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set aside; and the clerk of this court is hereby directed to return the said remittitur to the said Court of Appeals for its further action in the premises.

And it appearing that on or about the

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day of 19 , on the appeal of the said Y. Z. to the Court of Appeals, M. N. and O. P. executed to the plaintiff, and filed with the clerk of an undertaking on appeal in the usual form conditioned for the payment of the judgment of the Supreme Court, and of any costs that might be awarded against the said Y. Z. on such appeal to the Court of Appeals, should the said judgment be affirmed, and that there is now pending and undetermined in this Court, in the county of an action brought by the said A. B. against the said M. N. and O. P., as sureties in the said undertaking, for the recovery of the sum of $ damages and costs, upon the affirmance of the said judg ment by the Court of Appeals:

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IT IS FURTHER ORDERED [on the consent of the parties hereto given in open court], that all proceedings in said action in said.

Court be stayed until the hearing and determination by the Court of Appeals, upon the return of the said remittitur thereto, and that in the event that the Court of Appeals refuse to grant a reargument of said appeal, the said action continue as if this order had not been made, but that in the event a reargument of said appeal is had, and the said order [or, judgment] of the Appellate Division of the Supreme Court is reversed, the said action shall thereupon and thereby stand discontinued and dismissed, without costs to either party.

Enter: [signature of presiding justice by initials of name and

FORM No. 2158.

title].

Order for reargument, and transferring cause to another department.22

[Title of cause.]

At

a term of the Appellate Division [etc., as in Form 820, p. 1175 of this volume].

The appeal of [the plaintiff] from the judgment in this action coming on to be heard before this court, Hon. J. K. not sitting, because not qualified to sit in the cause, and the justices qualified to hear the appeal being equally divided;

22 Allowed by N. Y. Code Civ. Pro.,§ 231.

After hearing A. T., of counsel for the plaintiff-appellant, and T. Z., of counsel [or, no one appearing] for the defendantrespondent:

ORDERED, that a reargument be had, and this appeal be and the same is hereby transferred to the department to be

there heard and determined.

VIII. FILING THE REMITTITUR, AND SUBSEQUENT PROCEEDINGS.

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in the year

A. B., the

of our Lord one thousand nine hundred and appellant in this action, came here into the Court of Appeals by A. T., his attorney, and filed in the said court a notice of appeal and return thereto from a judgment of the [Supreme] Court of [the first department and first judicial district of the State of New York]; and Y. Z., the respondent in said action, afterwards appeared in said Court of Appeals by T. Z., his attorney: Which said notice of appeal and return thereto, filed as aforesaid, are hereunto annexed.

Whereupon, the said Court of Appeals, having heard this cause argued by Mr. A. T., of counsel for the appellant, and Mr. T. Z., of counsel for the respondent, and after due deliberation had thereon, did order and adjudge that the judgment of the Court appealed from in this action to this court be and the same is hereby affirmed, with costs to the respondent against the appellant [or, except as to costs, and reversed as to the costs, without costs in this court to either party- or otherwise as the decision may require].24

23 N. Y. Court of Appeals Rule No. 16.

24 The court may correct the judg

ment below, and affirm as corrected. See Gilmour v. Concord, 183 N. Y. 342.

Court,

And it was also further ordered, that the record aforesaid and the proceedings in this court, be remitted to the said there to be proceeded upon according to law.

THEREFORE, it is considered that the said judgment be [stat

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And hereupon as well the notice of
appeal and return thereto aforesaid,
as the judgment of the Court of Ap-
peals aforesaid by them given in the
premises, are by the said Court of
Appeals remitted into the [name of
court below], before
before the justices
thereof, according to the form of the
statute in such case made and pro-
vided, to be enforced according to law,
and which record now remains in the
said
Court, before the justices
thereof [etc.].

[Signature of],

Clerk of the Court of Appeals of the State of New York. Court of Appeals, Clerk's Office,

Albany,

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Notice of entry of order on appeal remitting cause for further proceedings, and notice of hearing thereon.25

[Unless this is indorsed on the copy order served, entitle it in the court and cause.]

