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AND IT IS FURTHER ADJUDGED, that as to the said plaintiff [naming him], the defendants have judgment on the issues, and that they recover of the said [naming him), dollars costs of the action as taxed.

AND IT IS FURTHER ADJUDGED, that the defendant [naming him], have judgment on the issues against the plaintiffs, and that he recover of all the plaintiffs dollars, costs of the action, as taxed.

[Authentication as in Form 1703.]

ruing as thus 9 in Form ; 20 pursuance

FORM No. 1724. Judgment awarding money previously paid into court.81 [Title of court and action.] The defendant, Y. Z., by an order duly entered herein on the

day of , 19, having been permitted, within days after the service of a copy of said order on his attorneys, to deposit in court, to the credit of this action, subject to the judgment or order of this court, the sum of dollars, with interest from the day of

, 19 ; and the said defendant having, within the time so limited, deposited in court, the said sum and interest, to wit, dollars, in pursuance of said order; and the issues [proceed as in Form 1703 from the beginning to the I, continuing as thus:] the was at and before the commencement of this action, the lawful owner of the promissory note described in the complaint herein, and is, and on said day of , 19, was, entitled to the proceeds thereof, to wit, the sum then as aforesaid deposited in court. II. That the treasurer of the county of

for in New York county, the chamberlain of the city of New York] pav to the said the said sum of dollars, so paid into court (with the interest accumulated thereon), after deducting his lawful fees. III. That the said

recover of the the sum of dollars costs as taxed.

[Authentication as in Form 1703.] [Certified copy to be countersigned by the judge,82 and file certified copy with depositary.8°]

81 Monroe t. Chaldeck, 78 III. 429. 83 N. Y. Gen. Rule No. 68.

82 N. Y. Code Civ. Pro., $ 751; Court Rule No. 69.

FORM No. 1725. Judgment against a joint debtor not served in a previous action.84 [As in Form 1703 to the $, continuing:] which is hereby adjudged to be the sum now remaining unpaid upon the original judgment recovered in a former action by the plaintiff against joint debtors, of which the defendant Y. Z. was one, but who was not served in said former action, as alleged in the complaint herein, and that said plaintiff also recover his said costs of this action as taxed, amounting in all to dollars.

[Authentication as in Form 1703.]

FORM No. 1726. Judgment where plaintiff's recovery entitles defendant to costs.83 [Recitals of proceedings and verdict, decision, or report, as in other Forms, etc., continuing:] and it appearing that this action being one of which a justice of the peace has jurisdiction, the plaintiff is not entitled to costs [or, that the plaintiff, having recovered less than $50 in this action, is not entitled to costs], and the defendant is entitled to costs against the plaintiff, and defendant's costs having been duly adjusted at the sum of dollars; Now, on motion of T. Z., attorney for defendant: IT IS ADJUDGED, that the plaintiff recover of the defendant

dollars, his damages so found, and that the defendant be allowed his costs of this action, amounting to dollars, and that the defendant after deducting said sum of (damages) from said sum of [costs], do recover of the plaintiff, and have exe cution for the sum of dollars, the residue of said costs.

[Authentication as in Form 1703.]

FORM No. 1727. Judgment where defendant is entitled to costs by reason of offer not

accepted.86 [As in Form 1703 to the 1, continuing:] and the defendant having more than ten days before the trial of this action87 duly

84 N. Y. Code Civ. Pro., 8 1937. This is still to be deemed a judgment for a sum of money only, and triable by jury, notwithstanding the phraseology of that section.

After final judgment entered in the original action, plaintiff cannot serve the summons in that action upon one of the defendants not summoned, but must bring a new action on the judg. ment. Power Pub. Co. 1. Hall, 69 N. Y. Supp. 533.

85 N. Y. Code Civ. Pro., § 3228; Whitney 0. Daggett, 6 Abb. N. C.

434; Johnson 1. Farrell, 10 Abb. Pr. 384; Warden 1. Frost, 35 Hun, 141; Hudson v. Guttenberg, 9 Abb. N. C. 415; 8. P., note to next Form.

Application to the court is not necessary unless there are several defendants, all of whom are not entitled to costs. Lultgor v. Walters, 64 Barb. 417.

86 Lingee v. Shears, 29 Hun, 210; N. Y. Code Civ. Pro., § 737; S. P., note to last Form.

87 Herman v. Lyons, 10 Hun, 111.

offered in writing to allow plaintiff to take judgment against him herein for the sum of dollars, which offer was not accepted by plaintiff, and plaintiff's costs up to the time of said offer having been duly adjusted at dollars, and defendant's costs from the time of said offer having been duly adjusted at

dollars; Now, on motion of Z. T., attorney for said defendant:

IT IS ADJUDGED, that defendant recover of plaintiff dollars for his said costs.

And on motion of A. T., attorney for plaintiff:

IT IS ADJUDGED, that plaintiff recover of defendant lars, his damages so found, and dollars, his said costs, amounting together to the sum of dollars, less the sum of dollars to be deducted for said costs of defendant, and that said plaintiff have execution for dollars, the residue of said recovery.

[Authentication as in Form 1703.]


