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FORM No. 1819.

Affidavit to oppose motion for reference.7 [Formal parts as in Form 1816 to the *.]

II. That deponent has fully and fairly stated the case in this action to his counsel A. T., who resides at No. street, in the city of , and that the trial of the issues of fact in this cause will, as deponent is advised by said counsel, after such statement, and verily believes [state objection as thus or in Forms below), require the decision of difficult questions of law. That [here state, unless the moring affidavits correctly state it, the nature of the issue, as in Form 1816, and that] the following will be insisted on on behalf of said plaintiff [here briefly state de ponent's points of lau8]. And deponent is informed and believes that the defendant's counsel will urge [here briefly state his anticipated questions of law®], which points, as deponent is advised by his said counsel, are material to the cause, and are difficult, especially in their application to the facts in this case. [Date.]

[Signature.]

FORMS Nos. 1820–1922.— STATEMENTS SUITABLE TO INSERT FORE

GOING FORMS.

FORM No. 1820.

Denial that account is involved. [Add to or substitute for part of last Form:] II. That the issue joined herein will not require the examination of a long account within the meaning of the statute; that all of the goods referred to in the complaint were sold at one time, and as one transaction, and the alleged credit is a payment made by defendant at said time, and then deducted from the amount to be due from defendant to the plaintiff; and there are no other items of charge or credit involved in the issues herein.

ence, although the schedule set forth services in fifty-six different matters, by an attorney. Two items were excepted from the admission contained in the stipulation.

7 Where counterclaims are interposed, the right to a reference in the coinplaint is defeated. Robinson . X. Y., L. E. & W. R. R. Co., 55 X. Y. Super. Ct. 152; afr'd, 109 N. Y. 658.

If the cause of action set forth in the complaint is not referable, the interposition of an independent counterclaim cannot make it so. Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236. If, however, plaintiff's cause of action is admitted, a reference will be

ordered on a counterclaim which involves a long account. Kindberg r. Chapman, 115 App. Div. 154.

8 Questions of admissibility of evidence are questions of law within the rule. Goodyear r. Brooks, 4 Robt. 682, 2 Abb. Pr. (N. S.) 296.

9 Unless apparent on the face of the pleadings, these questions should be pointed out specifically and so as to show their real difficulty, as well as how they are expected to arise. Lee Coal Co. r. Meeker, 43 Misc. 162, 88 N. Y. Supp. 190; Hibbard v. Comm. All. L. Ins. Co.. 4 Misc. 422, 24 X. Y. Supp. 332; affid, 141 V. V. 519.

FORM No. 1821. That other issues should be tried before the account.10 That this action is brought by the plaintiff as administrator for an alleged accounting [claiming such as administrator of J. E. F., deceased, who in his lifetime was in copartnership with the defendants] ; that the answer, among other defenses, sets up a joint release of all claims of the plaintiff against the defenilants; that no reply has been served herein, and deponent is advised that this issue is not referable until the validity of that release has been passed on by the court; that if said release shall be held to be a valid release, it would be a bar to any accounting herein, and said accounting would be unnecessary.

FORM No. 1822.

Where fraud is set up. That this action is brought upon an [insurance policy alleged to have been made by defendants: and that the only items of account are the items of damage, which plaintiff claims he has sustained by a peril insured against]. And that the defense [or, one of the defenses] set up by the defendants is fraud on the part of the plaintiff, in [here briefly disclose it], as more fully appears by reference to their answer herein."1

FORM No. 1823. Stipulation agreeing on nomination of referee. 12 [Title of court and cause.]

Stipulated that in case the within motion be granted, the reference shall be to R. F., Esq., of [counselor at law). [Date.]

[Signatures of attorneys or of parties.]

10 From an unreported case in which an order granting a reference notwithstanding this affidavit was re. versed, the General Term holding that the issue as to the release should be tried before an accounting should be ordered; S. P., Rutty r. Person, 12 Abb. N. C. 352, 49 N. Y. Super. Ct. 55.

