FORM No. 1730. Affidavit to move for trial of issues by a jury.91 [Title of court and action.] [Venue.] A. T., being duly sworn, says: I. That he is the attorney for the plaintiff herein. II. That this action is brought to procure a judgment of separation between the parties, upon the ground that the defendant has abandoned the plaintiff, and neglected and refused to provide for her. III. That said action was commenced on the day of 19 and issue was duly joined herein by the service day of of defendant's answer on the 19 [If more than ten days have elapsed since issue joined, show excuse for delay.92] IV. That among the issues raised by the pleadings in said action are: the residence in this State of the plaintiff; the marriage of the parties; and the abandonment of the plaintiff by the defendant; the plaintiff having the affirmative of all those issues, and the defendant the negative. V. [State any circumstances relied on as showing propriety of a jury trial in a case where it is not matter of right. 93 VI. [Where not a matter of right:] That in the judgment of deponent, the said issues of fact in this action should be tried by a jury, and the plaintiff desires that the same should be so tried, and that an order may be accordingly made by this court, directing that the issues, a statement of which is annexed, be so tried. [Signature.] [Jurat.] 91 The court has power to order such a trial of all or any part of the issues, in any action, though a jury trial be not matter of right, and though neither party ask for it. N. Y. Code Civ. Pro., § 971. But complicated issues should not be so tried. Rutter r. Person, 12 Abb. N. C. 352, 42 N. Y. Super. Ct. 55. See, also, Form 1607, and note; Dorr v. Tremont Nat. Bank, 128 Mass. 349; N. Y. Code Civ. Pro., §§ 823, 970, and as to divorce, § 1757. This Form 18 from Brinkley r. Brinkley, 56 N. Y. 192. Where, as in the county of New York, the Trial Term calendar is greatly congested, this motion will not be granted in a case where a trial by jury is not a matter of right, unless exceptional reasons exist. See Evans r. Nat. Broadway Bank, 88 App. Div. 549, 85 N. Y. Supp. 101. 92 See note to next Form. 93 The expectation of a conflict of evidence is not a ground for granting the motion, as, if such a conflict develops as makes a jury trial desirable, it may be ordered by the trial judge. Evans v. Nat. Broadway Bank, supra. FORM No. 1731. Notice of motion to settle issues for trial by jury.94 [Commencement as in Form 815, p. 1171, substituting for the italic clause between the ‡ and the ¶:] settling the issues [or if part only are sought to be so tried, indicate what] in this action for trial by a jury, or for such other relief as may be just. Herewith is served upon you a copy of the questions of fact proposed to be submitted to the jury for trial. [Signature and office address of], [Date.] [Address] To Issues proposed for trial by jury under foregoing notice. [Title of court and action.] QUESTIONS OF FACT PROPOSED BY TO BE SUBMITTED TO THE JURY FOR TRIAL. 95 FIRST.-Was [etc., stating it, and so on]. [Amendments or a substitute party, as in Form 1735.] 94 Under N. Y. Gen. Rule No. 31, if jury trial does not appear upon the pleadings to be matter of right, move within ten days after final joinder of issues or present facts which excuse the delay. See Ellensohn v. Keyes, 6 App. Div. 601, 39 N. Y. Supp. 774, 25 Civ. Pro. 353. Where, by special provision of the Code (as in divorce), either party is entitled as of right to the trial by jury, the ten day limitation in the court rule does not apply, and the motion may be made at any time before trial. Conderman v. Conderman, 44 Hun, 181; Ulbricht v. Ulbricht, 89 Hun, 479, 35 N. Y. Supp. 324; Van Deventer v. Van Deventer, 32 App. Div. 578, 53 N. Y. Supp. 236. the wife delay moving for jury trial until the case is reached for trial at Special Term, the motion must be granted, but alimony may be suspended. Sigel v. Sigel, 28 Abb. N. C. 308, 20 N. Y. Supp. 377. if In partition the application for the order may be made before or at the trial. Southack v. Central Trust Co., 62 App. Div. 260, 70 N. Y. Supp. 1122. may be proposed by the adverse Where defendant has interposed a legal counterclaim to an equitable cause of action, the authorities are in conflict as to whether the motion to settle the issues must be made before the trial, and within the ten days after issue joined. See Herb ť. Metropolitan Hospital, 80 App. Div. 145, 80 N. Y. Supp. 552, and cases reviewed. Even where a jury trial of the issues is a matter of right, the cause remains an equitable one, and must be noticed for trial at the Special Term. Southack v. Central Trust Co., 62 App. Div. 260, 70 N. Y. Supp. 1122. 95 State only questions of fact, and make the statement of each question complete without inserting references to the pleadings. Questions immaterial to the determination of the issues should not be included, and the questions as framed should be simply stated. See Ellensohn v. Keyes, 6 App. Div. 601, 605, 39 N. Y. Supp. 774, 25 Civ. Pro. Rep. 353. FORM No. 1733. Order refusing to strike cause from calendar, but directing that issues be settled for trial by jury.96 [Title of action.] At a Special Term [etc., as in This action being regularly called for trial in its order on the calendar of this court, and the plaintiff, by his counsel A. T., Esq., moving to strike the same from said calendar [on the ground that specifying it], and on reading the pleadings, and after hearing T. Z., Esq., of counsel for the defendants in opposition: ORDERED, 1. That said motion be and the same is hereby de nied. 2. That the issues, to be settled as hereinafter provided, be sent to the Trial Term for trial by