Page images

FORM No. 1807. Report of referee on accounting (in partnership cause).90 [Commencement and recitals of appointment, appearances, oath,

etc.; see Forms 1845, etc.] II. That on such hearing, the books, deeds, papers and vouchers of the said partnership having been produced before me, the defendant rendered his [or, both parties rendered their respective] accounts, which are hereto annexed, and marked Schedule A.

III. That I examined said defendant, and also , concerning the transactions aforesaid, and adjusted a mutual account between the plaintiff and defendant, making therein all just allowances, and striking a balance which shows what appears to be due from either party to the other, which said account is hereto annexed and marked Schedule B.

IV. That said defendant owes to said partnership, at this date, the sum of dollars, with interest from the day of

, 19 , at the rate of per cent. per annum, amounting to dollars, which sum I have allowed.

V. That the balance shown by said Schedule B, after defendant has made good to said partnership said sum, belongs to plaintiff and defendant in equal shares [or, in the following proportions stating them].

VI. That all the evidence taken by me under the said order of reference is hereto annexed [except the said on the records of this court), (together with my opinion). [Date.]

[Signature of],

Referee. [Anner testimony signed by witnesses, and documentary evidence.]

[Findings when necessary; see Form 1748.]

may come in, is held to entitle the creditor so appearing, to notice of further proceedings; but an order of court may be applied for expressly making the creditor a party, if preferred.

90 It is not enough, in a report on taking and stating an account, to state results, but details should be set forth. Zimmerman v. Huber, 29 Ala. 379; Craig v. McKinney, 72 Ill.

305; Nims r. Nims, 20 Fla. 204; Reed v. Jones, 15 Wis. 40.

The report may annex the account filed, and state what items are disallowed, and why, and the corrected result; but if the account involves several rights or liabilities of different persons, the referee should prepare schedules reporting as to each. Spencer v. Spencer, 11 Paige, 299; Eaton's Appeal,‘66 Pa. St. 483. When the

FORM No. 1808.

Notice of filing of referee's report.91 [Title of court and cause.]

Please take notice that the report of R. F., Esq., the referee herein, was this day duly filed in the office of the clerk of the county of , in the City Hall], in the city of , in said county.

Yours, etc., [Date.]

, Esq.

Attorney for
Attorney for


FORM No. 1809. Exceptions to the report of a referee appointed to take and state an

account.92 [Title of court and action.]

The above-named defendant excepts to the report of R. F., Esq., the referee, filed herein the day of , 19 , in the following particulars [state exceptions to findings and refusals to find, if there are any, as in Form No. 1750, continuing]:

Because said referee found [or, did not find here state in detail each item objected to as found or not found, 93 and the ground of the objection).

[Date, signature and addresses, as in Form No. 1656.] [File, and serve on attorney for successful party.]

referee has drafted his report he may give the parties who have appeared before him notice that it is ready for examination at his office; and that on a specified day and time he will finally settle its terms.

A referee's report should not state the evidence unless such is the purport of the order, but by N. Y. Gen. Rule No. 30, “in references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them, and the report of the referee shall be filed with the testimony."

91 Serve only upon the parties or persons who have appeared. People t. Am. Loan & T. Co., 87 App. Div. 139, 84 N. Y. Supp. 114.

If no exceptions are filed within eight days after service of notice of filing, the report becomes absolute, and an order of confirmation and directing judgment thereon may be entered without notice. Gen. Rule No. 30; Bailey v. Carter, 34 Mise. 270, 69 N. Y. Supp. 616; James t. Horn, 19 App. Dir. 259, 46 N. Y. Supp. 187. See note 94, post.

92 In an action to dissolve a corporation, creditors who do not except have no standing to require a review of the referee's report. People r. Am. Loan & T. Co., 87 App. Div. 139, 84 N. Y. Supp. 114.

93 Story r. Livingston, 13 Pet. 359; Lawrence 1. Fowler, 20 How. Pr. 407; People 1. Empire Mut. L. Ins. Co., N. Y. Daily Reg., Oct. 19, 1883.

FORM No. 1810. Notice of application for judgment after reference,94 or to set aside or modify

, report. Please take notice, that this cause will be brought on for final hearing on the report of the referee, R. F., Esq., filed the day of , 19 , and on the exceptions thereto [a copy of which has been served on you], and on the pleadings and previous proceedings [on the Trial] herein, at a Special Term of this court, to be held at the County Court House [or, City Hall] in the city of , on the day of , 19 , at the opening of the court on that day, or as soon thereafter as counsel can be heard, and a motion will be made to over-rule said exceptions and to confirm said report and for final judgment herein [or, to sustain said exceptions and set aside said report — if on the ground of irregularity, specify it or, to modify said report by stating in what], and for such other or further relief as may be just.

[Date, signature and addresses, as in Form 1656.]

FORM No. 1811. Order adjourning motion for judgment, and directing reference to settle form

of judgment and fix allowances.

