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FORMS. 1845. Report of referee to hear and 1852. Notice of filing of referee's determine.
report. 1846–1850. Recitals suitable to insert 1853. Judgment on the report of in foregoing Form.
referee. 1851. Certificate by referee to sup- 1854. Motion to set aside judgment port motion for allowance.
1855. Motion for further findings, etc.
FORM No. 1845. Report of referee to hear and determine (containing findings and direction
for judgment).44 [Title of court and action.]
To the [Supreme] Court of [the State of New York] : Pursuant to an order of this court entered herein on the
day of , 19 , referring it to me to [very briefly indicate the directions, as thus:] hear and determine the issues in this action, I, the undersigned, as referee, report that I first took the oath prescribed by law which is hereto annexed, and having heard the allegations and evidence of the parties (for other recitals, if desired, see Forms 1846-1850 (below); and continue as in Form 1748 from the * to the end.""]
44 The report must show that the referee to hear and determine has decided the issues and has found in the way indicated; and his findings and conclusions must be shown to be such, and separately stated and num. bered. Lederer v. Lederer, 108 App. Div. 228, 95 N. Y. Supp. 623.
45 The report should specify the facts distinctly and positively; Brad. ley 0. McLaughlin, 8 Hun, 545; Mason Lumber Co. v. Buchtel, 101 U. S. 633. The findings can only be based on the evidence adduced. A finding stated to be based“ partly on the referee's knowledge and experience” is erroneous. Radway v. Duffy, 79 App. Div. 116, 80 N. Y. Supp. 334. For other notes to this Form, see Form 1748.
He should pass on the question of costs if the action is one in which they are discretionary. First Nat. Bank v. Levy, 41 Hun, 461.
If the referee should neglect to
direct the form of judgment, the Special Term can settle it on motion. The clerk can only enter it when its form is directed in the report. Marcas 0. Leony, 22 Abb. N. C. l, 50 Hun, 178, 2 N. Y. Supp. 831.
The power of the referee to award costs is co-extensive with the general equity power of the court, but is not understood to extend to the statutory powers to award costs against an executor, administrator, etc., whether to be paid personally or out of the assets, to grant an allowance, etc. In respect to those he may certify the facts. See Forms 1676–1681.
After the report has been made and delivered, there is no power, either in referee or Special Term, to permit its alteration in any matter of substance. Union Bag, etc., Co. v. Allen Bros. Co., 94 App. Div, 595, 98 N. Y. Supp. 368; Shrady v. Van Kirk, 77 App. Div. 261, 79 N. Y. Supp. 79, 33 Civ. Pro. Rep. 168.
FORM8 Nos. 1846-1850.-- RECITALS SUITABLE TO BE INSERTED IN
FORM No. 1846.
If any party was in default. . [Notice by attorney:]“ That plaintiff's counsel produced notice of trial and proof of due service thereof upon the attorney for Y. Z.
FORM No. 1847.
The same. [Notice by referee's summons: ] 46 That I issued my summons to the attorney of the adult defendants and the attorney of the guardian ad litem of the infant defendant to attend upon the said reference, which was duly served upon the said parties, as appears from a copy of said summons hereto attached marked Schedule A, with admission of service indorsed thereon.
FORM No. 1848.
Appearances. That I was attended by A. T., of counsel for the plaintiff, and by T. Z., of counsel for the defendant Y, Z.
FORM No. 1849.
Leave to amend.47 That during the trial counsel for plaintiff moved to amend the complaint [stating how), and I thereupon ordered the complaint to be amended accordingly.
FORM No. 1850.
Motion to dismiss.48 That the defendant moved to dismiss the complaint [state grounds), which motion I denied, and defendant excepted.
46 Notice is presumed to have been given even without such recitals, so far as to cast the burden upon the other party to move. Lutz v. Linthicum, g Pet. 165, 168. A recital of having given reasonable notice held sufficient in the absence of any evidence to the contrary. State v. McIntyre, 53 Me. 214.
