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ORDERED, that this cause be and the same is hereby set down for trial on the day of
, 19 , the defendant's attorney to serve an answer, amended only so as to include the de fense of [state] and to pay said costs on or before the day of
, 19 ; that this cause retain its place upon the calendar, and that no new notice of trial shall be necessary. It is further
ORDERED, that in case defendant does not serve said answer so amended and pay said costs as herein provided, plaintiff may apply on [one] day's notice to restore this cause to the calendar for trial upon the pleadings as now existing, and that defendant's application to amend be and the same is hereby denied. Enter: [etc.].
FORM No. 1628. Order granting leave at trial to withdraw a juror and apply to amend.51
At a Trial Term [etc., as in Form 820, p. 1174.] [Title of action.]
This cause having duly come on for trial, and trial thereof having been commenced, and the defendant having thereupon moved to dismiss the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action for [fraud and deceit), and the court having thereupon ruled that the complaint was insufficient as a complaint for deceit and fraud, to which the plaintiff excepted, and the court at plaintiff's request having thereupon permitted the withdrawal of a juror on the condition as hereinafter stated, so that the plaintiff might make such application to amend his pleading as he might be advised, and the plaintiff having thereupon withdrawn a juror, it is
ORDERED, that said withdrawal of a juror by the plaintiff be npon condition that the plaintiff pay to the defendant the costs of the term, including trial fee, term fee, and defendant's witnesses fees to be taxed, within twenty days after said costs are taxed,51a and that in the event of the failure of the plaintiff to pay said costs tvithin said twenty days the defendant may take an order dismissing the complaint herein without further notice.
Enter: [etc.]. 51 An appeal from this order will 31a Upon the subsequent application not bring up for review the correct to amend, taxable costs to date (exness of the court's ruling as to the cluding such as have already been sufficiency of the complaint. Rawson paid) should be required to be paid. 1. Silo, 105 App. Div. 278, 93 N. Y. Palazzo v. Degnon-McLean Contr. Co., Supp. 416; Driscoll v. Downer, 55 115 App. Div. 172. Ilun, 531, 9 N. Y. Supp. 121; aff'd, 125 V. Y. 728.
FORM No. 1629.
Another Form - striking out parties.52 This cause coming on for trial, and the plaintiff desiring to strike out of the complaint all charges in regard to a conspiracy and combination on the part of the defendants John Doe and Richard Roe, with the defendant Y. Z., as contained in the complaint herein, and desiring to proceed against the said defendant Y. Z. alone for the fraud as alleged in said complaint, and a motion to that effect having been made by the plaintiff and granted,53 and thereupon the defendant Y. Z. refusing to go on with the trial, claiming to be surprised:
ORDERED, that a juror be withdrawn and the plaintiff be allowed to amend his complaint by striking out the names of said John Doe and Richard Roe as defendants, and all allegations in regard to a conspiracy and combination on the part of the said defendants with the defendant Y. Z., and that the plaintiff be allowed to serve a complaint so amended upon the attorney of the said defendant Y. Z. within ten days from the date of this order upon the payment by the plaintiff to the said defendant Y. Z., or his attorney, within said ten days, of the sum of dollars term fees and dollars witness fees, amounting in all to the sum of dollars, * and that the said defendant Y. Z. be allowed twenty days after the service of such amended complaint within which to serve his answer thereto.
[Provision as to retaining position on calendar as in Form 1627.]
Enter: [signature of judge by initials of name and title.]
FORM No. 1630. Undertakiag in action upon lost negotiable paper.54 [Title of the cause.]
Whereas, this action is brought to recover the amount of [or, a counterclaim has been interposed by the defendant in this
52 The motion may be made orally at the trial, and is entered with the decision in the minutes, and afterwards the order is settled upon notice.
63 The court has power to strike out a superfluous defendant at the trial. Bartholomae r. Kaufman, 16 Wkly. Dig. 127.
An order in this form was affirmed in Woodruffr. Schneider, 65 How. Pr. 450.
64 May be offered at the trial. Dupignac v. Quick, 27 Misc. 500, 53 N. Y. Supp. 341.
In an action on a note accidentally destroyed, a bond is not necessary. Des Arts v. Leggett, 16 N. Y. 582.