11 This is an answer to the motion in such a case. Freeman 1. Atlantic Mut. Ins. Co.. 13 Abb. Pr. 124.

If the foundation of the action and the substantial issue is fraud, the fact that the examination of a long ac. count is involved does not justify a

compulsory reference. Clarke c. Candee, 29 llun, 139, and cases cited; Morrison r. Horrocks, 40 id. 428. See, also, note 98, supra; Morrison t. Van Benthuysen, 103 N. Y. 675; t'ne termever . Beinhauer, 105 id. 591. But the fact that fraud of defendant is alleged in the complaint, is not always an answer. Atocha t. Garcia, 15 Abb. Pr. 303.

12 \There such a stipulation is made, it may be stated in the moving affidavits that no party is an infant. See Code Civ. Pro., & 1011.

FORM No. 1824. Order on motion referring cause to hear and determine.18 {Title (court order) and recitals, according to motion; see Form

820, p. 1174.] ORDERED, that this cause and all the issues!4 [of law and fact] therein are hereby referred to R. F., Esq.,': of , as referee, to hear and determine.

[For special directions, if desired, see Forms 1825 to 1829.] Enter: [signature of judge by initials of name and title.]

Forms Nos. 1825-1829.— STATEMENTS SUITABLE TO INSERT IN FORE

GOING FORM.

FORM No. 1825.

To speed the reference. The hearing may be brought on by either party on days' written notice to the other. 16

[The referee is to proceed from day to day, unless for good cause shown he shall in his discretion grant an adjournment may add: on payment of the costs of the session by the party applying therefor. ]

FORM No. 1826.

Leave to sit in another county.17 That for the convenience of witnesses the trial of this action [or, the hearing before said referee] be had in the city and county of

[or, that the said referee is hereby empowered to sit for the purpose of taking testimony in the county of

13 While this order of reference is an essential part of the judgment roll, the aflidavit and notice of motion therefor should not be included and will be stricken out on motion. Schrader v. Fraenckel, 113 App. Div. 395.

14 An order referring “this cause" amounts to a reference of the whole issue. Renouil v. Harris, 2 Sandf. 641.

A reference of the whole issue in cludes the taking of an account where that is part of the relief to be had on the finding of an issue for the plaintiff. Crosbie v. Leary, 6 Bosw. 312. But if the referee determines the issues, but does not take the account, the court may appoint another

referee to do so. Mundorff 1. Mundorff, 1 Hun, 41, 3 Supm. Ct. (T. & C.) 171.

15 If the referee resigns, his resignation should be presented to the Special Term, and a motion there made for the appointment of a new referee. Brady i. Kennedy, 65 App. Div. 190, 72 N. Y. Supp. 507.

16 As to fixing the time for the hearing before the referee in a way to make it a condition, see Parkhurst . Berdell, 87 N. Y. 145. For provision against delay or cessation of one or more of the referees to act, see Devlin 1. Mayor, etc., of New York, 62 How. Pr. 260.

17 Supported by Pierce r. Voorhees, 3 How. Pr. 111.

- or, in any county in this State18 – and may add: on condition that the

pay the expenses of the said referee while attending in such other county).

FORM No. 1827.

Reservation of leave to amend. Either party is to be at liberty to amend his pleading as of course at any time at least days before the day noticed for the first hearing before said referee.

FORM No. 1828.

To take accounting. And if an accounting be necessary, said referee shall proceed to take and state the same, and may compel the production of the necessary books and papers as fully as the court might do, and award final judgment to be entered in his report.19

FORM No. 1829. Direction for judgmeat where rule or statute does not provide for it.

Upon filing the report of said referee with the clerk of the court, judgment may be entered in conformity therewith as if said cause had been heard before the court.20

FORM No. 1830.
Order referring the cause, without motion.

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

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

This cause duly coming on to be tried, and the parties and their attorneys appearing, and it appearing to the satisfaction of the court that the trial will require the examination of a long account, 21 and does not involve any difficult question of law:

ORDERED, [as in preceding Forms].

