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[Oath to merits where defendant ask's stay:51] IX. That de ponent has fully and fairly stated the case to A. T., Esq., his counsel herein, who resides at No.

street, in the city of , and that he has a good and substantial defense on the merits to the action [or, proceeding], as he is advised by his said counsel after said statement, and verily believes to be true.

X. [If an order to show cause is asked, state as to previous application and the reason for not giving the usual notice, as in Form 816, p. 1172.] [Jurat.]

[Signature.] FORMs Nos. 1432–1437.-- STATEMENTS OF CONDITION OF CAUSE SUIT. ABLE TO BE INSERTED IN FOREGOING FORM.

FORM No. 1432.

To assess damages after default.52 III. That the summons (and complaint] herein were duly served on the defendant personally within the State (or, by publication — or, personally without the State - pursuant to an order herein, dated, etc.), as appears by the annexed affidavit of C. D. [or otherwisel; and the defendant's time to plead expired on the day of

19 ; that he has made de fault in pleading; that he has [not] appeared herein, and has [not] demanded notice of the execution of any reference or writ of inquiry herein ;53 all of which more fully appears by the annexed affidavit of C. D.; and that [here state briefly the proceedings for the inquest, etc.].

FORM No. 1433. After final judgment, to carry it into effect.54 III. That on the day of , 19, final judgment herein was entered, and the judgment-roll filed in the office of the clerk of this court [or, of the clerk of the county of by which judgment it was, among other things [here state briefly the proceedings requiring the testimony.]55

an

dades and the defend the annexed

51 An affidavit of merits is necessary only when the party asks for a stay of proceedings until the return of the commission. Warner v. Harvey, 9 Wend. 444; S, P., Franklin v. U. S. Ins. Co., 2 Johns. Cas. 285; Meech 1. Calkins, 4 Hill, 534; Brisban v. Hoyt, 1 Wend. 27.

62 Authorized by N. Y. Code Civ. Pro., & 888, subd. 1.

63 Id., & 1219, subd 2.

54 Id., $ 888, subd. 2. Not allowed on motion by one not a party — as a purchaser seeking to be relieved. Crane 1. Evans, 18 Abb. N. C. 444.

55 A commission will not issue to take the deposition of witnesses for uise in supplementary proceedings. Graham 1. Colburn, 6 Duer, 678, 14 How. Pr. 52; Morrell r'. Hey, 15 Abb. Pr. 430, 24 How, Pr. 48; 8. P., Matter of an Attorney, 83 N. Y. 164.

FORM No. 1434.

In anticipation of desired new trial.56 III. That on the

day of , 19 [after a trial of this action before a referee, and upon his report — or otherwise, as the case may be], final judgment was rendered herein in favor of the

against the

for , and thereafter said

appealed therefrom to [or, moved at

for a new trial upon — etc., briefly indicating grounds] ; and that said appeal [or, motion] is now pending and undetermined; and that, if a new trial should be awarded, the question whether [stating it] will be among the issues which deponent will desire to maintain.

FORM No. 1435. Before issue, witness being a transient person, or sick, etc.57 III. That on the day of , 19, the summons and complaint herein were duly served on the defendant personally, within the State [or, by publication- or, personally, without the State — pursuant to an order herein, dated, etc.], as appears by the annexed affidavit of C. D.; and that issue has not been joined, and defendant's time to plead will not expire until the

day of , 19 [That defendant has not appeared herein – continue as in paragraph VI of Form 1431.]

FORM No. 1436.

After issue joined. 58 III. That on the day of last, issue herein was joined by the service [on plaintiff of defendant's answer to plaintiff's complaint); and that among the issues are payment and the Statute of Limitations (or otherwise; see Forms Nos. 1387 and 1400, etc.).

56 Authorized by N. Y. Code Civ. Pro., $ 888, subd. 3.

57 N. Y. Code Civ. Pro., & 888, subd. 4. When issue is joined as to one of several defendants, a commission may be issued to take testimony out of the State, although issue is not joined as to all the defendants. See next note.

If the action is interpleader, or the issues are between co-defendants, indicate that the testimony is material to issues between the parties between whom it is used. Kemp v. Dickinson, 22 Hun, 593 (interpleader).

