OJnrnpU Ham ^rl|Ool ICtbraty Cornell University Library KFN5995.A3L29 V 1 Forms of civil procedure :adaDted to pra 3 1924 022 787 927 % Cornell University M Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022787927 FORMS OF CIVIL PROCEDURE ADAPTED TO PRACTICE AND PLEADING UNDER THE CODE OF CIVIL PROCEDURE OF THE STATE OF NEW TORK, AND UNDER THE CODES, OF OTHER STATES HAVING SIMILAR CODES, WITH FULL NOTES AND REFERENCES TO AUTHORITIES. By WILLIAM LANSING, COUNSBLOB-AT-LAW. Volume I. 1885. BANKS & BROTHERS, Law Publishers, 473 and 475 Broadway, 144 Nassau Street, Albany, N. Y. NeW York. Entered according to act of Congress, in tiie year one thousand eight hundred and eighty-five, by BANKS & BROTHERS, in the office of the Librarian of Congress, at Washington. Contents. vii CHAPTER III. FORMS RELATING TO THE CIVIL JURISDICTION OF THE PRIN- CIPAL COURTS OF RECORD; ORGANIZATION, MEMBERS AND OFFICERS THEREOF; DISTRIBUTION AND DISPATCH OF BUSINESS THEREIN. TITLE I. Forms relating to the Court of Appeals. (Code Civ. Pro., Cb. 3, Tit. 1.) No. 43. Remittitur "from Court of Appeals on judgment of affirmance. 44. Same on judgment of reversal. TITLE II. Forms relating to the jurisdiction of the county courts and removals of causes therefrom. (Code Civ. Pro., Ch. 3, Tit. 5.) No. 45. Certificate of county judge that he is incapable of acting. 46. Affidavit to apply for removal of cause or proceeding to Supreme Court in case of incapacity of county judge. 47. Order of Supreme Court upon proof tbat county judge is incapable of acting in action or proceeding. 48. Affidavit on application for removal of cause for purpose of changing place of trial, under subd. 2 of section 340, Code Civ. Pro. 49. Same, under subd. 3 of section 340, Code Civ. Pro. 50. Order removing action and changing place of trial. 51. Order staying proceedings for purpose of removal of action, etc. 53. Petition for order remitting fine or penalty or forfeiture of a recog- nizance. 58. Order remitting fine or penalty or forfeiture of a recognizance. 54. Petition for remission of fine imposed by court of special sessions or justice of the peace. 55. Order remitting fine pursuant to last petition and discharging prisoner from custody. CHAPTER IV. FORMS RELATING TO LIMITATION OF THE TIME OF ENFORC- ING A CiriL REMEDY; PLEA OF STATUTE OF LIMIT Al IONS. (Code Civ. Pro., Ch. 4, Tit, 3.) No. 56. Answer or reply of statute of limitations. CHAPTER V. FORMS RELATING TO COMMENCEMENT OF AND PARTIES TO AN ACTION. TITLE I. Forms relating to commencement of an action. TITLE II. Forms relating to parties to an action. viii Contents. TITLE I. Article Fibst. Forms of (lie summons and accompanying papers ; forms relating to personal ser- vice of summons and appearance of the defendant. (Code Civ. Pro., Ch. 5, Tit. 1, Art. 1.) No. 57. Summons. 58. Notice to be indorsed upon and served with summons when com- plaint is not served. 59. Notice of retainer and appearance in person or by attorney, and demand of complaint. 60. Notice of object of action and of no personal claim in mortgage fore- closure cases. 61. S_ame notice in other than foreclosure cases. 63. Indorsement on summons of time within which .it must be served. 63. Sheriff's certificate of service of summons and complaint. 64. Same, on infant under fourteen years of age. 65. Same, on lunatic, etc., and his committee. 66. Same, on person designated by resident of the State, during his absence to receive ser\'ice for him. 67. Same, on a corporation. 68. Same, on person designated by foreign corporation for that purpose. 69. Same, where no person is so designated. 70. Same, on difEerent defendants at different times. 71. Certificate of sheriff that defendant evades service of summons. 73. Proof of service in such case. 73. Affidavit of service of summons and complaint by person other than sheriff. 74. Same aflidavit of service on infant under fourteen years of age. 75. Same, on lunatic, etc. , for whom committee has been appointed. 76. Same, on a corporation. 77. Same on person designated by foreign corporation to receive same. 78. Same, on foreign corporation where no person is designated to receive service. 79. Same, on under-sheriff, etc., for sheriff in action for escape. 80. Order of court for service on person other than defendant in certain cases. 81. Order for service under § 428, Code Civil Procedure. 83. Affidavit to obtain order dispensing with service on lunatic. 83. Order dispensing with service on lunatic. 84. Designation by resident of person on whom to serve summons during absence from United States and consent by appointee. 85. Revocation of such designation and consent. 86. Designation by foreign corporation of person on whom to serve sum- mons and consent by appointee. 87. Revocations of such designation by foreign corporation and of such consent. 88. Certificate of change of residence, etc. , by appointee of foreign cor- poration. 89. Admission of service of summons. Contents. ix Article Second. Fbrms relating to substitutes for personal service of summons in special cases. (Code Civ. Pro., CU. 5, Tit. 1, Art. 2.) No. 90. Affidavit to procure order for service of summons on a resident, wlio cannot be f ouij^rt--,^, 91. Order upon such affidavit. 92. Affidavit of plaintiff, or his attorney, to obtain order for service by publication of summons. 93. Affidavit of search and inquiry for defendant. 94. Order for service of summons by publication. 95. Notice to defendant to accompany summons as published. 96. Notice to be served with summons, when service is made without the State. 97. Proof of publication of summons and notice. 98. Affidavit of deposit in the post-offlce, pursuant to order. 99. Affidavit of service on defendant without the State. 100. Notice to defendant of entry of judgment, in case of service by pub- lication. TITLE II. Forms relating to parties to an action. Article First. Forms relating to parties generally. (Code Civ. Pro., Ch. 5, Tit. 3, Art. 1.) No. 101. Order that defendant be designated by his real name, when sued by a fictitious name. 102. Order bringing in party interested on his application. 103. Supplemental summons Article Second. Forms relating to parties prosecuting and defending as poor persons. (Code Civ. Pro., Ch. 5, Tit. 3, Art. 3.) No. 104. Petition for leave to prosecute as poor person. 105. Certificate of counselor at law annexed to above petition. 106. Order granting leave to prosecute action as a poor person. 107. Order annulling leave to prosecute or defend as a poor person. 108. Petition for leave to defend action as a poor person. 109. Order granting leave to defend action as a poor person. Article Third. Forms relating to infant plaintiffs and defendants. (Code Civ. Pro., Ch. 5, Tit. 2, Art. 4.) No. 110. Petition for appointment of guardian for infant plaintiff. 111. Affidavit of person proposed as guardian, as to his ability to answer to infant, etc. 113. Petition for appointment of guardian by infant defendant. X Contents. No. 113. Petition by relative or friend of infant defendant, or by a party to the action, for appointment of guardian. 114. Order of court, or judge appointing guardian for infant defendant. 1 1 5 Same order made upon the application of the infant. 116. Order designating guardian for infant defendant residing in State, but temporarily absent therefrom. 117. Affidavit to procure last mentioned order. 118. Bond by guardian, before receiving property. CHAPTER VI. FOBMS RELATING TO PLEADINGS IN COURTS OF RECORD, INCLUDING COUNTERCLAIMS. TITLE I. The consecutive pleadings in an action. Abticle FrasT. Complaint. (Code Civ. Pro., Ch. 6, Tit. 1, Art. 1.) No. 119. Affidavit to apply for dismissal of complaint, vsrhere not served pur- suant to demand. 120. General form of complaint. 131. Complaint demanding both interlocutory and final judgment in action triable by court. Akticle Second. Demmi'ers ; answers on ground of demurrer, where objection does not appear on face of complaint, etc. (Code Civ. Pro., Ch. fi. Tit. 1, Art. 3.) No. 133. Demurrer to complaint on ground that court has not jurisdiction of the person of the defendant. 133. Same, on ground that court has not jurisdiction of the subject »f the action. 134. Same, on ground that plaintiff has not legal capacity to sue. 135. Same, on ground that another action is pending between same par- ties for same cause. 136. Same, on ground of misjoinder of parties plaintiff. 127. Same, on ground of defect of parties plaintiff or defendant. 138. Same, on ground that causes of action have been improperly united. 139. Same, on ground that the complaint does not state facts sufficient to constitute a cause of action. 130. Demurrer to reply on ground that it is insufficient in law upon the face thereof. 131. Demurrer to answer on ground of insufficiency in law. 133. Demurrer to counterclaim where defendant demands an affirmative judgment. 1 33. Order allowing amendment, etc. , after decision of demurrer. 134. Answer that the court has not jurisdiction of the person of the de- defendant. Contents. xi No. 135. Answer that the court has not jurisdiction of the subject of the action. 136. Answer that plaintifE has not legal capacity to sue. 137. Answer that another action is pending between the same parties for the same cause. 138. Answer of misjoinder of parties plaintifE, 139. Answer that there is a defect of parties plaintiff or defendant. Article Third. Forms relating to answer counUr claims, etc. (Code Civ. Pro., Ch. 6, Tit. 1, Art. 3.) No. 140. Answer containing general and specific denials. 14 1 . Answer setting up new matter as a defense or counterclaim. 142. Answer setting up partial defense. 143. Answer claiming affirmative judgment. 144. Order of severance, whore part of plaintiff's claim is admitted. 145. Admission of counterclaim by plaintiff. 146. Judgment for excess of plaintiff's claim over counterclaim. Article Fourth. Forms relating to reply. (Code Civ. Pro., Ch. 6, Tit. 1, Art. 4.) No. 147. General form of reply. 148. Notice of application for judgment on failure to reply. 149. Order of reference or for writ of inquiry, where no reply is made to counterclaim. 150. Several avoidances to same defense or counterclaim. TITLE II. Forma relating to provisions generally applicable to pleadings. (Code Civ. Pro., Ch. 6, Tit. 3.) No. 151. Verification of pleading by party, or by one of two or more parties, united in interest and pleading together. 153. Same by officer of domestic corporation. 153. Same by person acquainted with the facts, where the people of the State are, or a public officer in their behalf is, a party. 154. Same by foreign corporation, or agent or attorney for the party. 155. Notice of election to treat unverified pleading as a nullity. 156. Demand of copy of account. 157. Verification by party of account furnished on demand, when the pleading is verified. 158. Same by agent or attorney of party. 159. Copy of plaintiff's account, or bill of particulars of plaintiff's claim. 160. Bill of particulars of defendant's counterclaim. 161. Affidavit to obtain order for bill of particulars. 163. Notice of motion for bill of particulars. 163. Order for bill of particulars. xii Contents. No. 164. Complaint on instrument for the payment of money only, by setting forth copy. 1G5. Notice of motion for judgment upon pleading as frivolous. 106. Order for judgment upon pleading as frivolous. 167. Judgment upon pleading as frivolous. 168. Notice of motion to strilie out sham answer or defense. 169. Order striking out answer or defense as sham. 170. Order striking out amended pleading where put in for delay. 171. Notice of motion to strike out of a pleading irrelevant, redundant or scandalous matter. 173. Order striking out allegations of pleading as irrelevant, etc. 173. Notice of motion to make pleading definite and certain by amend- ment. 174. Order requiring pleading to he made definite and certain by amend- ment. CHAPTER VII. FORMS BELATINO TO GENERAL PROVISIONAL REMEDIES IN AN ACTION. TITLE I. Forms relating to arrest, pending the action, and proceedings thereupon. TITLE I. Article Fibst. Forms relating to persons I able to arrest. (Code Civ. Pro., Ch. 7, Tit. 1, Art. 1.) No. 175. Application for discharge from arrest of lunatic, idiot or infant under fourteen years of age. 176. Notice of motion for discharge of lunatic, etc., from arrest. 177. Order discharging lunatic, etc., from arrest. Akticle Second. Fo:ms relating to granting, executing and vacatng or modifying order of arrest, (Code Civ. Pro., Ch. 7, Tit. 1, Art. 2.) No. 178. Afiidavit to procure order of arrest in civil action, where right of arrest depends on nature of action. 179. Same, where right of arrest depends upon facts extrinsic to causa of action. 180. Undertaking on procuring order of arrest. 181. Order of judge for arrest of defendant in civil action. 183. Order of court for arrest of defendant in civil action. 183. Indorsement by plaintiff's attorney upon order of arrest limiting time for arrest. 184. Affidavit to procure discharge of privileged person from arrest. 185. Order discharging privileged person from arrest. 186. Notice of motion to vacate order of arrest, etc. 1 87. Order vacating order of arrest, etc. 188. Afiidavit to procure discharge from arrest, when judgment not duly entered or execution duly issued. Contents. xiii No. 1 89. Order discharging defendant from arrest, pursuant to above affidavit. I'JO. Order discharging defendant from arrest, when judgment has not been duly entered, or execution has not been duly issued. Aeticlb Thied. • R 1 ms relating to discliarge of defendant upon bail or deposit ; justification of the bail aud disposition of tlie deposit. (Code Glv. Pro., Oh. 7, Tit. 1, Art. 3.) No 191. Undertaking to procure discharge from arrest under subdivision 1, section 575. 192. Same under subdivision 3, section 575. 193. Same under subdivision 3, section 575. 194. Notice by plaintiS's attorney of acceptance of bail. 195. Notice of justification of bail in undertaking to discharge from arrest. 196. AQovrance by judge of bail, in defendant's undertaking on arrest. 197. Certificate. by sherilE to defendant, on deposit of amount specified in order. 198. Certificate of county treasurer of payment into court of amount de- posited vcith sheriff. 199. Order on substitution of bail for deposit. 300. Direction by defendant to sheriff, to pay the amount of deposit to third person. Akticlb Foueth. Forms relatirig to cliarging and discharging bail. (Code Civ. Pro., Ch. 7, Tit. 1, Art. 4.) No. 201. Certificate of sheriff on surrender of defendant by his bail. 203. Notice of motion for exoneration of bail after surrender. 203. Order exonerating bail after surrender of defendant. 204. Authority by bail to arrest defendant. 205. Requisition upon sheriff, by bail, upon defendant's surrender by them. 206. Requisition by defendant, upon his own voluntary surrender. 307. Sheriff's certificate of voluntary surrender of prisoner, in exonera- tion of bail. 308. Order exonerating bail, in case of death of defendant, etc. TITLE II. Forms relating to' injunction. Akticlb Fiest. Forms relati g to granting and service of injunction order. (Code Civ. Pro., Ch. 7, Tit. 2, Art. 1.) No. 209. Affidavit to procure injunction order, where right thereto depends on nature of action. 210. Affidavit to procure injunction, general form, where the right thereto depends on extrinsic facts. xiv Co]*TENTS. No. 311. Injunction order to restrain Stale officer or State board from per- formance of duty imposed by statute, etc. 313. Notice of application for last above order. 313. Notice of application generally, for injunction order, and order to show cause why injunction should not be granted. 214. Injunction order when the right thereto depends on nature of action. 315. Same when right thereto depends on extrinsic facts. Article Second. Forms relating to security on injunction. (Code Civ. Pro., Ch. 7, Tit. 2, Art. 3.) No. 316. Undertaking on staying trial of an action by injunction order. 317. Undertaking on staying proceedings in action, after verdict, etc., by injunction order. 318. Order directing payment of money, on procuring injunction order staying proceedings in action after verdict, etc. 319. Undertaking on procuring order to pay to party enjoined an amount deposited in court. 330. Undertaking on staying proceedings by injunction order, after ver- dict in ejectment or dower. 221. General form of undertaking on granting injunction order. 333. Notice of motion for reference, etc., to ascertain damages on in- junction. 333. Order of reference, etc, , to ascertain damages on injunction. 334. Writ of inquiry to ascertain damages sustained by reason of in- junction. 325. Notice to sureties of hearing before referee. 336. Oath to jurors on writ of inquiry. 287. Oath to witness on writ of inquiry. 228. Inquisition pursuant to writ of inquiry. 329. SheriflV return to writ of inquiry. 330. Complaint in suit on injunction undertaking. Abticlb Third. Forms relating to vacating or modifying injunction order. (Code Civ. Pro., Ch. 7, Tit. 2, Art 3.) No, 331. Affidavit on application without notice, to vacate or modify injunc- tion order to other court or judge than the one granting it. 233. Order vacating or modifying injunction order by judge granting same. 233. Same order by judge, other than one granting injimction order, made without notice. 234. Undertaking by plaintiff on vacating or modifying injunction order. 235. Undertaking by plaintiff and same by defendant, on vacating or modifying injunction order. Contents. xv title iii. Forms relating to attachment of property. Abticle First. Forms relating to cases where a warrant of attachment may be granted and pro- ceedings fur granting the same. (Code Civ. Pro., Cli. 7, Tit; 3, Art. 1.) No 236. Affidavit for attacliroent against property of non-resident defendant in action for breach of contract. 237. Same, in action other than for breach of contract. 338. Affidavit for attachment against property of a foreign corporation. 239. Affidavit for attachment against property of absconding, etc. , de- fendant. 240. Affidavit for attachment in action against public officer, etc., for peculation. 241. Undertaking on granting warrant of attachment. 243. Warrant of attachment. Article Second. Forms relating to execution of the warrant pending the action. (Code Civ. Pro., Ch. 7, Tit. 3, Art. 3.) ' No. 843. Notice of attachment of real estate. 244. Notice of attachment of personal property not capable of manual delivery. 245. Sheriff's certificate to be indorsed on copy attachment served on debtor. 246. Certificate of defendant's interest in property, on demand of sheriff, under attachment. 247. Sheriff's certificate of refusal to certify as to property sought to be attached. 248. Affidavit of refusal to give certificate of property, or of making false or insufficient certificate. 249. Order for examination of person refusing to give certificate, or making false or insufficient certificate. 250. Undertaking on attachment of goods on vessel to procure delivery. 251. Inventory and appraisal of property attached. 253. Order for sale of perishable property and live animals attached by sheriff. 253. Undertaking where attached property is claimed by third person. 254. Affidavit to obtain appraisal of domestic or foreign vessel held under attachment. 255. Order appointing appraisers to value domestic or foreign vessel. 256. Valuation of foreign or domestic vessel, or interest therein, attached by sheriff. 257. Undertaking to discharge domestic vessel from attachment. 258. Order discharging vessel from attachment. 359. Undertaking by plaintiff, in case of attachment of foreign vessel, to prevent its discharge. Stvi Contents. 260. Order discharging foreign vessel from attachment, on failure of plaintiff to give undertaking. 261. Affidavit of defendant on application for the foreign vessel or iis proceeds. 262. Undertaking of defendant to obtain possession of vessel, after dis- charge, or vacating of attachment. 263. Order for sale of vessel where undertaking of the plaintiff is not dis- charged, or where he is not indemnified. 264. Order for sale of vessel, where proper undertaking is not executed by claimant. 265. Order directing sale of vessel, on application of joint owner. 266. Order directing sheriff to pay into court the proceeds of property sold, or demands collected under attachment. 267. Order directing sheriff to pay over surplus, on application of de- fendant or his assignee. 263. Order granting leave to plaintiff to bring action in name of himself and sheriff, to recover property attached or value thereof. 269. Order granting leave to plaintiff in attachment suit, to join in actiou brought by sheriff. 270. Order requiring sheriff to return inventory of property attached by him. Article Third. Forms relating to vacating or modifying warrant of attaclimerd, and discharging tlie attacTunent. (Code Civ. Pro., Ch. 7, Tit. 3, Art. 3.) No. 271. Notice of motion to vacate or modify attachment, or to increase security. 272. Undertaliing by defendant, on application to discharge attachment. 273. Undertaking where application is made by some, but not all, c£ several defendants. 274. Notice of motion to discharge attachment upon giving security. 375. Notice of exception to sufficiency of sureties in undertaking, given on discharge of attachment. 376. Affidavit by partner for discharge of his interest in partnership property from attachment. 377. Undertaking on application by partner for discharge of attachment from partnership property. 278. Order of reference to take proof of value of attached property. 279. Notice of motion for discharge of attachment. Article Fourth. Forms relating to cases where there are two or more warrants against same defendant, (Code Civ. Pro., Ch. 7, Tit. 3, Art. 4.) No. 280. Order permitting junior attachment creditor to give undertaking to prevent release of foreign vessel. 281. Order granting leave to junior attaching creditor to commence action jointly with the sheriff. Contents. xvii Article Fifth. Foi-ma rdiiting to proceedings ajUrjudymeiU m attachment suit, and to rights of parties a/iU duties, of tue skenjf aficr warrant is vacated or uitacUineitt dis- cliarged. (Code Civ. Pro.. CU. 7, Tit. 3, Art. 5.) ^Tl). 383. Petition for sale by siieriji ol ilaOcs aud things iu action under attiiciimeiii. 383. Aifidavit di rfuerii' tiooj.up.uiyia^- List mentioned petition. 381. Notice of appiioauou oj auunu. j.ur buie oi aiiuL-ned debts and things in aCuion. 385. Order directing sheriil" to sell debts and things in action. 388. Affidavit of defendant on application to be substituted for sheriif in suit on attached demand. 387. Order substitnting defendant in suit brought by sheriff, or by sheriff and plaintiff jointly, for property attached. 38S. Affidavit to procui-e order cancelling notice attaching real properly. 889. Order cancelling notice attaching real property. TITLE IV. Forms relating to other provinonal remedies. Article First. Forms relating to receivers. (Code Civ. Pro., Ch. 7, Tit. 4, Art. 1.) No. 390. Notice of application for appointment of receiver. 291. Order to show cau-ie why a receiver should not be apjjointed. 393. Order appointing receiver. 393. Notice of motion for reference to appoint receiver., 394. Order of reference to appoint receiver. 395. Summons to attend reference to appoint receiver. 396. Proposal of names to referee for receiver. 397. Referee's report of appointment of receiver. 398. Notice of motion to nominate receiver. 399. Order that a receiver be appointed, and for a reference to nominate a suitable person. 300. Referee's report nominating receiver. 301. Order confirming report made by referee, and appointing receiver. 303. Bond of receiver. 303. Order of reference to appoint a receiver in creditor's suit. Article Second. Forms relating to depo'dt, delivery or conveyance of properly. (Code Civ. Pro., Ch. 7, Tit. 4, Art. 3.) No. 304. Notice of motion to compel a deposit in court of money or property. 305. Order for payment or deposit in court of money or property. 300. Order requiring sheriff to take and deposit monejr or other personal property. xviii Contents. CHAPTER VIII. FORMS BELATINO TO MIHGELLANEOUS INTERLOCUTORY PRO- CEED Ii\G8 AND REGULATIONS OF PRACTICE. TITLE I. Forms relating to tender and other offers and requests to the adverse party. (Code Civ. Pro., Cli. 8, Tit. 3.) No. 307. Notice of payment into court of amount tendered by defendant. 308. Offer by defendant to liquidate damages conditionally 30D. Acceptance by plaintiff of ofier to liquidate damages. 310. Offer by defendant to allow judgment to be taken against him. 311. Notice of acceptance by plaintiff of offer of aefondant. 312. Notice of acceptance by defendant of plaintiff's offer of judgment. 313. Judgment for plaintiff on filing defendant's offer and acceptance. 314. Offer by plaintiff when defendant sets up a counterclaim. 315. Judgment on acceptance by defendant of offer of plaintiff. TITLE II. Forms relating to proceedings upon tlie death or disdbHiiy of a party, or ihe transfer of his interest. (Code Civ. Pro., Ch. 8, Tit. 4.) No. 316. Affidavit on motion to continue action in name of representative of deceased party sole plaintiff or defendant. 317. Affidavit on motion to continue action by successor in interest of deceased plaintiff. 318. Notice of motion for leave to continue action. 319. Order continuing action in name of represenfiitive or successor in interest of sole plaintiff. 320. Order continuing action in name of representative of sole defendant. 321. Order in case of death of one of several defendants jointly liable. 332. Order directing abatement of action after death of plaintiff lunless continued. 338. Order on death of public officer, receiver, trustee, etc. TITLE III. Forms relating to motions and orders generally. (Code Civ. Pro., Ch. 8, Tit. 5.) No. 334. Notice of motion, general form. 335. Order to show cause, general form. COJSTTJiNTS. xiX TITLE IV. Forms relating to miscellaneuus practice regulations. Article First. Forms relating to general regulations respecting time. (Code Civ. Pro., Ch. 8, Tit. 6, Art. 1.) No. 328. Order enlarging time withiin wliich proceeding in action must be taken. 337. Order after expiration of time for proceeding, allowing it to be taken. 328. Order allowing appeal to be taken by heir, devisee or personal rep- resentative in certain cases. Article Second. Forms relating to service of papers. (Code Civ. Pro., Ch. 8, Tit. 6, Art. 3.) No. 329. AflBdavit of personal service of notice or other paper in action on party or attorney. 330. Affidavit of service by mail of paper in action on party or attorney. 331. Affidavit of service on attorney during his absence from his office. 33-i. Affidavit of service on party at his residence. 333. Affidavit of service on county clerk for non-resident party. Article Third. Forms relating to discovery of hooks and papers. (Code Civ. Pro., Ch. 8, Tit. 6, Art. 4.) No. 334. Petition for the discovery of book, document or other paper. 335. Order to sIlow cause why discovery or inspection should not be allowed. 336. Affidavit to procure order vacating order to show cause why dis- covery should not be allowed. 337. Order vacating order to show cause why discovery should not be allowed. 338. Order on return of order to show cause why discovery should not be allowed. 339. Certificate of inspection by referee. Article Fourth. Forms relating to bonds and undertakings generally. (Code Civ. Pro., Ch. 8, Tit. 6, Art. 5.) No. 340. Bond in action or legal proceeding, general form. 341. Undertaking in action or legal proceeding, general form. 343. Order granting leave to prosecute bond or undertaking, executed to people or public officer for benefit of party or person interested. Article Fifth. Forms relating to eonsol'dating causes, interpleader, dismissal of complaint for neglect to serre summons or to proceed, etc. (Code Civ. Pro., Ch. 8, Tit. 6, Art. 6.) No. 343. Affidavit to move for consolidation of aetions. XX Contents. No. 344. Order consolidating actions. 345. Notice by plaintiff of consolidation of actions. 346. Affidavit to obtain order of substitution of claimant as defendant. 347. Notice of motion to substitute claimant for defendant. 348. Order substituting claimant and discharging defendant. 349. Order dismissing complaint for neglect to serve summons upon some of the defendants. ^ 350. Affidavit on motion to dismiss complaint for failure to proceed in action. 351. Order dismissing complaint for failure to proceed in action. 353. Notice of motion for trial of issues by jury. 353. Order for trial of issues by jury. 354. Order referring to referee the settlement of issues. 855. Report of master settling issues and questions to be tried. CHAPTER IX. FORMS RELATING TO EVLDENOE. TITLE I. Forms relating to compelling the attendance and testimony of a witmss. (Code Civ. Pro., Ch. 9, Tit. 3.) No. 356. Affidavit of service of subpoena. 357. Subpoina to witness. 358. Subpoena ticket. 359. SubpcBna and ticket with duces tecum clause. 330. Affidavit to procure warrant to apprehend defaulting witness. 301. Warrant for apprehension of witness. 363. Warrant for commitment of witness for failure to testify in cases arising under section 851, Code Civ. Pro. 363. Order dischargiag witness, or other person, from improper arrest. 334, Affidavit to procure discharge of witness from arrest. 365. Affidavit to be made by witness on request of sherifE. TITLE II. Forms relating to depositions. Article First. Forms relating to depositions taken and to be used witliin the State. (Code Civ. Pro., Ch. 9, Tit. 3, Art. 1.) No. 366. Affidavit to obtain order for examination of a party, etc. , in pend- ing action. 307. Affidavit to obtain order for examination of person who expects to be a party to action. 368. Oi'dcr for examination of party, etc., before trial. 369. Order for examination of person who expects to be a party to an action, etc. 370. AfBdavit of service of order for examination of party, etc. Contents. xxi No. 371. Stipulation for taking of deposition. SIZ. Deposition of party, or expected party, and return by judge or referee. 373. Affidavit to obtain order to take deposition or affidavit to be used on motion. 374. Order appointing referee to take affidavit to be used on motion. Article Second. Forms relating to depositions, taken without the State, for use within the State. (Code Civ. Pro., Oh. 9, Tit. 3, Art 3.) No. 375. Affidavit to obtain commission for examination of witness. 376. Affidavit for commission in case of default. 377. Affidavit for coiiimission after judgment, where necessary to carry the judgment into effect. 378. Affidavit for commission under subdivision three, section 888, Code Civil Procedure. 379. Affidavit for commission under subdivision four, section 888, Code Civil Procedure. 380. Notice of motion for commission. 381. Order for a commission. 383. Commissicn to examine witness out of the State. 383. Interrogatories to be annexed to commission. 334. Cross-interrogatories to be annexed to commission. 385. Notice of settlement of intexTogatories. 386. Order for commission to issue, to examine whollj^ or in part, on oral questions. 337. Commission to examine v/itnesses wholly, or in part, on oral questions. 338. Affidavit to procure open commission, or for oral examination, or to take deposition. 389. Open commission to examine witness. 390. Notice of examination upon oral questions, and of taking deposition. 391. Order for open commission or taking deposition. 393. Affidavit of agent, or of party receiving from agent, by whom com- mission or deposition is returned. 393. Stipulation that commission issue. 394. Notice of motion for suppression of commission. 395. Order for the suppression of a commission.. 396. Affidavit for commission, where the witness does not understand the English language. 397. Order for commission, where witness does not understand the En- glish language. 398. Letters rogatory. Article Third. Forms relating to cLposHions, taken^within llie State, for use without the State. (Code Civ. Pro., Ch. 9, Tit. 3, Art. 3.) No. 399 Subpoena for attendance of witnesses before commissioner in suit pending in foreign State or country. 400. Affidavit to obtain subpoena in suit in foreign court, where no com- mission has been issued. xxii Contents. No. 401. Subpoena of judge or justice of the peace in foreign suit, where no commission lias issued. TITLE III. Forms relating to documentary ev 'dence. (Code Civ. Pro., Ch. 9, Tit. 4, Art. 1.) No. 403. Certificate by officer having custody of paper that it cannot be found. 403. Notary's certificate of presentment, etc. , of note, etc. 404. Notary's certificate of protest of bill for non-acceptance. 405. Affidavit to prevent notary's certificate of presentment, etc., being presumptive evidence. CHAPTER X. F0BM8 RELATING TO TBIAL8. TITLE I. Akticlb Fibst. Forms rela'ing to noticing action for trial, and placing same upon calenda/r. (Code Civ. Pro., Ch. 10, Tit. 1, Art. 1.) No. 406. Notice of trial at circuit or special term. 407, Notice of trial before referee. 40^. Note of issue. AeTICLB SECOND. Forms relating to place of trial. (Code Civ. Pro., Ch. 10, Tit. 1, Art. 3.) No. 409. Demand by defendant for change of place of trial to proper county. 410. Consent by plaintiff's attorney to change of place of trial to proper county. 411. Affidavit to procure change of place of trial to proper county after demand. 413. Affidavit to procure change of place of trial for convenience of witnesses. 413. Affidavit to changg place of trial to secure an impartial trial. 414. Notice of motion to change place of trial. 415. Order to show cause why place of trial should not be changed with stay of proceedings. 416. Affidavit to prevent change of place of trial. 417. Order changing place of trial. Article Thikd. Forms relating to exceptions, ease and motion for a new trial. (Code Civ. Pro., Ch. 10, Tit. 1, Art. 3.) No. 418. Exceptions to ruling of court or referee. Contents. xxiii No. 419. Case (without exceptions) on appeal from judgment, rendered upon verdict of jury. 430. Case (containing exceptions) on appeal from judgment, rendered on trial by jury. 431. Case and exceptions, on appeal from judgment, rendered upon re- port of referee or decision of the court. 433. Notice to be indorsed on case. 433. Bill of exceptions. 434. Amendments proposed to case or exceptions. 435. Notice of settlement of case, etc. 438. Notice of motion for a new trial. 43?. Order granting or denying motion for a new trial. 433. AiHdavit to move for new trial on the gi'ound of surprise. 439. Affidavit to move for new trial on the ground of newly discovered evidence. 430. Order for time to prepare case with stay of proceedings. TITLE II. Forma relating to trials without a jury. (Code Civ. Pro., Ch. 10, Tit. 3.) No. 431. Decision of judge on trial by the court. 433. Order of court upon trial of issues of law. 433. Stipulation referring action. 434. Order appointing referee pursuant to stipulation. 435. Notice of motion for reference. 436. Affidavit to move for compulsory reference. 437 Order of reference, where examination of long account is involved. 438. Affidavit to oppose motion for refei'ence. 439. Oath of referee. 440. Waiver of referee's oath. 441. Subpoena before referee. 443. Attachment against vsdtness for not obeying a subposna. 443. Referee's report on trial of issues of fact. 444. Referee's report on trial of demurrer. 445. Requests to coui't or referee to find upon facts and law. TITLE in. Forms relating to trial jurors. Article rmsT. Forms relatiTig to striking and procuring a special jury, and procuring a foreign jury. (Code Civ. Pro., Ch. 10, Tit. 3, Art. 4.) No. 446. Notice of motion for struck jury. 447. Order for striking special jury. 448. Notice of striking a special jury when ordered by the court. xxiv Contents. No. 449. County clerk's or commissioners list of special jurors to tie delivered to the sherifi. 450. Notice by sheriff, who is directed to .summon foreign jury, to the clerlv or commissioner of jurors of the county. 451. Order for a foreign jury. TITLE IV. Wwrms relating to (rial, by jury. Abticle Fikst. Forms relating tj the 'cerdict. (Code Civ. Pro., Ch. 10, Tit. 5, Art. 3.) No. 452. Clerk's minutes of trial. 453. Same, upon verdict, subject to the opinion of the court. 454. Same upon special verdict. 455. Judgment upon verdict. CHAPTER XI. FORMS BELATINO TO JUDGMENTS. TITLE I. Article Fikst. Forms relating to general provisions mnaei'uing judgments. (Code Civ. Pro., Ch. 11, Tit. 1, Art. 1.) \.^o. 456. Final judgment for plaintiff, general form, for recoverv of money. ^ 457. Final judgment, general form, other than upon defaults for general relief, for plaintiff or defendant. 45?. Order of severance of an action against several defendants. Article Second. Forms relating to mode of talcing and entering a judgment. (Code Civ. Pro., Ch. 11, Tit. 1, Art. 2.) No. 459. Affidavit of default on motion for judgment. — 460. Notice of ajjplication to the court for judgment on default. 461. Notice of assessment of damages by the clerk on default. 463. Final judgment, upon default of defendant, in actions specified in section 420, Code Civil Procedure. 463. Order for judgment on application to the court. 404. Inquisition on writ of inquiry. 465. Writ of inquiry. 466. Demand by defendant of notice of execution of writ of inquiiy. 467. Notice of execution of writ of inquiry. 468. Notice of assessment, computation, etc., by referee. 469. Judgment upon application to the court on default. 470. Order of reference, on application for judgment, after service by publication, etc. Contents. ' xxv No 471. Affidavit, on motion for judgment, after service by publication. 4.T2. Referee's report, on application for iudgment, after service by pub- lication. 473. Undertaking, on application for judgment, wliere summons is served by publication. 474. Order for judgment in case of service by publication, etc. 475. Judgment wbere summons is served by publication. 476. Order of severance of action into two or more actions. 477. Order for final judgment, upon demurrer, where decision does not direct final judgment. 478. Pinal judgment upon demurrer. 479. Judgment upon report of referee, or decision of court on trial of issues. 480. Notice of motion for confirmation of report of referee, etc., in ac- tion for divorce. 481. Same notipe where husband is plaintiff. 482. Judgment for limited divorce, upon referee's report. (See form No. 816 ) 483. Judgment of absolute divorce, on report of referee. (See form No. 811.) 484. Interlocutory judgment, upon decision of demurrer. Article Third. Forms relating to lien and salisf action of a judgment, discharge of lien, etc. (Code Civ. Pro., Ch. 11, Tit. 1. Art. 3.) No. 485. Notice of levy upon real property, or chattel real, after ten years from time of filing judgment roll. 486. Affidavit on motion to exempt real property from lien of judgment pending appeal. 487. Notice of motion for order exempting real property, etc, from lien of judgment pending appeal. 483. Order suspending lien of judgment upon appeal. 4S9. Satisfaction of judgment. 490. Notice of motion for cancellation arui discharge of judgment, after discharge of debtor in bankruptcy. 491. Affidavit on motion for cancellation of judgment, after discharge in bankruptcy. 493. Order cancelling and discharging judgment, after discharge of debtor in bankruptcy. TITLE II. Farms relating to judgments taken without process. Article Fikst. Forms relating to confession of judgment. (Code Civ. Pro., Ch. 11, Tit. 2, Art. 1.) No. 498. Statement on confession of judgment without action. 494. Judgment entered by confession. 495. Bill of costs on entry of judgment by confession. K xxvi Contents. Abticle Second. Foi'ms relating to submission of controcersy on facts admitted. (Code Civ. Pro., Ch. 11, Tit. 2, Art. 2.) No. 498. Statement on submission of controversy without action. 4'J7. Order for judgment upon submission of controversy without action. 498. Judgment upon submission of controversy without action. TITLE III. Forms relating to vacating or setting aside a judgment for irregularity or error in fact, etc. (Code Civ. Pro., Ch. 11, Tit. 3.) No. 499. Notice of motion to set aside a final judgment for irregularity. 500. Notice of motion to set aside judgment for erfor in fact. 501. Notice of motion to set aside a regular judgment entered by default. 503. Order to show cause why judgment should not be set aside, etc. 503. Order setting aside judgment, etc., and directing restitution. CHAPTER XII. FORMS RELATING TO APPEALS SPECIFIED IN CEAPTEB TWELVE OF CODE OF CIVIL PROCEDURE. TITLE I. Forms relating to general protisiims concerning appeals provided for in chapter twelve of Code of Civil Procedure. (Code Civ. Pro., Ch. 12, Tit. 1.) No. 504. Affidavit to procure order of substitution of executor, etc, on death of party, where adverse party has died before appeal was taken. 505. Order substituting;, executor, etc., of deceased party as respondent on appeal, where adverse party has died before appeal was taken. 506. Affidavit to procure order to show cause (No. 507) why judgment, etc. , should not be reversed, etc. 507. Order to show cause why judgment, etc. , should not be reversed, etc., where party to appeal dies and order of substitution is not made within three months after such death. 508. Order on return of order to show caxise (No. 507) why judgment, etc., should not be reversed, etc. 509. Affidavit to obtain order substituting representative of deceased party to appeal. 510. Order substituting representative of deceased party to appeal. 511. Notice of appeal from final judgment or order. 512. Notice of appeal from judge's order. 513. Notice of appeal to the Court of Appeals, general form. 514. Notice of appeal to the Court of Appeals from order granting new trial. Contents. xxvii No. 515. Affidavit on applicatioa to serve notice of appeal where attorney is dead and respondent cannot be found in liie btate. 516. Ortler directing as to manner of service of notice of appeal upon respondent, -where he cannot be found in the State. 517 Affidavit to procure order for entering of order made by judge out of court. 518. Order that judge's order made out of court be entered. 519. Order vacating judge's order on proof of non-compliance with order directing it to be entered. 530. Waiver of security on appeal. 5il. Notice of deposit in lieu of undertaking on appeal. 52J. Order for new undertaking where sureties are insolvent. SiS. Notice of motion that appellant file new undertaking. 524. Notice to appellant's attorney of entry of judgment or order of affirmance, before suit on undertaking. 535. Affidavit to obtain order discharging levy under execution, where appeal has been taken and security given. 536. Notice of motion to discharge levy under execution, where appeal has been taken and security given. 537. Order discharging levy under execution, where appeal has been taken and security given. 528. Notice of motion to dismiss appeal. 529. Order dismissing appeal on motion. 530. Order on decision of appeal from order. 531. Order affirming judgment on appeal. 533. Judgment of affirmance on appeal. 533. Judgment of reversal on appeal. 531. Judgment dismissing appeal. 535. Order of Supreme Court upon remittitur from Court of Appeals affirming judgment. 536. Judgment upon remittitur from Court of Appeals affirming judg- ment. TITLE II. Forms relating to appeals to the Court of Appeals, and to appeals to the General Term of the Supreme Courior of a city court. TITLE III. Forms relating to appeals to the Supreme Court from an inferior court. (Code Civ. Pro., Ch. 13, Tits. 3, 4.) No. 537. Notice of entry of order to limit time of appeal therefrom to Court of Appeals. 538. Undertaking to stay proceedings on appeal from judgment or order, directing the payment of money. 539. Undertaking on appeal from judgment or order, directing the pay- ment of money in fixed installments.' 540. Undertaking on appeal from judgment or order for recovery of a chattel or assignment or delivery of property. 541 . Undertaking on appeal from judgment of foreclosure and sale. XXviii COH'TENTS. No. 543. Undertaking on appeal from judgment or order for the possession of real property, etc. 543. Notice of exception to sureties in undertaking on appeal. 544. Notice of justiilcation of sureties in undertaking given on appeal 545. Notice of allowance of sureties. 546. Allowance by judge of sureties after justification. 547. Undertaking ou appeal from order, directing payment of money, with stay. 543. Affidavit to obtain stay of proceedings upon appeal from order, etc. 519. Notice of motion for stay of proceedings on appeal from order, etc. 550. Order staying proceedings on appeal from order, etc. 551. Notice of entry of judgment or order to limit time for appeal. TITLE IV. Forms relating to appeals from determinations in special proceedings. (Code Civ. Pro'., Ch. 13, Tit. 5.) No. 553. Notice of aijpeal from order made in a special proceeding. CHAPTER XIII. FOBMS BELATINO TO EXECUTIONS. TITLE I. Forms relating to executions, time and manner of issuing same, and to officers executng them. (Code Civ. Pro., Ch. 13, Tit. 1.) No. 553. Order directing issuing of execution against sheriflE to person othei than coroner. 55 1. Bond of person to whom execution against sheriff is directed. 55). Clerk's certificate of filing bond by pa-rty lo whom execution against sheriff is to be directed. 5.')6. Execution against property, general form. 5.j7 Execution against property on judgment of justice of the peace, docketed with county clerk. 558. Execution against property, when warrant of attachment has been levied by sheriff. 559. Execution against real or personal property in the hands of an executor, etc. 560. Indorsement on execution against executor or administrator. 561. Execution under .<;ubdi vision 1 of section 1731, Code Civ. Pro. 5fi3. Execution for the delivery of possession of a chattel and to satisfy a sum contingently awarded against the judgment debtor. 563. Execxition against the person. 564. Execution for the delivery of possession of real property or a chattel, with damages. 565. Affidavit on motion for leave to issue execution. 566. Notice of motion for leave to issue execution. Contents. xxix No. 567. Order to show cause why execution should not issue. 568. Order granting leave to issue essecution. 569. Notice of motion for leave to issue execution against property of deceased judgment debtor. 570. Atfidavit on motion for leave to issue execution against property of deceased judgment debtor. 571. Order of court granting leave to issue execution against property of deceased judgment debtor. 573. Petition to surrogate's court for leave to issue execution against property of deceased judgment debtor. 573. Decree of surrogate's court granting leave to issue execution against property of deceased judgment debtor. 574. Indorsement upon execution against the survivors of several judg- ment debtors. 575. Order appointing person to proceed upon execution where the sheriff is dead and there is no under-sheriff. TITLE II. Forms relatiig to enforcing execution against property, exemption, sale, redemp- tion, etc. Abticle First. Forms relating to property exempt from lery and sale. (Code Civ. Pro., Ch. 13, Tit. 2, Art. 1.) No. 576. Notice to exempt burial lot from execution. 577. Notice of homestead exemption. 578. Complaint in judgment creditor's action to procure a judgment directing sale of property exempted as a homestead. 579. Notice cancelling exemption. Article Second. Foi ms relating to lien of an execution upon personal property, levy upon and sale of personal property, etc. (Code Civ. Pro., Ch. 13, Tit. 3, Art. 3.) •No. 580. Affidavit on application for order discharging personal property of firm from levy. 581. Notice of jnotion for release from levy of personal property of part- nership. 583. Order releasing personal property of partnership. 588. Order to show cause why partnership property should not he re- leased from levy. 584. Order on return of order to show cause why partnership property should not be released from levy. 585. Undertaking to obtain release of partnership property from levy. 586. Inquisition of jury upon claim to property levied on. 5 7. Undertaking to prevent relinquishment of levy upon property after inquisition by sheriff's jury, XXX COKTENTS. No. 588. Affidavit to move for .substitution of indemnitors for sheriff. 589. Order substituting indemnitors as defendants in place of sheriff. 590. Order when indemnity related to a part only of the property levied upon. 591. Order where action is brought against the sheriff and the indemni- tors, etc. 592. Notice by sheriff to indemnitors of commencement of action. 593. Notice of sale of personal property by sheriff under execution. Article Thied. Forms relating to sale, redempp'on and conveyance of real proj:eriy, rights and lia unties of persons interested. (Code Civ. Pro., Ch. 13, Tit. 2, Art. 8.) No. 594. Direction to be indorsed on execution issued to county where roort- gaged property is situated, where judgment is for debt secured by mortgage. 595. Notice of sale by sheriff of real estate under execution. 596. - Sheriff's certificate of sale of real property. 597. Affidavit to obtain order to prevent waste. 598. Order to prevent waste. 599. Affidavit to obtain order to show cause why party should not be punished for violation of the order. 600. Order to show cause why person violating order should not be pun- ished for contempt. 601. Warrant to sheriff. 602i Undertaking to supersede warrant. 603. Order superseding warrant and discharging wrong-doer. 604. Certificate of satisfaction of mortgage under which redemption is made. 605. Certificate of satisfaction of judgment under which redemption is made. 606. Affi'!avit of amount due on judgment. 607. Verification of assignment of judgment or mortgage. 60-*. Affidavit of amount due on mortgage. 609. Sheriff's certificate on redemption by judgment debtor, his grantees, etc. 610. Sheriff's certificate of redemption by a junior judgment creditor. 611. Sheriff's certificate of redemption by a senior judgment creditor. 612. Sheriff's certificate on redemption by a mortgagee. 613. Sheriff's deed on sale under execution. AeTICLE FotTETH. Forms relating to remedies for failure of title, and to enforce contribution. (Code Civ. Pro., Ch. 13, Tit. 2, Art. 4.) No. 614. Complaint in action to recover purchase money when purchaser is evicted. 615. Complaint in action for contribution by one of two or more judg- ment debtors, Contents. xxxi No. 616. Complaint in action for contribution by heir, devisee, etc., of joint judgment debtor, who has redeemed from sale. 617. ACidavit by joint judgment creditor or redeeming creditor to pre- serve lien of judgment. 618. Notice to county clerk. 610. Affidavit by heir, etc., of judgment debtor, who has redeemed a portion of premises sold to preserve lien. 630. Entry by clerk upon docket to preserve lien. CHAPTER XIY. FORMS BEL ATING TO SPECIAL PROVISIONS OF CODE OF CIVIL PROCEDURE, REGULATINO ACTIONS RELATING TO PROP- ERTY. TITLE I. Article Piest. Forms relating to actions to recover real property. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 1.) No. 621. Complaint in action for the recovery of real property (No. 1). 623. Same (No. 2). 633. Same (No. 8). 634. Complaint for recovery of real estate by grantee in the name of his grantor of land held adversely. 635. Complaint for recovery of real property held under lease in fee, when right of entry is reserved for want of distress. 626. Notice of intention to re-enter. 637. Notice of motion for restoration to possession. 6'28. Affidavit on application to the court for delivery of property. 639. Order directing delivery of property. 630. Affidavit on motion for order directing plaintiff's attorney to pro- duce his authority. 631. Order requiring plaintiff's attorney to produce evidence of his authority to commence action. 633. Evidence of attorney's authority to commence action for recovery of real property. 633. Order dividing action for real property. 634. Verdict in action for recovery of possession of real property. 635. Order dividing action on death of a party. 636. Affidavit on motion for division of action, where different parties succeed to the rents and profits or liability therefor and to the real estate. 637. Order dividing action where party dies and different persons suc- ceed to his liability for rents and profits and to his interest in the property. 638. Affidavit on application for new trial in ejectment suit. 639. Notice of motion for order granting new trial, etc. 640. Order granting new trial on application of party against whom judgment was rendered, xxxii Contents. Aktiolb Second. Foi'ms rulaling to action for partiiion. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 2.) No. 641. Affidavit on application to surrogate for leave to bring partition action by infant. 643. Order directing partition suit to be brought by infant. 643. Bond of guardian ad iiiem in partition suit. 644. Complaint in action for tlie partiiion of real property held under devise containing provisiona for trust estate and remainders. 