18 O'Brien v. Catskill R. R. Co., 32 Ilun, 636.

19 The court may grant to referee to deterniine an action against a trustee for an account, power to compel production of books and papers. Fraser c. Phelps, 4 Sandf. 682. It was also held in that case that unless they do so he has not that power, but application must be made to the court. The better opinion now is that a referee to hear and determine the issues has

all the power of the court in this respect; and so I understand the practice to be.

20 Sustained by Belmont r. Washington & Georgetown R. R. Co., 13 Wash, L. Rep. 82; Austin t. Rawdon, 42 N. Y. 155. Unnecessary in actions under the New York Code.

21 This fact must appear beyond & mere possibility. Cassidy v. McFarland, 139 N. Y. 201.

II. REFERENCE BY CONSENT.

FORM No. 1831. Stipulation to refer cause to hear and determine issues (short Form).22 [Title of court and action.]

Stipulated that23 this cause and the issues of [law and] fact therein be referred to R. F., Esq., of [counselor at law], as sole referee [or, to a referee to be appointed by the court], to hear and determine 24

[If desired to restrict reference to the person named, add:] If said R. F. refuses to serve [or, a new trial of the action is granted after trial before him] another referee shall not be ap

22 Not suitable in divorce, nor in an action for dissolution of a corporation, or to appoint a receiver, or have distribution of its property, unless the attorney-general sues (as to fore. closure against a corporation, see p. 1007), nor in an action where a defendant to be affected by the result is an infant. N. Y. Code Civ. Pro., $ 1012. For Form suitable for those cases, see No. 1824.

The consent ought to be in writing, and filed; or, if oral, it must be made in open court and entered in the minutes; but in some cases proceeding without this is a waiver, even after objection is made to granting the reference. See Baird v. Mayor, etc., of New York, 74 N. Y. 382, and cases cited.

23 May also specifically waive trial by jury by inserting “ trial by jury is waived, and —-" See Form 1728.

If desired to restrict the reference to a trial of issues already joined, say: “ The issues heretofore joined in this cause." Whether this would preclude the referee from exercising his statutory power to amend the pleadings as to those issues query.

24 The word “determine,” though appropriate and usual, is not essential; and order referring "the cause and all the issues to hear the same and report to this court,” is construed as equivalent to an order to hear and decide. McCleary r. McCleary, 30 Hun, 154.

Under this stipulation, as regulated by N. Y. Code Civ. Pro., § 1011, the waiver of trial by jury and stipulation for trial by referee stands, even

though the referee agreed or refused to serve, or though, after he has served, a new trial be ordered for his error; and the court, unless in its discretion it vacates the order (Parkhurst v. Berdell, 87 N. Y. 145), will appoint a new referee on motion of either party. May v. Moore, 24 Hun, 351; Marsh v. Brown, 57 N. H. 173. But it is otherwise at common law; and is still otherwise where the ref. eree does not refuse, but dies. Devlin v. Mayor, 62 How. Pr. 163, 11 Wkly. Dig. 116. Compare Strong v. Willey, 104 U. S. 512; Marsh 1. Brown, 57 N. H. 173; Grant v. Reese, 82 N. C. 72; Mundorff v. Mundorff, 3 Supm. Ct. (T. & C.) 171, 1 Hun, 41; S. P., Caruth Byrnes Co. t. Wolter, 91 Mo. 484, 8 West. Kep. 591.

Under N. Y. Code Civ. Pro., $ 1011, the clerk must enter an order of course where the stipulation names the referee, and therefore express consent to the entry of an order is not necessary.

Under N. Y. Code Civ. Pro., 88 1018, etc., which provide for judgment on the report, no mention of entry of judgment is necessary. See Form No. 1833.

An attorney has implied power to bind his client by consent to a reference, even though of all the issues in the cause, and even though the client be a corporation. Alexandria Canal Co. 1. Swann, 5 How. U. S. 83; Tiffany v. Lord, 40 How. Pr. 481.

A consent signed by counsel will be sustained where it appears that the attorney had notice of it and made no objection below. Id.

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