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place this cause (being numbered on Calendar No. 3 of the Trial Term) upon the Day Calendar to be called in [Part 10] of the Trial Term on the day of , 19 , to be called after the causes then upon said Day Calendar marked ready.

FORM No. 1325. Affidavit upon motion to prefer as a short cause.68 [Title of court and cause.]

[After stating character of action, and issue, continue:]

That deponent [plaintiff's attorney] expects to call but (one witness, viz., A. B.] to prove the issue raised upon the complaint, and that his examination and cross-examination upon that issue will not in deponent's belief consume over minutes.

[Cover other issues in same way, including any affirmative defense pleaded.]

58 It must appear from the moving papers with reasonable certainty that the cause may be tried within the time limited for short causes. Uvalde Paving Co. v. Dunn, 77 App. Div. 467, 79 N. Y. Supp. 328, 12 Anno Cas. 275.

In the New York City Court, motions to short cause are to be made returnable before the Special Term, while motions to obtain a statutory

preference are to be made at Trial
Ierm, Part I. Rules of City Court,
Nos. II and III; Marsh v. Stand.
Struct. Co., 35 Misc. 381, 71 N. Y.
Supp. 1025.

in the Supreme Court, first district, notice of this motion need not be given with the notice of trial. People ex rel. Tyng 0. Feitner, 39 App. Div. 532, 57 N. Y. Supp. 313.

ARTICLE XII. REFERENCES (OTHER THAN FOR TRIAL OF ISSUES ON THE

PLEADINGS.) 1. Power of the court.

(1353) Order that books and papers 2. The practice.

be deposited with reieree 3. Effect of reference of motion.

before accounting.

(1354) Notice of election to termiFORMS.

nate reference. (1326) Order referring a question

(1355) Notice of bringing on monot arising on the plead

tion after reference upon ings, to hear and report.

controverted questions of (1327) Order referring a motion or

fact thereon. a question arising thereon. (1356) Report of referee on ques. (1328-1348) Statements of special

tion arising on motion directions suitable to be

(contempt). inserted in foregoing

(1357) Exceptions to referee's reForms.

port, on special question (1349) Notice of hearing before ref

(assessing damages on ineree.

junction undertaking). (1350) Subpæna to attend before (1358) Notice of motion to confirm referee.

referee's report. (1351) Oath of referee on special

(1359) Order on motion to confirm reference other than to

report. make partition and ad.

360) Order sustaining exceptions measure dower.

to referee's report. (1352) Summons by referee to ap

pear personally.

1. Power of the court.] — The inherent power of the court to order a reference, does not extend to delegating thus the judicial power to hear and determine an issue arising upon the pleadings. It does enable the court to call to its aid a referee to take testimony, or to ascertain facts, in an interlocutory proceeding, or to take and report testimony, and in either case, with or without the opinion of the referee; or to state an account, ascertain the competency of sureties, or receivers, superintend the execution of a deed, or perform other administrative functions, in aid of the court; and under the New York statute, 59 on a reference for such purposes as these, or on any question not arising on the pleadings, the referee may be directed to determine the question. 60

59 N. Y. Code Civ. Pro., $$ 827, 1015. The sections are applicable to the New York City Court. Gillespie v. Mulholland, 12 Misc. 40, 33 N. Y. Supp. 33.

60 See note in 18 Abb. N. C. 418, on reference of partly-tried issues, where this distinction is illustrated. Stand. Fashion Co. v. Šiegel-Cooper Co., 44 App. Div. 121, 60 N. Y. Supp. 739.

2. The practice.] — As a general rule, the power to order a reference is a power of the court, not a power of the judge. 01

Orders referring issues arising on the pleadings are commonly made on an express application for the purpose, which is treated under the Chapter on Trials. Orders for other references such as form the subject of this Article, are more commonly made incidentally, in disposing of a motion or of an application on which the court would otherwise determine the question itself.

The duty of the referee should be clearly indicated in the order, to avoid the embarrassment, which results from uncertainty under an ambiguous order, as to whether he is only to take and report testimony, or is to find the facts, and whether he is to give his

opinion. 62

3. Effect of reference of motion.] — If a reference of motion is had, and full proofs taken, and the order thereon is such as might be reviewed by appeal, the order may be regarded as res adjudicata and binding on the parties in a sense in which an order made on affidavits is not.63

FORM No. 1326. Order referring a question not arising on the pleadings, to hear and report.

At a Special Term [etc., as in

Form 820, p. 1174]. [Title of cause.] l'pon reading and filing the annexed (stipulation dated the

day of , 19 , and] affidavit of M. N., verified the day of , 19 , and on motion of A. T.:

61 See as to the distinction, Volume I, pp. 88, 90, etc. So also, by $ 2266, the power of referees to punish for contempt for the indemnity of the party ag. grieved, is conferred only on referees appointed by the court.

62 A reference to ascertain and report a fact implies the power to take testimony if the subject is only to be ascertained by evidence. (Story v. Livingston, 13 Pet. 359. The contrary held of a reference " to state the facts,” based en voluminous testimony already taken on a previous reference. Burton v. Peterson, 4 W. N. C. 526.)

