is hereby referred to R. F., Esq., of as referee, to ascertain and settle the said issues, and state distinctly and plainly the several questions of fact to be passed upon [if various issues affecting different parties, add: the names of the parties to each issue and if necessary, add: and which party is to hold the affirmative on each question], and that upon the filing and confirmation of his report, either party may bring the issues on for trial. Enter: [signature of judge by initials of name and title.] [As in Form 1601, p. 1780, omitting (line 2) the words, "and an inquest taken therein;" and if judgment is to be at the same time asked against defendants who have appeared, but failed to plead may add in the last line, the words, and an application will then be made to the court for the relief demanded in the complaint.] [Note of issue, as in Form 1602; notice of motion to strike from calendar, 1606; affidavit and stipulations as to postponement, 1612, 1618.] FORM No. 1741. [Title of court and action.] The [defendant] above named hereby waives [or, the parties hereto hereby respectively waive] trial by jury [upon the trial now about to be brought on3] herein. [Date.] [Signature and address of], Attorney for [plaintiff]. [Under N. Y. Code Civ. Pro., § 1009, file with the clerk.] 3 This clause, perhaps, is implied. Compare Carthage v. Buckner, 8 Ill. App. (Bradwell), 152, and p. 1921 of this volume. FORM No. 1742. Order that certain issues be tried before others.4 ORDERED, that the issues raised by the first alleged defense, stated in the answer herein, be tried before the issues raised by the other defenses. [Or thus: the issues raised by the answer of the defendant W. X. be tried without awaiting the readiness of the cause for trial as to the other defendants.5] [Or thus: the issues raised upon the counterclaim interposed by the defendant be separately tried, and for that purpose the clerk is directed to put this cause upon the Special Term calendar]. [Directions as to mode of trial may be added, as thus:] And that the trial of said issues be had at the Special Term of this court without a jury, and that defendant have leave thereafter, if so advised, to move to settle the other issues raised by his answer, as questions to be tried by a jury. FORM No. 1743. Proof of service of subpoena. (See Form 1625, p. 1795.) FORM No. 1744. Order allowing amendment on terms, and postponement. [Adapt from Forms 1627-1629, p. 1796, etc., by entitling, At a Special Term; omitting recital of, "a jury having been empaneled," and substituting for the direction that "a juror be withdrawn," a direction, "that the trial of this action be postponed or, "that the cause be struck from the calendar."] This practice approved where it will promote a fairer conclusion, in Morris v. Merritt, 52 Iowa, 496; 3 N. W. Rep. 94. See, also, Russell v. N. J. S. S. Co., 10 Misc. 593, 32 N. Y. Supp. 824. The direction may be by entry in the minutes by the judge holding the court where the cause is brought on (Owen v. Weston, 63 N. H. 599, 2 New Eng. Rep. 717; N. Y. Code Civ. Pro., §967), in which case the entry of an order is not essential; or it may be made on notice (Id., § 967), in which case prefix caption (court order) and appropriate recitals. 5 Gurnee v. Hoxie, 29 Barb. 547; Palmer v. Smedley, 13 Abb. Pr. 185. 6 Delano v. Rice, 26 Misc. 502, 57 N. Y. Supp. 678. 7 Order to amend to conform to the proofs should be before decision. Sidenberg r. Ely, 90 N. Y. 257, 11 Abb. N. C. 354. FORM No. 1745. Order reopening cause after submission, so as to take further testimony. At a Special Term [etc., as in Form 820, p. 1174]. [Title of action.] A motion having been made herein by day of to open this cause and to take testimony, now, after reading and filing the affidavit of A. T., Esq., verified the 19 ; and after hearing A. T., Esq., in support of said motion, and T. Z. in opposition: day of, next, at ORDERED, that the trial of this cause be reopened, and that it proceed before me on the o'clock, at , for the taking of such further testimony as may be offered by either party [or may restrict as directed]. Enter: [signature of judge by initials of name and title.] FORM No. 1746. Order after trial, granting leave to amend complaint to conform to the proofs.8 [Title (court order) and recitals; see Form 820, p. 1174.] [ORDERED, that the plaintiff have leave to amend his complaint so as to conform the same to the proofs, in the following particular [state scope of amendment] and to serve a copy thereof within days on the defendant's attorney; and that the complaint so amended be filed and stand as the complaint in this action, and that the answer as now served stand as the answer to said complaint. This order is granted upon condition that the plaintiff pay within days from the entry of this order to the defendant the sum of dollars, costs of opposing this motion [and file with the clerk of the county of a bond in the pen alty of dollars, conditioned that in case the defendant shall finally recover costs against the plaintiff, such costs, so far as they have already accrued, shall be paid; and until such bond be filed, the proceedings on the part of the plaintiff are stayed]. Enter: [signature of judge by initials of name and title.] 