At a Special [or, Trial Term, etc.; see

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

On reading and filing the affidavit of A. B., verified the day of , 19, and notice of motion for final judgment herein, together with a proposed final judgment, and on due proof by affidavit of the service of copies thereof on the attorneys of all the parties who have appeared in this action, and on hearing A. T., for plaintiff, and T. Z., for defendant Y. Z.; and on motion of A. T., attorney for plaintiff:

ORDERED, that the hearing of the motion for final judgment be and the same is hereby adjourned to the day of 19 , at [the Special Term of this court at the City Hall, in the city of

for the trial of issues of law and fact], then and there to be heard, and that in the meantime it be referred to R. F., Esq., as referee, to report to this court at the time and place last named a proper and suitable form of final judgment in this action (together with proper allowances to the several parties who have appeared in this action, in addition to taxable costs], and that said reference proceed upon [two] days' notice by any of the parties to the other.

94 If any issues remain to be tried, substitute a notice of trial before the court (see Form No. 1601), omitting “ and an inquest taken therein," and adding thereto: And at the same time application will be made to confirm the report of the referee filed herein the day of

and to over. rule exceptions filed thereto.

If no exceptions have been filed, no motion is necessary under Gen. Rule No. 30. Therefore it is improper to combine a notice of the filing of the referee's report with a notice of motion to confirm. James v. Horn, 19 App. Div. 259, 46 N. Y. Supp. 187.

Enter: [signature of judge by initials of name and title.]

FORM No. 1812. Judgment (final) after verdict on issue of fact as to defendants appearing,

and a reference as to those in default.95 [Title of action.]

This cause having been regularly brought on for hearing before Mr. Justice J. K. at a Special [or, Trial] Term of this court, held at on the day of

, 19 , upon the verdict of the jury rendered upon the issues of fact made and settled in this action and submitted to said jury; and proof having been made and filed of the service of the summons in this action upon all the defendants more than twenty days since, and personally on all [except the unknown owners, and the defendant W. V., who is an absentee, who have all been served by publication, pursuant to an order duly made and entered herein the day of , 19 ], and that although the time therefor has elapsed, no demurrer or answer has been put in on behalf of any defendant except the defendant W. X. (and also the defendant Y. Z., who' is an infant, and has put in the usual general answer by his guardian ad litem, not controverting any material allegation in the complaint], and that the complaint and due notice of the pendency of this action were filed on the day of

19, in the office of the clerk of the county of

; and on reading and filing said proofs, and on the pleadings and proceedings in this action, including said rerdiet, together with the report of R. F., referee herein, appointed by an order of the court, bearing date the day of , 19, whereby it appears [etc., briefly stating conclusion], and the court having approved said verdict and confirmed said report [and if further evidence was taken and findings made, recite the fact], and the costs of the having been duly adjusted at

dollars: IT IS ADJUDGED [continuing as in other Forms.). 95 See Frow v. De La Vega, 15 Pr. 193; McCrackan v. Valentine, 9 Wall. 552; Cram v. Bradford, 4 Abb. N. Y. 42.

FORM No. 1813. Judgment (final) after trial, and reference preliminary to final judgment.

[Caption, and recitals of trial by court, of findings made, etc., and interlocutory judgment, if any, as in Forms 1758, 1794; or if, instead of interlocutory judgment, a mere order of reference was taken, state it as thus: and by an order entered on the

day of , 19 , it having been referred to R. F., Esq., to take and state the account between the plaintiff and the defendant, and his report having been filed on the day of

, and no exceptions having been filed thereto — or if any, indicate them as in Form 1814; Now, on motion of A. T., attorney for plaintiff :

IT IS ADJUDGED [etc., as in other Forms].96

FORM No. 1814. Judgment (final) after reference of a special question followed by findings of

the court on the remaining issues.97 [Title of court and action.] This action having been regularly brought on for trial on the

day of , 19 , before Mr. Justice J. K., at a Special sor, Trial] Term of this court upon the answer of the defendant W. X., and the answer of the infant defendant Y. Z., and an order having been made on , 19 , referring it to R. F., Esq., to take proof of the facts [stating as to what], and to report the

96 If the final judgment is settled by judge or referee pursuant to direction in interlocutory judgment, take signature of judge or referee at the foot of the final judgment to be filed. N. Y. Code Civ. Pro., & 1231; Clapp t. Hawley, 97 N. Y. 610.

07 Adapted from 40 Hun, 526, where the court say: “ The reference was ordered not to determine the facts in the case, or the rights of the parties, by the action and conclusion of the referee, but to supply the court with information upon which itself could intelligently act and adjudge the rights of the parties. When the case was brought before the court subse. quent to the hearing and report of the referee, it was presented for its examination and decision upon the evi

dence which had been taken, and the facts which that evidence was found to have proved. It was for the court to determine what were the rights of the parties upon the proof, which in this manner had been obtained. It therefore proceeded regularly in considering and determining whether, upon the evidence produced, the plaintiff was entitled to recover in the action.

“The power to do that was not excluded by the omission of one of the defendants to answer the complaint. For, as the facts were stated in it and ascertained upon the reference, the question was still presented whether the plaintiff was entitled," etc.

« PreviousContinue »