Page images
PDF
EPUB

- or may specify particular question, as thus: without prejudice to an action at law55], and that defendant recover of the said plaintiff the said sum of dollars, his costs as taxed.

[Authentication as in Form No. 1758.]

FORMs Nos. 1777-1780.— STATEMENTS SUITABLE TO INSERT IN FORE

GOING FORM.

FORM No. 1777.

Disposing of Injunction.56 [Insert:] that plaintiff was not entitled to the injunction granted herein on the day of , 19 (and if the injunction does not fall by judgment,57 add: and said injunction is hereby vacated, and — may add: it is hereby referred to R. F., Esq., as referee — proceed as to damages as in Vol. I, Form 672, p. 995.]

FORM No. 1778.

Receiver. [For directions as to discharge, see Vol. I, p. 1139.58]

FORM No. 1779. Surrender of instrument to be cancelled.59 That [describe instrument, as thus:] the bond given by plaintiff herein as a condition of granting a stay of a former action between the parties, and filed on the day of

, 19, be surrendered to be cancelled, and the clerk is hereby directed to cancel the same and deliver it to A. B. or his attorney.

FORM No. 1780.

Lis pendens notice cancelled. [Insert direction from Form 525, p. 896, Volume I.]

“ without prejudice” suffice to show that nothing more is done by the judgment than to terminate the par. ticular action.

Contra, Porter v. Morère, 30 La. Ann. 230, where an injunction was dissolved.

55 In McClure v. Leaycraft, 183 N. Y. 36, the court added such a provision.

66 Defendant has a right to a de

cision on this point. Kelley v. Me Mahon, 37 Hun, 212.

57 See Vol. I, p. 233.

58 Directions as to fund in the hands of receiver may be embodied, or may be added by subsequent amendment. Hovey v. McDonald, 109 U.S. 150.

59 It is proper to insert such a clause in the decree instead of taking a separate or after order. Carpenter V. Acby, 1 Hoff. Ch. 310.

FORM No. 1781.
Clause in judgment giving leave to apply for further directions.co

The plaintiff [or, any party to this action — or any successor in interest to any such party, and any other party claiming under the said M. N.] may apply from time to time at the foot of this judgment for such further directions or instructions as may be proper.

SECTION IV.

TBIAL OF ALL THE ISSUES OF FACT BY JURY, AND JUDGMENT THEREON BY THE

COURT.

FORMS. 1782. Order for judgment on motion, 1784. Judgment thereon.

on verdict determining all the 1785. Order for judgment after moissues.

tion for new trial on case, 1783. The same, in action for nui

and counter motion.
sance,

FORM No. 1782.
Order for judgment on motion (or decision), on verdict determining

all the issues.61

At a Special Term [etc., see

Form 820, p. 1174.] [Title of action.]

This action having been regularly brought on for trial at a Special Term of this court, on the day of , 19, before Jr. Justice J. K., both parties appearing, upon the issues raised by the pleadings [for other recitals see Forms 1703, etc.,

60 An application at the foot of a ance, or by the direction of the court judgment may only be made for the when application is to be made. purpose of carrying into effect the 01 N. Y. Code Civ. Pro., 8 1225 : judgment as entered, and upon mat Acker 1. Leland, 109 N. Y. 5. The ters arising subsequent to the judg- motion must be made at a term of the ment.

court in the county of the venue. See Parker t. Linden, 59 Hun, 357, Teift v. Greenwich, etc., R. R. Co., 47 13 N. Y. Supp. 95; Texas 1. Chiles, Misc. 26, 95 N. Y. Supp. 205. 10 Wall. 127; Smith v. Woolfolk, 115 It was said in Hooker c. City of [. S. 143; Rhodes v. Jenkin, 52 Rochester, 126 N. Y. 635, that even J. T. R. (V. S.) 806; Savage r'. Sher where the right to the equitable reliet man, 87 N. Y. 277; Trotter 1. Heck (an injunction) followed the adop. sker, 42 N. J. Eq. 254, 4 Atl. Rep. 94; tion by the court of the findings of Gerrish o. Black, 109 Mass. 474. the jury, a decision containing find

It is not usual to prescribe the ings would be more correct practice mode in which notice of such an than the entry of an order for judg. application shall be given, but that is ment. left to be settled by voluntary appear. If there is any doubt whether every

and 1758, etc.], and the court having duly ordered the questions of fact hereinafter stated (being all the questions raised by said issues ) 62 to be tried by a jury [if directed to be tried at a separate branch of the court, add: at a Trial Term], and said questions haring been thereupon duly tried, and the verdict of the jury having been duly found and recorded as follows:

First: Was [etc.].
To this question the jury answer Yes (and so on).

[And if tried at another branch of the court, recite the bringing on of the cause again:] and the court having adopted said findings of the jury; * Now, upon the pleadings and the evidence of the parties, and said verdict, and upon reading and filing the notice of this motion, dated the day of , 19 , and the affidavit of A. T. thereunto annexed, after hearing A. T., of counsel for plaintiff, and T. Z., of counsel for defendant in opposition, and on motion of A. T., attorney for plaintiff :

It is ORDERED, that [may state facts established, and continue with relief thereon, and direction as to costs as in other cases; see other Forms].

