« PreviousContinue »
uest taken emiss the conty Court he county[or, city of
an inquest taken therein — or, if defendant's notice:35 and a motion made to dismiss the complaint] at a Special Term — or, Trial Term — or, in the County Court, the next term,- of this] court appointed to be held in and for the county of , at the County Court house [or, city hall] in the town [or, city — or, borough] of , in said county, on the day of
, 1996 [if a previous notice has been served for a term not yet ended, at which the cause may possibly be reached, add: unless the same has been then already triedo].
[If preference is desired, and the cause is triable either in New York, Kings, Queens or Erie counties, or in the seventh judicial district, must serve notice of application therefor. ] 98
[Date, signatures, addresses, etc., as in Form No. 1606.]
[Serve fourteen days personally, or sixteen days if by mail, before first day of term.']
nullity, and the defect is not waived by not returning it. Walker v. Chil. son, 65 llun, 529, 20 N. Y. Supp. 527.
A notice of trial may be served before the adversary's right to amend has expired, but is nullified by the service of an amended pleading within the time. Coler v. Lamb, 19 App. Div. 236, 46 N. Y. Supp. 117.
A subsequent amendment of a pleading by leave of court, which changes the issues, requires the ser vice of a new notice of trial, unless the court, by a direction in the order allowing the amendment, provides otherwise. Code Civ. Pro., &* 723, as amended in 1900. See Ward v. Smith, 103 App. Div. 375, 92 N. Y. Supp. 110i; Miller t. Mestaniz, 84 N. Ý. Supp. 503. A supplemental pleading is not within the rule. Lovatt v. Watson, 35 Hun, 553.
95 The object of serving a cross. notice is that the defendant may be in a position to move the cause and take a dismissal if plaintiff does not proceed. Code Civ. Pro., & 980; Dart v. Soloman, 5 N. Y. St. Rep. 911. A cross-notice does not act as an estoppel, so as to defeat a right to amend. Clifton v. Brown, 2 Civ. Pro. Rep. 44.
96 The first day of the term. In the New York City Court the notice may be given for the term, as above, or for any day of the term. Code Civ. Pro., $ 3162. A notice
specifying Sunday is void. State Bank v. Spence, 37 Misc. 854, 76 N. Y. Supp. 984.
A notice claimed to be irregular in specifying a wrong day as the first day of the term and having been returned by the defendant, the court has no power to order its acceptance. Lauferty v. Mut. Res. Life Assoc., 25 Misc. 634, 56 N. Y. Supp. 121.
9 7 Unnecessary in the nine counties named, where only one notice of trial is necessary. N. Y. Code Civ. Pro., $ 977.
98 See pp. 1582-1587 of this volume.
99 A notice of trial forms no proper part of a judgment roll, after trial had. Sweeny t. Kellogg, 96 App. Div. 399, 89 N. Y. Supp. 314.
i Code Civ. Pro., 88 977, 798; Walker v. Chilson, 65 Hun, 529, 20 N. Y. Supp. 527; Veinstok 0. Veinstok, 63 App. Div. 16, 71 N. Y. Supp. 195. Non-receipt of mailed notice is immaterial on the question of the party's right to proceed. Schwarz l'. Livingston, 18 N. Y. Supp. 879, 46 St. Rep. 477.
If the notice is irregular it is the duty of the party receiving it to re. turn it promptly or the defect will be waived." See Ward 0. Smith, 45 Misc. 169, 91 N. Y. Supp. 905; rev'd, on another ground, 103 App. Div. 375, 92 N. Y. Supp. 1107.
FORM No. 1602.
Note of issue for trial of issue of fact.2 [Name of court and term.] A. T., plaintiff's attorney.
Issue of fact. Triable by jury (or, A. B., plaintiff,
by court without jury].
}T. W., attorney for defendant against
| T. Z., attorney for defendant W. X. and Y. Z., defendants.)
Last pleading served the day of
, 19 [in a cause which has been passed without postponement, add: but date of issue to be as of — specifying date when passed.]
Action for damages for breach of contract [or otherwise specify the particular nature of the action.]
Number of cause on previous calendar, 263 [or, Not on previous calendar.3]
[Preference is claimed under Code Civ. Pro. § 791, subd. 5, adding on what ground." ]
[In N. Y. City Court, add: Cause noticed for term — or, for the day of
next."] Plaintiff's (or defendant's] note.
[Signature and office address of attorney.]
FORM No. 1603. The same; at trial term, New York county.6 [Add to above note:] Action for [state particular nature, as:] libel. Place upon Calendar No. .
2 N. Y. Code Civ. Pro., & 977. See local rules. Must be filed for same term for which the cause was noticed for trial. Siefke v. Siefke, 21 Misc. 407. The parties cannot stipulate so as to avoid the rule. Leonard v. Faber, 31 App. Div. 137, 52 N. Y. Supp. 772.
