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. FORM No. 1365. Order staying proceedings until costs of former cause are paid.1 [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 with ten dollars costs, (to be paid to
personally, by reason of his misconduct and bad faith in bringing this action], and that all proceedings on the part of the plaintiff in this action be and they hereby are stayed until the judgment for
dollars costs of the action brought by said against the defendant herein in the Court, entered on the day of , 19, and interest accrued thereon, and the costs of this motion, shall have been paid.
Enter: [signature of judge by initials of name and title.]
[See Payment into Court, p. 1577, supra.]
1 Move at any time before trial of the later action. Loftus v. Straight L. Engine Co., 111 App. Div. 718, 97 N. Y. Supp. 790. Compare Spaulding r. Am. Wood Board Co., 58 App. Div. 314, 68 N. Y. Supp. 945.
The causes of action do not have to be identical; that they are based on the same contract or claim is sufficient. Id. Muratore v. Pirkl, 109 App. Div. 146, 95 N. Y. Supp. 855.
If the second action is brought by an assignee, it may be useful to
show assignor's insolvency; that is sufficiently established by return of execution unsatisfied. Id.
An affidavit of merits should be submitted by the defendant. Faulkner v. Cody, 28 Misc. 66, 59 N. Y. Supp. 807.
The motion must be denied if the judgment for costs is assigned to the defendant after motion made. Tanzheim v. Brooklyn, etc., R. Co., 106 App. Div. 233, 94 N. Y. Supp. 534.
MEANS OF EVIDENCE2
ARTICLE I. STIPULATIONS AS TO EVIDENCE, AND ADMISSIONS.
II. DEMAND OF ADMISSION AND NOTICE TO PRODUCE.
DISCOVERY AND INSPECTION OF DOCUMENTS.
EXAMINATION OF PARTIES BEFORE TRIAL.
FROM ANOTHER STATE OR COUNTRY.
STIPULATIONS AS TO EVIDENCE, AND ADMISSIONS.
1366. Stipulation as to facts or evi
dence for trial (general
Form). 1367. Stipulation narrowing issues. 1368–1376. Statements suitable to be
inserted in the foregoing
Forms. 1377. Stipulation required by the
court as a condition of grant
ing a favor. 1378. Stipulation to produce witness,
and documents. 1379. Stipulation admitting how wit
ness, if present, would testify. 1380. Agreed statement of facts, or of
evidence, for trial.
2 As to the use against a party of his testimony procured by other means, see the following authorities.:
Examination in supplementary proceedings. Keiley v. Dusenbury, 2 Abb. N. C. 360; Code Civ. Pro., § 2460.
- under general assignment act. Matter of Holbrook, 99 N. Y. 539; Matter of Rindskopf, 16 Abb. N. C. 316, n.; Matter of Wilkinson, 36 Hun, 134.
In legislative investigation. People ex rel. McDonald v. Keeler, 32 Hun, 563; rev'd in 99 N. Y. 463; Kilbourn v. Thompson, 103 U. S. 168; People v. Sharp, 14 N. E. Rep. 310, rev'g 45 Hun, 460, 491; In re Pacific Ry. Com. (Cal., 1887), 32 Fed. Rep. 241.
Investigation by municipal council. Briggs v. Mackellar, 2 Abb. Pr. 30; Briggs v. Matsell, Id. 156; Whitcomb's Case, 120 Mass. 118, 21 Am. Rep. 507. (In a note to this case, the case of People v. Learned, 5 Hun, 626, was cited as a special case, wherein the legislature conferred powers enabling the commission to commit for contempt.)
– by supervisors. Faulkner v. Morey, 22 Hun, 379 (L. 1858, chap. 190); Matter of Pilsbury, 56 How. Pr. 290 (1 R. S., 6th ed., 879, 88 44-48).
- by coroner's jury. People v. Fitzgerald, 105 N. Y. 146, rev'g 43 Hun, 35; Code of Crim. Pro., 88 773, 774, 777, etc.
— by search warrant. Code Crim. Pro., $$ 791, 792; People v. Noelke, 29 Hun, 461.
FORM No. 1366. Stipulation as to facts or evidence for trial 3 (general Form). [Title of court and cause.]
The parties hereto* hereby stipulate by their respective attorneys that for the purposes of the trial of the above-entitled action” [if desired to restrict it to one trial, say: for the purpose only of the trial about to be had in this action] * the following facts [and the due execution of the following documents] are admitted (or if desired to make the admission several, say: the following admissions are made]:7
I. The plaintiff admits, [etc.].
II. The defendant admits [etc.].
[For other Forms see below, 1368 to 1374.] [Date.]
[Signatures of attorneys).
