Page images
PDF
EPUB

after reading his opinion there and T. Z., of course attorney for

, add, ang for the plain an' motion of

after reading said report (and the evidence taken by said referee, may add, and his opinion therewith filed, and], after hearing A. T., of counsel for the plaintiff, and T. Z., of counsel for defendant in opposition, now, on motion of A. T., attorney for plaintiff :

ORDERED, that the exceptions of the defendants to the report of the referee herein be and the same hereby are * overruled, and that the said report be, and the same is hereby in all things confirmed, and that (state principal relief according to the case.]

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

FORM No. 1360. Order sustaining exceptions to referee's report. [As above, substituting for the words following the *:] sustained, and the motion to confirm said report is denied with $10 costs to the

, [that said report and order of reference are hereby vacated and set aside] and that [continue with any relief granted.]

ARTICLE XIII.
SET-OFF ON Motion.

FORMS.

1361. Order to show cause why costs

should not be set-off against
each other.

1362. Order setting-off costs against

each other.

FORM No. 1361. Order to show cause why costs should not be set-off against each other.86 [Title of court and cause.]

On the annexed affidavit of A. B., and on the order made herein upon the day of , 19 , and upon the judgment rol] filed herein upon the day of , 19 , let the plaintiff or his attorney show cause at a Special Term of this court, to be held at the in the city of , on the day of

, 19 , or as soon thereafter as counsel can be heard, why the costs awarded to the plaintiff by said order made on , 19 , should not be set-off against the costs awarded to the defendants by the order made on the day of

, 19, or against an equal amount of the costs remaining linpaid on the judgment entered herein on the day of , 19 , and why the defendants should not have such other and further relief as may be just [and why the execution issued to the sheriff of the county of New York, to enforce the collection of the costs awarded by said order, made , 19, should not be vacated].

All proceedings upon the part of said sheriff under said execution, and all proceedings on the part of the plaintiff and his attorney for the enforcement of any costs whatever under any

[ocr errors]

X. C. 349, rey'g id. 20; Hopper .
Ersler, 1 N. Y. Anno. Cas. 192.

The defendant cannot base its application upon the costs in a judgment in favor of a third person, and not assigned to it until after motion made. Tanzsheim v. Brooklyn, etc., R. Co., 106 App. Div. 233, 94 N. Y. Supp. 534.

An assignee of a judgment does not take it subject to a set-off of a judge ment subsequently recovered against the assignor. Jaeger v. Koenig, 33 Misc. 82, 67 N. Y. Supp. 172.

orders in this action, are hereby stayed until the entry of an order on the decision of this motion. Service hereof this day shall be deemed sufficient. [Date.]

[Signature of judge and initials of title.]

FORM No. 1362.

Order setting-off costs against each other.97 [Title (court order) and recitals, according to the case; see

Form 820, p. 1174.]

ORDERED, that said motion be and the same is hereby granted, and the sum of dollars costs [indicating what, as thus] taxed by the clerk of this court as awarded to defendant against plaintiff by the order of the court entered herein on the day of , 19 , be and the same are hereby set off against an equal amount of the general costs of this action awarded to plaintiff against defendant upon the trial hereof, as taxed by the clerk of this court on the day of , 19, and to that extent the said costs be deemed paid and satisfied. [If judgment has been docketed, may add: and it is further ordered that the clerk of this court make the proper correction on the docket of this court by reducing said judgment to the sum of dollars.]

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

thech has been doch costs be deemeday of

97 The court, in its discretion, may

set off one judgment against another. De Camp 1. Thompson, 159 N. Y. 444.

ARTICLE XIV. STAY OF PROCEEDINGS IN USELESS OR VEXATIOUS ACTIONS. (For rules applicable to stays generally, see Volume I, p. 412. For proceedings for stay in order to apply for removal of cause, see Volume II, pp. 1738-1744).

FORMS. 1363. Affidavit to stay proceedings in 1365. Order staying proceedings until the cause until after deter

costs of former cause are mination of another cause.

paid. 1364. Order thereon.