47 Smith 1. Bodine, 74 N. Y. 30; Stevens 1. Mayor, etc., of New York, 84 id. 296; Bockes v, Lansing, 74 id.
437, as explained in Matthews r. Del. & Hud. Canal Co., 20 Hun, 427, 437.
48 Coffin v. Reynolds, 37 N. Y. 610 (dismissal for insufficiency of complaint); Morange v. Meigs, 54 N. Y. 207; Salter v. Malcolm, I Duer, 596: N. Y. Gen. Rules No. 30 (dismissal for non-appearance); Peyser v. Wendt, 87 N. Y. 322 (dismissal for refusal to bring in necessary party): Van Der. lip 0. Keyser, 68 N. Y. 443; Scofield 0. Hernandez, 47 N. Y. 313; Aylesworth r. St. John, 25 Hun, 156 (dismissal for insufficiency of evidence). If a case is made, this motion and the ruling will appear there. Pritchard r. Hirt, 39 Hun, 378.
FORM No. 1851. Certificate by referee to support motion for allowance.49 [Title of court and action.]
I certify, that in my opinion this is a difficult and extraordinary case [if so, may add], and that the trial involved difficult, complicated and important questions of law and fact [may state details], and that I am of the opinion that an allowance ought to be made to the successful party, in addition to costs. [Date.]
[Signature of], Referee. [Other proceedings as to costs, as in case of trial by jury, Forms 1675–1696.]
FORM No. 1852.
Notice of filing referee's report. [Adapt from Form No. 1749.]
FORM No. 1853.
Judgment on the report of a referee. [Title of court and action.50]
This action having been referred by an order duly made and entered herein the day of , 19 [if on consent, add: upon the written consent duly filed of all the parties — or, upon the oral consent of all parties given in open court and duly entered in the minutes], to R. F., Esq., to hear and determine the whole issues herein, and after trial had on due notice to all the parties, said referee having on the day of , 19 , duly made and filed his report herein, stating the findings of fact herein and conclusions of law thereon and directing judgment as hereinafter stated, and the costs having been duly adjusted at dollars; Now, on motion of A. T., attorney for
49 For other motion papers, see Form 1684.
50 The directions in the report are a sufficient sanction to the clerk to enter judgment accordingly, with the same caption and conclusion as if directed in open court. Union Bag, etc., Co. v. Allen Bros. Co., 94 App. Div. 595, 88 N. Y. Supp. 368; Hancock r. Hancock, 22 N. Y. 568; N. Y. Code Civ. Pro., & 1228; Terpenning r. liolton, 9 Colo. 306, 12 Pac. Rep. 189. The Special Term cannot direct a
different judgment upon the report (Union Bag, etc., Co. r. Allen Bros. Co., supra; Schroeter 1. Schroeter, 23 Hun, 230; Schweizer r. Raymond, 6 Abb. N. C. 378). If the referee fails to direct the form of judgment in his report, the Special Term has power to settle it in accordance with the report, but the referee has no such power. Union Bag, etc., Co., 1. Allen Bros. Co., supra; Vagen 1'. Birngruber, 9 N. Y. St. Rep. 729.
The remedy for an omission from the judgment, as settled and entered, is by motion to the Special Term to amend it, specifying the omissions in the notice of motion. Id.
IT IS ADJUDGED [etc. For other recitals see Forms Nos. 1704 to 1719, and substance of adjudication as in judgment after trial by jury or by the court; see Forms Nos. 1721 to 1723].
[Notice of exceptions, as in Form No. 1750; Notice of filing exceptions, Form No. 1751; Order for time to make case, Form No. 1660; Motion for leave to file exceptions and make case nunc pro tunc, as in Forms Nos. 1752, 1753; Case, settlement, etc., as in trial by judge, see Forms 1755, etc.; Motion for new trial for surprise, newly-discovered evidence, etc., adapt from Forms for like motion after trial by jury, pp. 1805, etc.]
