find for the plaintiff, and assess his damages at

And if the law is with the defendant, then we find for the defendant.]

FORM No. 1635.

Sealed verdict.64

We, the undersigned jurors, say that we find a verdict for the [etc.].

FORM No. 1636.

Verdict in replevin.65

The jury find that the plaintiff is the owner of the property and entitled to its possession; that the value thereof is dollars; that the plaintiff's damages for the detention thereof dollars.

FORM No. 1637.

Direction by judge that jury answer special questions.

In case you elect to return a general verdict,66 you will also answer the following questions: [stating them in writing.]

FORM No. 1638.

Entry of answers by jury to special questions.67

The following questions were submitted by the court to the jury, viz.:

What was the value of the premises specified in the complaint 19 ?

on the

day of

The jury answer: Nine thousand dollars ($9,000) [and so on].

FORM No. 1639.

Entry in clerk's minutes of stay with time to make case, etc.- of motion for new trial and decision thereones - for allowance, etc.

On motion of the defendant's attorney, ordered that the defendant have [sixty] days to make and serve a case with exceptions [if extra time is wanted add: and that plaintiff have

days thereafter to prepare and serve proposed amendments]; and that in the meantime, and until the case shall be settled and filed, all proceedings on the part of plaintiff upon the verdict be stayed."

70

[Motion for new trial.] Motion for new trial made by defendant [state grounds] and denied.

[Allowance.] An allowance of [five] per cent. granted to plaintiff to which allowance defendant excepted.

FORM No. 1640.

70a

Affidavit to obtain order of arrest after verdict.71

[Title and commencement, stating grounds of arrest, see p. 1273, etc., of this volume, continuing by stating the proceedings, as

67 See Wiegand v. Fee Bros. Co., 73 App. Div. 139, 75 N. Y. Supp. 872, 11 Anno. Cas. 117, for improper answers to special questions.

The court may submit special questions, or require the jury to assess damages, pending decision of a motion for non-suit or direction of a verdict. Code Civ. Pro., § 1187.

Where special findings are inconsistent with the general verdict, the former control and the general verdict must be set aside. Kennedy v. Ball. etc., Co., 91 Hun, 197, 36 N. Y. Supp. 325.

68 In all cases where the unsuccessful party desires to review the ruling upon this motion, he must enter an order thereon, and appeal from it.

thus:] That this cause was regularly brought to trial at a Trial Term of this court held on the day of

19, before Hon. J. K. and a jury, and on said trial the defendant admitted that the plaintiffs were entitled to recover [upon the grounds above alleged] unless the defendant could establish the counterclaim set up in his answer; and a verdict was duly rendered for the plaintiffs for the whole amount claimed, extinguishing the counter-claim. The usual motion to set aside the verdict was made by the defendant, and duly denied by the court, and the verdict is still in force. Judgment thereon has not been entered." An order of arrest is desired against the defendant. No previous application for an arrest herein has been made [except, etc.; see p. 1172]. [Jurat.]

FORM No. 1641.

Notice of motion to correct verdict.73

[Signature.]

[As in Form 815, p. 1171, of this volume, stating as relief sought:] that the verdict of the jury in this action, rendered on the day of 19, be corrected by [increasing the amount thereof so as to include interest upon the plaintiff's claim, computed on the amount of said verdict from the

19 , and amounting to

72 The ordinary stay does not prevent applying for arrest. Lapeous v. Hart, 9 How. Pr. 541. Or attachment. Seeman v. Reiche, N. Y. Daily Reg., June 23, 1882.

73 Such a motion may be made at the same term of court; but the Special Term has no power to correct the Trial Term records. Dean v. Mayor, 29 App. Div. 350, 51 N. Y. Supp. 586, 5 Anno. Cas. 351; Duerr v. Consol. Gas. Co., 104 App. Div. 465, 93 N. Y. Supp. 766.

A verdict may be corrected in order to conform to the actual or assumed intent of the jury. But the court has no power to otherwise change the verdict. See Howard v. Bank of Metropolis, 115 App. Div. 326 (error to reduce verdict to nominal damages and direct judgment thereon).

The jurors' affidavits may be received upon the application, since the purpose is not to impeach or affect the true verdict, but to establish it. Dalrymple v. Williams, 63 N. Y. 361.

Verdicts have been thus corrected at the Trial Term: interest added,

dollars.]

day of

where court charged that it must be allowed (McAfee v. Dix, 101 App. Div. 69, 91 N. Y. Supp. 464; Lowenstein v. Lombard, Ayres & Co., 2 App. Div. 610, 38 N. Y. Supp. 33); amount inserted, where verdict was "for plaintiff," and court had charged the amount to which plaintiff was entitled, if given a verdict (Hodgkins r. Mead, 119 N. Y. 166); verdict for plaintiff changed to one for plaintiff against one defendant and in favor of another (Dalrymple c. Williams, supra); "not proven" given as an answer to a question, changed to "no" (Cruikshank v. Cruikshank, 38 App. Div. 580, 56 N. Y. Supp. 699),

If the motion is based upon what the jury will be presumed to have intended, under the instructions given, the charge should be included in the moving papers.

