terms, if any, imposed, such as:] This order is made on condition that defendant consent that the testimony of M. N. be taken conditionally before R. F. as referee, on days' notice.38 Enter: [signature of judge by initials of name and title.]

FORM No. 1618.

Stipulation, on putting cause over for the term, that it shall not abate by death, etc.39.

[Title of court and cause.]

It is hereby stipulated by and between the parties to the aboveentitled action:

I. That at any time hereafter [or, between the

of

day of

and 19], on a notice of [ten] days to the [defendant's] attorney, the testimony of may be taken by the [plaintiff] before M. N., of such purpose, at his office in

as a referee for

II. That in case of the death of the plaintiff herein, before final judgment and determination of this action, the alleged cause of action shall survive, and any verdict and judgment thereon shall be regarded as if rendered in plaintiff's lifetime.

III. That in case of the death of said plaintiff before the final determination of said action, the personal representative of said plaintiff be substituted as a party plaintiff herein by order to be entered upon filing this stipulation.

[Date.]

[Signatures of attorney.]

FORM No. 1619.

Notice of motion for a special jury.40

[Title of court and cause.]

the

Take notice, that upon the annexed affidavit of A. B., verified and upon the pleadings [specify

day of

19

38 If the action is one that abates by the death of a party, plaintiff may properly seek a stipulation against abatement as in next Form, and the court could properly require it to be given as a condition of granting defendant's application.

39 This Form is sustained by Cox v. N. Y. Cent., etc., R. R. Co., 63 N. Y. 414.

40 A special or struck jury is ordered only in important cases, and upon special circumstances, and now

For

very rarely even in such cases.
the grounds on which, in particular
cases, special juries have been ordered
or refused in this State, see Adams v.
Morgan, 21 N. Y. Supp. 1057, 51 St.
Rep. 187; Ives v. Ranger, 20 N. Y.
Supp. 32, 47 St. Rep. 390; Spencer v.
Sampson, 1 Cai. 498; Hartshorn v.
Gelston, 3 id. 84, Col. & C. Cas. 434;
Livingston v. Cheetham, 1 Johns. 61;
Thomas v. Rumsey, 4 id. 482; Genet
t. Mitchell, id. 186; New Windsor
Turnpike Co. v. Ellison, 1 id. 141;

any other papers if relied on] in this action, the undersigned will move the court, at a Special Term to be held at the court house in the county of [or, at the city hall in the ], on the

19 at o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order that a special jury be struck for the trial of this action, and for such other or further relief as may be

[Signature and office address of],

FORM No. 1620.

Order for a special jury.41

[Title (court order) and recitals, according to the case; see Form 820, p. 1174.]

ORDERED, 1. That a special jury be struck for the trial of this action [and that the parties hereto, for that purpose, attend before day of

may add if officer is interested: and that M. N. and N. O., hereby appointed as two disinterested persons, strike said jury]. 2. That the jurors selected attend at the [next] Trial Term in and for the county of at the opening of the court on

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

FORM No. 1621.

Notice of striking special jury, where order does not fix the time.44

[Title of court and cause.]

Please take notice, that the undersigned, will attend before the [clerk] of the county of

town] of

at his office in the city [or, for the purpose of having the special jury

struck for the trial of this action, on the

day of

noon of that day.

[Signature and office address of],

19 at

o'clock in the

[Date.]

[Address] To

[Adapt from last Forms.]

FORM No. 1623.

Stipulation that issues be tried by jury.46

[Title of court and action.]

It is hereby stipulated between the parties to this action, that the following stated questions of fact [or, the questions of fact stated in the annexed order], arising [upon the pleadings] in this action, shall be tried by a jury, and that an order [or, the annexed order] for the trial thereof at tered hereon by either party without further notice. [Date.]

[Signatures of],

may be en

On reading and filing the annexed stipulation in this action, signed by the respective attorneys therein [or otherwise reciting papers on which the order is made], and on motion of

:

ORDERED [etc., as in Form 1623 from the *, or Form 1737].

