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due notice of trial given to the [attorney for the] defendant 2. T., who has heretofore appeared herein, and an inquest having been duly taken *' at the opening of the court, on this [or, that] day, no affidavit of merits having been filed or served, and the defendant's answer being unverified, and said defendant not appearing; and a verdict for plaintiff having been thereupon duly rendered for the sum of dollars, and plaintiff's costs having been duly adjusted at the sum of

dollars, Now, on motion of A. T., attorney for the plaintiff:

IT IS ADJUDGED [continue as in Form 1703, below).

FORM No. 1698. Findings of trial judge, after inquest taken upon defendant's default at call

of calendar. [Title of court and cause.]

This cause having been duly reached on the calendar in its regular order, at a Trial Term of this court held by me, on the day of , 19 , at , and the cause having been duly called for trial, and no one appearing on behalf of the defendant; and the allegations and proofs of the plaintiff having been duly heard and considered by me, I hereby make the following decision:

Findings of Fact. [Continue, as in the case of a trial before court without jury; see Form No. 1748.

FORM No. 1699. Judgment by defendant's default when cause is reached on the calendar.50 [Title of court and action.]

This cause having been duly reached on the calendar51 in its regular order at a Trial Term of this court, on the day of , 19 , after due notice of trial thereof to the attorney for the defendant who has [or, the respective attorneys for all the defendants who have] heretofore appeared herein; and no one appearing on behalf of said defendant[s],52 and the plaintiff's allegations and proofs having been duly heard by the court, and a decision having been duly made and filed herein on the day of , 19 , wherein judgment is directed as hereinafter provided [or, where the jury assesses the damages and the jury, under the direction of the court having duly assessed the plaintiff's damages at the sum

49 See notes to Form 1604. De fendant, if he wishes to contest the grounds of the judgment on evidence, must appear at the inquest. Green leaf 1. Brooklyn, Flatbush, etc., R. R. Co., 102 N. Y. 96, dismissing appeal from 37 Hun, 435.

50 The defendant's failure to appear waives a jury trial on his part, and plaintiff makes his proof before the presiding judge, or, in case of unliquidated damages, the judge may have a jury impanelled before bim to

assess the damages. The notice of trial, with proof of service, forins a necessary part of the judgment-roll.

For the practice, see Patten €. Hazewell, 34 Barb. 421; Connoss r. Weir, 2 E. D. Smith, 314; Giberton v. Fleischel, 5 Duer, 652; Thompson V. Finn, 9 Daly, 379; Goodyear t. Baird, 11 How. Pr. 377.

51 See Potter v. Davison, 8 Abb. Pr. 43; Browning v. Paige, 7 How. Pr. 487.

dollars,] and the plaintiff's costs having been duly adjusted at the sum of dollars: Now, on motion of A. T., attorney for the plaintiff,

IT IS ADJUDGED, [continue as in other Forms, below].

of

FORM No. 1700.. Judgment on dismissal of complaint for plaintiff's failure to appear. [Title of court and action.]

This cause having been duly reached on the calendar in its regular order, at a Trial Term of this court, before Mr. Justice J. K. and a jury, on this [or, the] day of

, 19 , and due notice of the trial thereof having been given to plaintiff's attorney, and no one appearing for plaintiff, and judgment by default having been directed [if affirmative relief was asked by defendant, add: and defendant Y. Z. having made his allegations and proof in support of the affirmative relief demanded in his answer, and the court having duly made and filed its decision on the day of

19, wherein judgment is directed for the defendant as hereinafter provided — or, state assessment of damages, if any), and the defendant's costs having been duly adjusted at the sum of : Now, on motion of Z. T., attorney for defendant,

IT IS ADJUDGED, that the plaintiff's complaint be and the same is hereby dismissed [if affirmative relief be asked, state it; see Forms Nos. 1857 to 1895], and that the defendant recover of the plaintiff his costs as taxed, amounting to the sum of dollars. [Date and authentication as in Form 1703.)

FORM No. 1701.
Motion to vacate judgment taken by default.
[See Forms Nos. 2042-2043.7

52 Defendant has a right to appear and defend fully, when the cause is called in its order, although by reason of not filing an affidavit of merits he

could not have objected to an inquest being taken at the opening of the court. Starkweather v. Carswell, I Wend. 77.

