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FORM No. 1352.

Summons by referee to appear personally.

[Title of court and cause.]

Pursuant to an order of reference herein entered the

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19.., I, the undersigned referee therein appointed, summon you to appear before me at my office, No.

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day of

noon, to attend a hearing

And I direct that this days previous to the return day

thereof.83

[Date.]

[Address] To

[Signature of], Referee.

UNDERWRITING: [state object concisely, for instance, in foreclosure, to compute amount due.]

To ascertain and compute the amount due on the bond mentioned in the complaint.

[Or, on reference as to surplus moneys, thus:]

To ascertain the validity of the claim of the defendant W. X. to the surplus moneys arising on the sale of the mortgaged premises mentioned in the complaint in this cause, and the amount which is due to any other person which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon.

FORM No. 1353.

[Signature of], Referee.

Order that books and papers be deposited with referee before accounting, At a Special Term [etc., as in Form 820, p. 1174].

[Title of cause.]

day of

On reading and filing the affidavit of A. B., the plaintiff [or, on the petition of C. D.- or, on the certificate of the referee] herein, dated the 19 and after hearing A. T., of counsel for the plaintiff, and Z. T. [or, no one appearing], for the defendant [and on proof of due service of notice of this motion]. Now, on motion of A. T., attorney for plaintiff:

83 Instead of a referee's summons, notice of the hearing may be given, as in Form 1349; and this is now

usual except in equity causes, and where personal attendance is required.

ORDERED, that the defendant Y. Z. within [four] days after personal service hereof, on said defendant, or on his attorney, produce before the said referee, under oath, all [here specify the writings] in his custody or power, relating to the matters in question.84

Enter: [signature of judge by initials of name and title.]

FORM No. 1354.

Notice of election to terminate reference.85

[Title of court and cause.]

Please take notice that the [defendant] elects to and does end the reference heretofore ordered herein to [name of referee.] Dated

19 .

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Attorney for [plaintiff].

Attorney for [defendant].

FORM No. 1355.

Notice of bringing on motion after reference.86

[Title of court and cause.]

day of

Please take notice, that on the report of R. F., Esq., referee, filed herein on the is hereto annexed, and on [specify all the papers before the court

84 Where the referee is appointed by the court, and himself makes the order, he has now power in some cases to proceed for contempt without application to the court. N. Y. Code Civ. Pro., § 2272. People ex rel. t. Miller, 9 Misc. 1, 29 N. Y. Supp. 305. Otherwise formerly. Edw. on Ref. 40.

85 Under Code Civ. Pro., § 1019. If the referee fails to file or deliver his report within sixty days after final submission, either party may serve the notice and the reference is thereby terminated.

A reference to take the account of an assignee for benefit of creditors may be thus terminated by notice. Matter of Venable, 111 App. Div. 508, 97 N. Y. Supp. 938. A reference to take proof in a proceeding to compel

19 "

, a copy of which

an attorney to pay over money, or to effect a substitution of attorneys, is not within the section. Bennett t. Pitman, 48 Hun, 612, 21 Abb. N. C. 238; Doyle v. Mayor, 26 Misc. 61, 56 N. Y. Supp. 441.

Attorneys may orally stipulate before the referee as to time of final submission. Sproull v. Star Co., 45 App. Div. 575, 61 N. Y. Supp. 404, 7 Anno. Cas. 172.

86 An ex parte order of confirmation is improper. Sproull v. Star Co., 27 Misc. 27, 56 N. Y. Supp. 1001.

If the proceeding is not in an action, and the reference is not to determine, the remedy is not to file exceptions, but to oppose the motion when brought on upon the report. Matter of Steinert, 24 Hun, 246. See, also, notes under Form 1357.

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upon the original hearing of the motion] the adjourned hearing of the motion for [a perpetual stay] will be had at a Special Term of this court on the 19, at the opening of the court, or as soon thereafter as counsel can be heard, and an application made, on behalf of the [defendant], that the motion be [denied], and for such other or further relief as to the court may seem fit.

[Date.] [Address] To

[Signature and office address of],
Attorney for

Attorney for

FORM No. 1356.

Report of referee of testimony and opinion on question arising on motion

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The undersigned R. F., the referee named in an order of this court, a copy of which is hereto attached [or, entered herein the day of 19 ], respectfully reports:

I. That in pursuance of said order the parties by their attorneys and counsel, appeared before me and gave the evidence hereto attached, marked "A," and which is all the evidence adduced before me,88 and is hereby reported to the court.

II. That it is my opinion, based on said evidence [and the affidavits submitted to the court upon this motion],89 that the injunction issued in this action was violated by the defendants in continuing to remove the earth from the plaintiff's premises after the service of the said injunction upon the defendants.

III. That in my opinion, based on said evidence, the plaintiff suffered damages to the amount of dollars on account

87 A reference upon a controverted question arising upon a motion does not supersede the affidavits submitted upon the motion; they remain before the court. The reference merely gives opportunity for cross-examination of affiants, and introduction of additional testimony. Woodward v. Musgrave, 14 App. Div. 291, 43 N. Y.