FORM No. 1783. Order for judgment after trial by jury, and application on verdict for equit

able relief (in nuisance).63 [Title (court order) and recitals, commencing according to circumstances; see other Forms:) and the jury having found a mineral verdict for the plaintiff for damages (and having further found the following facts in answer. to special questions July put by the court, to wit - copy questions and answers, and may recite adjustment of costs, etc.] ; Now, on motion of after hearing for the motion, and for the defendant in opposition thereto;

fact necessary has been determined, as damages ( $ 1662; Hadcock r. Glov. present to the judge a decision con- ersville, 96 App. Div, 130, 89 N. Y. taining findings which will cover Supp. 74); the verdict must find all whatever is omitted. See Hammond the facts necessary to sustain the 1. Morgan, 101 N. Y. 179.

special relief (People v. Met. Teleph. 02 If there are other parties to the Co., 31 Hun, 596, modifying 11 Abb. action than those between whom the V. C. 304); unless the action is in issues were tried, the moving party equity and the court makes a decision should present an affidavit of regu- finding the further essential facts. larity to the Special Term, showing Garwood v. N. Y. Cent. R. R. Co., $3 that there are no issues which remainN . Y. 401. If the action is at law, to be tried. Adams r. Bristol, 108 there is no authority for the entry of App. Div. 303, 95 N. Y. Supp. 628. a judgment awarding a perpetual in.

63 The final judgment may award junction. Wilmot V. Bell, 76 pp. the removal of the nuisance as well Div. 252, 78 N. Y. Supp. 591.

IT IS ORDERED, 1. That the said verdict be accepted and re corded; that plaintiffs recover of the defendant the sum of damages found by the jury, together with the sum of costs, amounting in all to the sum of dollars.

2. That the several poles referred to in the complaint in this action, erected by the defendant in street, between and avenues, in , are hereby adjudged and declared to be a public nuisance in said street.

3. That the said defendant do forthwith, upon the service upon said defendant or its attorney of a certified copy of this order, remove the said several poles, and within thirty days after such service fully complete such removal, so that the said poles shall be entirely taken away and the nuisance created thereby wholly abated, and so that the said street shall be and remain as it was before said poles were erected.

4. That judgment be entered in conformity herewith.
Enter: [signature of judge by initials of name and title.]

FORM No. 1784.

Judgment thereon.64 [Title of action.]

[Recitals as in Form 1782 to the *, continuing:) and the [plaintiff] having duly brought on the action for final judgment, by a notice dated the day of , 19 ; and after reading and filing the summons and proof of its due service on the defendants, and the pleadings herein and the order for a jury trial, made and entered on , 19, and the minutes of the trial, including the exhibits, and the notice of the application for (an interlocutory] judgment served by the plaintiffs upon the attorneys for the defendants, dated

, 19 , with the affidavits of A. H. H., verified the day of , 19 , in support of this application, and the affidavit of A. O. T., verified the day of , 19 , in opposition thereto, and the order [decision] of this court made and entered on the day of

, 19 , directing judgment as hereinafter provided; and the plaintiff's costs having been duly adjusted at dollars :

IT IS ADJUDGED, that [etc.]
[Authentication as in Form 1703.]

64 Recitals adapted from Adams v.

Bristol, 108 App. Div. 303, 93 N. Y.
Supp. 628.

FORM No. 1785.
Motion for new trial on case, and counter motion for judgment.65

[The proceedings will be stated as in a case and exceptions; the case indicating the proceedings after verdict, as thus:] The plaintiffs thereupon moved, upon the minutes of the judge and upon a case and exceptions, for a new trial66 on the ground [stating it), which motion was denied by an order, a copy whereof is annexed to and forms a part hereof. And because the evidence and proceedings aforesaid do not appear upon the record, the justice who presided has settled and signed this case and exceptions and ordered the same to be filed.

[Signature of judge and initials of title.] [Notice of motion for new trial on the case, etc., and Notice of motion for judgment; adapt from Forms 1653 and 1810.]

SECTION V.

TRIAL BY THE COURT WITH THE AID OF JURY TRIAL ON SPECIFIC QUESTIONS.

FORMS. 1786. Decision by court after jury 1787. Order setting aside issues altrial of part of the issues.

ready tried, etc.

FORM No. 1786. Decision by court after jury trial of part of the issues. 68 [As in Form 1748, inserting at the * the words: upon the pleadings, the minutes of the trial before the jury, including the exhibits, and the findings of the jury on specific issues herein,

65 Acker r. Leland, 96 N. Y. 383; another decision, 109 id. 5; Hammond v. Morgan, 101 id. 179.

66 N. Y. Code Civ. Pro., & 1003. And see Forms 1645, 1654.

68 The cause must be heard in the county of the venue, Tefst v. Green wich, etc., R. R. Co., 47 Misc. 26, 95 N. Y. Supp. 205.

Requests to find may be submitted as on a trial by the court.

Objections before the judge to errors on the trial before the jury must be seasonably taken. Bowen t. Becht, 35 Hun, 434; Arnold v. Par malee, 97 N. Y. 652; Watt v. Starke, 101 U. S. 247.

Where no order has been made for the trial of any of the issues by a jury, but the court has a jury sworn upon the trial, the jury must be deemed in attendance only for the purpose of aiding the court if it desires to submit any question to it; hence, if the merits are to be passed upon, a written decision is essential. Flanigan v. Skelly, 89 App. Dir. 108, 85 N. Y. Supp. 4.

The party making a case before judgment, for a motion for new trial after decision of the court in a cause in which special questions have been tried by a jury, or on appeal, has a right to have the proceedings before

« PreviousContinue »