8 If the cause is put over to allow amendment, to be afterward brought on upon the amended pleading, an order should be entered; and to re view it on appeal, should be specially mentioned in the notice of appeal. See Form 1744. [Notice of Trial, Form 1740, p. 1872; Note of Issue, Form 1602, p. 1783; Directions Incidental to Trial, Forms 1742-1746.] I. FINDINGS.9 FORM No. 1747. Requests to find.10 [Title of court and action.] The plaintiff [or, defendant Y. Z.] submits the annexed proposed findings of fact which he deems established by the evi 9 Between the editions of this work, § 1022 of the Code of Civil Procedure was amended (first in 1895), so as to permit what was known as a "short form decision," wherein the facts were not separately stated or the conclusions of law declared, but the grounds of the decision were briefly stated, and judgment directed as the court deemed proper; but by a later amendment (in 1903), the section has been restored to its former condition, i. e., of requiring the decision of the court or referee to state separately the facts found and the conclusions of law. The vice of the short form decision is well illustrated by the principle of its review, as stated in Young v. Valentine, 177 N. Y. 347. The "short form decision" is no Jonger proper, and the Appellate Division will send such a decision back for correction by the trial court. Wander v. Wander, 111 App. Div. 189, 97 N. Y. Supp. 586. A formal decision, containing findings, is unnecessary when the plaintiff is non-suited at the trial. Deeley t. Heintz, 169 N. Y. 129, 135. If, however, the cause is submitted and decision reserved, a subsequent nonsuit requires a decision under § 1021, to which an exception must be taken and filed in order to obtain a review. Ross v. Caywood, 162 N. Y. 259. See notes to Form 1748, post. 10 Under N. Y. Code Civ. Pro., § 1023 (as re-enacted in 1904, after having been repealed in 1894), proposed findings and conclusions must, in order that the court is required to pass upon them, be submitted at or before submission of the action for decision, or (by consent) before actual dence herein, and proposed conclusions of law, which he desires and requests be made. [Date.] [Signature and office address of], [Annex a draft of findings such as desired, in the form of distinct propositions of fact and law respectively, separately stated and numbered and framed in manner appropriate to the decision; see next Form.]12 of this limit of time, see Ward v. Craig, 87 N. Y. 550; Matter of Chauncey, 32 Hun, 429; Welch v. Preston, 30 Hun, 303. It is the frequent practice, after an opinion is rendered, to require submission of a new set of findings, by the successful party, in accordance with the opinion; but this is only for the purpose of enabling the judge or referee to sign a decision free from mutilation, and a call by him for a new set of findings (or a proposed decision) to be submitted by the successful party, would not thereby give the unsuccessful party a right to submit requests to find. See that all your requests are passed upon, or the appellate court may disregard them. Harris v. Van Wart, 96 N. Y. 642. Code Civ. Pro., $ 1023, requires the court or referee to pass upon each request, although providing that failure so to do shall not affect the validity of the decision or report. And see that there is no inconsistency between the findings and the refusals and granted requests on either side. A refusal to find a fact is not tantamount to a finding to the contrary. Morehouse t. Brooklyn Heights R. R. Co., 185 N. Y. 520; Galle v. Tode, 148 id. 270. 11 The propositions embraced in requests to find facts must be in the form of facts established, and not in the form of evidence tending to estab Both as to facts and as to law each proposition should be stated in the most concise and direct manner, without repetition, evidence, argument or comment. Glacius v. Black, 50 N. Y. 145, 10 Am. R. 449. But under the California statute, the requests should be not to find in a particular way, but only on a specified point, leaving it to the court to frame the finding. Edgar v. Stevenson, 70 Cal. 286, 11 Pac. Rep. 704. Each proposition must be single, for a refusal is not error if either branch of the request ought to be denied. Heilbrun v. Hammond, 13 Hun, 474; Davis v. Leopold, 87 N. Y. 620. The statement of incidental facts which are but evidence of the material facts (Merchants' Mut. Ins. Co. v. Allen, 121 U. S. 67; Union Pac. R. R. Co. v. United States, 116 id. 154; Friedman v. Bierman, 43 Hun, 387; Conlan v. Grace, 36 Minn. 276; 30 N. W. Rep. 880), or of mere details (Sidenberg v. Ely, 90 N. Y. 257, 11 Abb. N. C. 354), is out of place. A request to find whether a particular item of damage or charge is included, and if so to what amount, is proper, but the elements by which it was calculated cannot be required. United States v. Smith, 94 U. S. 214. Admissions in the pleadings are not to be reiterated in the findings. Dunham v. Cudlipp, 94 N. Y. 129; Jacobson v. Brooklyn Lumber Co., 184 id. 152. In complex cases, while careful to cover every material point saparately, do not multiply the number of requests beyond what is necessary. See Quincy v. Young, 53 N. Y. 504, where an unreasonable number was held to justify the failure to notice the materiality of some. 12 Either party may submit pro |