645. Complaint in action for partition of real pi-operty among heirs-at-law 616. Notice to be annexed to summons lerved by publication upon un- known owners. 647. Affidavit to move for reference in partition suit, where a defendant has made default, or a party is an infant, etc. 648. Notice to parties who have appeared of motion for order of reference. 649. Order of reference where defendant has made default, or is an infant, etc. 650. Referee's report as to title, etc. 6j1. Interlocutory judgment in partition suit. 6'i2. Interlocutory judgment where partial partition is adjudged. 6u3. Oath of commissioners. 654. Report of commissioners in partition. 655. Report of commissioners that sale of property, or of some part thereof, is necessary. 656. Final judgment upon report of conimissioners making actual partition. 657. Order modifying interlocutory judgment, on report of commis- sioners that sale is necessary. 658. Notice by referee to creditors to prove liens before him. 659. Affidavit on ajsplication by party for money paid into court by referee. 660. Notice of application to the court for moneys. 661. Affidavit of service upon owner of incumbrance of notice of appli- cation by owner for moneys. 663. Consent of party to accept gross sum in lieu of dower. 663. Release by married woman of inchoate dower right to her husband. 664. Referee's report of sale in partition suit. 665. Pinal judgment in partition suit, on confirmation of referee's report of sale. 666. Affidavit to move to substitute successor in interest as a defendant on death of one of two or more plaintiffs or defendants in partition. 667. Order substituting successor in interest as a party defendant, in case of death of one of two or more plaintiffs or defendants. 668. Petition of general guardian of infant, or committee of lunatic, etc., for authority to agree to partition. 669. Notice of motion for authority to agi-ee to partition. 670. Order granting leave to agree to partition. 671. Or^er to show cause whjr the application should not be granted, Contents. xxxiii No. 672. Order on return of order to show cause. 673. Referee's report as to merits of application for authority to make partition. 674. Order upon referee's report. Article Thibd. Forms relating to action for dower. (Code Civ. Pro., Ch. .14, Tit. 1, Art. 3.) No. 675. Complaint in action for dower against heirs-at-law in possession. 676. Complaint in action for damages against lieir who has aliened land, after recovery of dower. 677. Order for interlocutory judgment for admeasurement of dower. 678. Interlocutory judgment for admeasurement of dower. 679. Oath of commissioners or referee. 680. Report of referee or commissioners appointed to admeasure dower. 681. Order for final judgment of admeasurement. 682. Final judgment of admeasurement. 683. * Order of reference upon report that admeasurement is not prac- ticable. 684. Order on report of referee, as to a sum to be paid in lieu of dower. 685. Final judgment for amount in lieu of dower, etc. 686. Complaint in action for recovery of money falling due for dower. 687. Complaint in action to procure a sale of property for unpaid install- ments of dower. 6 8. Undertaking to prevent stay of execution on appeal from final judg- ment admeasuring dower. 689. Consent to accept a gross sum in satisfaction of dower. 690. Affidavit to move for leave to pay gross sum in satisfaction of dower 691. Notice of motion for leave to pay a gross sum in sati.- faction of dower. 692. Order granting leave to pay a gross sum in satisfaction of dower right. 693. Interlocutory judgment for sale in action for dower. 694. Consent of plaintiff to take a distinct parcel as her dower in lieu of a gross sum. 695. Report of sale in suit for dower. 696. Final judgment upon report of sale by referee or sheriff in action for dower. Article Fourth. forms relat'ng to action to foreclose a mortgage. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 4.) No. 697. Complaint in action to foreclose a mortgage. 698. Complaint in foreclosure of infant's mortgage, executed pursuant to order of court. 699. Answer of infants in foreclosure suit. 700. Affidavit on piotion for reference in action to foreclose mortgage. 701. Order of reference in action to foreclose mortgage. 702. Referee's report of amount due, etc., in action for foreclosure of mortgage, xxxiv Contents. No. 703. Final judgment in action for foreclosure of mortgage. 704. Judgment for deficiency in action for foreclosure of mortgage. 705. Notice of pendency of action to foreclose mortgage. 706. Sheriff's or referee's deed in action to foreclose mortgage. 707. Report of sale in action for the foreclosure of mortgage. 70d. Order confirming report of sale. 709. Notice of claim to surplus moneys. 710. Notice of motion for reference to obtain surplus moneys. 711. Affi'lavit on motion for reference on claim to surplus moneys. 713. Order of reference as to claims on surplus moneys. 713. Summons of referee upon such reference. 714. Certificate of clerk as to filing notices of claim to surplus moneys. 715. Claim of creditor before referee to surplus moneys. 716. Referee's report as to surplus moneys. 717. Notice of motion for payment of surplus moneys to claimant. 718. Order for payment of surplus moneys. 719. Complaint in action for strict foreclosure. 720. Judgment for strict foreclosure. 721. Complaint in action to redeem mortgaged premises by heirs-at-law against mortgagee in possession. 722. Same, by mortgagor against mortgagee. 723. Same, by lessee against mortgagor and mortgagee. 724. Judgment in action for redemption of mortgaged premises. 725. Affidavit on application for writ of assistance in foreclosure suit 726. Writ of assistance in foreclosure suit. Article Fifth. Forms relating to action to compel the determination of claim to real property. (Code Civ. Pro., Ch. 14, Tift 1, Art. 5.) No. 737. Complaint in action to compel the determination of claim to real property. 728. Ansxver in suit for the determination of claim to real jjroperty. 729. Final judgment awarding defendant possession in action to compel determination of claim to real property. 730. Final judgment for the plaintifl in action for determination of claim to real property. 731. Complaint in action to determine widow's dower. Article Sixth. forms relating to action for waste. (Code Civ. Pro , Ch. 14, Tit. 1, Art. 6.) No. 733. Complaint by devisee of lessor against tenant in action for waste. 733. Complaint by heir-at-law of lessor in action for waste. 734. Complaint in action for waste by lessor against lessee. 735. Complaint in action for waste by remainderman against life-tenant. 736. Complaint in action for waste again.st tenant in dower. 737. Complaint in action for waste by ward against guardian. 738. Complaint in action for waste by grantee of real property sold under execution. Contents. xxxv Iso. 739. Complaint in action for waste by joint-tenant, or tenant in common, against hi§ co-tenant. 740. Judgment for treble damages in action for waste. Article Seventh. Forms relating to action for a nuisance. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 7.) No. 741. Complaint in action for a nuisance. Aeticlb Eighth. Forms relating to other actions concerning real property. (Code Civ. Pro., Cli. 14, Tit. 1, Art. 8.) No. 743. Complaint in action against person in possession as life-tenant and holding over. 743. Complaint in action by joint tenant or tenant in common to recover his proportion of rents and profits of real estate. 744. Complaint in action for cutting down, etc., trees. 745. Complaint for forcible entry and detainer. Aeticlb Ninth. Forms relating to general provisions of Code of Civil Prrcedure applicable to real actions. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 8.) No. 746. Notice of pendency of action by plaintiff. 747. Notice of pendency of action by defendant. 748. Notice of sale of real property under judgment. 749. Terms of sale under judgment. 750. Notice of postponement of sale under judgment. 751. Affidavit on application for order staying waste. 753. Order restraining defendant from commission of waste. 753. Affidavit to procure a survey of premises in action relating to real property. 754. Notice of motion for survey. 755. Order for survey. 756. Complaint against party in possession under conveyance from de- fendant, after filing of lis pendens, in action of ejectment or for dower. TITLE II. Forms relating to actions relating to cJiattels, Article Pibst. Forms relating to action to recover a chatteC. (Code Civ. Pro., Ch. 14, Tit. 3, Art. 1.) No. 757. Affidavit of plaintiff to require chattel to be replevied. 758. Affidavit of agent, or attorney of plaintiff, to require a chattel to be replevied. 759. Undertaking in replevin. xxxvi Contents. No. 760. Notice of exception to sureties. 7(51. AfBdavit by defendant to require a return of chattel replevied with notice. 763. Affidavit by agent or attorney of defendant to require return of chattel replevied. 763. Undertaking on part of defendant to obtain return of chattel re- plevied. 764. Notice by sheriff to plaintiff that he requires indemnily on claim by third person. 765. Affidavit by third person claiming title to chattel replevied 766. Affidavit by agent or attorney of third person chdming title to chat- tel replevied. 767. Complaint in action by claimant against sheriff. 768. Undertaking indemnifying sheriff on claim by third person. 769. Sheriff's return to requisition for replevy of chattel on delivery thereof to the plaintiff. 770. Sheriff's return where a third person claims the chattel, and the plaintiff indemnifies or refuses to indemnify sheriff. 771. Sheriff's return of redelivery of chattel to defendant. 773. Sheriff's return where none of the chattels is found. 773. Notice to sheriff to file return. 774. Notice by plaintiff of abandonment of claim to chattels not replevied. 77o. Complaint in action for a chattel. 776. Complaint for the wrongful detention of chattel or chattels. 777. Answer in action for a chattel. 778. Notice that defendant demands judgment for return of chattels. 779. Verdict, report or decision in action for chattel. 780. Pinal judgment in action for chattel. 781. Complaint against sureties on undertaking given by defendciit to procure return of chattel. 783. Complaint on undertaking given by plaintiff on replevy of chattel. 783. Answer in action upon undertaking in replevin that chattel was injured or destroyed. Ar.TrcLE Secokd. Forms relaitny to aci'on to foreclose a lien vpon a chattel. (Code Civ. Pro., Ch. 14, Tit. 3, Art. 3.) No. 784. Complaint in action to foreclose a chattel mortgage. 785. Complaint for foreclosure of lien by pledge. 786. Final judgment for the plaintiff upon default, in action to foreclose lien upon chattel. 787. Affidavit to procure warrant in action for foreclcsure of chattel lien. 788. Warrant for seizure of chattels in action for foreclosure of lieu. 789. Undertaking on granting warrant in suit to foreclose chattel lien. FORMS OF CIYIL PROCEDURE. CHAPTER I FORMS RELATING TO COURTS AND THE MEMBERS AND OFFICERS THEREOF. TITLE L Forms relating to the courts of the State; their general powers and attributes. ^ TITLE II. Forms relating to provisions of general application to the judges and certain other officers of the courts. TITLE I. Article First. (Code Civ. Pro., Ch. 1, Tit. 1, Art. 2.) FORM^ RELATING TO GENERAL POWERS AND ATTRIBUTES OF THE COURTS. No. 1. Mandate of commitment for criminal contempt.' No. 1. Mandate of Commitment for Criminal Contempt. (Code Civ. Pro., § 11.) At a Court [of General Sessions of the Peace] held in and for the county of [New York], at, etc., on the day of , 18 — •. Present, . In the matter of A. J. H. The grand jury, heretofore in due form selected, drawn, summoned and sworn to serve as grand jurors, in [the Court ' The proceedings for criminal con- Proceedings in the latter cases are tempts are expressly made inapplicable regulated by §§ 226t) to 2293 of Code to cases specified in § 14, Code Civ. Civ. Pro., and the forms relating to Pro., (§ 12 id ) tliem will be found at No. 2 Forms Relating to of General Sessions of the Peace, in and for the city and county of New York], come into court and make complaint by and through their foreman, theretofore duly appointed and sworn, that A. J. H., after being duly summoned and sworn, as prescribed by law, as a witness in a certain mat- ter and complaint, pending before such grand jury, whereof they had cognizance [against certain aldermen and members of the common council of the city of New York, for feloni- ously receiving a gift of money, under an agreement that their votes should be influenced thereby in a matter then pending before said aldermen and members of the common council in their official capacity], did then and there refuse to answer the following legal and proper interrogatory, pro- pounded to him, the said A. J. H., to wit: ["What did you do with the pile of bills received from Thomas Hope, and which he told you amounted to $50,000?"] and the said A. J. H. then and there, instead of answering the said interrogatory, stated as follows, to wit : [ ' 'Any answer which I could give to that question would disgrace me, and would have a tendency to accuse me of a crime. I therefore demur to the question, referring to the ancient common-law rule, that no man is held to accuse himself, and to the sixth sec- tion of the first article of the constitution of this State."] and the court having then and there decided that the said interrogatory is a legal and proper one, and that the reasons given by the said A. J. H. for not answering the same are invalid and insufficient ; and now ordering the said A. J. H. to answer the said interrogatory, and he, the said A. J. H., still contumaciously and unlawfully refusing to answer the said interrogatory, the court doth hereby adjudge the said A. J. H., by reason of the premises aforesaid, guilty of a, criminal contempt of court ; and doth further order and adjudge that the said A. J. H., for the criminal contempt aforesaid, whereof he is convicted, be [imprisoned by the sheriff of the county of — , in the jail of the said county, for the term of thirty days]/ ' The above form is taken from tlie form the order to the definition of a cmnmitment in People ex rel. Hackley mandate, as given in section 3848, subd. V. Kelly (-il N. Y., 74), except that the 2 of Code Civ. Pro. It may be ■words ' by the sheriff of the county of easily adapted to other commitments • " are inserted, so as to con- for criminal contempt. See, also Attorneys and CormsELOES. b TITLE II. Aeticle Fiest. (Code Civ. Pro., Ch. 1, Tit. 2, Art. 2.) FORMS RELATING TO ATTORNEYS AND COUNSELORS AT LAW. No. 3. Order admitting attorneys and fcounselors 3. Oath of office of attorneys and counselors. 4. Clerk's certificate of admission of attorneys and counselors. 5. Notice in case of death or disability of attorney. No. 2. Order Admitting Attorneys and Counselors. (Code Civ. Pro., §56.) At a General Term of the Supreme Court of the State of New York, held in and for the Judicial De- partment, at the court house, in the of , on the day of , 18 — . Present, Hon. , Presiding Justice. Associate Justices. A. B., of , and [name other applicants and their residences] having applied to be admitted to practice as at- torneys and counselors in the courts of record of this State, Henry Bergh's Case, 16 Abb. Pr. [N. v. R. and S. L. R. R. Co. (76 N. Y., S.], 266; People ex rel. Phelps v. 294; afE'g S. C, 14 Plun, 371.) Fancher, 2 Hun, 226, People ex rel. As to punishment for a criminal con- Woolf V. Jacobs, 5 id., 428; People ex tempt, see Code Civ. Pro., (g§ 9, 10.) rel. Kelly v Aitken, 19 id., 327. The mandate in the case of a crimi- A grand jury is a part of the court, nal contempt must be issued by the and a contempt committed before it is court, and not by a justice thereof, deemed a contempt committed in the (People ex rel. Society for Prevention presence of the court. (Henry Bergh's of Cruelty to Children v. Gilmore, 26 Case, supra. Per Hackett, recorder.; Hun, 1.) As to proceedings upon return of It was held in Matter of Watson v. warrant in justice's court, and that the Nelson (60 N. Y , 530. ), that surrogates accused must have an opportunity of courts not being courts of record, could being heard upon commitment by such not punish for contempt under the Re- court for criminal contempt, see Peo- vised Statutes. But see section 2 of^' pie ex rel. Schlosser v. Porter (25 Hun, Code of Civil Procedure, as amended 601.) Code Civ. Pro ,§§ 2870 to 2874. in 1877, by which surrogates' courts That the provision of this statute are made courts of record, embraces disobedience of a peremptory As to manner of conflnmg prisoner mandamus see People ex rel. Garbutt upon process for contempt, see Code Civ. Pro., § 157. 4 .Forms Relattno TO and having been examined at this term by [naming com- mittee] a committee appointed by the justices holding this terra, and it being found that they have complied with the rules established by the Court of Appeals for that purpose, and having been approved by the said justices holding this term for their good character and learning. It is hereby ordered, that the said applicants be and they are hereby admitted to practice as attorneys and counselors' in the courts of record of this State. No. "3. Oath of Office of Attorneys and Counselors at Law. (Code Civ. Pro., § 59; Const , Art. 13, § 1.) I do solemnly swear \or affirm] that I will support the Constitution of the United States, and the Constitution of the State of New York, and that I wil' faithfully discharge the duties of the office of attorney and counselor in the courts of record of the State of New York, according to the best of my ability. A* x5* Subscribed and sworn \or affirmed] | to, in open court, this r day of , 18—. ' J. L., Cleric [or M. N., Deputy Cleric]. No. 4. Clerk's Certificate of Admission of Attorney and Counselor. (Code Civ. Pro , §§ 56, 59.) I, J. L., county clerk of county, and clerk of the Supreme Court in and for said county, do hereby certify that A. B., of — , has been admitted, by an order of the Supreme Conrt, entered at a General Term thereof, held at , in the county of , on the — — — — day ' By an amendment to tlie rules of As to subjects upon -which the appli- the Court of Appeals for the adn.ission cant is to be examined, see Gen. Rules of attorneys and counselors, which took of Practice, No. 1. effect July 1, 1883, the distinction be- As to rules governing the disbarring tween the two offices is abolished, and and suspension of attorneys and coun- three years' study ■will entitle the can- selors, see Matter of Eldridge (83 N. Y., didate to admission as attorney and 161), and In the matter of , an counselor. attorney (86 N. Y., 563, and cases Attokneys anb Counsel oes. 5 of J 18—, to practice as an attorney arid counselor, in all the courts of record of the State of New York, and' that he has, upon his admission, taken the constitutional oath of office in open court, and subscribed the same in a book [or roll] kept in the Supreme Court for that purpose, as prescribed by section fifty-nine of the Code of Civil Pro- cedure. In witness thereof, I have hereunto set my hand and [L. S.J official seal," at . on this day of , 18-. J. L., Clerh' No. 5. Notice in Case of Death or Disability of Attorney. (Code Civ. Pro., §65.) [Title of cause.] To A. B. [or C. D.], defendant [or plaintiff] : Sir— You are hereby notified and required, pursuant to the statute in such case made and provided, to appoint another attorney in the above entitled action in place and stead Of C. E., deceased [or removed, or suspended, or state how otherwise disabled from acting], within thirty days after service of this notice upon you, or that in default of such appointment said action will be proceeded with, with- out such attorney.' Dated -, 18—. Yours, etc., M. N., Attorney for Plaintiff [or Defendant], No. street, , N. Y/ therein cited; also Code Civ. Pro., §§ other manner as tlie court directs (Code 67, 68, 69, 80.) Civ. Pro., § 65). See further upon subject of admis- Where, under this section, notice to sion, In re Bcggs, 67 N. Y., 120; In re appoint another attorney is served upon O'Keil, 27 Hun, 599; In re Burchard, a party, whose attorney has died, all id., 439. proceedings are stayed for thirty days ' As to official seal of clerk, see sec- and a motion to dismiss an appeal for tions 37-30 of Code Civ. Pro. a failure to appoint an attorney, made ' As to powers of special deputy within that time, is premature. (Hic- clerk, appointed to attend terms or st- kox v. Weaver, 15 Hun, 375.) tings of courts, see Code Civ. Pro. Where there is more than one party (§89.) both must be notified. (Id.) ' The notice must be served person- " See Rule 2 of General Rules of ally upon the opposite party, or in such Practice, FoKMS Relating to CHAPTER II. FORMS RELATING TO THE POWERS, DUTIES AND LIABILITIES OF A SHERIFF OR OTHER MINISTERIAL OFFICER, IN THE EXECUTION OF THE PROCESS OR OTHER MANDATE OF A COURT OR JUDGE IN A CIVIL CASE. TITLE I. Forms relating to the execution of civil mandates generally TITLE II. Forms relating to the execution by a sheriff of a mandate against the person. TITLE III. Forms relating to powers, duties and liabilities of an incoming and outgoing sheriff, respectively, touching the matters in- cluded in chapter 2 of Code Civ. Pro. TITLE I. FORMS RELATING TO THE EXECUTION OF CIVIL MANDATES GENERALLY. (Code Civ. Pro., Ch. 2, Tit. 1.) No. 6. Sheriff's minute of receipt of mandate. 7. Sheriff's return to execution of no property. 8. Return to execution when collected in whole or in part. 9. Return to execution where property remains unsold for want of buyers. 10. Return of no goods of testator in action against executor. 11. Return of arrest under order and holding to bail. 13. Return to process of not found. 13. Return to execution against the person paid or settled. 14. Return of arrest and imprisonment for want of bail. 15. Return of arrest and rescue. 16. Return of arrest and that defendant is sick. 17. Return of arrest and death of defendant. 18. Return of exemption from arrest. 19. Affidavit of a witness to obtain discharge from arrest. 20. Return of privilege. 21. Same in case of foreign minister or officer of court. 22. Return where the defendant makes deposit instead of bail. 23. Certificate of deposit of amount instead of bail. 24. Certificate of county treasurer of deposit with him instead of bail. 25. Return of goods taken or replevied. 26. Return where only part of goods can be found. 27. Return where none of goods can be found. 28. Return where defendant gives security and keeps the goods. 29. Return of payment of sum of money instead of delivery of goods. 30. Return that chattel cannot be found and that amount to be paid in that event has been satisfied. 31. Returri to a writ of liabeas corpus, Execution of Mandates. 7 83. Return tn a writ giving possession of real property. 33. Return to warrant of attachment. 34. Return to warrant under proceedings for the collection of dempnds against ships and vessels. 85. Return of service of subpoena. No. 6. Sheriif' s Minute of Receipt of Mandate. (Code Civ. Pro., § 100.) [Title of cause.] Received, this day of , 18 — , at ; o'cloclc — M., execution in the above entitled action, on a judgment rendered, and docketed in county, with directions endorsed to levy and collect $ , with inter- est from , besides fees, dated , 18 — [or de- scribe other mandate or paper in like manner]. M. K, Sheriff of County. [By R. S., Deputy. \ Or, endorsed upon a copy of the mandate, as follows : Received, this day of , 18 — , at o'clock — M., an execution [or name other mandate], of which the within is a copy. M. N., SheHff. [By R. S., Deputy.] No. 7. Return to Execution of no Property. (Code Civ. Pro , § 103.) The within defendant has no goods [*] or chattels, lands or tenements, in my bailiwick, whereof I can cause to be made the amount of the within execution, or any part thereof. A. M,, Sheriff of County. [By E. R, Deputy.] No. 8. Return to Execution when Collected in Whole or in Part. (Code Civ. Pro., § 103.) ^y vjrtve of tWs writ, to n;e directe ill the county of , leubpcenaed the within named C. D. [as I am within commanded], by exhibiting to him the within [or annexed] original subpoena, and, at the same time and place, delivering to him a copy of the said subpoena \or a ticket containing the substance of said sub- poena], and, at the same time, I paid [or tendered to] him his fees allowed by law, to wit : [for traveling, pursuant to said subpoena, from the place of his (temporary) residence ' at , in the county of , to the place where he is required thereby to attend, to wit : eight cents per mile for miles, and'] fifty cents for one day's attendance, pursuant to said subpoena [in all amounting to dollars and cents']. A. M., Sheriff of County. [By C. D.^, Deputy.] TITLE II. forms relating to the execution by a sheriff of a mandate against the person. Article First. (Code Civ. Pro., Ch. 2, Tit. 2, Art. S.) FORMS RELATING TO JAILS, JAIL DISCIPLINE, AND REGULA- TIONS CONCERNING THE CONFINEMENT AND CARE OF PRISONERS. No. 36. Order for removal of sick prisoner to hospital. 37. Certificate upon which the above order is to be granted. No. 36. Order for Removal of Sick Prisoner to Hospital. (Code Civ. Pro., § 137 ) [Title of action.] It appearing by the certificate, in writing, of A. M., the physician [or acting physician] to the jail of the county of , and of B. E., the warden [or jailor] of said jail, that C. D., a prisoner, confined in the said jail in the above ' See note 1 to form 356. more than three miles from the place of 2 These clauses are only necessary attendance. (Code Civ. Pro., § 3318.^ to be inserted wUere the wifijess resides 20 Forms Relating to cause, is in such a state of bodily health that his life will be endangered, unless he is removed to a hospital for treat- ment, and, upon application of M. N., counsel for said C. D., it is hereby ordered that the said C. D. be removed to the hospital ;' and that the said C. D. be kept in the custody of the chief officer of the said hospital until he has sufficiently recovered from his illness to be safely returned to the said jail ; that the chief officer of the said hospital then notify the warden or jailor of said jail, and that the latter thereupon resume custody of the said prisoner. Dated , 18—. E. F., County Judge of County. [or, Judge of the Court of Common Pleas, New Yorli City and County.], No. 37. Certificate upon which the Foregoing Order is to he granted. (Code Civ. Pro , § 127.) [Title of action.] We, A. M. and B. E., respectively, the physician to the jail \or physician acting as the physician to the jailj, and warden \or jailor] of the county jail of the county of , do hereby certify, pursuant to law, that C. D., a prisoner, confined in the jail of said county, in the above entitled cause, is in such a state of bodily health that his life will be endangered, unless he is removed to a hospital for treatment. "N Dated , 18—. A. M., B. E. Article Second. (Code Civ. Pro., Ch. 3, Tit. 3, Art. 4.) FORMS RELATING TO JAIL LIBERTIES AND ESCAPES. No. 88. Bond of prisoner to admit to jail liberties. 39. Acknowledgement and certificate upon surrender of prisoner by his sureties, in bond given for jail liberties. ' A hospital within the county to be designated by the j udge. (Code Civ Pro., § 137, Jail Liberties. 21 No. 38. Boiid of Prisoner to Admit to Jail Liberties. (Code Civ. Pro., § 150.) Know all men hy these presents: That we, A. B., of -, in the county of , and C. D., of , in the county of , are jointly and severally ' held and firmly bound unto A. M., sheriflE of the county of , in the sum of dollars,' to be paid to the said A. M., his heirs, executors, adminstrators or assigns, for which payment well and truly to be made, we do jointly and severally bind our- selves, our heirs, executors and administrators, jointly and severally, firmly by these presents, as witness our hands and seals, this day of , in the year 18 — . Whereas, the above bounden A. B., is now in the custody of the above named sheriff, A. M., by virtue of an order of arrest made by Hon. A. O., judge [or justice] of the court, in an action in the court between G. H., as plaintiff, and the said A. B., as defendant, and dated on the day of , in the year 18 — , requiring said sheriff to arrest the said A. B., and hold him to bail in the sum of dollars \or by virtue of an execution di- rected and delivered to said sheriff, upon a judgment in an action between G. H.,' plaintiff, and the said A. B., defend- ant, issued out of the court, dated , 18—, by which is directed to be collected dollars, and interest thereupon from , 18 — , and the fees of said sheriff, or in consequence of a surrender in exoneration of the bail of said A. B., in an action, etc., as the case may be]. Now, therefore, the condition of this obligation is such, that if the above bounden A. B., so in custody of the above named sheriff as aforesaid, shall remain a prisoner,' and ' See Code Civ. Pro., § 813. ties, se^Levy v. Kaim (55 How., 136), » Tlie statute requires one or more Matter of Clark (20 Hun, 551), Allen sureties to execute with the prisoner v. Allen (58 How., 381), People ex rel. residents and householders or free- Brown v. Van Hoesen (63 How. , 76) , holders of the county in a penalty at Ford v. Ford (41 How., 169; S. C , 10 least twice the sum required as bail. Abb. [N. S.], 74). or directed to be collected by the exe- As to discharge of sureties, see Wem- cution or remaining uncollected upon pie v. Glavin (5 Afeb. N. C, 360, S. C, the judgment. (Id., § 150.) 67 How., 100). ' As to who are entitled to jaD liber- 22 FoEMS Uelatina to shall not, at any time, or in any manner, escape or go with- out the liberties established for the jail of the county of , until discharged by due course of law, then this obligation to be void, otherwise to be and remain in full force and virtue. A. B. [L. s.] C. D. [L. s.] Sealed and delivered in ) presence of ) [Acknowledgment and affidavit of surety or sureties, and approval as in form No. 118. J No. 39. Acknowledgment and Certificate upon Surrender of Pris- oner by his Sureties, on Bond given for Jail Liberties. (Code Civ. Pro., § 154.) I do hereby acknowledge and certify, pursuant to law, and in accordance with the written requisition upon me of C. D., the surety in the within' bond, that A. B., the pris- oner named in the said bond, has been brought to me this day, and duly and legally surrendered to me by said C. D., and that I have accordingly, this day, taken the said A. B. into my custody. Dated , 18—. F. H., Keeper of County Jail. TITLE III.^ FORMS RELATING TO THE POWERS, DUTIES AND LIABILITIES OP AN INCOMING 0I> OUTGOING SHERIFF, TOUCHING THE MATTERS INCLUDED IN CHAPTER 2 OF CODE CIV. PRO. No. 40. Certificate by county clerk that sheriff has qualified. 41. Assignment by old sheriif to the new sheriff. 43. Acknowledgment of the new sheriff of the receipt of property, etc. ' To be indorsed upon bond, and du- the surety in the bond; but he is not plicate delivered to surety if required, exonerated thereby from a liability in- The surrender may be made at any time curred before making the surrender, before judgment is rendered against (Code Civ. Pro. , §§ 153, 154.) Incoming oe Outgoing Sheeipi'. 23 No. 40. Certificate by County Clerk that Sheriff has Qualified." (Code Civ. Pro., § 183.; State of New York, i — County Cleric's Office,] ^^■•' I, C. D., county clerk of said county, do hereby certify that A. M., who has been elected [or appointed] sheriff of said county for the term of years from the day of , 18—, has this day duly qualified as such sheriff, by taking the constitutional oath of office and filing the same in this office, and has given security by bond as required by law, duly approved by me and filed in this office, for the due performance of his duties as such sheriff. In witness whereof, I have hereunto set my hand and official seal, this day of , in the year 18— [L. s.] C. D., County Clerk of County. No. 41. Assignment by Old Sheriff to the New Sheriff. (Code Civ. Pro., g 184.) This indenture, made the day of , 18 — , between A. B., late sheriff of the county of , of the one part, and C. D., now sheriff of said county of the other part, as follows : Whereas, the said C. D. has this day served on the said A. B., the certificate of the clerk of the said county that the said C. D., has duly qualified as such sheriff, by taking the constitutional oath of office and filing the same in said clerk's office, and has given security by bond, filed in said clerk's office as required by law, duly approved by said clerk, for the due performance of his duties as such sheriff. Now, therefore, this indenture witnesseth that the said A. B., as such late sheriff as aforesaid, in pursuance of the • The former sheriff is not liable See, also, Union Dime Sav. Inst. v. when certificate has not been served. Anderson, 83 N Y., 174; aff'g S. C, (FeerJck v. Conner, 9 Daly, 523 [(Jen. 19 Hun, 310, as to what constitutes a T.]; S. C, 12 Weekly Dig., 48, and 60 seizure of real property under subd. 4 How. Pr., 506.) of section 184 Code Civ. Pro. 24 Forms Relating to statute in such case made and provided, hath delivered possession and set over to the said C. D., as such sheriff, the county jail [or jails] of the said county, with all their appurtenances and the property of the county therein. A summons and complaint and copies thereof, in the Supreme Court, at the suit of C. D., against E. F., dated — , 18— ; A. B., attorney. A summons, affidavits and order of Hon. C. H. D., a jus- tice of the Supreme Court, and copies thereof, to arrest and hold the defendant to bail in the sum of $ , wherein F. G. is plaintiff and G H. defendant ; A. B., attorney. -, An execution upon a judgment in the Supreme Court, in which A. G., is plaintiff and M. F , defendant, for | , rendered , 18 — , received , 18 — , at o'clock p. M. ; A. B., attorney. An execution against the body of R. S., at the suit of N. P., for $ , docketed , 18 — , and received , 18 — ; A. B., attorney. The defendant has been arrested thereunder, and is now upon the liberties of the jail of said county. Also the bond of said R. S., with P. Q., as his surety, for the liberties of the said jail in the penalty of $ , and dated , 18 — . Also the body of A. V., confined in said jail for grand larceny upon the warrant of commitment of the recorder of the city of ■ -, and also the said warrant.. Also the jail records now at such jail, three stoves, blankets, — cords of wood, etc. In witness whereof, the said party of the first part has hereunto affixed his seal and name of office the day and year first aboVd written. [l. s.] a. B., late Sheriff of — County. No. 42. Acknowledgment of the New Sheriff of the Receipt of the Property^ etc.j indorsed on a Duplicate of such In- denture. (Code Civ. Pro., § 185.) I acknowledge the receipt, this — day of ■ — , Incoming ok OuTGOiNa Sheeife. 25 18 — , of tlie property, processes, mandates, orders, .commit- ments, papers, documents and prisoners specified in the in- denture between A. B., late sheriff of county, and myself, as present sheriflE of said county, of which the within is a duplicate. C. D., Sheriff of County. 26 FoKMS Relating to CHAPTER III. FORMS RELATING TO THE CIVIL JURISDICTION OF THE PRIN- CIPAL COURTS OF RECORD ; ORGANIZATION, MEMBERS AND OFFICERS THEREOF; DISTRIBUTION AND DISPATCH OF BUSINESS THEREIN. TITLE I. Forms relating to the Court of Appeals. TITLE II. Forms relating to the jurisdiction of the county courts and re- movals of causes therefrom. TITLE I. (Code Civ. Pro., Ch. 3, Tit. 1.) FORMS RELATING TO THE COURT OF APPEALS. No. 43. Remittitur from Court of Appeals on judgment of affirmance. 44. Same on judgment of reversal. No. 43. Remittitur' from Court of Appeals on Affirmance of Judg- ment. (Code Civ. Pro., §194.) State of New Yoek, ss. : Pleas in the Court of Appeals, held at the capitol, in the city of Albany, on the day of , in the year .of our Lord one thousand eight hundred and , be- fore the judges of said court. Witness, the Hon. William 0. Ruger, Chief Judge, pre- siding. E. O. PERRIN, Clerk. Remittitur, , 18 — . agst. Be it remembered, that on the day of ' As to effect of filing remhtur, see As to evidence upon assessment of Jones v. Anderson (71 N. Y., 599), damages under section 194, Code Civ. People V. Nelliston (79 id., 638), Coch- Pro., see Thompson v. Lumley, 7 Daly, ran's Ex'rv. IngersoU (11 Hun, 343). 74. (Gen. Term.) Court of Appeals. 27 in the year of our Lord one thousand eight hiindred and , the appellant in this action came here into the Court of Appeals, by attorney, and filed in the said court a notice of appeal and return thereto from the judg- ment of the General Term of the . And , the respondent in said action, afterwards appeared in said Court of Appeals by , attorney. Which said notice of appeal and the return thereto, filed as aforesaid, are hereunto annexed. Whereupon, the said Court of Appeals having heard this cause argued by Mr. , of counsel for the appellant, and by Mr. , 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, be [*] in all things affirmed. And it was further ordered and adjudged that the re- spondent recover against the appellant, costs of appeal to this court. And it was also further ordered, that the record afore- said, and the proceedings in this court, be remitted to the said court, there to be proceeded upon according to law. Therefore, It is considered that the said judgment be in all things affirmed, with costs as aforesaid, and stand in full force, strength and effect. fAnd hereupon, as well as the notice of appeal and return thereto aforesaid as the judgment of the Court of Appeals aforesaid, by them given in the premises, are by the said Court of Appeals remitted into the court of the of New York, before the justices thereof, accord- ing to the form of the statute in such case made and pro- vided, to be enforced according to law, and which "i-ecord now remains m the said court before the justices thereof, etc. , GlerTc, Of the Court of Appeals of the State of New York. Court of Appeals, Clerk's Office, ) Albany 1 , 18 — . ) I hereby certify that the preceding record contains a cor- 28 Forms Relating to rect transcript of the proceedings in said action in the Court of Appeals, with the papers originally filed therein attached thereto. , Cleric. No. 44. Same on Judgment of Reyersal. (Code Civ. Pro .. § 194.) As in form No. 43 to[*], and from thence as follows : Reversed, annulled, and altogether held for nothing. And it was further ordered and adjudged that a new trial be granted in this action, costs to abide the event thereof. And it was also further ordered, that the record afore- said, and the proceedings in this court, be remitted to the said court, there to be proceeded upon according to law. Therefore, it is considered that the said Judgment be re- versed, annulled and altogether held for nothing, and that a new trial be granted in this action, costs to abide the event thereof as aforesaid. Thence as in form No. 43 from f. TITLE II. FORMS RELATING TO THE JURISDICTION OP THE COUNTY COURTS AND REMOVALS OP CAUSES THEREPROM.' (Code Civ. Pro , Ch. 3, Tit. 5.) No. 45. Certificate of county judge that he is incapable of acting.^ 46. Affidavit to apply for removal of cause or proceeding to Supreme Court in case of incapacity of county judge. 47. Order of Supreme Court upon proof that county judge is incapable of acting in action or proceeding. 48. Affidavit on application for removal of cause for purpose of changing place of trial. 49. Order removing action and changing place of trial. 50. Order staying proceedings for purpose of removal of action, etc. 51. Petition for order remitting fine or penalty or forfeiture of recog- nizance. 52. Order remitting fine or penalty or forfeiture of a recognizance. ' By section 319, Code Civ. Pro., the Ings to remove causes from the Marine provisions of sections 344, 545 and 346, Court (now the City Court) of the city Id. , are made applicable to proceed of New York, to the Supreme Court. County Coukts. 29 No. 53. Petition for remission of fine imposed by court of special sessions or justice of the peace. 54. Order remitting fine pursuant to last petition and discharging prisoner from custody. No. 45. Certificate of County Judge that he is Incapahle of Acting. (Code Civ. Pro., §343.) [Title of cause or proceeding.] I, A. B., county judge of county, do hereby certify, pursuant to law, that by reason of [here state briefly cause of incapacity], I am incapable to act in the above entitled action [or proceeding] pending in the county court [or before me].' Dated , 18—. A. B., County Judge of County. No. 46. AffldaTlt to apply for Kenioval of Cause or Proceeding to Supreme Court, iu case of Incapacity of County Judge. (Code Civ. Pro., § 343.) [Title of cause or proceeding.] County, ss.: P. R., of , in said county, being duly sworn, de- poses and says, that he is the attorney for the plaintiff [or defendant] in the above action [or for the petitioner ; or O. F., a party interested in opposition to the above special proceeding], which is now pending in the county court [*] ; that he has been informed by C. D., county judge of county, that he is incapable to -act in the above action \or special proceeding] by reason of [here state reason of incapacity], of which fact he also 'As to result of filing certificate, see cate of his disqualification. (In the Code Civ. Pro., § 342. Matter of laying out, etc., of Livings- Where a special proceeding is pend- ton street in village of Ehiuebeck, 19 ing before a county court, the county Hun, 34G.) judge whereof is disqualified from act- A proceeding pending in the county ing, he cannot make an order directing court cannot be continued before a jus- it to be continued before a justice of tice of the Supreme Court, but must be the Supreme Court, but should make removed into the Supreme Court. (Id.) 3,p4 pie with the county clerk a perttfl- 30 FoEMS Relating to produces herewith the certificate of said judge, dated , 18—' [and that he has also been informed by Hon. B. F., special county Judge of said county, that he is incapable of acting in said action {or special pro- ceeding) by reason of (here state reason of incapacity), of which fact he also produces herewith the certificate of said E. F., dated , 18—]. P. K. Sworn before me, this ) day of , 18 — . f No. 47. Order of Supreme Court upon Proof that County Judge is Incapable of Acting in Action or Proceeding. (Code Civ. Pro., § 342.) At a Special Term of the Supreme Court, held at , on the ' day of , 18 — : Present, Hon. , Justice. [Title of cause or proceeding.] It having appeared by the afiidavit of P. E,., herewith filed, and dated , 18 — , and by the certificate of A. B., the county judge of — county [and of E. F., special county judge of said county], that said A. B., is incapable of acting by reason of [here state briefly cause of incapacity] in the above entitled action {or special pro- ceeding], now pending in the county court [or be- fore him] [and that said E. F., the special county judge of said county, is also incapable of acting therein by reason of (here state briefly cause of incapacity) J, and on motion of , of counsel for the plaintiff [or defendant], due notice of this motion having been given to C. F., attorney for de- fendant [or plaintiff, etc.], and no one appearing to opppse [or after hearing O. P., of counsel for defendant, or plain- tiff], it is hereby ordered that the above entitled action [or proceeding] be and the same is hereby removed to the Su- preme Court, the place of trial therein to be the said county of . ' for certiflcate of county judge, see last foin}. County Coukts. 31 No. 48. Affidavit on Application for Eeraoval, for Purpose of Changing Place of Trial. (Code Civ. Pro., §§ 340, subd 2, 343.) [As in No. 46, so far as the same relates to an action, to (*), and from thence as follows] : That the above entitled action is brought and is now pending in the county court, f and is an action in favor of the executor [or administrator, or assignee] of a judgment creditor [or in favor of a judg- ment creditor], to recover a judgment for money remaining due upon a judgment rendered in the said county court],:}: as will more fully appear by the complaint herein, a copy of which is hereto annexed marked "A," that an issue of fact has been joined therein, as will fully appear by the answer therein, and that said issue has not been tried, and that it is necessary and proper that the place of trial therein should be changed to the county of , for the convenience of witnesses [or other cause, stating it], as will fully appear by the affidavits herewith produced and filed, and further deponent saith not. [Jurat as in form No. 46. J x^. R. No. 49. Affldayit on Application for Removal for Purpose of Changing Place of Trial. (Code Civ. Pro., §§ 340, subd. 3, 343.) As in No. 48, to t, and from thf^nce as follows : That the defendant in said action is a resident [or that all the de- fendants in said action were at the time of the comnienco- nient of said action residents] of the said county of , and the complaint in said action demands judgment for a sum of money only, not exceeding $1,000 [or that said ac- tion is brought to recover one or more chattels, the aggre- gate value of which does not exceed $1,000, with [or with- out] damages for the taking [or detention] thereof. [Then proceed as in No. 48, from J to end thereof.] p. R, [Jura,t as ip No. 46.] 32 FoKMS Relating to No. 50. Order Removing Action and Changing Place of Trial. (Code Civ. Pro., § 343.) [At, etc., as in form No. 47.] Present, Hon. , Justice. [Title of cause.] On reading and filing tlie pleadings and aflBdavits of A. B. [and C. D.J, dated [respectively] , 18 — [and , 18 — ], by which it appears that the above entitled action is brought in the county court, under subdivision second [or third] of section 340 of the Code of Civil Procedure, and that an issue of fact has been Joined therein but has not been tried, and that due notice of this motion has been given to the attorney for the , and that it is proper that the place of trial therein should be changed, as hereinafter men- tioned. Now, on motion of E. F., of counsel for the plaintiff [or defendant], no one appearing to oppose [or after hearing I. J., of counsel for the defendant {or plaintiff)], it is hereby ordered, that the said action be and the same is hereby re- moved to the Supreme Court for the purpose of changing the place of trial therein to the county of , which change of said place of trial to said county of is accordingly made. No. 51. Order Staying Proceedings for Purpose of Removal. (Code Civ. Pro., § 345.) [Title of cause or proceeding.] Ordered, upon the within affidavits and notice of motion, that the proceedings in the above entitled action [or proceed- ing] be and they arg hereby stayed until days after the hearing and decision of :faid motion. Dated , 18r— . A. B., County Judge. \0r C D., Justice Supreme Court, JVfdiGial I)i$trict.] County Couets. 38 No. 52. Petition for Order RemittJhg Fine or Penalty or Forfeiture of Recognizance. (Code Civ. Pro., §§ 350, etc.) To the County Court : The petition of A. B. respectfully shows : That a fine \or penalty] amounting to $ was imposed upon him at a term of , held at , in the county of , on the day of , 18— \or that his recog- nizance for his appearance (stating condition of recogniz- ance) at a term of , held, etc., was forfeited at that term ; or that the recognizance taken for the appearance of C. D. (stating condition) at a term of , held, etc., upon which said A. B. was surety, became forfeited at that term], that said fine \or penalty] was imposed for [state reasons]. And your, petitioner further shows, that it is proper that such fine \or penalty] should be remitted [to the extent of $250]' {or that the said recognizance {or the forfeiture of said recognizance) should be discharged for the following reasons (here state reasons why same should be remitted or discharged)] ; and your petitioner therefore prays that such fine [or penalty] may be remitted \or that such recognizance {or forfeiture) may be discharged], upon such terms and conditions as the court may deem just, and your petitioner will ever pray, etc. Dated , 18—.' A. B. County, ss.: A. B., being duly sworn, says, that~she is the petitioner named in the foregoing petition, and that said petition is true to his knowledge, except as to the matters which are therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. A. B. [Jurat as in No. 46.] Tire clause in brackets is to be in- conviction for a criminal offense. (Code serted, in case the fine is for more than Civ. Pro., § 350.) $850, imposed by a Court of Oyer and ^ An affidavit, in substance as above, Tenniner or Court of Sessions, upon a may be made upon the application in- stead of the petition. 34 Forms Relating to No. 53. Order Remitting Fine or Penalty, or Forfeiture of Recog- nizance. (Code Civ. Pro., §§ 350, 351, 353.) [At, etc., as in form No. 47.] [Title of application. J On reading and filing the petition of A. B., dated 18 — , showing that a fine [or penalty]- was imposed upon him [or that his recognizance for his appearance (stating condition of recognizance) at a (state term of court) held at , in the county of , on the day of , 18 — , was forfeited at that term ; or that the recognizance taken for the appearance of C. D. (stating con- dition) at a (state term of court, and when held) upon which said A. B. was a surety, became forfeited at that term], and that said fine [or penalty] was not imposed for an actual contempt of court or disobedience to its process or other mandate, and due and reasonable notice of this application having been given to D. H., district attorney of said county, and good cause having been shown by said petition, why such fine [or penalty] should be remitted [or why such recognizance {or the forfeiture of such recognizance) should be discharged].' Now, therefore, it is hereby ordered, upon motion of M. N., counsel for said A. B. , no one appearing to oppose [or after hearing said D. H., in opposition {or consenting) thereto], that said fine [or penalty] be and the same is hereby remitted [to the extent of $250] " [or that said recogniz- ance {or that the forfeiture of said recognizance) be dis- charged], upon condition, however, that the said petitioner shall pay the costs and expenses incurred in an action ■ brought by [The People of the State of New York] against the said C. D. [and A. B.], for the collection of the said fine [or penalty, or the penalty of said recognizance], and upon payment of dollars, costs of opposing this motion. ' These recitals may be omitted, see " See note 1, to form No. 53. Rule 27 of General Rules of Practice. County Courts. 85 No. 54. Petition for Remission of fine Imposed by Court of Special Sessions or Justice of the Peace. (Code Civ. Pro., § 353.) To the County Court : The petition of A. B. respectfully shows : That on the day of , 18 — , he was fined in the amount of I , by the court of special sessions in the county of [or by C. D., justice of the peace for the town of — , in the county of J, upon his conviction for [stating offense], and that he has been committed by said court [or justice] to the. jail of county for non-pay- ment of said fine, where he is now imprisoned therefor. That it is proper that the said fine should be remitted, and he be discharged from his said imprisonment, for the following reasons [here set forth briefly the reasons] : and ^ur petitioner therefore prays that said fine be re- mitted by this court, and he be discharged from said im- prisonment, upon such terms as to this court may seem just, and your petitioner will ever pray, etc. Dated , 18—. A. B. [Verification as in form No. 52.] No. 65. Order Remitting fine Pursuant to last Petition, and Dis- charging Prisoner from Imprisonment. (Code Civ. Pre, § 353.) [At, etc., as in form No. 47.] [Title of cause.] On reading and filing the petition of A. B., dated , 18—, showing that on the day of , 18 — , he was fined in the amount of $ by the court of special sessions, in the county of [or by C. D., a justice of the peace for the town of , in the county of ], upon his conviction for [stating offense], and 36 FoEMS Relating to that he has been committed by said court [or justice] to the Jail of county for non-payment of said fine, wherein he is now imprisoned therefor ; and it appearing that due and reasonable notice of this application has been given to D. H., district attorney of said county: Now, on hearing M. IS"., of counsel for said A. B., in favor of said applica- tion, and said D. H;, district attorney [or no one appearing], in opposition thereto, it is hereby ordered that the said fine be remitted, and that said A. B. be discharged from his said imprisonment for non-payment thereof, upon his paying the costs and expenses incurred in an action brought by [the People of the State of New York] against the said A. B. for the collection of the said fine, and upon his paying also dollars, the costs of opposing this motion. Statute of Limitations. 