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FORM No. 1655.
At a Trial Term [etc., as in
Form 820, p. 1174]. [Title.]
This action having come on for trial before Hon. J. K., a justice of this court, and a jury, at the present term of this court, and the defendant having taken exception to the rulings of the court upon the trial, and the defendant having moved for a dismissal of the complaint herein, and for the direction of a verdict in the defendant's favor, and the court having denied defendant's said motion for a dismissal of the complaint and for the direction of a verdict in the defendant's favor, and the jury, by direction of the court, having rendered a verdict in favor of the plaintiff; to each of which rulings and directions defendant having excepted; 25
[Or, in case of nonsuit: the said justice, at the close of the plaintiff's case having granted the motion of the defendant to dismiss the complaint, and having denied the motion of the plaintiff to go to the jury, and the plaintiff having excepted to each of said rulings]
And the court, upon motion of the [defendant] having ordered that the exceptions be heard in the first instance at the Appellate Division, and the court having further ordered on motion of the defendant, that the entry of judgment be in the meantime sus
24 The Appellate Term has no jurisdiction to hear exceptions in the first instance. Dickson 0. Man. R. Co., 45 Misc. 572, 91 N. Y. Supp. 36.
This is in substance a motion for a new trial, but it enables the party to raise only questions of law, includ. ing the question whether there was such an absence of evidence that as matter of law an essential fact was unproved. Metropolitan Natl. Bk. t. Sirrett, 15 Abb. N. C. 318, 97 N. Y. 320. No question of fact, or not pre sented by an exception can be consid. ered. Huda v. Am. Glucose Co., 151 N. Y. 549; Amy . Stein, 48 N. Y. Super. Ct. 512; Martin v. Platt, 4 N. Y. Supp. 359.
A formal order should be entered. N. Y, Code Civ. Pro., $ 1000. See Sedgwick o. Macy, 24 App. Div. 1, 49 N. Y. Supp. 154; Campbell v. Sug. hardt, 50 App. Div. 460, 64 N. Y. Supp. 198.
The direction may only be made by the judge who presided, at any time during the same term. Id.; Fifth Ave. Bank v. Forty-second St. Ry. Co., 6 App. Div. 567, 40 N. Y. Supp. 219.
It may be made after nonsuit as well as where a verdict was had.
Cannot be directed by court sitting without a jury. McNaughton v. Osgood, 114 Ñ. Y. 574.
Not applicable in county court. Johnson r. N. Y., Ontario, etc., R. Co., 30 Hun, 166. Nor to New York City Court, at least to direct the hearing at the Appellate Term. Dickson t. Manh. Ry. Co., 45 Misc. 572, 91 N. Y. Supp. 36.
Can be ordered at the trial of special questions in divorce. Carpenter v. Carpenter, 30 N. Y. St. Rep. 955.
25 Schwartz v. Family Fund Soc., 12 N. Y. Supp. 717; Curtis v. Wheeler, etc., Mfg. Co., 141 N. Y. 511.
pended; and the court, upon motion of the plaintiff, having directed that in the event of the defendant's exceptions being overruled the plaintiff should have the right to enter judgment against the defendant upon the verdict as rendered; now, on motion of Z. T., attorney for the defendant, it is
ORDERED, that the defendant's said exceptions be heard in the first instance by the Appellate Division of the Supreme Court for the [First] Department, that the defendant may make and serve a case26 and exceptions within sixty days from the day of
, 19 , that the entry of judgment herein upon the rerdict of the jury in favor of the plaintiff and against the defendant be suspended until the hearing and decision of the Appellate Division upon said exceptions, 27 and that in the event of the defendant's said exceptions being overruled by the Appellate Division the plaintiff shall have the right to enter judgment upon the verdict in favor of the plaintiff and against the defendant for the sum of dollars, together with the costs of this action to be taxed.
FORM No. 1656. Notice of hearing of exceptions at Appellate Division.28 [Title of court and action.]
Please take notice that the undersigned will bring the exceptions taken herein by plaintiff [or, defendant] to a hearing at a term of the Appellate Division of the Supreme Court for the [First] Department, to be held at the [Appellate Dirision, Court House [or, City Hall] ina , on the day of 19, at the opening of the court on that day, or as soon thereafter as counsel can be heard, (and that the plaintiff will then and
26 The exceptant must prepare the case. Wright v. Mayor, 14 Daly, 349, 13 St. Rep. 153; Staack v. Preble, 43 Hun, 441.
27 A stay for the purpose of making a case, etc., is not enough. Doug. las v. Haberstro, 10 Abb. N. C. 6.
tice may be given by either parts; and the party opposing a new trial may, on default of the other party te appear, take an order denying the motion for new trial. Staacke t. Pre ble, 43 Hun, 441.
No notice of appeal is necessary, there being nothing from which to appeal. Battersby v. Collier, 34 App: Div. 347, 54 N. Y. Supp. 363.
This direction is necessary in order to prevent entry of judgment. Matthews 0. Am, Cent. Ins. Co., 154 N. Y. 449.
28 N. Y. Code Civ. Pro., § 1000. This is an enumerated motion. Vol. I, p. 72. See, also, local rules. No.
29 Within the department where the cause was triable. N. Y. Code Civ. Pro., $$ 231, 1344, 1345; Lord e. Wilkinson, 66 Barb. 607.
there move for a new trial of this action upon the same papers upon which the exceptions are to be heard]. [Date.]
[Signature and office address of], [Address] To
FORM No. 1657.
