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ORDERED, that this cause be and the same is hereby set down for trial on the 19 the defendant's attorney to serve an answer, amended only so as to include the defense of [state] and to pay said costs on or before the day of ; that this cause retain its place upon the calendar, and that no new notice of trial shall be necessary. It is further

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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plaintiff might make such application to amend his pleading as he might be advised, and the plaintiff having thereupon withdrawn a juror, it is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 upon 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 within 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 not bring up for review the correctness of the court's ruling as to the sufficiency of the complaint. Rawson r. Silo, 105 App. Div. 278, 93 N. Y. Supp. 416; Driscoll v. Downer, 55 Jun, 531, 9 N. Y. Supp. 121; aff'd, 125 N. Y. 728.

51a Upon the subsequent application to amend, taxable costs to date (excluding such as have already been paid) should be required to be paid. Palazzo v. Degnon-McLean Contr. Co., 115 App. Div. 172.

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, and thereupon the defendant Y. Z. refusing to go on with the trial, claiming to be surprised:

53

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

sum of

*

dollars witness fees, amounting in all to the 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.

Undertaking 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.

53 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 Woodruff t. Schneider, 65 How. Pr. 450.

54 May be offered at the trial. Dupignac v. Quick, 27 Misc. 500, 58 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 statute. Read v. Marine Bank, 136 N. Y. 454; Van Alstyne v. Nat. Commercial

action, founded upon] a certain negotiable 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, defendantand55a], 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. [Signatures.]

[Date.]

[Acknowledgments and affidavits of sufficiency, and approval, by judge or referee, as in Forms 822-824, p. 1175.]

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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 dollars [if a case for double damages add: single damages] [or, find a verdict for the defendant].

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[By direction of the court, interest on the verdict, from the day of 19 is added, amounting to lars.60]

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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

dollars.

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 v. 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. The qualification making the verdict subject to the opinion of the court is not part of the verdict, but follows the entry of the verdict. Mumford v. Wardwell, 6 Wall. 423.

The motion for judgment must be made in the Appellate Division. Code Civ. Pro., § 1234. For the practice, see 13 Abb. N. C. 376, 382.

Verdict subject to the opinion of the court not to be directed where exceptions have been taken during the trial. See Flandreau v. Elsworth, 8 Misc. 428, 28 N. Y. Supp. 671.

Sustained in Pittsburgh, etc., R. R. Co. v. Ruby, 38 Ind. 294. Special verdicts are drawn up by counsel on each side according to their views of the case, and submitted to the jury for consideration and adoption of such findings as they agree upon. For the distinction between this and special questions, see Ranney v. Warren, 17 Hun, 111.

A special verdict which does not find a necessary fact is not sufficient, although it finds facts from which the jury might have found the omitted fact. La Frombois v. Jackson, 8 Cowen, 589, 18 Am. Dec. 463; Hill v. Covell, 1 N. Y. 522; Sisson v. Barrett, 2 id. 406; Langley v. Warner, 3 id. 327; Manning v. Monaghan, 23 N. Y. 539.

Unnecessary questions need not be answered. Garfield v. Blair, 10 N. Y. Supp. 340.

A fact not stated in a special verdict cannot be inferred by presump

tions from facts that are stated. Lawrence . Beaubien, 2 Bailey, 623, 23 Am. Dec. 155; People v. Williamsburgh Turnp. R. Co., 47 N. Y. 586.

But it is not strictly necessary that it should contain facts admitted by the pleadings; the pleadings and the verdict, taken together, present the legal questions to the appellate court. Barto v. Himrod, 8 N. Y. 483; Ranney v. Warren, 17 Hun, 111.

And facts admitted on the trial may be inserted in the verdict by way of amendment, or a venire de novo awarded to try such facts. Sleght v. Hartshorne, 1 Johns. 149; Watson v. Delafield, id. 150. Compare Walsh v. Bowery Bank, 10 Civ. Pro. Rep. 32.

Plaintiff must furnish a copy of the special verdict for the court on the application for judgment, and must serve a copy on the adverse party at least five days before the motion day. N. Y. Gen. Rule No. 40.

A special verdict should be taken when, as in an action to determine the validity of a will the instrument is attacked on several grounds, and a general verdict will be set aside if the evidence is insufficient upon any of the grounds alleged. Buchanan . Belsey, 65 App. Div. 58, 72 N. Y. Supp. 601.

63 Under N. Y. Code Civ. Pro., 1187, the jury in an action to recover money only, or in replevin or ejectment, may exercise its discretion as to whether verdict shall be general or special.

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