68 Authorized by N. Y. Code Civ. Pro., § 888, subd 5.

The court has power, even during the trial before a referee, to issue a commission, and should do so where a delay of not more than thirty days will be caused. Merc. Nat. Bank r. Sire, 100 App. Div. 459, 91 N. Y. Supp. 418.

Cause need not be at issue, as to others than the moving defendants. Boyes v. Bossard, 87 App. Div. 605, 84 N. Y. Supp. 563. Or entirely at issue to allow plaintiff to move. Laidlaw v. Stimson, 67 App. Div. 545, 74 N. Y. Supp. 684.

FORM No. 1437. Notice of motion or order to show cause for commission, 59 [As in Form 815, p. 1171 of this volume (or if order to show cause, as in Form 818, p. 1173), substituting for the italic matter between the I and I the following:] that a commission issue in this action, directed to C. C., Esq., of

[counsellor-atlaw], or to one or more other competent persons therein named, * for the examination on oath of M. N., of , as a witness herein, on behalf of the plaintiff [or, the defendant], upon interrogatories to be annexed (in which defendant will be at liberty to join — and that the trial of this action be stayed until the return of such commission].

[Or if after an issue of fact has been joined, it is desired to examine specified witnesses wholly or partly upon oral questions, may say, continuing from the * above:01 for the examination of M. N. as a witness herein on behalf of the — plaintiff — upon oral questions — or, upon the written interrogatories hereto annexed, and upon such oral questions at said examination as the — plaintiff's — counsel may think proper — or, for the examination of M. N. on the written interrogatories hereto annexed, and 0. P. upon oral questions, on behalf of the — plaintiff].

FORM No. 1438.

Order for a commission.63 [Caption 64 and recitals as in Forms 819 or 820, p. 1174 of this volume.]

ORDERED, that a commission issue in this action, directed to C. C., Esq., of counsellor-at-law), to examine under oath, *

59 This application may be made to the court or a judge thereof, and if the action is in the Supreme Court, to a county judge of the county where the action is triable. N. Y. Code Civ. Pro., § 889.

But if made pending appeal, or a motion for a new trial, it must be made to the court. Id.

Notice of the application must be given the adverse party unless he is in default for want of an appearance.

davit. Biays v. Merrihew, 3 Johns. 251. The commission will not be granted until the commissioner is named. Vanstophorst v. Maryland, 2 Dall. 401.

61 This form of examination is provided for by N. Y. Code Civ. Pro.. $ 893.

62 See notes to next Form, and to Forms for application for open commission, 1496-1499, post.

63 This order may be adapted to the oral examination of some or all of the witnesses, wholly or partly, in accordance with N. Y. Code Civ. Pro., § 893. Except that the applicant cannot be examined on an open commission, or wholly or partly upon oral questions. See Ordway v. Radigan, 114 App. Div. 538; N. Y. Code Civ. Pro., § 895.

64 May be made by the court or

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60 The moving party may properly suggest the name of the commissioner in his notice of motion. Harris v. Wilson, 2 Wend. 627 (except in divorce).

The adverse party may object to the commissioner named in the mov, ing papers (McLean v. Adams, 45 Hun, 189), but it should be by affi

upon interrogatories to be annexed thereto, M. X., of a witness on behalf of the [defendant] ;64a [here may, under N. Y. Statute, insert directions for return; but the former practice, and the better practice still, is to indorse them on the commission;] that the Lplaintiff] be at liberty to join in the said commission; and that the trial of this action be stayed65 until the return thereof † (and it is further ordered that ten dollars costs of this motion abide the event of the action].

[For other clauses see Forms 1439 to 1446 (below).]

[If the commission is to issue from one of the principal courts to a foreign country, and the witness does not understand the English language, may say:] And it is further ordered, that the interrogatories and cross-interrogatories to be put to the said witness J. N. be framed in the English and also in the [French] languages; that only the interrogatories framed in the (French) language be put to the witness, and that his answers be taken, and the certificate thereto be made out in the same language. That A. B., the plaintiff herein, pay to the defendant Y. Z. the sum of dollars for the said Y. Z.'s expenses in procuring the said interrogatories on his behalf to be translated. Unless the interrogatories are settled by consent, they shall be settled by one of the justices of this court on stwo7 days' notice in both the English and [French] languages, and the expenses of an in

judge thereof, except where the appliration therefor is made pending an appeal or motion for a new trial, when it must be made by the court. NY, Code Civ. Pro., $ 888.