37 CHAPTER lY. FORMS RELA.TING TO LIMITATION OF THE TIME OF ENFORC- ING A CIVIL REMEDY; PLEA OF STATUTE OF LIMITATIONS. (Code Civ. Pro., Ch. 4, Tit. .3.) No. 56. Answer or reply of statute of limitations. No. 56. Answer or Reply of Statute of Limitations. (Code Civ. Pro., §413.) [Title of cause.] [And] the defendant [or plaintiff (further)] answering the complaint [or replying to the counterclaim(s) contained in the answer]' says : That the said [several] supposed cau8e[s] of action [or counterclaims] therein set forth did not [nor did any or either of them] accrue at any time within [six] years next before the commencement of ttiis action." M. N., Defendant's Attorney. No. street, , K Y.' ' See section 413 Code Civ. Pro. , and effect added to the six years limitation; Williamsv. Willis(15 Abb. [N. S.],ll.) that provision not being intended to ' If the plea is interposed to a part alter the form of pleading. (Benjamin only of the plaintiff's demand or claim v. De Groot, 1 Den., 151; Graham v. that part should be designated. (Wood Schmidt, 1 Sand., 74.) V. Riker's Executor, 1 Paige, 616.) A failure to plead this defense is not In an action against an executor or a case where the answer is defective in administrator, a plea of the statute form, and the defect is cured by the of limitations should not notice the trial. (Dezengruel v. Dezengruel, 34 eighteen months which (by 2 R. 8., Hun, 457) 448, § 8 fCode Civ. Pro.,'fl03]), is in * See note to form No. 122. 38 FoKMS Relating to CHAPTER Y. FORMS RELATING TO COMMENCEMENT OF AND PARTIES TO AN ACTION. TITLE I. Forms relating to commencement of an action. TITLE II. Forms relating to parties to an action. TITLE I. Article Fiest. FORMS OP THE SUMMONS AND ACCOMPANYING PAPERS; FORMS RELATING TO PERSONAL SERVICE OF SUMMONS, AND AP- PEARANCE OF THE DEPENDANT. (Code Civ. Pro., Ch. 5, Tit. 1, Art. 1.) No. 57. Summons. 58. Notice to be indorsed upon and served with summons when com- plaint is not served. 59. Notice of retainer and appearance in person or by attorney, and demand of complaint. 60. Notice of object of action and of no personal claim in mortgage fore- closure cases. 61. Same notice in other than foreclosure cases. 63. Indoi'semect on summons of time within which it must be served. 63. Sheriff's certificate of service of summons and complaint. 64. Same on infant under fourteen years of age. ^3«» 65. Same on lunatic, etc., and his committee. 66. Same on person designated by resident of the State, during his absence to receive service for him. 67. Same on a corporation. 68. Same on person designated by foreign corporation for that purpose. 69. Same, where'person so designated cannot be found, etc. 70. Same, on different defendants at different times. 71. Certificate of sheriff that defendant evades service of summons. 73. Proof of service in such case. 73. Affidavit of service of summons and complaint by person other than sheriff. 74. Same affidavit of service on infant under fourteen years of age. 75. Same on lunatic, etc. , for whom committee has been appointed, 76. Same on a corporation. 77. Same on person designated by foreign corporation to receive same. 78. Same on foreign corporation where no person is designated to receive service, etc. 79. Same on under-sheriff, etc., for sheriff m action for escape. 80. Order of court for service on person other than defendant in certain cases. Commencement of Action. 39 81. 82. 83. 84. 85. 86. 87. 80. Order for service under section 438, Code Civ. Pro. Affidavit to obtain order dispensing with service on lunatic. Order dispensing with service on lunatic. Designation by resident of person on whom to serve summons during absence from United States and consent by appointee. Revocations of such designation and consent. Designation by foreign corporation of person on Whom to serve sum- mons and consent by appointee. Revocations of such designation by foreign corporation and of such consent. Certificate of chang of residence, etc. , by appointee of foreign cor- poration. Admission of service of summons. No. 57. Summons. (Code Civ. Pro., g§ 417-418.) CQ^RTis^^TRiAL Desired m^^ 9^ County. aqst. To tTie above named defendant : You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plain- tiff' s attorney , within twenty days after the service of this summons, exclusive of the day of service, and, in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the com- plaint. Bated , 18—. , Plaintiff '' s Attorney. Office address, , Post-ofBce address. , New YorJc. New YorJc^ ' No post-office address is required to be given, other than the office address, "specifying a place within tlie State,, where there ife a post-offlce.'' (Code Civ. Pro., § 417.) ' But the form com- monly in use is as- above. The provisions of section 417 are mandatory, and a summons not naming the county where plaintiff desires trial to be had, will be set aside, on motion, as irregular and void. (Osborn y. McCloskey, 65 How., 345.) 40 FoEMS Eelating to No. 58. Notice to be Indorsed Upon and Served with Summons where Complaint not Served. (Code Civ. Pro., §419.) To the defendant within named : Take notice, that upon default, judgment will be taken for tlie sum of dollars, in money, with interest. from the day of , 18 — , besides costs. , Plaintiff ^ s Attorney. No. street, , N. Y.' No. 59. Notice of Retainer and Appearance in Person or by At- torney, and Demand of Complaint, etc. (Code Civ. Pro., §§ 431, 433, 479.) [Title of cause.] Sir — Take notice, that I [have been retained by, and] appear ' [for the defendant] in this action [and demand a copy of the complaint, which may be served on me (or de- mand that all notices and papers therein be served on me), at (my office) No. — street>>,in the city of , N. Y., or at my office in the village {or town) of , in the county of , N. Y)]." Dated , 18—. A. B., Defendant. [Or Attorney for Defendant, C. D.J No. street, , N. Y.' ' A defendant in an action to fore- ance, see rule 9 of General Rules of close a mortgage, may appear therein Practice. See, also, as to what consti- by an attornej", after judgment, and tutes an appearance, Douglass v. Hab- upon such appearance is entitled to no- erstro, 58 How., 276; S. C, 8 Abb. tice of subsequent proceedings. (Mar- (N. C), 231; Couch v. Mulhone, 63 tine V. Lowenstein, 68 N. Y., 457.) How., 79. ' As to entering defendant's appear- ^ See note to form No. 123. Commencement of Action. 41 No. 60. Notice of Object of Action and of no Personal Claim in Mortgage Foreclosure Cases. (Code Civ. Pro., §423.) [Title of cause.] To the above named defendants, except A. B.: Take notice, that the summons herewith served upon you in this action, is issued upon a complaint [*] praying the foreclosure of a mortgage executed by E. F., , to G. H., on the day of , 18—, recorded in the office of the clerk of the county of , in book of mortgages No. — , page — , on the day of , 18—, at o'clock — M., to secure the payment of the sum of dollars, with interest thereupon from , 18 — , upon the following described premises, namely [here insert brief description of property]: and that no personal claim is made against you, or against any defendant, except A. B. Dated , 18—. A. M., Attorney for Plaintiff. No. street, , N. Y.' No. 61. Same Notice in Other than Mortgage Foreclosure Cases. (Code Civ. Pro., §433.) As in form No. 60 to [*], and from thence as follows : praying [here set forth general object of the action and a brief description of the property affected by it, if it affects specific real or personal property then add :] and that no personal claim is made against you, or against any defend- ant, except A. B. Dated , 18—. A. M., Attorney for Plaintiff. No. street, , N. Y.' ' See note to form No. 18^, * See note to form No. 13i?, 42 Forms Eelatikg to No. 62. Indorsement on Summons of Time within which It Must be Served. (Code Civ. Pro., §435.) The within summons must be served upon the defendanr, A. B., on or before the day of , 18 — . Dated , 18—. A. W., Plaintiff "" s Attorney. No. street, , N. Y.' No. 63. Sheriff's Certificate of Service of Summons, or Summons and Complaint Indorsed Thereon. (Code Civ. Pro., §434.) I, A. M., sheriff of the county of , hereby certify, that on the day of , 18 — , at the city [or town] of , in said county, I served the within sum- mons [and complaint therein mentioned] by delivering a copy of said summons [together with a copy of the said complaint] to A. B., the defendant therein named per- sonally. Dated , 18—, A. M., Sheriff. [By C. D., Deputy.] No. 64. Certificate of Service of Summons and Complaint upon an Infant under Fourteen Years of Age. (Code Civ. Pro., § 43G, subd. 1.) County of , ss. : I certify that on the day of , 18 — , I served the within summons [and annexed complaint] upon the within named defendant, 0. D., an infant under the age of fourteen years, by delivering to him personally copies thereof, in , in said county, and also by delivering ' gee note to form No. 132, Commencement of Action. 43 at the same time and place like copies, personally, to E F the father [or mother, or guardian] of said infant [or to b. H., the person having the care or control of said infant ; or to J. J , the person in whose service said infant was then employed; or to J. K., the person with whom said infant then resided, such infant having no father or mother or guardian within this State]. A. B., Blierlffof- County. [By C. D. Deputy. \ No. 65. The same upon a Lunatic, Idiot or Habitual Drunkard and his Committee. (Code Civ. Pro., §§426, subd. 3; 484, subd. 1.) County of , ss.: I certify that on the day of 18— I served the within summons [and annexed complaint] upon the within named defendant, A. B., a person judicially de- clared to be inconjpetent to manage his affairs by reason of lunacy \or idiocy, or habitual drunkenness] and for whom a committee has been appointed, by delivering to him per- sonally' a copy thereof in the city [or town] of - , in said county ; and by delivering a like copy to C. D., the committee of said defendant, on the day of 18 — , at , in said county, personally. A. M., Sheriff of County. [By G. H., Deputy.] ISTo. 66. Certificate of Service of Summons on Person Designated by a Resident of the State During his Absence to Re- ceive Service for Him. (Code Civ. Pro., §§ 436, 430.) County of , ss.: I certify that on the day of , 18 — , I ' See section 439, Code Civ. Pro. , as personally may be dispensed witli by to case in wljicti servipe on defendsat the co\irt. 44 Poems Relating to served the within summons [and annexed complaint] upon E. F., the within named defendant, by delivering a copy [or copies] of said summons [and complaint] personally to C. D., a person designated by said E. P., by writing exe- cuted and acknowledged by him according to law, and filed by him with the written consent of said C. D., executed and acknowledged by said C. D., according to law, in the county of ■ , where said E. P. resides. A. M., Sheriff of County. [By G. H., Deputy.] ISTo. 67. Certificate of Service of Summons on a Corporation. (Code Civ. Pro., g§ 431, 433.) County of , ss. : I certify that on the day of , 18 — , I served the within summons [and annexed complaint] upon the within named defendant, the [here insert name of cor- poration] by delivering to A. B. [the president, managing agent, mayor, etc.], of said corporation, personally, a copy \or copies] thereof, at , in said county. C. D., Sheriff of County. [By E. P., Deputy.] No. 68. Certificate of Service of Summons on a Person Designated by Foreign Corporation in the County to Receive Same. (Code Civ. Pro., §433, subd. 2.) County of , ss. : I certify that on the — — day of , 18 — , I served the within summons [and annexed complaint] npon the within defendant, the [here insert name of corporation] at , in said county, by delivering to A. B , the person^ designated by said corporation, according to law, on whom a summons may be served, a copy of said summons \or copies of said summons and complaint] personally. A. M., Sheriff of County. [By E. P., Deputy. \ / Commencement of Action. 46 No. 69. The same where Person so Designated Cannot he Pound, etc. (Code Civ. Pro., § 433; subd. 3.) County of , ss.: I certify that on the day of , 18— I served the annexed summons [and complaint] on the de- fendant therein named the [here insert name of corporation], a foreign corporation, by delivering a copy of said summons [and complaint] to C. D. [the cashier, or a director, or], a managing agent," to wit: a , of the said corpora- tion, at , in said county. And I further certify, that after due and diligent search, and inquiry made by me,' no president, treasurer, secretary or officer of said corporation performing corresponding func- tions under another name, could be found by me to be within the said county [and that M. V., the person designated, ac- cording to law, by said corporation, upon whom the service of said summons should be made, could not be found by me after due and diligent search' had been made by me within said county, for the purpose of finding him, to make such service upon him].' A. M. Sherifof Gounty. [By E. F., Deputy. '\ No. 70. Certificate of Service of Summons on Several Defendants at Different Times. (Code Civ. Pro., §§ 436, 434, subd. 4.) County of , ss.: I certify that I served the within \or annexed] summons and complaint annexed thereto, upon the s.everal defend- ants therein named, by delivering to each of them, person- ' See note 1, form 76, and note 1, s Tjjg service upon a director tem- form 78. porarily here, is valid only when the " The proof of due diligence to find cause of action arose here, or the for- such officer or person -within the State eign corporation has property here, should appear independently of the (Hiller v. B. and M. K. R. Co., 70 Nr sheriff's certificate, by affidavit, show- T., 823.) Log what diligenc was used. 46 Forms Relating to ally, copies thereof, at the times and places in said county set opposite their names respectively, to wit : A. B., on the day of , 18 — , at . C. D., on the day of , 18 — , at . E. F., on the day of , 18 — , at . A. M., Sheriff of County. [By R. H., Deputy. \ No. 71. Certificate that Defendant Evades Service of Summons. (Code Civ. Pro., §435.) . County of , ss.: - I certify that the within defendant is a resident of , in said county, and that I have made proper and diligent efforts to serve the within \or annexed] summons upon him, but that his place of sojourn cannot be ascertained \or that said defendant avoids such service], so that such service cannot be made personally upon him by such proper dili- gence and effort." A. B., Sheriff of County. [By E. H., Deputy.] No. 72. Proof of Service in Such Case. , (Code Civ. Pro., §436.) County of , 5*./ A. B., being sworn, says, that on the day of , 18 — , he made service of the within [or annexed] summons [and annexed complaint] upon the within defend- ant, E. F., in said county, in pursuance of the annexed order by [leaving copies of such summons (and complaint), and of said order, at the residence of said defendant, with his wife," a person of proper age], and by depositing other copies thereof, properly inclosed in a postpaid wrapper, and addressed to said defendant at , his said place of " See notes to form No. 90. ' In cases of service on other person than wife, state age of person. COMMETSrCEMENT OF ACTION. 47 residence, into the post-office in said , and further saith not.' A. B. [Jurat as in No. 46. J No. 73. Affidayit of Service of Summons and Complaint hy Person other than Sheriff? (Code Civ, Pro., § 426, subd. 4.'' [Title of cause.] County, ss.: A. B., of , being duly sworn, says : That on the day of , 18 — , at , in the county of and State of New York, he served the annexed summons [and couipla,int {or notice) thereto annexed] upon C. D., the defendant [or one of the defendants] therein named, by delivering to and leaving witlif the said Or B. a copy [or copies] of said summons [and complaint, or notice] and leaving said copy [or copies] with him ; [fl that he knew the said C. D. to be the person [or one of the persons] men- tioned and described in said summons as defendant [or defendants] in the above entitled action ; [*] that deponent is of- 'full age, viz.: of the age of twenty-one years and up- wards"[o/' was of the age of [eighteen] years on the day of , 18—]. [In action for divorce or to annul a marriage, or for sepa- rate maintenance, add (*) : that deponent knew the said C. D. to be the said defendant and proper person to be served by reason of the following facts, to wit : (here state ' If the officer cannot get into the there being no person of suitable age house, or there is no person who will to receive the same," or, "there being receive the paper, insert, in place of no person of suitable age who would the part in brackets, the following: receive the same. " See No. 91. "Affixing the same to the outer [or ' For forms of sheriffs' certificates other] door of the residence of said de- of service of summons, see forms Nos. fendant, the said house being closed," 63-73. " or admittance being refused, '""or, 48 Forms Eelating to what knowledge lie had on the subject and now he acquired such knowledge).'] A. B. [Jurat as in No. 46.] No. 74. Affidavit of Service of Summons and Complaint or Notice on Infant under Fourteen Years of Age. (Code Civ. Pro., §426, subd. 1.) As in form No. 73 to [:|:], and thence as follows ; and by also delivering to and leaving with E. F., whom he knew to be the father [or mother, or guardian] of said infant [or the pei'son having the care and control of said infant de- fendant {or with whom said infant resided, or in whose ser- vice said infant was employed), there being no father, mother or guardian of said infant within this State], a copy [or copies] of said summons [and complaint or notice], and from thence as in form No. 73 from [fl to close.' A. B. [Jurat in No. 46.] No. 75. Affidavit of Service of Summons on Lunatic^ etc., for whom Committee has been Appointed. (Code Civ. Pro., § 436, subd. 2.) As in form No. 73 to [fl, and from thence as follows : and also by delivering to and. leaving with P. R., the com- mittee of said C. D., said C. D. having been judicially de- clared to be incapable of managing his affairs by reason of lunacy [or idiocy {or habitual drunkeness)], and said P. R. having been appointed such committee a copy [or copies] of said summons [and complaint or notice (then add as in form No. 73 from ^ to close)]. A. B. [Jurat as in No. 46.] ' See, also, General Rules of Prac- may be made by any person less than lice, No. 18, as to requisites of affidavit eighteen years of age. See No. 829. of service, and that no such service ' See note 1 to form No. 73. Commencement oe Action. 49 No. 76. Affldayit of Service of Summons on a Corporation. (Code Civ. Pro., §§ 431, 433, subd. 1.) [Title of cause.] COXJNTT OP , ss.: A. B., of ^^^ -fbeing duly sworn, says, that on the day of , 18—, he served the within sum- mons [and annexed complaint {or notice)] upon the within named defendant the [here insert name of corporation] by de- livering to, and leaving with [f] C. D., the president [man- aging agent,' mayor, etc.'] of said corporation,' a copy [or copies] of said summons [and complaint or notice] at , in the county of . That deponent knew the said C. D., to be the president [or managing agent, or mayor, etc.] of the said defendant, said corporation, men- tioned and described in said summons, as the defendant [or one of the defendants] in the above entitled action. That deponent is of full age, viz., of the age of twenty-one years and upwards [or was of the age of (eighteen) years, on the day of , 18—]. A. B. [Jurat as in No. 46. J No. 77. Affidavit of Service of Summons on Person Designated by Foreign Corporatioii to Receive Same. (Code Civ. Pro., § 433, subd. 2.) As in No. 76 to [f], andJfrom thence as follows: C. D., the person designated by said corporation, according to ' See note 1 to form No. 78, and see cers, to the officers performing corres- Emerson v. Auburn and O. L. R. E. pondingf unctions under another name. Co , 13 Hun, 150, as to who is a man- ^ After judgment dissolving a cor- aging agent. poration, and appointing a receiver, an 2 The officers of foreign corporations, action cannot be commenced against upon whom service of summons may it by service of a summons upon any be made under subdivision 1, of sec- of its officers. (Hetzel v. Tannehill S. tion 432, Code Civ. Pro., are the presi- M. Co., 4 Abb. N. C, 40; N. Y. C. P., dent, treasurer, or secretary, or if the Sp. Term.) corporation lacks either of these offl- 7 50 Forms Relating to law,' on whom a summons may be served, a copy [or copies] of said summons [and complaint], at , in the county of . That deponent knew the said CD to be the person so designated by said defendant, said corporation, mentioned and described in said summons as the defendant [or one of the defendants] in the above entitled action. That deponent is, etc. [here add statements as to age of affiant, as in form No. 76.^] A. B. [Jurat as in No. 46.] No. 78. Affidavit of Service of Summons on Foreign Corporation where no Person is Designated to Receive Service, etc. (Code Civ. Pio., § 433, subd. 8.) [Title of cause.] County, ss. : A. B., of , being duly sworn, says, that he has made due and diligent effort, as hereinafter stated, for the purpose of serving the annexed summons, to"find, within tljis State, the president, treasurer or secretary, or other officer performing corresponding functions under another name, of the defendant, the [here insert name of corpora- tion], a foreign corporation, to wit : [here state the efforts . used for the purpose of finding such officer]' and that having ascertained, by a search of the records and files of the office of the Secretary of State, that no designation by the said corporation, according to law, of a person to make such service upon, is in force [or the person designated, according to law, by said corporation to receive service of such summons not having been found (by deponent ') within the State after due and diligent search, to wit : (here state efforts made to find such person)] he served the annexed ' An exemplified copy of the designa- thereof, and these may properly be an- tioD, accompanied with certificate that nexed to the aflBdavit. it has not been revoked, Is made by * See note to form No. 73. subd. 3 of section 483, Code Civ. Pro., ' If these efforts have been made by presumptive evidence of the execution another party than affiant his affidavit should be annexed and referred to. CoMMENdEMfiNT Oi' Ao'rioiif, 51 summons on the said defendant [naming it] by delivering a copy thereof to and leaving the same vi^ith C. D. [the cashier, or a director or\ a managing agent, to wit: a ' of the said corporation, at the of — , in the county of — ; that deponent knew the said C. D, to be the [cashier, or a director, or such man- aging agent] of said defendant [naming it'] ; that said de- fendant at the time of such service had property within the State [if the cause of action arose in the State it need not be stated that it has property therein] ; that deponent' [here add statements as to age of afllant as in form No. 76]. A. B. [Jurat as in JSTo. 46.] No. 79. AfBdayit of Service of Summons on Under- Sheriff, etc.. for Sheriff in Action for Escape. (Code Civ. Pro., § 426, subd. 3.) [Title of cause.] County of -= , ss. : A. B., of , being duly sworn, says, that on the day of — , 18 — , at , in the county of , he served the annexed summons [and com- •plaint, thereto annexed] on C. D., sheriff of county, the defendant therein named, by delivering to, and leaving with, said C. D., in person [or with R. S., the under-sheriff of said sheriff, in person or with E. P., a deputy-sheriff of said sheriff ; or a clerk in the employment of said sheriff ; ' As to who is a managing agent plaint shows that the cause of action under section 433, subd. 3, Code Civ. arose in the State. (Code Civ. Pro., Pro., see Reddington v. Mariposa L. § 433, subd. 8.) and M. Co., 19 Hun, 405; Sterrett v. The property should he of some sub- Denver and R. G R R. Co. , 17 id. , 316. stantial value. A few maps and books ° A service on a cashier, director or of little or no market value and the managing agent of a foreign corpora- defendant's own unissued bonds are tion is only good when the corporation not such. (Barnes v. M. and N. W. has property within the State, or the R. R. Co., 13 Hun, 136, citing Cod- cause of action arose therein. Some dington v. Gilbert, 17 N. Y., 489.) proof should, therefore, appear of its ^ See note to form No. 73. having such property, unless the com- 62 Forms Helating to or a person in charge of the office of said sheriff, said de- livery to said E. P. being made at the office of said sheriff, during the hours when it is required by law to be kept open, to wit : at o'clock — M.J, a copy \or copies] of said summons [and complaint']. That deponent knew the said C. D. to be the person described in said summons as defendant in the above entitled action." That deponent was, at the time of such service, of full age \or of the age of (eighteen) years and upwards]. [Jurat as in form No. 46.] No. 80. Order of Court that Service he Made on Person other than Defendant in Certain Cases. (Code Civ. Pro., §427.) At a Term of the : court, held at , on tlie day of , 18 — . Present, Hon. A. O. [Judge, or Justice.] [Title of cause.] It having appeared to the court that the defendant, A. B., is an infant of the age of fourteen years and upwards [or the court having, in its opinion, reasonable ground to be- lieve that the defendant, A. B., by reason of habitual drunk- enness {or other cause), stating it, is mentally incapable, adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs], and upon the application of M. N.: It is hereby ordered that a copy of the summons in the above entitled action be also delivered, in behalf of the said defendant, A. B. to R. S., and that service of the sum- mons, upon said defendant, shall not be deemed complete ' See Dunford v. Weaver (84 N. Y., of the right to serve a summons, as 445; afiBrmingS. C, 31 Hud, 349), that provided by Code Civ. Pro., section a sheriflE cannot, by omitting to file a 426, subd. 3. notice of the place of his office in the ' Add this clause where the service comity clerk's office, as provided by 3 is upon defendant personally. (See R. S., 385, section 55, debar a suitor rule 18 of Gen. Rules of Practice.) Commencement of Action. 53 until sucli delivery is made [and that a copy of this order be also served upon the said R. S., when such delivery to him is made]. No. 81. Order of Court for Service where it Appears that Person to whom Summons is Delivered has Adverse Interest, etc. (Code Civ. Pro., §438.) [At, etc., as in form No. 80.] [Title of cause.] The court having, in its opinion, reasonable ground to believe that the" interest of C. D., the person [or committee, etc.] to whom a copy of the summons was delivered, to com- plete the service upon the defendant, A. B., in the above entitled action, said A. B. being an infant under the age of fourteen years [or said A. B. being a person Judicially de- clared incompetent to manage his affairs, in consequence of lunacy (or idiocy, or habitual drunkenness)], is adverse to that of said A. B., [or that said C. D. is not, for the reason (stating it), a fit person to protect the rights of said A. B. j, it is hereby ordered, that a copy of the summons in this action be also delivered, in behalf of the defendant, A. B., to R. S., and that service of the said summons shall not be deemed complete until it is so delivered [and it is further ordered that a copy of this order be delivered to said R. S., with said copy of the summons]. [And it is hereby further ordered, that E. F., of , be and he is appointed special guardian, ad litem, of said A. B., to conduct the defense for the said A. B., to the ex- clusion of the said committee, and with the same powers, and subject to the same liabilities, as a committee of the property of said A. B.'] ' This clause in brackets may be dian's appointment may be made eitlu r added in cases under subdivision 2 of by the same order or hj a separate S9Ct}on4'i6, Code Ciy, Pro, The guar- pydey. 54 FoEMR Relating to No. 82. Affldayit to Procure Order Dispensing with Service upon Lunatic. (Code Civ. Pro., § 429.) [Title of cause.] County, ss. : A. B. and C. D., being duly sworn, say, that they are practicing physicians,' residing in the of , and are acquainted with Y. Z., a lunatic, defendant in the above entitled action, and with the mental condition of such lunatic, and that, in their opinion, the delivery of a copy of the summons in said action to said Y. Z. , would tend to aggravate his disorder [or to lessen the probabilities of his recovery]. That the following are the reasons for deponent's said opinion [here state reasons]. A. B. C. D. [Jurat as in form No. 46.] No. 83. Order Dispensing with Delivery of Copy of Summons to Lunatic. (Code Civ. Pro., § 429.) [At, etc., as in form No. 80.] [Title of cause.] It having appeared satisfactorily to the court, by the affi- davit [or affidavits] of A. B. [and C. D. j, dated [respect- ively] , 18— [and , 18 — ], that the delivery of a copy of the summons in this action to the defendant, Y. Z., who has been judicially declared to be incompetent to manage his affairs in consequence of lunacy, in person, ' other afBdavita might be produced, attorney, or otherwise, that the defend- as of the person in charge of the luna- ant has been judicially declared to be tic, as to facts showing the necessity incompetent to manage his affairs in for dispensing with service, and proof consequence of lunacy, gboiild be Efiade by the afl^davit of tfte Commencement of Action. 55 will tend to aggravate his disorder [or to lessen the proba- bility of his recovery] ; now, on motion of, etc., it is hereby ordered, that the delivery of a copy of the summons to said Y Z., in this action, be and is hereby dispensed with, and that the delivery of a copy of the said summons to P. E., the committee of said lunatic, be sufficient personal service upon said defendant, Y. Z. No. 84. Designation by a Resident of a Person upon whom to Serve a Summons During his Absence from the United States. (Code Civ. Pro., §430.) I, A. B., a resident of the of , in the county of and State of New York, being of full age and by occupation a [hardware merchant], do hereby, pursuant to law, designate C. D., a resident of the of : , in the county of and State of New York, and by occupation a [farmer], as a person upon whom a summons, or any process or other paper for the commencement against me of a civil special proceeding in any court, or before any officer, may be served in like man- ner, and with like effect, as if it was served personally upon me during my absence from the United States [for the period of , from the date of this instrument']. In witness whereof, I have hereunto set my hand this day of , 18 — . A. B. In presence of E. F. State of New York, ) „„ . f do. • County, On this day of , 18 — , before me person- ' This designation does not apply to filing, unless other period is specified, a proceeding to punish for a contempt, or unless cailier revoked by the death or where special provision for the ser- or legal incompetency of cither of the vice is otherwise made liy law. (Code parties thereto, or by the filing of a re- Civ. Pro., § 433.) The designation vocation executed and acknowledged f^Wftips |n foyce fqx tl)ree ^ears after ill lijie fpafln^r. ^Se^ (opfl Jfo, gSi) 66 Forms Eelating to ally came A. B., to me known to be the individual described in, and who executed the foregoing instrument, and to me acknowledged the execution thereof by him. F. Gr., Commissioner of Deeds. {Justice of the Peace or other officer authorized to take ac- knowledgment of deeds.] I, C. D., of the of , in the county of -, and State of 'New York, by occupation a [farmer], named in the foregoing instrument, do hereby, pursuant to law, consent to the designation and appointment of my- self as a person upon whom a summons, or any process or other paper for the commencement of a civil special pro- ceeding against A. B., mentioned in said instrument, in any court or before any officer may be served, in like manner, and with like effect, as if it was served personally upon said A. B. during the absence of said A. B. from the United States [for the period of J. Witness my hand and seal, this day of , 18—. C. D. In presence of . [Acknowledgment by C. D., as last above given.. No. 85. Revocation of Designation by Resident of Person to Re- ceive Service of Summons, etc. (Code Civ. Pro., §430.) I, A. B., a resident of the of , in the county of , and State of New York, by occupation a [hardware merchant], do hereby, pursuant to law, revoke the designation made by me of C. T>., a resident of the of , in the county of , and State aforesaid, by occupation a [farmer], as a person upon whom a summons, or any process or other paper, for the com- mencement against me of a civil special proceeding in any pourt, or before any officer, might be served, in like paannerj Commencement of Action. 57 and with like effect, as if it was served personally upon me during my absence from the United States [for the period of years from the day of , 18— J, which said designation is dated , 18 — , and was filed and recorded in the office of the clerk of the county of , on4he day of ^ , 18—. In witness whereof, etc., as in form No. 84. A. B. In presence of . [Acknowledgment by A. B., as in form 'No. 84. j Or, I, C. D.. a resident of the — of , in the county of , and State of New York, by occupa- tion a [farmer], do hereby, pursuant to law, revoke the con- sent executed by me to my designation by A. B., of the of , in the county of , and State of New York, by occupation a [hardware merchant], as a person upon whom a summons, or any process or other paper for the commencement against said A. B. of a civil special proceeding in any court, or by any officer, might be served, in like manner, and with like effect, as if it was served personally upon said A. B. during his absence from the United States [for the period of years, from the day of , 18 — ], which consent is dated on the day of , 18 — , and wns filed and recorded in the office of the clerk of the county of , on the day of , 18 — . In witness whereof, etc., as in form No. 84. C. D. In presence of . [Acknowledgment by C. D., as in form No.^ 84.] No. 86. Designation by Foreign Corporation of a Person for the Purpose of Service of Summons upgn it. (Code Civ. Pro., § 432, subd. 2.) The [here insert name of corporation], a foreign corpora- tion organized bj and under the laws of the State of 58 FoKMS Relating to in the United States of America, does hereby, pursuant to law, designate and appoint' A. B., residing \or having his office] at No. street;, in the city of , in the State of New York \or at the of , in the county of , in the State of New York], as a person upon whom service of a summons, or*any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, except a proceeding to pun- ish for contempt, and except where special provision for the service thereof is otherwise made by law may be made,' for said corporation. In witness whereof, the said [here insert name of corpora- tion] has caused its [president, etc.] to affix his sig- [l. S.J nature and its corporate seal, on the day of :, 18-. C, D., President. [ Vice-President, or other acting head of corporation {naming officer).] In presence of I, A. B., named in the foregoing instrument, do hereby consent to the designation of myself j made by said instru- ment, as a person upon whom service of a summons, or any process or other paper whereby a special proceeding is com- menced in a court or before an officer, except a proceeding to punish for contempt and except where special provision for the service thereof is otherwise made by law, may be made for the [here insert name of corporation], a foreign corporation, organized under the laws of the [State] of , in the United States of America. In witness whereof, I have hereunto set my hand on this day of , 18 — . CD. In presence of . ' Where a foreign corporation has a summons thus served may he en- designated an agent upon whom to forced against any property of the serve process, as required by the stat- corporation within the jurisdiction, utes of this State, it thereby submits (Gibbs v. Queen Ins. Co., 63 N. Y., itself to the jurisdiction (.f the State 114.) courts, and a judgment rendered upon Commencement of Action. 59 No. 87. Revocation of Designation of Person Designated Iby For- eign Corporation for tlie Purpose of Service of Sum- mons upon. (Code Civ. Pro., § 432, subd. 3.) The [here insert name of corporation], a foreign corpora- tion, organized by and under the laws of the [State] of , in the [United States of America], does hereby, pursuant to law, revoke the designation and appointment made heretofore by it, by instrument dated , 18 — , and filed in the oiflce of the Secretary of State of the State of New York, on the day of , 18—, of A. B., residing \or having his office] at Ko. street, in the city of , in the State of New York [or at the of , in the county of , in the State of New York] as a person upon whom a summons or any process or other paper whereby a special proceeding is com- menced in a court or before an officer, except a proceeding to punish for contempt and except where special provision for the service thereof is otherwise made by law, could be served for said corporation. In witness whereof, the said [here insert name of corpora- 1 tion] has caused its [president, etc.] to affix hereto '- ' his signature and its corporate seal. C. D., President, etc. [as inform No. 86.] In presence of Or, T, C. D. , residing [or having an office] at No. street, in the city of [or residing {or having an office) at the of , in the county of , in the State of New York], do hereby revoke my consent, (jated ; 18 — , to my designation and appointment, by the [here insert name of corporation], a foreign corpora- tion, organized by and under the laws of the [State] of,- J in [the United States of America], as a person upon whom service of a summons or any process or other paper whereby a special proceeding is commenced in a court or before an officer, except a proceeding to punish for con- tempt and except where special provision for the service 60 FoEMS Relating to thereof is otherwise made by law, may be made for said corporation, which instrument bears date on the day of , 18 — , and was filed with my said consent in the office of the Secretary of State of the State of New York, on the day of , 18 — . In witness whereof, I have hereunto set my hand, this day of , in the year , 18- In presence of CD. No. 88. Change of Office or Eesidence by Person Designated by Foreign Corporation upon whom Snnimons may be Seryed (Code Civ. Pro., § 433, subd. 3.) I, C. D., the person appointed and designated by the [here insert name of corporation], a foreign corporation organized under the laws of the [State] of , in [the United States of America], upon whom a summons, or any process or other paper, whereby a special proceeding is com- menced in a coiirt or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law, may he served for said corporation, by a writing, executed by said corporation according to law, dated , 18 — , and filed in the office of the Secretary of State of the State of New York, on the day of , 18 — , do hereby cer- tify that my office [or residence] has been changed from the place mentioned in said writing to No. street, in the city of , in the State of New York [or to the of , in the county of , in the State of New York. J In witness whereof, I have hereunto set my hand, this [L. s.] day of , in the year 18 — . C. D. In presence of . Commencement op Action. 61 No. 89. Written Admission of Service of Summons. (Code Civ. Pro., § 434, subd. 3.) [Title of cause.'] I, A. B., defendant [or one of the defendants] in the within [or above] entitled action, do hereby admit due and personal service of the within [or annexed] summons upon me (by deliveaing to, and leaving with, me a copy thereof), at the of , in the county of ,' and State of New York, on the , day of , in the year 18—.' ^ A. B. [Certificate of acknowledgment as in form No, 110.] Or, afiidavit as follows : County, ss. : C. D., of , in said county, being duly sworn, says, that on the day of , 18 — , he saw A. B., to him known to be the person described in the within [or annexed] summons as a defendant in the above entitled action, sigu the foregoing admission of service thereof, and that the said signature of said defendant is genuine [or that he is well acquainted with the handwriting of A B., the person mentioned and described in the within {or annexed) summons as a defendant in the above entitled action, having seen him write {or state other grounds of knowledge), and that he believes the signature to the fore- going admission of service of said summons to be the genu- ine signature of said defendant]. [Jurat as in form No. 46. ] C. D. • The title of cause may be omitted, (Per Allen, J., in White v. Bogart, where the admission is endorsed upon 73 N. Y., 250; see, also, Maples v. the summons. Mackey, 15 Hun, 538 ; Miller v. Bren- 2 The words in parenthesis may be ham, C8 N. Y., 83; Jones v. U. S. omitted, as they seem to be unnecessary Slate Co., 16 How., 129.) under section 434 of Code of Civ. Pro. , The decision in Read v. French (28 although proper to be inserted. N. Y., 285), that the admission should » It seems that the failure to state the state that the service was personal, by time or place of service in the defend- delivering, etc., is overruled by the pro- ant's admission of service, is an amenda- vision of the last sentence. (§ 434, ble irregularity, even after judgment. Code Civ. Pro.) 62 Forms Rklating to Article Second. FORMS RELATING TO SUBSTITUTES FOR PERSONAL SERVICE OF SUMMONS IN SPECIAL CASES. (Code Civ. Pro., Ch. 5, Tit. 1, Art. 2 ) No. 90. Affidavit to procure order for service of summons on a resident, who cannot be found. 91. Order upon such affidavit. 93. Affidavit of plaintiff, or his attorney, to obtain order for service by publication of summons. 93. Affidavit of search and inquiry for defendant. 94. Order for service of summons by publication. 95. Notice to defendant to accompany summons as published. 96. Notice to be served with summons, wlien service is made without the StMte. 97. Proof of publication of summons and notice. 98. Affidavit of deposit in the post-office, pursuant to order. 99. Affidavit of service on defendant without the State. 100. Notice to defendant of entry of judgment, in case of service by pub- lication. IS^O. 90. Affldayit to Procure Order for Service of Summons on a Resident, wlio Cannot be Found. (Code Civ. Pro., §435.) [Title of cause.] COUNTT, ss.: A. B., of , being duly sworn, deposes and says, that on the day of , 18 — , a summons in the above entitled action, of which a copy is hereunto an- nexed, was issued to him for service upon the defendant, C. D., who resides at , in the county of , in this State, by plaintiff's attorney in said action ; that de- ponent has made proper and diligent effort to serve the said summons upon the said defendant and that the place of his sojourn cannot be ascertained [or that said defendant being within this State avoids service of said summons] ' so ' If the defendant can be found, for substituted service, see McCarthy althoughnot within the State, the case v. McCarthy, 16 Hun, 546; Nagle v. is one provided for by section 438 of Taggart, 4 Abb. (N. C), 144; Haswell Code Civ. Pro., subd. 3, and not by v. Linclis, 87 N. Y., 637; Carter v. section 485, id. Youngs, 43 N. Y Super. Ct. Rep.. 169; As to what facts are sufficient to Easton v Malavazi, 7 Daly, 147, Mc- authorize an order under section 435 Carthy v McCarthy, 54 How. Pr., 97. Commencement of Action. 63 that personal service thereof upon him cannot be made ; that deponent, with the intention of making such service upon defendant, made the following eflfort to find said de- fendant [here state the efforts and inquiries which were made for that purpose].' A. B [Jurat as in No. 46. J No. 91. Order for Service of Summons on a Resident who cannot be Found. (Code Civ. Pro., §435.) [Title of cause.] It appearing by the affidavit of A. B., dated , , 18—, that a summons has been issued in the above entitled action, wliich is hereunto annexed, to be served upon the defendant, C. D., who resides at , in the county of , in this State, and that proper and dili- gent effort to serve the said summons upon the said defend- ant has been made and that the place of his sojourn cannot be ascertained \or that said defendant being within this State avoids service of said summons] so that personal ser- vice thereof upon him cannot be made. It is hereby ordered and directed that the service of said summons be made upon said defendant, C. D., by leaving a copy thereof and of this order at the residence of the said defendant, with a person of proper age, if, upon reasonable application, admittance can be obtained and such a person found who will receive it ; or, if admittance cannot be so obtained nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to said defendant, at his ' The certificate (form No. 71) of the above. The aflBdavit cannot be made sheriff of the county wheje defendant by a party to the action. (Code Civ resides maybe used, substantially as Pro., §435.) 64 Forms Relating to place of residence, in the post-offlce at the place where he resides.' Dated , 18—. T. A., County Judge of County. [Or A. O., Justice {or Judge) of Supreme Court {or other court)."] No. 92. AffldaTit of Plaintiff or his Attorney on Application for Order for Service of Summons hy Publication. (Code Civ. Pro., §439.) [Title of cause.] . County or — , ss.: A. B., of , being duly sworn, says, that he is the plaintiff [or the plaintiff's attorney] in the above entitled action ; that the defendant, C. D., is a foreign corporation, organized by and under the laws of the [State] of , and located and having its principal office for the transac- tion of its business at , in the of [or that the defendant, C. D., resides out of the State and at , in the (State) of ; or that the defend- ant, C. D., after diligent inquiry, remains unknown to the plaintiff; or that plaintiff is unable to ascertain whether the defendant, 0. D., is or is not a resident of the State ; or other cases provided for by section 438 of the Code] ; that the residence and post-office address of the said defendant is (as nearly as the plaintiff is able to ascertain the same), at — —, in the [State] of ; — [or that.plaintifl has been unable to ascertain, with reasonable diligence, the residence or j)ost-office address of the said defendant, or a place where the defendant would probably receive matter transmitted through the post-office]. That said defendant is of full age [or is an infant upwards of {or under) fourteen years of age]. [And that plaintiff has been {or will be) unable, after due ' For proof of service of summons ' The order may also be made by the pursuant to order, see form No. 78. court. (Code Civ. Pro., § 435.) See notes to form No. 90, Commencement of Action. 65 diligence, to make personal service of the summons upon said defendant.'] And deponent refers to the annexed affidavit [or affida- vits] of E. F. [and G. H.], dated , as to the search and inquiry made for said defendant for the purpose of serving said summons upon him [and of ascertaining his residence or post-office address]." That, etc. [as in form No. 209 from (f)]. [Jurat as m form No. 46.] No. 93. Affidavit of Search and Inquiry for Defendant on Appli- cation to Serve Summons by Publication. (Code Civ. Pro., §438. [Title of cause.] County oe , **./ E. F., of , being duly sworn, says, that on the day of , 18 — , a summons in the above entitled action which is hereto annexed, was issued and de- livered to him by plaintiff's attorney in said action for ser- vice upon the defendant, C. D. That deponent has made due and diligent search and inquiry for the said defendant, C. D., for the purpose of finding him within this State to serve said summons upon him [here state efforts and inqui- ries which have been made, and state the information ob- ' The clause in brackets need only ton v. Carleton(85id., 313; rev'gS. C, be inserted in cases under subdivisions 23 Hun., 251, and distinguishing H. M.^ 4, 5 and 7 of section 438, and iij cases Co. v. Pettibone and Belmont v. Cor- where the application is made' on the nen Isupra'], Staples v. Fairchild (3 ground that defendant is a foreign cor- Comst., 46), Smith v. Mahon (27 Hun, poratlou or a non-resident of the State. 40), Walker v. ReifE (Sup. Ct., Second (Code Civ. Pro., §439.) Dept., Dec, 1881; 13 N. Y. Week. ' For affidavit as to search and ih^ Dig., 331), Schroeder v. Lear (17 id., quiry for defendant, see next form; 574). 19 id., 46.) No. 93. Qumre, whether the non-resident As td proof necessary upon applica- representatives of a deceased defend- tion, see Howe Machine Co. v. Pettibone ant can be served by publication. Per (74 N. Y. , 68 ; S. C. , 1 2 Hun, 657), Bel- Miller, J. , Angell v. Lawton (76 N. Y. , inont V. Cornen (83 N. Y , 256), Carle-;, 540, S. C., 14 Hv^n, 7Q), 66 Poems Relating to tained, so as to justify any of the following conclusions], and deponent further shows that said defendant, CD., can- not be found by him within this StafceJ^or that he cannot find or obtain any knowledge of the defendant, C. D., or that he has been unable to ascertain whether the defendant is or is not a resident of this State ; or that being a resi- dent of this State, said defendant has departed therefrom {or iieeps himself concealed therein) with intent to defraud his creditors {or to avoid the service of a summons) ; or that being an adult, and a resident of this State, he has been continuously without the United States for more than six months prior to this time, and has not made the desig- nation of any person upon whom to serve a summons in his behalf, as prescribed by section 436 of the Code of Civil Procedure] [and that deponent has been unable, after dili- gent search and inquiry made as above stated, to ascertain the residence of said defendant, or any place where said de- fendant would probably receive matter transmitted through the post-ofiice], and, further, this deponent says not.' E. F. [Jurat as in form No. 46.] No. 94. Order for SerTice of Summons Iby Publication. (Code Civ. Pro., § 440.) - [Title of cause.] It having appeared by a verified complaint in the above entitled action, hereto annexed, that a sufiicient cause of action exists against the defendant, C. D., and proof having been made by afiidavits, hereto annexed, that said defend- ant is a foreign corporation, organized by and under the laws of the State of \or that the said defendant is not a resident of the State ; or state other case provided for by section 438 of the Code of Civil Procedure] [and that the plaintiff has been {or will be) unable, with due diligence. I See not? 2 to form No. 93, Commencement of Action. 67 to make personal service of the summons in this action upon said defendant.'] And it further appearing by said annexed affidavits, that the said defendant is located and has its office for the prin- cipal transaction af its business [or resides] at , in the State of , and that its [or his] post-office ad- dress is at , in the of . [Or, I being satisfied by said affidavits, hereto annexed, that the plaintiff cannot, vs^ith reasonable diligence, ascer- tain a place or places vsrhere the said defendant virould proba- bly receive matter transmitted through the post-office.] And it farther appearing that said defendant is of full age [or is an infant upv?ards of {or under) fourteen years of age]. I do hereby order and direct that service of the summons in this action, a copy of vrhich is hereto annexed, upon the said defendant, C. D., be made by publication thereof in the — and in the , two newspapers published at , in the ■ of , which are desig- nated as most likely to give notice to the said defendant, once a week, for six successive weeks ; or, at the option of the plaintiff, by service of the summons, and of a copy of the complaint and of this order, without the State, upon an officer of said defendant, specified in section 431 or 432 of the Code of Civil Procedure [or upon said defendant per- sonally']. And I do further order and direct that on or before the day of the first publication of the summons, the plaintiff deposit in the post-office at , a set of copies of the summons and complaint in this action, and of this order, contained in a securely closed, post-paid wrapper, directed to the said defendant, C. D., at [or I do hereby dispense with the deposit of any papers in the post- office]. Dated at the of , in the county of , ' This clause in brackets is to be specified in subdivisions 4, 5 or 7 of inserted only where the application is section 438. (Code Civ. Pro., §439.) made upon the ground that the de- '^ Insert clause in parenthesis only in fendant is a foreign corporation or not case the defendant is of full age or an a resident of the State, or in a case infant over fourteen years of age. (Id., 68 Forms Eelating to and State of New York, on the day of 18—.' T. A., County Judge of County. [Or other Judge, authorized to make the order.] ^o. 95. Notice to Defendant to Accompany Summons as Pub- lished. (Code Civ. Pro., § 443.) To C. D., defendant:" The foregoing summons is served upon you by publication, pui'suant to an order of -, [naming the judge and his official title] dated the -^ day of , 18 — , and filed with the complaint in the office of the clerk of , at . See § 1541.] M. N., Plaintiff's Attorney. [Office address.'] Ko. 96. Notice to be Seryed with Summons when Serylce is made without the State. (Code Civ. Pro., §443.) Same as in form No. 95, except that the words "without the State of New York" must be substituted for the words "by publication." [Same signature and address.] ' Non-compliance -with the directions 204), Schroederv. Lear(17Week. Dig., of the statute as to the contents of the 574), ch. 399 of 1884). order, renders it wholly void. (McCool The order cannot be made by the V. Boiler, 14 Hun, 73.) court. (Heishon v. KiiiekerbockeT L. The directions of the order must be Ins. Co., 77 N. Y., 278; but see, also, strictly followed or the service is not a Phinney v. Broscbell, 80 id., 544; 58 good one. (Smith v. Wells, 69 N. Y , How. Pr., 492, aff'g S. C, 19 Hun, 200.) 