FORM No. 1589. Or where the premises should be sold in parcels. IV. That I have ascertained the situation of said premises, and find [here state condition, as thus:] that they consist of a small farm within the limits of the village of M.; and that the defendant Y. Z., after giving the mortgage in suit, upon the whole tract, laid out a portion of the tract which fronts upon a new street of said village, in house-lots, a diagram of which lots is annexed, and marked Schedule C. That the mortgagor subsequently sold lot numbered 1 to the defendant W. X., and at a still later date sold lot numbered 2 to the defendant U. V. That the remaining lots are vacant, and that upon a sale they will not probably produce enough to satisfy the judgment herein. That the other portion of said farm can be sold separately without prejudice to the defendants, but will not probably produce more than enough to satisfy the judgment herein, and cannot advantageously be divided for the sale. And I therefore am of opinion that the part of the mortgaged premises not so laid out in lots should be first sold, and afterward, if necessary to resort to the residue, they should be sold in the following order: first, lots 3 and 4; second, lot 2; third, lot 1.] FORM No. 1590. When there are infants having answered generally, or absentee defendants not appearing. 64 , V. That I have taken proof of the facts and circumstances stated in said plaintiff's complaint, and have examined the said plaintiff [or, and the plaintiff being now abroad in have examined his agent, M. N.] on oath as to any payments which may have been made to him or to any person for his use, on account of the demand mentioned in said complaint, and which ought to be credited thereon, and such proofs, except those which are documentary, and such examinations, are annexed as a part of this report, and marked Exhibits A and B, and I am of opinion that the facts and circumstances stated in said complaint are true. FORM No. 1591. Judgment of foreclosure and sale. 64 Frith v. Cooke, 52 L. T. R. (N. S.) 798. D. JUDGMENT FOR WANT OF REPLY. FORM No. 1592. Affidavit of no reply, etc., to move for judgment.65 [Title of court and action.] [Venue.] Z. T., being duly sworn, says: I. That he is the defendant's attorney in this action. That the answer herein was duly served on the plaintiff's attorney on the day of 19 as appears by the answer here with exhibited with admission of due service of a copy thereof by the said plaintiff's attorney [or, as appears by the annexed affidavit of M. N.- the usual affidavit of service upon an attorney in the cause] that no copy of any reply or demurrer to the counterclaim therein set forth has been served on deponent, and that plaintiff's time to so plead has fully expired. [Jurat.] [Signature.] FORM No. 1593. Notice of motion (or order to show cause) for judgment on failure to reply or demur to answer.66 [Title and commencement; see Form 1566] for an order that for want of a reply or demurrer the defendant have judgment against the plaintiff [for dollars] upon the counterclaim set forth in the answer herein [and may add: and that a reference be ordered to compute the amount due the said defendant upon the counterclaim set forth in the answer herein — or, to take the account of describing it — or, that a writ of inquiry be issued herein to the sheriff of to assess the damages due the defendant under the counterclaim set forth in the answer herein, and that the report of said referee — or, the verdict on said inquisition be returned to this court for its further action], and for such other and further relief as shall be just, with the costs of the action and this motion. FORM No. 1594. Order for judgment for want of reply or demurrer to counter-claim.67 [Title of action.] At a Special Term [etc., as in Form No. 820, p. 1174 of this volume]. On reading and filing the affidavit of A. B., verified the day of 19, and upon the complaint, and the defendant's answer herein, setting up a counter-claim, and it appearing therefrom that said answer has been duly served on the plaintiff more than twenty days since, and no reply or demurrer to said counterclaim has been interposed by the plaintiff and that his time to plead to said counterclaim has fully expired: Now, on motion of T. Z., attorney for defendant, and after hearing A. T. [or, and on reading and filing proof of due notice of this motion, and no one appearing] for plaintiff in opposition, ORDERED, that