Supp. 830, 4 Anno. Cas. 136. If the referee's opinion is sought it would seem to follow that it should be also based upon the affidavits. Compare, however, Fenlon v. Dempsey, 21 Abb. N. C. 291; another decision, 22 id. 114.

88 Story v. Livingston, 13 Pet. 359. 89 See the second preceding note.

of the removal of said earth after the service of the said injunction.

All of which is respectfully submitted.

[Date.] Fees, $

paid.

[Annex the testimony.]

[Signature of], Referee.

[File, with testimony signed by the witnesses;9 serve notice that the report has been filed on all who have appeared.]

FORM No. 1357.

Exceptions to referee's report on special question 91 (assessing damages on injunction undertaking).

[Title of court and cause.]

The plaintiff herein [or other party to the undertaking who excepts to the report] hereby excepts to the report of R. F., Esq., referee, filed the 19 , as follows:

day of

1. To the conclusion of [law] of said referee, wherein he finds [stating it].

2. To the refusal of said referee to find, as a matter of [fact], that [stating it].

3. That said report [or specify part] was founded upon illegal evidence, to wit [indicating it], which said referee received against [plaintiff's] objection.92

[Date.]

[Signature and office address of],
Attorney for

[File, and serve copy on attorney for party filing the report.]

90 Pope v. Perault, 22 Hun, 468; Nat. State Bank v. Hibbard, 45 How. Pr. 280; Bowne v. Leveridge, 2 Monthly L. Bul. 87.

This is not necessary on the trial of the issues in an action, or on computing the amount due in foreclosure. N. Y. Gen. Rules No. 30.

91 Under N. Y. Gen. Rules No. 30, the report (in references other than for the trial of issues or to compute amount in foreclosure) stands confirmed unless exceptions are filed and served within eight days after service of notice of the filing.

Exceptions to the report must be filed upon reference to assess damages. Bates v. Hobrook, 41 Misc. 129, 83 N. Y. Supp. 929 (after appeal to Court of Appeals).

In a reference to take testimony and report (with or without opinion) concerning facts in dispute upon a motion pending before the court, no exceptions are necessary; the ac curacy of the referee's recommendations is presented upon the hearing upon the notice bringing on the mo tion which is necessary to again bring the motion before the court. Martin v. Hodges, 45 Hun, 38; Frost . Reinach, 40 Misc. 412, 81 N. Y. Supp. 246; Doremus t. Doremus, 76 Hun, 337, 27 N. Y. Supp. 1039; Winfield v. Stacom, 40 App. Div. 95, 57 N. Y. Supp. 563. Compare Rovniaek t. Kossalko, 61 App. Div. 486, 70 N. Y. Supp. 36.

92 To review the admission of testi mony taken by a referee (on a refer

FORM No. 1358.

Notice of motion to overrule exceptions and to confirm referee's report.93

[Title of court and action.]

Please take notice, that upon the report of R. F., Esq., referee herein under the order of this court entered the

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19 which report was filed on the

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94

day of day of

19 and on [mentioning any other papers], the undersigned will move this court at a Special Term, to be held at the County Court House [or, the City Hall], in the city of

the

on the

day of

19 at

o'clock in noon, or as soon thereafter as counsel can be heard for an order overruling the exceptions to said report filed herein by the [defendant Y. Z.] and confirming said report [and here may add any other relief desired], with costs of this motion.

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The motion of the plaintiff to overrule the exceptions of the defendant and to confirm the report of the referee herein filed on the day of 19 having come on for argument; now upon [stating all the papers before the court] and

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ence other than of an issue arising on the pleadings), the party should specify as a part of his exceptions to the report that it was founded upon illegal testimony, and the referee had improperly overruled his objection. Brown v. Mayor, etc., of New York, 9 Hun, 587, 595.

93 Notice of motion to confirm the report and for final relief thereon is not to be given until after exceptions have been filed. If no exceptions are filed within eight days after notice of filing, no motion to confirm is proper, but upon due proof of filing report, notice of filing, and certificate from clerk of no exceptions being filed, an er parte order confirming the report should be entered. James v. Horn, 19 App. Div. 259, 46 N. Y. Supp. 187.

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Serve on all parties appearing and adversely interested. Where, by the interlocutory judgment, the action was dismissed as to a defendant, no notice to him is necessary. Jewett v. Schmidt, 108 App. Div. 322, 95 N. Y. Supp. 631.

94 Motion to confirm a report is to be made at Special Term, even though the reference was ordered by the Appellate Division to correct an error for which they modified a judgment brought before them on appeal. Gautier v. Douglas Mfg. Co., 39 Hun, 642. But the Appellate Division has power to confirm it. Tracy v. Talmadge, 1 Abb. Pr. 460.

95 For another Form confirming report of referee under original petition, see Volume I, p. 337.

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