settled for trial by jury, by an order entered the

on the

69

day of

19 ; and the remaining issues having been duly tried 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 issues70 having been heard thence proceed as in the same Form 1748, from the 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 the day of

on

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. Thompson, 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 manitests an approval. Hooker v. City of

Rochester, 126 N. Y. 635; California
Southern R. R. Co. v. Southern Pac.
R. R. Co., 67 Cal. 59, 7 Pac. Rep. 123.

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 except on the other issues.

71 Sustained by the Supreme Court in Colie v. Tifft, 47 N. Y. 119.

SECTION VI.

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.]

Order of reference to report on specific questions pending trial.72

At a Special Term [or, Trial Term, etc.; see Form 820, p. 1174].73

This cause coming on to be tried at a Special [or, Trial] Term, held on the

[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

GOING FORM.

FORM No. 1789.

Further directions.

And it is further ordered, that any of the parties to this cause have leave, 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:175 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 or 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

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 without formal leave.

75 See Central Trust Co. v. N. Y.

days'

City R. R. Co. (above cited), and
Muhlenbrinck v. Boler, 40 Hun, 526.

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 for 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 tions as in Forms below].

FORM No. 1793.

[direc

Decision upon trial of preliminary issues, and directing interlocutory judgment with reference.78

79

[As in Form No. 1748, making findings covering all preliminary issues, with conclusions; and directing the terms of in terlocutory judgment as:]

An interlocutory judgment is hereby directed that the partnership 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 r. 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 v. 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 ordered to hear and determine the is sues, in an action for an accounting, the referee need not render an interlocutory 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 judgment].

[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.8

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

The reference to take and state the account cannot be directed prior to entry of interlocutory judgment. Gibson 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 . Mayer, 113 App. Div. 242.

An interlocutory judgment should be based upon a decision, and not upon an order. See Stoddard v. Bell, 100 App. Div. 389, 91 N. Y. Supp.

19

day of [Signature of], Clerk.

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. v. 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 v. 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.