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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 FOREGOING FORM.

FORM No. 1777.

Disposing of Injunction.56

day of

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[Insert:] that plaintiff was not entitled to the injunction granted herein on the 19 [and if the injunction does not fall by judgment, 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 particular 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.

56 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.60 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.

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

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all the issues.61

Order for judgment on motion (or decision), on verdict determining

[Title of action.]

At a Special Term [etc., see
Form 820, p. 1174.]

This action having been regularly brought on for trial at a Special Term of this court, on the

day of

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19

before Mr. 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 judgment may only be made for the purpose of carrying into effect the judgment as entered, and upon matters arising subsequent to the judg ment.

See Parker v. Linden, 59 Hun, 359, 13 N. Y. Supp. 95; Texas v. Chiles, 10 Wall. 127; Smith v. Woolfolk, 115 T. S. 143; Rhodes v. Jenkin, 52 J. T. R. (N. S.) 806; Savage v. Sherman, 87 N. Y. 277; Trotter v. Hecksker, 42 N. J. Eq. 254, 4 Atl. Rep. 94; Gerrish v. Black, 109 Mass. 474.

It is not usual to prescribe the mode in which notice of such an application shall be given, but that is left to be settled by voluntary appear

ance, or by the direction of the court when application is to be made.

61 N. Y. Code Civ. Pro., § 1225: Acker v. Leland, 109 N. Y. 5. The motion must be made at a term of the court in the county of the venue. Tefft v. Greenwich, etc., R. R. Co., 47 Misc. 26, 95 N. Y. Supp. 205.

It was said in Hooker v. City of Rochester, 126 N. Y. 635, that even where the right to the equitable reliet (an injunction) followed the adop tion by the court of the findings of the jury, a decision containing findings would be more correct practice than the entry of an order for judg.

ment.

If there is any doubt whether every

62

and 1758, etc.], and the court having duly ordered the questions of fact hereinafter stated (being all the questions raised by said issues) 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 having 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 equitable relief (in nuisance).63

[Title (court order) and recitals, commencing according to circumstances; see other Forms:] and the jury having found a general verdict for the plaintiff for damages [and having further found the following facts in answer. to special questions duly put by the court, to wit-copy questions and answers, and may recite adjustment of costs, etc.]; Now, on motion of

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fact necessary has been determined, present to the judge a decision containing findings which will cover whatever is omitted. See Hammond r. Morgan, 101 N. Y. 179.

62 If there are other parties to the action than those between whom the issues were tried, the moving party should present an affidavit of regularity to the Special Term, showing that there are no issues which remain to be tried. Adams r. Bristol, 108 App. Div. 303, 95 N. Y. Supp. 628.

63 The final judgment may award the removal of the nuisance as well

for the defendant

as damages (§ 1662; Hadcock r. Glov ersville, 96 App. Div. 130, 89 N. Y. Supp. 74); the verdict must find all the facts necessary to sustain the special relief (People v. Met. Teleph. Co., 31 Hun, 596, modifying 11 Abb. N. C. 304); unless the action is in equity and the court makes a decision finding the further essential facts. Garwood v. N. Y. Cent. R. R. Co., 83 N. Y. 401. If the action is at law, there is no authority for the entry of a judgment awarding a perpetual in junction. Wilmot v. Bell, 76 App. Div. 252, 78 N. Y. Supp. 591.

IT IS ORDERED, 1. That the said verdict be accepted and recorded; 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

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street, between

, 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.]

[Title of action.]

FORM No. 1784.
Judgment thereon.64

[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 affi

davits of A. H. H., verified the

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day of

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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 19, directing judgment as hereinafter provided; and

the plaintiff's costs having been duly adjusted at

IT IS ADJUDGED, that [etc.]

[Authentication as in Form 1703.]

64 Recitals adapted from Adams v.

day of

dollars:

Bristol, 108 App. Div. 303, 95 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 trial 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 v. 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. Tefft v. Greenwich, 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 v. Becht, 35 Hun, 434; Arnold v. Parmalee, 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. Div. 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

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