116; Mojarrietta v. Saenz, 80 N. Y., See further as to contents of the 553.) order and compliance therewith, Ritten * The notice is to be directed only to V. Griffith (16 Hun, 454), Weil v. Mar- the defendant or defendants served tin (24 id , 645), Green v Squires (20 (Code Civ. Pro. Hi. id,, 15), O'Neil V, ;PCTder ^30 Hun, §?? RQte to fprpi No, }^^, Commencement of Action. 69 No. 97. Proof of Publication of Summons and Notice. (Code Civ. Pro., §444.; County, ss.: A. B., of , being duly sworn, says, that he is the printer [or publisher, or foreman, or principal clerk of the printer {or publisher)] of the , a newspaper published in the city [or town] of , in the county of and state of New York, and that the annexed summons and notice subjoined thereto has been published in the said newspaper once a week for six successive weeks, the first publication thereof being made on the day of , 18-. A. B. [Jurat as in No. 46.] No. 98. Affidavit of Deposit in the Post-office Pursuant to Order. (Code Civ. Pro., g 444.) [Title of cause.] County, ss.: A. B., of , being duly sworn, says,, that on the day of , 18 — , he deposited in the post- office at the of , in the county of a set of copies of the summons, complaint and order in the above entitled action hereto annexed contained in a securely closed post-paid wrapper, directed to the defendant, C. D., at . A.B. [Jurat as in No. 46.] No. 99. Affidavit of Service on Defendant without the State. (Code Civ. Pro., §444.) [Title of cause.] County, ss. j^ B^ of , being duly sworn, says, that on the fO PoKMs Relating *6 day of , 18 — , he served the summons and a copy of the complaint and order in the above entitled ac- tion, hereto annexed, upon the defendant, C. D., person- ally, at —, in , by delivering to said defendant, C. J)., copies of the said summons and of the said complaint and order, and leaving the same vpith him ; that he knew tlie pei'son so served to be the person \or one of the persons] mentioned and described in said summons as [aj defendant in the above entitled action ; that deponent is of the full age of twenty-one years [or became (eighteen) years of age on the day of , 18 — J. [If the complaint demands judgment, annulling a mar- riage, or for a divorce or separation, add as in form No. 73 from (*).] And further deponent saith not. A. B. [Jurat as in No. 46.] No. 100. Notice to Defendant of Entry of Judgment, in case of Ser- vice Iby Publication. (Code Civ. Pro., §445.) [Title of cause.] To C. D., defendant: You are hereby notified that final judgment vi^as entered against you in the above entitled action, in the office of the clerk of the county of , at , in the of , in the State of Nevvr York, on the day of , 18 — , of which judg- ment a copy is hereto annexed, and that the judgment roll thereupon was filed in said clerk's office on that day. Dated , 18—. A. B., Plamti'ff's Attorney. [Office address or place of business. '] ' See Code Civ. Pro., § 1351; Kelly Hathorn, 78 id., 238; Gen. Eules of V. Sheehan, 76 N. Y., 335; Kilmer v. Prac, rule 3. Parties to an Actio]!?. 71 TITLE II. forms relating to parties to an action. Article First. (Code Civ. Pro., Ch. 5, Tit. 3, Art. 1.) FORMS RELATING TO PARTIES GENERALLY. No. 101. Order that defeudaut be designated by his real name, wlien sued by a flctitious name. 102. Order bringing in party interested on his application. 103. Supplemental summons. No. 101. Order that Defendant toe Designated by His Real Name when Sued hy Fictitious Name. (Code Civ. Pro., §451.) [At, etc., as in form No. 80. j [Title of cause.] It appearing by the affidavit of A. B. [plaintiff's attorney in the above entitled action], dated , 18 — , that the true name of the defendant who was sued as an unknown defendant \or by the name of E. F.] is C. D., and due notice of this motion having been given to [insert names of parties notified]. Now, on motion of G. H., the plaintiff's attorney in the said action, afti-r hearing, etc. \or no one appearing to oppose] : It is hereby ordered, that the proceedings already taken herein be deemed amended, by the insertion of C. D. as the name of such defendant in place of the fictitious name of E. F., by which he w^as sued [oj» in place of his designation as an unknown person], and that all subsequent proceedings be taken under the true name of said defend- ant, C. D. No. 102. ^ Order Bringing in Party Interested on his own Application. (Code Civ. Pro., § 452.) [At, etc., as in form No 80. j [Title of cause.] On reading and filing the affidavit of A. B., dated , 72 Forms Eelating to 18 — , showing that he has an interest [state in what manner interested] in the subject of the above entitled action [or in real property, the title to which may be affected by the judgment in the above entitled action (state in what man- ner)], and on motion of C. D., counsel for said A. B., due notice of this motion having been served on plaintiff's at- torney and no one appearing to oppose [or after hearing, etc.], it is hereby ordered, that said A. B. be made a party defendant in said action ; that the plaintiff amend the sum- mons and complaint accordingly and insert proper allega- tions in the complaint for that purpose, and serve the same upon the said A. B., and tliat all proceedings be stayed until twenty days after such service." No. -103. Supplemental Summons. (Code Civ. Pro.,.§453.) Same as in form No. 57 to word complaint, and from thence as follows : the original [or amended] complaint [and the supplemental complaint] in this action, and to serve, etc. [as in form No. 57, to the end thereof].' Dated -, 18—. M. N., Plaintiff's Attorney. Office address. Post-office address, , JFew York. New Yorlc.' ' This was substantially the form of an action on his own petition. (Haas order in People v. Albany and Ver- v. Craighead, 19 Hun, 396; Code Civ. mont R. R. Co. (15 Hun, 126). The Pro., §453.) decision in that case was reversed by It seemn, that after judgment, an ap- the Court of Appeals (see 77 N. Y , plication by the plaintiff to bring in 233), that court holding that t*ie order additional parties, can only be granted was properly granted by the Special by vacating the judgment, and issuing Term under the facts of the case. a supplemental summons. (PerLearn- ^ No supplemental summons need be ed, .T , Organ v. Wall, 19 Hun, 184 ) served, where one is made a party to ' See notes to form No. 57. Direct only to new defendant. Parties to an Action. 73 Article Second. FORMS RELATING TO PARTIES PROSECUTING AND DEPENDING AS POOR PERSONS. (Code Civ. Pro., Ch. 5, Tit. 2, Art. 3.) No. 104. Petition for leave to prosecute as poor person. 105. Certificate of counselor at law annexed to above petition. 106. Order granting leave to prosecute action as a poor person. 107. Order annulling leave to prosecute or defend as a poor person. 108. Petition for leave to defend action as a.poor person. 109. Order granting leave to defend action as a poor person. No. 104. Petition for Leave to Prosecute as a Poor Person. (Code Civ. Pro., § 459.') To the Court : The petition of A. B., of ,' respectfully shows, that he is a poor person, and is not worth one hundred dol- lars, besides the wearing apparel and furniture necessary for himself and his family and the subject matter of an ac- tion which [*], he has brought and which is now pending in this court [or which 'he intends to bring in this court], against C. D., of , to recover the amount of a certain promissory note for dollars, made by said C. D., dated , 18 — , and payable with interest, to the order of your petitioner months after date, and which is owned and held by your petitioner, and has not been paid, nor any part thereof, but is justly due and owing to your petitioner [or upon other cause of action, stating it]. And your petitioner, therefore, prays for leave to prose- cute said action [or an action], upon said promissory note, against the said C. D.; as a poor person, and to have an ' As to whether a nonresident can tian v. Gouge (58 How. Pr., 445; 10 be admitted to prosecute as a poor per- Abb. N. C, 83). son, see Alexander v. Meyers (8 Daly. A husband maybe allowed to sue as 112), Anon. (10 Abb. N. C., 80), Chris- a poor person for a limited divorce. 10 C/m r«. McAllen, 1 Law Bulletin, 60.) 74 Forms Relating to attorney and counsel assigned to conduct his said action. And your jpetitioner will ever pray, etc. Dated , 18—. [Verification as in form No. 52. J [Annex certificate as in form No. 105. J A. B. No. 105. Certificate of Counselor at Law Annexed to above Petition. (Code Civ. Pro., §459) I, M. N., of the of , in the State of New York, counselor at law, do hereby certify that I have ex- amined the case stated in the within petition, and am of opinion that the applicant has a good cause of action upon [or defense to] said note mentioned in the petition [or state other cause of action] against C. D. Diited , 18—. M. N. No. 106. 4 Order Granting Leave to Prosecute Action as a Poor Person. (Code Civ. Pro., §460.) [At, etc., as in form No. 80. J [Title of proceeding.] On reading and filing the petition of A. B., of dated , 18 — , for leave to prosecute as a poor person an action brought by him, now pending in this court [or which he intends to bring in this court] against C. D., of , upon the cause of action mentioned and set forth in said petition,' and the court being satisfied of the truth of the facts alleged and that the applicant has a good cause of action. Now, on motion of I. L., counsel for said petitioner, it is ' As to necessary recitals in order granted upon petition, see note 1 to form ISTo. 109. Parties to an AcTioif. 7S hereby ordered, that the said A. B. is hereby admitted to prosecute said action as a poor person, and that said I. L. be and he is hereby assigned to said A. B. as his attorney and counsel to prosecute said action, who is to act therein without compensation. No. 107. Order Annulling Leare to Prosecute or Defend as a Poor Person. (Code Civ. Pro., § 463.) [At, etc., as in form No. 80. J [Title of cause.] It having appeared by affidavit of , that A. B., the plaintiff [or defendant] in the above entitled action, has been guilty of improper conduct in the prosecution \or de- fense] of said action [or has been guilty of willfial and unnecessary delay in the prosecution {or defense) of said action] so as to make it proper that the order of this court, made , 18 — , granting leave to said A. B. to prose- cute [or defend] said action as a poor person should be an- nuled, and due notice of this motion having been given to 1. L., attorney for said A. B., It is hereby ordered, on motion of M. N., defendant's [or plaintiff's] attorney, and after hearing I. L., attorney and counsel for said A. B., in opposition thereto [or no one ap- pearing to oppose], that the said order granting leave to said A. B. to prosecute [or defend] the said action as a poor person be and the same is hereby annulled. No. 108. Petition for Leave to Defend an Action as a Poor Person. (Code Civ. Pro., § 463 ) As in form No. 104 to [*], and from thence as follows : has been brought against him in this court, by C. D., of , involving your petitioner's right, title and inter- 76 Forms Relating to est in and to personal [or real] property, which action is now pending in this court ; that said action is brought to recover a cei tain chattel, to wit : a cow, of whiclj your peti- tioner is in possession, and which is alleged by said C. D. to be owned by him, and your petitioner claims that the said chattel is his p-roperty [stating facts in regard to title] [or state other defense {or in like manner set forth other subject matter of the action and defense)]. And your petitioner therefore prays for leave to defend said action as a poor person, and to have an attorney and counsel assigned to conduct his said defense. And your petitioner will ever pray, etc. Dated , 18—.' A. B. [Verification as in form No. 52.] [Annex certificate as in form No. 105. J No. 109. Order Granting Leave to Defend Action as a Poor Person. (Code Civ. Pro., § 465.) [At, etc., as in form No. 80.] [Title of action.] On reading and filing the petition of A. B , of , dated , 18 — , ' for leave to defend as a poor person the above entitled action, which has been brought against him in this court, involving the right, title and interest of said petitioner in and to personal [or real] property, and is now pending in this court, and the court being satisfied of the truth of the facts, alleged by said petitioner, and that the applicant has a good defense to said action : Now, on motion of I. L., counsel for said petitioner, it is hereby ordered, due notice of this motion having been given ' See rule 27, Gen. Rules of Prac- This requirement of rule 3 is not, it tice, as to recitals, where order is seems, complied with by a statement granted upon petition. If papers are that the motion was made upon all the read upon the other side, they must be papers and proceedings in the action. Bpecified in the order, (See rule 3, id.) (Hobart v. Hobart, 85 N. Y., 637.) Pabties to an Action. 77 to Gr. H., attorney for defendant, and no one appearing to oppose [or after hearing E. F., counsel for said C. D.J, that said A. B. be admitted to defend said action as a poor per- son, and that I. L., of , be and he is liereby assigned to said A. B., as his attorney and counsel, to defend said action, who is to act therein without compensation. Article Third, forms relating- to infant plaintiffs and defendants. (Code Civ. Pro,, Ch. 5, Tit. 3, Art. 4.) No. 1 10. Petition for appointment of guardian for infant plaintiff. 111. Affidavit of person proposed as guardian, as to Lis ability to answer to infant, etc. 113. Petition for appointment of guardian by infant defendant. 113. Petition by relative or friend of Infant defendant, or by a party to the action, for appointment of guardian. 114. Order of court, or judge appointing guardian for infant defendant. 115. Same order made upon tlie application of the infant. 116. Ordet designating guardian for infant defendant residing in State, Dut temporarily absent therefrom. 117. Affidavit to procure last mentioned order. 118. Bond by guardian, other than general guardian, before receiving property. " ^ No. 110. Petition for Appointment of Guardian for Infant Plaintiff. (Code Civ. Pro., §§ 469, 470.) j'q the Court [or to Hon. A. 0., Judge {or Justice) of the Court] : The petition of A. B. [or of C. D.] respectfully shows, that said A. B. is an infant of the age of years [or that said C. D. is the general guardian, or testamentary guardian, or a relative, to wit, a (stating relationship), or friend of A. B., who is an infant under fourteen years of age, to wit : of the age of years and ripwards] ; that your petitioner [or that said A. B.J is about to com- mence an action in the Supreme Court of the State of New York [or other court, stating title] agai^st M. N- for [her^ 78 FoBMS Relating to state cause of action]. And your petitioner prays that he [or that P. R., of , counselor at law, who is a com- petent and responsible person, and fully competent to un- derstand and protect the rights of said A. B., and has no interest adverse to said A. B.] may be appointed to prose- cute the said action for your petitioner [or for said A. B.] as his guardian, pursuant to the statute in such case made and provided. Dated , 18—. .A. B. [or C. D.] [Verification as in form No. 52. J I, C. D. [or P. R.] consent to become the guardian of A B., in the action mentioned in the foregoing petition. Dated , 18—. C. D. [or P. R.J State of New Yoek, Cou7ity, ^ **• On this • day of , 18 — , before me per- sonally came C. D. [or P. R.J, to me known to be the individual described in and who execiited the foregoing consent and to me acknowledged that he executed the same. I. J. , Commissioner of Deeds [or other offi,cer\ No. 111. Affidavit of Person Proposed as Gruardian as to his Ability to Answer to Infant, etc. (Code Civ. Pro., § 4C9; Gen. Eules of Prac., No. 49.) ■■ County, ss.: 0. D., of , being duly sworn, says, that he is the person named in the annexed petition for appointment as guardian of A. B., an infant in an action about to be com- menced by said A. B. -against M. N.; that he is of sufficient ability to answer to said infant for any damage' which may be sustained by his negligence or misconduct in the prose- cution [or defense] of said guit, being worth the sum of Pakties to an Action. 79 dollars over and above all debts and liabilities owed or incurred by him and exclusive of property exempt by law from execution.' CD. [Jurat as in No. 46.] No. 112. Petition for Appointment of Guardian by Infant De- fendant. (Code Civ. Pro., §471.) [Address as in form No. 110. J The petition of A. B. respectfully shows : That your petitioner is an infant of the age of fourteen years and upwards. That an action has been commenced in the . court by E. F. against your petitioner, for [here state cause of action]. That the summons in said action was served upon your petitioner, on the day of , 18 — . And your petitioner prays [*] that O. P., who is the gen- eral guardian of your petitioner [or that P. R., a mer- chant, who is a competent and responsible person, and is fully competent to understand and protect the rights of your petitioner, and has no interest adverse to your peti- tioner, (f) and is not connected in business with the attorney or counsel of the adverse party, and], is of sufficient ability to answer to your petitioner for any damage which may be sustained by his negligence or misconduct in the defense of said suit, [fl may be appointed the guardian of your peti- tioner, said A. B., in the defense of said action, according to the statute in such case made and provided. Dated , 18—. A. B. [Verification as in form No. 52, and consent, acknowledg- ment and affidavit as in forms No. 110 and 111 to be an- nexed.] ' 9e? ill re Mang (19 Wwk, Dig., 353), 80 ""OBMS Relating to No. 113. Petition by Relative or Friend of Infant Defendant, or by a Party to the Action, for Appointment of Cruardian. (Code Civ. Pro, §471.) [Address as in form No. 110. j The petition of 0. D. respectfully shows : That an action has been commenced by your petitioner [or by C. D.J as plaintifE against A. B. and others, defend- ants, for [here state cause of action]. That the said defendant, A. B., is an infant of the age of fourteen years and upwards, and has neglected to apply within twenty days after the service upon him of the sum- mons in this action, which service was made on the. day of , 18 — [or that said defendant, A. B., is an infant under fourteen years of age]. That your petitioner is a party to said action, being the plaintiff as aforesaid [or being a defendant therein, or is a relative {or friend) of the said infant]. And your petitioner prays [as in form No. 112, from (*) to close, substituting the words "said infant " for the words "your petitioner," where they occur therein.] A. B. [Verification, consent, acknowledgment and affidavit to be annexed as in forms Nos. 52, 110 and 111]. No. 114. Order of Court or Judge Appointing Gruardian for Infant Defendant. (Code Civ. Pro , § 472.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] It appearing by the petition of C. D., dated , 18 — , among other things, that the above entitled action has been brought in the Court, that the defendant, A. B., is an infant of the age of fourteen years and up- wards, and that no application has been made by said in- Parties to an Action. 81 fant for tlie appointment of a guardian ad litem, for him in said action, although more than twenty days have elai)sed since the service of the summons in said action upon him \or that the defendant, A. B., is an infant under the age of fourteen years] and that C. D. is a party [plaintiif or de- fendant] in said action \or is a relative {or friend) of said in- fant], and that due notice of this application has been given. Now, on motion of E. F., attorney for the plaintiff, it is hereby ordered that ['*] O. P., the general guardian of said infant and \or that P. R., merchant] a competent and re- sponsible person, be and he is hereby appointed the guardian ad litem of said A. B., defendant in the above entitled action. Dated [when made by Judge]. [Signature to judge's order.] No. 115. Same Order Made upon the Application of the Infant. (Code Civ. Pro., §473.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] It appearing by the petition \or affidavit] of A. B., dated , 18 — , that the above entitled action has been brought in the Court, and that said A. B., the de- fendant \or one of the defendants] is an infant of the age of fourt -en years and upwards. Now, on motion of I. J. [counsel for said A. B.], it is hereby ordered that [here insert as in form No. 114 from (*) to close]. Date [of judge's order]. ^ ■ -, , . i [Signature to judge s order.] No. 116. Affidavit to Ohtain Order Appointing Guardian for Resi- dent Infant Defendant Temporarily Absent. (Code Ciy. Pro., § 473.) [Title of cause.] CouNTy, ss.: ^ B., of , being duly sworn, says, that he has 11 82 Forms Relating to made inquiry for the purpose of ascertaining the where- abouts of the defendant, C. D., in the above entitled action, at the request of plaintiff's attorney, with the intention of serving upon him the summons in said action ; that he has learned by such inquiry that said infant, who resides at , in the State of New York, is temporarily absent from the State of New York, and is now in , in the of , and is expected to be so absent for at least ; that said inquiry was made at and in the neighborhood of the residence of said A. B. [or otherwise, according to the fact], and was made of [state here what inquiry was made and of whom and what information was obtained]. A. B. [Jurat as in No. 46.] No. 117. Order Designating Guardian for Infant Defendant, Resid- ing in State, but Temporarily Absent Therefrom. (Code Civ. Pro., § 473.) [At, etc., as in form No. 80. J [Title of cause.] It appearing by the affidavit of A. B., dated , 18 — , that C. D., the defendant [or one of the defendants] in the above entitled action, who is an infant resides at , in the State of New York, but is temporarily absent from said State, etc. : Now, on motion of I. L., attorney for the plaintiff, it is hereby ordered, that P. C, of , an attorney of this court, and a competent and responsible person,' is hereby designated and appointed as the guardian ad litem of said infant defendant, A. B., in said action, unless said infant, or some one in his behalf, procures such a guardian to be appointed according to law, within days after ser- vice of a copy of this order upon him. And it is hereby ordered and directed that service of said copy of this order be made upon said infant by delivering the same to said infant [or here insert other special directions for service]. • See forms Nos. 110 and HI, as to consent and affidavit of proposed guardian. Parties to an Action. 83 No. 118. Bond by Guardian, Before Receiving Property. (Code Uiv. Pro, §475.) Know all men by these presents : That we, M. N.. P. Q., and E. S., of , in the county of , and State of New York, are jointly and severally held and firmly bound unto A. B.,. an infant, of the of , in the county of , and State aforesaid. Sealed with our seals, and dated the day of , in the year 18 — .' The condition of the above obligation is as follows : That whereas, the said M. N., has been appointed by the Court \or by Hon. A. O., justice of the Court], by order, dated , 18—, as guardian ad litem of the said A. B., an infant, defendant in an action pending in the Court between C. D., plaintiff, and said A. B. and others defendants ; and whereas, the said, M. N. is about to receive, as such guardian, money to the amount of dollars [or property to the value of J : Now, therefore, if the said M. N. shall duly account for and apply the said money [or property], when received by him, under the direction of the court, then this obligation to be void ; otherwise to be and remain in full force and virtue." M. N. [L. s.] P. Q. [L. s.] R. S. [L. s.] Sealed and delivered in ) • presence of i . State of New York, County, On the day of , 18 — , before me person- ally came M. N., P. Q. and R. S., to me known to be the ' For general provisions as to bonds of Civil Procedure, see sections 810 to and undertakings required by the Code 816 of that act, and Nos. 340, 341. 2 See Code Civ. Pro., § 474. 84 Forms Relating to individuals described in and who executed the foregoing bond and to me severally acknowledged that they executed the same. I. J 5 Commissioner of Deeds [or other offlcer]. State of New Yoek, ) ^^ . County, ) " P. Q. and R. S., sureties in the foregoing bond, being sev- erally duly sworn, the said P. Q., says that he is a resident of and a householder [or a freeholder] within this State, and is worth the sum of dollars, over and above all the debts and liabilities which he owes or has incurred, and ex- clusive of property exempt by law from levy and sale under an execution ; and the said E.. S. says that he is a resident of and a householder [or a freeholder] within this State, and is worth the sum of dollars, over and above all the debts and liabilities which he owes or has incurred, and ex- clusive of property exempt by law from levy and sale under an execution. P. Q. R. S. [Jurat as in No. 46.] I hereby approve of the foregoing bond, as to its form and manner of execution, and of the sureties therein mentioned. Dated , 18—. A. O., Judge of Court. [Or County Judge.'l ' See Code Civ. Pro., § 74. Pleadings in Coubts of Reooed. 85 CHAPTER YI. FORMS RELATING TO PLEADINGS IN COURTS OF RECORD, INCLUDING COUNTERCLAIMS. TITLE I. The consecutive pleadings in an action. Article First. COMPLAINT. (Code Civ. Pro., Ch. 6, Tit. 1, Art. 1.) No. 119. Affidavit to apply for dismissal of complaint, where not served pur- suant to demand. 130. General form of complaint. 131. Complaint demanding both interlocutory and final judgment in action triable by court. No. 119. AffldaTit to Apply for Dismissal of Complaint, where not Served Pursuant to Demand. (Code Civ. Pro., § 480.) [Title of cause.] County, ss. : A. B., of , being duly sworn, says, that he is the attorney for the defendant, C. D., in the above entitled action , that a summons therein, a copy of which is hereto annexed, was served upon the said defendant, personally, Q^ the day of , 18—, as will appear by the affidavit of said C. D., hereto annexed ; that a notice of ap- pearance and demand of a copy of the complaint by said defendant's attorney was served upon B. F., the attorney for the plaintiff in said action, on the day of , 18— [as will appear from the affidavit of I. J., hereto an- nexed], and that no copy of the said complaint has been served upon deponent pursuant to said demand. A. B. [Jurat as in No. 46. J FoKMS Relating to No. 120. General Form of Complaint. (Code Civ. Pro., §§ 481, 483.) SUPREME [OR other] COURT.— County' of A. B., Plaintiff, agst. C. D. [E. P. and G. H.J, Defendants. The complaint of the above named plaintiff respectfully shows [upon information and belief] : That [here state facts constituting cause of action]. [Where the complaint contains more than one cause of action state as follows :'] First. That [here state facts constituting first cause of action]. Second. That [here state facts constituting second cause of action]. [*] Wherefore the plaintiff demands judgment against the defendants for [here state relief to which the plaintiff considers himself entitled. I. L., Attorney for Plaintiff. No. — street, , N. Y.* [For forms of verification of complaint, see forms Nos. 151, etc.] ' Name here the county of the place of trial where action is in Supreme Court, in other courts it need not he stated. ^ The names of all the parties are now required to be inserted by section 481, Code I iv. Pro. It was held under the Code of Procedure that the names of all the parties need not be inserted in the title. (Hill v. Thacter, a How. Pr. , 407.) ' As to what must appear upon the face of the complaint, where two or more causes of action are united in the same complaint, see the Past sentence of section 484, Code Civ Pro. See further as to rules relating to separate coxints of complaint, Anderson V. Speers (58 How Pr., 68), Victory etc., Mfg. Co, V. Beecher (55 id., lt)3), Reiners v. Brandhorst (59 id., 91), Fleischman v. Bennett (87 N. Y., 231). '' See note 3 to form No. 132 for rules as to signature and address of attorney or party. Pleadings in Courts of Reoobd. 87 No. 121. Complaint Demanding both Interlocutory and Final Judg- ^ ment in Action Triable by Court. (Code Civ. Pro., §482.) As in form No. 120 to [*] and from thence as follows : Wherefore the plaintiff demands judgment as follows : First. For interlocutory judgment as follows : Second. For final judgment as follows : [Signature and address of attorney as in form No. 120. J [Verification as in forms Nos. 151 etc.] Article Second. DEMURRERS ; ANSWERS ON GROUNDS OF DEMURRER, WHERE OBJECTION DOES NOT APPEAR ON PACE OF COMPLAINT, Etc. (Code Civ Pro., Ch. 6, Tit. 1, Art. 3.) No. 132. Demurrer to complaint on ground that court has not jurisdiction of the person of the defendant. 133. Same, on ground that court has not jurisdiction of the subject of the action. 124. Same, on ground that plaintiff has not legal capacity to sue. 125. Same, on ground that another action is pending between same par- ties for same cause. 126. Same, on ground of misjoinder of parties plaintiff. 127. Same, on ground of defect of parties plaintiff or defendant. 138. Same, on ground that causes of action have been improperly united. 139. Same, on ground that the complaint does not state facts sufficient to constitute a cause of action. 130. Demurrer to reply on ground that it is insufficient in law upon the face thereof. 131. Demurrer to answer on ground of insufficiency in law. 132. Demurrer to counterclaim where defendants demand an affirmative judgment. 133. Order allowing amendment, etc., after decision of demurrer. 134. Answer that the court has not jurisdiction of the person of the de- fendant. 135. Answer ttiat the court has not jurisdiction of the subject of the action. 136. Answer that plaintiff has not legal capacity to sue. 137. Answer that another action is pending between same parties for the same cause. 138. Answer of misjoinder of parties plaintiff. 139. Answer that there is a defect of parties plaintiff or defendant. 88 FoKMS Relating to No. 122. Demurrer to Complaint on Ground that Court has not Jurisdiction of the Person of the Defendant. (Code Civ. Pro., § 488, subd. 1.) [Title of cause.] The defendant demurs to the complaint of the plaintiff, on the ground that it appears upon the face of said com- plaint [*] that the court has not jurisdiction of the person of the defendant.' A. B., Attorney for Defendant. No. street, , N. Y.' No. 123. Same, on Ground that Court has not Jurisdiction of the Subject of the Action. (Code Civ. Pro., § 488, subd. 3.) As in form No. 122 to [*] and from thence as follows : That the court has not jurisdiction of the subject of the action.' C. D., Attorney for Defendant. No. street, , N. Y." No. 124. Same, on Ground that Defendant has not Legal Capacity to Sue. (Code Civ. Pro., § 488, subd. 3.) As in form No. 122 to [*] and from thence as follows : That the plaintiff has not legal capacity to sue : • As to how the objection must be General Eule of Practice, No. 2, also stated, see Code Civ. Pro., section 490. requires all papers served or filed to be ' The attorney must add to his signa- indorsed, or subscribed, with the name ture his office address, specifying a of the attorney or attorneys, and Lis or place within the State where there ia a their office address, or place of busi- post-office. If in a city, he must add ness, and applies to parties appearing the street and street number, if any, or in person. As to appearance in person, other suitable designation of the par- see Code Civ. Pro., section 55. ticular locality. (Code Civ. Pro., §§ 431, 530.) Pleadings in Courts of Eecoed. 89 Because it appears by said complaint that the plaintiff is q foreign executor [or administrator] deriving his powers and appointment from and under the laws of the State of [or in like manner point out the particular defect relied upon].' E. F., Attorney for Defen,dant. No. ■ — street, , N. Y.' No. 125. Same, on Ground that Another Action is Pending Between Same Parties for 8ame Cause. ^ (Code Civ. Pro., § 488; subd. 4.) As in form No. 122 to [*] and from thence as follows : That there is another action pending between the same parties for the same cause. ' G. H., Attorney for Defendant, No. street, , N. Y.' No. 126. Same, on Ground that there is a Misjoinder of Parties Plaintiff. (Code Civ. Pro., § 488, subd. 5.) As in form No. 122 to [*] and from thence as follows : That there is a misioinder of parties plaintiff : Because it appears by said complaint that the plaintiffs are husband and wife, and that the property sought to be recovered in this action, is the separate property of the plaintiff, J. B., the wife of said A. B., and that said A. B. should not have been joined as a party plaintiff' herein, [or in like manner point out the particular defect relied on].' ^^ I. J., Attorney for Defendant. No. street, , N. Y." > See note 1 to form No, 13?. ' §ee pQte 8 to forni No, 133, IS 90 Forms Relating to No. 127. Same, on Ground that there is a Defect of Parties Plain- titr or Defendant. (Code Civ. Pro., § 488, subd. 6.) As in form No. 122 to [*] and from thence as follows : That there is a defect of parties plaintiff [or defendant] : Because it appears by said complaint that the alleged de- mand in snit is an obligation to a partnership [or of a part- nership] composed of the plaintiffs [or defendants] and one M. N., and that said M. N. is not joined as a party plaintiff [or defendant] {or in like manner point out particular defect relied on).' K. L., Attorney for Defendant. No. street, , N. Y.' No. 128. Same, on Ground that Causes of Action haye been Im- properly United. (Code Civ, Pro., § 488, subd. 7.) As in form No. 122 to [*] and from thence as follows : [f] That two [or more] causes of action have been improperly united : Because it appears by said complaint that a cause of ac- tion for a tort has been united with a cause of action upon a contract [or in like manner point out the particular defect relied upon].' M. N. , Attorney for Defendant. iS^o. street, , N. Y.' No. 129. Same, on Ground that Coinplaint does not State Facts Suf- ficient to Constitute a Cause of Action. (Code Civ. Pro., §488, subd. 8.) As in form No. 122 to [*] and from thence as follows : ' gee note 1 to form No. 133. » See pole 3 tQ form No, 133, Pleadings in Courts op Record. 91 That the said complaint does not state facts sufficient to constitute a cause of action.' P. Q., Attorney for Defendant. No. street, , N. Y.' No. 130. Demurrer to Reply. (Code Civ. Pro., §493.) [Title of cause.] The defendant demurs to the reply of the plaintiff in the above entitled action \or to the following part of said reply (setting forth or describing the part demurred to)] on the ground that it is insufficient in law, upon the face thereof. A. B., Defendant' s Attorney. No. street, , N. Y.' No. 131. Demurrer to Answer. (Code Civ. Pro., § 494.) [Title of cause.] The plaintiff demurs to the counterclaim [or defense, con- sisting of new matter, to wit (describing it)] contained in the answer, on the ground that it is insufficient in law upon the face thereof. ' A. B., Plaintiff's Attorney. No. street, , N. Y.' No. 132. Demurrers to Counterclaim where Defendant Demands an AiHrmative Judgment. tCodeCiv. Pro.,§495.) [Title of cause.] The plaintiff demurs to the counterclaim of the defendant ' See note 1 to form No. 133. complaint does not state facts sufHcient 2 See note 3 to form No. 133. toconstituteacausoof action. (Wright ^ Upon demurrer to an answer, the v. Booth, 69 N. Y., (i20; see, also, Wil- decision must be for the defendant, more v. Flack, 16 Wetlc. Dig., 236.) ^though the ansvyer is defective, if the * See note 3 t6 form No. 1??, 92 Forms Relating to [firstly or otherwise set forth (stating number where more than one)] on the ground that it appears upon the face of the said counterclaim, that the court has not jurisdiction of the subject thereof. [Or, on the ground that it appears upon the face of the said counterclaim that the defendant has not legal capacity to recover upon the same, because the said defendant is (stating ground of legal incapacity).] [Or, on the ground that it appears upon the face of said counterclaim that there is another action pending between the same parties for the same cause.] [Or, on the ground that it appears upon the face of said counterclaim that it is not a cause of action arising out of the contract (or transaction) set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.] [Or, where the action is on contract] on the ground that it appears upon the face of the said counterclaim that it is not a cause of action arising on contract, existing at the commencement of this action. ] [Or, on the ground that it appears upon the face of the said counterclaim, that it does not state facts sufficient to constitute a cause of action.'] E. F., Plaintiff's Attorney. No. street, , N. Y." No. 133. Order Allowing Amendment, etc., ._fter Decision Upon Demurrer. (Code Civ. Pro., § 497.) Add as follows to order or judgment entered : And it is further ordered' [and adjudged] that the defendant [or plaintiff] have leave to plead anew [or amend his said com- plaint, etc.], within twenty 'days, upon payment of costs [or state other terms of permission]. ' The mode of specifying the objec- ° See note 3 to form No. I5i2. tions in a demurrer to the counterclaim ' For forms of order and judgment is the same as where a demurrer is upon demurrer, see Nos. ^11, 478, taken to the complaint. (Code Civ, Pro., |§ 490, 49«.) Pleadikgs in Courts of Record. 93 [And it is further ordered (and adjudged) that this action be divided into two (ormore) actions, viz.: into an action upon the cause of action firstly stated in the complaint, and an action upon the cause of action secondly stated in the complaint upon the following terms, viz. (state terms upon which division is made).]' No. 134. Answer that the Court has not Jurisdiction of the Per- son of the Defendant. (Code Civ. Pro., § 498.) [Title of cause.] The defendant, answering the complaint of the plaintiff in this action, alleges [*] that said defendant is a foreign corporation, organized under the laws of the [State] of , and that said corporation has no property within the State of New York, and the cause of action set forth in said complaint did not arise therein ; and that the sum- mons in this action was served upon the cashier [or a director, or a managing agent] of defendant, at , in this State [or, in like manner, set forth other facts, showing the want of jurisdiction], and that this court has no juris- diction of the person of the defendant.'' M. N., Defendant's Attorney. No. street, , N. Y.' [Verification as in forms Nos. 151. etc,*] ' This last clause may be added OgdensbuigL, etc., R. R. Co. v. Ver- where the demurrer is allowed, be- mont, etc., R R. Co. (IC Abb. [N. S.], cause two or more causes of action are 349, 254; affirmed, 4 Hun, 712; S. C, .improperly united. 63 N. Y., 176), Wheelock v. Lee (74 ^ This foiTtn of answer is, intended N. Y., 495), Sullivan v. Frazer (4 Robt., for a case where the summons was 610), Johnson v. Adams Tobacco Co. served pursuant to subd. 3 of § 432 of (14 Hun, 89), Crowley v.~ Royal Ex. S. Code Civ. Pro. Co. (2 Civ. Pro. R, [Brownel, 174; It assumes that the right to interpose afl'd 89 N. Y. , 607). A court having this defense, by a non-resident or for- authority to issue process, acquires eign corporation, exists upon irregular jurisdiction of the person of the de- or void service of the summons. The fendant by a personal service upon authorities seem to leave some doubt him of that process, in the manner re- upoB the subject. See Nones v. Hope quired by law. (Barnes v. Harris, 4 Mutual Life Ins. Co. (5 How. Pr., 96), N. Y. [4 Coms.], 374, 376 ) 94 ' t^ORMS Delating TO No. 135. Answer that the Court has not Jurisdiction of the Subject of the Action. (Code Civ. Pio., § 498.) As in form No. 134 to [*], and from thence as follows : That the court has not jurisdiction of the subject of the action ; Because the plaintiff's cause of action, if any, did not arise in the city of Brooklyn, but in the city of New York, and that the defendant, at the time of the commencement of this action, did not reside in the city of Brooklyn, or have a place of business there, and that the summons herein was served upon the defendant in the city of New York and not in the city of Brooklyn ' [or state other facts show- ing want of jurisdiction of the subject of the action]. [Signature and address of attorney as in form No. 134."] [Verification as in forms Nos. 151, etc.'] No. 136. Answer that Plaintiff has not Legal Capacity to Sue. (Code Civ. Pro., §498.) As in form No. 134 to [*], and from thence as follows : That the plaintiff has not legal capacity to sue : * A notice of appearance, answerer must be indorsed or subscribed, with demurrer, must be subscribed by the the name of the attornej' or attorneys, defendant's attorney, who must add to and his or their office address or place his signature his oflSce address, speci- of business. This rule is applicable to fying a place within the State where parties appearing in person, there is a post office. If, in a city, he * A defense which does not involve must add the street, and street number, the merits of the action shall not be if any, or other suitable designation of pleaded, unless it is verified as pi-e- the particular locality. (Code Civ. scribed in title 3 of chapter 6 of Code Pro., §§ 417, 420, 520.) Civ. Pro.; id., § 513). See Anderson v. Gurlay, 4 Month. ' This form is from Wheelock v Lee L. Bui., 18, that pleading must be (74 N. Y., 495). As to what consti- promptly returned for want of attor- tutes jurisdiction of the subject matter ney's signature, with notice of defect, of an action, see Hunt v. Hunt (Ti Section 520, Code Civ. Pro., has not N. Y., 217). changed the former practice in this re- ' See form No. 134, note 2. spect. ' The answer must be verified. (Code Rule 2 of Gen. Rules of Prac, also Civ. Pro., § 513.) requires that all papers served or filed Pleadings in Courts of Heookd. 9S Because the plaintiff is not a corporation' [or state other facts showing want of legal capacity to sue]. [Signature, etc., as in form No. 134.'] [Verification as in forms Nos. 151, etc. °] No. 137. Answer that Another Action is Pending Between same Parties for the same Cause. (Code Civ. Pro., §498.) As in form No. 134 to [*], and from thence as follows : That before the commencement of this action the said plaintiff commenced an action in this court [or name other court] against this defendant upon the said identical [bond] in the complaint in this present suit mentioned. And this defendant further says, that the parties in this and the former suit are the same, and not other or different persons, and that the said former suit, so brought and prosecuted against him, the said defendant, by the said plaintiff as aforesaid, is still pending and undetermined in this [or name other] court.* [Signature and address as in form No. 184. J [Verification as in forms Nos. 151, etc. '] ' Objection to the plaintiff's capacity 13 Hun, 309; Rogers v. King, 8 Paige, to sue must be by answer, unless the 210.) complaint shows an absence of such See, also, as to this defense. Porter capacity. (The Phoenix Bank v. Don- v. Kingsbury (77 N. Y., 164; aff'g S. nell, 40 N. Y., 410; Barclay v Quick- C, 13 Hun, 33), Auburn City Bank v, silver Mining Co., 6 Lans., 35; Leslie Leonard (30 How. Pr , 193), Ratzer v. V. Lorillard, 18 Week. Dig., 288.) Ratzer (3 Abb. N. C, 461), Dawley « See note 3 to form No. 134. v. Brown (79 N. Y., 390; rev'g S C, 'The answer must be verified. (Code 9 Hun, 461), Hall v. Richardson (33 Civ. Pro., §513.) Hun, 445), Zimmerman v. Erhard (83 "The word "action," as used in this N. Y., 74), Geery v. Webster (11 Hun, subdivision of section 488, embraces 428), Nichols v. Nichols (13 Hun, 428), every form of proceeding by which the Burlingame v. Farce (13 Hun, 149), plaintiff in the last suit would be fully Owens v Loomis (19 Hun, 606), Perry protected, whether it were strictly an v. Dickerson (7 Abb. N. C, 466), Had- action, an attachment, a citation before don v. St. Louis, etc., R- R. Co. (57 a surrogate, or a proceeding in court How. Pr., 390), Adams v. ricPartliu founded on a petition. (Groshon v. 11 Abb. [N. C], 369) Lyon, leBarb., 461 ; Lewi.s v. Maloney, » Thisanswer must be verified. (Code Civ. Pro., § 513.) 96 Forms Relating to No. 138. Answer of Misjoinder of Parties Plaintiff. (Code Civ. Pro., §498.) As in form No. 134 to [*], and from, thence as follows: That the contract alleged by the complaint to have been made by the defendant, if any such contract was made by him, was made by defendant with the plaintiff, A. B. , solely, and not with the plaintiffs, A. B. and C. D., and that said C. D. is not a proper party plaintiff in this action [or, ia like manner, state other facts, showing the misjoinder.] [Signature and address as in form No. 134. J [Verifications as in forms Nos. 151, etc.'] No. 189. Answer that there is a Defect of Parties Plaintiff or Defendant. (Code Civ. Pro., §498.) As in form No. 134 to [*], and from thence as follows : That the said several supposed promises and undertakings in the said complaint mentioned, if any such were made, were, and each of them, was made by the said defendant [or by the said plaintiff], jointly, with one J. K.' (who is still living, to wit, at °), and not by the said defend- ant [or plaintiff] alone, and that the said J. K., should have been joined as a defendant [or as a plaintiff] in this action [or set forth, in like manner, other defect of parties]. [Signature and address of defendant's attorney, as in form No. 134.] [Verification as in forms Nos. 151, etc.*] ' This answer must be verified, of parties defendant, need not state (Code Civ, Pro., § 513.) affirmatively that they are living, and ' An answer setting up a defect of within the jurisdiction of the court, parties plaintiff, must give the names (Prosser v. Mathieson, 26 Hun, 537; of the parties if they are known to the but see LefEerts v. Silsby, 54 How. Pr., defendant. (Maxwellv. Pratt, 24 Hun, 193 448.) ■'This answer must be verified. (Code ' An answer setting up non-joinder Civ. Pro., § 513.) Pleadings in Courts of Eecokd. 97 Article Thikd. FORMS RELATING TO ANSWER, COUNTERCLAIMS, Etc. (Code Civ. Pro., Ch. 6, Tit. 1, Art. 3.) No. 140. Answer containing general and specific denials. 141. Answer setting ly? new matter as a defense or counterclaim. 142. Answer setting up partial defense. 143. Answer claiming affirmative judgment. 144. Order of severance, where part of plaintifi's claim is admitted. 145. Admission of counterclaim by plaintiff. 146. Judgment for excess of plaintiff's claim over counterclaim. No. 140. Answer Containing General and Specific Denials. (Code Civ. Pro., §500.) [Title of cause.] The defendant, answering the complaint of the plaintiff in the above entitled action : Denies [or denies upon information and belief] that, etc. [stating allegation of the complaint denied by him, and in like manner make denial of each allegation specifically denied]. - _ [Or denies each and every allegation in said complaint contained."] [Or denies any knowledge or information sufficient to form a belief, as to each and every allegation in the said complaint contained.'] [Or denies any knowledge or information sufficient to form a belief as to whether, etc. (stating the allegation, as to which such denial is made) and in like manner as to each allegation so denied.] M. N., Defendant's Attorney. No street, , N. Y.' [Verification as in forms Nos. 151-155.'] ' Under the Code of Civil Procedure, he is not only permitted, but is bound, a party has no right to interpose an at his peril, to deny upon information unqualified denial in a verified answer, and belief. (Brotherton v. Downey, unless it be founded upon personal 21 Hun, 436; S. C , 10 W. D., 221; 59 knowledge; and where he has no posi- How. Pr., 206; Metraz v. Pearsall, tive knowledge, but has knowledge or 5 Abb. N. C , iiO; Maclay v. Sands, information suflacient to fomi a belief, 94 U. S. [4 Otto], 586; Stent v. 13 98 Forms Relating to No. 141. Answer Setting up New Matter as a Defense or Counter- claim. (Code Civ. Pro., § 500, subd. 2.) And the defendant [further] answering the complaint in this action alleges, that, etc. [stating facts constituting de- fense] [or the defendant, for a counterclaim to the cause of action (firstly) set forth in the complaint, alleges as follows : (here state facts constituting coiinterclaim)]. [Or, First. The defendant, for a defense {or counterclaim) to the cause of action (firstly) set forth in the complaint, alleges as follows : That, etc. i Second. The defendant, for a further defense {or counter- claim) to the cause of action (firstly) set forth in the com- Continental Nat. Bank, 5 Abb. N. C, 88; but see 33 Hun, 143; id., 544. '^ Anotlier form of denial has been in common use, by whicli, after mailing specific admission, a denial is made of "each and every allegation of the com- plaint not hereinbefore specifically ad- mitted." In support of this form, see AUis V. Leonard (46 N. Y., 688; S. C. more fully reported, 33 A. L. J., 28), Smith V. Gratz (59 How., 374), Haines V. Herrick (9 Abb. N. C, 379), Mc- Guiness V. The Mayor, etc. (13 Week. Dig., 523), Fellows V. Muller(48 How., 82; 8. C, 38 N. Y. Super. Ct., 137), Calhoun V. Hallen(35Hun, 155), Green- field V. Mass. Mut. Life Ins. Co. (47 N. Y., 430). In the latter case it was held, thiit if the answer was rendered li seems, that a denial in a pleading in this form, "he says that he denies each and every allegation," etc., is a good general denial. (Jones v. Lud- lum, 74 N. Y., 61 ) ^ See Meehan v. Harlem Sav. Bank, 5 Hun, 439. * See note 2 to form No. 122. ' Where a pleading is verified, each subsequent pleading, except a demur- rer or the general answer of an infant by his guardian ad litem, must also be verified. But the verification may be omitted in a case where it js not other- wise specially prescribed bylaw, where the parly pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading. (Code Civ. Pro., § 523.) indefinite, uncertain or complicatednhjfc,!.!., In.-a^lions for divorce on the ground such denial, the remedy is by motion to make it more definite, and not by the exclusion of evidence upon the trial (See, to same effect. Green v. Raymond, 14 Week. Dig., 323.) Against this form, see McEncroe v. Decker (58 How., 350), Miller v. Mc- Closkey (1 Civ Pro. Rep., 252; 13 Week. Dig., 51; 9 Abb. N. C, 303), Luce V. Alexander (17 Week Dig. 528 [N. Y. Super. Ct., G. T., 1883]; 19 id., 610; 20 id., 319,329). of adultery, the answer of the defend- ant may be made without verifying it, notwithstanding the verification of the complaint. (Id , § 1757.) When a defense is pleaded which does not involve the merits of the ac- tion, it must be verified. (Code Civ. Pro., §513.) See, also, Wilson v. Bennett (2 Civ. Pro. Rep. [Browne], 34),, that answer in libel need not be verified. Pleadinos in Oouets of Ubcoed. Q9 plaint, alleges as follows (stating second defense or counter- claim) :]' [Signature of attorney.] [Office address/] [Verification, when required, as in forms Nos. 152-155]. No. 142. Answer Setting up Partial Defense. (Code Civ, Pro.,"|608.) [Title of cause.] The defendant, A. B , for a partial^efense to the com- plaint [or to the cause of=^tion (fir^j9 set forth in the complaint] alleges as follows [here state facts constituting partial defense] : [Signature of attorney.] [Office address."] [Verification, when required, as in forms Nos. 152-155.1 '.No. 143. Answer Claiming Affirmative Judgment. (Code Civ. Pro., § 509.) After setting np counterclaim conclude as follows : Wherefore the defendant demands judgment that he re- cover from the plaintiff the sum of , with costs of this action [or state other relief to which defendant deems himself entitled]'. [Signature of attorney. ] [Office address.