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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.]
FORMS. 1740. Notice of trial.
1744. Order allowing amendment on 1741. Waiver of trial by jury.
terms, and postponement. 1742. Order that certain issues be 1745. — reopening cause after subtried before others.
mission, etc. 1743. Proof of service of subpæna. 1746. — after trial, granting leave to
amend complaint. FORM No. 1740.
Notice of trial. [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.
Waiver of trial by jury. [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 on®] 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, 3 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."]
[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].8
[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.
FORM No. 1744. Order allowing amendment on terms,7 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. Si. denberg 1. 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 to open this cause and to take testimony, now, after reading and filing the affidavit of A. T., Esq., verified the day of , 19 ; and after hearing A. T., Esq., in support of said motion, and T. Z. in opposition:
ORDERED, that the trial of this cause be reopened, and that it proceed before me on the day of,
next, at 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 penalty 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.
1753. Order giving leave to file and 1747. Requests to find.
serve exceptions, and make 1748. Decision (i. e., findings of fact
case, nunc pro tunc. and of law with direction 1754. Notice of motion at Appellate for judgment, after trial by
Division for new trial after judge.
interlocutory judgment. 1749. Notice of decision or report, 1755. Case as proposed (with or withand judgment thereon, to
out exceptions), after trial limit time to file exceptions
by court or referee. to the findings or refusals;
III. Costs; AND JUDGMENT. and time to make case, and
1756. Affidavit to proceedings. to appeal.
1757. Notice of settlement or resettleII. EXCEPTIONS; CASE; AND NEW
ment of judgment. TRIAL.
1758. Judgment. 1756. Notice of exceptions to findings 1759-1775. Statements suitable to inand refusals to find, of court
sert in foregoing Form. (or referee), after a trial. 1776. Judgment dismissing complaint 1751. Notice of the filing of the ex
upon the merits. ceptions to findings, etc. 1777-1780. Statements suitable to in1752. Affidavit to move for leave to
sert in foregoing Form. file and serve exceptions, and 1781. Clause giving leave to apply make case, nunc pro tunc.
for further directions. [Notice of Trial, Form 1740, p. 1872; Note of Issue, Form 1602, p. 1783; Directions Incidental to Trial, Forms 1742–1746.]
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, back for correction by the trial court. $ 1022 of the Code of Civil Procedure Wander v. Wander, 111 App. Div. was amended (first in 1895), so as to 189, 97 N. Y. Supp. 586. permit what was known as a “short A formal decision, containing find. form decision," wherein the facts were ings, is unnecessary when the plainnot separately stated or the conclu- tiff is non-suited at the trial. Deeley sions of law declared, but the grounds . Heintz, 169 N. Y. 129, 135. Ii, of the decision were briefly stated, however, the cause is submitted and and judgment directed as the court decision reserved, a subsequent nondeemed proper; but by a later amend. suit requires a decision under $ 1021, ment (in 1903), the section has been to which an exception must be taken restored to its former condition, i. e., and filed in order to obtain a review. of requiring the decision of the court Ross v. Caywood, 162 N. Y. 259. or referee to state separately the See notes to Form 1748, post. facts found and the conclusions of law. 10 Under N. Y. Code Civ. Pro., The vice of the short form decision is $ 1023 (as re-enacted in 1904, after well illustrated by the principle of having been repealed in 1894), proits review, as stated in Young 0. Val posed findings and conclusions must, entine, 177 N. Y. 347.
in order that the court is required to The “short form decision” is no pass upon them, be submitted at or Jonger proper, and the Appellate before submission of the action for Division will send such a decision 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],
Attorney for [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 decision or report rendered. Hart- lish them. Friedman t. Bierman, 43 mann t'. Schnugg, 113 App. Div. 254, Hun, 387. 99 N. Y. Supp. 33; Gormerly v. Mc Both as to facts and as to law each Glynn, 84 N. Y. 284. But not after proposition should be stated in the decision made. Wainman v. Hamp most concise and direct manner, withton, 110 N. Y. 429. A cause is out repetition, evidence, argument or "finally submitted for decision," when comment. Glacius v. Black, 50 N. Y. the testimony is finished and the ar. 145, 10 Am. R. 449. guments concluded. Hartmann v. But under the California statute, Schnugg, supra. The court or referee the requests should be not to find in must not allow postponement until a particular way, but only on a specisettling the case. But as to waiver fied point, leaving it to the court to of this limit of time, see Ward v. frame the finding. Edgar 1. SterenCraig, 87 N. Y.550; Matter of Chaun son, 70 Cal. 286, 11 Pac. Rep. 704. cey, 32 Hun, 429; Welch v. Preston, Each proposition must be single, 30 Hun, 303. It is the frequent prac for a refusal is not error if either tice, after an opinion is rendered, to branch of the request ought to be derequire submission of a new set of nied. Heilbrunn. Hammond, 13 findings, by the successful party, in Hun, 474; Davis v. Leopold, 87 N. Y. accordance with the opinion; but this 620. is only for the purpose of enabling The statement of incidental facts the judge or referee to sign a decision which are but evidence of the matefree from mutilation, and a call by rial facts (Merchants' Mut. Ins. Co. him for a new set of findings (or a 0. Allen, 121 U. S. 67; Union Pac. R. proposed decision) to be submitted by R. Co. v. United States, 116 id. 154; the successful party, would not thereby Friedman v. Bierman, 43 Hun, 387; give the unsuccessful party a right to Conlan v. Grace, 36 Minn. 276; 30 submit requests to find.
N. W. Rep. 880), or of mere details See that all your requests are (Sidenberg v. Ely, 90 N. Y. 257, 11 passed upon, or the appellate court Abb. N. Č. 354), is out of place. A may disregard them. Harris v. Van request to find whether a particular Wart, 96 N. Y. 642. Code Civ. Pro., item of damage or charge is included, $ 1023, requires the court or referee and if so to what amount, is proper, to pass upon each request, although but the elements by which it was providing that failure so to do shall calculated cannot be required. United not affect the validity of the decision States v. Smith, 94 U. S. 214. or report. And see that there is no Admissions in the pleadings are inconsistency between the findings not to be reiterated in the findings. and the refusals and granted requests Dunham v. Cudlipp, 94 N. Y. 129; on either side.
Jacobson v. Brooklyn Lumber Co., A refusal to find a fact is not tan 184 id. 152. In complex cases, while tamount to a finding to the contrary careful to cover every material point Morchonse . Brooklyn Heights R. Ř. saparately, do not multiply the numCo., 185 N. Y. 520; Galle v. Tode, ber of requests beyond what is neces. 119 id. 270.
sary. See Quincy v. Young, 53 N. Y. 11 The propositions embraced in 504, where an unreasonable number requests to find facts must be in the was held to justify the failure to form of facts established, and not in notice the materiality of some, the form of evidence tending to estab 12 Either party may submit pro