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FORM No. 1608.
A. T., being duly sworn, says:
II. That this action is upon contract,22 and is founded upon [state briefly the cause of action).
III. That the answer merely denies the allegations of the complaint.
[Or, III. That the answer alleges — here state briefly the new matter alleged — and sets up no other new matter.]
IV. That this cause is now on the general calendar, and numbered , and has been duly noticed for trial by deponent.
V. That deponent believes that the trial of this action, if placed upon the special calendar, will not occupy more than (two]23 hours [indicating reason, as thus: as the production and proof of the note above mentioned, and proof of the amount of interest, is all the evidence requisite to be offered by the plaintiff to establish his case — state nature of evidence, number of witnesses, etc., tending to show that the cause can be tried within nesses to the limited time]. 24 [Jurat.]
[Signature.] FORM No. 1609. Affidavit to oppose motion to place on short cause calendar. [Title of court and cause.] [Venue.]
Z.. T., of , being duly sworn, says:
II. That the answer alleges [here state briefly any new matter alleged.] the placing of the cause upon the City Court. City Court Rule No. 2. Trial Term calendar, without provid. See local rules in other counties. ing for filing of a note of issue. 24 The affidavit should show facts Poershke v. Baldwin, 83 App. Div, from which the judge would have no 284, 82 N. Y. Supp. 159.
reasonable doubt that the action could 22 Must involve a demand for at be tried within the time. Walde, etc., least $100 in New York City Court. Paving Co. 1. Dunn, 77 App. Div. 467, City Court Rule No. 4.
79 N. Y. Supp. 328, 12 Anno. Cas. 23 Trial Term Rule No. 5, in first 275. department. One hour in New York
III. That the defense interposed is not made for the purpose of delay, but is made in good faith, and deponent believes the same can and will be fully established on the trial.
IV. That this deponent believes that the trial of this action is likely to occupy more than (two hours], for the reason that [here state any facts tending to show that more than such time will be consumed in the trial; as thus: the defendant disputes the genuineness of his alleged signature to the note on which the action is brought, and a large number of witnesses must be examined upon that question; and defendant expects to show by the testimony of the defendant himself, and of J. J., K. L. and M. N., that such signature is not in the handwriting of defendant, and by the testimony of S. T. and U. V., that it is an imitation of defendant's handwriting, and was affixed to said note by C. B., a son of the plaintiff, etc.). [Jurat.]
[Signature.] FORM No. 1610. Notice of motion to put cause on short cause calendar.25 ['itle of court and cause.]
Please take notice, that upon the pleadings herein, and the annexed affidavit of A. T., verified on the day of , 19, the undersigned will move this court at [Trial Term, Part 2, thereof,] to be held at the County Court House, in the Borough of Manhattan, in the County of New York, on the day of
, 19 , at 10:30 o'clock in the forenoon of that day, (or as soon thereafter as counsel can be heard 126 that this cause be set down for trial as a short cause, upon the [special] calendar, or for such other and further relief as may be just. [Date.]
[Signature and office address of], [.Address] To
FORM No. 1611.
ORDERED, that this cause, being No. upon the Trial Term calendar (No. 3] of this court be placed upon the special calendar to be called in Trial Term, Part 2, of this court. 27
25 Two days' notice in Supreme Court, first district. Trial Term Rule Court, first district. Trial Term Rule No. 5. No. 5. Four days in New York City 27 In New York City Court, change Court. City Court Rule No. 2. direction to Part IV of the court, and
26 No oral argument in Supreme specify a day for the trial.
FORM No. 1612.
Affidavit to move for postponement.28 [Title of court and cause.] [Venue.] A. B., of
being duly sworn, says: I. That he is the plaintiff [or, defendant] in this action.
[II. If the affidavit is by defendant: That deponent has fully and fairly stated the case to T. Z., his counsel, who resides at No. , in street, in the of
, and that he has a good and substantial defense on the merits to the action, as he is advised by his said counsel after said statement, and verily believes to be true.]
III. That M. N. is a material witness for deponent, and without the benefit of his testimony deponent cannot safely proceed to the trial of said action, as he is advised by his counsel A. T., who resides at No.
, street, in the city of after fully and fairly stating to him what he expects to prove by said witness. [State what facts it is expected to prove by the uitness,29 and why de ponent may properly expect such testimony from the witness.30]
IV. [State excuse for not having witness present; see next two Forms.]
[Signature.] [Jurat.] FORMS Nos. 1613–1616.— STATEMENTS SUITABLE TO BE INSERTED IN
, was, on the day of last past, duly subpænaed to attend the
sides at Noile stating to him what pected to prove by
28 It is advisable to always have an affida vit to establish the facts upon whicb the application depends, but the oral statements of counsel in court may be received and acted upon if no objection is made at the time. See Garrett v. Wood, 24 App. Div. 620, 48 N. Y. Supp. 1002. And may be afterward considered by the court upon motion to open the default. Robinson v. De Fere, 106 App. Div. 406, 94 N. Y. Supp. 847. But the court may itself refuse to receive such statements. Cagney v. Fisher, 34 Flun, 549.