*] [Verification, when required, as in forms Nos. 152-155.] ' Each defense or counterclaim must serted in the answer, except in this be separately stated and numbered, case mentioned in section 509, Code (Code Civ. Pro., §507.) Unless it is Civ. Pro., where defendant deems him- interposed ass^n answer to the entire self entitled to an affirmative judgment complaint, it must distinctly refer to by reason of a counterclaim interposed the cause of action which it is intended by him or where he demands relief to answer. (Id.) (See Bruce v. Burr, against another defendant. (See § 521, 67 N. ;y . , 237. ) Code Civ. Pro. ) « See note 2 to form Wo 132. * See note 2 to form No. 122. ' A prayer for relief need not be in- 100 FoEMS Relating to No. 144. Order of Severance where Part of Plaintiff's Claim is Ad- mitted. (Code Civ. Pro., §511.) [At, etc., as in form No. 80. J [Title of cause.] The answer of the defendant, A. B., having admitted a part of the plaintiff's claim to be just, to vi^it, that the sum of dollars and cents is due the plaintiff upon the promissory note set forth in the complaint [or other statement as to part admitted]; and due notice having been given to C. D., attorney for the defendant, Novr, on motion of E. F., plaintiff's attorney [or counsel], no one appearing to oppose [or and after hearing M. N. , counsel for the defendant], it is hereby ordered, that the above entitled action be severed and that judgment be entered for the plaintiff for the sum of dollars and cents, so admitted to be due [and (*) the plaintiff having so elected (f) it is further ordered, that the said ac- tion be continued vpith like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim {or from [*] as follovrs : that if plaintiff shall so elect vrithin days, by stipula- tion in v^riting, signed by his attorney and served on de- fendant's attorney {or stating other manner of election), then as above from (f)].' . No. 145. Admission of Counterclaim ll)y Plaintiif. (CodeCiv. Pro., §512) [Title of cause.] A. B., the plaintiff in the above entitled action, hereby admits the counterclaim of defendant to the claim of plain- tiff set forth in the complaint. E. P., Plaintiff's Attorney. [Office address.'] ' See Bradbury v. Winterbottom (13 ' See note 2 to form No. 122. Hun, 536), Hall v. Holt (25 Hun, 377). Pleadings in Coukts of Recokd. 101 No. 146. Judgment for excess of Plaintiff's Claim over Counter- claim. (Code Civ. Pro., §513.) [Title of cause.] The defendant not having, by his Unsvsrer, denied the plaintiff's claim, but having set up a counterclaim for the sum of — — dollars and cents, amounting to less than the plaintiff's claim, and the plaintiff having filed w^ith the clerk of the county of — — an admission, in writing, of the said counterclaim : It is hereby adjudged, pursuant to the statute in such case provided, that A. B., the plaintiff, recover from C. D., the defendant, the sum of dollars and cents, being the excess of said plaintiff's claim over the amount of said counterclaim, together with the sum of dollars and cents, for his costs and dis- bursements in the above entitled action, in all amounting to the sum of dollars and cents, for which amount judgment is rendered on this day of , 18—. M. N., County Cleric of County. Article Fourth, forms relating to reply. (Code Civ. Pro., Ch. 6, Tit. 1, Art. 4.) No. 147. General form of reply. 148. Notice of application for judgment on failure to reply. 149. Order of reference or f or vcrit of inquiry, where no reply is made to counterclaim. 150. Several avoidances to same defense or counterclaim. No. 147. General For m of Reply. (Code Civ. Pro., § 514.) [Title of cause.] The plaintiff, in reply to the counterclaim set up by de- fendant's answer to the claim s§t forth in th^ complaint, 3,lleges ^*] ; 102 Forms Relating to That he denies each and every allegation in said answer contained, relating to said counterclaim [excepting the alle- gations of said answer relating to said counterclaim (de- scribing any excepted allegation)].' [Or that he denies the following allegations of said answer relating to said counterclaim (here set forth the allegation specifically denied).] [Or that he denies any knowledge or information suffi- cient to form a belief, as to each and every allegation of said answer relating to said counterclaim {or as to specific allegations, describing them).] If new matter is set up, constituting a defense to the counterclaim, insert after the necessary denials : And the plaintiff, further replying to the counterclaim set up in said answer, alleges, that [here state the new matter in de- fense of the counterclaim].' A. B., Plaintiff's Attorney. [Office address.'] No. 148. Notice of Application for Judgment on Failure to Reply. (Code Civ. Pro., §515.) [Title of cause.] Sir — Take notice, that the defendant will apply for judg- ment in the above entitled action upon the counterclaim set forth in his answer in said action [and (if required) that a-' writ of inquiry may be issued, or that a reference may be ordered to take tho account of (describing it), or to make computation of the amount due the defendant upon said counterclaim, or to assess the damages due the defendant because of said counterclaim], (*) [and that the report of said referee (or inquisition) be returned to the court for its . further action], or for such other and further relief as to the court may seem proper to grant ; that said application will be made at a ^ Term of tho ^ ■ Court, to be held at , on the day of '- — , 18 — , at the ' As to this form of denial, see note " For several replies to counterclaim, ? to form No, 140, see form No. 150. ' g?e JiOt^ a to tofm JJo, \%% Pleadings in Courts of Reooed. 103 opening of tlie court, or as soon thereafter as counsel can be heard. ' Dated , 18—. Yours, etc., E. F., Attorney for Defendant. [OfSce address."] To M. v., Esq., Attorney for Plaintiff. No. 149. Order of Reference or for Writ of Inquiry, where no Re- ply is Made to Counterclaim. (Code Civ. Pro., g 515.) [At, etc., as in form No. 80. J [Title of cause.] The plaintiff having failed to reply to the counterclaim of the defendant in the above entitled action, and due notice of this motion having been given vto the defendant's attor- ney [*J, and the court having computed and ascertained the amount due the defendant, by reason of said counterclaim, at the sum of [or having taken the account neces- sary to enable it to render judgment upon said counterclaim {or other preliminary assessment, stating vi^hat)], Now, on motion of C. D., for the defendant, it is hereby ordered, no one appearing to oppose \or after hearing J. K., for the plaintiff], that tlie defendant have judgment upon said counterclaim for the sum of , W\\h. costs. Or as above to [*], and from thence as follows : Now, on motion of C. D., for the defendant, after hearing, etc. \or no one appearing to oppose], it is hereby ordered [f], that it be referred to P. E,., Esq., of , to make computa- tion of the amount due the defendant because of said counterclaim [or to assess the damages due the defendant because of said counterclaim [or to take the account of the ' The plaintiff may, although he has trial will be as to the amount of dam- not rephed to the counterclaim, notice ages. (Adams v. Roberts, 63 How. the cause for triiil at the proper trial Pr., 253.) term, but as the counterclaim is ad- ' See note 3 to form Nq. Vi% jpittec}, the onl^ (question upon sugl) 104 Forms Relating to defendant, or proof of the- facts, or of any particular fact, naming it)'] [and that the report of said referee be returned to the court for its further action]. Or as above to [f], and from thence as follows : That the damages due the defendant, by reason of said counterclaim, be assessed by a jury, and that a writ of inquiry issue to the sheriff of the county of , for the purpose of such assessment [and that the inquisition made pursuant to said writ be returned to the court for its further action]. Ko. 150. Seyeral Avoidances of Same Defense or Counterclaim. (Code Civ. Pro., §517.) [Title of cause.] First. The plaintiff for a first reply to the [*'] defense {or counterclaim] firstly [or otherwise] set forth in the answer of defendant alleges -as follows [here state matter in reply] : Second. And the plaintiff for a further reply to the [and thence as above from (*)]. A. B., Plaintiff '' s Attorney. [Office address."] [For verification, when necessary, see forms Nos. 152-155.], TITLE II. FORMS RELATING TO PROVISIONS GENERALLY APPLICABLE TO PLEADINGS. (Code Civ. Pro., Cli. 6, Tit. 2.) No. 151. Verification of pleading by party, or by one of two or more parties, united in interest and pleading together. 152. Same by officer of domestic corporation. 153. Same by person acquainted with the facts, where the people of the State are, or a public officer in their behalf Is, a party. 154. Same by foreign corporation, or agent or attorney for the party. 155. Notice of election to treat unverified pleading as a nullity. 156. Demand of copy of account. 157. Verification by party of account furnished on demand, when the pleading is verified 158. Same by agent or attorney of party., 159. Copy of plaintiff's account, or bill of particulars of plaintiff's claim. ' gee section I'^IS, Co4e C|v. Pro, ' 'gee note 2 to form Nq, l?q, Pleadings in Coukts of Recoed. 105 No 160. Bill of particulars of defendant's couoteiclaim. 181. Affidavit (o obtain order for bill of particulars. 16d. Notice of motion for bill of particulars. 1(33. Order for bill of particulars. 164. Complaint on instrument for the payment of money only, by setting lorth copy. 165. Notice of motion for judgment upon pleading as frivolous. 166. Order for judgment upon pleading as frivolous. 167. Judgment upon pleading as frivolous. 168. Notice of motion to strike out shamanswer or defense. 169. Order striking out answer or defense as sham. 170. Notice of motion to strike out of a pleading irrelevant, redundant or scandalous matter. :: ?1. Order striking out allegations of pleading as irrelevant, etc. 172. Order striking out amended pleading vrhere put in for delay. 173. Notice of motion to make pleading definite and certain by amend- ment. 174. Order requiring pleading to be made definite and certain by amend- ment. No. 151. Verification of Pleading by Party, or Iby One of Two or More Parties, United in Interest and Pleading Together. (Code ( iv. Pro., §§ 535, 526.) County, ss. : A. B., of , being duly sworn [or affirmed], says, • that he is the plaintiff [or defendant] or one of the plaintifFs [or defendants] in the above entitled action [*] ; that the foregoing complaint [or answer, or reply] is true to the knowledge of deponent, i except as to the matters therein stated to be alleged on information and belief,' and that as to those matters he believ.es it to be true. A. B. Subscribed and sworn [or affirmed] l to before me, this day V of , 18-. ' > The clause relating to information A verification is sufficient, which and belief may be omitted, when cone states the pleading is tnie, as deponent of the allegations of the pleading are is informed and believes, if all the allc- stated 1.herein to be made upon infor- gations are made upon information and mation and belief. (Laduev. Andirews, belief. (Orvis v. Goldschmidt, 3 Civ. .'j4HowPr., IfiO; Bbwghen v. Nolan, Pro. Rep. [Browne], 814; 8. C , 64 53 How. Pr.', 485 ) How. Pr, 71.) 14 106 FoKMs Rklating to No. 152. Verification of Pleading by Officer of Domestic Corporation. (Code Civ. Pro., g 525, subd. 1.) County of , ss.: A. B., of , being duly sworn [or affirmed], de- poses and says, that he is the president [or secretary ; or, name other officer of the corporation] of the [name of cor- poration], the plaintiff [or defendant, or one of the plain- tiffs or defendants] in the above entitled action [*] ; that the foregoing complaint [or answer, or reply] is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that, as to those matters, he believes it to be true [that the grounds of his belief, as to all matters not stated upon his knowl- edge, are as follows : as to the matter of (here state in de- tail, or describe the different matters stated in pleading upon information and belief) ; that the reason why this verification is not made by the plaintiff {or by the said de- fendant) is, that Siiid plaintiff {or defendant) is (f) a cor- poration].' A. B. [Jurat as in No. 46.] No. 153. Verification of Pleading by Person Acquainted with the facts, where the People of the State are, or a Public Officer in their behalf is, a Party. (Code Civ. Pro., § 535, subd. 2 ) — COTJNTY, SS. ; A. B., of , being duly sworn [or affirmed], says, that he is [describing official capacity, if any], and is ac- ' Under the decision in Glaubensklee statements are added in case it is deem- V. Hamburgh and American Packet ed safer, under the statute, to insert Co (9 Abb. Pr., 104), ihe statement of them. the grounds of belief may be omitted, The pleading of a domestic corpora- as the veriflcation by the officer is there tion may be verified by its director, held to be the veriflcation by the cor- (Blgelow v. Whitehall Manuf'g Co., 1 poration. This decision appears never City Ct. Rep, 138.) to have been questioned. But these Pleadings in Couets of Record. 107 quainted with the facts stated in the foregoing complaint [or answer, or reply], and that the said complaint [etc.] is true to the knowledge of deponent, except as to the matters therein stated to be alleged upon information and belief, and that, as to those matters, he believes it to be true [here state grounds of belief, and reasons why verification is not made by the party, substantially as in form No. 152]. A. B. [Jurat as in form No. 46.] No. 154. Terification of Pleading by Foreign Corporation, or Agent or Attorney for the Party. (Code Civ. Pro., § 535, subd. 3.) COITNTY, **.; A. B., of , being duly sworn [or affirmed], says, that he is the agent [or attorney; or one of the attorneys] for the plaintiff, C. D. [or defendant, E. F.J, in the above entitled action ; that the foregoing complaint [or answer, or reply] is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and, as to those matters, he believes it to be true ; that the grounds of deponent's belief, as to all matters not stated upon his knowledge, are as follows : as to the mat- ter of [here state reasons for belief of different matters alleged] ; that the reason why this verification is not made by said plaintiff [or defendant] is, that said plaintiff [or defendant] is a foreign corporation [or is not within the coimty of : — , where this deponent resides, or where said plaintiff's (or defendant's) attorney resides (or has his otfice) (*), or that said plaintiff {or defendant) is not capable of making this verification by reason of sickness {or other incapacity, stating it), or that the instrument upon which this action {or defense) is founded, being a written instru- ment for the payment of money only, is in the possession of deponent,' or that all the material allegations of the com- ' That it is sirfflcient for an attorney belief, his pnssession for collection of to state, as the source or ground of his a written instrument for the payment 108 Forms Relatino to plaint {of answer, or reply) are within the personal knowl- edge of deponent].' [Jurat as in form No. 46.] No. 155. Notice of Election to Treat Unverified Pleading as a Nullity. (Code Civ. Pro., § 528.) [Title of cause.] SiE — Take notice, that the plaintiff [or defendant] has elected to treat as a nullity the answer [or reply] heretofore served by you in the above entitled action, the copy of the same served having been without a copy of a [sufficient] verification, and the plaintiiF [or defendant] having been entitled to a verified answer [or reply].' That such verification is defective in the following par- ticular [or particulars], to wit : [here state defects].' Dated , 18—. Yours, etc., A. B., Attorney for Plaintiff [or Defendant\ [Office address."] To E. F., Attorney for Defendant [or Plaintiff '\. of money only. fSee Hyde v. Salg, ' See Note 1 to form No. 151. 15 Week. Dig., 311; S. C, 37 Hun, » The objection that an answer has 369.) not been properly verified is not a See further, as to verification by at- proper one to be raised on the trial, torney, Lyons v. Murat (54 How. Pr., (Sohwarz v. Oppold, 74 N. Y., 307; 28), Neuberger v. Webb (24 Hun, 347), Katz v. Kuhn, 9 Daly, 1G6.) Stedeker v. Bernard (17 Wk. Dig., 540). » n ^,as held in Snape v. Gilbert (18 Where an answer, verified by the Hun, 491), that where an answer was attorney, contains an allegation incon- returned on the ground of defective sistent with the affidavit of verification, verification the notice accompanying it the court will direct the defendant to must point out particularly the defect, serve an answer verified by himself. This decision was made apparently Jaillard v. Tomes, 3 Abb. N. C, 34 ) under the practice before the Code of A suit for foreclosure of a mortgage. Civil Procedure, but it is deemed safer in which relief is also sought upon the to insert this clause, at least, where the bond, is not "upon a written instru- verification is merely defective and is ment for the payment of money only," not altogether omitted. See, also, Bige- so that the complaint may be verified low v. Whitehall Manuf. Co. (1 City Ct. by the attorney. (Peyser v. McOor- Rep , 188), Hyde v. Salg 27 Hun, 369). mack, 7 Hun, 300.) * See note 3 to form No. 123. Pleadings in Courts of Record. 109 No. 156. Demand of Copy of Account. (Code Civ. Pio , S53I.) [Title of cause.] Sir— Take notice, that the defendant \or plaintiff] de- mands a copy of the account, alleged in the complaint [or answer, or reply] in the above entitled action].' Yours, etc., A. B., Attorney for Plaintiff [or Defendant.'] [Office address.'] No. 157. Veriflcation by Party of Account Furnished on Demand, where the Pleading is Verified. (Code Civ. Pro , § 531 ) County, ss.: A. B., of , being duly sworn, says, that he is the plaintiff in the above entitled action ; that he believes the foregoing account to be true. A. B. [Jurat as in form No. 46. J No. 158. Veriflcation of Account by Agent or Attorney for Party. (Code Civ. Pro , § 531.) County, ss. A. B., of , being duly sworn [or affirmed], says, that he is the agent [or attorney] for C. D., the plaintiff [or defendant], in the above entitled action ; that he believes the foregoing [or annexed] account to be true : that the facts therein stated are within the personal knowledge of ' A motion should not be made to The account referred to in this sec- set aside the demand, where the plain- tion is not c inflned to an account till is without the means of giving stated. It is to be applied to almost particulars. He should set that fact eveiy claim on contract, which con- up as an excuse wlien a motion is sists of several items (Id. ; disap- made for a further account, when he proving, Johnson v. Mallory, 3 Robt., has made and served the best in his 68 1.) power. (Barkley v. Rens. and Sara- "^ See note 3 to form No. 123. toga R. R Co., 37 Hun, 515.) 110 Forms Relating to deponent [or that the plaintiff {or defendant) is not within the county of , where plaintiff's {or defendant's) attorney resides ; or that the said plaintiff (or defendant) is not capable, by reason of (stating incapacity), of making this verification!. A. B. [Jurat as in No. 46. J No. 159. Copy of Plaintiff's Account, or Bill of Particulars of Plain- tift''s Claim. (Code Civ. Pio., §531.) [Title of cause.] Sir — Take notice, that the following is a copy of the plaintiff's account [or is a bill of particulars of the claim] alleged in the complaint in this action (and for the recovery of which this action is brought) to wit [here set forth the several items of the demand or claim, the amount thereof, and the date of each as near as may be].' Dated , 18—. Yours, etc., A. B., Plaintiff'' s Attorney. [Office address."] To 0. D., Esq., Defendant s Attorney. [Verification, when necessary, as in forms Nos. 157, 158.] No. 160. Bill of Particulars of Defendant's Counterclaim. (Code Civ. Pro., §531.) [Title of cause.] Sir — Take notice, that the following are the particulars ' A bill of particulars is sulflcieut, if items of the demand. (Moran v. Mor- it points oiit the items of particulars rissey, 28 How. Pr., 100; S 0-, 18 embr ccd in the plaintiff's claim; and Abb., 181; see, also, People ex rd. it need not specify the grounds upon Waring v. Monroe, C. P. [l Wend.], which it is claimed to recover. (Sea- 200; Welmore v. Jennys, 1 Barb., 53; many Low,4Bosw., 8-J8-) luanaction Smith v. Hicks, 5 Wend., 48; People upon 11 n indebtedness, the bill of par- v. Cox, 23 Hun, 269; Way Mf'g Co. ticulars should ttatc the sums claimed, v. Corn, 5 Month. Law Bui., 81.) when, and how they arose, and the See note 2 to form No. 132. Pleadings in Courts of Eecoed. Ill of the counterclaim set up by the defendant by his answer in this action, to wit [here state the several items as in form No. 159]. Dated ^ , 18—. E. F., DefendanVs Attorney. [Office address.'] To M. P., Plaintiff's Attorney. [Verification, when necessary, as in forms Nos. 157, 158.] No. 161. Affldayit to Obtain Order for Bill of Particulars. (Code Civ. Pro., §531.) [Title of cause.] County, **.; ^) C. D., the [defendant] above named, being duly sworn, says, that the complaint in this action was served upon [him] on the day of , 18 — ; that this de- ponent does not know the items of the amount claimed from him in said complaint \or state ground of application]; that deponent cannot, witli safety, answer the said com- plaint [or proceed to the trial of said cause] until hfe is fur- nished with the particulars of the plaintiff's demand [or cannot reply to the defendant's coiinterclaim, until he is furnished with the particulars thereof]. [If an extension of time is desired, add aifidavit of merits.'] C. D. [Jurat as in No. 46.] No. 162. Notice of Motion for Bill of Particulars. (Code Civ. Pro., §031.) [Title of cause.] Siii — Take notice, that upon [the accompanying affidavit and upon the pleadings and proceedings in this action] a ' See note 2 to form No. 122. Practice. And see, as to affidavit to '' As to contents of affidavit of merits, obtain bill of particulars in tort, Or\is see rules 23 and 24 of Gen. Rules of v. Diica, 1 Abb. N. C, 268. 112 FoKMS Relating to motion will be made at a Term of the Court, to be held at etc., on the day of , 18 — , at the opening of court, or as soon thereafter as counsel can be heard, for an order, that plaintiff's [or de- fendant's] attorney deliver to defendant's [or plaintiff's] attorney a bill of particulars of the plaintiff's demand [or of the defendant's counterclaimj in this action, and for such other or further relief as the court may deem proper to grant [with costs of this motion].' Yours, etc., M. F., Plaintiff^X&r Defendant s\ Attorney. [Office address."] ISTo. 163. Order for Bill of Particulars. (Code Civ. Pro., §531.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing affidavit of A. F., dated , 18 — , and [name other motion papers] with notice of motion that plaintiff [or defendant] deliver to plaintiff's [or defend- ant's] attorney a bill of particulars in this action, with proof of due service thereof upon A. B , attorney for the plaintiff \or defendant], as thereby required, and, on motion of C. D., counsel for defendant [or plaintiff], no one appearing to oppose [or after hearing A. B., counsel for the plaintiff [or defendant)]. It is hereby ordered, that the plaintiff [or defendant] deliver to the defendant [or plaintiff] a bill of particulars of the plaintiff's demand (or of defendant's counterclaim) in this action, on or before the day of , 18—, ' The former practice by order to days cannot be given, and every such serve bill of particulars, on or before order must fix a day for showing cause a certain day, or show cause, etc , was less than eight days after the same is expressly abolished by rule 37 of Gen. made. "Unless this provision is com- Kules of Practice, as amended in 1883. plied with the order shall be a nullity, The amendment provides as follows: and may be treated as such." • "Orders to show cause shall not be See, also, note 1 to form No. 163. granted except where a notice of eight ^ See note 2 to form No. 183. Pleadings m Courts op Eecokd. 113 and in the meantime let all proceedings on the part of tlie plaintiff [or defendant] be stayed.' No. 164. Complaint on Jnstrnment for the Payment of Money only, by Setting forth Copy. ,rtf*K „ , (Code Civ. Pro., §534.) [Title of cause.] The complaint of the above-named plaintiff, respectfully shows : That on or about the day of , 18 , the defendant made and executed his certain promissory note [or bond, or other instrument for the payment of money, naming it], of which the following is a copy [here set forth copy of note, or other instrument]. That there is due to the plaintiff thereon, from the de- fendant, the sum of dollars, which amount, with the costs of the action, plaintiff claims to recover from the defendant." [Signature, etc. as in No. 159. J [Add verification, if verified, as in forms Nos. 161-156. J No. 165. Notice of Motion for Judgment upon Pleading, as Frivolous. (Code Civ. Pro., §537.) [Title of cause.] Sib — Take notice, that upon the pleadings and proceed- ' As to the distinction between a Co. (84 N. Y., 493), Orvis v. Dana (1 motion to malie pleadings more defl- Abb. N. C, 268). nite and certain, and a motion for a ^ A complaint in this form is only bill of particulars, and in general as to good, when the instrument set out bills of particulars, see Wilson v. Pear- shows, on its face, a valid and binding son (U. 8. Circuit Ct., S. D. N. Y. [14 obligation. Where other facts are Fed. Reflbrter, 391] ; 8. C, 18 Fed. needed to render it valid, they must R., 386), Tilton v. Beecher (59 K Y., be set forth. Broome v. Taylor (76 176), Dwight V. Germania Life Ins, N. T., 564); e. ^., a bond W wbich 10 114 Forms Kelating to ings herein, a motion will be made at a term of the Court, to be held at, etc., on, etc. [or to Hon. A. O., judge {or justice) of the Court, at his chambers in — , on, etc., at o'clock, in the noon], for judgment upon the answer [or demurrer, or reply] of defendant herein, as frivolous, with costs of the motion, and for such other or further relief as to the court [or to said judge] may seem proper to grant.' Dated , 18—. A. B., Plaintiff's [or Defendanf s] Attorney. [Office address.'] To C. D., Attorney for Defendant [or Plaintiff}. No. 166. Order for Judgment upon Pleading as Frlrolous. (Code Civ. Pro., §537.) [At, etc., as in form No. 80, when made by court.] [Title of cause.] After recitals, as in form No. 171 to [*], add : It is hereby ordered, that plaintiff [or defendant] have judgment upon the answer [or reply, or demurrer] in this action, as frivolous," with dollars" costs of this motion. Dated , 18 — [when made by judge]. [Signature to judge's order.] defendant is described as a married as frivolous, it must be not only with- woman, cannot be set out without out adequate reason, but so clearly and facts showing it to be a contract bind- plainly without foundation, that the ing upon her. (Id; modifying S. C, defect appears upon a mere inspection, 9 Hun, 155.) and indicates that it was interposed in See, also, Tooker v Arnoux (76 N. bad faith. (Cook v. Warren, 88 N. Y., Y., 397), Burke v. Ashley (12 Hun, 37; Vilas Nat. B'k v. Moore, 14 Week. 637), Broome v. Taylor (13 Hun, 341), Dig., 834 [Sup. Ct., G. T.]). Dupre V. Rein (7 Abb. N. C, 256; ^ See note 2 to form No. 132. 56 How., 2-28), Smith v. Fellows (26 ^ See note 1 to form No. 165, as to Hun, 384), Frisbee v. Jacobs (1 City when judgment will be rendered upon Ct., 2:'i5), Richter V. Kramer (id., 348). pleading as frivolot(§. ' To justify overruling a derourr^i' Pleadings in Courts of Record. 115 No. 167. Judgment upon Pleading as Frivolous. (Code Civ. Pro., § 537.) [Title of cause.] [Judgment of the day of , 18. J After usual recitals in judgment (see form No. 457), add : It is hereby adjudged, pursuant to the said order of the Court [or of Hon. judge of the Court], that A. B., the [plaintiff], have judgment in this action against the [defendant], C. D., for [stating relief de- manded by the complaint]. No. 168. Notice of Motion to Strike Out Sham Answer or Defense. (Code Civ. Pro., §538.) [Title of cause.] Sir — Take notice, that upon the pleadings and proceed- ings in the above entitled action [and upon the affidavits, with copies of which you are herewith served], a motion will be made at a Term of the Court, to be held at, etc., on the day of , 18 — ; [*] that the answer of defendant [or that the defense firstly {or otherwise) contained in the answer of defendant] in the above entitled action be stricken out as sham, with costs of said action and of this motion, and for such further or other relief as may be proper.' Dated , 18—. Yours, etc., A. B., Attorney for Plaintiff. [Office address."] To C. D., Attorney for Defendant. ■ As to what answers may be stricken N. C, 86), Webb v. Foster (45 N. Y. out as sham, see Schultze v. Rodewald Super. Ct , 311), Kay v Churchill (10 (1 Abb. N. C, 365), Mayor v. James Abb N C , 83), Rogers v. Vosburgh (l? II vm. 588), Robj? v, Hallock (5 Abb. (87 K. y., 328). 116 Forms Relating to No. 169. Order Striking Out Answer or Defense as Sham. (Code Civ. Pro., §538.) [At, etc., as in form No. 80. j [Title of cause.] On reading and filing the pleadings in the above entitled action [and the affidavits of A. B. and C. D., dated re- spectively , 18 — , and , 18 — J, and after hearing B. F., of counsel for the plaintiff, and Gr. H., of counsel for the defendant. It is hereby ordered, that the answer [or the defense firstly {or otherwise) contained in the answer] of the de- fendant, M. N., be and the same is hereby stricken out as sham, with dollars costs of this motion.' No. 170. Notice of Motion to Strike Out from Pleading Irrelevant, Reduudaut or Scandalous Matter. (Code Civ. Pro., g 545.) [Title of cause.] Sir — Take notice, that the plaintiff will apply at a Term of the Court, to be held at the the day of , 18 — , at the opening of court, or as soon as counsel can be heard, [*] for an order striking out the following allegations of the answer [or complaint or reply], in thts action, to wit [describing or quoting the allegations], as irrelevant [or scandalous {or redundant)], with costs of the motion, and for such other or further re- lief as may be proper ; that said motion will be made upon the pleadings in the action and upon the affidavits and papers, with copies of which you are herewith served." Yours, etc., A. B., Attorney for Plaintiff [or I)efendanf\. [Office address. °] To C. D., Esq., Attorney for Defendant [or Plaintiff']. ' See note 1 to form No. 168, as to ^ Motions for this relief, and to cor what answers, etc., will be stricken rect a pleading under section 54(i, Code put as sJi3.Hi, Civ, Pro, J niust be noticed befpi'e 4§-' Pleadings m Courts of Record. 117 No. 171. Order Striking out Allegations of Pleading as Irrelevant, Redundant or Scandalous. (Code Civ. Pro., §045) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the [reciting motion papers], with proof of due service thereof and of notice of this motion on A. B., Esq., attorney for the , and after hearing A. B., of counsel for the — * , and C. D., of counsel for the — [or no one appearing to oppose] : , It is hereby ordered, that the following allegations of the , in this action [describing or quoting them], be and the same are hereby stricken out therefrom, as scandalous [or irrelevant, or redundant], with ■ dollars costs of this motion, to be paid by the ■- — ,to the [or to abide the event of this action].' No. 172. Order Striking out Amended Pleading, where put in for the Purpose of Delay. (Code Civ. Pro., §543.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing [reciting papers] by which it ap- pears that the amended answer, served herein, was amended for the purpose of delay, and that the plaintiff will thereby lose the benefit of a terra at which this cause is [or may be] noticed, and on motion of A. B., of counsel for plain tifl', and after hearing C. D., of counsel for defendant, it is hereby ordered, that the said amended answer be and the murring or answering the pleading and is subscribed to the pleading, maybe within twenty days from the service directed to pay the costs of the moiion, thereof. (Kule 33 of Gen. Rules of and his failure to pay thorn may be Practice. ) punished as a contempt, of the court. * See note 2 to form No 122. (Code Civ. Pro., § 545.) ' Where scandalous matter is thus See note 2 to last form, No. 170, and stricken out, the attorney, whose name Allen v. Allen (19 Week Dig. 313). 118 FOKMS RliLATlKG TO J same is hereby stricken out \or that the said answer be re- stored to its original form], with dollars costs of this motion, to be paid by defendant to plaintiff \or state other terms imposed by the court]. No. 173. Notice of Motion to make Pleading Definite and Certain by Amendment. (Code Civ. Pro., § 546.) [At, etc., as in form No. 80.] [Title of cause.] J- Sir — Take notice, that upon the pleadings in this afejfeion, and upon the affidavits and papers with copies of wliich you are herewith served, an application will be made at a term of the Court J^to be held atfetc, on etc.], at the opening of court, or as soon as counsel can be heard, for an order requiring the following allegations of the , in this action [descri bing or _quoting them], to be made definite and certain, by amendment, with costs of this motion, and for such other and further relief as may be proper.' Dated , 18—. Tours, etc., A. B., Attorney for ■. [Office address.'] To C. D., Attorney for No. 174. Order Requiring Pleading to be made Definite and Certain by Amendment. (Code Civ. Pro., §546.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing [reciting motion papers], with proof ' See note 3 to form No. 170, and see and motion for bill of particulars, note as to distinction between this motion 1 to foim No. 163. » See note 3 to form No. 133. Pleadings in Courts of IlEcogp. 119 of due service on A. B., Esq., attorney "Kr the — , of copies thereof and of notice of this motion, and after hear- ing E. F., of counsel for the , and G. H., of counsel for the [or no one appearing to oppose] [*] : It is hereby ordered, that the of the — , in this action, be made definite and certain by amendment, in the following denials [or allegations], to wit ^describing or quoting them] : with dollars costs of this mo- tion, to be paid by the , to the [or to abide the event of this action]. 120 Forms Eelating to CHAPTER YII. FORMS RELATING TO GENERAL PROVISIONAL REMEDIES IN AN ACTION. TITLE I. Forms relating to arrest, pending the action, and proceedings tliereupon. TITLE II. Forms relating to injunction. TITLE III. Forms relating to attachment of property. TITLE IV. Forms relating to other provisional remedies and to general and miscellaneous provisions. TITLE I. Article First. forms relating to persons liable to arrest. (Code Civ. Pro., Ch. 7, Tit. 1, Art. 1.) No. 175. Application for discharge from arrest of lunatic, idiot or infant under fourteen years of age. 176. Notice of motion for discharge of lunatic, etc., from arrest. 177. Order discharging lunatic, etc. , from arrest. No. 175. Application for Discharge from Arrest of Lunatic^ Idiot or Infant Under Fourteen Years of Age. (Code Civ. Pro., § 554.) To the Gourt : The petition of A. B., respectfully shows : That he is the [stating relationship, if related ; if not re- lated, say friend] of C. D., of . That said C. D. is a lunatic' \or idiot, or infant under the age of fourteen years], and has been arrested by G. H., the sheriff of county, under and by virtue of an order made in a civil action pending in this court, between E. F., plaintiff, and said C. D., defendant, at a Term of this court, held at , on the day of 18 — \or by Hon. A. B., a Justice {or judge) of the -. ' In the case of lunacy or idiocy it rill be well to add other affdavits showing the fact. Aerest and Bail. 121 Court, dated , 18—], and is now in tlie custody of said slierifl under said arrest. [Here any further facts may be inserted making tlie ap- plication a proper one. J And your petitioner prays that said C. D. may be dis- charged from said arrest as a privileged person, pursuant to the statute in such case made and provided. And your petitioner vrill ever pray, etc. Dated , 18—. A. B. [Verification by petitioner as in form 'No. 53.] No. 176. Notice of Motion for Bischarge of lunatic, Idiot or Infant Under Fourteen Years of Age from Arrest. (Code Civ. Pro., § 554.) As in form No. 170 to [*], and from thence as follows : For an order discharging the defendant, C. D., in this action from arrest as a privileged person, pursuant to the statute in such case made and provided, and for such other or further order as may be proper. That said application will be made upon the petition and [name other motion papers] copies of which are herewith served upon you. Dated , 18—. Yours, etc., M. N., Attorney for Petitioner. [Ofiice address.'] To E. P., Esq., Attorney for Plaintiff. No. 177. Order Discharging Lunatic, Idiot or Infant Under Four- teen Years of Age from Arrest. (Code Civ. Pro., § 554.) [At, etc., as in form No. 80.] [Title of cause.] As in form No. 174 to [*], and from thence as follows : 1 See note 3 to form No. 123. 16 122 FoKMS Relating tO It is hereby ordered, that the said defendant, C D., a lunatic [or idiot {or infant under the age of fourteen years)], be and he is hereby discharged as a privileged person, pur- suant to statute, from the custody of the sheriff of county, in whose custody he is pursuant to an order of arrest made by the Hon. A. O., a justice [or judge] of the Court, in the above entitled action, dated , 18 — [or pursuant to an order of the Court, made at a Term thereof, held at , on the day of , 18 — ], and the said sheriff is hereby directed to discharge the said defendant, C. D., from his said custody under said order. Article Second. (Code Civ. Pro., Ch. 7, Tit. 1, Art. 2.) FORMS RELATING TO GRANTING, EXECUTING AND VACATING OR MODIFYING ORDER OF ARREST. No. 178. Affidavit to procure order of arrest in civil action, where rights of arrest depends on nature of action. 179. Same, wliere right of arrest depends upon facts extrinsic to cause of action. 180. Undertaking on procuring order of arrest. 181. Order of judge for arrest of defendant in civil action. 182. Order of court for arrest of defendant in civil action. 183. Indorsement by plaintiff's attorney upon order of arrest limiting time for arrest. 184. Affidavit to procure discharge of privileged person from arrest. 185. Order discharging privileged person from arrest. 186. Notice of motion to vacate order of arrest, etc. 187. Order vacating order of arrest, etc. 188. Affidavit to procure discharge from arrest when judgment not duly entered or execution duly issued. 189. Order discharging defendant from arrest, pursuant to above affidavit. No. 178. Affidavit to Procure Order of Arrest in Civil Action, where right of Arrest Depends on Nature of Action. (Code Civ. Pro., §557.) : [Title of cause.] ■ County, ss.: A. B., of , being duly sworn, says [that he is the Akrest and Sail 123 plaintiff in the above entitled action], that said action has been brought [o?' that an action is about to be brought, the summons in which is hereto annexed] by deponent against the defendant, C. D. [*], to recover damages to the amount hereinafter mentioned, for a personal injury to the deponent by said defendant [or stating in like manner any of the other causes of action enumerated in section 549, Code Civil Pro- cedure], for which [injury] a cause of action exists in favor^j of deponent against said defendant, arising out of the fol- lowing facts, viz. [here set forth fully the facts constituting the cause of action, or refer to a verified complaint' annexed to the affidavit, as stating the cause of action].' And this deponent further says, that he is fully entitled, as he believes, to recover damages from defendant, for the aforesaid injury [or other cause], to the amount of dollars [or to the amount claimed in said complaint].' That, etc. [substantially as in form No. 209 from (f)]." ' A. B. J Jurat as in form No. 46.] ' A sworn complaint may be regard- ed as an affidavit, when presented with other affidavits, on application for an order of arrest. (Palmer v. Hussey, 59 N. Y., 647.) A copy of sworn complaint may also be referred to, as containing state- ment of the cause of action. (Cran- dall V. McKaye, 6 Hun, 483.) '' As to statements made upon in- formation and belief, either in affida- vit or in complaint referred to, the sources of information must be stated in the affidavit; and if the affidavit of informant is not produced, the reason of its non-production must be given. Documents, or copies of them, from which information is de- rived, must be annexed if in possession of the plaintiff, or other affiant, or if they can be procured, and, if absent, their absence must be accounted for. (1 Wait's Pr., 636, 637, and cases there cited; Bell v. Mali, 11 How. Pr., 354; Whitlock V. Roth, 5 id., 143; S. C , 10 Barb , 78; Crandellv.Bryan, 15 How., 51; S. C, 5 Abb., 162; Smith v. Frank, 2Robt.,638; Blasonv. Bruno, 21How., 112; Cook V. Roach, id., 152; CityB'k v. Lumley, 28 id., 897; Hecht v. Levy, 9 Week. Dig., 313; 8. C, 20 Hun, 53; Pierson v.- Freeman, 77 N. Y., 589.) See, also. King v. Arnold (12 Week. Dig., ,%; a (\, 84 JSr. Y., 6G8), Drey- fus V. Otis (54 How. Pr., 405), Bowery Nat. B'k V. Duryea (56 How. Pr., 42), Anderson v. Hunt (55 How. Pr., 336), Brown v. Brockett (55 How. Pr., 32), Brewster v. Salomon (6 Week. Dig., 185), Knapp v. Browne (6 Week. Dig., 570), Williams v. Norton (54 How., 509),\Mather v. Hannauer (55 How., 1), Sloane v. Livermore (55 How., 85; 14 Hun, 29), Peck v. Lombard (22 Hun, 63). • In an action for the price of goods, an affidavit to obtain an order of arrest for false representations of solvency, must connect the sale of the goods with the representation. A general statement that the representations were made to induce credit, is not enough. (Phelps V. Maxwell, 3 Abb. N. C, 459.) An affidavit to obtain an order for 124 Forms Relatiitg tO No. 179. Affidavit to Procure Order of Arrest in Civil Action, wliere Right of Arrest Depends upon Facts Extrinsic to Cause of Action. (Code Civ. Pro., § 557.) As in form No. 178 to [*], and from thence as follows : To recover a chattel [or chattels {or state in like manner other causes of action mentioned in § 550, Code Civ. Pro.)], for which relief a cause of action exists in favor of said plaintiff against the said defendant, C. D., arising out of the following facts [here set forth fully the facts constitut- ing the cause of action, together with the facts authorizing the arrest under § 550].' And this deponent further says, that he is fully entitled, as he believes, to recover from said defendant the said chat- tels, which are of the value of at least dollars, with ■ dollars damages for the taking and witholding [or detention] thereof [or that he is fully entitled, as he believes, to recover from said defendant for the cause of action here- inbefore set forth the sum of dollars]. That, etc. [substantially as in form No. 209 from (f) ." A. B. [Jurat as in form No. 46. J property. (Welch v. Winterburn, 7 Week. Dig., 86; 8. C, 14 Ilun, 518.) * See rule 3o of Gen. Rules of Prac. ' Under sections .''i49, S.'jO. 557 and 558 of the Code ( iv. Pro., as amended in 1879, the complaint must contain, in or- der to justify an arrest, a statiment of the facts constituting a cause of arrest, where such cause depends upon facts extrinsic to the cause of action. (Hecht V. Levy, 9 N, Y. Weekly Dig., 313 [N. Y. Sup. Ct. Gen. Term, IstDept.]; B. C„ 30 Hun, 53.) Under this de- cision a copy of verified complaint might be annexed to aflfldavit and re- ferred to as stating the cause of action. The validity of an order of arrest is to be determined by the law existing at the time of the arrest of thedefendant thereunder, and not by that existing at the time the order was issued. (Id.) See, also, notes to last form. No. 178. ' See rule 25 of Gen. Rules of Prac. the arrest of the defendant, in an ac- tion for malicious prosecution, must set forth the facts relied on as pre- sumptive evidence of want of proba- ble cause. It is not sufficient to state, in general terms, the xistence of malice and want of probable cause. (Van- derpoel v. Kissam, 4 Sandf., 715; Grimes v, Davison, 2 Abb N C.,457.) The order should not be granted, when its propriety depends upon an important and doubtful question of law. (Cormier v. Hawkins, 69 N. Y , 188.) ' The affidavit may be made by the plaintiff, or any other person. (Code Civ. Pro., § 5.57.) In the latter case, the above form should be varied as may be necessary. The words "an injury to property," contained in subdivision 3 of section 549, Code Civil Procedure, embrace an injury to real as well as to personal Arrest and Bail. 125 No. 180. Undertaking on Procuring Order of Arrest. (Code Civ. Pro., § 559.) [Title of cause.] Whereas, the above named plaintiff, A. B., is about to apply for an order for the arrest of the defendant, C. D., in the above entitled action. How, therefore, we, E. F., merchant, of , and G. H., merchant, of , do hereby, jointly and sever- ally, undertake that if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may- sustain by reason of the arrest, not exceeding the sum of dollars.' E. F. G. H. [Acknowledgment and justification and approval as in form No. 118.] No. 181. Order of Judge for the Arrest of Defendant in Civil Action. (Code Civ. Pro., § 561, subds. 1, 2 and 3.) [Title of cause.] To the Sheriff of the County of [or to the sheriff of any county] : It having appeared to me, hj the affidavits of, etc. [speci- fying the papers read]," that a sufficient cause of action exists against the defendant, C. D., in favor of the plaintiff in the above entitled action, which is brought [or is about ' The amount must be at least equal (Pember v. Schaller, 58 How. Pr., to one-tenth of the amount of bail re- 511.) See, also, Irwin v. Judd (20 quired by the order, and not less than Hun, 562), as to amending undertak- $350. (Code Civ, Pro., § 559 ) ings generally. If the undertaking does not comply Foi- general provisions as to bonds with that section, the service of a new and undertakings, see Code Civ. Pro., undertaking, at any time before the §S 810-816. hearing of a motion to set aside the ' See note 4 to form No, }82, order, ■will cpyer the irregularity. 126 FoKMS Kelating to to be brought] to recover damages for a personal injury [or state any other ground of arrest specified in sections 549 and 550 of the Code Civ. Pro., except that specified in subd. 4 of section 550].' You are hereby required forthvsrith to arrest the said de- fendant, if he is found within your county ; to hold him to bail in the sum of ' dollars, and to return this order, with your proceedings thereunder, as prescribed by law. Dated at , in the county of , on the day of , 18 — . A. O., Judge \or Justice] of Court. [Or, County Judge of County. ] M. N., Plaintiff '' s Attorney. [Office address.'] No. 182. Order of the Court for Arrest of Defendant in Civil Action. (Code Civ. Pro., § 550, subd. 4.) [Title of cause.] [At, etc., as in form No. 80. J On reading and filing the affidavit of, etc. [specifying the papers read],* by which it appears that a sufficient cause of action exists against the defendant and in favor of the plain- tiff in the above entitled action, and that the judgment de- manded in said action requires the performance of an act, to wit: [state here the nature of the act], the neglect or refusal to perform which would be punishable by the court as a con- tempt, and that the defendant is not a resident of this State \or that the defendant, being a resident of this State, is 'Reading sections 561 and 568 in tliat the papers read nuist be specified, connection it appears that tlie grounds and must be filed with the clerk, un- of arrest should be recited in the order, less otherwise ordered by the court, or See, also, rule 13 of General Eules of the order may be set aside as irregular. Practice. " with costs ; and that the clerk shall not '' See note 1 to form No. 183. enter such order unless the papers are ' See note 3 to form No. 122, and filed, except when otherwise specially note 3 to form No. 183. directed by the court. Also Smith v. « See rule 8 of Gen. Rules of Prac, Smith (43 N. Y. Super. Ct., 140). Arrest and Bail. 127 about to depart therefrom], by reason of which non-resi- dence [or departure] there is danger that a judgment, or an order requiring the performance of such act, will be ren- dered ineflfectual. It is hereby ordered, that the sheriff of county. [or the sheriff of any county] be and he is hereby required forthwith to arrest the said defendant, if he is found within his county ; to hold him to bail in the sum of ' dol- lars, and to return this order, with his proceedings there- under, as prescribed by law, and this order is hereby directed to said sheriff." A. M., Plaintiff^ s Attorney. [Office address.'] No. 183. Indorsement by Plaintiff's Attorney upon Order of Arrest, Limiting Time for Arrest. (Code Civ. Pro., §561.) To the Sheriff of the County of [or to the sheriff of any coxmty'\: Sir — The arrest of defendant, pursuant to the within order [or pursuant to the order of which the within is a copy], must be made by you on or before the day of 18—. A. B., Plaintiff '' s Attorney. [Office address.*] ^ ' The amount of bail is discretion- made at Special Term. (Lachenmeyer ary, and the Court of Appeals cannot v. Lachenmeyer, swpra.) review, in that respect, the exercise of ' See note 3 lo form No. 122. Un- its discretion by the court below. (Peo less the order is subscribed by the pie V. Tweed, 63 N. Y., 203.) plaintiff's attorney it will be set aside. ' An order of arrest, under subd. 4 (Thompson v. Fricdberg, 54 How. Pr., of section 550 of Code Civ. Pro., may 519.) But see Mather v. Hannauer (55 be made in the first judicial district by How Pr., 1), that this defect may be a judge out of court. (Boucicault v. supplied by amendment. Boucicault, 31 Hun, 431; S. C, 59 Qtuere. In the latter case whether How. Pr., 131 ; Lachenmeyer v. Lach- the indorsement of the attorney's name enmeyer, 26 Hun, 543.) When so made upon the order is not a suflBcient sub- it should not be in the form of an order scription. 9f the Qourt, nor recite that it was * ^e^ note ? tp |orm PTp, 13^, 128 Forms Relating to No. 184. Affidavit to Procure Discharge of Privileged Person. (Code Civ. Pro., § 564.) [Title of cause.] County, ss. : B. F., of , being duly sworn, says, that he has been arrested in the above entitled action, pursuant to the order of the Court, made at a Term thereof, held at , on the day of , 18 — [or pursuant to the order of , a jud^e of the Court, dated , 18 — J, and is nowr in the custody of such sheriff under said arrest. That he is privileged from such arrest by reason of his being [here state the facts entitling applicant to the dis- charge].' E. F. [Jurat as in form No. 46.] No. 185. Order Discharging Privileged Person from Arrest. (Code Civ. Pro., ?i 564. [At, etc., as in form No. 80 (where the order is made by the court).] [Title of cause.] It having appeared by the affidavit of E. F., the defend- ant in the above entitled action, that he has been arrested by G. H., sheriff of county, pursuant to the order of the court [or of I. J., judge of the court], dated , 18 — , and that he is now in custody of said sheriff under said arrest, and that he is privileged from arrest by reason of his being [here recite facts entitling ' See, also, forms Nos. 18 to 22, Hun 154), Person v. Gvier (66 N Y., for affidavits claiming privilege from 124). Sanford v. Chase (3 Cow., 381), arrest, and returns by sheriff of exemp- Schlesiugerv Fozwell(l CityCt., 461). tion from arrest, and see as to who See, also, forms Nos. 175 to 178, in are privileged from arrest, Frisbie v. cases of discharge of lunatic, idiot or Young (11 Hun, 474), Jenkins v. Smith infant under fourteen, (57 How. Pr , 171), In re Lampert (31 Akeest and Bail. 129 applicant to discharge (and it appearing that due notice has been given of this motion to said sheriff, and to M. 