For cases turning upon an inadvertent omission to file note of issue, see Loftus v. Oppenheim, 84 App. Div. 464, 82 N. Y. Supp. 1037; Hix v. Edison Elec. L. Co., 78 App. Div. 384, 79 N. Y. Supp. 1016.
3 Not necessary, unless a new cal. endar of old issues is being made up.
4 Under Code Civ. Pro., $ 793, when
the ground for preference appears in the pleadings, and the action is triable in other than the counties excepted in the section.
If not appearing in the pleadings, the applicant for the preference must have procured an order on notice, and serve with his notice of trial. A copy of such order should be given to the clerk with the note of issue.
5 N. Y. Code Civ. Pro., $ 3162. This does not prevent a note of issue being filed on the same day, prior to service of notice of trial. Lederer v. Adler, 44 Misc. 217, 88 N. Y. Supp. 1010.
Special rule No. 1 of Trial Term, New York county.
FORM No. 1604.
Affidavit of merits to prevent inquest.7 [Title of court and action.] [Venue.]
Y. Z., being duly sworn, says:
That he is the defendants in the above-entitled action, and that he has fully and fairly stated the case to
his counsel herein, who resides at No. in
street, in the of , and that he has a good and substantia!
7 Where tlie answer is unverified, and no affidavit of merits has been filed and served, plaintiff may move the case for an inquest at the opening of court on any day of the term after the first day. Gen. Rule No. 28. The practice has fallen into disuse, and defendant will ordinarily be re. lieved from the default upon terms, or will be allowed to make and serve an affidavit of merits forthwith, and the application then denied. See Beg. lin v. People's Trust Co., 48 Misc. 494.
An affidavit of merits is not necessary in equity cause. Devlin v. Shannon, 8 Hun, 531. Nor in any case if the answer is verified. N. Y. Code Civ. Pro., & 980.
8 If not by the defendant, state reason, and deponent's relation to the cause so as to show his means of knowledge.
9 It is wise to follow the settled form of an affidavit of merits, as slight deviations have been held to render the affidavit insufficient. In general it should state that defendant has " fully and fairly stated the case to his counsel.” See Onondaga County Bank 0. Shepherd, 19 Wend. 10; Bleecker v. Storms, 2 How. Pr. 161; Cary v. Livermore, id., 170. Stating that the party has fully stated “his case,” or “this case," has been held sufficient under old Rule 61 of the Supreme Court. Brownell v. Marsh, 22 Wend. 636. And see Brown v.
Masten, 2 How. Pr. 187, 195. So, stating that the party has fully, etc., “stated the facts of this case,” has been held sufficient; it implies that he has stated all the facts which make the whole case, Jordan r. Garrison, 6 How. Pr. 6. That he has stated “all the facts relative to the action" is sufficient. Laroque t. Conhaim, 45 Misc. 234, 92 N. Y. Supp. 99. But stating that he has fully, etc., stated the facts of his case — has stated his case in this cause — has fully, etc., stated his defense — has stated the facts of his defense, or the like, is insufficient. Morgan v. McDonald, 70 Cal. 32; Fitzhugh c. Truax, 1 Hill, 644; Brownell v. Marsh, 22 Wend. 636; Richmond v. Cowles, 2 Hill, 359; Ellis v. Jones, 6 How. Pr. 296; Tompkins v. Acer, 10 id, 309; Rickards 0. Swetzer, 3 id. 413, 1 Code Rep. 117.
So, under old Rule 61, a statement that the party “has made a full and fair statement of all the facts of the case in the above cause to," etc., “as far as the facts have come to his knowledge, and he believes them to exist," was insufficient. If the party cannot comply with the language of the rule, he should disclose his ercuses. Brown v. St. John and Tousey, 19 Wend. 617.
10" Full” defense is not equivalent for “good.” Bank of Utica v. Root, 4 Hill, 535.
defense on the merits' to the action,12 and he is advised by his said counsel13, after such statement, 14 and verily believes to be true. 15 [Jurat.]
[Signature.] FORM No. 1605.
The same — made by counsel. [Commencement and conclusion as in other cases.]
That he is the attorney and counsel of the above-named defendant Y. Z., retained to defend this action, and that from the statement of the case in this action, made to deponent by defendant Y. Z., deponent verily believes that defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint (or to some part thereof.18] [Add also reason why the affidavit is not made by defendant.17]
FORM No. 1606. Notice of motion to strike cause from the calendar.18 [Title of court and cause.]
Take notice, that on the annexed affidavit of , verified on the day of
, 19 [and upon the pleadings — 11 As to whether the words “ on the if these words are omitted it will be merits” are strictly necessary, see deemed implied by the form of the Briggs r. Briggs, 3 Johns. 449; Meech preceding allegations. Brown v. Seys, 0. Calkins, 4 Hill, 534; Tompkins v. 2 How. Pr. 276. Acer, 10 How. Pr. 309.