At a term of the Appellate Division,
[etc., as in Form 820, p. 1175]. [Title.]
This action having been brought on for trial at a Trial Term of the Supreme Court, held at the County Court House in the county of , on the day of , 19 , before Hon. J. K., and a jury, and the evidence on the part of the plaintiff and on the part of the defendant having been heard, and the said de fendant having duly excepted to certain rulings of the court dur ing the trial, and the court having by order duly made and entered in the office of the clerk of the county of
on the day of , 19 , directed that said exceptions be heard in the first instance by the Appellate Division of the Supreme Court for the [First] Department, and the said defendant having duly moved this court for a new trial upon such exceptions, and after hearing Z. T., Esq., of counsel for the defendant-exceptant, in support of said motion, and A. T., Esq., of counsel for the plaintiff, in opposition thereto, now, on motion of Z. T., attorney for the defendant, it is
ORDERED, that the said exceptions of the defendant be and the same are hereby sustained, and a new trial ordered,30 with costs to the defendant to abide the event.
FORM No. 1658. Order of Appellate Division overruling exceptions and directing judgment.31
[After appropriate recitals; see preceding Form:] now, on motion of A. T., attorney for defendant, it is unanimously
ORDERED, that the said exceptions taken by the plaintiff be and the same are hereby overruled, with costs, and judgment is hereby directed in favor of the defendant dismissing the complaint herein [or, in favor of the defendant — or, plaintiff — on the verdict herein) with costs; and the plaintiff, at the time of the hearing of the said exceptions, having moved this court for a new trial herein, now, after hearing the same counsel respectively on behalf of the plaintiff-exceptant and the defendantrespondent, it is further unanimously
30 The Appellate Division cannot direct a dismissal. Matthews r. Am. Central Ins. Co., 154 N. Y. 449.
31 Serve adversary with copy and
notice of entry, and wait four full calendar days before entering judg. ment. N. Y. Code Civ. Pro., $ 1227; Marvin v. Marvin, 75 N. Y. 240.
ORDERED, that the said motion for a new trial be and the same is hereby denied.
FORM No. 1659. Judgment after exceptions heard in first instance by Appellate Division.33 [Title of court and cause.]
The issues in this action having been duly brought to trial be fore Mr. Justice J. K., and a jury, at a Trial Term of this court · [held at Part thereof], at the County Court House in the
[Borough of Manhattan] on the day of , 19 , and the allegations and proofs of the plaintiff having been duly heard and considered and the court having dismissed the complaint, and having directed that the plaintiff's exceptions be heard at the Appellate Division in the first instance, and having also directed that entry of judgment be suspended in the meantime until the determination thereof by the Appellate Division; and such exceptions, together with a motion for a new trial made by the plaintiff, having been regularly brought on for hearing before the Appellate Division of the Supreme Court for the [First] Department, and said Appellate Division having, on the day of
, 19 , duly ordered that the plaintiff's exceptions be overruled, with costs, and that judgment be entered dismissing the plaintiff's complaint, and that plaintiff's motion for a new trial be denied; and the remittitur of the Appellate Division in this action having been duly filed in the office of the clerk of the county of New York on the day of , 19, and the de fendant's costs in both courts having been duly taxed by the clerk of this court (together with dollars interest from the day of , 19, to the day of this judgment], amounting in all to the sum of dollars; now, on motion of Z. T., attorney for the defendant it is
32 This is the judgment of the Ap. pellate Division, and an appeal lies directly to the Court of Appeals Code Civ. Pro., § 1336; Martin .
Platt, 131 N. Y. 641. Unless other proceedings are necessarily taken before the final judgment can be entered. Code Civ. Pro., $ 1350.
ADJUDGED, that the complaint of the above-named plaintiff be and the same is hereby dismissed; and it is further
ADJUDGED, that the above-named defendant [name] recover from the plaintiff [name] the sum of dollars, the amount of the defendant's costs as taxed, and have execution therefor.
Judgment this day of
CASE AND EXCEPTIONS.
FORMS. 1660. Order extending time to serve 1868. Stipulation waiving certificacase, with stay.
tion. 1661, Order opening default in sery. 1669. Clerk's certificate. ing case.
1670. Affidavit of no opinion. 1662. Proposed case (with or with 1671. Order directing filing of printed out exceptions) after trial by
record in Appellate Division.
1672. Order in which papers on ap1663. Notice of proposed case.
peal, from judgment after 1664. Amendments proposed to pro
verdict and order denying posed case.
motion for new trial, may be 1665. Notice of settlement of case,
printed. exceptions, etc.
1673. Notice of motion to resettle 1666. Stipulation regarding exhibits.
case on appeal.
FORM No. 1660.
At a Special Term [etc., as in
Form 820, p. 1174]. [Title of action.]
On reading and filing the affidavit of A. T., verified the day of , 19 , and on motion of A. T., and after hearing T. Z. [or, on proof of due notice of this motion,34 and no one appearing] for the in opposition:
33 Entry of judgment, and its enforcement, are not stayed by procuring time for preparation of case. Sce N. Y. Code Civ. Pro., $ 1005. An order for time to prepare case, etc., docs not extend the time to appeal. Durant v. Abendroth, 53 N. Y. Super. Ct. 15; aff'd, without opinion, 101 N. Y. 641.
The application for additional time must be made in the court below, and not at the Appellate Division. Wetter v. Erichs, 21 App. Div. 475, 47 N. Y. Supp. 688.
34 Two days' notice of the application is required. Court Rule No. 32.