a jury, pursuant to law. 3. That for that purpose plaintiff, within days, serve upon the defendants' attorneys a copy of his proposed issues, and the defendants, within days thereafter, may serve such amendments thereto as they desire, and thereupon the issues may be settled by this court upon a notice of days. Enter: [signature of judge by initials of name and title.] FORM No. 1734. Notice of proposed issues where order for trial by jury has been made without stating the questions.97 [Title of court and action.] QUESTIONS OF FACT PROPOSED BY [PLAINTIFF], TO BE SUBMITTED TO A JURY FOR TRIAL. [Here state questions.] [Signature of], Attorney for plaintiff. Please take notice, that the foregoing is a copy of the issues If, In an action for absolute divorce, the only question which either party has a right to have submitted to a jury, is the issue of adultery. upon the settlement of the issues, the court inserts other questions for the jury to answer, the verdict is only conclusive upon the issue of adultery, and the Special Term may disregard the answers to the other questions propounded. Unless the answer sets up affirmatively the defenses of condonation, procurement, and lapse of five years from discovery to commencement of action, it would seem that no one of these matters may properly form the basis of a question for the jury to answer. See Whitney v. Whitney, 76 Hun, 585, 28 N. Y. Supp. 214; Lowenthal v. Lowenthal, 157 N. Y. 236; Israel v. Israel, 38 Misc. 335, 77 N. Y. Supp. 912. The practice of submitting such questions to the jury is disapproved in Bush v. Bush, 103 App. Div. 588, 93 N. Y. Supp. 159. For form of order for jury trial in divorce, see Form 1902. 96 This Form is sustained by Hewlett v. Wood, 3 Hun, 736, 62 N. Y. 75. 97 These must be drafted in proper form to be incorporated in the order, and served with the notice of motion. N. Y. Gen. Rule No. 31. proposed to be framed and settled, for trial by a jury in this action. [Date, signature and address, as in Form 1731.] FORM No. 1735. Amendments proposed to the proposed issues,98 [Title of court and action.] Amendments proposed by [defendant] to the issues of fact proposed by [plaintiff], to be settled for trial by a jury in this action I. Strike out each of the seven questions proposed by the [plaintiff], and in their place substitute the following: [or otherwise indicate distinctly each amendment proposed.] Notice of settlement of issues and amendments. [Title of court and action.] day of Please take notice, that the issues proposed by the [plaintiff] in this action, to be submitted to a jury for trial [pursuant to the order of this court, dated the , 19 ], and the amendments thereto proposed by the [defendants], a copy of which issues [or, amendments] has been heretofore served upon you, will be presented to the Hon. J. K., one of the justices of this court, for settlement, at a Special Term to be held at the court house [or, the city hall], in the city of day of 19 at o'clock in the on the noon. [Date, signature and addresses, as in Form 1731.] FORM No. 1737. Order settling issues, and directing their trial by jury.99 [Title of action.] At a Special Term [etc., as in On reading the pleadings in this action [if the motion is made on special notice,] and on reading and filing the notice of this 98 Serve upon adversary if required by the terms of the order as in Form 1733. 99 It was formerly usual to add: "And it is further ordered, that the clerk of the Trial Term before which the said trial shall be had, forthwith upon the findings and verdict of the said jury, certify and return said findings and verdict to the then pend motion, dated the day of 19 and the affidavit of A. T., and the question as proposed by the plaintiff thereto annexed, in support of the motion, and the affidavit of Z. T., in opposition; and on hearing A. T., of counsel for [plaintiff], and T. Z., of counsel for defendant [or, and no one appearing] in opposition; Now, on motion of A. T., attorney for [plaintiff]: ORDERED, 1. That the following questions of fact involved in the issues arising upon the pleadings herein, be tried by a jury: FIRST.- Was [etc., stating it, and so on]. on the day of 2. That such trial be had at a Trial Term of this court, to be held in the county court house [or, in the city hall] in the city of 19 or as soon thereafter as the same may be tried and the clerk of this court is hereby directed to put the cause on the day calendar for that day.1 Enter: [signature of judge by initials of name and title.] FORM No. 1738. Order directing issues in partition to be tried on the pleadings.2 [Recitals as in preceding Form:] ORDERED, that the issues as made by the pleadings in this action be tried by a jury [may add directions to clerk to place on calendar in accordance with any local rule.] FORM No. 1739. Order of reference to settle issues. [Title (court order) and recitals according to the case; see Forms 1733, 1737, and 820, p. 1174.] ORDERED, that the issues of fact joined by the pleadings in this action be settled for trial by a jury, and for that purpose it ing term of this court, or to the next such succeeding term thereof to the end that such further proceedings, trial and judgment thereon, may be had as shall be proper." Under the present practice the successful party takes a certified extract from the minutes, and moves for judgment, or brings on the cause by notice of trial, to determine the remaining issues, or the whole issues with the aid of the verdict. See Southack v. Central Trust Co., 62 2 N. Y. Code Civ. Pro., § 1644. See Tracy . Dolan, 30 Misc. 320, 63 N. Y. Supp. 457, aff'd, 51 App. Div. 588, 65 N. Y. Supp. 207; further decisions in 31 Misc. 6, 64 N. Y. Supp. 651. |