FORM No. 1854. Motion to set aside judgment upon report.51 [The object of the motion or order may be stated thus:] that the judgment entered upon the report of R. F., the referee herein, filed herein the day of
, 19 , be set aside (for irregularity in this, that specifying grounds]; and that it be referred back to him to make a further or amended report wherein he shall find [state upon what points] [or, and that a new trial be had before the same referee, with costs, etc., to the
, to abide the event of the action — or, and that the order of reference entered the day of , 19 , be set aside, and that the action proceed as if no reference had been ordered — or, agreed on — or, and that a new trial be had and it be referred to another referee to hear and determine the whole issues in this action, with costs — etc.].
FORM No. 1855. Motion to send case back to referee, and for further findings,52 with extension
of time to make case. [The object may be stated thus:] an order sending the case herein back to R. F., Esq., the referee herein [specify the object desired, as :] and directing said referee to pass specifically upon the [plaintiff's] requests to find.53 [And that the plaintiff's time to make a case herein be extended until ten days after the decision of this motion.]
51 See Van Slyke v. Hyatt, 46 N. Y. 259; Barton v. Herman, 8 Abb. Pr. (N. S.) 399, 3 Daly, 320; Leonard v. Mulry, 93 N. Y. 392; Carroll v. Lup. kins, 29 Ilun, 17; Burrows v. Dickin son, 35 id. 492; Schweizer v. Raymond, 6 Abb. N. C. 378.
If a case is necessary the motion is an “ enumerated " motion under the New York practice. See p. 71 of Vol. I.
If the application is based upon an alleged inadvertent omission or error by the referee, move upon the referee's affidavit. See Deagan v. King, 83 App. Div. 428, 82 N. Y. Supp. 422.
52 See note 45 to Form 1845.
See Bigler v. Pinkney, 80 N. Y. 636; Turner v. Haughton, 71 No. Car. 370.
63 Under the present practice new requests cannot be made after report rendered. See notes to Form 1747.
STATEMENTS OF RELIEF APPROPRIATE TO JUDGMENTS IN VARIOUS
[In order to adapt the Forms to the largest usefulness, these statements of relief are here given in a way53a to make them readily adaptable to judgment on trial by Jury, p.1854, on trial by Judge alone, p. 1885, trial by Judge with aid of Jury, p. 1895, or with aid of Referee, p. 1910, or trial by Referee, page 1929. Special cases which require peculiar proceedings before or on judge ment, such as Divorce, Dover, Ejectment, Foreclosure, Partition and Redemption, are treated in the next Article.)
FORM No. 1856.
dollars paid by the defendant [name] to the defendant (client) in settlement of the action theretofore pending between them, which lien amounts to the sum of dollars.
It is further adjudged that the plaintiff recover of the defendants said sum of dollars, with dollars costs as taxed, amounting in all to dollars; that execution to collect the same first issue against the defendant [client] and if it should be returned unsatisfied then execution may issue against said defendant [name] therefor.
FORM No. 1857.
Affirmative relief between codefendants. [Determining rights as between themselves:55] And it is further ordered and adjudged, that, as between the defendants herein, said W. & X., who compose the firm of W. & Co., pay to the said Y. & 2., who did business under the firm name of Y. & Co., any deficiency beyond the excess of receipts retained by said Y. & Co. on any sale of said property after payment of the amount of their advances and charges to or against said W. & Co., and after applying any money in their hands which may have been left for their indemnity by said W. & Co. in their hands, upon the return of said property by said Y. & Co. to the plaintiffs, or their pay
53a The forms are arranged alphabetically, by topics.
54 From the judgment in Morehouse r. Brooklyn Heights R. R. CO., 185 X. Y. 520, where a new trial was granted because the Special Term had failed to find upon all the issues.
55 Common practice in equity, extended to all actions bv N. Y. Code Civ. Pro., $ 1204, with $ 521. Metropol, Trust Co. r. Tonawanda R. R. Co., 18 Abb. N. C. 368, 43 Hun, 522. and cases cited; Derham r'. Lee, 87 N. Y. 599.