13 An affidavit that deponent “is 12 Stating a defense to "the de- advised by said counsel that said demand," or " the bond,” or “note," or fendants have a good and substantial " declaration," is held not sufficient. defense to said suit on the merits, Meech v. Calkins, 4 Hill, 534; Mason which advice deponent believes to be r. Moore, 2 How. Pr. 70; Chemung true," was held insufficient, in BritCanal Bank v. Supervisors of Che tan v. Peabody, 4 Hill, 61. mung, id. 162; Durant v. Cook, id. So of an affidavit in which the word 43; Howe v. Hasbrouck, id. 67. So “believed ” was used instead of “beof a statement that defendant “has lieves” to be true. Wharton 0. a good and substantial defense upon Barry, 1 How. Pr. 60. the merits to the whole or some part 16 This qualification is allowed in of the plaintiff's demand." Chemung counsel's aslidavit for the purpose of Canal Bank v. Supervisors of Che obtaining extension of time to anmung, id. 162.
swer, by N. Y. Gen. Rule No. 24. 13 In general the affidavit should 17 Griel v. Buckius, (Pa., 1887) 4 show the advice of counsel. Swart Cent. Rep. 507; Miller v. Hooker, 2 wout 1. Hoage, 16 Johns. 3; Bruen How. Pr. 124; Davis v. Solomon, 25 l. Adams, 3 Cai. 97; Cannon v. Titus, Misc. 675, 56 N. Y. Supp. 80, 28 Civ. 5 Johns. 355; Hart v. McGarry, 1 Pro. Rep. 420. How. Pr. 74. And see N. Y. Gen. 18 Motions to strike a cause from Rules Nos. 23, 24. But it has been the calendar are usually made at the held that when the affidavit sets forth opening of court, and without requirthe facts relied on as merits, so that ing formal previous notice. See Form the court can see that there are 1623. Cases sometimes occur, howmerits, absence of oath to advice of ever, in which a motion is advisable. counsel may be excused.
The affidavits to support and oppose 14 The fact that the advice was these motions must, of necessity, vary after the statement is essential; but 60 much with the facts relied upon
and mention any other papers relied on), the undersigned will move the court, at a Special Term thereof (or, at a Triai Term], to be held at [etc.], on the day of , 19 , or as soon thereafter as counsel can be heard, for an order that this cause be stricken from the [state which] calendar of this court, with costs of this motion1' [if on the ground of irregularity specify it.] [Date.]
[Signature and office adress of], [Address] To
FORM No. 1607. Order striking cause from calendar and sending it to other calendar.20
At a Special Term [etc., as in
Form 820, p. 1174]. [Title of action.]
This cause having been placed upon the Special Term calendar of this court for trial by the [plaintiff], and now coming on for trial, now, upon reading the pleadings, and it appearing there from to the court that the defendant is entitled to a trial by jury as a matter of right; on motion of Z. T., Esq., attorney for defendant:
ORDERED, that this cause be stricken from the Special Term calendar of this court [and that the clerk of this court is directed to place it on the Trial Term calendar at the foot thereof
- or, as of its date of issue – upon the filing with him of a proper note of issue.21]
Enter: [signature of judge by initials of name and title.]
as ground for striking the cause from if there is any doubt whether upon the calendar, or retaining it, that no the pleadings equitable relief could be forms of general usefulness can be granted; the question should be left given.
to the trial. U. S. Glass Co. F. Failure to serve a notice of trial Levett, 24 App. Div. 624. is waived if defendant appears and For motion for trial by jury, where procures an adjournment. Smith v. part of the issues are so triable as Grant, 11 N. Y. Civ. Pro. Rep. 354; matter of right, or where it is sought Mangone v. Met. St. Ry. Co., 21 to have an equity cause or issues Misc. 365, 48 N. Y. Supp. 644.
therein tried by jury, see TRIAL BY An obvious clerical error in date is TIIE COURT. waived by retention of the notice of The court at Trial Term may make trial. Weiss 1. Morrell, 7 Misc. 539, a similar order, striking an equity 28 N. Y. Supp. 59.
case from its calendar (if the Trial 19 An order striking the cause from Term is solely for jury trials); and the calendar should not provide for may do this although the defendant any further application regarding the is estopped from making such a momode of trial. Keen r. Johnson, 29 tion. Weldon v. Brown, 89 App. Dis. App. Div. 629.
586, 85 N. Y. Supp. 599. Compare 20 See Chinchin v. Katzman, 89 Mittenthal . Rabinowitz, 60 App. App. Div. 595, 85 N. Y. Supp. 626. Div. 138, 70 N. Y. Supp. 119.
A motion should not be granted 21 An order cannot properly direct