'N., the 'attorney for the plaintiff)] ;'- and after hearing P. Q., counsel for said E. F., and said M. N. for the said defend- ant [or no one opposing] : It is hereby ordered [or I do hereby order], that said E. F., be and he is hereby discharged from said arrest, and that said sheriff release the said E. F. from his custody, upon the service upon him of a certified copy of this order. [Dated at , in the county of ^ on the day of , 18—- (when made by judge).] [Signature of judge, when made by him. j No. 186. Notice of Motion to Vacate Order of Arrest, etc. (Code Civ. Pro., § 567.) As in form No. 168 to [*], and from thence as follows [Or before Hon. A. O., justice {or judge) of the Court, at his office in the of , on the day of , 18 — , at o'clock in the noonXf)], to vacate the order of arrest in the above entitled action [if for irregularity, state ground, of motion], [or to reduce the amount of bail in this action, or to increase the security given by the plaintiff in this action], and for such other or further order as may be just, and for the costs of this motion. Bated , 18—. Yours, etc., A. B., Defendants Attorney [Office address."] To C. D., Attorney for Plaintiff. ' The court or judge may require except to shorten the time. (See note notice to be given to the sheriff, or to 1 to form No. 162.) the plaintiff, or both. (Code Civ. Pro., See section 568 ot Code Civ Pro., §564.) The better practice vcould, as to.where and upon what papers mo- therefore, appear to be, ordinarily, to tion must be made, give notice in advance of the motion,. i One or more of the forms of relief or obtain an order to show cause where may be asked for together, or in the shorter time is required. Orders to alternative. (Code Civ. Pro., § 567.) show cause are no longer allowable, ^ See note 3 to form No. 123. 17 130 FoKMS Relating to No 187. Order Yacating Order of Arrest, etc. I Code Civ. Pro., § 567.) [Title of cause ] [At, etc., as in form No. 80 (where order is made by the court).] On reading and filing affidavits of [specifying them'] and notice of motion, and upon the pleadings and other pro ceedings in the above entitled action, It is hereby ordered [or I do hereby order], after hearing E. P., of counsel for the defendant, and M. N., of counsel for the plaintiff, that the order of arrest of defendant, here- tofore granted in this action, at a Term of the Court, held at , on the day of , 18 — [or by Hon. A. O., (a) justice {or judge) of the Court, dated , 18 — ], be and the same is hereby vacated [and that the bail given for defendant be discharged from liability {or that the amount of bail in this action be reduced to the sum of dollars ; or that the security given by the plaintiff, upon the granting of the order of arrest in this action, be increased to the sum of dollars ; or other relief, stating it)], with dollars costs of this motion to the defendant [or to abide the event of this action]. M. N , Judge [or Justice] of Court [when made by Judge]. No. 188. Affldftvit to Procure Discharge from Arrest, where Judg- ment is not duly Entered or Execution not duly Issued. (Code Civ. Pro., §573) [Title of cause.] Counts, ss : A. B , of , being duly sworn, says, that he is the defendant [or defendant's attorney {or other description of affiant) I in the above entitled action ; that said action was brought for [stating nature of the action] ; that said action • S«e note 4, page i36, to form No. 183, as to specifying papers read. Abrest and Bail, * 131 was commenced on the day of , 18—, and an order of arrest therein was made on the day of , 18 — , at [or by (describing court or judge making order)], and that defendant has been arrested by and is now in actual custody of the sheriff of county, and in confinement in the — county jail, under and by virtue of said order of arrest [or upon his surrender in exonera- tion of his bail, in an undertaking given upon his said arrest, made pursuant to said order]. And deponent further says, [f] that [set' forth proceedings in the action], and that it was in the power of the plaintiff to enter judgment in said action against the defendant, on the day of , 18 — , and more than one month since, and tbat the plaintifl: has neglected to enter, and has not entered, judgment in said action [or as follows from (f): that judgment was entered in said action in favor of plain- tiff and against defendant for (stating relief), on the • day of , 18 — , and more than three months since, but that plaintifl has neglected to issue, and has not issued, execution upon said judgment against the person of defend- ant ; or as follows from (f) : that said surrender was made after the entry of judgment in said action, and that the de- fendant" s bail was exonerated upon said surrender, on the day of ■ — ; , 18 — , and more than three months since, by order of, etc., duly entered (a copy of which is hereto annexed), and that plaintiff has neglected to issue and has not issued execution upon said judgment against the person of the defendant]. A. B. [Jurat as in form No. 46.] No. 189. Notice of Motion for Discharge of Defendant from Custody, Under Order of Arrest, etc., where Judgment not duly Entered or Execution not duly Issued. (Code Civ. Pro., §572.) [Title of cause.] Sir— Take notice, that upon the annexed affidavit, a mo- tion will be made at [or before (describing court or judge, and stating time and place of motion, as in No. 165)], for 132 FoEMS Relating to the discharge of the defendant from the custody' of the sheriff of county in whose actual custody he is, under the order of arrest in this action, made, etc. [giving date, place, etc., of order] [or upon a surrender in exonera- tion of his bail], and for such other or further relief as to court may seem just, and for costs of this motion. Dated , 18—. Yours, etc., P. Q., Attorney for Defendant. [Office address.'] To 0. D., Plaintiffs Attorney. No. 190. Order Discharging Defendant from Arrest, when Judg- ment has not been duly Entered, or Execution has not been duly Issued. (Code Civ. Pro., § 573.) [Title of cause.] On-reading and filing the affidavit of A. B., dated , 18 — , by which it appears that plaintiff has neglected to enter judgment in the above entitled action, although more than one month has expired since it was in the power of the plaintiff to enter the same [or that plaintiff has neglected to issue' execution in this action against the person of the defendant within three months after the entry of judgment therein {or within three months after the exoneration of de- fendant's bail upon his surrender, as hereinafter mentioned, which surrender was made after the entry of judgment therein)], and that defendant is in actual custody of the sheriff of county, under the order of arrest herein- after mentioned ' [or upon his surrender in exoneration of his bail, in an undertaking given, etc.] ; and it appearing that due notice has been given to the plaintiff" of this appli- cation ; and on reading and filing [name opposing papers '], ' As to ■who is in "actual custody,'' As to how time is to be computed, see «ee Schmidt V. Heitner (45 N. Y. Su- Standacherv. Pregenzer (53How. Pr., per. Ct., 334), Merchants' Nat'l Bank 76). V. Mosher (54 How. Pr., 415), Watt v. « See note 2 to form No. 132. Healy (22 Hun, 491) 3 gee note 1 to form No. 189. As to where motion may be made, * See rule 3 of Gen. Rules of Prac. see Sumner v. Osborn (22 Hun, 13). Areest and Bail. 133 and after hearing M. N., for the motion, and P. Q., in op- position thereto [or no one appearing to oppose] : It is hereby ordered [or I do hereb}' order], that the de- fendant be discharged by the sheriff of county from custody under the order of arrest made in this action, on the day of , 18 — , at [or by (describing court or judge making the order)], [or upon his surrender as aforesaid], with dollars costs of this motion, to be paid by the plaintiff to the defendant. Date [of judge's order]. [Signature of judge (when made by him).] Article Third.- forms relating to discharge of defendant upon bail or deposit ; justification of the bail and disposi- tion of the deposit. (Code Civ. Pro., Ch. 7, Tit. 1, Art. 3.) No. 191. Undertaking to procure discharge from arrest under subdivision one, section 575. 192. Same, "under subdivision tv^o, section 575. 193 Same, under subdivision three, section 575. 194. Notice by plaintiff's attorney of acceptance of bail. 195. Notice of justification of bail, in undertaking to discharge from arrest. 196. Allowance by judge of bail, in defendant's undertaking on arrest. 197. Certificate by sheriff to defendant, on deposit of amount specified in order. 198. Certificate of county treasurer of payment into court of amount de- posited vpith sheriff. 199. Order on substitution of bail for deposit. 200. Direction by defendant to sheriff, to pay the amount of deposit to third person. No. 191. Undertaking to Procure Discharge from Arrest. (Code Civ. Pro., § 575, subd. 1.) [Title of cause.] Whereas, the above named defendant, C. D., has been arrested by IVI. N., the sheriff of county, under an order of arrest made in the above entitled action, dated , 18—: 134 Forms Relating to Now, therefore, we, P. Q., of , merchaBt, and I. J., of , banker, do hereby, jointly and severally, undertake, in the som of dollars ; [*] that the said defendant will obey the direction of the court, or of an appellate court, contained in an order or a judgment, re- quiring him to perform the act specified in the said order of arrest ; or, in default of his so doing, that he will, at all times, render himself amenable to proceedings- to punish him for the omission. In witness whereof, we have hereunto set our hands this day of , 18—.' [Acknowledgment as in form No. llS.''] P. Q. I. J. No. 192. Undertaking to Discharge from Arrest. (Code Civ. Pro., § 575, subd. 3.) As in form No. 191 to [*], and from thence as follows: That the defendant will deliver to the plaintiff the chattels sought to be recovered in this action, if delivery thereof is adjudged in this action, and will pay any sum recovered against him in this action. Dated , 18—. P. Q. I. J- [Acknowledgment as in form No. 118.'] ' A Dond void as a statutory obliga- subscribed by the bail and annexed to tion, beld good as an agreement be- the undertaking. See, also, g 581, tween the parties. (Toles v. Adee, 84 Code Civ. Pro. , as to allovcance ol bail, N Y , 223; rev'g S C, sub nom, Adee and for judge's certificate, see torm V. Adee, 16 Hun, 46.) No. 196; see for general provisions as * It is provided by Code Civ. Pro., to bonds and undertakings. Code Civ section 576, that the undertaking need Pro., §§ 810-816. not be approved, nor accompanied 'See notes to last form, No. 191; VFith an affidavit of justification of the see, also, Cook v. Fredenthal, 80 N. bail. If the sheriff so requires, the Y., 203, aff'g S. C , 14 Hun, 542; sub. officer taking the acknovirledgment nom.. Cook v. Hosvifitz. must examine under oath, to a reason- A defendant, arrested in an action able extent, ihe persons offering to be- for a chattel, may, at his election, give come bail, concerning their property a bond for the jail liberties or bail, and their circumstances The exam- under section 575, Code Civ. Pro. ination must be reduced to writing, (Levy v. Kain, 55 How. Pr., 136.) Aerest and Bail. 135 No. 193. Undertaking to Discharge Defendant from Arrest. (Code Civ. Pro., § 575, subd. 3.) As in form No. 191 to [*] and from thence as follows : That the defendant will, at all times, render himself amena- ble to any mandate, which may be issued to enforce a final judgment against him in this action. Dated , 18—. [Acknowledgment as in form No. 118.'] P. Q. I. J. No. 194. Notice by Plaintiff's Attorney of Non-Acceptance of Ball. (Code Civ. Pro., §577.) [Title of cause.] Sir — Take notice, that the plaintiff does not accept the bail named in the undertaking given by the defendant, in order to be discharged from arrest in this action. Dated , 18—. A. B,, Plaintiff^ s Attorney. [Office address.'] To E F., Esq., Sheriff of County. No. 195. Notice of Justification of Bail, in Undertaking to Dis- charge from Arrest. (Code Civ. Pro., §578.) [Title of cause. ] Sir — Take notice, that the bail named in the undertaking, given in this action by the defendant, to obtain his discharge from arrest, dated [or other bail, naming them, and giving their places of residence and occupation], will jus- tify before Hon. A. 0. [a], judge of the Court [or be- fore I. J., county judge of —. county], at the office ' See notes to last two forms, Nos, ' See note 8 to form No. 133. 191, 192. 136 Forms Relating to of said Judge, in , on the day of , 18 — , at o' clock in the noon. Dated , 18—. E. F., Sheriff of County. ISTo. 196. Allowance by Judge of Bail, in Defendant's Undertaking to Obtain Discharge from Arrest. (Code Civ. Pro., §581.) I find the bail mentioned in the within \or annexed] un- dertaking to be sufficient, and hereby allow the same. Dated , 18—. A. O., Judge of — Court [or County Judge of County\ No. 197. Certificate by Sheriff to Defendant, on Deposit of Amount Specified in Order. (Code Civ. Pro., § 582.) [Title of cause.] I, E. F. , sheriff of county, do hereby certify, that C. D., the defendant in the above entitled action, has de- posited with me the sum of dollars, being the sum specified in the order of arrest in said action, bearing date the day of , 18 — , and is accordingly, pur- suant to law, discharged from my custody, under the arrest made pursuant to said order, . Dated , 18—. E. F., Sheriff of County. No. 198. Certificate of County Treasurer of Payment into Court of Money Deposited with Sheriff. (Code Civ. Pro., §583.) [Title of cause. ] I, L M., county treasurer of county, do hereby certify, pursuant to law, that E. F., sheriff of Arrest and Bail. 137 county, has paid into court, and to me, as such county- treasurer, on the day of , 18— the sum of dollars, deposited with said E. P., as such sheriflf, by C. D., the defendant in the above entitled ac- tion, to obtain his discharge from the custody of said sheriff under the arrest made pursuant to the order of [stating court or judge], dated , 18—, for which amount a duplicate receipt has been given by me. Dated , 18—. L. M., County Treasurer of County. No. 199. Order on Substitution of Bail for Deposit. (Code Civ. Pro., § 584.) [Title of cause.] I, A. M. , judge of the [describing court], do hereby allow and approve of the bail mentioned in the within [or an- nexed] undertaking, they having been duly examined be- fore me, pursuant to law, and found sufficient by me ; and it appearing to me that the amount of dollars has been deposited with E. F., sheriff of county, upon the arrest of said defendant by said sheriff [and has been paid into court by said sheriff, and to the county treasurer of county] ; I do hereby direct that said amount be refunded to the defendant \or to I. J., the of the defendant], by the said sheriff \or by said county treasurer]. Dated , 18—. A. M., Judge of Court [or County Judge. No. 200. Direction by Defendant to Sheriff, to pay Amount of De- posit to third Person. (CodeCiv Pro, §586.) [Title of cause.] I, C. D , the defendant in the p-bpve entitle^ figtion, do ' 18 138 Forms Relating to hereby direct E. F., sheriff of connty, to pay the' amount of dollars, heretofore deposited with him, instead. of giving bail in the above entitled action, upon my arrest by said sheriff, to B. J., of , in the event that I shall become entitled to a return thereof. Bated . 18—. C. D. [Acknowledgment by C. D., as in form No. 118.] Article Fourth. FORMS RELATING TO GHARGING AND DISCHARGING BAIL. (Code Civ. Pro , Ch. 7, Tit. 1, Art. 4.) No. 201. Certificate of sheriff on surrender of defendant by his bail. 202. Notice of motion for exoneration of bail after surrender. 203. Order exonerating bail, after surrender of defendant. 204. Authority by bail to arrest defendant. 205. Requisition upon sheriff, by bail, upon defendant's surrender by them. 206. Requisition by defendant, upon his own voluntary surrender. 207. SheriS's certificate of voluntary surrender of prisoner, in exonera- tion of bail. 208. Order exonerating bail, in case of death of defendant, etc. No. 201. Certificate of Sheriff on Surrender of Defendant by his Bail. (Code Civ. Pro., § 592.) [Title of ca.use.J I do hereby certify and acknowledge that the defendant, C. D., m the above entitled action, has been, on this day of , 18 — , surrendered to me according to law, by E. F. and Gr. H., the bail named in the undertaking, of which a copy is hereto annexed, and that I now have and detain said C. D. in my custody, upon the certified copy of said undertaking, served upon me at the time of such sur- render, as upon the original mandate. Dated , 18—. M- N., Sherifof County. Aeeest and Bail. 139 No. 202. Notice of Motion for Exoneration of Bail after Surrender. (Code Civ. Pro., §593.; [Title of cause.] Sir— Take notice, that upon the certificate of M. N., sheriff of county, and a copy of the undertaking, with copies of which certificate and undertaking you are herewith served, an application will be made to Hon. A. O., judge of the court \or to Hon. T. J. V , county judge of county], at his chambers in . on the day of , 18—, at o'clock in the noon, or as soon thereafter as counsel can be heard, for an order exonerating E. F. and G. H., the bail named in the said undertaking, and for such other relief as may be just. Dated , 18—. Yours, etc., I. J , Counsel for E. F and O. H. [Office address.'] To M. N., Plaintiff's Attorney. No. 203. Order Exonerating Bail, after Surrender of Defendant. (Code Civ. Pro., §593.) [Title of cause.] The. certificate of M. N., sheriff of county, having been produced to me, acknowledging the surrender to him, on the day of , 18 — , of the defendant, C. D., in the above entitled action, by E. F. and G. H., his bail, in the undertaking given to procure tlie discharge of said defendant from ari-est, and a copy of said undertaking having been also produced to me ; and it appearing that due notice of this a2)plica(ion has been given to the plain- tiff's attorney : Now, on application of I J., counsel for said bail, and after hearing T, E,., of counsel for plaintiff, in opposition gee. pctc '4 to lorm .'fo 1?:? 140 Forms Eelating to thereto [or no one appearing to oppose], I do hereby order and direct that the said bail be and they are hereby exon- erated. Dated at , on the day of , 18—, A. M., Judge of Court. No. 204. Requisition upon Sheriff^ by Bail of Defendant, upon his Surrender by them. (Code Civ. Pro., § 593.) [Title of cause.] To the Sheriff of the County of .• We, E. F. and G. H.. the bail named in the undertaking, given upon the arrest of the defendant, C. D,, in the above entitled action, a certified copy of which is hereto annexed, do hereby produce and surrender to you the said defendant, and require you to take him into your custody. Dated , 18—. Yours, etc., E. F G. H. No. 205. Authority Given by Bail to Arrest Defendant. (Code Civ. Pro.. §598.) [Title of cause.] We, E. F. and G. H., the [or I, G. H. one of the] bail men- tioned in the within undertaking, do hereby authorize and empower A. M., of , to arrest the defendant, C. D., in the above entitled action, and to surrender the said C D , to the sheriff of county, hereby authorizing the said A M. to do all acts and things that we might law- fully do and perform in the premises. Dated , 18—. E. F. Arrest and Bail. 141 No. 206. Requisition by Defendant, upon his own Voluntary Sur- render. (Code Oiv. Pro., § 594.) [Titlfc. of cause. J To the Sheriff of the County of .• I, C. D., defendant in the above entitled action, do hereby surrender myself to you, and require you to take me into your custody, in exoneration of E. F. and Gc. H., my bail, in the undertaking given to procure my discharge from arrest in said action." Dated , 18—. C. D. No. 207. Sheriff's Certificate of Voluntary Surrender of Prisoner, in Exoneration of Bail. (Code Civ. Pro., §594.) [Title of cause.] I, M. N., sheriff of the county of , do hereby certify and acknowledge that the defendant, C. D., in the above entitled action, has surrendered himself to me accord- ii^g to law, and that I have taken him into my custody, in exoneration of his bail, E. F. and G. H., in the undertaking given to procure his discharge from arrest in said action. Dated , 18—. M. N., Sheriff of County. No. 208. Order Exonerating Bail in Case of Death of Defendant, etc. (Code Civ. Pro., §601.) [Title of cause.] On reading and filing the affidavit of A. B., showing the death of the defendant, C. D., heretofore, and on or about the day of , 18— [or that the defendant, Tiie proceedings for exoneration of render by the bail. (See forms Nos. the bail, arc Jike those in case of a sur S03, 303. ) 142 Forms Helating TO C. D., has been legally discharged from the obligation to render himself amenable to the process (direction, or pro- ceeding), with respect to which the undertaking of his bail in the above entitled action was made, viz.. (stating par- ticulars of his discharge)],' and it appearing that due notice has been given of -this motion to M. N., the plaintiflE's at- torney in the above entitled action, on motion of I. J , of counsel for E. P. and G. H., his said bail, after hearing K. L., of counsel for the plaintiff in opposition thereto [w no one appearing to oppose], It is hereby ordered, that said E. F. and G. H., be and they are hereby exonerated as such bail [upon the condition that they pay the costs and expenses of the plaintiff above named in an action which it appears has been commenced by him against said E. F. and G. H. upon said undertaking, incurred by him after the return of the execution issued in the above entitled action against the person of the said de- fendant, C. D.j." , TITLE II. forms relating to injunction. Article First. FORMS RELATING TO GRANTING AND SERVICE OF INJUNCTION ORDER. (Code Civ. Pro., Ch. 7, Tit. 2, Art. 1.) No. 209. AlBdavit to procure injunction order, where right thereto depends on nature of action. 310. Affidavit to procure injunction, general form, where the right thereto depends on extrinsic facts. 311. Injunction order to restrain State officer or State board from per- formance of duty imposed by statute, etc. 313. Notico of application for last above order. 313. Notice of application generally, for injunction order, and order to show cause why injunction should not be granted. 314. Injunction order when the right thereto depends on nature of action. 315. Same when right thereto depends on extrinsic facts. ' For proceedings after surrender of exoneration is claimed occurs after the the defendant by the bail for their commencement of such suit and is in exoneration, see forms Nos. 203, 203. the discretion of the court. (§ 601, ' This clause, imposing condition, is Code Civ. Pro.) to be added in case the event for which Injitkotion- Ordee. 143 No. 209. Afliflavit to Procure Injunction Oi'der, where Bight thereto Depends on Nature of Action. (Code Civ, Pro., §603.) [Title of cause.] A. B , of , being duly sworn, says [that he is the plaintiff in the above entitled a'ction], that this action has been [or is about to be] commenced for the relief demanded by the complaint therein, a copy of which is hereto annexed ; that [here state the facts necessary to show that plaintiff is entitled to a judgment against defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff].' [f] That no previous application has been made herein far an injunction order [or if made state to what court or judge, and what order or decision was made thereon, and what new facts, if any, are claimed to be shown]." A. B [Jurat as in form No. 46.] No. 210. Affldayit to Procure Injunction, General Form, where the Right thereto Depends upon Extrinsic Facts. (Code Civ. Pro., §604.) [Title of cause.] A. B., of , being duly sworn, says [that he is the plaintiff in the above entitled action], that said action has been [or is about to be] commenced for the purpose of [state here nature of action], and that the relief claimed by the complaint therein is that [stating relief claimed] ; that the 'i<«ee»is, that the application should As to statements made upon infor- be made upon aflSdavit, as well as upon mation and belief, see form No. 178, the verified complaint. Section 603 of note 3, and see Met Elevated R. R. the Code Civ. Pro., should bo con- Co. v. Manhattan R. R. Co. (5 Munlh. Btrued in connection with section 607 id. L. Bui., 74; S. C, 65 How. Pr., 277.) (Chatterton v. Kreitler, 3 Abb. N. C. , ^ These statements are necessary on 453.) application for ex parte, order. See But see section 3348, Code Civ. Pro., rule 25 of Gen. Rules of Practice. Bubd. 11. 144 PoKMS Relating to defendant, C. D. [state here acts of defendant ; or what he is procuring or suffering to be done {or is threatening or about to do), in violation of the plaintiff's rights respect- ing the subject of the action ; or facts showing that the de- fendant threatens (or is about) to remove or to dispose of his property, with intent to defraud the plaintiff].' A. B. [Jurat as in form No. 46.] No. 211. Injunction to Restrain State Officer or State Board or his or their Employees from Performance of Duty Imposed by Statute or to Prevent the Execution of Statute. (Code Civ. Pro. § 605.) At a General Term of the Supreme Court, held in and for the Judicial Department, at the [court house] in the of , on the day of , 18—. Present, Hon. , Presiding Justice. ,< '' \ Associate Justices . [Title of cause.] On reading and filing the pleadings and affidavit of A. B.. dated , 18 — , with due proof of service of a cojjy of said affidavit and notice of this motion on E. F. [M. N. and P. Q.] as [stating official title (or naming board)], and on reading and filing [name any opposing papers "], and after hearing I. J. for the plaintiff in snpport of this motion and K. L. for the said E. F. in opposition thereto [or no one ap- pearing to oppose], It is hereby ordered, that the said E. F. [M. N. and P. Q.], as said [stating official title {or naming board)], and the de- fendants, G. H. and I. J., and all other persons employed by him [or them] as such [stating official title {or name of board)], be and they are hereby enjoined from [stating pro hibited acts]. ' See note 3 to form No. 178, as to v. Manhattan R. R. Co. (5 Month. L. statements made upon information and Bui., 74; S C, 65 How. Pr., 277.) belief, and see Met. Elevated R. R. Co. '^ See note 4, page 126, to form No. ' 182, as to specifying papers read. Injunction Oedee. • 145 No. 212. Notice of Application for Injunction to Restrain State Offi- cer or Board of State Officers and tlieir Employees from Performance of a Duty Imposed by Statute or to Pre- Tent thie Execution of a Statute. (Code Civ. Pro , § 605.) [Title of cause.] Sir— Take notice, that an application will be made in the above entitled action upon [naming motion papers], at a General Term of the Supreme Court, to be held in and for the department,' at , on the day of •> 18 — , at the opening of the court, or as soon as counsel can be heard, for an injunction restraining you as [naming official title or board] and your employees from [stating acts sought to be prohibited], and for such other and further relief as may be proper. Dated , 18—. I. J., Attorney/or Plaintiff. [Office address.'] To E. F. [M. N. and P. Q.], [Official title or name of board]. No. 213. Notice of Application for Injunction Order and Order to Show Cause. (Code Civ. Pro., § 609.) As in form No. 186 to [f], and from thence as follows :' For an injunction order restraining the defendant and his agents and servants, during the pendency of said action, from [stating acts sought to be enjoined], and for such other or further relief as may be proper. Dated , 18—. I. J., Attorney for Plaintiff. [Office address.'] To E. F., Defendant [or G. H., Defendants Attorney, where one has appeared}. ' This motion must be made in the is located, or the duty is required to be department iu which the officer or board performed. (Code Civ. .Pro., §605.) See note 2 to form No. 133. 19 146 Forms RELATiiirG tO Or, [At, etc., as in form No. 80 (where made by the court).] [Title of cause.] On motion of I. J., attorney for the plaintiff, it is hereby ordered, that the defendant, C. D., show cause, at \or before], etc. [naming term of court or other time and place of application, and to whom made], upon the [plead- ings and proceedings in the above entitled action and upon the] affidavits and papers hereto annexed, why the said de- fendant and his agents and servants should not be enjoined, during the pendency of this action, from [naming acts sought to be enjoined], with such other and further relief as may be proper. [And it is further ordered, that the said defendant, his agents and servants, be and they are enjoined, until the hearing and decision of said application, from (stating acts prohibited). °] And it is further ordered, that copies of this order and of said annexed affidavits and papers be served nn the defend- ant and on his attorney [where one has appeared], on or before the day of , 18 — .' Dated , 18 — [when made by judge]. A. O., Justice \or Judge] of Court \or T. J. , County Judge] [where made T)y judge). ' The order ma}', except where it is ^ This order to show cause being otherwise specially prescribed by law, specially prescribed by the statute will be granted by the court in which the probably be granted in all cases, and action is brought, or by a judge there- not only when the time for notice is of, or by any county judge. (Code shortened, notwithstanding the amend- Civ. Pro., § 606.) As to powers of ment of 1883 to rule 37. See note to special county judge, see Babcock v. Hun's edition of Gen. Rules of Prac-, Clark, 28 Hun., 391. page 169, where it is said that this An injunction order made by a amendment was not understood by the county judge is the mandate of the committee to whom the amendments court in which the action is pending, were referred by the convention for (People ex rd. Negus v. Dwyer, 90 N. final adjustment, as applying to any Y., 402; aff'g 27 Hun, 548.) motion where the course of proceeding ' This clause is discretionary with is regulated by statute, the court or judge (Code Civ. Pro., As to terms of the amendment above ^ 609.) referred to, see' note 1 to form No. 163. Injunction Ordeb. 147 No. 214. Injunction Order when the Right thereto Depends upon the Nature of the Action. (Code Civ. Pro., §§ 603, 610.) [At, etc., as in form No. 80 (where order is made by the court).] [Title of cause.] It appearing from the complaint in this action, duly- verified, and from the affidavits of C. D. and E. F., dated respectively , 18—, and , 18—, that the plaintiff demands and is entitled to a judgment against the defendant, restraining the commission [or continuance] of an act, to wit : [here recite the act to be prohibited] and that the commission [or continuance] of such act, during the pendency of this action, would produce injury to the plaintiff', and the plaintiff having given the undertaking required by law ; It is hereby ordered [or I do hereby order], that the said defendant, E. L., and his agents, attornies, servants and all others acting in aid or assistance of him, and each and every of them, be and they are hereby restrained, prohibited and enjoined, under the penalties by law prescribed, from [here insert the acts prohibited], until this court shall have made further order hereupon. Dated , 18 [where made by judge].' A. M. Judge [or Justice] of Coiirt [or T. J., County Judge] {where made by Judge). No. 215. Injunction Order when the Right thereto Depends npon Extrinsic Facts. (Code Civ. Pro , §§ 604, 610.) [At, etc., as in form No. 80 (wliere order is made by the court).] [Title of cause.] It appearing from the affidavits of C. D. and B. F., dated ' See Gardner v. Gardner (87 N. Y., although the defendant has appealed, 14; rev'g 8. C, 34 Hun, 637), that a and has given an undertaking suffl- temporary injunction is dissolved by cient to stay all proceedings pending the entry of final judgment in the action, the appeal. 148 FoKMs Relating TO respectively , tliat the defendant is [reciting the facts, bringing the case under subd. 1 or subd. 2 of § 604], and the plaintiff having given the undertaking required by law ; It is liereby ordered [or I do hereby order], on motion of I. J., plaintiff's attorney [after hearing K. L.. counsel for defendant], that the said defendant, E. F., and his agents and servants, and all others acting in aid or assistance of him, and each and every of them, be and they are hereby restrained, prohibited and enjoined, under the penalties by law prescribed, from [here state the acts prohibited], until this court shall have made further order hereupon.' [Date, when made by judge.] A. M., Judge [or Justice] of Court [or I. J., County Judge] {where made by Judge). Article Second. FORMS RELATING TO SECURITY ON INJUNCTION. (Code Civ. Pro., Ch. 7, Tit. 2, Art. 3.) No. 21C. Undertaking on staying trial of an action by injunction order. 217. Undertaking on staying proceedings in action, after verdict, etc., by injunction order. 218. Order directing payment of money, on procuring injunction order staying proceedings in action after verdict, etc. 219. Undertaliing on procuring order to pay to party enjoined an amount deposited in coiu-t. 220. Undertaking on staying proceedings by injunction order, after ver- dict in ejectment or dower. 221. General form of undertaking on granting injunction order. 222. Notice of motion for reference, etc., to ascertain damages on in- junction. 223. Order of reference, etc., to ascertain damages on injunction. 224. Writ of inquiry to ascertain damages, sustained by reason of in- junc'ion. 225. Notice to sureties of bearing before referee. 236. Oath to jurors on writ of inquiry. 337. Oath to witness on writ of inquiry. 228. Inquisition pursuant to writ of inquiry. 229. Sheriff's return to writ of inquiry. 330. Complaint in suit on injunction undertaking. ' See note 1 to last form. No 214. Nat'l Bank of Newburgh (18 Hun, As to cases in which this order will 371), Jerome Co. v. Loeb (59 How. be granted, see Mut. Life Ins. Co. v. Pr., 508). Injunction Order. 149 No. 216. Undertaking on Staying Trial of an Action by Injunction Order. .Code Civ. Pro., §611.) [Title of cause.] Whereas, A. B., the plaintiff above named, has com- menced the above entitled action and has applied [or is about to apply] for an injunction order therein staying the trial of an action now pending in the court between the defendant, CD., above named as j)laintiif, and said A. B. as defendant, the complaint in which last mentioned action demands judgment for a sum of money only and in which said last mentioned action issue has been joined. Now, therefore, we, I. J., residing in , merchant, and K. L., residing in , banker, do hereby, jointly and severally, undertake, pursuant to statute, that the said A. B., plaintiff in the above entitled action, will pay to the said defendant, C. D., or his representative, all damages and costs, which may be recovered by said C. D. in the said action which is sought to be stayed by said injunction, not exceeding the sum of dollars, and also all damages and costs that may be awarded to said C. D. in the above entitled action. Dated , 18—. I. J. K.L. In presence of . [Acknowledgment and justification of sureties and ap- proval as in form No. 118.] No. 217. Undertaking on Staying Proceedings by Injunction Order in an Action after Yerdict, Decision or Report, or after Entry of Judgment. (Code Civ. Pro., §§ 613, 613, subd. 1 and 2, 618 ) [Title of cause.] Whereas, C. D., the plaintiff above named, has com- menced the 9.bove ejititled action against the defendant, 150 FOEMS Relating tO A. B., and has applied [or is about to apply] for an injunc- tion order therein staying the proceedings in a certain other action, pending in the Court, in which said defend- ant, A. B., is plaintiff, and said i:)laintiff, C. D., is defendant, in which last mentioned action a verdict [or the decision of Hon. E. F., judge of the Court; or the report of G. H., sole referee therein ; or a judgment] [*] has b' en duly rendered [and filed] [f] for — ^ dollars in favor of said C. D. against said A. B. Now, therefore, we, I. J., residing in , banker, and K. L., residing in , merchant, do hereby, jointly and severallj^, undertake, 23ursuant to statute, that the said C. D. will pay to said A. B., or his representative, the said sum awarded by said verdict [or report, or decision, or judgment', with interest thereupon and the costs of the last mentioned action [and that the said C. D. will pay also to the said A. B. all damages and costs which may be awarded to him by the court in the above entitled action, not exceeding the sum of dollars.]' Dated , 18—. I. J. K.L. In presence of . [Acknowledgment and justification of sureties and ap- proval as in form No. 118.] No. 218. Order Directing Payment of Money, on Procuring Injunc- tion Order Staying Proceedings in Action after Yer- dict, etc. (Code Civ. Pro., §614.) As in form No. 174 to [*] and from thence as follows: It is hereby ordered, that the amount of dollars, heretofore paid into.court in the above entitled action, and ' This clause in brackets must be 550), Eastman v. Starr (23 Hun, 465). added only in the case of staying pro- For general provisions relating to ceediugs by injunction order after bonds and undertaking's, see sections judgment 810-816 of Code Civil Procedure. See, also, Packer v. Nevin (67 N. Y , Injunction Oeber. 151 to the county treasurer of county, be paid by said treasurer to tlie defendant, A. B., in the above entitled ac- tion, upon his giving an undertal<:iiig, as required by law, to the people of the State, -with sufficient sureties, in the sum of dollars, to pay ^ae said money and interest, or any part thereof, as directed in the order or judgment of the court. No. 219. Undertaking on Procuring Order to pay to the Party En- joined an Amount Deposited in Court. (CodeCiv. Pro., §614.) [Title of cause.] Whereas, A. B., the defendant in the above entitled ac- tion, has applied [or is about to apply] to the court, for an order directing the payment to him of the amount paid into court in the above entitled action by the above named plain- tiff, C. D., on his procuring an injunction order staying the proceedings in a certain other action pending between said A. B., as plaintiff, and said C. D., as defendant, in which last- mentioned action a verdict [or the decision of the Hon. E. P., a judge of the court ; or the report of N. H., sole referee therein, or a judgment], has been rendered for dollars damages and costs, in favor of said A. B., and against s lii C. D. Now, therefore, we, I. J., residing in , banker, and K. L., residing in , merchant, do hereby, jointly and severally, undertake, pursuant to statute, to and, with the people of the State of New York, in the sum of dollars, that the said A. B., will pay the above mentioned amount of money, with interest thereupon, or any part thereof, as may be directed in the order or judgment of the court. Dated , 18—. I. J. K. L. In presence of . [Acknowledgment and jnstiiication of sureties, and ap- proval as in form No, 118.] 152 FOEMS Relating to No. 220. Undertaking on Staying Proceedings by Injunction Order after Verdict in action of Ejectment or for Dower. (Code Civ. Pro., §616.) [Title of cause.] As in form No. 217 to [f], and from thence as follows : For the recovery by the said A. B., as plaintiff, against said C. D., as defendant, of the possession of certain premises therein described, and for other relief as therein mentioned [or for the admeasurement of the dower of said A. B., as the widow of C. B., deceased, in the lands of the said C. B., and for other relief as therein mentioned], has been duly ren- dered and filed. Now, therefore, we, I. J., residing in , banker, and K. L., residing in , merchant, do hereby, jointly and severally, undertake, pursuant to statute, that the said C. D. will pay to the said A. B., or his representatives, all damages and costs, not exceeding the sum of dol- lars, which may be awarded to him in the above entitled action. Dated , 18—. I. J. K.L. In presence of . [Acknowledgment and justification of sureties and ap- proval as in form No. 118.] No. 221. General Form of Undertaking on Granting an Injunction Order. (Code Civ. Pro., §620.) [Title of cause.] Whereas, the above named plaintiff has applied [or is about to apply] for an injunction restraining the defendant from [state acts prohibited]. Now, therefore [*], we, I. J., residing in , banker, and K. L., residing in , merchant, do hereby, jointly and severally, undertake, pursuant to the statute, that the Injunction Order. 153 said plaintiff will pay to the defendant, C. D., such dam- ages, not exceeding the sum of dollars, as he may sustain by reason of the said injunction, if the court finally decides that the plaintiff was not entitled thereto [such damages may be ascertained and determined by the court, or by a referee appointed by the court, or by a writ of in- quiry or otherwise, as the court may direct].' Dated , 18—. I. J. K.L. In presence of . [Acknowledgment and jastification and approval as in form No. 118.] No. 222. Notice of Motion for lleference,etc.,to Ascertain Damages on Injunction. (Code Civ. Pro., § 623.) As in form No. 168 to [*], and from thence as follows : That the damages sustained by the defendant, by reason of the injunction issued in the above entitled action, on the day of , 18 — , may be ascertained and de- termined by the court, or by a referee to be appointed by the court, or by a writ of inquiry, or otherwise, as the court may direct, and for such other or further order as may be proper [and for costs of this motion]. Dated , 18—. Yours, etc., E. F., Attorney for Defendant. [OfHce address.'] To P. Q., Plaintiff '' s Attorney. ' It is not necessary, it seems, under (Higgins v. Allen, 6 How., 30; see, also, the provisions of the Code Civ. Pro., Episcopal Church of St. Peter v. Va- to insert in the undertaking a clause rian, 28 Barb., 644.) It is, however, providing for a reference, etc. Such a proper to be inserted, and if inserted reference Wfeing provided for by section should be in the form as given. 633, there is jurisdiction in the court ^ See note 2 to form No. 122. to direct a reference, though there be See, also, note 2 to next form, Ko. no such consent in the undertaking. 233, as to order of reference. 20 154 Forms Relating to No. 223. Order of Reference, etc., to Ascertain Damages on In- junction. (Code Civ. Pro., §633.) As in form No. 174 to [*], and from thence as follows : It is hereby ordered, that it be referred to M. N. , of [or that a writ of inquiry issue out of this court, to be directed and delivered to 0. P., sheriff of county, and returna- ble' on or before , 18 — , by which he shall be re- quired to summon a jury], to ascertain and determine the damages sustained by the defendant by reason of the in- junction issued in the above entitled action on the day of , 18 — , and that said damages be ascertained and determined by said referee [or by said jury] [and that the sureties, I. J. and K. L., in the undertaking given upon procuring said injunction have notice of the hearing, and of any appeal from the decision of said referee, and that said notice may be given to said sureties personally {or by leaving at their respective dwellings), at least days before any such hearing shall take place. J — — — ■ , • — ' See section 23, Code Oiv. Pro., as The order in such proceeding should to when returnable. be limited to fixing the amount of dam- = This clause in brackets is in the ages, and a provision therein requiring discretion of the court. (Code Civ. the plaintiff to pay the same is im- Pro , § 623.) proper. The amount of damages so The order of reference cannot be ascertained is conclusive upon the par- regularly made until final judgment ties and the sureties, but payment can has been entered; but if the order is only be enforced by action upon the made with the consent of the plaintiff, undertaking. (Lawton v. Green, 64 the objection is obviated. The sum N. Y., 326.) named in the undertaking is the limit See, also, Benedict v. Benedict (76 of liability thereupon, and the court N. Y., 600), Pacific M. S. Co. v. Toel has no power to award any greater (85 N, Y., 646), Cassell v. Fisk (16 sum, even for disbursements. Ref- Week. Big., 112), Musgrave v. Sher- eree's fees upon the reference are part wood (76 K. Y., 194), Johnson v. El- of the damages, and are recoverable wood (82 N. Y., 363). as such. A defendant enjoined, and who suc- Such a proceeding is not a proceed- ceeds in the action, has, it seems, or ing in the action It is a proceeding dinarily no remedy, except under the after judgment, constituting no part undertaking given by the plaintiff for of the action, and the court has no the damages suffered by him. (Pal- power to allow costs therein. mer v. Foley. 71 N. T., 106.) Injunction Orber. 155 Na 224. Writ of Inquiry to Ascertain Damages Sustained by Reason of an Injunction. (Code Civ. Pro., § 623 ) The People of the State of New Toric, to the Bheriff of the County of , greeting : Whereas, in an action brought by A. B against C. D. in our Court, such proceedings were had upon the personal service of the summons therein upon the said C. D., that the said C. D. obtained an order of the said court, dated , 18 — , directing that the damages sustained by the said C. D., by reason of the injunction issued in said action, on the day of , 18 — , be assessed by a jury, a copy of the complaint in -said action being hereunto annexed ; therefore, we command you that by the oath of twelve good and lawful men of your county you diligently inquire and ascertain what damages the said C. B. has sustained by reason of the said injunction, and that you return your inquisition hereupon, under your seal and the seals of those by whose oath you take such inquisition, together with this writ, to the clerk of the county of , on or before the day of , 18 — . Witness, Hon. A. M., justice, at the court house, in the city of , in the county of , this day of , 18—.' [L. s.] I. J., Plaintiff^ s Attorney. [Office address.'] J. L., CleirTc. 1^0. 225. Notice to Sureties of Hearing before Referee, etc. (Code Civ. Pro., § 623.) [Title of cause.] Sirs — You are hereby notified that a hearing will be had before M. N., referee duly appointed [or before a jury sum- ' The writ may be executed by the Johns., 63; see, also, Butlfer v. Kelsey, under-sheriff or a deputy as well as by 15 id., 177. the sheriff himself to whom it is di- ^ See note 3 to form No. 133. reeled. (Tillotson v. Cheetham, 8 156 FoBMS Relating to moned by O. P., sheriff of :; county, under a writ of inquiry issued, directed and delivered to him] in the above entitled action, to ascertain and determine the damages sustained by the defendant by reason of the injunction issued in said action, on the day of , 18 — , at o'clock — M., at the office of said referee, in the city of [or other place]. Yours, etc., E. F., Attorney for , [Ofl&ce address.'] To I. J. and K. L., Sureties for A. B., Plaintiff. No. 226. Oath of Jurors on Writ of Inquiry. (Code Civ. Pro., §623.) You and each of you do swear that you will well and truly hear and determine the matter in difference between A. B., plaintiff, and C. D., defendant, and true inquisition make, according to the evidence, so help you God. No. 227. Oath to Witness on Writ of Inquiry. (Code Civ. Pro., § 623.) You do swear that the evidence you shall give in the matter in difference between A. B., plaintiff, and C. D., de- fendant, shall be the truth, the whole truth and nothing but the truth, so help you God. No. 248. Inquisition Pursuant to Writ of Inquiry. (CodeCiv. Pro., §623.) COTTNTT OF , SS.: Inquisition taken this day of , 18—, before me, M. N., sheriff of county, by virtue of a ' See note 3 to form No. 122. LsTJUNOTiON Oedek. 157 writ of inquiry to me directed and to tMs inquisition an- nexed, to inquire of and concerning certain matters in said writ contained and specified, by the oaths of [naming jurors] twelve good and lawful men of said county, who, being sum- moned and sworn, say, upon their oaths, that the defendant in the said writ named hath sustained damages by reason of the premises in the writ mentioned to dollars. In witness whereof, we, as well the said sheriff as the said jurors, have set our hands and seals to this inquisition, the day and year above written. M. N., Sheriff, [l. s.J Jurors: . [l. s.J Jurors: . [l. 8.] . [L. 8.] . [L. 8.] No. 229. Sheriif' s Return to Writ of Inquiry. (Code Civ. Pro., §633.) The execution of the within writ of inquiry appears by the inquisition annexed hereto. Dated , 18—. O. P., Sheriff of County. No. 230. Complaint in Suit on Injunction Undertaking. (Code Civ. Pro., §635.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that on the day of , 18—, an in- junction order was made and issued out of the Court, and duly served upon this plaintiff,' in an action brought by A. B., against this plaintiff, by which this plain- tiff was restrained and enjoined from [stating the matters prohibited]. That upon the issuing of the said injunction in said ac- tion, an undertaking was given by the said A. B., in which the defendants, E. F. and G. H., jointly and severally under- took and agreed, as by the said undertaking, a copy of 158 Forms Relating tO which is hereto annexed [marked A], will more fully appear. And this plaintiff further shows, that the said action so commenced against this plaintiff was prosecuted and carried on ; and it was finally decided by the said court therein, that the said A. B. was not entitled to the said injunction, and it was ascertained and determined by said court by its said decision [or by the report of a referee to whom it was referred to take proof of the damages sustained by the plain- tiff by reason of said injunction, which report was duly con- firmed by said court by its order, duly entered [or state other method by which it was determined] ; that the dam- ages to which the plaintiff was entitled, by reason of said injunction, amounted to the sum of dollars, with interest thereon from the day of , 18 — , which the court thereupon awarded to this plaintiff, and that no part of said sum has been paid. Wherefore the plaintiff demands judgment for the said sum of dollars, with interest thereupon from the day of , 18 — , and for costs of this action. I. J., Plaintiff ^ s Attorney. [Office address.'] [Verification, when verified, as in forms Nos. 151, etc.] Article Third. FORMS RELATING TO VACATING OR MODIFYING INJUNCTION ORDER. (Code Civ. Pro., Ch. 7, Tit. 3, Art. 3.) No. 231. AflBdavit on application without notice, to vacate or modify injunc- tion order to other court or judge than the one granting it. 233. Order vacating or modifying injunction order hy judge granting same. 233. Order vacating or modifying injunction order, without notice, by judge, other than the one making it. 234. Notice of motion to vacate or modify injunction order. 335. Undertaking by plaintifE on vacating or modifying injunction order. ' If the plaintifE has obeyed the in- tied to recover. (Cumberland Coal and junction, having knowledge of it, Iron Co. v. Hoffman Steam Coal Co. , although not served with process in 39 Barb., 16.) the injunction action, he would be ' nti- "^ See note 2 to form No. 132. IisrjujsrcTioN Oeder. 159 No. 231. Affidavit on Application witliout Notice to Vacate or Modify Injunction Order to otlier Court or Judge tlian the one Granting it. (Code Civ. Pro., §626.) [Title of cause.] County of , ss. : A. B., of , being duly sworn, says, that he is the defendant in the above action [or other description of afR- ant]; that an injunction order was granted in said action, on the day of , 18—, by [describing court or judge]; that the Hon. A. O., by whom the said order was granted [or who presided at the said term at which said order was granted], is absent from the county of ^ , and is, as this deponent is informed and believes from in- quiries made at his chambers and residence [or otherwise, as the case may be], at ■ — , and expects to be so absent and at the last mentioned place for [state time of absence] [or is disabled by reason of sickness {or other disa- bility, stating it) from hearing an application to vacate or modify such injunction order] ; that by reason of such absence [or disability] such application cannot be made to said judge, and that the defendant who desires to make such application will be exposed to great injury by the delay required for such an application upon notice ' [state reasons why] ; that, etc. [as in form No. 209 from (f)]. A. B. [Jurat as in form No. 46. J No. 232. Order Vacating or Modifying Injunction Order, without Notice by Judge Granting Same. (Code Civ. Pro., § 636.) [Title of cause.] On reading and filing the [naming papers on which the in- junction order was granted'] [*], and on motion of T. R., ' As to proceedings upon this appli- ^ See note 4, page 1 36, to form No. cation, see Coffin v. Prospect Parle, 183. etc., K. R. Co., 61 How. Pr., 105. 