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settled for trial by jury, by an order entered the day of
,19 ; and the remaining issues having been duly tried on the day of , 19 , before the undersigned, and said findings of the jury having been adopted, and the allegations and evidence of the parties — upon the other issues?0 — having been heard — thence proceed as in the same Form 1748, from the t to the end].
FORM No. 1787. Order setting aside issues already tried, and directing new issues for trial.71
At a Special Term [etc., as in
Form 820, p. 1174.] [Title of action.]"
This action being on the calendar of this court for the present Special Term thereof, and duly called for trial, and the counsel for the parties being present, and the plaintiff having moved the cause for trial, and produced the order for the trial of issues of fact, duly entered on the stipulation of the respective parties on the day of
, 19, and the verdict of the jury impaneled on the trial thereof, at a Trial Term held in , on the day of
, 19, and the minutes of the trial before said jury having been offered; and the court having considered the pleadings in the action, and the said order for trial and verdict and said minutes;
ORDERED, that the issues of fact arising on the pleadings in this action be tried by a jury; and whereas the issues already tried do not embrace the question of fraud involved, the same [and the verdict thereon] are hereby set aside, and the following questions are hereby settled for the trial before the jury to be had:
[State questions. See Form No. 1737.]
the jury included. Chapin v. Thomp son, 18 Hun, 446; N. Y. Gen. Rule No. 31; Jackson v. Andrews, 59 N. Y. 244; rev'd on the other point in 80 N. Y. 275, where it was held that the new trial of the special questions must be sought before judgment.
Judgment will recite the making of the order for trial of special issues, and the trial and verdict, and also the trial of the remaining issues before the judge, and the making and filing of the decision.
A recital of the findings mani tests an approval. Hooker v. City of
Rochester, 126 N. Y. 635; California
The court may disapprove of the verdict and render the findings on the whole issues. Carroll v. Deimel, 95 N. Y. 252; Learned v. Tillotson, 97 N. Y. 6, unless jury trial was on of right.
70 The court has in its discretion power on adopting the verdict to refuse to receive additional evidence ex. cept on the other issues.
71 Sustained by the Supreme Court in Colie v. Tifft, 47 N. Y. 119.
TRIAL BY THE COURT WITH THE AID OF REFERENCE. [Forms more commonly used in connection with trial by jury or by the aid of a jury or trial by referee are not repeated here, although such as might be used on trial by the court with aid of refcree.)
FORMS. 1788. Order of reference to report on 1805. Schedule of account to be prespecific questions pending
sented on reference (partner. trial.
ship cause). 1789-1791. Statements suitable to in- 1806. Appearance of third persons besert in foregoing Form.
fore referee on accounting. 1792. Order of reference to take and
1807. Report of referee, on account. state an incidental account
ing (in partnership cause).
1808. Notice of filing referee's report. before judgment.
1809. Exceptions to referee's report 1793. Decision upon trial of prelim
on accounting. inary issues, and directing in
1810. Notice of application for judg. terlocutory judgment with
ment after reference, or to reference.
set aside or modify report. 1794. Interlocutory judgment with 1811. Order adjourning motion for reference thereunder.
judgment, and directing ref. 1795-1803. Statements suitable to
erence to settle form of judg. insert in foregoing Form.
ment, etc. 1804. Appointment of first meeting 1812-1815. Final judgments after on reference.
trial aided by reference.
FORM No. 1788.
At a Special Term [or, Trial Term,
etc.; see Form 820, p. 1174]."3 [Title of action.]
This cause coming on to be tried at a Special [or, Trial] Term, held on the day of , 19, before Mr. Justice J. K.
72 See Drexel v. Pease, 129 N. Y. 96; Doyle v. Met. Elev. R. R. Co., I Misc. 375, 29 Abb. N. C. 272, 20 N. Y. Supp. 865; aff'd, 136 N. Y. 505; Kelly r. Charlier, 18 Abb. N. C. 416; City of Memphis v. Brown, 20 Wall. 289; Central Trust Co. v. N. Y. City R. R. Co., 18 Abb. N. C. 381, 411, and note on reference of part of the issues, in id. 419, and cases there cited. So the court may order a reference preliminary to trial by jury. Smith v. Dodd, 3 E. D. Smith, 348.
If the action is for an accounting, the right to which is disputed, a refer ence before the determination of this issue and entry of an interlocutory judgment is improper. Diehl 0.
Dreyer, 84 App. Div. 247, 82 N. Y.
73 This is always a court order. Scudder v. Snow, 29 How. Pr. 95. But entry of such order may be al. lowed nunc pro tunc on payment of costs. Id.
Where a first order is irregular and not void, the court on making a fresh order may direct that evidence taken under the first order stand and be taken as being in evidence under the second order, with such other evidence as may be adduced. Roberts v. White, 73 N. Y. 375, aff'g 43 N. Y. Super. Ct. 455.
[may recite appearances and defaults, etc., as in Forms 1565, 1582, 1758, etc.], and it appearing that the inquiries hereafter stated should be made for the information of the court before [proceeding with the trial and] judgment; Now, on hearing counsel for the respective parties (and on motion of A. T., for the plaintiff] :
ORDERED, that it be referred to R. F., Esq., of [direct for what, as thus], to take proof (such as may be offered by either of the parties to this action or by the holders of any of the bonds mentioned in the complaint], and to report the same with his opinion to the court upon the following questions of fact [stating them. See also the following Forms].
Enter: [signature of judge by initials of name and title.]
Forms Nos. 1789-1791.— STATEMENTS SUITABLE TO INSERT IN FORE
Further directions. And it is further ordered, that any of the parties to this cause have leare, from time to time, to apply for further directions respecting the reference herein ordered. 74
FORM No. 1790.
