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complaint or, having taken proof of the facts alleged in the complaint], for the purpose of enabling it to render judgment herein:

[Continue, if a mere money judgment, as in Form 1565 from the 8, or in other cases as in Forms below.]

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

FORM No. 1570.

Order for judgment for special relief (short Form such as may be indorsed on draft of judgment).25

[Title of action.]

At a Special Term [etc., or, Trial Term etc., as in Form 820, p. 1174].26

ORDERED, that on filing the papers within mentioned, judgment be entered herein for the plaintiff against the defendant, as within [with dollars costs of this motion].

FORM No. 1571.

Another Form; reciting notice of no personal claim, or indorsed summons in partition, or penal action, or arrest, or guardian ad litem.

[Title of action.]

At a Special Term [etc., or, Trial Term -etc., as in Form 820, p. 1174].27

The summons and complaint in this action [or, with a notice in this action pursuant to section 419 of the Code of Civil Procedure, and if in partition, may add: with a notice pursuant to section 1541- or in a penal action, may add: with an indorsement pursuant to section 1897], having been duly personally served on Y. Z., the defendant, on the day of 19 [if defendant has been arrested otherwise than by court order (ne exeat), add: and twenty days since the arrest of the defendant herein having expired28 or if a defendant is an infant: and twenty days since the appointment of a guardian ad litem for the defendant W. X. having expired29], and said defendant having made default in appearing [or, in pleading] as appears by the annexed affidavit of A. T., attorney for the plaintiff, verified on the day of 19 : t

[Continue as in next Form from the †.]

25 The more usual (if, perhaps, not the more technically correct) practice is to entitle the judgment as above, and have the judge sign it with a direction to enter; and to enter no formal order of direction. See Forms of Judgment after Trial by Court.

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26 See notes 17 and 18 to Form 1566.

27 See notes 17 and 18 to Form 1566
28 N. Y. Code Civ. Pro., § 566.
29 Id., § 1218.

FORM No. 1572.

Another Form; where damages are to be assessed by writ of inquiry, or a reference is to be had.

[Caption as in last Form. Recitals according to the circumstances; see Forms 1565, 1569, 1571, continuing:] Now, on motion of A. T., attorney for the plaintiff, it is

ORDERED AND ADJUDGED, that the plaintiff recover of the defendant the damages by him sustained on account of the cause of action alleged in the complaint [and that he recover also the possession etc.30] and further, it is

31

ORDERED, [that said damages be assessed by a jury,31 and] that a writ of inquiry issue to the sheriff of [the county of place of trial,33] to ascertain the damages of the plaintiff herein by a jury impanelled by him [or, instead of last clause, that said sheriff attend at the court house at in the county of that the writ be executed in open court, the judge presiding, and that the jury to ascertain the damages be drawn from the panel of jurors then in attendance at the trial term of this court then in session34],

[Or, ORDERED, that it be referred to R. F., Esq., of

to-here state inquiry, as: take proof of the allegations of the plaintiff's complaint, and report his findings to this court with all convenient speed.]

[In either case may add: It is further ordered, that the inquisition returned on said writ of inquiry-or, the report of said referee be returned to this court for its further action thereon -or, may add, though not essential, that on the filing of the inquisition or, report of said referee-judgment may be

30 In ejectment an order for judg ment for possession may be granted without proof, after default. Sayres v. Miller, 10 N. Y. Civ. Pro. Rep. 69.

31 Omit when the action for personal injuries or injuries to property, as damages must be so assessed. N. Y. Code Civ. Pro. 1215.

A reference cannot be ordered in an action for a personal injury, or an injury to property. Code Civ. Pro.,

1215; Fullerton v. Young, 46 Misc. 292, 94 N Y. Supp. 511.

32 For the practice, see notes under Form 1574; Bossout v. R.. W & O. R. R. Co., 131 N. Y. 37; Thompson v. Lumley, 7 Daly. 74, 1 Abb. N. C. 254, 50 How. Pr. 105; Samuels v. Bryant, 14 Abb. Pr. (N. S.) 442; Cazneau r.

Bryant, 4 Abb. Pr. 402, 6 Duer, 668; Harder v. Harder, 26 Barb. 409. Defendant may introduce affirmative proof on the question of damages Bassett v. French, 10 Misc. 672, 31 N. Y. Supp. 667, 1 Anno. Cas. 270.

33 N. Y. Gen. Rules No. 26.

34 From Elsey r. Int. Ry. Co., 93 App. Div. 115, 87 N. Y. Supp. 29, holding that the court has power to so direct, and approving the practice where troublesome questions of law are likely to arise upon the assessment.

35 Reference is not usually ordered where the question is one of unliquidated damages, unless it depends on a long account. Hewitt t. Howell, S How. Pr. 346.

entered in accordance therewith and with this order, without further notice.]36

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

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WHEREAS, in an action brought by A. B. against Y. Z. in our Court, such proceedings were had, upon the due personal service of the summons [and complaint] therein upon said Y. Z., that the said A. B. obtained [judgment for his damages therein alleged, and] an order of the said court, [or, of Hon. J. K., one of the justices of said court], directing the plaintiff's damages in the said action to be assessed by a jury, a copy of the complaint in said action being hereunto annexed; therefore we command you that by the oaths of twelve good and lawful men of your county, you diligently inquire what damages the said A. B. hath sustained for and on account of the matters alleged in said complaint, and that you with all convenient speed [or may say: on or before the day of 19] return to the office of the clerk of the county of [or, of the said Court] the inquisition taken by you, by virtue of this writ, under your hand and seal and the hands and seals of those by whose oaths you shall take that inquisition, together with this writ.

