« PreviousContinue »
FORM No. 1669.
I, M. N., clerk of the county of , and clerk of the Supreme Court of said state for said county, do certify that I have compared the foregoing with the original copies of [specify, as in preceding form, all distinct papers) on file in my office, and that the same are correct transcripts thereof and of the whole of such originals.
In witness whereof, I have hereunto subscribed my name and affixed my official seal this day of , 19.
[Signature and title.]
FORM No. 1670.
Affidavit of no opinion.60 [Title of court and cause; and venue.]
A. T., being duly sworn, says that he is the attorney for the plaintiff herein; that no opinion was handed down by Mr. Justice J. K., in deciding the plaintiff's motion for a new trial upon the minutes. [Jurat.]
FORM No. 1671.
Order directing filing of printed record at Appellate Division. 61 Pursuant to section 1353 of the Code of Civil Procedure, the foregoing printed record constituting the case and exceptions is or. dered on file in the office of the clerk of the Appellate Division of the Supreme Court for the [First] Department. [Date.]
[Initials of judge and title.] We consent to the entry of the foregoing order.
[Signatures of attorneys.]
60 N. Y. Gen. Rule No. 32.
61 This order is necessary whenever the appeal is founded upon a case
prepared and settled. Odendail 1. Haebler, 91 App. Div, 372, 86 N. Y. Supp. 599.
FORM No. 1672. Order in which papers on appeal, from judgment after verdict and order
denying new trial, may be printed.82 (1) Index ;63
Statement under Rule 41 ;64
Case and Exceptions ;68
[Or, Clerk's certificate:]"
FORM No. 1673.
Notice of motion to resettle case on appeal.74 [Title of court and cause.]
Please take notice that upon the annexed affidavit of A. T., verified the day of , 19 , the undersigned will move this court at a Special Term [Part I thereof] to be held at the
82 As prescribed, in part, by Brady r. Powers, 105 App. Div. 476, 94 N. Y. Supp. 259.
This order of presentation is substantially followed on appeal from a judgment entered on the decision of the court or referee. The exceptions to the decision, however, may not form a part of the judgment-roll as filed; if not, the exceptions are printed immediately after the judg. ment. On such an appeal, too, there will be no order denying motion for new trial.
For directions as to size of page, margin, type, folioing, etc., see Gen. Rule No. 43.
63 Court Rule No. 43. The index of exhibits must concisely indicate the contents or nature of each. See Foster 1. Bookwalter, 78 Hun, 352, 29 N. Y. Supp. 116; Reid v. Mayor, 21 N. Y. Supp. 719, 50 St. Rep. 758.
64 See Form No. 1662. 65 See Forms under Chapter XV, post, APPEALS.
66 The full title as appears in each separate paper and full form of verification are required in the first de
partment. In the second department,
67 Form No. 1645.
74 If either party feels aggrieved at the way in which the case has been settled by the trial justice, the usual method is to move for a re-settlement upon affidavits. An appeal lies from the order made upon this motion. Zimmer . Met. St. Ry, Co., 28 App. Div. 504, 51 N. Y. Supp. 504, 5 Anno. Cas. 283; N. Y. Rubber Co. v. Rothery, 112 N. Y. 592.
The motion must, of course, be heard and decided by the justice who presided at the trial. The practice in New York county will be to move at Special Term, Part I, and have the motion referred to the presiding justice. Henry v. Interurban St. Ry. Co., 115 App. Div. 352. If tried before a
County Court House in the Borough of Manhattan, County of New York, on the day of , 19 , at 10:30 o'clock in the forencon thereof, or as soon thereafter as counsel can be heard, for a resettlement of the case on appeal herein, as heretofore settled by Mr. Justice J. K., and ordered on file, in the following particulars: (set forth in detail, and with references to page and line of case, each proposed amendment;] and for such other and further relief as may be just.
FORMS. 1674. Order for judgment, after direc. 1695. Notice of motion for retaxation tion at trial that cause be
of costs. reserved for further consider. 1696. Order on motion for retaxation, ation.
1697. Judgment on inquest. 1675. — compelling entry of judg. 1698. Findings of trial judge, after ment.
inquest taken upon defend1676. Certificate by judge, of fact
ant's default at call of calnecessary to give costs.
endar. 1677-1681. Statements suitable to in- 1699. Judgment by defendant's desert in foregoing Form.
fault when cause is reached 1082. Notice of motion (or order to
on the calendar. show cause) for costs or for 1700. - on dismissal of complaint for an allowance.
plaintiff's failure to appear. 1683. Referee's certificate upon appli- 1701. Motion to vacate judgment cation to court for extra al
taken by default. lowance.
1702. Judgment on nonsuit or dis1684. Attorney's affidavit upon appli
missal of complaint at trial. cation to court for extra al. 1703. -- on verdict -- common Form.
lowance after trial by referee. 1704-1719. Recitals suitable to insert 1685. Order for extra allowance.
in foregoing Forin. 1686. – allowing costs in judginent 1720. Judgment for double or treble against executor, etc., to be
damages. paid out of the estate.
1721. – in favor of plaintiff against 1687. - - - to be charged upon
a part of the defendants. him personally.
