페이지 이미지
PDF
ePub

$ 1212-1213

JUDGMENT.

243

on

state.

| 1227. Id.; upon motion for new 2 1234. Id.; upon verdict subject trial, heard by the ap

to opinion of court. pellate division of the 1235. Interest on verdict, etc.; supreme court.

to be included in re. 172. Id.; apon trial by court

covery. or referee of the whole 1236. Clerk to keep judgmentissue of fact,

book ; judgment to be 1229, In matrimonial causes,

entered therein. judgment can be ren- 1237. Judgment-roll to be filed; dered only by

the

of what it consists court.

1238. Id.; by whom prepared. 1230. Final judgment upon de. 1239. Time of filing judgmentcision or report award

roll to be noted. ing interlocutory judg. 1240. When ajudgment may be ment, etc.

enforced by execution. 1231. Id.; how final judgment 1241. When a judgment may entered and settled in

be enforced by punishcertain cases.

ment for disobeying it. 1:32. Interlocutory

reference 1242. Real property ; how sold. or inquisition ; how

Effect of conveyance. reviewed.

1243. Security upon sale by 1233. Motion for judgment up.

referee. a special verdict,

1244. Conveyance ; what to etc. $ 1212. (Amd 1877, 1879.) In an action specified in section four hundred and twenty of this act, where the summons was personally served upon the defendant, and a copy of the complaint, or a notice stating the sum of money for which judgment will be taken was served with the summons, or where the defendant has appeared, but has made default in pleaning, the plaintiff may take judgment by default, as follows:

1. If the defendant has made default in appearing, the plaintiff must file proof of the service of the summons, and of a copy of the complaint or the notice ; and also proof, by atfidavit, that the defendant has not appeared. Whereupon the clerk must enter final judgment in his favor.

2. If the defendant has seasonably appeared, but has made default in pleading, the plaintiff must tile proof of the service of the summons and of the appearance, or of the appearance only ; and also proof, by atsidavit, of the default. Whereupon the clerk must enter final judgment in his favor.

If the defendant has made default in appearing or pleading, and the case is not one where the clerk can enter final judgment, as prescribed in either of the foregoing subdivisions of *his section, the plaintiff must apply to the court for judgment, as prescribed in section twelve hundred and fourteen of this act.

$ 1213. Where final judgment may be entered by the clerk, as prescribed in the last section, the amount thereof must be determined as follows:

1. If the complaint is verified, the judgment must be entered for the sum, for which the complaint demands judgment; or, at the plaintiff's option, for a smaller sum ; and if à com. putation of interest is necessary it may be made by the clerk.

2. If the complaint is not verified, the clerk must assess the amount due to the plaintiff, by computing the sum due upon an instrument for the payment of money only, the non-payment of which constitutes a cause of action, stated in the complaint ; and by ascertaining, by the examination of the plaintiff, upon oath, or by other competent proof, the amount due to him for any other cause of action, stated in the com

327.

80.

plaint. If an instrument, specified in this subdivision, has been lost, so that it cannot be produced to the clerk, he must take proof of its loss, and of its contents. Either party may require the clerk to reduce to writing and file the assessment,

and the oral proof, if any, taken thereupon. 20 App. Div. § 1214. (Amd 1877.) Where the summons was person

ally served upon the defendant, within the State, and he has made default in appearing, or where the defendant has appeared, but has made default in pleading; and the case is not one, where the clerk can enter final judgment, as prescribed in the last two sections, the plaintiff must apply to the court for judgment. Upon the application he must file, if the default was in appearing, proof of service of the summons; or, if the default was in pleading, proof of appearance, and also, if a copy of the complaint was demanded, proof of service thereof, upon the defendant's attorney; and in either case, proof, by atsidavit, of the default which entitles him to judgment.

$ 1215. (Am'd 1877.] The court must thereupon render 4 Abb. N...

the judgment, to which the plaintiff is entitled. It may, without a jury, or with a jury, if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it to render the judgment, or to carry it into effect; or it may, in its discretion, direct a reference, or a writ of inquiry, for either purpose; except that where the action is brought to recover damages for a personal injury, or an injury to property, the damages must be ascertained by means of a writ of inquiry. Where a reference or a writ of inquiry is directed, the court may direct, that the report or inquisition be returned to the court for its further action ; or it may, in its discretion, except where special provision is otherwise made by law, omit that direction; in which case, final judgment may be entered by the clerk, in accordance with the report of the referee, or for the damages ascertained by the inquisition, without any further application.