160 FoKMS Relating to of counsel for defendant, I do hereby order that the injunc- tion order granted in the above entitled action on the day of , 18 — , by me [or at a Special Term held by me], be and the same is hereby vacated [or modified, stating respects in which it -is modified], with dollars, costs to abide the event of the action." Dated , 18—. [Judge's signature.] No. 233. Order Tacating or Modifying Injunction Order, without Notice, by Judge, other than the one Making it. (Code Civ. Pro., § 626.) [Title of cause.] As in form No. 232 to [*], and from thence as follows : And it appearing by the affidavit of A. B., dated , 18 — , that this application cannot be made to Hon. A. O., who granted the injunction order hereinafter mentioned [or who held the term of the ■ Court at which the injunction order hereinafter mentioned was granted], by reason of the absence [or other disability, naming it] of said judge. Now, on motion of T. E,., of counsel for defendant, I do hereby order that the injunction order granted in the above entitled action by said judge [or at said Term held by said judge], be and the same is hereby vacated [or modi- fied, stating respects in which it is modified], with — : dollars, costs to abide the event of this action. Dated — , 18—. [Judge's signature.] No. 234. Notice of Motion to Tacate or Modify Injunction Order. (Code Civ. Pro., § 637.) [Title of cause.] Sir — Talie notice, that upon the papers upon which the » See note 1 to form No. 331. Injunction Oeder. IGi injunction order hereinafter mentioned was granted [and upon the affidavits and papers which are hereto annexed] a motion will be made at a Term of the Court, to be held at . on the day of 18—, at the opening of the court, or as soon as counsel can be heard [or to Hon. A. , judge of the Court, at , on the day of , 18—, at o'clock in the noon] for an order vacating the in- junction order granted in this action, on the day of , 18 — , with costs of this motion, and for such other or further relief as may be proper. Dated , 18—. C. D., Attorney for Defendant. [Office address.'] To H. E., Attorney for Plaintiff. No. 235. Undertaking toy Plaintiff on Tacating or Modifying Injunc- tion Order. (Code Civ. Pro., §629.) [Title of cause.] Whereas, an application has been made at, etc. \or be- lore, etc.], to vacate or modify the injunction order, granted herein on the — '■ day of , 18 — , and the said court \or judge], upon sucli application, has required a new undertaking to be executed herein, pursuant to statute : Now, therefore [conclude as in form No. 221 from (*)].' ' See note 2 to form No. 132. must move to dissolve the injunction. "^ That upon one of the sureties in See Randall v. Carpenter, 22IIuu, 5;i. Ihe plaintiff's undertaking becoming The injunction will be dissolved in insolvent, the defendant cannot have such case, unless a new and sufficient the plaintiff's proceedings stayed, but surety is supplied. (Id.) 21 162 Forms Relating to TITLE III. forms relating to attachment of property. Article First. forms relating to cases where a warrant of attach- ment may be granted and proceedings for grant- ing the same. (Code Civ. Pro., Ch. 7, Tit. S, Art. 1.) No. 236. AfSdavit for attachment against property of non-resident defendant in action for breach of contract. 337. ' Same, in action other than for breacli of contract. 2^8. Affidavit for attachment against property of a foreign corporation. 239. Affidavit for attachment against property of absconding, etc., de- fendant. 240. Affidavit for attachment in action against public officer, etc., for peculation. 2-11. Undertaking on granting 'warrant of attachment. 243. Warrant of attachment. isro. 236. Affidavit for Attacliment against a Non-resident Defendant, in Action for Breach of Contract. (Code Civ. Pro., g 686.) [Title of cause.] COUITTY OF , SS.- A. B., of , being duly sworn, says, that he is the plaintiff [or plaintiff's attorney] in the above entitled action [or other description of aihant may be given].' That a summons has been issued in said action [or that said action has been commenced by the service of the sum- mons therein upon the defendant, C. D. (+)].' ' The affidavit may be made b}' any has been issued or served. (Wallace person having knowledge of the facts v. Castle, 68 N. Y., 370.) therein stated. But see Carr v. Van It has been held, under present Code Hoesen (cited infra, in note 3), as to Civ. Pro., not to be necessary to state affidavit by attorney. in the affidavits on which the applica- ^ It was held to be sufficient, under tion is founded that an action has been sec ion 237 of the Code of Procedure, commenced or a summons has been to state that an c.ction had been com- issued, provided an action has actually menced, and that it was not necessary been commenced or the summons in to state, specifically, that a summons fact has been issued (Stevens v. Mid- Attachment of Property. 163 That said action is brought to recover a sum of money only, to wit : the sum of dollars, and that the plaintiff claims and is entitled to recover therein from the defendant, C. D., the said sum as damages for breach of contract, over and above all counterclaims known to him,' upon a cause of action existing in his favor against the said defendant, arising out of the following facts : [here state facts constituting the cause of action, and where any of the material facts are stated upon information and belief add affidavit of informant or account for its absence]. [*] That the said defendant, C. D., is not a resident of the State of New York, but that he resides in the of dloton, 14 Week. Dig., 136 [Gen. Term, 1st Dc-pl.]; S. C, 36 Hun, 470; Pick- hai-dt V. Antony, 27 id., 369.) It mny be deemed, however, to be the safer practice to insert one or the other of the foregoing clauses " An affidavit which fails to state that a certain sum ia due the plaintiff "over and above all counterclaims known to him" is fatally defective, and an attachment granted thereon will be set aside. (Lyon v Blakcsly, 19 Hun, 399; Taylor v. Reed, 54 How. Pr., 27; Trow Printing, etc, Co. v. Hart, 9 Daly, 413 ; aflTd S. C, 85 N. Y., 500.) That such omission renders the at- tachment void abirtitio, see Dounell v. Williams (31 Hun, 216; 59 How Pr , 68); but it was held in Carr v. Van Hoesen (26 Hun, 816>, in which latter case the defect was that the affidavit was made by the plaintiff's attorney and stated that the atcount claimed was due "over and above all counter- claims known to the deponent," and jurisdiction had been acquired by per- sonal service of summons on defendant that the defect does not render the at- tachment void, but that it remains in full force and effect unless set aside by the court upon motion. It seems that where the affidavit is made by any other person than the plaintiff it would be proper to omit tbe words "known to him" from the statement. (Lamkin v. Douglass, 37 Hun, 517.) The affidavit may be made by one of several plaintiffs, stating that the sum mentioned is due, over and above all counterclaims, known to him. (Ste- vens v. Middleton, supra.) The clause need, however, only be inserted in an action for breach of con- tract. (Code Civ. Pro , § 636, subd. 1.) It was held in Lamkin v. Douglass (svpra), that a statement that plaintiff was entitled to recover from defendant a certain sum " over and above all dis- counts and set-offs" was sufficient. See, also, Ruppert v. Haug (87 N. Y., 141). The affidavit must state the exist- ence of the facts out of which the cause of action arose. A mere recital of them would be insufficient. (Man- ton v. Poole, 4 Hun, 638; aff'd, see 5 Hun, VI.) A verified complaint, or copy there- of, may be annexed to the affidavit and referred to as stating facts consti- tuting cause of action. In that case the same rule must be followed in re- gard to allegations made therein on information and belief as is above stated. See, also, as to statements on information and belief, note 3 (p. 133) to form No. 178, and Bennett v. Ed- wards (27 Hun, 853), Steuben Co. Bank v. Alberger (78 N. Y., 352). See (w 164 Forms Relating to -, in the State of [as deponent is informed by M. P., whose affidavit is hereto annexed, and verily be- lieves to be true (or state other sources of information and belief, and if affidavit of informant is not annexed, state the reason why)] [That the said defendant, CD., has property within the State, to wit : (describing property).'] That, etc. [substantially as in form No. 209, from (f)]. The plaintiff, therefore, hereby applies for a warrant of attachment against the property of the said defendant, C. B., as provided by the Code of Civil Procedure.' A. B. [Jurat as in form No. 46. ] No. 337. Aftidavit for Attachment Against Property of Non-Resi- dent Defendant, in Action Other than for Breach of Contract. (Code Civ. Pro., § 636.) [Title of cause.] County of , ss.: A. B., of , being duly sworn, says, that he is the plaintiff [or plaintiff's attorney] in the above entitled action [or other description of affiant may be given].' That a summons has been issued in said action [or that said action has been commenced by the service of the sum- mons therein upon the defendant, C. D.].' That said action is to recover a sum of money only, to wit : the sum of dollars, as damages, for the wrong- ful conversion of personal property [or as damages for an injury in consequence of the negligence {or fraud, or wrong- ther as to sufficiency of the affidavit, 'Attachlnents may issue in actions on Claflin V. Baere (57 How. Pr., 78), contracts for the recovery of unliqui- Wliitev. Eeichert(14Week.Dig.,385), dated damages, when a proper dis- Pomeroy v. Riclsetts (27 Hun, 343), closure of the grounds of the claim Watts V. Nichols (19 W. D., 165), and supplies practicable means for deter- note 1 to form No. 239, mining its amount. (United States v. ' This last clause, in brackets, may Graff, 4 Hun, 634.) be and usually is inserted, but is not ' See note 1 to last form, No. 336. required by the statute. (See note 2, "' See note 3 to last form, No, 2o6, page 169, to form No. 243.) Attachment of Peopeety. 165 ful act) of the said defendant], arising out of the following facts [here state facts constituting the cause of action ; and where any of the material facts are seated upon information and belief, add affidavit of informant or account for its absence].' [Thence as in form No. 236, from (*).] No. 238. Affidavit for Attachment against Property of a Foreign Corporation. (Code Civ. Pro., § 636.) As in form No. 236 to [*], and from thence as follows : That the defendant is a foreign corporation, created under the laws of the [State] of , having its place of busi- ness at , in that [State] [and has property in this State, to wit (describing it)] : The plaintiff therefore applies for a warrant of attach- ment against the property of the said defendant, as pro- vided, by the Code of Civil Procedure. A. B. [Jurat as in form No. 46.] No. 239. - V Affidavit for Attachment against Property of Absconding, etc.. Defendant. (Code Civ. Pro., § 636i subd. 2.) [Title of cause.] As in form No. 236 to [*], and from thence as follows : That the defendant, C. D., is a resident of the State of New York \or is a domestic corporation incorporated under the laws of the State], and that he has departed therefrom \or keeps himself concealed therein], with intent, as this depon- ent believes, to defraud his creditors \or to avoid the service of a summons], \or that he {or it) has removed {or is about to remove) property from the State, with intent to defraud his {or its) creditors ; or that he {or it) has assigned {or dis- • See note 3 to last form. No. 336. 166 Forms Kelatiitg TO posed of, or secreted), or is about to assign (dispose of, or secrete) property, with the intent, etc. J, and the grounds of his belief, are as follows : [here state facts constituting the grounds of his belief].' The plaintiff therefore applies for a warrant of attach- ment against the property of the said defendant, C. D., as provided by the Code of Civil Procedure. A. B. [Jurat as in form No. 46. J ISTo. 240. Affldayit for Attachmeut in Action against Public Officer, etc., for Peculation. (Code Civ. Pro., §637.) As in form No. 236 to [f], and from thence as follows : That the complaint in said action demands judgment for a sum of money only, to wit, for the sum of dollars, and said action is brought to recover money owned {or held] by the State, which the defendant has, without right, ob- tained and received, as will fully appear by the [vei'ified] complaint in this action, which is hereto annexed and re- ferred to as a part of this affidavit [or by the following statement of the facts constituting the plaintiff's cause of action (here state such facts)]. That as to the facts stated in said complaint \or above stated] upon information and belief, the sources thereof are as follows, to wit : as to the allegation that [stating it], from T. R., whose affidavit is hereto annexed [or if affidavit of informant is not annexed, state reason why], as to the alle- ' An attachment cannot issue against .'")74), Milliken v. Dart (26 Hun 24), firm property, unless all the members White v. Richert (14 Week. Dig., 285), of the firm are shown to be within the Bennett v. Edwards (27 Hun, 352), requii'ements of this section. It will Easton v. Malavazi (7 Daly, 147), Al- not be granted, where only a single len v. Meyer (73 N. Y., 1), Stevens v, member of the firm has absconded, Middleton (26 Hun, 470), Andrews v. etc. (Bogart V. Dart, 35 Hun, 395.) Scliwartz (55 How. Pr., 190), astocon- Sce, also. The Mayor, etc., v. Genet tents and form of afiidavit, also note (63 N. T , G4G), Anthony v. Stype (19 3 to form No. 236.^ Hun, 265), Evans v. Warner (21 Hun. Attachment of Propektt. 16'? gation that [stating it], from C. D., whose affidavit is hereto annexed [or in like manner account for its absence]. That a sufficient cause of action exists against the de- fendant for the sum above mentioned, and sought to be re- covered in this action, as will appear from said complaint ,[or from the foregoing statement of the facts constituting the cause of action]. Wherefore the plaintifp applies for a warrant of attach- ment against the property of the said defendant, pursuant to the provisions of the Code of Civil Procedure.' A. B. [Jurat as in form No. 46.] No. 241. TJiitlertaking on Granting Warrant of Attachment. (Code Civ. Pro., §640.) [Title of cause.] Whereas, the above named A. B., as plaintiff, has com- menced [or is about to commence] an action for the re- covery of money against the above named defendant, C. D., and has made [or is about to make] application for a warrant of attachment, according to the provisions of the Code of Civil Procedure, against the property of said defendant, as a security for the satisfaction of such judgment as the plain- tiff may recover in said action : Now, therefore, we, F. G., of , by occupation a banker, and Gr. H., of , by occupntion a merchant, do hereby jointly and severally undertake, promise and agree, to, and with the said defendant, that if the defend- ant recovers judgment, or if the warrant is vacated, the plaintiff will pay all costs, which may be awarded to the defendant, and all damages which he may sustain by reason ' This form is given for one case, section. The matters for -which ref er- provided for by Code Civ. Pro., sec- ence is made to the complaint maybe tion 037. It may readily be adapted stated in the affidavit if more con- to the other cases arising imder that veuient. 168 Forms Relating to of the attacliment, not exceeding the sum of dollars. ' Dated the day of , 18 — . F. G. G. H. [Acknowledgment and justification by the sureties, and approval as in form No. 118.] No. 242. Warrant of Attachment. (Code Civ. Pro., § 641.) [Title of cause.] The People of the State of New TorTc to the Sheriff of County [or to the sheriff of any county\ greeting : Whereas, an application has been made to me for a war- rant of attachment in the above entitled action against the property of the defendant, C. D., and it having been shown by affidavit to my satisfaction that the said defendant is not a resident of the State \or in like manner state other require- ment of subd. 2 of § 636, Code Civ. Pro.], and that a cause of action exists in favor of the plaintiff and against the de- fendant in the said action, which has been {or is about to be] commenced to recover a sum of money only, to wit : the sum of — — dollars [with interest from the day of , 18 — ] as damages for breach of contract, express or implied, other than a contract to marry \or for wrongful conversion of personal property, or for injury to personal property in consequence of negligence (or of fraud, or of the wrongful act of the defendant)] [and'that the plaintiff is enti- tled to recover in said action from defendant the said sum, ' At least $350. necessary, to confer jurisdiction upon The court has po'wer to regulate and the Marine Court of the city of New control undertakings given in applica- York, to issue an attachment. An in- tions for provisional remedies, and can, strument without a seal is not suffl- in a proper case, require an additional cieut, and an attachmentissued thereon undertaking for a larger sum. (Whit- is void. (Tiflfany v. Lord, 65 N. T., ney v. Deniston, 2 N. Y. Sup. Ct. 310.) [T. & C], 47i.) '^ This clause in brackets is only The giving of a bond in the form to be inserted where the action is for prescribed by the statute in relation to breach of contract. (See subd. 1, § justices' courts (3 R. S., 230, § 29), is 636, Code Civ. Pro.) Attachment of Property. 169 over and above all counterclaims known to him], and that the plaintiff is entitled to said attachment pursuant to the provisions of the Code of Civil Procedure, and plaintiff having given the undertaking required by the provisions of the said Code. Now, therefore, you are hereby required to attach and safely keep so much of the property within your county which the said defendant has, or which he may have at any time before final judgment in the said action, as will satisfy the plaintiff's said demand, to wit: the sum of dol- lars [with interest as aforesaid], with dollars costs and expenses ;'and when this warrant shall be fully executed or discharged, vacated or annulled, you are required to return the same, with your proceedings thereon, to this court.' Witness, Hon. A. M. O., judge of the Court, at , on this r- day of , 18 — . A. M. 0., Judge of Court. A. B., Plaintiff's Attorney. [Office address.'] Article Second. forms relating to execution op the warrant pending the action. (Code Civ. Pro., Ch. 7, Tit. 3, Art. 3.) No. 243. Notice of attachment of real estate. 244. Notice of attaclimeut of personal property, not capable of manual delivery. 245. Sheriff's certificate to he indorsed on copy attachment served on debtor. 246. Certificate of defendant's interest in property, on demand of sheriff, under attachment. 247. Sheriff's certificate of refusal to certify as to property sought to be attached. 248. Affidavit of refusal to give certificate of property, or of making false or insulBcient certificate. 249. Order for examination of person refusing to give certificate, or making false or insufficient certificate. 350. Undertaking on attaphment of goods on vessel to procure delivery. ' Nothing can be required to be the amount of costs to be included in stated in the warrant not prescribed levy. by the Code Civ. Pro, (Mayor v. ''For return, see form No, 33; and Genet, 63 N. Y., 646.) Under this de- see Code Civ. Pro.', section ; 2. cision'it may not be necessary to insui t ' See note 2 to form No. 12i. 170 FOKMS RelatinCi- tO No. 251. Inventory and appraisal of property attached. 252. Order for sale of perishable property and live animals attached by sheriff. 253. Undertaliing where attached property is claimed by third person. 254. Affidavit to obtain appraisal of domestic or foreign vessel held under attachment. 255. Order appointing appraisers to value domestic or foreign vessel. 356. Valuation of foreign or domestic vessel, or interest therein, attached by sheriff. 257. Undertaking to discharge domestic vessel from attachment. 258. Order discharging vessel from attachment. 259. Undertaking by plaintiff, in case of attachment of foreign vessel, to prevent its discharge. 260. Order discliarging foreign vessel from attachment, on failure of plaintiff to give undertaking. 261. Affidavit of defendant on application for the foreign vessel or its proceeds. 262. Undertaking of defendant to obtain possession of vessel, after dis- charge, or vacating of attachment. 263. Order for sale of vessel where undertaking of the plaintiff is not dis- charged, or where he is not indemnified. 264. Order for sale of vessel, where proper undertaking is not executed by claimant. 265. Order directing sale of vessel, on application of joint owner. 266. Order directing sheriff to pay into court the proceeds of property sold, or demands collected under at'.achment. 267. Order directing sheriff to pay over surplus, on application of de- fendant or his assignee. 268. Order granting leave to plaintiff to bring action in name of himself and sheriff, to recover property attached or value thereof. 269. Order granting leave to plaintiff in attachment suit, to join in action brought by sheriff. 270. Order requiring sheriff to return inventory of property attached by him. No. 243. Notice of Attachment of Real Estate. (Code Civ. Pro., § 649.) [Title of cause.] Notice is hereby given, pursuant to statute, that a levy is hereby made under a warrant of attachment issued and de- livered to the sheriff of county, in the above entitled action, dated , 18 — , for the amount of dollars [with interest thereon from the day of , 18 — J, with dollars costs and expenses,' upon the foUow- ' The statute requires tlie amount of the plaintiff's claim to be stated, as stated in the warrant. Alt aohment of Property. 171 ing described real property of the defendant, situated in the county of , to wit [here insert description of property]. ' Dated , 18—. M. N., Plaintiff'' s Attorney. [Office address.'] No. 244. Notice of Attachment of Personal Property, not Capable of Manual Delivery. (Code Civ. Pro., § 649, subd. 3.) [Title of cause.] To A. G. [or to the A. I. Company] : You are hereby notified, pursuant to statute, that by virtue of a warrant of attachment to me issued and deliv- ered in the above entitled action, dated ■ , 18 — , a certified copy of which is herewith delivered to and left with you, I have levied upon, and do hereby levy upon, [*] all the property, money, bank notes, debts owing by and de- mands against you, or any other person, books of account, vouchers, credits and effects belonging to the defendant, C. D., in your possession and control, or held by you. [Or, if the property consists of rights or shares in the stock of an association or corporation, as above, to (*), and from thence as follows : All the rights or shares in the stock of the ^here insert name of association or corporation), and interest and profits thereon, belonging to the defendant, c. jy.Y Dated , 18—. M. N., Sheriff of County. > It was held under section 132 of 233; S. C, 56 N. Y., 52), wherein the Code of Procedure, that a notice decision in Clark v. Goodridge (41 describing the property attached as K. Y., 210), holding that a description "all the real property of the defend- of the particular property was nec- ant, B. , or in which he may have an essary under section 335 of the Code interest, situated in C. county," was of Pro., which was substantially like a nullity. (Jaffray v. Brown, 17 Hun, this section, was commented on and 575.) distinguished. ^ See form No, 122, note 2, and see The provision for attachment of section 649, Code Civ. Pro., subd. 1. shares of stock, etc., applies only to ' This form is drawn in conformity the stock of domestic corporations, to the decision of the Court of Ap- in the case of a non-resident defend- peaJs in O'Brien v. The Mechs. and ant. (Plimton v. Bigelow, 03 N. Y., Traders Fire Ins. Co. (15 Abb. [N. S ], 593; reversing S. C, 29 Hun, 362.) l'J'2 Forms Delating to No. 245. Sheriff's Certificate to be Endorsed on Copy Attachment Served on Debtor, etc. (Code Civ. Pro., § 649, subd. 3.) I, M. N., sheriff of county, do hereby certify that the within is a true copy of the warrant of attachment issued to me in the action within entitled, and of the whole thereof. Dated , 18—. M. N., Sheriff of QmiTVty. No. 246. Certificate of Interest of Defendant in Property, on De- mand of Sheriff, nnder Attachment. (Code Civ. Pro., §650.) [Title of cause.] I, A. B., of \pr I, A. B., president of the A. I. Co.] \or other description of the person making the certificate], having been apj^lied to by the sheriff of county, under a warrant of attachment held by him in the above entitled action, against the property of the defendant, C. D., therein, do hereby certify, pursuant to statute, that said C. D. is the owner of [*] \or is entitled to the inter- est in and to] shares of the capital stock of the said A. I. Co. [and to the sum of dollars for dividends, heretofore declared thereon] [and I further certify that the following incumbrances exist upon said shares (or upon said defendant's interest in said shares), to wit (stating them)]. [Or, as above, to (*), and from thence as follows : The foUovdng described property (debt, or demand) held by me (or owing by me to him)] \or that the following described property (debt, or demand) is held by me for the benefit of said defendant], to wit [here insert amount and description of property, debt or demand.] Dated , 18—.' [A. B. {President, etc.] ' A receiver cannot be required to covered in the proper court. (Lehman give such a certificate. The plai-ntiff v. Williams, 1 Law Bui , 58 [Sp. T., must notify him of the lien, and seek Sup. Ct.]) dress upon the judgment, when re- Attachment of Propeety. 173 No. 247. Sheriff's Certificate of Refusal to Certify as to Property Sought to be Attached. (Code Civ. Pro., § 651.) [Title of cause.] I, M. N., sheriflp of county, do hereby certify that A. B., of , has refused to certify, upon my application to him, as to the property, debts and demands in his hands, belonging to, or owing by, him to the defend- ant, C. D., or held by him for the beneiit of said defendant lor that A. B., president of the A. I. Co., has refused to certify, upon my application to him, as to the rights or shares held by the defendant, C. D., in the capital stock of said company', and as to tlie dividends thereupon de- clared owing to the said C. D., and as to incumbrances thereon] ; I having made such application to him, pursuant to a warrant of attachment issued and delivered to me in the above entitled action, for the purpose of levying upon said property, debts and demands [or upon said rights, shares and dividends]. Dated , 18—. M. N., Sheriff of County. No. 248. Affidavit of Refusal to give Certificate of Property of De- fendant^ or as to false or Insufficient Certificate. ---- (Code Civ. Pro., §651.) [Title of cause.] County, ss. : M. N., of , being duly sworn, says, that he is the sheriff of the county of \or other description of affiant] ; that a warrant of attachment in the above enti- tled action was, on the day of , 18 — , issued and delivered to him \or to the sheriff of county] against the property of the defendant, C. D. ; that applica- tion has been made by deponent \or by said sheriff] to A. B. \or to A. B., president of the A. I. Co.], pursuant to said ■warranty for a certificate of tjie property, debts and de^ 174 FoEMS Eelating to mands belonging to said defendant in the hands of said A. B. , or owing by said A. B. to said defendant, or held by said A. B. for the benefit of said defendant [or of the rights and shares belonging to said defendant in the capital stock of the said A. I. Co., and all dividends declared thereon, owing to said defendant, and all incumbrances thereon] ; that said A. B. has given a certificate to deponent [or to said sheriff], a copy of which is hereto annexed [or state substance of certificate] ; that there is reason to suspect that said certificate is untrue [or that there is reason to sus- pect that said certificate fails fully to set forth the facts re- quired to be shown thereby]. That the grounds of such suspicion are as follows [here set forth grounds, giving afiidavit of informant, or source of information, where matters are stated upon information and belief, or account for its non-production].' [That, etc. [substantially as in form No. 209 from (f).] M. N. [Jurat as in form No. 46.] No. 249. Order for Examination of Person Kefusing to give Certifi- cate, or Making false or InsuiMcient Certificate. (Code Civ. Pro., §651.) [At, etc., as in form No. 80 (where order is made by the court).] [Title of cause.] It having appeared by the certificate of M. N., sheriff of county, that A. B., of , has refused to give a certificate upon the application of said sheriff, pursuant to a warrant of attachment issued and delivered to him in the above entitled action, as to the property, debts and de- mands in the hands of said A, B., belonging to the defend- ant, C. D., or owing to said A. B. by said C. D., or held by said A. B. for the benefit of said defendant. lOr that A. B., president of the A. I. Co., has refused to ' For the rule in regard to statements made on information and belief, see orm No. 178, p. 123, note. 3. Attachment of Property. 175 certify, upon the application of said sheriff to him, pursu- ant to a warrant of attachment issued and delivered to Lim in the above entitled action, as to the rights or shares held by the defendant, C. D., in the capital stock of said com- pany, and as to the dividends thereupon declared, owing to the said C. D., and as to incumbrances thereon. J \Pr it having been made to appear by the affidavit of M. N., to the satisfaction of the court \or to my satisfac- tion], that there is reason to suspect that a certificate made and given by A. B. of [or by A. B., presi- dent of the A. I. Co. J, upon an application made by said sheriff, pursuant to a warrant of attachment issued and delivered to him in the above entitled action, as to the property, debts and demands in the hands of said A. B. belonging to the defendant, C. D., or owing by said A. B. to said C. D., or held by said A. B. for the benefit of said defendant [or as to the rights or shares held by the defend- ant, C. D., in the capital stock of said company, and as to the dividends thereupon declared owing to the said C. D., and as to incumbrances thereon, for the purpose of levying ^thereupon] is untrue \or fails fully to set forth the facts re- required to be shown thereby.] It is hereby ordered and directed \or I do hereby order and direct] that the said A. B. attend at [here insert lime and place of attendance], before me \or before Hon. A. O., justice of this court; or before T. E,., who is hereby ap- pointed referee for the purpose of taking such examina- tion], and submit to an examination, under oath, concerning the said property, debts and demands [or concerning the said rights, shares and dividends] [and that said referee make his report of such examination to this court (or to me), with all convenient speed].' Dated , 18 — [when made by judge]. A. O., County Judge of County [or Justice (or Judge) of the Court] (when made by judge). ' The order ■will not be vacated on tachlng ci-cditor is not bound to take aa affidavit stating that the funds in the statement of such party as to the the hands of party refusing, are held character in which the money is liold in trust, and cannot be applied in pay- by him, but is entitled to the examina- Cjejit pf the plaintiff's debf. The at- tion provided for bj^ the Code of Ciy. 176 Forms Relating to No. 250. Undertaking upon Attachment of Goods on Yessel to Pro- cure Delivery. » (Code Civ. Pro., § 652.) [Title of cause.] Whereas, a warrant of attachment in the above action has been issued and delivered to the sheriff of • county, and said sheriff desires to make a levy, pursuant to said warrant, upon goods belonging to the defendant, 0. D., to the value of dollars, shipped upon the [name of vessel] for transportation to the port of '■ — , in the [State] of , without reshipment or trans-ship- ment in this State, and to obtain the delivery to him of said goods at the port of , in this State, under said levy. Now, therefore, we, E. F. , of , merchant, and G. H., of , farmer, do hereby, jointly and severally, undertake, promise and agree, to and with I. J., the master {or owner] of said vessel, that the above named plaintiff, A. B., will pay to said I J. all expenses, damages and charges which may be incurred by him, or to which he may be sub- jected for unlading the said goods from the said vessel,' and for all necessary detention of the said vessel for that purpose, not exceeding the sum of dollars. Dated , 18—. E. F. G. H. [Acknowledgment and j ustification of sureties as in form No. 118.'] I certify that I approve of the above undertaking, with respect to its form, the sum specified therein and the suffi- ciency of the sureties therein named. Pro. (Baxter V. Missouri, etc., R. R. such examination, and consequence of Co., 4 Hun, C30. ) refusal to produce, sce.Rutter v. Boyd See Bucldngbam v. White (25 Hun, (3 Abb. N. C, 6). 441), Hall V. Brooks (89 N. Y., 33; ' See for general provisions as to 2 Civ. Pro. Rep., 198; 14 Week. Dig., bonds and undertakings, Code Civ. 312; reversing S C, 25 Hun, 577), as Pro., sections 810-816. to elf ect of examination and power of As to liability of sheriff for a seizure court to order delivery of property without the undertaking, see Campbell of defendant discovered thereupon. v. Conner, 70 N. T., 424; aff'g S. C, As to production of papers upon 41 N. Y. Super. Ct., 459. of Attachment of Property. 177 Dated , 18—, at , in the city and county A. O., Judge of the Court \or County Judge of County. \ No. 251. InTentory and Appraisal ofTroperty Attached. (Code Civ. Pro., § 634.) [Title of cause.] The following is a just and true inventory ' of the prop- erty, books, vouchers and other papers of the defendant, C. D., levied upon and taken into the custody of M. N., sheriff of the county of , under a warrant of attach- ment issued in the above action by the Hon. A. O., justice \or judge] of the Court {or county judge of county], made pursuant to law by said sheriff, with the assistance of I. J. and K. L., two disinterested freeholders, to wit : [Insert itemized description of property, books, etc., and amount of valuation of each item of the property, real and personal.] The following property, mentioned in said inventory, is perishable, to wit : [enumerate perishable property]. Dated 1&— . M. K, Sheriff of County. I. J., K. L. [ Appraisers. ^o. 252. Order for Sale of Perishable Property and of live Animals Attached by Sheriff. (Code Civ. Pro., § 656.) [At, etc. (as in form No. 80), when made by court.] [Title of cause.] It having appeared by the inventory, dated , 18 — , made and filed by M. N., the sheriff of ■ county, ' The inventory is to be filed within turned to the oflBcer issuing the warrant five days after the levy, in the oflBce of as under the former statute, (Code the clerk of the county where the prop- Civ. Pro , § 654. ) ertyis attached, instead of being re- 33 178 Forms RELATiwa to in the above entitled action of property of tlie defendant, C. D., levied upon by said sheriff and in his custody under a warrant of attachment issued in the above action, that the following property therein mentioned is perishable [or con- sists of live animals] [and it appearing that due notice of this application has been given to the parties to this action, or their attorneys '] : It is hereby ordered and directed [or I do hereby order and direct], on motion of E. F., attorney for plaintiff [after hearing, etc., and on reading and filing (specifying opposing papers), or no one appearing to oppose], that the said per- ishable property" [or live animals], to wit : [describing same] be sold by said sheriff at public auction. And it is further ordered and directed [or I do hereby further order and direct] that such sale take place on the day of , 18—, at the [town] of , in the county of • , and that notice thereof be given by post- ing a written or printed notice of the same for at least days before such sale in three public places in said town. Dated , 18 — [when made by judge.] A. O., Judge {or Justice] of Court ^or County Judge of County'] {wJien made by judge). No. 253. Undertaking where Attached Property is Claimed by Third Person. (Code Civ. Pro., §658.) [Title of cause.] Whereas, M. N., sheriff of county, has levied ' Notice to the parties of the applica- of the case, in the opinion of the court tion is necessary where the property or judge, requires. (Id.) consists, in whole or in part, of live ' As to what property is deemed per- animals, the notice being such as the ishable, see Fisk v. Spring (25 Hun, court or judge prescribes. (Code Civ. 367; 63 How. Pr, 510). It should be Pro., § 656.) inherently liable to deterioration and The order otherwise may be made decay; not merely subject todeprecia- with or without notice, as the urgency tion in va^ue by reason of changes of style and fashion. (Id ) Attachment of Property. 179 upon and taken into his custody, under a warrant of attach- ment issued and delivered to him in the above action, cer- tain goods and effects supposed to be the property of the defendant, C. D., described in the inventory thereof made and hied pursuant to law by said sheriff ; and. Whereas, said goods and effects have been claimed by \pr in behalf of] E. F. as his property ; and, Whereas, a Jury, duly empanelled by said sheriff to try the validity of said claim, has found the property of said goods and effects to be in said claimant : Now, therefore,, we, G. H., of — , merchant, and K. L., of , merchant, do hereby, jointly and sever- ally, undertake, promise and agree, to and with the said M. IS"., sheriff as aforesaid, that we will indemnify and save harmless the said M. N. for the detention of said goods and effects, not exceeding the sum of dollars. Dated , 18—. G. H. K. L. [Acknowledgment, justification and approval as in form No. 118.'] No. 254. Affidavit to Obtain Appraisal of Domestic or Foreign Yes- sel, held under Attachment. (Code Civ. Pro., g§ 660, 666) [Title of cause.] County , ss. : A. B., of , being duly sworn, says, that he is the owner [or that he is the agent of E. F., who resides at , in the of (whom he believes to be)' the owner of the (name of vessel)] [or of the interest in the (naming vessel)], a [foreign] vessel, seized in the above entitled action by M. N., the sheriff of county, under a warrant of attachment issued therein and deliv- ' See general provisions as to bonds * Omit tlie words " vrliom he believes and undertakings, Code Civ. Pro., sec- to be," in case of domestic vessel, tions 810-816. 180 Forms Eelating to ered to said sheriff, against the property of the defendant, CD. That he desires to obtain an appraisal of said vessel [or of said interest in said vessel], according to law. A. B. [Jurat as in form No. 46. J No. 255. Order Appointing Appraisers to make Valuation of Domes- tic or Foreign Yessel. (Code Civ. Pro., §§ 660, 666.) [At, etc. (where made by court), as in form No. 80. J [Title of cause.] It having appeared by the affidavit of A. B., that the [name of vessel], a vessel belonging to the port of New York [or that the (one-fifth) share or interest, supposed to belong to the defendant, C. D., in the (name of vessel), a vessel belonging to the port of New York], has been attached by M. N., sheriff of county, under a warrant of attach- ment, issued and delivered to him in the above action, as the property of said defendant, and that I. J. claims title to said vessel [or to the interest in said vessel] so attached, on motion of Gr. H. , attorney for said I. J. : It is hereby ordered [or I do hereby order] [due notice of this application having been given to the plaintiff''], after hearing, etc., that 0. H., of , E.. P., of , and S. R., of , three indifferent persons, be and they are hereby appointed appraisers, to make a valuation of the said [or of said share or interest in said] [name of vessel], pursuant to law. Dated , 18 — [when made by judge]. A. O. , Judge [or Justice] of Court [or County Judge of County] {when made by judge). ' Notice of the application is required being such as the court or judge deems in cases of foreign vessel, but not in reasonable. (See Code of Civ. Pro that of domestic, the notice required § 667.) Attachment of PROPiiUTY. 18i No. 256. Valuation of Domestic or Toreign Yessel, or Interest Tlierein Attaclied by Slieriff. (Code Civ. Pro., §§ 661, 666.) [Title of cause.] We, O. H., of , R. P., of , and S. R., of -, disinterested persons appointed by the order of the Court [or of Hon. A. O., Judge of the court], dated , 18—, to make a valuation of the [name of vessel], a vessel belonging to the port of New- York [or of the (one-fifth) share or interest in the (name of vessel), belonging to the port of New York], attached as the property of the defendant C. D., by M. N., sheriff of county, under warrant of attachment issued and delivered to him in the above action, do hereby certify and report : That we have made such valuation as directed by said order, and that the value of said vessel [or of said share or interest in said vessel] is the sum of dollars. Dated , 18—. O. H. I R. P. > Appraisers. S. R. ) County, ss. ; O. H., R. P. and S. R., being severally duly sworn, each for himself says : That he is one of the appraisers mentioned in the foregoing certificate of appraisal, and whose name is thereunto subscribed, and that the valua- tion of the said [name of vessel], therein mentioned [or of the one-fifth share or interest in the said (name of vessel), therein mentioned], is, in all respects, just and fair, and that the value of said vessel [or of said share or interest in said vessel], is truly stated therein, according to de- ponent's belief. O. H. R. P. S. R. [Jurat as in form No. 46. J 182 Forms Relating to No. 257. Undertaking to Discharge Domestic Tessel from Attach- ment. (Code Civ. Pro., § 662.) [Title of cause.] Whereas, the [name of vessel] [or the (one-fifth) share or interest in the (name of vessel)], a vessel belonging to the i)ort of New York, has been seized by M. N., sheriff of county, under a warrant of attachment issued and delivered to him in the above entitled action against the property of the df^fendant, C. D.; and. Whereas, the undersigned, P. P., has claimed title to said [interest in said] vessel, and appraisers having been there- upon duly appointed have valued said vessel at the sum of dollars, and have duly returned said valuation to the court [or to Hon. A. O., judge of the Court], on the day of , 18 — . Now, therefore, we, said F. P., of , merchant, and W. P., of , farmer (and I. M., of , farmer),' do hereby, jointly and severally, undertake prom- ise and agree, to and with the said M. N., as such sheriff, that [*] in an action to be brought upon this undertaking the said F. P., claimant as aforesaid, vpill establish that he was the owner of the said vessel [or of the (one-fifth) share or interest in said vessel], attached as aforesaid, at the time of the said levy thereupon ; and that, in case of his failure to do so, he will pay the said amount of the valua- tion of said vessel [or of said share or interest in said ves- sel], with interest from the date hereof, to the said sheriff ; or, if the said warrant is vacated or annulled, to the said defendant, C. D., or to his personal representatives. Dated , 18—. F. P. W. P. (I. M.) [Acknowledgment, justification and approval as in form No. 118.] ' Probably under the provisions of id , requires the undertaking to be exe- section 811. Code Civ. Pro. , one surety cuted by the claimant or his agent, one would be suflBcient, but as section 663, or the other must join in it. Attachment of Property. 183 No. 258. Order Discharging Vessel from Attachment. (Code Civ. Pro., § 663.) [At, etc., as in form No. 80 (when m£^e by court.)] [Title of cause.] A warrant of attachment having been granted by against the property of the defendant, C. D., in the above action, and the [name of vessel] [or the (one-fifth) share or interest in the (name of vessel)], having been seized under said warrant by M. N., sheriff of county, and F. P., having claimed title thereto, and having given an undertaking pursuant to law : It is hereby ordered [or I do hereby order] that the said vessel [or share of said vessel] be discharged from said attachment. Dated , 18 — [when made by judge.] A. O., Judge [or Justice] of the Court {when made hy judge). No. 259. Undertaking to he given by Plaintiff in case of Attachment of Foreign Yessel to Prevent its Discharge. (CodeCiv. Pro., §668.) [Title of cause.] Whereas, the [name of vessel] [or the (state interest) share or interest in the (name of vessel)], a vessel belonging to the port of L , in the of , has been seized by M. N., sheriff of county, under a warrant of attachment, issued and delivered to him in the above enti- tled action against the property of the defendant, CD.; and, Whereas, F. P., of , has claimed title to said [interest in said] vessel, and appraisers have been there- upon duly appointed who have valued said [interest in said] vessel at the sum of dollars, and have duly returned said valuation to the Court [or to Hon. A. 0., judge of the Court], on the day of , 18—. 184 FoRM.s Relating to Now, therefore, we 0. P., of [merchant], and I. M., of [farmer], do hereby, jointly and sever- ally, undertake, promise and agree, to and with the said F. P., that we will pay such damages as may be recov- ered for seizing the said vessel [or for seizing the said share or interest in said vessel], in an action brought against the said sheriff or A. B., the plaintiff, in the attachment, within three months from the approval of this undertaking, if it appears therein that the vessel [or the said share or interest in said vessel] belonged, at the time of attaching it, to the said P. P. Dated , 18—. 0. P. 1. M. [Acknowledgment, justification and approval as in form No. 118.] No. 260. Order Discharging Foreign Tessel from Attachment, on Failure of Plaintiff to give Undertaking. (Code Civ. Pro., § C,:9.) [At, etc., as in form No. 80 (when made by court). j [Title of cause.] M. N., sheriff of county, having levied upon the [name of vessel] [or upon the (state interest) in the (name of vessel)], a vessel belonging to the port of L , in the of , under a warrant of attachment, issued and delivered to said sheriff in the above entitled action against the property of the defendant, C. D.; and F. P., of , having claimed title to said [interest in said] vessel, and appraisers having been thereupon duly appointed, who have valued said [interest in said] vessel at the sum of dollars, and have duly returned said valuation to the Court [or to Hon A. O., judge of the Court] on the day of , 18 — ; and the said plaintiff having failed to give an undertaking, as required by law, within three days after said valuation has been returned ; AtTACHMEJ^T of PliOPEETY. 185 Now, it is hereby ordered [or I do hereby order], that the said vessel [or said share or interest in said vessel], be and the same is hereby discharged from the said attachuient. Dated , 18 — [when made by judge.] A. O., Judge [or Justice] of the Court {when made by Judge). No. 261. Affidavit of Defendant on Application for the Foreign Vessel or its Proceeds. (Code Civ. Pro., § 670.) [Title of cause.] County, ss.: C. D., of , being duly sworn, says, that he is the defendant [or agent for the defendant] in the above entitled action ; that a warrant of attachment against the property of the defendant was issued therein by Hon. A. 0., Judge of the Court, on the day of , 18 — , and delivered to M. N., sheriff of county ; that, under said warrant, said sheriflE levied upon the [name of vessel], [or upon the (state interest) in the (name of vessel)] ; that F. P. claimed title to said vessel [or to said interest in said vessel], and appraisers were thereupon duly appointed, who valued said [interest in said] vessel at the sum of dollars, and have duly returned said valuation to the Court [or to Hon. A. O., judge of the Court], on the day of , 18 — ; that there- upon the above named plaintiff, A. B., gave an undertak- ing, as required by law, to prevent the discharge of said vessel from said attachment ; that said warrant of attach- ment has been vacated and annulled [or that said attach- ment has been discharged] as to the [said interest in] said vessel by the order of the Court [or by the order of Hon. A. 0., judge of the Court], dated , 18 — , of which a. copy is hereto annexed, and that said undertaking has been discharged by said order [or, other- wise, stating manner of discharge] [*} ; that said vessel [or said interest in said vessel] is the property of the defendant. [If the vessel or interest has been sold, as above to (*), 34 186 FoKMS Relating to and from thence as follows : That said vessel {or said inter- est in said vessel) has been sold by the said sheriff pursuant to the order of the Court {or of Hon. A. O., judge of the Court), made , 18 — , and that the amount of the proceeds thereof, to wit, the sum of dollars, are in the hands of said sheriff, and that the said defendant is the owner thereof.] And deponent asks tha order of the court, that the said vessel \or the said proceeds of said vessel] be delivered [or paid] to him. C. D. [Jurat as in form No. 46.] No. 262. Undertaking by Defendant to OMain Possession of Vessel, aftei" Discharge or Vacating of Attachment. (Code eiv. Pro , §070.) [Title of cause.] Whereas, the [name of vessel] [or the interest in the (name of vessel)], a vessel belonging to the port of L , in the of , has been seized by M. N. , sheriff of county, under a warrant of attachment issued and delivered to him against the property of the defendant, C. D., in the above entitled action ; and. Whereas, F. P. claimed title to said vessel [or to said interest in said vessel], and appraisers were thereupon duly appointed, who valued said vessel [or said interest] at the sum of dollars, and have duly returned said valua- tion to the Court [or to Hon. A. 0., judge of the Court] on the day of , 18 — , and thereupon the above named plaintiff, A. B., gave an under- taking, as required by law, to prevent the discharge of said vessel from said attachment ; and, Whereas, the said attachment has been vacated and annulled [or has been discharged] as to the said vessel [or as to the said interest in said vessel] : Now, therefore, we, E. P., of [merchant], [and I. J., of (banker)], do hereby, jointly and sever- ally, undertake, promise and agree, to and with the said A? Attachment of Property. 187 B., that we will indemnify, and save harmless, the said A. B., against all charges and expenses in consequence of this undertaking.' E. F. I.J. [Acknowledgment, justification and approval as in form No. 118. J No. 263. Order for Sale of Vessel where Undertaking of Plaintiff is not Discharged, or he is not Indemnified. (Code Civ. Pro., §071.) [At, etc., as in form No. 80 (when order is made oy court.)] [Title of cause.] The [name of vessel] [or the interest in the (name of vessel)], a vessel belonging to the port of L . in the of , having been attached by M. N., sheriff of county, under a warrant of attachment issued and delivered to him in the above action against the prop- erty of tjie defendant, C. D. [f], and title to said vessel [or title to said interest in said vessel] having been claimed by E. F., of , and a valuation having been made, pur- suant to law, by appraisers, duly appointed, of said vessel [or of said interest in said vessel] at the sum of dollars [*], and the plaintiffs having filed the undertaking required by law, and said undertaking not having been dis chai-ged, and said plaintiff not having been indemnified, as prescribed by article two of title three of chapter seven of the Code of Civil Procedure : It is hereby ordered, that the said vessel [or the said • interest in said vessel] be sold by the said sheriff, and that the proceeds of the sale be paid by said sheriff to the persons executing said undertaking for their indemnity. Date [of judge's order]. A. 0., Judge [or Justice] of the Court {when made by judge). ' Sco for general provisions as to Pro., §§ 810-810. Under these jDro- bonds and undertakings, Code Civ- virions o^e suretjr would be sufficient- 188 Forms Relating to No. 264. Order for Sale of Tessel, where proper Undertaking is not Executed by Claimant. (Code Civ. Pro., §673.) As in form No. 263 to [*] and from thence as follows : And the said claimant not having executed the proper un- dertaking as required by law, and in the opinion of the court [or in my opinion] a sale of said vessel [or of said interest] being necessary ; now, on application of P. R., attorney for the plaintiff : It is hereby ordered, that the said vessel [or said interest in said vessel] be sold by the said sheriff, and that the proceeds of said sale be kept by said sheriff, to answer any judgment that may be obtained against the said defend- ant, C. D., in the above entitled action. Date [of judge's order]. A. O. , Judge [or Justice] of the Court {when made iy judge). [Or, in a case where no claim has been made by owner, as above, omitting the matter relating to the claimant, and the valuation of the vessel.] No. 265. Order Directing Sale of Vessel upon Application of Joint Owner. (Code Civ. Pro., §673.