A bill or note beyond the jurisdiction, or wrongfully retained by a third person, is not within the stat. ute. Read v. Marine Bank, 136 N. Y. 454; Van Alstyne v. Nat. Commercial
action, founded upon) a certain negotiable55 promissory note (or, a bill of exchange — describing same], which said note (or, bill] was lost while it belonged to said plaintiff [or defendant), and the said plaintiff [or, defendant] desires, upon the trial of this action, to prove the contents thereof by parol or other secondary evidence:
Now, therefore, we [A. B., the plaintiff — or, defendant and55a], C. D., of , merchant, and E. F., of , broker, do hereby jointly and severally56 undertake and become bound to the defendant [or, plaintiff] in the sum of [a sum to be fixed by the judge or referee, not less than twice the amount of the note or bill], that the plaintiff [or, defendant] will indemnify the defendant [or, plaintiff], his heirs and personal representatives against any claim by any other person on account of said note [or, bill], and against all costs and expenses by reason of such a claim.
[Acknowledgments and affidavits of sufficiency, and approval, by judge or referee, as in Forms 822–824, p. 1175.]
tira defenda), that leree, not
1040. Affidavit to obtain order of ar.
rest after verdict. 1031. Entry of verdict upon a single 199
1641. Notice of motion to correct verissue in an action to recover
dict. money only. 1632. – for defendant on a counter
II. MOTION FOR NEW TRIAL. claim. 1033. – subject to the opinion of the 1042. Formal order denying motion court.
for new trial, on minutes. 1634. Special verdict.
1643. Affidavit to obtain order to 1635. Sealed verdict.
show cause why a new trial 2036. Verdict in replevin.
should not be ordered on the 1637. Direction by judge that jury
minutes. answer special questions. 1644. Order to show cause thereon. 1638. Entry of answers thereto.
1645. Order granting motion on the 1039. Entry in clerk's minutes of stay
minutes for new trial. with time to make ca se, etc., 1646. — unless opposing party con- motion for new trial - al.
sents to reduce verdict. lowance.
1647. Order staying proceedings pend
Bank. 4 Abb. Ct. App. Dec. 449. Com pare Shillito 1. Robbins, 7 Cinn. L. Bul. 74.
55 The statute only applies if the instrument is negotiable. Terwilliger 1. Terwilliger, 27 N. Y. Supp. 284; Wright r. Wright, 54 N. Y. 437.
55a In this case there must be two
or more sureties (N. Y. Code Cir. Pro., 8 618), unless one is a fidelity or guaranty company. Vol. I, p. 455.
It is not essential that the party also sign. N. Y. Code Civ. Pro., $ 811; Vol. I, p. 455.
56 See Vol. I, p. 450, note 1.
ing appeal, and extending
on the ground of misconduct
of a juror. 1649. – of improper communications. 1050. — of surprise. 1651. — of newly discovered evidence. 1652. Affidavit of proposed witness in
(not on minutes ) - on case,
1654. Order granting the motion. 1055, – that exceptions be heard at
Appellate Division. 1650. Notice of hearing of exceptions
at Appellate Division. 1657. Order of Appellate Division
sustaining exceptions and di
recting new trial. 1658. The same; overruling excep
tions and directing judgment. 1659. Judgment after exceptions
heard in first instance by Appellate Division.
FORM No. 1631. Entry in clerk's minutes of verdict on single issue in action to recover money
only.58 The jury find a verdict for the * plaintiff, [by direction of the court] for the sum of dollarse [if a case for double damages add: single damages] [or, find a verdict for the de fendant).
[By direction of the court, interest on the verdict, from the day of ,19 , is added, amounting to dollars.60]
FORM No. 1632. Entry of verdict for defendant on a counter-claim. The jury find a verdict for the plaintiff upon the plaintiff's cause of action, and for the defendant upon the counter-claim, and assess the amount of the defendant's counter-claim, beyond the plaintiff's claim, at
57 Parties may legally stipulate that a verdict may be received by the clerk in the absence of the presiding justice. Dubuc v. Lozell, etc., Co., 182 N. Y. 484. Or, may waive the irregularity by subsequent motions. Terriberry v. Mathot, 111 App. Div. 235.
The court, however, cannot so direct. Morris v. Harburger, 100 App. Div. 357, 91 N. Y. Supp. 409.