In Clark v. Lude, 63 Hun, 363, 18 N. Y. Supp. 271, the court vacated an order setting aside the verdict, and reinstated it with an amendment specifying the amount (it being a liquidated sum).

II. MOTION FOR NEW TRIAL.
FORM No. 1642.

Formal order denying motion for new trial, made on minutes.74

[Title.]

At a Trial Term [etc., as in
Form 820, p. 1174].

day of

The issues in this action having duly come on for trial, and having been tried on the 19 before the court and a jury, and the jury having rendered its verdict in favor of the [plaintiff] and against the [defendant] for the sum of dollars; and the justice presiding at the trial aforesaid, having, at the same term, and immediately after the rendition of the said verdict, entertained a motion on his minutes on behalf of the [defendant] to set aside said verdict and for a new trial, upon the exceptions taken by the [defendant] at the trial, and because the verdict is contrary to the evidence, and contrary to law, and is for excessive damages; and after hearing Z. T., Esq., of counsel for the [defendant], for the motion, and A. T., Esq., of counsel for [plaintiff], opposed, it is

ORDERED, that the [defendant's] said motion be and the same is hereby in all respects denied.

Enter:

FORM No. 1643.

Affidavit to obtain order to show cause75 why a new trial should not be ordered on the minutes.

[Title of court and action.]

[Venue.]

Z. T., being duly sworn, says: I. That he is attorney for the [defendant] herein.

II. That this action was tried at a Trial Term of this court on the inst., before Mr. Justice J. K. and

a jury.

day of

74 See notes to Form 1645.

75 The motion must be heard at the same term as the trial, if based on the trial minutes. Wilcox v. Fox, 112 App. Div. 560, 98 N. Y. Supp. 769.

Take an order to show cause if sufficient time does not remain to give ordinary notice for the same term.

Notice of intention to move for new trial must be given before expiration of time to appeal from judg.

ment. Code Civ. Pro., § 1002. See Heath v. N. Y. Building, etc., Co., 91 Hun, 170, 36 N. Y. Supp. 213, appeal dismissed, 156 N. Y. 682. Formal notice of the motion is not necessary; any step taken which is sufficient to notify the adversary of the party's intention to move is enough. Russell v. Agric. Ins. Co., 19 App. Div. 624, 46 N. Y. Supp. 186.

III. [State how cause was decided and ground of motion, as thus:] That the jury rendered a verdict for the [plaintiff for the sum of dollars,] and the defendant desires to move to have said verdict set aside on all the grounds mentioned in 999 of the Code of Civil Procedure [except insufficiency of damages.]

IV. [State reason for asking order to show cause, and as to previous application, see p. 1172 of this volume.]

[Jurat.]

FORM No. 1644.

[Signature.]

Order to show cause upon motion on the minutes for a new trial.76

[Title of court and cause.]

of

On the annexed affidavit of Z. T., verified on the

day

19 let the plaintiff [or, defendant] show cause before me [or, before Hon J. K."], at the Trial Term of this court now in session in and for the county of

court house in

at the ],

[or, at the city hall in the city of on the day of 19 why, upon the judge's minutes, the verdict of the jury rendered on the day of 19 herein should not be set aside, and a new trial [or if the order to show cause is made by another judge than him who tried the cause, say: why an application to set aside the verdict and for a new trial herein on the judge's minutes should not be entertained, and if said application is so entertained, then why said verdict should not be set aside and such new trial] should not be granted, on

76 N. Y. Code Civ. Pro., §§ 998, 999; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Metropolitan R. R. Co. v. Moore, 121 U. S. 558; Schmidt v. Cohn, 12 Daly, 134; Hynes v. McDermott, 7 Abb. N. C. 98; Brown v. Brown (Va., 1887), 3 S. E. Rep. 808.

The motion is not authorized after a trial by court without jury. Bosworth v. Kinghorn, 94 App. Div. 187, 87 N. Y. Supp. 983. Nor after the court, at a jury trial, has dismissed the complaint. First Nat. Bank r. Clark, 42 Hun, 90, 25 Wkly. Dig. 95.

The notice of motion on the minutes is given in the text in the form of an order to show cause, because the motion must be heard at the same term at which the cause was tried (Wilcox v. Fox, 112 App. Div. 560, 98 N. Y. Supp. 769), and in many instances, when formal notice of such

a motion is to be given, the near approach of the close of the Trial Term, or the necessity of a stay of proceedings, will make it desirable to apply for an order to show cause instead of giving full notice. Where this is not the case, an ordinary notice may be drawn.

In practice, these motions are usually made and heard without formal written notice of any kind. On the coming in of the verdict, the party desiring to review it, applies orally, upon the spot, to the judge to hear a motion for a new trial on the minutes, and the judge either decides the motion at once, or reserves decision, or designates a day for the hearing. S. P., Hansen t. Fish, 27 Wisc. 535.

77 The motion must be heard before the judge who presided at the trial, or some one designated by him to hear it.