$ 1216. [Am'd 1877, 1895, amendment to take effect Septem6. Civ. Pro. ber 1, 1895.)' Where the summons was served upon the de. 132 N.Y. 363. fendant without the State, or otherwise than personally, if 134 Id. 627. the defendant does not demand a copy of the complaint, or

plead, as the case requires, within twenty days after the service is complete, the plaintiff may apply to the court for the judgment demanded in the complaint. Upon such an appli. cation he must file proof that the service is complete, and proof, by affidavit, of ine defendant's default. The court must require proof of the cause of action, set forth in the complaint to be made, either before the court or before a referee appointed for that purpose; except that where the action is brought to recover damages for a personal injury, or an injury to property, the damages must be ascertained by means of a writ of inquiry, as prescribed in the last section If the defendunt is a nonresident, or a foreign corporation, the court must require the plaintiff, or his agent or attorney, to be examined on outh respecting any payments to the plaintiff, or to any one for his use, on account of his demand, and must render the judgment to which the plaintiff is entitled. But before rendering judgment the court may, in any case, in its discretion, require the plaintiff to file an undertaking to abide the order of the court touching the

30 Abb. N.O. 406n.

$ 1217-1221 JUDGMENT.

245 restitution of any estate or effects which may be directed by the judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of the judgment, in case the defendant or his representative applies andis admitted to defend the action, andsucceeds in his defense.

$ 1217. (Am'd 1877.) A judgment shall not be rendered 134 N. Y. 527. for a sum of money only, upon an application made pursuant 142 N. Y, 152. to the last section, except in an action specified in section six hundred and thirty-five of this act. Where the defendant is a pon-resident, or a foreign corporation, and has not appearer, the plaintiff, upon the application for judgment in such an action, must produce and file the following papers :

1. Proof, by affidavit, that a warrant of attachment, granted in the action, has been levied upon property of the defendant.

2. A description of the property, so attached, verified by affidavit ; with a statement of the value thereof, according to the inventory.

3. The undertaking mentioned in section twelve hundred and sixteen if one has been required.

$ 1218. (Amd 1879.) A judgment by default shall not 19 Hun, 306, be taken against an infant defendant, until twenty days have 16 Misc 294. expired, since the appointment of a guardian ad litem for hin.

$ 1219. (Amd 1879.) A defendant, against whom judg- 21 Hlun, 594; ment is taken, pursuant to the foregoing sections of this 49 14.238. article, is entitled to notice, as follows:

1 Month. L. 1. If he has appeared generally, but has made default in Bul. 29, 30, pleading, he is entitled to at least five days' notice of the time and place of an assessment by the clerk, and to at least eight days notice of the time and place of an application to the wurt for judgment.

2. In a case where an application for judgment must be made to the court, the defendant may serve upon the plaintiff's attorney, at any time before the application for judg. ment, a written demand of notice of the execution of any reference, or writ of inquiry, which may be granted upon the application. Such a demand is not an appearance in the action. It must be subscribed by the defendant, in person, or by an attorney or agent, who must add to his signature his office address, with the particulars, prescribed in section four hundred and seventeen of this act, concerning the office address of the plaintiff's attorney. Thereupon at least five days' notice of the time and place of the execution of the rference, or writ of inquiry, must be given to the defendant, by service thereof upon the person, whose name is subscribed to the demand, in the manner prescribed in this act, for service of a paper upon an attorney in an action.

$ 1220. Where an issue of law and an issue of fact arise, 31 Abb. N.C with respect to different causes of action, set forth in the 46411. complaint, and final judgment can be taken, with respect to one or more of the causes of action, without prejudice to either party in maintaining the action, or a defence or counterclaiin, with respect to the other causes of action, or in the recovery of final judgment upon the whole issue, the court may, in its discretion, and at any stage of the action, direct that the action be divided into two or more actions, as the Case requires.

S 1221. [Am'd 1877.) Where one or more issues of law, and one or more issues of fact, arise in the same action, and all the issues have been tried, tinal judgment upon the whole issue must be taken, as follows :

1. Where an application must be made to the court, for judgment upon the issue last tried, the application must be for judgment, upon the whole issue ; and judgment must be rendered accordingly.

2. Where the action is triable by a jury, and the issue last tried is tried at a term of the court, the application for judg. ment, upon the whole issue, may be entertained, in the discretion of the court, at that term, and with or without notice; if not so entertained, it must be heard as a motion.

3. Where the issue last tried is tried before a referee, his report must award the proper judgment upon the whole issue, unless otherwise prescribed in the order of reference.

$ 1222. [.4m'd 1877, 1879.) Final judgment upon an issue of law, where no issue of fact remains to be tried, and final judgment has not been directed as prescribed in section ten hundred and twenty-one of this act, may be entered upon application to the court, or by the clerk in an action specified in section four hundred and twenty of this act. I § 1223. (Amd 1877.) Upon an application, by either party, to the court, for final judgment, after the decision of an issue of law, as prescribed in the last two sections, the court has the power specified in section one thousand two hundred and fifteen of this act, upon an application for judg. ment by the plaintiff. Where final judgment may be awarded in a referee's report, as prescribed in section twelve hundred and twenty-one of this act, the referee may make a computation, or an assessment, or take an account, or proof of a fact, for the purpose of enabling him to award the proper judgment, or enabling the court to carry it into effect; and he may ascertain and fix the damages, as a jury may do, upon the execution of a writ of inquiry.

