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FORM No. 1332.

Use of motion papers. That the affidavits used on this motion be treated by said referee merely as in the nature of pleadings.To

FORM No. 1333. Motion as to moneys in hands of attorney. To take the said examination of the parties, and of said J. W. P., who is required to appear and submit to an examination before said referee, and such other proofs as shall be produced in regard to the right, title and claims of said J. W. P. to the fund or any part of the fund or judgment in controversy, the defenses thereto, and the liens upon, claims to, and set off of said H. against said fund, and that he make a report to this court of the evidence so taken and of the facts deemed by him to be established thereby, and that said moneys be retained as they now are until the determination of this proceeding and subject to the further order of the court to be made herein concerning their disposition and payment.

FORM No. 1334. To take oral testimony on matter in affidavits. To examine on oath the parties or their agents (and such further or other witnesses as either party may produce before him] upon the matters stated in the affidavit above mentioned, and to report the evidence and his opinion thereon."

FORM No. 1335. Cross-examination of affiants, and further proof on specific questions.

To take the cross-examination of the said affiants on both sides, and to take such further proof on the question of the residence of the defendant E. W. P., as either party may desire to produce, and to report the same, with his opinion as to whether said P. was or was not a non-resident of this State at the time of issuing of the attachment herein.

70 Held, that any allegation met by a denial, under this order, must be taken as nullified; and any allegatior not met by a denial, as established. Wetmore v. Wetmore, 27 Misc. 700, 59 N. Y. Supp. 586.

71 Stafford v. Ambs, 8 Abb. N. C.

337; Scott v. Williams, 14 Abb. Pr. 70, 23 How. Pr. 393.

When a referee appointed to take oral proofs, is restricted thereto, documents, especially when authenticated under statute, may be put in evidence at the hearing. Baker v. Woodward, 12 Oreg. 3, 6 Pac. Rep. 173.

FORM No. 1336.

Direction for resuming motion. Said motion to be brought up again before this court at Special Term upon days' notice, for hearing and decision upon such report and opinion of said referee and the testimony taken before him, as well as on the affidavits, filed as aforesaid.

FORM No. 1337. Direction that party or witness appear personally. That the [defendant] do appear [or, produce said witness] personally before said referee and submit to examination touching [etc.].72

FORM No. 1338.

To examine prisoner in jail. To examine M. N., as to [stating subject], at the jail in the city of , where the said M. N. is confined [may add], said examination to be had or commenced on the day of , 19 , at o'clock, M.

FORM No. 1339.

Direction to produce books. That the books of the said

, which may contain entries or evidence relevant to said question [or, issues] be produced before said referee.73

FORM No. 1340.

Or thus. That either party be at liberty to introduce before said referee the books of the said corporation, to wit [designating them], and any other evidence pertinent or relevant to the questions of fact arising upon said motion; and that the defendants are hereby directed to produce said books or such of them as the plaintiff shall call for, before the referee for that purpose, and leave the same with the referee if by him required.

72 See, also, a fuller Form, No. 1352, post. On reference of an ordiDary motion, neither the court nor a referee can compel a party to attend and be examined orally as a witness, King v. Leighton, 58 N. Y. 383 (con. tra Meyer 0. Lent, 16 Barb. 539); unless it may be by granting the Teference conditionally in a case where granting the primary motion is discretionary. See Vol. I, p. 230.

Other witnesses may be compelled. Stubbs v. Ripley, 39 Hun, 620; appeal dismissed, 102 N. Y. 734.

73 Not ordered in common law cause. North v. Platt, 7 Robt. 207. Compare 4 Abb. Ct. App. Dec. 326.

Under this it will be the referee's duty to receive evidence of inability offered in excuse. McCartan v. Van Syckel, 10 Bosw. 694.

FORM No. 1341. To examine account of special guardian after objections or exceptions,

To examine and audit said account and take such evidence as may be adduced before him by either party, and report the same, with his opinion, to the court.

FORM No. 1342.

To take evidence of various claimants on specific questions. To take evidence by the respective parties, and judgmentcreditors referred to in the petition herein, upon the following questions, viz. :

1. Did the sheriff sell on all the executions, referred to in the petition herein, at once?

2. Did he sell on each separately? [and so on.]

That any of the parties, or of said judgment-creditors may take evidence before said referee on two days' notice in writing, served on the attorneys for the other parties, or judgmentcreditors.

