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1. To the first finding of fact, on the ground that there is no evidence tending to support it.28
II. To so much of the report embraced in the second finding, called a finding of fact, as decides as a matter of law that [etc.].
III. To the conclusion of law numbered 1.29
IV. To so much of30 the conclusion of law numbered 2 as finds and decides that [stating the part].
V. To the refusal of the court to find as requested in paragraph numbered 1 of the requests submitted by this defendant (and to his refusal to find at all thereon].31 [And so on.] [Date.]
Attorney for [defendant). To the Clerk of the County of A. T., Esq.,
Attorney for [plaintiff].
FORM No. 1751. Notice of the filing of the exceptions to findings.32 [Entitle, unless indorsed or underwritten on the exceptions.]
Please take notice, that the within notice of exceptions to the decision [or, report] and findings, and refusals of the court [or, of the referee] herein, has been filed in the office of the clerk of the county of this day of
, 19. [Date, signature, and addresses, as in Form 1656.]
28 A finding of fact, if without any 30 IIepburn r. Montgomery, 97 N. Y. evidence tending to support it, is the 617; Cornell v. Barney, 26 Hun, 134; subject of exception. N. Y. Code Civ. Graham v. Chrystal, 2 Abb. Ct. App. Pro., § 993 (added in 1903). And Dec. 263, aff'g i Abb, Pr. (N. S.) 121. such an exception must be taken in 31 The refusal by the trial court or order to give to the Court of Appeals referee to find a fact as requested, the right of review. Turner . may always be reviewed at the AppelWeston, 133 N. Y. 650; Roberts 1. late Division, under an exception Tobias, 120 id. 1. The Appellate taken to the refusal to find. Code Division may consider the facts, al. Civ. Pro., $ 1023 (as amended 1901). though no exceptions to them have But the Court of Appeals cannot rebeen taken. Roberts v. Tobias, supra; view such a refusal to find, in a case Matter of Mosher, 185 N. Y. 435. where the trial court has found to
23 After unanimous affirmance at the contrary in its decision, and the the Appellate Division, this exceptionAppellate Division has unanimously will raise in the Court of Appeals affirmed. Le Gendre r. Scottish only the question whether the facts Union, etc., Co., 183 N. Y. 392. found support the conclusion. Kre- 32 Serve within ten days. See end keler r. Aulbach, 169 N. Y. 372. of note 26 to preceding Form.
FORM No. 1752. Affidavit to move for leave to file and serve exceptions, and make case, nunc
pro tunc.33 [Title of court and action.] [Venue.]
T. Z., being duly sworn, says:
I. That he is managing clerk in the office of defendant's attorney herein.
II. That on the day of , 19 , a notice of the filing of the decision of the court [or, the report of the referee] herein, was served on defendant's said attorney, by delivering the same to this deponent, and that deponent thereupon informed said attorney of the service, and was instructed by him to prepare, file and serve said exceptions on behalf of said defendant to said decision [or, report], and make and serve a case (stating circumstances, and excuse for failure to file and serve in time].
III. That said exceptions were prepared and served in good faith; and that it is owing to the inadvertence and mistake of deponent, under the circumstances aforesaid, that they were not filed and served in time, and that defendant desires to be allowed to file and serve them nunc pro tunc, with the same force and effect as if they had been filed and served in season; and that defendants may have an extension of time in which to serve said case (and that days is necessary therefor).
[If order to show cause is asked, state reason and condition of cause, and as to previous application; see p. 1172.] [Jurat.]
[Signature.] [Notice of motion or order to show cause; see Forms 815 and 818, pp. 1171, 1173.]
FORM No. 1753. Order giving leave to file and serve exceptions, and make case, nunc pro tunc.34 [Title (court order) and recitals according to circumstances; see
Form 820, p. 1174.]
On reading and filing the affidavit of C. D. [managing clerk in the office of defendant's attorney herein), verified the day of , 19, and on motion of Q. R., defendant's attorney herein, and on proof of due service of notice of this motion:
33 For a motion to enlarge time in advance, see Form 1660.
A failure to serve proposed find. ings before judgment entered, due to mistake or inadvertence, does not en. title the defeated party to have the
judgment set aside. Whiteside v. Novac Cottage Assoc., 68 Hun, 568, 23 N. Y. Supp. 63; aff'd, 142 N. Y. 585.
34 Gade v. Gade, 14 Abb. N. C. 510; S. P., Douglas v. Douglas, 7 Hun, 272.
ORDERED, 1. That the defendant Y. Z. have leave to file and serve exceptions to the findings and refusals to find, of the court [or, referee] herein, on or before next, nunc pro tune, as of the day of , 19 , with the same effect as if seasonably filed and served.
2. That said defendant have days from the date of this order in which to make and serve his proposed case and exceptions35 herein.
[If terms are imposed :] 3. This order is on condition that [etc.]. Enter: [signature of judge by initials of name and title.]
FORM No. 1754. Notice of motion at Appellate Division for new trial after interlocutory
judgment.36 [Title of court and action.]
Please take notice, that upon the pleadings, the decision of Jr. Justice J. K. [or, report of R. F., Esq., the referee) filed herein on the day of , 19, and the exceptions thereto, filed herein on the day of , 19, and upon the case also filed herein on the day of
19 [or, to be settled and filed herein) and upon the interlocutory judgment entered on the day of move this court at an Appellate Division thereof for the department, at a term thereof to be held at the court house [or, city hall] at , on the day of
19, at the opening of the court on that day, or as soon thereafter as counsel can
rt at an Appellate
35 County of Milwaukee v. Pabst, (Wis., 1885), 25 N. W. Rep. 11.
36 File and serve exceptions within ten days after receiving copy of decision or report, and notice of entry of interlocutory judgment thereon, and notice motion before the commencement of the hearings directed in the interlocutory judgment. N. Y. Code Civ. Pro., Š 1001.