Saving clause as to effect of report. [May add by way of caution:]" It is further ordered, that the report of the referee hereunder shall be without prejudice to the consideration of such or any other questions in the cause arising upon the trial o upon any proceedings herein for their review.
FORM No. 1791.
Bringing on trial again. It is further ordered, that on the filing of said referee's report this cause may be brought for further trial and final judgment by either party on the usual notice of trial [or, on days' notice).
74 Without this clause the court has power to give further directions at any time; but a party could not always move for such directions with out formal leave.
75 See Central Trust Co. v. N. Y.
City R. R. Co. (above cited), and
If the reference is not expressly or in effect to hear and determine an issue made by the pleadings, this clause is quite unnecessary.
FORM No. 1792. Order of reference to take and state an incidental account before judgment.76
[Title (court order) and recitals as to cause being brought on jor trial, as in other cases:) and the examination of a long account being required in (ascertaining the damages — and no difficult question of law being involved"?]; Now, on motion of A. T., for the plaintiff:
ORDERED, that it be referred to R. F., Esq., of [directions as in Forms below).
FORM No. 1793. Decision upon trial of preliminary issues, and directing interlocutory judg
ment with reference.78 [As in Form No. 1748, making findings covering all preliminary issues, 79 with conclusions; and directing the terms of in.
... An inty judgment conclusionsking findinge.
An interlocutory judgment is hereby directed that the partner ship heretofore existing between the parties hereto be dissolved; that the plaintiff is entitled to a one-half interest in the assets thereof and the defendant to the remaining one-half thereof, after payment of its debts and liabilities; that it be referred to [name] as referee, [etc., as in Forms below.]
FORM No. 1794. Interlocutory judgment with reference thereunder, before final application to
the court for judgment.80 [Caption and recitals as in Form 1758, substituting at the end:] and directing interlocutory judgment as hereinafter provided ; Now, on motion of A. T., plaintiff's attorney:
76 In an action for an accounting such a reference cannot be directed prior to the entry of the interlocutory judgment providing for the accounting, which interlocutory judg: ment will itself direct the reference. If upon the pleadings the plaintiff is entitled to the accounting, interlocutory judgment may be granted upon a motion. Gibson ri Widman, 106 App. Div. 388. 94 N. Y. Supp. 593.
The Form is sustained by cases cited in preceding note.
77 Not necessary that this appear except when the reference is of an issue arising on the pleadings, and the referee is to hear and determine.
78 A reference may be directed, and
the referee named, in the decision; or, if the decision shows that a reference is contemplated, an interlocutory judg. ment may be entered, signed by the judge, directing the reference and naming the referee, without special provision therefor in the decision. Zapp 1'. Miller, 109 N. Y. 51.
79 All the issues must be determined. Rudiger v. Coleman, 112 App. Div. 279, 98 N. Y. Supp. 461.
So Where a reference has been or. dered to hear and determine the is. sues, in an action for an accounting, the referee need not render an inter: locutory judgment before proceeding to take and state the account. Young v. Valentine, 177 N. Y. 347.
It is ORDERED and ADJUDGED (substance of judgment].
And it is further ORDERED and ADJUDGED, that it be and hereby is referred to R. F., Esq., of [state object of reference as in following Forms].
[As to costs:] And it is further ORDERED and ADJUDGED, that the plaintiff is entitled to recover of defendant (or, to retain out of the fund] his costs to be taxed upon final judgment [or, that all questions as to costs are reserved till final judgment].
[As to final judgment:81] And it is further ORDERED and adJUDGED, that on the coming in and confirmation of the report of said referee, either party may move at Special Term for a final judgment directing (may provide for the terms of the final judg. ment].
[Or, may direct the terms of the final judgment and direct : that the final judgment herein may be settled by a judge of this court [or, by R. F., Esq., hereby appointed referee for that purpose) on (two] days' notice from either party. 82
[As to further directions:] And that plaintiff [or, either party] has leave to apply to this court for such further order or judgment as he may be advised. Interlocutory judgment, signed this day of , 19 .
[Signature of], Clerk.
The reference to take and state the account cannot be directed prior to entry of interlocutory judgment. Gib. son v. Widman, 106 App. Div. 388, 94 N. Y. Supp. 593; Weldon v. Brown, 84 App. Div. 482, 82 N. Y. Supp. 1051. This rule has no application to an action at law involving a long account, Boisnot v. Wilson, 95 App. Div. 489, 88 N. Y. Supp. 867. Where the admissions in the answer show that an accounting is necessary, plaintiff is entitled to an interlocutory judgment appointing a referee; it is irregular to enter an order of reference, especially ex parte, although the objection may be waived by proceeding with the reference. Blun v. Mayer, 113 App. Div. 242.
An interlocutory judgment should be based upon a decision, and not upon an order. See Stoddard u. Bell, 100 App. Div. 389, 91 N. Y. Supp.
477. And the court must determine all the issues. Rudiger v. Coleman, 112 App. Div. 279, 98 N. Y. Supp. 461; Russell Hardware, etc., Co. 1. Utica Drop Forge Co., 112 App. Div. 703.
81 The final judgment must give effect to the terms of the interlocutory judgment. Reilly v. Freeman, 109 App. Div. 4. The latter is conclusive, unless changed on appeal. Meyer 1. Haven, 70 App. Div. 529, 75 N. Y. Supp. 261. If the final judgment is erroneous, in that it does not follow the direction of the Appellate Division in the interlocutory judgment, the remedy is by motion to correct, or appeal to the Appellate Division, not by an appeal to the Court of Appeals. Hollister v. Simonson, 170 N. Y. 357.
82 Sanctioned also by N. Y. Code Civ. Pro., § 1231.