PROCEEDINGS IN CASE OF TRIAL BY THE COURT. (Forms more commonly used in connection with trial by jury are not repeated here, although such as may be used on trial by the court.] SECTION I. DETERMING MODE OF TRIAL.





FORMS. 1728. Stipulation for trial by the 1734. Notice of proposed issues where court without jury.

order for trial by jury has 1729. Order at Trial Term transfer.

been made without stating ring cause to be tried at

the questions. Special Term.

1735. Amendments proposed to the 1730. Affidavit to move for trial of

proposed issues. issues by a jury.

1736. Notice of settlement of issues 1731. Notice of motion to settle is.

and amendments. sues for trial by jury.

1737. Order settling issues, and di1732. Issues proposed for trial by

recting their trial by jury. jury under foregoing notice. 1738. Order directing issues in parti1733. Order refusing to strike cause

tion to be tried on the pleadfrom calendar, but directing

ings. that issues be settled for 1739. Order of reference to settle trial by jury.

issues. FORM No. 1728. Stipulation for trial by the court without jury. [Title of court and action.]

The parties hereto by their respective attorneys hereby stipulate that * this action [or, the issues heretofore joined in this action88] shall be tried by the court, without a jury. 89 7 [Date.]

[Signatures of attorneys.]

88 In Bamberger v. Terry, 103 U. S. brought in by amendment at the close 40, it was held that in the absence of the trial. For an express restricof such a qualification as this clausetion to present trial, see Form 1741. the stipulation covered new issues 89 Express waiver was required by

FORM No. 1729. Order at Trial Term transferring cause to be tried at Special Term.90 [May be readily adapted from Form 1607, p. 1786.]

the court in Kelly r. Milan, 21 Fed. Rep. 842.

Omission to enter in writing does not avoid the judgment. Maxwell v. Stewart, 22 Wall. 77.

As to sufficiency to secure review in United States Supreme Court, see Bond v. Dustin, 112 U. S. 604; Flei. tas v. Cockrem, 101 id. 301; Boogher v. N. Y. Life Ins. Co., 103 id. 90; Roberts r. Benjamin, 124 id. 64.

As to implied waiver see N. Y. Code Civ. Pro., 8 1009; Mackellar v. Rogers, 109 N. Y. 406; Third Nat. Bank r. Shields, 55 Hun, 274, 8 N. Y. Supp. 298; Collins 1. Collins, 13 N. Y. Supp. 28, afi'd, 131 N. Y. 648; Boyd '. Boyd, 12 Misc. 119, 33 N. Y. Supp. 74, 2 Anno. Cas. 30, aff'd, 146 N. Y. 403; Baylis 1. Bullock Mfg. Co., 59 App. Div. 576, 69 N. Y. Supp. 693; Wheelock 1. Lee, 5 Abb. N. C. 72, 74 N. Y. 495; Hand v. Kennedy, 83 N. Y. 149; Tower t'. Moore, 52 Mo. 118.

For a stricter rule, see Odell v. Reynolds, 40 Mich. 21; Biggs v. Lloyd, 70 Cal. 447; Morrell v. Mor rell, 17 Hun, 324.

Whether the decision of a cause thus tried has the effect of the verdict of a jury or not, as compared with the decision of a judge in a cause triable by the court, see Murtha v. Curley, 90 N. Y. 372, 12 Abb. N. C. 12; Mayer 0. Mode, 14 Hun, 155; Kelsey r'. Forsyth, 21 How. U. S. 85; Travers V. Wormer, 13 III. App. i Bradwell) 39, 15 Chicago Legal News, 365; Richmond 1. Dubuque, etc., R. R. Co., 33 Iowa, 422.

The better opinion appears to be that if the case be an equity cause, the fact that an express waiver of jury trial was made, and the cause

tried at a jury term without jury, does not alter the function of the judge; and conversely, if the cause was one in which a trial by jury was matter of right, a mere waiver of the right without anything to indicate an intention to treat the cause as an equity cause — as, for instance, by sending it to the Special or Equity Term for trial - does not alter his function.

The mode of making findings in such a case will be the same as on the trial of an equity cause, except that costs are not thereby rendered discretionary.

90 Watson v. Manhattan Ry. Co., 17 Abb. N. C. 289, 53 N. Y. Super. Ct. 137; Meach v. Chappell, 8 Paige, 135.

Or, the court may postpone the cause to enable a party to move for the settlement of questions for trial by jury. Mackellar v. Rogers, 52 N. Y. Super. Ct. 468; Hewlett +. Wood, 62 Ñ. Y. 75.

The action should not be dismissed. Warner v. Swanton, 15 Wkiy. Dig. 256. If his complaint makes a case for equitable relief, the plaintiff has a right to try the question of his right to such relief.

And on failing to make out claim for equitable relief, he has a right to have the action tried as a legal action for damages, if the facts are alleged which make such a case. Sternberger '. McGovern, 56 N. Y. 12, 15 Abb. Pr. N. S.) 257. If, however, the allegations make out a case for equitable relief only, and the proofs fail to sustain the allegations, there must be a dismissal. Dalton v. Vandeveer, 31 Abb. N. C. 430, 8 Misc, 484, 29 N. Y. Supp. 342.

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