But under such reference, without directions to report the evidence, a statement of the conclusion, without the testimony, is sufficient. (Dorr . Noxon, 5 How. Pr. 29; Byington 1. Hampton, 13 Iowa, 23; Simmons v. Jacobs, 52 Me. 143, 153; S. P., Bailey v. Myrick, id., 132.) Otherwise in actions, by N. Y. Gen. Rule No. 30.

A direction to take and report proofs or evidence does not justify taking et parte affidavits. (Cumming v. Waggoner, 7 Paige, 603.) The finding on a reference to ascertain facts contested on a motion, does not conclude the court (Marshall v. Meech, 51 N. Y. 140. Compare Doyle v. Met. El. R. Co., 136 N. Y. 505); much less when the reference is to take proof and report opinion. (Muhlenbrinck 1“. Pooler, 40 Hun, 526.)

63 Dwight r. St. John, 25 V. Y. 203. But even then a rehearing or renewal may be had. Riggs v. Pursell, 74 X. Y. 370, 380. See Vol. I, pp. 79, 157-160. 64 It would be proper practice in 66 A reference to determine a consuch a case to make the order pro- troverted question of fact arising vide that the report should be upon a motion should be granted only brought before the court for con- in very exceptional cases, where the firmation by notice, or should be filed facts are complicated and it is maniand stand confirmed if exceptions fest that the truth cannot be ascerwere not duly taken. See Matter of tained with reasonable certainty Bediord, 30 Hun, 551; Ward r. Ward, with an examination of the witnesses. 29 Abb. N. C. 256, and note; Rouni See Weinberger v. Met. Traction Co., anex 1. Kossalko, 61 App. Div. 486, 63 App. Div. 240, 71 N. Y. Supp, 259; 70 V. Y. Supp. 36.

ORDERED, that the question [stating it as thus, as to what would be a reasonable counsel fee and compensation for M. L. & B., attorneys, for services performed by them for the defendant and the estate of which he is executor], be and the same hereby is referred to L. W. L., Esq., counsellor at law, to hear the proofs submitted by the respective parties in reference thereto, and to report the same with all convenient speed with his opinion.

[May add clauses as in reference for trial of issues on the pleadings.]C4 Enter: [etc., as in next Form.]

[Take certified copy for use of referee.]

FORM No. 1327.
Order referring a motion, or a question arising thereon.cs

At a Special Term [etc., as in

Form 820, p. 117+). [Title of cause.]

The motion of the plaintiffs [for an injunction against the defendants W. X. and Y. Z., and that a receiver of the property of the corporation be appointed] and for other or further relief, coming on to be heard, and the court considering that a reference as hereinafter directed is necessary to enable the court to properly determine the controverted questions of fact arising hereon, [or, if referred by consent, to determine, add: and both parties having agreed, in open court that it be referred pursuant to section 1015 of the Code of Civil Procedure, to a referee to determine and report upon all the questions of fact arising upon this motior), now upon reading and filing [mention papers] it is: ORDERED, that R. F., Esq., of

counsellor at law, be and he hereby is appointed referee to hear the proofs, submitted by the parties upon [state question if a narrow one — or, upon

Buchholtz r. Fonda, etc., Ry, Co., 59 65 Gerity 1. Seeger, etc., Co., 163 App. Div. 566, 69 N. Y. Supp. 632. N. Y. 119.

the questions of fact arising upon said motion] and report said proof, together with his opinion thereon, with all convenient speed. [Add special directions, if desired, according to the case. See below, and see Forms under TRIAL. For order referring motion as to contempt, see pp. 1548, 1549.]

Enter: [signature of judge by initials of name and title.] [Take certified copy for use of referee.or]

FORMS Nos. 1328–1348.— STATEMENTS OF SPECIAL DIRECTIONS SUITABLE TO BE INSERTED IN FOREGOING FORM.

FORM No. 1328. Recital where reference is ordered by the court of its own motion.68 Now, at the instance of the court before whom such motion was heard: ORDERED, that it be and it hereby is referred to [etc.].

[Or, and it appearing that a proper decision of said motion cannot be made until an examination of said

be had: ORDERED — etc.]

FORM No. 1329.

To take testimony on specific question. To take such evidence as may be produced by the respective parties herein [or, to take the testimony of M. N., the witness therein named] upon the question whether [etc.].

FORM No. 1330. To take evidence as to truth of allegations. To take evidence as to the truth of the allegations in said petition [may add: and of any defense thereto — or, in said affidavit — or, in said affidavits on both sides], and report the same, with his opinion.

FORM No. 1331. Of specific question of fact arising on motion for injunction. To take proofs on said question of fact and to report such proofs to the court. And the decision of plaintiffs motion for a preliminary injunction, etc., is hereby reserved until the coming in of said report. The injunction granted by the order to show cause herein continues until entry and service of an order on the decision of the motion.69

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68 Burnett v. Snyder, 41 N. Y. Super. Ct. 342; Aldinger v. Pugh, 10 N. Y. Supp. 684.

69 This is now a convenient practice, especially in cases of great importance. Compare Vol. I, p. 418, and Stubbs v. Ripley, 39 Hun, 620, 626.

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