The exceptions should include the findings of fact, and refusals to find, which the appellant desires reviewed. Toms v. Greenwood, 30 N. Y. St. Rep. 478; Dorchester v. Dorchester, 121 N. Y. 156.
The motion will only be heard on a case settled in the usual way.
Green v. Roworth, 6 Misc. 130, 26
This motion may be made without appealing from the judgment. Kelsey v. Sargent, 104 N. Y. 663; Moore 0. Oviatt, 35 Hun, 216.
An appeal will also lie to the Appellate Division from the interlocu. tory judgment. Code Cir. Pro.. $ 1349. The amendment to this sec. tion in 1893 permits appeal from an interlocutory judgment entered upon a referee's report thus superseding Dorchester 0. Dorchester, 121 N. Y. 156. An appeal lies to the Court of Appeals from an order of the Appeliate Division granting the new trial. Townsend v. Van Buskirk, 162 N. Y. 265.
he hearder relief as signature
be heard, for a new trial on said exceptions and for such other or further relief as may be just.
[Date, signature, and addresses, as in Form 1656.] [Order may readily be adapted from Form No. 1657.]
FORM No. 1755. Case as proposed (with or without exceptions), after trial by court or
referee.37 [As in Form 1662 from the beginning, inserting in line 11 the words: without a jury; or substitute the words: before R. F., Esq., the referee herein; omit reference to jury in lines 21 and 26; be sure to include in the case, or in the order settling it, a statement that it CONTAINS ALL THE EVIDENCE,98 and substitute statement of proceedings after close of evidence, and ending:] The court reserved decision.'
[Notice; Amendments; Stipulations; Notice of settlement; Order settling; Order filing; order of printing, etc.; as in Forms 1663–1672.]
III. COSTS; AND JUDGMENT.
FORM No. 1756.
FORM No. 1757. Notice of settlement, or resettlement of judgment.39 [When necessary, adapt from Forms in Volume I, p. 277, No. 133; p. 280, Nos. 139–142.]
FORM No. 1758. Judgment on decision after trial by the court.40 [Title of court and action.]
The issues in this action having been regularly brought on for trial before Mr. Justice J. K., at a Special [or, Trial] Term of
37 An appeal on the judgment-roll alone, without a case, raises only the questions whether the conclusions of law were justified or required by the facts found. Gluckman v. Strauch, 99 App. Div. 361, 91 N. Y. Supp. 223.
38 Reiners v. Niederstein, 55 App. Dir. 80, 67 N. Y. Supp. 41. And see note 58 to Form 1667.
39 For proceedings to amend or vacate judgment, see post, Forms 20222057.
Settlement may be had upon a less notice than eight days. Parker v. Linden, 59 Hun, 359, 13 N. Y. Supp. 95.
40 The judgment must follow the direction in the decision; otherwise
this court, held on the day of , 19, at the county court house [or, city hall) in the of , and [here recite concisely the readiness of the cause for trial, as thus:41] and the respective parties appearing by their attorneys ( [or, where a part only of the defendants appear on the trial — and the defendant Y. Z. appearing by his attorney; and the summons in this action — with — here mention any required notice or indorsement, also the complaint if also served — having been personally served on all the defendants herein, except W. Z., who voluntarily appeared, and except Y. Z., a non-resident of this State — or specify other ground justifying service by publication — and said Y. Z. having been duly served with said summons by the due publication and mailing thereof directed to him pursuant to an order of publication duly made herein, and by personal delivery thereunder without the State, and the time of the defendants names — to appear and plead having fully expired, and said — names — not having appeared or pleaded, and the defendant l'. V. having appeared, but made default in pleading herein, and due notice of application for judgment having been given him, and the infant defendant X. Y, having duly appeared and answered the complaint by G. L., his guardian ad litem duly appointed in this action, 42 and the summons and complaint in this action together with a proper notice of the pendency of this action having been duly filed in the office of the clerk of the county of
, on the day of , 19 ]. And the court having heard the allegations and proofs of the parties, and, after due deliberation, having duly made and filed its decision, on the day of
19, containing a statement of the facts found and the conclusions of law thereon, 43
on appeal it will be set aside and the cause remitted to the Special Term for entry of a proper judgment. Brown l'. McKie, 183 N. Y. 303. Or it may be corrected on motion, or on appeal. See Outwater v. Moore, 124 N. Y. 67.
41 Recitals showing that the cause
Van Steenburg, 69 Iowa, 696, 26
42 See Vol. I, pp. 834, 835; Colt r. Colt, 111 U, S. 566; Mutual Life Ins. Co. t. Schwaner, 36 Hun, 373; Tibbs r. Allen, 27 Jll. 119.
43 It is improper to recite the contents of the findings. Beebe r. Mead, 101 App. Div. 500, 92 N. Y. Supp. 51.
Where controverted questions of fact have been determined in actions affecting title to real property, or similar matters of future importance, it is proper practice to state the facts as adjudged, after the words “it is adjudged.” If the findings of fact contain, as they sometimes do, matter favorable to the unsuccessful party, but wholly unavailing in this action