had he any information thereof] until after the service of the said original complaint. 60

* [If an order to show cause is asked for, state as to previous application as in Form 817, p. 1172, and also the condition of the cause as in Form 816, p. 1172.]

[If the application relates to answer or reply, add oath to merits, see p. 1373, Form 1031.61] [Jurat.]

[Signature.]

58 See as to distinction between an amended and supplemental pleading. Horowitz v. Goodman, 112 App. Div. 13, 98 N. Y. Supp. 53.

59 The proposed supplemental pleading must be served with the motion papers. Diehl v. Buck, 61 App. Div. 570, 70 N. Y. Supp. 818.

60 Affidavit of defendant's attorney considered sufficient, which alleged

that the facts had come to his knowledge, and to the knowledge of defendant's officers, _since original answer was served. Reynolds v. Aetna Life Ins. Co., 16 App. Div. 74, 44 N. Y. Supp. 691.

61 Newell v. Newell, 27 Misc. 117, 57 N. Y. Supp. 403.

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