WITNESS [teste and signatures, as in Form No. 1241, p. 1528].

FORM No. 1574.

Notice of execution of writ of inquiry.37

[As in Form 1560, substituting for the words between the * and the as damages will be assessed by a jury before S. H., sheriff of the county of

at

[etc.].

[Serve five days before execution of writ.]38

36 Code Civ. Pro., § 1215.

37 Necessary, where defendant has appeared generally, or has served the notice specified in N. Y. Code Civ. Pro., § 1219; Kelsey v. Covert, 6 Abb. Pr. 336, note; 15 How. Pr. 92. Notice by anticipation expressed to be "provided an interlocutory judgment shall have been obtained in the cause," is

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good. Oothout r. Rooth, 12 Johns. 151 (where motion to set aside writ of inquiry was denied); and Anon., 4 Sandf. 693. But compare Colvin v. Alvord, 1 How. Pr. 99, where an assessment, on notice given before default entered, was set aside.

38 Code Civ. Pro., § 1219.

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INQUISITION, taken at [the county court house], in the city of

19.

,

in the county of

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on the day of before S. H., sheriff of said county, by virtue of the annexed writ to him delivered, to inquire of matters in the said writ specified, by the oaths of [here name the jurors], good and lawful men of the said county, who, being chosen, tried and sworn, say, upon their oath, that A. B., in said writ named, has sustained damages, by reason of the premises in the said writ mentioned, to the amount of dollars.

IN WITNESS whereof, as well I, the said sheriff, as the said jurors, have set our seals to this inquisition the day and year above written. [Signature and seal of],

Sheriff.

[Signature and seal of each juror.]

Jurors.

FORM No. 1576.

Return by sheriff of inquisition of damages to be indorsed on writ. The execution of the within writ appears by the inquisition hereunto annexed.

[Date.]

[Signature of],

Sheriff.

FORM No. 1577.

Notice of motion to set aside inquisition, or report, and for a new assessment.39 [Title of court and cause.]

day of

[As in Form No. 815, p. 1171, of this volume stating as relief sought:] setting aside the inquisition of the sheriff's jury taken herein on the 19 [and, if judgment has been entered thereon, may ask that it be also set aside] and for a new assessment before another jury [or, at a trial term of this court] upon the following grounds: [state specifically, especially if any irregularity is to be urged.]

39 N. Y. Code Civ. Pro., § 1232. The judgment cannot be appealed from. The proper remedy is by motion to set aside the inquisition or report, and for a new assessment, and, being addressed largely to the court's discretion, is only appealable to the Appellate Division. Bossout v. R., W.

& O. R. R. Co., 131 N. Y. 37: Bassett v. French, 155 N. Y. 46. Nor will the Court of Appeals review the questions presented, even if certified to it. Lewin r. Lehigh Valley R. R. Co., 169 N. Y. 337. This motion may be properly heard immediately upon the coming in of the verdict, upon the

FORM No. 1578.

Judgment after assessment of damages, etc.

[Title of court and cause.]

[Recitals according to the case; see Forms Nos. 1565 and 1571, and the damages sustained by the plaintiff by reason of the matters alleged in the complaint having been duly assessed at the sum of dollars by a referee appointed by the court [or, by a writ of inquiry-or, by a jury under the direction of the court,― add, if notice was required: after due notice to the defendant]; and the plaintiff's costs having been duly taxed at dollars; now, on motion of A. T., attorney for the

plaintiff :

IT IS ADJUDGED, that the plaintiff, A. B., recover of the defendant, Y. Z., [or, defendants, naming them]

damages thus assessed, with amounting in all to the sum of

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dollars, the dollars costs as taxed,

dollars.

[Signature of],

Clerk.

An

minutes, if taken before a judge, and no objection made on the ground that no formal notice of motion has been given. Yaw . Whitmore, 66 App. Div. 317, 72 N. Y. Supp. 765. assessment was set aside and a new assessment ordered in Lewin v. Lehigh Valley R. R. Co., 66 App. Div. 409, 72 N. Y. Supp. 881.

Of course, if the order directed the report or inquisition to be returned to the court for further action (§ 1215), no judgment could be entered without such further direction, upon application for which the various questions, which could be raised on a motion to set aside the inquisition, would be properly before the court.

Substan

tially the same questions are presented upon the motion as when a judge is asked to set aside any verdict, though the moving party must show prejudice, and the court has a large discretion. Bossout case, supra. The proceedings upon the inquisition do not form a part of the judg ment-roll. Stone v. Smith, 31 Misc. 740, 64 N. Y. Supp. 139. The moving affidavit should, therefore, present such facts as are necessary to show

the errors or irregularities complained of; a sworn copy of the stenographer's minutes should be presented, if obtainable. The defendant should appear upon the hearing, and make proper objection and exception, in order to present questions for review upon the evidence. Greenleaf v. Brooklyn, etc., R. Co., 102 N. Y. 96. On taking an appeal, a case and exceptions should be prepared. See cases, supra, particularly Yaw v. Whitmore. While most of the cases cited above involve an assessment of damages after judgment absolute ordered in the Court of Appeals, the practice upon a review of an assessment after default will be the same. Bassett v. French, supra. The assessment ought to be taken before a judge and jury, rather than a sheriff and jury, if the hearing will present difficult questions of law; and as proof of damages, especially in tort actions, may usually involve such questions, it will be safer practice to have the writ of inquiry directed to be executed at a trial term. See Form 1572, note 34.

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