That this motion may be brought on before Mr. Justice B., at

, in the city of , on the report of said referee, and the testimony taken by him, by any party, or judgmentcreditor, on two days' notice in writing to be served on the attorneys of the other parties, and said judgment-creditors.

FORM No. 1343.

Direction to give third persons notice. That said referee give days' notice of hearing to all persons [describing them), to be served personally, if practicable, and otherwise such notice to be served by mail.74

FORM No. 1344. Regulating notice of hearing and to speed reference. That said referee proceed on [two] days' notice from either party, and from day to day thereafter, unless otherwise expressly ordered by him for cause shown.75

74 See Matter of Youngs, 5 Abb. N. C. 346, and note.

75 The court has power to direct that the reference proceed upon a

specified notice of hearing. Stubbs 1. Ripley, 39 Hun. 620; appeal is. missed, 102 N. Y. 734. See note 78, post.

FORM No. 1345.

Leave to object to evidence after report. That either party be at liberty on the coming in of said referee's report to object to the relevancy or admissibility of all or any portion of the proof.

Led

further

FORM No. 1346.

Leave to apply for further direction. That in case question shall arise concerning any documents, and as to whether the [petitioners] herein, or their counsel, are entitled thereto, either party may, upon notice, move for a further order, referring the question to said R. F., Esq., for report thereon, for the information and advice of this court.

And it is further ORDERED, that either party hereto may, whenerer so advised [but before final order on the report of said referee], apply to the court, at the foot of this order, concerning anything not disposed of hereby, concerning any controversy or question to arise.

FORM No. 1347.

Payment of referee's fees. That the fees of the referee on such reference be paid by the party receiving the report, and be then subject to the order of this court on the final determination of this motion.

FORM No. 1348.

Fees to be paid from day to day. The said referee need not proceed with said reference unless he is paid by the plaintiff and defendant or one of them for each day in advance, and the fees of the referee may be ordered to be paid by this court ultimately as to the court seems proper and just and this provision is inserted by consent of said parties.

FORM No. 1349.

Notice of hearing before referee.76 [Title of court and cause.]

Please take notice, that the hearing herein [if not a trial of the issues, add: under the reference ordered on the day of

, 19 or say: that the examination, etc., concisely indicating the subject] will be brought on or before R. F., Esq., the referee appointed at his office, No.

street, in the

76 See referee's summons, Form No. 1352; also, see notes to next Form.

city of , on the day of , next, at
o'clock in the noon.
[Date.]

[Signature and office address of], [Address] To

Attorney for
Attorney for

FORM No. 1350.

Subpæna to attend before referee.78 [Same as on the trial of the issues, except that if the cause is a special proceeding, not an action, the sub poena must be issued under the hand of the referee.79 If there is doubt, take the usual form of court subpoena and get the referee to sign it with his official addition beneath the teste.]

FORM No. 1351. Oath of referee on special reference80 other than to make partition and

admeasure dower.81 [Title of court and cause.] [Venue.] R. F., the referee appointed herein by order bearing date the

day of , 19 , being duly sworn, says: That he will faithfully and fairly hear (and determine) the questions referred to him, and make a just and true report according to the best of his understanding. [Jurat.]

[Signature.]

77 See Matter of Youngs, 5 Abb. N. C. 346, and note.

78 A referee, whether official or special, and whether he has to try a matter or report thereon, has power, subject to the control of the court, to peremptorily appoint a day for the hearing of the same. Wenlock . River Dee Co., 53 L. J. Rep., Q. B. Div, 208, 49 L. T. Rep. (N. S.) 617, 32 Wkly. Rep. 220.

It is the practice for the parties to agree on a time; or, the one prose cuting the reference may get the ref. eree to fix the time (writing is not essential to fix it; Sage v. Mosher, 17 How. Pr. 367) and notify the adverse party in priting. If the length of notice is not prescribed by statute or the court, the party is entitled to

reasonable notice. Bernie v. Vandever, 16 Ark. 616. See note 75, supra.

79 People ex rel. Jacobs v. Ball, 37 Hun, 245; N. Y. Code Civ. Pro., $$ 854, 859.

80 N. Y. Code Civ. Pro., $ 1016, and see notes to Form in chapter on TRIALS. Waiver of oath must be noted in the minutes. Flannery t. Sahagian, 134 N. Y. 85.

81 For these purposes the Form is different. See N. Y. Code Civ. Pro., $ 1550 (partition), § 1608 (dower). And in special proceedings a special oath is often required.

82 If the reference is not for the hearing and determination of any question, or imposes other duties, add or substitute a concise indication of it.

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