44 N. Y. Code Civ. Pro., § 1064. 45 See N. Y. Code Civ. Pro., §§ 1070, 1071.

46 For proceeding by motion, see

Forms under TRIAL BY COURT. The whole issues or a particular issue may be so tried by consent. Carr v. Carr, 52 N. Y. 251.

C. D., being duly sworn, says that he resides at a clerk in the office of plaintiff's attorney; that on the

[and is day of

19, at [state place] he served the within subpoena personally upon E. F., the person to whom the same is directed, by then and there exhibiting to him [or, her] the said subpoena, and delivering to and leaving with him [or, her] a copy thereof [or, a subpoena ticket containing the substance thereof, a copy of which ticket is hereto annexed18], and paying [or, tendering] to him [or, her], at the same time and place, dollars and cents, as and for his [or, her] fees for mileage for traveling from which then was the residence of said E. F., to the place mentioned in said subpoena, which is a distance of not over miles, and the further sum of fifty cents for one day's attendance as such witness.

C. D., being duly sworn, says that the witnesses hereafter named, at the times hereafter named, respectively, resided at the places where they were subpoenaed by deponent as hereinafter stated [except G. H., who then resided at ]. That de

47 N. Y. Code Civ. Pro., §§ 852, 853. For subpoena, see Forms 1509, 1511. For affidavit to attach, and attachment of witness, see Forms 1259, 1260.

48 This clause, annexing copy of the subpœna ticket delivered, is not necessary unless the affidavit is made for the purpose of obtaining an attachment.

ponent, at the times and places below set forth, served the annexed subpoena personally upon the witnesses below named, by exhibiting said original subpoena to each of such witnesses, and delivering to and leaving with him or her a copy thereof [or, a subpoena ticket containing the substance thereof, of which a copy is hereto annexed], and paying to each of them the sum set opposite their respective names, as and for the traveling fees of such witnesses respectively, from the residence of each of said witnesses to the place mentioned in the subpoena, and return therefrom, and for one day's attendance as such witnesses:

On E. F., at No.

day of

[and so on]

[Jurat.]

street, in
amount paid, $

N. Y., on the

FORM No. 1627.

Order on the minutes allowing amendment on terms, and postponement.49 At a Trial Term [etc., as in Form 820, p. 1174.]

[Title of cause.]

This cause having been brought on regularly for trial this day, and both sides having answered "ready," and a jury having been impaneled and the trial commenced, and the plaintiff having examined his first witness, and on cross-examination the defendant's attorney having discovered that his answer served did not admit of the defense sought to be interposed, and having moved in open court for leave to amend his answer so as to set up the defense of [state] and the court having granted the motion, upon payment of all costs and disbursements of the action to the present time, including trial fee and jury fee, amounting to dollars, as follows: [stating items as thus:] Before notice of trial, $25 [and so on]. Disbursements, viz. [stating items]. * And the defendant's attorney having accepted said conditions, it is hereby

49 N. Y. Code Civ. Pro., §§ 539, 540. The court has power to allow amendments of the pleadings at the trial.

Amendments allowed on the trial without an adjournment should be put in writing, and if not formally served (which may be done upon the spot, or within reasonable time), should be entered at length in the minutes, and a formal order entered which recites them. It is now usual to require service of the amended pleading, but if this is not required by the court, it is not necessary (Lane v. Hayward, 28 Hun, 583), but the

order should recite at length the amendment permitted, and should be included in the judgment roll.

In case of mere variance, if the adverse party is not misled, application may be made after judgment for leave to amend. Place v. Minster, 65 N. Y. 89.

50 If the other party desires opportunity to answer or reply anew he should ask it at the trial. Noonan v. Caledonia Gold Mining Co., 121 U. S. 393.

50a Palazzo v. Degnon-McLean Contr. Co., 115 App. Div. 172.