$ 1224. (Amd 1877, 1895, amendment to take effect January 1, 1896.) When an order or judgment is wholly or partly affirmed upon an appea, to the appellate division of the supreme court and no issue of fact remains to be tried, the appellate division may, in its discretion, render final judgment, unless it permits the appellant to amend or plead over.

$ 1225. In an action triable by the court, where one or more specific questions of fact, arising upon the issues, have been tried by a jury, judgment may be taken, upon the application of either party, as follows:

1. If all the issues of fact in the action are determined by the findings of the jury, or the remaining issues of fact have been determined by the decision of the court, or the report of a referee, an application for judgment, upon the whole issue, may be made as upon a motion.

2. If one or more issues of fact remain to be tried, judgment may be rendered upon the whole issue, at the term of the court where, or by direction of the referee by whom, they are tried.

$ 1226. Where a reference has been made, to report upon one or more specific questions of fact, arising upon the issue, and the remaining issues have been tried, judgment must be taken upon the application of either party, as prescribed in

section one thousand two hundred and twenty-one of this act. 131 N.Y. 641. $ 1227. [Am'd 1895, amendment to take effect January 1,

1896,) Where a motion for a new trial, made at the first instance at a term of the appellate division of the supreme court is denied, judgment may be taken, as if the motion for à new trial had not been made, after the expiration of four days from the entry of the order, and the service, upon the attorney for the adverse party, of a copy thereof, and notice of the entry; but not before.

§ 1228. [.im'd 1879.) Where the whole issue is an issue of fact, which was tried by a referee, the report stands as a

75 N, Y. 240. decision of the court. Except where it is otherwise expressly 31 141. 140.

30 liun, 154; prescribed by law, judgment upon such a report, or upon the 97 N. Y. 610. decision of the court, upon the trial of the whole issue of fact 12 N. Y State without a jury, may be entered by the clerk, as directed Rep.663. therein, upon filing the decision or report.

$ 1229. In an action to annul a marriage, or for a di- 23 Hun, 230; rorce or separation, judgment cannot be taken, of course, up- 30 Id. '151) on a referee's report, as prescribed in the last section, or 31 1d. 140. where the reference was made as prescribed in section one 60 How. Pr. thousand two hundred and fifteen of this act. Where a refer- 119. ence is made in such an action, the testimony, and the other proceedings upon the reference, must be certified to the court, by the referee, with his report; and judgment must be rendered by the court.

1230. [Amd 1877.) In a case, not provided for in the foregoing sections of this article, where the decision, upon a trial by the court, without a jury, or the report, upon a trial be a referee, directs an interlocutory judgment to be entered, and the party afterwards becomes entitled to a final judgment, an application for the latter may be made, as upon a inotion. And where a judgment requires the appointment of a referee, to do any act thereunder, the referee must be appointed by the judgment or by the court, upon motion, except as otherwise prescribed in the next section.

1231. In an action triable by the court, an interlocu • 5 App. biv. tory judgment, rendered upon a default in appearing or pleaning, or pursuant to the direction contained in a decision or report, may state the substance of the final judgment, to which the party will be entitled. It may also direct, that the final judgment be settled by a judge, or a referee. In that case, final judgment shall not be entered, until a settleinent thereof, subscribed by the judge or referee, is filed. Where an ir terlocutory judgment awards costs, they may be award-, ed generally, without specifying the amount thereof. Where the final judgment is directed to be settled, and the costs have not been taxed, when the settlement thereof

filed, a blank for the amount of the costs must be left in the settleIdent; and the costs must be taxed, and the blank filled up accordingly, by the clerk, when the final judgment is entered.

$ 1232. Where a reference, or a writ of inquiry, directed as prescribed in section one thousand and fifteen, or section one thousand two hundred and fifteen of this act, has been executed, either party may apply for an order, directing a new bearing, or a new writ of inquiry, upon proof, by affidavit, that error was committed, to his prejudice, upon the hearing, or in the report, or upon the execution of the writ, or in the inquisition. In a proper case, the application may be granted, after judgment has been entered. In that case, the judgment may be set aside, either then or after the new hearing, or the execution of the new writ, as justice requires.

$ 1233. A motion for judgment, upon a special verdict, may be made by either party; and inust, in the first instance, be heard and decided, at a terın held by one judge.

535.

« 이전계속 »