A referee has no power to issue a commission to examine a witness out of the State. Rathbun r. Ingersoll, 34 N. Y. Super. Ct. 211 (dictum); S. P., Paddock v. Kirkham, 102 N. Y. 597.

64a The order must name the commissioner. Hemenway 1. Knudson, 13 Hun, 227, 25 N. Y. Supp. 1018; Wallace r. Blake, 56 N. Y. Super. Ct. 519, 4 N. Y. Supp. 438, 16 Civ. Pro. Rep. 384. It must also name all the witnesses. Ordway 1. Radigan, 114 App. Div. 539.

The commissioner named should be disinterested between the parties. McLean o. Adams, 45 Hun, 189, 9 St. Rep. 318.

By X. Y. Code Civ. Pro., $ 892, unless the parties stipulate in writing, or the order granting the commission prescribes how it shall be returned,

the judge must indorse upon the commission the proper direction for that purpose. Formerly the manner of return was to be fixed by the officer settling the interrogatories. Fleming r. Hollenback, 7 Barb. 271.

65 The order for a commission is not, per se, a stay of proceedings. Marnard 1. Chapin, 7 Wend. 520.

The court will usually grant a reasonable stay, unless the applicant has been guilty of laches. Roth v. Mautner, 115 App. Div. 148. The granting a stay is in the discretion of the court or judge to whom the application is made; perhaps the court would review an order refusing to stay proceedings until the return of a commission. Thatcher v. Bennett, MS., 1 Bliss Code, 5th ed., 1580.

A stay will not be refused upon affidavit that the witnesses named are incompetent, but the court will leave the question of competency to be determined at the trial. Graves v. Delaplaine, 11 Johns. 200.

terpreter incidental to such settlement shall be paid by A. B., the plaintiff herein.66

[Authentication as in Form 818, p. 1173 of this volume.]

[Enter this order even though made by a judge.67 If it contains a stay, serve certified copy.]

FORMS Nos. 1439-1446.— STATEMENTS OF CONDITION OR TERMS SUITABLE TO BE INSERTED IN FOREGOING FORM.68

FORM No. 1439.

Costs.

This order is granted on condition that the [moving party] pay to , or his attorney forthwith [or, within dayses]

dollars, costs of this action, before notice of trial, and $10 costs of this motion; otherwise said motion is denied.

FORM No. 1440.

Security for costs.co Insert in previous Form: on condition that the [plaintiff] file security for costs in the sum of dollars.

FORM No. 1441.

Examination to be limited. This motion is granted on condition that the moving party), within days, file a specification of the particulars which it is desired to prove [here indicate as to what], and that the commission and interrogatories be limited thereto."

66 Provision is made for this order by N. Y. Code Civ. Pro., § 912. See Roth v. Mautner, 115 App. Div. 148.

Before this enactment, in a case where the commissioner acted as in terpreter, no special instructions in that particular having been given by either party, held, that the power was implied. Leetch v, Atlantic, etc., Ins. Co., 4 Daly, 518. If party is to be examined, direct as to expenses. See Delcomyn v. Chamberlain, 37 N. Y. Super. Ct. 359.

If a judge's order, it is subject to the control of the court. Id., & 890.

68 The court or judge may impose such terms as justice requires. N. Y. Code Civ. Pro., & 889.

It may grant an order on condition that the party consent, or deny it unless the party consent. Vol. I, p. 230.

67 The order must be entered. N. Y. Code Civ. Pro., $ 890. And if not entered, the commission itself is ren dered irregular. Whitney v. Wyncoop, 4 Abb. Pr. 370.

68a See Vol. I, p. 231.

69 May be required as a condition for granting a commission, even when security could not be required under statute. Hames v. Judd, i6 Daly, 110, 9 N. Y. Supp. 743, 18 Civ, Pro, Rep. 327.

70 Estate of Kendall, 2 Monthly L. Bul. 51.

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