judgment be entered herein in favor of the above-named defendant against the above-named plaintiff for the sum of dollars [or, in an appropriate case will order writ of inquiry or reference; see Forms Nos. 1572 to 1578, and Forms under Judgment], besides the costs and disbursements of this action, together with ten dollars costs of this motion. Enter: [signature of judge by initials of name and title.] FORM No. 1595. Judgment on failure to reply or demur to answer. [Title of court and action.] The defendant in this action, having duly served his answer on the day of 19 setting up therein a counterelaim to the plaintiff's cause of action, and the plaintiff having failed to reply or demur thereto, and his time so to do having fully expired [and if writ of inquiry or reference has been held, recite it; see Forms 1572 to 1578]: Now, on motion of T. Z., attorney for defendant, It is ADJUDGED, that said defendant recover [etc., stating relief]. [Signature of clerk.] [Date.] 67 Code Civ. Pro., § 515. 70 Please take notice, that the issue[s] of law herein will be brought to trial at a Special [or, Trial Term of this court, appointed to be held in and for the county of city hall, in the city of town of at the [or, at the court house in the ], in said county, on the first Monday" [or other first day of term] of o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard. next, at [Signature and office address of], [Date.] [Address] To Attorney for Attorney for [Serve fourteen days personally, or sixteen days if by mail, before first day of term.]72 68 See, for sufficiency, Townshend t. Hillman, 9 N. Y. Supp. 629, 18 Civ. Pro. Rep. 213. For some variations of the above Form, adapted to peculiar cases, see Form 1602. 69 In the N. Y. Supreme Court, issues of law must be tried at a Trial or Special Term, according as the rules prescribe. N. Y. Code Civ. Pro., § 976. The notice in this respect should conform to the actual practice of the court for which the notice is given. See Osborne v. City of Detroit, 28 Fed. Rep. 385. 70 Any county within the judicial district. Code Civ. Pro., § 990. 71 If the notice specifies a wrong day as the beginning of the term, according to defendant's contention, and the defendant returns the notice, the court cannot compel the defendant to receive it. Plaintiff's means of testing the question is to bring the issue to trial and take defendant's default. Lauferty v. Mut. Res. Life Assoc., 25 Misc. 624, 56 N. Y. Supp. 121. 72 N. Y. Code Civ. Pro., §§ 977, 798. [In case of issue passed without Last pleading served [date]. postponement, add: but date of issue as of- - specifying date when passed.] Number of cause on previous calendar 263 [or, Not on previous calendar].74 [Demurrer.] Plaintiff's [or, defendant's] note. [Signature and office address of attorney.] FORM No. 1598. Decision on demurrer overruling demurrer.75 [Title of court and action.] day of The issue of law arising upon the demurrer of the defendant Y. Z., to the [amended] complaint herein, having come duly on for trial before me at a Special Term [Part III] of this court, on the 19 , now, after hearing Z. T., Esq., of counsel for defendant, in support of the demurrer, and A. T., Esq., of counsel for plaintiff, in opposition thereto and due deliberation having been had thereon, I decide and find as follows: CONCLUSION OF LAW.76 *That the said complaint states facts sufficient to constitute a cause of action. 73 N. Y. Code Civ. Pro., §§ 978, 979. Local rules should also be noticed. Not necessary in counties where a demurrer is heard at Special Term with motions. 74 Omit unless a new calendar is being made up. 75 It is not proper practice to enter an order sustaining or overruling a demurrer. A decision should be made and filed, containing the formal conclusion of law upon the issue. Brown v. Leary, 100 App. Div. 421, 91 N. Y. Supp. 463; Vincent v. Stearns, 47 Misc. 95, 93 N. Y. Supp. 482. See However, an order making proper directions as to entry of judgment will be treated as in effect a decision. Id. No appeal can lie from such an order. Rankin v. Bush, 102 App. Div. 510, 92 N. Y. Supp. 866. No exceptions need be filed to the decision. Cass v. Shewman, 61 Hun, 472, 16 N. Y. Supp. 236. See U. S. Life Ins. Co. v. Jordan, 46 Hun, 201; s. c., with note in 21 Abb. N. C. 330, on Decisions on De murrer. 76 Findings of fact are not neces sary. Eaton v. Wells, 82 N. Y. 576; S. P., Dunham v. Cudlipp, 94 N. Y. 129, 135. |