1722. - of part of the plaintiffs 1688. Statement of costs and dis
against all the defendants. bursements – for entering 1723. - against a part of the dejudgment.
fendants. 1689. Affidavit to disbursements; 1724. – awarding money previously written under bill of costs.
paid into court. 1690. Affidavit to witness fees.
1725. – against a joint debtor not 1691. Referee's affidavit as to time
served in a previous action. spent.
1726. — where plaintiff's recovery en1692. Notice of taxation of costs.
titled defendant to costs. 1693. Objections to taxation.
1727. – where defendant is entitled 1694. Notice of readjustment of costs.
to costs by reason of offer not accepted.
referee, apply at Special Term to have the case sent back to referee for resettlement. Rose v. Ingersoll, 35 App. Div. 379, 54 N. Y. Supp. 827.
An order denying a re-settlement, or refusing to re-settle a case, is appealable. Code Civ. Pro., $ 1347, subd. I.
FORM No. 1674. Order for judgment, after direction at trial that cause be reserved for further
At a Trial Term [etc., as in
Form 820, p. 1174]. [Title of action.]
[Recitals as in Form 1701 to the I, continuing as thus:] and the cause having been reserved by the court for further consideration, now, after hearing A. T., of counsel for plaintiff, and T. Z., of counsel for defendant; and due deliberation having been had thereon: Now, on motion of [etc.]:
ORDERED [that the sum found by direction of the court be and the same is hereby reduced to dollars, 76 and], that the plaintiff have judment for the sum of dollars damages, with costs to be taxed [may add direction for allowance, and for stay, etc., as in other Forms].
FORM No. 1675.
Order compelling entry of judgment.77 [Title (court order) and recitals— see Form 820, p. 1174—and may state relief thus:] that unless judgment be entered by the (plaintiff] within [ten] days after the service of this order upon his attorney, the [defendant] have leave to enter judgment in conformity to (the aforesaid order of the Appellate Division of this court, dated the day of 19 — without costs.78]
75 Sustained by Shellington v. How land, 53 N. Y. 371, aff'g 67 Barb. 14. That was under Code Pro., & 264, which provided that on a verdict the clerk should enter in the minutes,
• “either the judgment rendered thercon, or an order that the cause be reserved for argument or further consideration."
tion is given by the court, or it is otherwise specially prescribed by law."
Whether the former practice is reg. ular now, see Develin v. Cooper, 84 N. Y. 410.
Code Civ. Pro., § 1189, substituting the following provision: That the clerk is to enter in the minutes * * * “the direction, if any, which the court gives, with respect to the subsequent proceedings. Upon the application of the party in whose favor a general verdict is rendered, the clerk must enter judgment, in conformity to the verdict, unless a different direc.
76 Gumb r. Twenty-third St. Ry. Co., 58 N. Y. Super. Ct. 559, 9 N. Y. Supp. 316.
77 Sustained in Wilson v. Simpson, 84 N. Y. 674. Or, the order may be absolute that the party moved against enter judgment, as thus: “ That plaintil forthwith perfect and enter judg. ment herein upon the verdict.” Skinner r. Quin, 43 N. Y. (Hand) 99.
78 Ballou r. Chicago & Northw. R. R. Co., 53 Wis. 150; abst. s. C., 12 Repr. 736.
FORM No. 1676. Certificate by judge, of fact necessary to give costs. 79 [Title of action.]
I, the undersigned J. K., the justice presiding at the trial of this action [or, referee before whom this cause was tried, hereby certify [state fact as in Forms 1677 to 1681 (below)]. [Date.]
[Signature and title of justice.]
FOBMs Nos. 1677-1681 — STATEMENTS SUITABLE TO INSERT IN FORE
FORM No. 1677. Title to real property was in question.80 That the title to real property came in question on said trial.
FORM No. 1678. That causes of action separate in form were substantially the same.81
That upon the issues raised by the answer to the first and second] alleged causes of action stated in the complaint, the sub stantial cause of action upon the trial was the same upon each issue.
79 Sustained in Clarke r. Tunnicliff, 38 N. Y. 58, 4 Abb. Pr. (N. S.) 451 (school trustee case).
The certificate may be made before or after verdict, decision, or report. N. Y. Code Civ. Pro., § 3248; Brain erd v. DeGraef, 29 Misc. 560, 61 N. Y. Supp. 953.
if made by a referee, it will be entitled in the court and cause.
If improperly granted, a motion to set aside will lie, but no appeal can be taken from the certificate, and it is conclusive upon the taxation of costs. Cooley u. Cummings, 4 N. Y.
Supp. 530, 56 N. Y. Super. Ct. 521, 17
80 N. Y. Code Civ. Pro., 8 3235.
81 Necessary (if defendant recovers as to one and plaintiff as to the other), in order to entitle defendant to costs, i set off against plaintiff. N. Y. Code Civ. Pro., 8 3234. Com. pare Reed r. Batten, 22 Abb. N. C. 69. 6 N. Y. Supp. 708, 17 Civ. Pro. Rep. 272; Barlow r. Barlow, 35 Hun, 50; Ackerman 1. De Lude, 36 id. 44; Blashfield t. Blashfield, 41 id. 249; Fisher 1, Dougherty, 42 id. 167; Law 0. McDonald, 9 id. 23; Watson t. Gardner, 50 N. Y. 671.