FORM No. 1363. Affidavit to stay proceedings in the cause until after determination of another

cause.98 [Title of court and cause.] [Venue.] Z. T., being duly sworn, says: I. I am the defendant's attorney.

II. This action was commenced [here concisely state the history and condition of the cause, indicating all the parties, it usually being necessary to refer to the pleadings on file, or to annex copies, and show also where and how soon the action can be tried, and the attorneys' names and addresses].

III. On the day of , 19, the defendant above named commenced an action against this plaintiff in the

ion of the caused the pleadings the action can usually being med show also where and addresses].

e tried, pues, and show to refer to indicating all cely state the

88 This application should be made in the cause which it is sought to stay. Purdy 6. Baker, 92 App. Div. 242, 86 N. Y. Supp. 1065. If both actions are in the same court, how ever, there is power in the court to order a stay of one action upon an application made in the other, if the former be an equitable action involving injunction against the other liti. gation as a part of the relief. See Belasco Co. v. Klaw, 98 App. Div. 74, 90 N. Y. Supp. 593; Delahunty r. Canfield, 106 App. Div. 386, 94 N. Y. Supp. 815.

As to the necessary identity of the causes, see Sorley v. Brewer, 18 How. Pr. 509; City of New York v. Interb.

Tr. Co., 109 App. Div, 596, 96 N. Y.
Supp. 314.

The general test is whether the
subject is the same in such sense that
when decided there will be a judicial
estoppel of the parties in the other
suit. Sammons . Parkhurst, 46
Misc. 128, 93 N. Y. Supp. 1063; Jones
v. Leopold, 95 App. Div. 504, 88 N. Y.
Supp. 568; Ogden 1. Pioneer Iron
Works, 91 App. Div. 394, 86 N. Y.
Supp. 955. It is not essential that
the one should be such as to be plead-
able in abatement in the other. Hurd
0. Moiles, 28 Fed. Rep. 897 (holding
that pendency of bill to redeem is
ground for stay of subsequent suit
to foreclose); 8. P., Matthews v.
Shaffer, 19 Wkly. Dig. 456.

Court [here state concisely the history and condition of, and parties to, the other cause in the same way).

IV. The issues in the last mentioned action involve the same questions as those involved in the issues in this action [state issues sufficiently to show how, and add any other circumstances favoring the application, as thus: That the issues in said other action give the defendant in this action, being the plaintiff in that action, the benefit of a jury trial in that action, and he claims that he is entitled to such trial.]

V. No previous application for such an order as this has been made in this action; [but on or about the day of 19 , this defendant applied to the said

Court in said other action for an order staying the trial of this action, and the motion was denied on the ground that the stay could only be granted in the action sought to be stayed.] [Jurat.]

[Signature.] FORM No. 1364. Order staying proceedings in the cause until determination of another cause. [Title (court order) and recitals, according to the case; see Form

820, p. 1174.]

ORDERED, that said motion be, and the same hereby is in all respects granted, and that this action and all proceedings herein, on the part of the plaintiff and his attorneys, be and the same hereby are stayed until [the trial and entry of final judgment"] in the action now pending in

Court of

, in which the defendant above named is plaintiff, and the plaintiff above named and are defendants.

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

99 It is the usual practice to express the stay thus, though there is some ambiguity in the term “ final judg. ment,” it being in some cases under stood to extend to judgment on appeal to the court of last resort if such appeal be taken (see Volume I, p. 417); but as the stay is subject to further order of the court to be made on an application founded on intervening facts, unanticipated delay, or other new matter, it is usually deemed sufficient that the order for the stay should indicate that a trial on the merits and final judgment is contem.

plated, leaving it to the court on a future application if necessary to qualify the direction.

For other Forms, see CONSOLIDATION, pp. 1522, 1523.

In Hodges v. Pingree, 108 Mass. 585, where the order for stay in an action at law, was merely “to abide decision in ” a suit in equity, held that on verdict, and order thereon for an account, in the equity suit, the action at law could proceed without awaiting final decree in the equity suit.

« PreviousContinue »