FORM No. 1702. Judgment on nonsuit or dismissal of complaint at the trial53 [As in Form No. 1703 to the *, continuing:] and the allegations and proofs on the part of the plaintiff having been heard and considered, and said justice having directed the complaint to be dismissed, 54 and defendant's costs having been duly adjusted at $ : Now, on motion of T. Z., for said defendant, it is

ADJUDGED, that this action be and the same hereby is dismissed, and that the defendant recover of the plaintiff dollars, his costs of this action.

[Authentication as in Form No. 1703.]

FORM No. 1703.

Judgment on verdict-common Form.66 [Title of court and action.]

The issues in this action having been duly brought on for trial before Mr. Justice J. K. and a jury, at à Trial Term of this court, held on the day of , 19 , at the county court house [or, city hall], in the city , county of

63 A judgment of dismissal for failure of proof should not be on the inerits. Weeks 1. Van Ness, 104 App. Div. 7, 93 N. Y. Supp. 337.

A judgment that the action be dismissed without qualification, at common law, is not an adjudication which will bar a fresh action. Wheeler V. Ruckman, 51 N. Y. 391, afl'g, 7 Rob. 547.

A decree in equity in such terms without qualification is generally a bar; see p. 1890, note 51.

Under N. Y. Code Civ. Pre.. $ 1209, the common law rule prevails in all actions, and if the dismissal is upon the merits, the words "upon the merits" should be inserted, or the grounds of the judgment stated. But the failure of the judgment to recite that it was upon the merits is not conclusive that it was not. See Keyes v. Smith, 183 N. Y. 376.

Where the trial is before a jury, the court has no authority, either at the close of plaintiff's evidence or at the close of the evidence of both par. ties, to direct the dismissal of the complaint upon the merits. Harris v. Buchanan, 100 App. Div. 403, 91 N. Y. Supp. 484. It was said in

Niagara Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400, 92 N. Y. Supr. 208, that after the defendant's evidence has been taken, if upon all the evidence plaintiff has established no cause of action, the proper disposition of the case is a direction of a verdict for the defendant.

64 If the judge reserves decision upon the motion to dismiss, and allow's the case to go to the jury, and subsequently grants the motion to dismiss, a formal decision directing judgment of nonsuit should be made and filed, and the plaintiff should file and serve an exception to the direction. Code Civ. Pro., $ 1021. Ross o. Caywood, 162 N. Y, 259. If the dismissal is directed before the jury's discharge, no decision is necessary. See Deeley v. Heintz, 169 N. Y. 129; Ware 1. Dos Passos, 162 id. 281.

55 For various recitals, see Forms 1704 to 1719; for various provisions for judgments in different actions, see Forms 1857 to 1895.

Whether an interlocutory judgment can be entered on a verdict establishing the fact of liability, when further proceedings are necessary to determine the amount, is generally regarded

and the defendant [or, all of the defendants] appearing 6 by counsel * [or, if an inquest or default is taken as to any, say: all the defendants appearing by counsel, except W. X., and recite inquest or default as in Form 1699 or 1700], and the issues having been duly tried, † and a verdict for the plaintiff [or, defendant] having been duly rendered [if so, say: by direction of the court]57 on the [said] day of , 19 , § [for the sum

] [and the costs of the said plaintiff having been duly adjusted at dollars — for other recitals see Forms 1704 to 1719 (below)]: Now, on motion of A. T., attorney for said plaintiff,

IT IS ADJUDGED, that I the plaintiff [name] recover of the defendants [names] the (sum of dollars), found by the jury, with dollars costs as taxed, amounting in all to

dollarg58 [or, if for defendant: that the defendants [names] recover of the plaintiff [name] the sum of dollars, the costs as taxed, 6° [and may add, and that the defendants have judg

as unsettled — compare dictum in
Peck v. Vandemark, 99 N. Y. 29, aff'g
33 Hun, 214, in affirmative; abstr.
8. C., with note, 18 Abb. N. C. 158;
and dictum in Cornell v. Cornell, 96
N. Y. 108, in negative.

