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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 aboreentitled action: I. That at any time hereafter [or, between the day of

and of , 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 , as a referee for such purpose, at his office in

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.]

Take notice, that upon the annexed affidavit of A. B., verified the day of , 19, and upon the pleadings (specify

38 If the action is one that abates by the death of a party, plaintiff inay 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

"very rarely even in such cases. For the grounds on which, in particular cases, special juries have been ordered or refused in this State, see Adams t. Morgan, 21 N. Y. Supp. 1057, 51 St. Rep. 187; Ives 1. Ranger, 20 N. Y. Supp. 32, 47 St. Rep. 390; Spencer t. Sampson, 1 Cai. 498; Hartshorn 6. Gelston, 3 id. 84, Col. & C. Cas. 434; Livingston v. Cheetham, 1 Johns. 61; Thomas v. Rumsey, 4 id. 452; Genet r. Mitchell, id. 186; New Windsor Turnpike Co. v. Ellison, l id. 141; Patchin v. Sands, 10 Wend. 570; Livingston r. Smith, 1 Johns. 141; Anonymous, id. 314; Wright v. Columbian Ins. Co., 2 id. 211; Poucher 1. Liv. ingston, 2 Wend. 296; Nesmith v. At lantic Ins. Co., 8 Abb. Pr. 423; Walsh t. Sun Mut. Ins. Co., 17 id. 356, 2 Robt. 646; People v. McGuire, 43 How. Pr. 57; People v. Tweed, 50 id. 262. See, also, for the statutory rules on the subject, N. Y. Code Civ. Pro., $ 1063, etc.

in

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 city of ], on the

day of

, 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 proper. [Date.]

[Signature and office address of], [Address] To

Attorney for
Attorney for

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 , at , on the day of

, 19 42— may add if officer is interested: and that M. N. and N. 0., 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 the day of , 19 :43

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

41 ('nder N. Y. Code Civ. Pro.,

1063, application for this order may be made in an action in the Supreme Court, and must be made to the court, and upon notice. As the order “ must specify the term," and may specify the particular day in the term when the jurors must attend, it is evident that the application should be promptly made. The power is entirely statutory,

and must be strictly followed. Indust. & Gen. Trust v. Tod, 104 App. Div. 517, 93 N. Y. Supp. 725.

If any irregularity occurs in the proceedings, either party may apply at Special Term on notice to set aside the list and direct the selection of a new list. Id.; People v. Dillon, 17 Hun, 1.

The selection of jurors must be made in the presence of the parties at the time appointed, either by the order or notice; it is irregular for the commissioner or clerk to privately make up a list. Id.

The commissioner should familiarize himself with the issues of the particular action, before making his list of forty-eight names. Id.

42 This clause may be omitted. See next Form.

43 This may be first day of term or a specified later day.

FORM No. 1621. Notice of striking special jury, where order does not fix the time, [Title of court and cause.]

Please take notice, that the undersigned, will attend before the [clerk] of the county of , at his office in the city (or, town] of , for the purpose of having the special jury struck for the trial of this action, on the day of 19 , at o'clock in the noon of that day. [Date.]

[Signature and office address of], [Address] To

Attorney for
Attorney for .

FORM No. 1622.

Motion for foreign jury.45 [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 may be entered hereon by either party without further notice. [Date.]

[Signatures of],

Attorney for plaintiffs.

Attorney for defendant.
FORM No. 1624.
Order on consent for the trial of issues by a jury.

At a Special Term [etc., as in

Form 820, p. 1174]. [Title of action.]

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.

SECTION II.
VARIOUS PROCEEDINGS INCIDENTAL TO TRIAL.

FORMS. 1625. Affidavit of service of subpæna.

withdraw a juror and apply 1626. The saine; in case of several

to amend. witnesses.

1629. Another Form — striking out 1627. Order on the minutes allowing

parties. amendment on terms, and 1630. Undertaking in action upon lost postponement.

negotiable paper. 1628. Order granting leave at trial to

is hereto anne time and plamileage for me to the place

FORM No. 1625.

Affidavit of service of subpæna.47 [Title of court and cause.] [Venue.]

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

, 19, at [state place] he served the within subpæna personally upon E. F., the person to whom the same is directed, by then and there exhibiting to him [or, her] the said subpæna, and delivering to and leaving with him [or, her] a copy thereof [or, a subpæna ticket containing the substance thereof, a copy of which ticket is hereto annexed48], 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 subpæna, which is a distance of not over miles, and the further sum of fifty cents for one day's attendance as such witness. [Jurat.]

[Signature.] FORM No. 1626.

The same — in case of several witnesses. [Title of court and cause.] [Venue.]

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

and the furthbpæna, which lience of said E.

who thenaed , respectivelitnesses

47 N. Y. Code Civ. Pro., 88 852, 853. For subpæna, see Forms 1509, 1511. For affidavit to attach, and attachment of witness, see Forms 1259, 1260.

48 This clause, annexing copy of the subpæna 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 subpæna personally upon the witnesses below named, by exhibiting said original subpæna to each of such witnesses, and delivering to and leaving with him or her a copy thereof (or, a subpæna 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 subpæna, and return therefrom, and for one day's attendance as such witnesses: On E. F., at No.

street, in

, N. Y., on the day of , 19 , amount paid, $ , [and so on] [Jurat.]

[Signature.] 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 answer50 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,50a including trial fee and jury fee, amounting to dolo lars, 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., 88 539, 540. The court has power to allow amend ments 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 i Lane 1. 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 leare 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.

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