58 In the clerk's minutes the entry of the verdict is preceded by the title of the action, the names of the jurors and witnesses.
59 If the law allows double or treble damages, the verdict should be for single damages, leaving it to the court
to increase the sum, unless under a statute prescribing otherwise, N. Y. Code Civ. Pro., § 1184.
60 The court may direct interest to be added (when interest is a legal incident to the award), after the verdict has been announced, and an objection then taken is timely. Markham v. Stevenson Brewing Co., 111 App. Div. 178, 97 N. Y. Supp. 604; McAfee v. Dix, 101 App. Div. 69, 91 N. Y. Supp. 464; Barber Asph, Co. v. N. Y. Post Grad., etc., Hosp., 62 N. Y. Supp. 392. As to when interest is allowable in actions on contract, see id., and Fox 0. Davidson, 111 App. Div. 174, 97 N. Y. Supp. 603.
FORM No. 1633. Entry of verdict subject to the opinion of the court.61 The jury, under direction of the court, find [stating the finding as in previous cases, adding:] subject to the opinion of the court.
FORM No. 1634.
Special verdict.62 [Title of court and cause.]
We, the jury, having been required to find a special verdict in said cause, 63 do find the facts in said cause to be as follows:
I. [Here should follow statements of facts as in a well-drawn pleading, or in a judge's or referee's findings of fact.]
[If, upon these facts, the law is with the plaintiff, then we
61 N. Y. Code Civ. Pro., § 1185. tions from facts that are stated. Law
The qualification making the ver- rence 1. Beaubien, 2 Bailey, 623, 23 dict subject to the opinion of the Am. Dec. 155; People r. Williamscourt is not part of the verdict, but burgh Turnp. R. Co., 47 N. Y. 586. follows the entry of the verdict. But it is not strictly necessary that Mumford v. Wardwell, 6 Wall. 423. it should contain facts admitted by
The motion for judgment must be the pleadings; the pleadings and the made in the Appellate Division. Code verdict, taken together, present the Civ. Pro., § 1234. For the practice, legal questions to the appellate see 13 Abb. N. C. 376, 382.
court. Barto v. Himrod, 8 N. Y. 483; Verdict subject to the opinion of Ranney v. Warren, 17 Hun, 111. the court not to be directed where ex And facts admitted on the trial ceptions have been taken during the may be inserted in the verdict by way trial. See Flandreau v. Elsworth, 8 of amendment, or a venire de novo Misc. 428, 28 N, Y. Supp. 671.
awarded to try such facts. Sleght v. 2 Sustained in Pittsburgh, etc., Hartshorne, 1 Johns. 149; Watson v. R. R. Co. . Ruby, 38 Ind. 294. Delafield, id. 150. Compare Walsh r. Special verdicts are drawn up by Bowery Bank, 10 Civ. Pro. Rep. 32. counsel on each side according to Plaintiff must furnish a copy of their views of the case, and submitted the special verdict for the court on to the jury for consideration and the application for judgment, and adoption of such findings as they must serve a copy on the adverse agree upon. For the distinction be party at least five days before the tween this and special questions, see inotion day. N. Y. Gen. Rule No. 40. Ranney v. Warren, 17 Hun, 111.
A special verdict should be taken A special verdict which does not when, as in an action to determine find a necessary fact is not sufficient, the validity of a will the instrument although it finds facts from which is attacked on several grounds, and a the jury might have found the general verdict will be set aside if omitted fact. La Frombois v. Jack the evidence is insufficient upon any son, 8 Cowen, 589, 18 Am. Dec. 463; of the grounds alleged. Buchanan r. Hill c. Covell, 1 N. Y. 522; Sisson v. Belsey, 65 App. Div. 58, 72 N. Y. Barrett, 2 id. 406; Langley 1. War Supp. 601. ner, 3 id. 327; Manning v. Monaghan, 63 Under V. Y. Code Civ. Pro., 23 N. Y. 539.
1187, the jury in an action to reUnnecessary questions need not be cover money only, or in replevin or answered. Garfield v. Blair, 10 N. Y. ejectment, may exercise its discretion Supp. 340.
as to whether verdict shall be general A fact not stated in a special ver- or special. dict cannot be inferred by presump