Please take notice, that within is a copy of an order [or, judg ment] duly made herein, and [this day] entered in the office of the clerk of this court [or, of the county of

].

And also take notice, that the hearing on the merits of the [defendant's motion for a perpetual stay of all proceedings on the

25 N. Y. Code Civ. Pro., § 1345.

judgment herein, directed in the within order], will be heard at a Special Term of this court, to be held [at chambers] at the Court House in the city of

19, at

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on the

o'clock in the

day of noon, at the opening of the court at that day, or as soon thereafter as counsel can be heard, and application will then and there be made that said motion be granted.

[Signature and office address of],

[Date.]

[Address] To

Attorney for

FORM No. 2161.

Attorney for

Notice of filing remittitur and settlement of order for judgment thereon.26

[Title of court and action.]

Please take notice, that the remittitur in the above action has been filed in the office of the clerk of the county of of this court], and that on the

19

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[or. the

undersigned will present the annexed proposed order to this court

at a Special Term, at the city hall in

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day of

day of

on the

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noon, or as soon there

[Date.]

[Signature and office address of],

[Address] To

Attorney for [successful party].

Attorney for [adverse party].

after as counsel can be heard, for settlement.

[Title.]

FORM No. 2162.

Order for judgment on remittitur.27

At a Special Term [etc., as in Form 820, p. 1174 of this volume].

The above-named plaintiff having appealed to the Court of Appeals of the State of New York from the [final judgment] entered and filed in the office of the clerk of the county of New

26 It is not essential that notice of the filing of the remittitur be given, and (unless in a case where the terms of the order require careful consideration) an order for judgment thereon will be granted ex parte. See next note.

27 Code Civ. Pro., §§ 194, 1319. Application should be made at a Special Term of the Supreme Court

in the county where the judgment appealed from was entered, and although it is said to be the better practice to give notice of the application for the order (see Chautauqua Co. Bank ". White, 23 N. Y. 347), yet the order is matter of course, and notice is not deemed essential, for the order cannot go beyond the remittitur.

York on the

day of

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19 whereby it was adjudged that

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[the judgment entered in this action on the day of 19, sustaining the demurrer to the plaintiff's complaint and dismissing said complaint be affirmed, and further adjudged that the defendant recover of the plaintiff the sum of $ costs;] and the said appeal having been duly argued at the Court of Appeals, and after due deliberation the Court of Appeals having ordered and adjudged that the said judgment so appealed from as aforesaid be [affirmed with costs], and having further ordered and adjudged that the proceedings therein be remitted to the Supreme Court there to be proceeded upon according to law; now on reading and filing the remittitur from the Court of Appeals herein and upon motion of A. T., attorney for plaintiff, it is

ORDERED, that the said order and judgment of the Court of Appeals be and the same hereby are made the order and judgment of this court.

Enter:

FORM No. 2163.
Judgment on remittitur.

[Title of court below and of the cause.]

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and that the dollars costs of

A judgment in this action in favor of the [plaintiff] against the [defendant] having been rendered in this court on the day of one thousand nine hundred and for the sum of dollars; and the defendant having appealed from said judgment to the Appellate Division of this court [for the Department], and the said judgment having been [affirmed in all things] by this court at said Appellate Division, and judgment of [affirmance] having been rendered thereon the day of one thousand nine hundred and [plaintiff] recover against the [defendant] said appeal; and the defendant having appealed therefrom to the Court of Appeals; and the said Court of Appeals having sent hither its remittitur, filed herein the 19, by which it appears that the said Court of Appeals has [affirmed the said judgment in all things with costs], and has given judgment accordingly, and has remitted the judgment of said Court of Appeals to this court to be enforced according to law; and this court having by an order duly entered herein the day of 19 ordered that said judgment be made the judgment of this court and the plaintiff's costs having been duly taxed at the sum of dollars, [where the costs are tax

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