For the rules on this subject and authorities, see Abb. Tr. Brief for Jury Cases, chapter I.
29 Wilkins v. Beadleston, etc., Co., 33 Misc. 489, 67 N. Y. Supp. 683; First Nat. Bank v. Anderson, 55 App. Div. 570, 67 N. Y. Supp. 434.
30 See Form 1545, under CHANGINS PLACE OF TRIAL, for convenience of witnesses. Smith v. Roome, 20 Misc. 8, 44 N. Y. Supp. 784.
31 A person's condition of health is more satisfactorily established by the affidavit of a physician than by that of a layman, though the sick person's affidavit himself, or that of a person who has seen him, is properly received. See Crawford r. V. Y. City R. R. Co., 108 App. Div. 190, 95 N. Y.
trial of this action; but that since the service of the said subpæna he has become seriously ill, and is now wholly unable to attend this court, or be present at the trial of this action in its order on the calendar, as appears by the annexed affidavit of R. S., his physician.
FORM No. 1614.
Inability to subpæna.32 IV. That two weeks before the first day of the present term, deponent went to the residence of said witness, in the town of , in the county of
for the purpose of subpanaing him to attend as a witness in this action, at this term; that he there learned from [state informant] that said witness had unexpectedly left home the day before, in order to go to the State of , and intended to remain there about two months]; and deponent further says, he had no reason to beliere said witness was going to be absent from home, until he learned it when he went to subpena said witness, as aforesaid; and deponent further says, he expects to be able, and intends to procure the attendance of said M. N. as a witness in this action at the next trial term, appointed to be held at [etc.].
FORM No. 1615.
Absence of party. [Affidavit will be by attorney, and state facts as thus:] I. That the defendant is a resident of this State, and is [master of the ship “ Ocean Queen,"] and has been absent from this State since last, on a vovage to New Orleans, from which he will probably return about the day of next.
II. That in the opinion of this deponent, he cannot safely proceed with the trial of this action in the absence of said defendant, who is thoroughly acquainted with all the facts in controversy in this action, and without whose aid and assistance it will be impracticable for deponent to properly prepare for trial herein.
III. That before said defendant's departure from this State, as aforesaid, he had not time fully to apprise deponent of the facts of the case and the names and residence of his witnesses.
[Add oath to merits; see Form 1605.]
Supp. 769; Garfield Nat. Bank v. Col.. well, 8 N. Y. Supp. 380, 28 $t. Rep. 723.
32 Defendant held entitled to a short adjournment, eren under the strict rules in the first department, when &
dant). 21 in the
FORM No. 1616.
Engagement of counsel.33 That deponent intends to personally try this action on behalf of the [defendant). That he is now actually engaged in the trial of the case of [name] in the court; that such trial will (not] be a protracted one, and will [not] continue more than [one day longer].
Or, That deponent is to argue the cause of [name] which is upon the day calendar of [state appellate court].34
FORM No. 1617.
At a Special Term [etc.— or,
Trial Term — etc., as in
Form 820, p. 1174]. [Title of cause.]
On reading and filing the affidavit of Y. Z., verified the day of , 19, and after hearing Z. T., of counsel for Y. Z., and A. T., of counsel for A. B. in opposition; now, on motion of Z. T., attorney for defendant:
ORDERED, that the trial of this action be and the same is hereby adjourned until the instant [or, for the term — or, that this cause be sent back to the general calendar], on payment [this day]35 of ten dollars costs36 and the fees of plaintiff's witnesses and other taxable disbursements already made or incurred, and which are rendered ineffectual by the adjournment, 37 which are hereby adjusted at dollars besides said $10 [or, which are to be taxed by the clerk). It is further ORDERED, that upon failure on the part of the defendant to make such payment of costs within days from this date, plaintiff may apply ex parte for an inquest to be taken at this Trial Term. [Here state other
a until thack to the and the fees made or in which
non-resident witness had promised to attend, but had delayed his coming beyond day of trial. Faist v. Met. St. Ry. Co., 59 App. Div. 593, 85 N. Y. Supp. 646.
Rule 9 of Special Term, of first district.
The affidavit must always show effort to find and subpæna, or other wise procure his attendance. Keller r. Feldman, 29 Abb. N. C. 426, 2 Misc. 179, 21 N. Y. Supp. 581, 23 Civ. Pro. Rep. 37.
33 See, generally, Robinson v. De Fere, 106 App. Div. 406, 94 N. Y. Supp. 847; Spero v. Supreme Council, 95 App. Div. 499, 88 N. Y. Supp. 989.
34 See Rule 7 of Trial Term, and
35 The costs imposed are payable immediately. Hewett . Cook, 75 App. Div. 239, 78 N. Y. Supp. 2.
36 No greater sum of costs can be imposed. Kennedy v. Wood, 54 Hun, 14, 7 N. Y. Supp. 90, 17 Civ. Pro. Rep. 375; Lawson v. Hill, 66 Hun, 288, 20 X. Y. Supp. 904.
37 Besides the usual statements in the aslidavit as to disbursements (see Form 1690), add an allegation that the sums paid were rendered ineffectual by the postponement. Lawson v. Hill, supra.