The general provisions of the Code as to pleading expressly allowing the complaint to demand an interlocutory judgment in terms, refer only to actions triable by the court without a jury. $ 482.

An additional provision that in jury cases plaintiff must demand final judgment only, was contained in the Code of 1876, but was struck out in 1877, when the definition of interlocutory judgment ($ 1201) was also struck out. But provisions in chapter 14, subsequently adopted, expressly allow interlocutory judgment in partition (N. Y. Code Čiv. Pro., $ 1546), which is triable by jury, and in an action for dower (id., 88 1607, 1619-1622), an action to determine an adverse claim of dower ($ 1648), and an action for waste ( 8 1657), in which actions jury trial is matter of right ($ 968); and the better opinion is that which favors this convenient procedure.

56 This clause is desirable, for it may preclude objections to defects of

proof of service in the judgment-roll. Page 1753, note 8; Eaton v. Harris, 42 Ala. 491; Triplett v. Gillen, 6 J. J. Marsh. (Ky.), 464; Mitchell v. Robson, 52 Wisc. 155, 8 N. W. Rep. 886; Smith v. Wood, 37 Tex. 616; 8. P., Miller v. Handy, 40 III. 448, approved in Harris v. Lester, 80 id. 307.

57 The court cannot direct the jury to bring in a verdict of non-suit. Stumpf 1. Hollahan, 101 App. Div. 383, 91 N. Y. Supp. 1062.

58 If the verdict is for different amounts against the defendants, or if the plaintiff is entitled to interlocutory costs against one or more of then, the judgment may properly direct the separate recoveries. Fox v. Muller, 31 Misc. 470, 64 N. Y. Supp. 388. If directed to be paid out of a particular fund, indicate it as thus: to be paid out of the estate of M. N. by the defendant, as his executor. Hei r. Heller, 53 Wisc. 415, 10 N. W. Rep. 620.

59 As to the right of several defendants appearing separately, and succeeding, to separate bills of costs, see Delaware & L. R. R. Co. v. Burkard, 40 Hun, 625; Lane v. Van Orden, 11 Abb. N. C. 228; Zeisler v. Steinmann, 53 N. Y. Super. Ct. 184; N. Y. Code Civ. Pro., § 3229.

ment against the plaintiff upon the issues in this actions — or slate the different provisions required in actions for specific relief, as in Forms 1857 to 1895 (and have execution accordingly.]62 Judgment this day of , 1962

[Signature of], Clerk.

FORMS Nos. 1704–1719. RECITALS SUITABLE TO INSERT IN FORE.

GOING FORM.

FORM No. 1704.

Change of parties. This action having been originally commenced against the de fendants above named, together with W. X. and V. W., and the action having been, by an order of court, duly entered on the

day of , 19 , discontinued as to the defendant W. X., and the death of the defendant V. W. having been suggested on the record by the attorney for the defendant Y. Z., in open court, upon the trial hereafter mentioned [or, if substitution has been made, recite it, including the fact that the representative was served with the order, and answered],63 and the issues [continuing as in Form 1703 from the beginning!.

FORM No. 1705.

The same-by order of interpleader.64 This action having been originally commenced against Y. Z., and the court having by an order duly granted on the application of said Y. Z., and entered the day of ,19 , substituted W. X. as defendant in the place of said Y. Z., and said W. X. having thereupon appeared as defendant herein, and the issues [continuing as in Form 1703 from the beginning).

FORM No. 1706.

New trial.65 [Insert after title.] A new trial having been heretofore or dered in this action [the former judgment being allowed to stand as security only], and the issues accordingly [continuing as in Form 1703 from the beginning).

00 Such an adjudication after a general verdict for defendant, was considered essential by the Special Term in Overton r. Nat. Bank of Auburn, 3 N. Y. St. Rep. 169.

61 This clause is entirely unneces. sary, but is continually inserted. The clerk has no authority to enter a judgment which provides that it may

be enforced by a body execution. Bacon v. Grossman, 90 App. Div. 204, 86 N. Y. Supp. 66.

62 N. Y. Code Civ. Pro., § 1236.

63 Matter of Scharmann, 49 App. Div. 278, 63 N. Y. Supp. 267.

64 See Form 1724 "for judgment where money was paid into court.

65 Such a recital is common, but

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