3 A stipulation made by the parties or their attorneys with respect to the facts in a case for the purpose of evidence, is general, and not limited in respect of time or occasion, but stands in the case for all purposes until the litigation is ended, unless the court upon application, shall relieve either or both parties from its operation. Stemmler r. Mayor, 179 N. Y. 473. Such a stipulation contained in the record of a former trial may be offered even upon the argument in the Court of Appeals, though not in the case upon the second appeal. Id.
This decision will illustrate the great importance of confining the stipulation in terms to the single trial about to be had.
And the court may decline to per. mit the party to withdraw from his former admission. See Converse v. Sickles, 16 App. Div. 49, 44 N. Y. Supp. 1080, aft'd, 161 N. Y. 666.
See saving clause in Form 1376.
As to the power of the attorney to stipulate, and the rules for con struction of such papers, see Vol. ume I, p. 431.
4 If the stipulation affects the substance of the issues, it is the better practice to express it as that of the parties, though signed by the attorneys; but a stipulation expressed as by the attorneys, is doubtless equally valid for the purpose of the cause in which it is made.
Such a stipulation would be binding upon a second or any subsequent trial, and a party cannot relieve him. self therefrom by notice of withdrawal. Herbst 0. Vacuum Oil Co., 68 Hun, 222, 22 N. Y. Supp. 807, aff’d, 143 N. Y. 671.
6 A consent that certain papers may be read in evidence is a consent that they shall be considered legal evi. dence in the case. Thompson V. Thompson (Ala., Nov., 1890), 11 L. R. A. 443.
7 If an act is stipulated to have been done, the fair import of the language is that it was legally done and that whatever formal steps were necessary to make such act legal and effective were taken. Waldron v. Alling, 73 App. Div. 86, 76 N. Y. Supp. 250.
FORMS Nos. 1358-1376.- STATEMENTS SUITABLE TO BE INSERTED IN
THE FOREGOING FORM.
FORM No. 1367.
Stipulation narrowing issues.8 [Title of court and cause.]
It is agreed that the only question to be tried in this case is [state what, as:] the question as to whether there is a contract between the plaintiffs and the defendant, as alleged by the defendant, and that in case the jury find that there was no such contract the court can direct a verdict for such amount as is proper. The court is to submit that one special fact to the jury, and in case the jury find there was such a contract, then counsel consent that the amount to be allowed to the defendant under the contract may be ascertained either by a reference or in such other way as the court may direct.
FORM No. 1368. Admitting testimony taken on former trial. That the evidence taken upon the previous trial of this action be read in evidence upon the trial about to be had, and that such evidence may be read from the case on appeal to the Appellate Division (and if intending to limit evidence to that taken at former trial] and that no further evidence shall be introduced on either side outside of that which is contained in said case on appeal.
FORM No. 1369.
Limiting proof upon particular topic. That upon the sale in question in this cause no representations were made by the receiver, except such as appear in the printed notice of conditions of sale.10
8 From Chu Pawn v. Irwin, 82 Hun, 607, 31 N. Y. Supp. 724, where the court held that the stipulation excluded the question whether the contract had been induced by fraud.
The parties may stipulate so as to shape the facts upon which an action shall be determined. Hine v. N. Y. El. R. Co., 149 N. Y. 154.
9 From Ryan v. The Mayor, 154 N. Y. 328, where it was held that under it either party could read in evidence any portion of the former record, without regard to which side had offered the evidence upon the former trial.
10 From Casey v. Leslie, 12 App. Div. 34, 42 N. Y. Supp. 362.
FORM No. 1370.
Admission of details stated in schedule. [Substitution for what follows the * above:]—That Schedule A bereto annexed contains a correct statement of all (the descendants of M. N. and their various degrees of relationship — or, all the creditors of M. and the amounts respectively due to them].
FORM No. 1371.
Waiver of authentication. That
waives the proof of the handwriting of any letter of M. N., of
, , to 0. P., of FORM No. 1372.
Admission of copy. That the annexed is a copy of the attachment mentioned in the agreement referred to in the complaint, and may be read in evidence in lieu thereof, and without preliminary proof, and that said attachment was delivered to the sheriff of county, on the day of the same day, but not until after 12 m., said sheriff levied on the property in said agreement mentioned under said attachment.
FORM No. 1373.
Leave to read copy. That the within extracts from the statutes of New Jersey may be read in evidence by either party. 11
FORM No. 1374.
Leave to read copy; another form. That either party may read in evidence from the volume entitled “Ferry leases and railroad grants,” compiled by David T. Valentine, by orders of the common council, in the year 1906, extracts from, or the whole of any laws, agreements, resolutions or ordinances, under which any of the aforesaid railroads were originally constructed or authorized to be built, with like effect as if the originals of any such laws or ordinances, resolutions or agreements were produced.
FORM No. 1375.
Leave to read from minutes or case. That either party may read in evidence any portion of the stenographer's minutes [or, the printed case on the former appeal]
11 See note 6 to Form