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] It appearing by the affidavit of I. F., dated 18 — , that the [name of vessel] [or the interest in the (name of vessel)], a vessel belonging to the port of New York, or L , having been attached by the sheriff of county, under a warrant of attachment issued and delivered to him in the above action, and no claim thereto having been made by, or in behalf of, an owner thereof within thirty days after such attachment was levied : Now, on motion of E. F., owning an interest in said vessel Attachment ojf Peopebty. 189 jointly witli A. B. and C. D., and due notice of this appli- cation having been given to said A. B. and C. D., and to the attorneys for the parties to this action ; and on reading and filing [specify opposing papers], and after hearing I. J., of counsel for said E. F., in favor of said motion, and [nanaing counsel], in opposition thereto : It is hereby ordered, that the said vessel [with its tackle and furniture] be sold by the said sheriff, and that he keep the proceeds of such sale to answer any judgment that may be obtained against the defendant, C. D., in said action. Date [of judge's order]. A. O., Judge [or Justice] of Court {when made hy judge). No. 266. Order Directing Sheriif to pay into Court the Proceeds of Property Sold, or Demands Collected under Attach- ment. (Code Civ. Pro., §675.) [At, etc., as in form No. 80. J [Title of cause.] It is hereby ordered, upon application of E. F., counsel for the plaintiff \or defendant] [here insert recitals as to appearances, etc., as in form of order. No. 174], that the proceeds of property sold [or demands collected] by M. N., the sheriff of county, under attachment .issued in the above action against the property of the de- fendant, be paid by said sheriff into court [or into the (name of bank or trust company) to be drawn out only upon the order of the court]. No. 267. Order Directing Sheriff to pay over Surplus, on Applica- tion of Defendant or his Assignee. (Code Civ. Pro , § 676.) [At, etc. (when made by court), as in form No. 80.] [Title of cause.] It having appeared by [name papers read], that the pro- IdO Poems B,ELA.TiiirQ To ceeds of property sold [or of demands collected] by M. N"., sheriff of county, under a warrant of attachment issued in the above entitled action against the property of the defendant, C. D., exceed the amount of the plaintiff's demands, with the costs and expenses [and of all other warrants of attachment {or executions)], in the hands of said sheriff, chargeable upon the same : Now, on motion of E. F., counsel for said defendant [or for I. J., the assignee of {or purchaser from) said defend- ant], due notice of this motion having been given to the plaintiff [and to the plaintiffs in the other said warrants {or executions)], and on reading [name opposing papers], and after hearing F. Q-., counsel for the plaintiff [or name other counsel appearing] : It is hereby ordered, that said sheriff pay over the amount of said surplus, to wit : the sum of dollars, to the said E. F., and that he release from the said attachment the remaining real and personal property attached by him in this action. Date [of judge's order]. A. O., Judge [or Justice] of the Court {when made by judge). ISTo. 268. Order Granting leave to Plaintiff to bring Action in the Name of Himself and the Sheriif, to Recover Property Attached or the Talue Thereof. (Code Civ. Pro., § 677.) [At, etc. (when made by court), as in form No. 80.] [Title of cause.] Upon the application of I. J., counsel for the plaintiff, due notice of such application having been given to M. N., sheriff of county, to whom a warrant of attach- ment was issued in the above action against the property of the defendant, C. D., and to E. F., the plaintiff, in an action against said C. D. ; and on reading [name papers read] and after hearing [here name counsel appearing] [or no one appearing to oppose] [*] : Attachment of Pkopertt. 191 It is hereby ordered [or I do hereby order], that said plaintiff have leave to bring an action in the name of him- self and of said sheriff, to recover the folloviring jjroperty or demand, levied upon under said warrant, to wit : [describ- ing it], or the value thereof, from J. K., having the posses- sion of said property [or against whom such demand exists]. [Here state the terms, conditions and regulations, upon which such order is granted.'] Dated , 18 — [where made by Judge]. A. O., Judge \or Justice] of the Court {where made by judge). No. 269. Order Granting leave to Plaintiff in Attachment suit, to join in Action brought by Sheriff. (Code Civ. Pro., §679 ) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] Upon the application of I. J., counsel for A. B., the jjlaintiflf, in an action against C. D., in which a warrant of attachment has been issued against the property of said defendant to M. N., sheriff of county, due notice of this application having been given to said sheriff and to [name other parties, if any, to whom notice has been given], and on reading [name papers read] and after hearing [here name coansel appearing] [or no one appearing to oppose] : It is hereby ordered [or 1 do hereby order], that leave is hereby granted, to said A. B., to be joined with the said sheriff in the above entitled action. ' Sections 677, 678, 679 and 680 of to provide a way in which all parties the Code of Civil Procedure, are sub- might be protected on the application stitutes for section 338 of the Code of to the court. (See Luptou v. Smith Procedure. 3 Hun, 1 ; S. C, 48 How., 26 i ; 5 N. Y. Doubts and conflicts had arisen as Sup. Ct. [T. & C], 374, and cases to the party to bring the action under there cited. See, also, §§ 708, 704, that section, and these sections were Code Civ. Pro.) adopted to settle these questions and 192 Forms Relating to [Here insert directions, requiring plaintiff to provide for the expenses of the action, in case he is required to do so.J Date [of judge's order]. A. O., Judge [or Justi'ce] of the Court {where made by judge). No. 270. Order Requiring Sheriff to Return an Inventory of Prop- erty Attached by him. (Code Civ. Pro., § 681.) [At, etc. (when made by court), as in form No. 80.] [Title of cause.] Upon the application of I. J., counsel for A B., plaintiff [or for C. D., defendant], in the above entitled action, and due proof having been made of the neglect of M. N. , sheriff of county, to return an inventory of the property of said defendant, attached by him under warrant of attach- ment issued to him in said action : It is hereby ordered [or I do hereby order], that said sheriff be and he is hereby required to return such inven- tory, within [ten] days after the service upon him of a certi- fied copy of this order. Date [of judge's order]. A. O., Judge [or Justice] of the Court {where made by iudge). Article Third. forms relating to vacating or modifying warrant of attachment, and discharging the attachment. (Code Civ. Pro., Ch. 7, Tit. 3, Art. 3 ) No. 271. Notice of motion to vacate or modify attachment, or to increase security. 272. Undertaking by defendant, on application to discharge attachment. 273. Undertaking where application is made by some, but not all, of several defendants. 374. Notice of motion to discharge attachment upon giving security. 275. Notice of exception to sufficiency of sureties in undertaking, given on discharge of attachment. Attaciimekt of Property. 193 No. 276. Affidavit by partner for discharge of his interest in partnership property from attachment. 277. Undertaking on application by partner for discharge of attachment from partnersliip property. 278. Order of reference to take proof of value of attached property. 279. Notice of motioa for discharge of attachment. No. 271. Notice of Motion to Yacate or Modify Attacliment, or to Increase Security. (Code Civ. Pro., § 682.) As in form No. 186 to [f], and from thence as follows : For an order vacating [or modifying] the warrant of attach- ment, issued in this action \or to increase the security given by the plaintiff upon the granting of the warrant of attach- ment issued in this action'] [if for irregularity, add : upon the ground that (specifying irregularity)], and for such other and further relief as may be just, with the costs of this motion. Dated , 18—.' P. R., Attorney for Defendant, C. D. {or for E, F.) [Office address.'] To T. B., Plaintiffs Attorney. ' The application may be for one or limited lo the vacating of the attach- more of these forms of relief together ment as to that part, see Trow's Print- or in the alternative. (Code Civ. Pro., ing, etc,, Co. v. Hart (85 N. Y., SOO; §682.) affirming S. C, 9 Daly, 413.) 2 As to meaning of the words ' ' ac- As to what papers may be used upon tual application of the attached prop- the motion, see Steuben Co. Bank v. erty," etc., as used in section C82, Code Albergcr (75 N. Y., 179; reversing S. Civ Pro., and that they do not apply C, 14 Hun, 379), Trow Printing, etc., toamerelevy upon the propoty under Co. v. Hart Tsiipra), Godfrey v. God- execution, see Woodmansee v. Rogers frey (75 N. Y., 434), Ives v. Holden (82 N. Y., 88; S. C, 09 How. Pr., (14 Hun, 402), Pomeroy v. Ricketts(27 403; affirming S. C, !.0 Him, 285). Hun, 242), Hirsch v. Hutchison (3 As to who are authorized to make Civ. Pro. R. [Browne], 100; S. C , 04 the application under this section, and How. Pr., 3G6),Reilly v. Sisson(31 Hun, that a voluntary transferee from the 572), Smadbcckv. Sisson(31 Hun,582). attachment debtor may make it, al- Defects in the affidavit upon which though, by the transfer he has ac- the warrant was granted, must be quired an interest in a part only of specified in the notice, in order to be the attached property, ihe relief being relied upon on the motion. (Stevens m 194 Forms Relating to No. 272. Undertaking by Defendant, on Application to Discharge Attachment. (Code Civ. Pro., § 688.) Whereas, the above named defendant, C. D., is about to apply to the Court [or to Hon. A. O., judge of the Court] for the discharge of a warrant of attach- ment, issued in the above entitled action, against the prop- erty of [*] said defendant, to M. N., sheriff of county, and levied by said sheriff upon property of said defendant : Now, therefore, we, E. P., of [merchant], and G. H., of [banker], do hereby, jointly and sever- ally, undertake, promise and agree, to and with the said plaintiff, A. B., that the said defendant will, on demand, pay to the said plaintiff the amount of any judgment which may be recovered in the above entitled action against the said defendant, not exceeding the sum of dollars,' with interest.' Dated , 18—. E. F. G. H. [Acknowledgment and justification of sureties, and ap- proval as in form No. 118.] V. Middleton, 20 Hun, 470; see, also, must be taken by answer. (Plimton Allen V. Meyer, 73 N. Y., 1.) v. Bigelow, 13 Abb. N. C, 203; S. C, To sustain an application under sec 29 Hun, 362.) tion 682, Code Civ. Pro. , by one claim- ' See note 2 to form No. 122. Ingalien, as an attacliment creditor, ' The amount is to be equal to amount to vacate a prior attacbment, it is of plaintiff's demand, as stated in his necessary for him to establish, by legal affidavit, or, at the option of thedefend- evidence, a subsequent valid levy under ant, to the appraised value of the prop- his attachment upon the same property erty attached, according to the in- covered by the prior attachment. (Tim ventory; or, if the application is to V Smith, 98 N. Y,, 87; distinguishing, discharge only a part of the property Steuben Co. Bank V. Alberger, sii^jra/ attached, to the appraised value .f and Ruppert v. Haug, 87 N. Y., 141.) that portion. (Code Civ. Pro., § 688.) The opinion of his attorney, that ^ The undertaking must be forth ■ the subsequent lien has been secured, with filed with the clerk. A copy although put in the form of an affida- thereof, with a notice of the filing, vit, is not sufficient. (Id.) must be forthwith served upon the The defense of statute of limitations plaintiff's attorney, etc. (Code Civ cannot be raised upon the motion, but Pro., § 690 ) Attachment of Peopeett. 195 No. 273. Undertaking where Application is made by Some, but not all, of Several Defendants. (Code Civ. Pro., § 089.) As in form No. 272 to [*], and from thence as follows : The defendants to M. N., sheriff of county, and levied by said sheriff upon property of said defendants : Now, therefore, we, E. F., of [farmer], and G. H., of [merchant], do hereby, jointly and severally, undertake, promise and agree, to and with the said A. B., plaintiff, that any judgment recovered against any of the defendants in the above entitled action, will be paid, on de- mand, not exceeding the sum of dollars,' with interest [or that any judgment which may be recovered in the above entitled action against the said C. D., either alone or jointly with any other defendant, will be paid on demand, not exceeding the sum of dollars, with interest]." Dated , 18—. E. F. G. H. No. 274. Notice of Motion to Discharge Attachment upon Giving Security. (Code Civ. Pro., § 689.) As in form No. 186 to [f], and from thence as follows : For an order discharging the attachment in this action upon giving security as required by law.' Dated , 18—. E. F., Attorney for Defendant, C. D. [Office address."] To J. K., Attorney for Plaintiff. ' .See note 1 to last form. No. 273. See note 2 to last form No. 273. » This clause is to be inserted where ' A two days' notice is required on proof is made by the applicant, as re- applications under section 089, Code quired by § 689, that the property be- Civ. Pro. longs to him separately. ^ See note 3 to form No. 123. 196 Forms Helatino to No. 275. Notice of Exception to Sufficiency of Sureties in Under- taking Oiven on Discliarge of Attachment. (Code Civ. Pro., §C90') [Title of cause.] SiE— Take notice, that the i)laintifi excepts to thesiiffi' ciency of the sureties in the undertaking given by the defendant on the discharge of the attachment in the above entitled action. Dated , 18—. J. K., Attorney for Plaintiff, [Office address.'] To E. F., Attorney for Defendant, C. D. No. 276. Aflfidayit by Partner for Discharge of Interest in Partner- ship Property from Attachment. (Code Civ. Pro., § C93.) [Title of cause.] A. B., of , being duly sworn, says, that he, with C. D., compose the firm of A. B. & Co., engaged in the busi- ness of , at ; that the interest of said C. D. in the goods and chattels of said partnership, has been seized in the above entitled action by M. N., sheriff of county, under a warrant of attachment issued to him against the property of the said C. D. That the deponent desires to obtain an order discharging the said attachment from the said interest of said C. D., in said goods and chattels, upon giving the undertaking in such case required by law.' [Jurat as in form No. 46.] A. B. ' For forms of proceedings in juslifi- sliould be substantially as in form No. cation of sureties, see forms under pro- 279. ceedings for arrest (Nos. 105 and 190). It was held in Smith v. Orser (43 See, also, c'ode Civ. Pro., sections N. Y., 132), tliat it was the duty of an 578, etc. officer, in executing a warrant of at- ' See note 3 to form No. 123. tachment upon the interest of one mem- ' The form of notice of application, ber of a partnership, to lake into his Attachment of Pkopeety. 197 No. 277. Undertaking, on Application by Partner, to Discharge Attachment from Partnership Property. (CodoCiv. Pro., § C94.) [Title of cause.] Whereas, a warrant of attachment was heretofore issued in the above entitled action, to M. N., sheriff of the county of , and said attachment has been levied upon the in- terest of the defendant, C. D., in the property of the copart- nership composed of said C. D. and A. B. , and an application has been made [or is about to be made] to the ■. — court, by said A. B., for a discharge of said attachment from said partnership property, upon giving security as required by law : Now, therefore, we, I. J., of , by occupation a merchant, and K. L. , of , by occupation a merchant, do hereby, jointly and severally, undertake promise and agree, to and with said M. N., as such sheriff, that we will pay to him, on demand, the amount of any judgment which may be recovered against the said C. D. in the above entitled action, or which may be recovered against said C D. in any other action wherein the said A. B. is not a defendant, and wherein a warrant of attachment, or an exe- cution, may come to the said sheriff's hand, at any time before the warrant of attachment so levied as aforesaid is vacated or annulled, not exceeding the sum of dol- lars, ' Dated , 18—. I. J. K. L. [Acknowledgment and justification by sureties, and ap- proval as in form No. 118.] possession the ' partnership property. 84), Atkins v. Saxton(^7 N. Y., 195), This section, and the two following Doane v. Lindsay (43 N. Y. Super, ones, were framed to prevent any Ct., 399), as to effect of levy upon hardship to the partner arising out of firm property under attachment, etc. thisrule. (See note to Throop's Code, ' Not less than the value of the iu- §693, ed. of 1863.) terest of the defendant in the goods See, also, Staats v. Bristow (73 N. or chattels, seized by virtue of the Y , 264), Donnelly. Williams (21 Hun, attachment, as fixed by the court or ?16), Buckingham v, Swezejr (35 Hun, judge. If lljis vftJue, in the opinion 198 Forms Eelatiis^q to. No. 278. Order of Eeference to take Proof as to value of Property Attached. (Code Civ. Pro., § 095.) [At, etc., as in form No. 80 (where made by the court).] [Title of cause.] An application having been made by A. B. , for the dis- charge of an attachment levied by M. JST., sheriff of the county of , upon the interest of the defendant, C. D , in the partnership property of said A. B. and C. D., and due notice of said application having been given to the plaintiff in the above entitled action : Now, on filing, etc. [stating papers read upon the motion],' and after hearing K. L., counsel for said A B., and O. H., counsel for said plaintiff [or. no one appearing to oppose] : It is hereby ordered [or I do hereby order], that it be re- ferred to J P., of . as referee, to take proof of the value of the property attached [and as to the sufficiency of the sureties in the undertaking, proposed to be given by said A. B , to procure the discharge of said attachment]. Date [of judge's ordei-]. A. 0., Judge [or Justice] of the Court {where order is made by judge). No. 279. Notice of Motion for Discharge of Attachment upon giving Security. (Code Civ. Pro., § 696.^') As in form No. 186 to [*], and from thence as follows : For an order discharging the property of the defendant, C. of the court or judge, is uncertain, Ihe 13 Abb, 482; S. C, 22 How., 106; sum to be sucli as the court or judge Eowles v Hoar, 61 Barb , 266.) Sec- determines. (Code Civ. Pro., § 694.) tion 696 of Code Civ. Pro., changes ' See note 4 to form No. 184, p 126. the rule laid down in those decisions. ' It was held, under sections 240 and As the court may require the notice to 241 of the Code of Procedure, that be given, it seems best, where prac- such an application was to be made ticable, to give it in advance of the ex parte, (See Sanborn v E. M. Co., application. Attachment of Pkopeety. 199 D. [or the interest of the defendant, C. D., in the property of the firm of (insert name of firm)], from the attachment levied thereupon by M. N., sheriff of the county of , upon giving security as required by law.' Dated , 18—. E. F., Attorney fur . [Office address.'] To T. R., Attorney for Plaintiff. Article Fourth. FORMS RELATING TO CASES WHERE THERE ARE TWO OR MORE WARRANTS AGAINST SAME DEFENDANT. (Code Civ. Pro , Ch. 7, Tit. 3, Art. 4.) No. 280. Order permitting junior attachment creditor to give undertaking to prevent release of foreign vessel. 281. Order granting leave to junior attaching creditor to commence action jointly with the sheriff. No. 280. Order Permitting Junior Attachment Creditor to give Un- dertaking to Prevent Release of Foreign Vessel, (Code Civ. Pro., § 701.) [At, etc., as in form No. 80 (where made by the court)..] [Title of cause.] It having appeared by the affidavit of E. F. [plaintiff in the above entitled action], dated , 18 — , that the [name of vessel], a foreign vessel belonging to the port of L^ , in the of [or that the (one-fifth) share of the defendant, C. D., in the (name of vessel) be- longing, etc.], has been attached by M. N., sheriff of the county of , under an attachment issued to him in an action in the Court, in which 0. P. is plaintiff, and said C. D. is [a] defendant, and valued as prescribed in article second of title three of the Code of Civil Procedure, ^ This form applies to all notices, ex- For notice under that section, sec form cept those prescribed by section 689. No. 274. s j3ee form No, 122, note 3, 200 Forms Relating to and that said 0. P. lias failed to give an undertaking to prevent the release thereof from said attachment, and a second warrant having been issued to said sheriff in the above entitled action, and the [said] plaintiff therein having applied for leave to file an undertaking as hereinafter mentioned ; Now, therefore, it is hereby ordered [or I do hereby order], that the plaintiff [E. F.] in the above entitled action have leave, within three days from the date of this order, to furnish the undertaking as required by section 701 of the Code of Civil Procedure, and if the said E. F. furnishes said undertaking within that time he shall have the same rights and privileges and be subject to the same duties and iiabjilities, with respect to said vessel and its proceeds and the subsequent proceedings relating thereto, as if his was the first warrant. Date [of judge's order]. A. 0., Judge [or Justice] of Court {where order is made hy judge). No. 281. Order Granting Leave to Junior Attaching Creditor, to Commence Action Jointly with Sheriff. (Code Civ. Pro., §704.) [At, etc., as in form No. 80 (where made by the court).] [Title of cause.] It appearing by the affidavit of E. F. [the above named plaintiff], that a warrant of attachment was issued to M. N., sheriff of the county of , on the day of , 18 — , in an action in which A. B. is plaintiff and the above named defendant, C. D., is defendant, and that said attachment was levied upon the property of said de- fendant on or about the day of , 18 — , and an inventory of said property has been duly returned and filed by said sheriff ; and that another attachment was issued on the day of '■ — ^ 18—, in the above entitled action, and levied uiDon the property of said defendant sub- sequently to the above mentioned levy ; Attachment of Peoperty. 201 And it farther appearing that said A. B. has neglected [or refused] to be joined with said sheriff in an action to be brought for the purpose of [state purpose of the action] [or that said A. B. has neglected {or refused)], to comply with the terms, conditions and regulations impQsed by an order of this court [or of Hon. A. 0., judge of this court], granting him leave to be joined with said sheriff in an ac- tion to be brought for the purpose of [state purpose of the action] [or said A. B. having neglected (or refused) to com- ply with the terms, conditions and regulations imposed upon him on the hearing of this application, with reference to the granting him leave to be joined with the said sheriff in an action to be brought for the purpose of (state purpose of the action)] ; and it appearing that due notice of this motion has been served upon the attorneys for said A. B., and upon said sheriff; and after hearing O. P., of counsel for said plaintiff in the above entitled action, and I. J., counsel for [naming other counsel appearing] [or no one appearing to oppose], and on filing (name opposing papers)] : It is hereby ordered, that said E. F., the plaintiff in the above entitled action, have leave to bring and maintain an action for the purpose of [stating purpose], in the name of himself and said sheriff jointly, with like effect as if his was the first warrant. Date [of judge's order]. A. 0., Judge [or Justice] oftJie Court {where made hy jxcdge). Article Fifth. FORMS RELATING TO PROCEEDINGS AFTER JUDGMENT IN AT- TACHMENT SUIT, AND TO RIGHTS OF PARTIES AND DUTIES OF THE SHERIFF AFTER WARRANT IS VACATED OR AT- TACHMENT DISCHARGED. (Code Civ. Pro., Ch. 7, Tit. 3, Art. 5.) No. 282. Petition for sale by sheriff of debts and tilings in action, under at- tachment. 383. AfiBdavit of sheriff accompanying last mentioned petition. 284 Notice of application by sheriff for sale of attached debts and things in action. 285. Order directing sheriff to sell debts and things in action. 36 202 Forms Relating to No. 386. Affidavit of defendant on application to be substituted for sheriff in suit on attached demand. 287. Order substituting defendant in suit brought by sheriff, or by sheriff and plaintiff jointly, for property attached. 288. Affidavit to procure order cancelling notice attaching real property. 389. Order cancelling notice attaching real property. No. 282. Petition for Sale by Sheriff of Debts and Things in Action under Attachment. (Code Civ. Pro., § 708, subd. 5.) [Title of cause.] To the Court : The petition of A. B. respectfully shows, upon informa- tion and belief, that he is the plaintiff in the above entitled action; that a warrant of attachment against the property of the defendant, C. D., was issued and delivered to the sheriff of the county of , on or about the day of , 18 — ; tliat said sheriff, under said warrant, levied upon the following property of the said defendant, to wit : [Here insert description of property attached.] That said sheriff has disposed of said property levied upon as follows : [Here state disposition of property by sheriff.] And your petitioner further shows, upon information and belief, that the following debts and things in action levied iipon under said warrant remain uncollected by said sheriff, although said sheriff has used due diligence in endeavoring to collect the same, as will more fully appear by the affi- davit of [said sheriff] hereto annexed, to wit : [Here enumerate the debts and things in action remaining undisposed of.] And your petitioner prays that an order may be made by this court directing the sale of said debts and things in action remaining undisposed of, and for such other and further relief as may be proper. Dated , 18—. A. B. [Verification as in form No. 52.] Attachment of Pkopeety. 203 No. 283. AfiidaTit of Sheriif Accompanying Petition for Sale of Debts, etc.. Attached. (Code Civ, Pro., § 708, subd. 5.) [Title of cause.] County, ss.: M. N., of , being duly sworn, says, that he is the sheriff of the county of ; that a warrant of attach- ment was issued to him in the above entitled action against the property of the defendant on or about the -^ day of , 18 — ; that he made a levy under said warrant upon property of said defendant, including the following debts and things in action of said defendant, to wit : [Here insert description of debts and things in action remaining uncollected.] That he has used due diligence in endeavoring to collect the said debts and things in action. That [here state the efforts made to collect said debts, etc., and where statements are made upon information and belief state sources of information and annex affidavit of informant, or account for not doing so].' M. N. [Jurat as in form No. 46.] No. 284. Notice of Application by Sheriif for Sale of Attached Debts and things in Action. (Code Civ. Pro., § 703, subd. 5.) As in form No. 170 to [*], and from thence as follows : For an order directing the sale by M. N., sheriff of , county, of the portion of the debts and things in action of the defendant, attached by said sheriff under a warrant of attachment issued to him in the above entitled action, re- maining uncollected by him, upon such terms, and in such manner, as to said court may seem proper [with costs of this motion], and for such other and further relief in the premises as to the court may seem proper. ^ ' See Note 3 to form No. 178. 204 Forms Relating to That said motion will be made upon [the petition and affidavits], with copies of which you are herewith served.' Dated , 18—. I. J., Attorney for Plaintiff. [Office address.'] To K. L., Attorney for Defendant. No. 285. Order Directing Sheriff to sell DeMs and things in Action Attached. (Code Civ. Pro., § 7C8, sulDd. 5.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the verified petition of A. B., the plaintiff in the above entitled action, dated , 18 — , accompanied with an affidavit, specifying fully all the pro- ceedings of M. K., sheriff of county, by whom a levy was made under a warrant of attachment upon the property of the defendant in the said action since the levy under said warrant, the property attached, and the disposi- tion thereof ; and the affidavit of said sheriff, showing that he has used due diligence in endeavoring to collect the debts and other things in action attached, and that a portion thereof remains uncollected [and due notice of this appli- cation having been given to the defendant's attorney] :' It is hereby ordered, on motion of I. J., attorney for plaintiff [after hearing K. L., for the defendant (or no one ' The aflBdavits and papers required remains uncollectad. (Code Civ. Pro., are tlie petition of the plaintiff, ac- §708, subd. 5; sceformsNos. 283, 333.) companied witli an aflSdavit, specify- ^ See note 3 to form No. 123. ing fully all the proceedings of the ^ Notice of the application must be sherifl since the levy under the war- given to the defendant's attorney, if rant, the property attached and the the defendant appeared in the action, disposition thereof; and the affidavit If the summons was not personally of the sheriff, showing that he has served on the defendant, and he did used diligence in endeavoring to col- not appear, the court may make such lect the debts and things in action at- order as to the service of notice as it tached, and that a portion thereof thinks proper. (CodeCiv. Pro., §708, subd. 5.) Attachment of Pkoperty. 205 appearing to oppose)], and on filing [state opposing papers]:' that the said sheriff sell the said portion of said debts and things in action remaining uncollected, upon the following terms and in the following manner, to wit [here insert direc- tions as to terms and manner of sale]. No. 286. Affltlavit of Defendant on Application to be Substituted for Sheriff in suit on Attached Demand. (Code Civ. ri-o„ § 710.) [Title of cause.] County, ss.: C. D.,*of , being duly sworn, says, that he is the defendant in an action brought by A. B. against him, in which said action a warrant of attachment against the prop- erty of deponent was issued and delivered to M. N., sheriff of county, on or about the day of , 18—. That a levy was made by said sheriff, under said warrant, upon certain property of deponent, including a demand of deponent against E. F. [describe demand.] That an action was afterwards brought in the Court by said sheriff [jointly with said A. B.] against the said E. F., to recover the amount of the said demand, which action is still pending and undetermined, and the place of trial therein is the county of [here state the condition of the action]. That by an order of the Court [or of Hon. A. O., judge of the Court], the said warrant of attach^ ment has been vacated [or annulled ; or said attachment has been discharged]. And deponent prays, therefore, that he may be substi- tuted as plaintiff in said action, in place and stead of said M N. [and A. B.] ^ CD [Jurat as in form No. 46.] ' Sec note 4, page 126, to form No. 183. 206 Forms Relating to No. 287. Order Substituting Defendant in Suit by Sheriff, or by Sheriff and Plaintiff Jointly, for Property Attached, (Code Civ. Pro., §710.) [At, etc., as in form 'No. 80 (where made by tile court).] [Title of cause.] It appearing by the affidavit of C. D., dated , 18 — , that the above entitled action has been brought by M. N., sheriff of the county of [and A. B. jointly], to recover the amount of a demand owing to C. D. by E. F., seized with other jjroperty under a warrant of attachment issued to the said sheiriff in an action in which [said] A. B. was plaintiff and said C. D. was [a] defendant, and the said warrant of attachment having been vacated [or annulled {or said attachment having been discharged)] by order of the court, dated , 18 — : Now, on motion of T. E.., of counsel for said E. F., it is hereby ordered, that said E. F. be and he is hereby substi- tuted in place and stead of said M. N. [and A. B.] as plain- tiff in the above entitled action [upon the following terms (add any terms imposed by the court, as a condition of granting the order)]. Date [when made by judge] A. 0., Judge [or Justice] of the Court {where made by judge). No. 288. Affidavit to Procure Order Cancelling Notice Attaching Real Property in Attachment Suit. (Code Civ. Pro., § 711.) [Title of cause.] CoxJNTy, ss.: C. D., of — , being duly sworn, says, that he is the defendant in the above entitled action ; that a warrant of attachment against the property of deponent was issued therein on or about the day of , 18 — ^ and delivered to M. N., sheriff of county : Attachment o^ Pbopeety. 207 That a notice of said attachment was filed in the county- clerk's office of county on the — day of , 18 — , at o'clock in the noon, of ■which notice a copy is hereto annexed, which said notice was recorded on the day aforesaid and indexed by said clerk in the book kept in his said ofiice for the purpose of recording notices of the pendency of actions and indexed by said clerk to the name of the defendant, according to the direction of the attorney for the plaintiff, appended at the foot of said notice and subscribed by said plaintiff's attorney,' and affects the real property therein described : And deponent further shows, that the said warrant of attachment was, by an order of the — Court [or of Hon. A. O., judge, of the Court], dated , 18 — , vacated and annulled [or that said attachment has been discharged as to real property attached, by an order, etc. (as above)]. And deponent prays that the said notice may be cancelled of record by the clerk of county. C. D. [Jurat as in form JS'o. 46.] No. 289. Order Cancelling Notice Attaching Real Property, (Code Civ. Pro., § 711.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the afii davit of C. D., dated ■ 18 — , by which it appears that a warrant of attachmeit against the property of said C. D., defendant in said ac- tion, was issued and delivered to M. N., sheriff" of — - county, on or about the day of 18 — , has been vacated and annulled [or has been discharged as to the real property attached, by order of the Court, (or ' The regularity of the notice must The rule in regard to the cancclla- appear, so as to show that it affects tion of this notice differs from the case real property. (Jaflray v. Brown, 17 ot a, lis pendens. (See Code Civ. Pro , Hun, 575.) § 1074, Mills v Bliss, 53 N. Y , 139.) 208 Forms Relating to of Hon. A. 0., judge of the Court)], and that a notice has been filed, for the purpose of attaching certain real prop*erty of said defendant, in the clerk's office of the county of , on the day of , 18 — , at o'clock in the noon : And it appearing that due notice of this motion has been given to the plaintiff's' attorney in said action : Now, on motion of G. H , counsel for said defendant, after hearing J. K., attorney for the plaintifp, and on filing [name opposing papers] [or no one appearing to oppose] : ' It is hereby ordered, that the said notice be cancelled of record, by the clerk of — ■ county, in the manner re- quired by law. TITLE IV. FORMS RELATING TO OTHER PROVISIONAL REMEDIES. AuTiCLE First. FORMS RELATING TO RECEIVERS. (Code Civ. Pro., Ch. 7, Tit. 4, Art.,1.) No. 290. Notice of application for appointment of receiver. 291. Order to show cause why a receiver should not be appointed. 292. Order appointing receiver. 293. Kotice of motion for reference to appoint receiver. 394. Order of reference to appoint receiver. 295. Summons to attend reference to appoint receiver. 290. Proposal of names to referee for receiver. 397. Referee's report of appointment of receiver. 298. Notice of motion to nominate receiver. 299. Order that a receiver ho appointed, and for a reference to nominate a suitable person. 300. Referee's report nominating receiver. 301. Order confirming report made by referee, and appointing receiver, 303. Bond of receiver. S03. Order of reference to appoint a receiver in creditor's suit. ' As the court may require notice to application. (See § 711, Code Civ. be given, it is probably better, ordi- Pro.) narily, to give notice in advance of the * See note 4 to form No. 183, page * 120. Receivers. 209 No. 390. Notice of Application for Appointment of Receiver. (Code Civ. Pro., § 714.) As in form No. 170 to [*], and from thence as follows : For the appointment of a receiver in the above entitled action of the partnership property of the firm of A. B. & Co. [or other property, describing it], and for such other and further relief as may be proper, with costs of the motion. [t] Such application will be made upon the pleadings [or complaint] and proceedings in said action [and upon the affidavits, with copies of which you are herewith served].' Dated , 18—. Yours, etc., E. F., Attorney for Plaintiff. [OflSce address. °] To Gf. H., Esq., Attorney for D^'endant. No. 291. Order to Show Cause why Receiver should not he Appointed. (Code Civ. Pro., § 714.) [Title of cause.] On [the affidavits herewith served, and on the] complaint [or pleadings] and proceedings in this action, let the de- fendant show cause, on the day of next, before this court, at a Term to be held at , in the of , at the opening of the court, or as soon thereafter as counsel can be heard, why a receiver should not be appointed of all the partnership property of the late firm of A. B. & Co. [or other property, describing it], and why such other relief as may be jtist should not be granted to the plaintiff, with costs.' And let a copy of said affidavit, and of this order, be ' Notice of the application must be ^ Orders to sliow cause arc now only given to the adverse party, unless he allowed to shorten the time for notice has failed to appear in the action and o* motion, except where they are ex- the time limited for his appearance pressly provided for by statute. See has expired. (Code Civ. Pro., § 714.) note 1 to form No. 163, page 113, 2 See note 3 to form No. 133. 37 210 FoEMS Relating to served upon said defendant [or upon J. K., attorney for said defendant], on or before the day of , 18—, personally, or by depositing the same, properly in- closed, in a post-paid wrapper in the post-office, in the of , directed to said defendant [or to said attorney] at the of . Dated , 18—. A. O.J Judffe [or Justice] of the Court. No. 292. Order Appointing Receiver, (Code Civ. Pro,, §713.) [At, etc., as in form No. 80.] [Title of cause.] Upon the summons and complaint [or pleadings] in this action, and upon the affidavit of I. J., dated , 18 — , and upon proof of due service of notice of this motion, and after hearing E. F., for the plaintiff, and K. L., for the de- fendant [and on filing (name any opposing papers ; or no one appearing to oppose)] : It is [*] ordered, that T. E.., of , be and he is hereby appointed receiver of all the copartnership property of the firm of A. B. & Co. [composed of the plaintiff and the defendant' {or other property, describing it)], upon the said receiver executing, acknowledging and filing with the clerk of this court a bond in the form required by law to the people of this State in the penalty of dollars, with two sufficient sureties," to be approved as to its form and manner of execution by [a] judge of this court : And it is further ordered, that said receiver be empow- ered to cake immediate charge of and to sell at his discre- tion, at public or private sale, the said property and assets ' Where, in a copartnersliip agree- appointment of a receiver therein is ment, no time is named for its conliuu- proper. (McElvey v. Lewis, 70 N. Y , auce, and no provision made for tlio 373; see § 1947, Code Civ. Pro. settlement of its concerns ui>ou disso- ' An order allowing a bond with lutiou, it is dissolvable at the will of only one surety is amendable. (Holmea either of the partners. An action is v. McDowell, 15 Hun, SS5.) inaintainablQ for that purpose, and tkg Rkoeivers. 211 of said [copartnership], and to collect the debts due to said [copartnership] : And it is further ordered, that both the plaintiff and the defendant be and they are hereby enjoined fron., in, any way, using, controlling, interfering with or encumbering said [copartnership] property [and from collecting any debts due to said (firm), or paying out any money belong- ing to said (firm)], until the further order of this court.' No. 293. Notice of Motion for a Reference to Appoint a Receiver. (Code Civ. Pro., § 714.) As in form No. 170 to [*], and from thence as follows : For an order that it be referred to a referee to appoint a receiver of the copartnership property of the firm of A. B. & Co. [or other property, describing it], and for such other order or relief as may be just. That such motion will be made up6n the pleadings and proceedings in this action and upon [name other motion papers], copies of which are herewith served upon vou." Dated , 18—. Yours, etc., E. F., Plaintiff's Attorney. [Office address.'] To Gr. H., Esq., Defendant' s Attorney. No. 294. Order of Reference to Appoint a Receiver. (Code Civ. Pro., §713.) As in form No. 292 to [*], and from thence as fol- lows: Hereby ordered, that it be referred to A. Y., Esq., ' As to powers and qualifications of ceiver will be appointed, see Adee v. receiver, see note 1, page 219, and note Bigler (81 N. Y., 849), Shehan v. Ma- 1, page 2^=0, to form No. 303, -post; har(17 Hun, 129), Mitchell v. Barnes McKelsej' v. Lewis (3 Abb. N. C, 01), (33 Hun, 194), State Bank of Syracuse Chamberlain v. Greenlcaf (4 Abb. N. v. Gill (23 Hun, 410), Lafoud v. Deems C, 92). (1 Abb. N. C, 318). A non-resident or temporary resident ''^ See note 1 to form No. 399. is not qualified. (Id.) ^ Sec note 3 to form No, 133. As to wben and ia what guitg a re- 213 Forms Relating to of , to appoint a receiver of all the partnership property of the late firm of A. B. & Co. [or other proper tj', describing it], and that the said referee take from such re- ceiver security for the faithful discharge of his duties as receiver, to wit : a bond, in a sum to be fixed by said referee, with two or more sufficient sureties to be approved by [a] judge of this court, and file the same with the clerk of this court [or of the county of ]. And it is further ordered, that upon the filing of such security and of the said referee's report, such receiver shall be vested with the usual rights and powers of receivers under this court [add any special powers that may be neces- sary], and that thereupon the defendant, C. D., deliver to said receiver all the partnership property of the late firm of A. B. & Co. [or other property, describing it], upon his demand.' No. 295. Summons to Attend Reference foi' Appointment of Ee- ceiver. (Code Civ. Pro., § 713.) [Title of cause.] To E. F., Esq., Defendant's Attorney [or to C. D., De- feiidarW]. You are hereby required to attend before the undersigned, the referee appointed by the Court, to appoint a receiver in this action, at his office, No. — street, in the city of , on the day of next, at o'clock in the noon, when said referee will receive proposals for a receiver under the order of court, dated , 18 — , a copy of which has been served upon you [if addressed to the defendant in a credi- tor's suit, add, when necessary] ; the personal attendance of the defendant, C. D., is required for the purpose of ex- amination. Dated , 18—. A. Y., Referee. F. J., Plaintiff's Attorney. [Office address.'] 1 See note i, p. 319, to form Nq. 39§. ' See potc 3 to form No, 133. Heceivers. 213 No. 296. Proposal of Names to Referee. (Code Civ. Pro., §713 J [Title of cause.] For receiver of the estate \or partnership property ; or rents and profits of the estate {or property)], mentioned in the order of this court, dated on the day of 18—, the above named plaintiff [or defendant] proposes K T., of No. street, in the city of , counsellor-at-law, and the said N. T. offers I. J., of ,' and K. L., of , as his sureties. Dated , 18—. E. F., Plaintiff's Attorney. [Ofiice address.'] No. 297, Referee's Report of Appointment of Receiver. (Code Civ. Pro., § 713.) [Title of cause.] To the Court : In pursuance of an order of this court, made in the above entitled action, dated the day of --, 18 — , vrhereby it was referred to the undersigned to appoint a re- ceiver of all the partnership property of the late firm of A. B. & Co. [or other property, describing it], and to take from such receiver proper security, I, J. L., the referee named in said order, respectfully report, that I have been attended on said reference by the attorneys and counsel of the plaintiff [or both {or all) the parties to this action], and thereupon proceeded with the matters so referred. That N. F., of , was proposed on the part of the [plaintiff] as such receiver ; and that no objection being made to his appointment [and no person proposed by the defendant], and the said N. F. appearing to me to be a fit and proper person for such trust, I have appointed him re- ceiver as aforesaid. ' See note 2 to form No. 122. 214 Forms Relating to That the said N. F. offered as sureties I. J., of , and K. L., of , and being satisfied by their affida- vits [and other proofs] that they were each of them worth the sum of dollars, over and above all their liabili- ties, I approved of them as such sureties. ■ That the said N. F., I. J. and K. L., thereupon, jointly and severally, executed, and duly acknowledged, a bond, in the form required by law, to the people of this State, in the penalty of dollars, conditioned for the faithful discharge of his duties as receiver aforesaid. That I have caused the said bond, with my approval in- dorsed thereon, and the affidavits of justification of said sureties, to be filed with the clerk of the county of . All of which is respectfully submitted.' Dated , 18—. I. L , Referee. No. 298. Notice of Motion to Nominate Receiver. (Code Civ. Pro., §713.) As in form No. 168 to [*], and from thence as follows : For an order of reference to a referee to be appointed by the court, to nominate and report to the court a suitable person to be appointed receiver of all the partnership prop- erty of the late firm of A. B. & Co. \or other property, de- scribing it], and to report as to the amount of the security to be required, and the sufficiency of the sureties proposed, and for such other order as may be just. Dated , 18—. E. F., Plaintiff'' s Attorney, [Office address.'] To T. R., Defendant s Attorney. No. 299. Order that a Receiver Ibe Appointed, and for a Reference to Nominate a Suitable Person as such Receiver. (Code Civ. Pro., §713.) As in form No. 174 to [*], and from thence as follows : ' See note 1 to form No. 299. ' See note 3 to form No. 133. Receivers. 215 Ordered, that a receiver be appointed of all the partnership property of the late firm of A. B. & Co. [or other property, describing it] ; and it is further ordered, that it be referred to I. L., Esq., of , to report the name of a suitable person to be appointed such receiver, and to report the names of the sureties offered by him, with the amount for which they should become liable, and their responsibility for the same.' No. 300. Referee's Report Nominating Recei'»^er. (Code Civ. Pro , § 714.) [Title of cause.] To the Court : In pursuance of an order of this court, made in the above entitled action, dated the day of , 18 — , whereby it was referred to me to report the name of a suitable person to be appointed receiver of all the copart- nership property of the late firm of A. B. & Co. [or other property, describing it], the amount of security to be given and the names and responsibility of the sureties, I, the referee named in said order, respectfully report : 'That I have been attended, on said reference, by the attorney and counsel of the parties to this action and there- upon proceeded with the matters so referred ; that, in my judgment, the amount of security to be given by the re- ceiver should be the sum of dollars ; that N. F., of , was proposed as receiver, on the part of the plain- tiff, and that J. K., of , was proposed on the part of the defendant, and that, upon due examination, ifc ap- peared to me that the said N. F. was better fitted to execute the trust of sucli receivership than the said J. K. ; where- fore, I recommend him as a suitable person to be appointed receiver, as aforesaid. That the said N. F. offered as his sureties I. J., of , and Gr. H., of , and being satisfied by their respective affidavits [and other proof] that they were each worth the ' The appointment of a referee to suitable person as receiver, is autlior- appoint a receiver, or to report as to a ized by section 837, Code Civ. Pro. 216 FOKMS Relating to sum of dollars, over and above all their liabilities I approve and recommend them as such sureties. That the said N. F., I. J. and K. L. thereupon, jointly and severally, executed a bond, in the form required by law, to the people of the State of New York, in Ihe penalty of dollars, conditioned for the faithful discharge of his duties as such receiver ; which bond appeared to me sufficient, in form and substance, and is herewith sub- mitted.' Dated , 18—. I. L., Referee. ! No. 301. Order Conflrmiug Report Made by Referee and Appointing Receiver. (Code Civ. Pro., § 718.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the report of I. L., a referee ap- pointed by the court, on the day of , 18 — , to report the name of a suitable person for receiver, in this action, and what security should be required, and on motion of E. F., counsel for the plaintiff, and after hearing A. P., counsel for the defendant : Ordered, that the said report be confirmed ; and that N. F., of , be appointed receiver of all the copart- nership property of the late firm of A. B. & Co. [or other property, designating it], and that I. J. and K. L., the sure- ties named in said report, be approved as sureties for the said receiver ; and that the bond heretofore approved by the said referee be filed with the clerk of the county of , and that the appointment of tlie said receiver shall date from the time of the filing of such bond : And it is further ordered, that the said receiver shall be vested with the usual powers and rights, and be subject to ' In references other than for the nosses shall he signed hy them, and trial of the issues in an action, or for the report of the referee shall be filed computing the amount due in fore- -with the testimony. (Gen, Rules of closure cases, the testimony of the wit- Practice, No. SO ) Eeceivees. 217 the usual liabilities of receivers of this court. [Add any- special directions that may be necessary.] No. 302. Bond of Receiyer. (Code Civ. Pro., § 715.) -• Know all men hy these presents: That we, E. F., of -, merchant, and I. J., of , merchant,, and K. L. , of , banker, are held and firmly bound unto the people of the State of New York, in the sum of dollars, lawful money of the United States, to be paid to the said people of the State of New York, for which pay- ment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , 18—. [*] Whereas, by an order of the [Supreme] Court of the [State of New York], made at a Term thereof, bearing date the day of , 18 — , in an action wherein A. B. was plaintiff, and C. D. and others were de- fendants, the above bounden, E. F., was appointed receiver of all the partnership property of the late firm of A. B. & Co. [or other property, describing it {or it was referred to I. L. to appoint a receiver of, etc., and to take due security from such receiver ; and, whereas, the said referee has ap- pointed the above bounden, E. F., such receiver)], pursuant to the provisions of the Code of Civil Procedure. Now, therefore, the condition of this obligation is such, that if the said above bounden, E. F., shall faithfully dis- charge his duties as such receiver, then this obligation shall be void, otherwise to be and remain in full force and virtue. Sealed and delivered in presence of E. F. [L. S.J I. J. [L. S.] K. L. [L. S.] 218 Forms RELATiisra to [Acknowledgment and justification of sureties as in form No. 118.J I approve of the within bond, as to its form and manner of execution, and as to the sufficiency of the sureties. Da-ted , 18—. A. O., Judge [or Justice] of the Court [or I. L., Referee']. No. 303. Order of Eeference to Appoint a Receiver in a Creditor's Suit. (Code Civ. Pro., § 713.) As in form No. 292 to [*], and from thence as follows ; Ordered, that it be referred to I. L., Esq., of , to appoint a receiver of the estate and property, real and per- sonal, things in action, debts, equitable interests and other effects of the said defendant, C. D., and which belonged to him, or were held in trust for him at the time of commenc- ing this action, or in which he had any beneficial interest, except such property as is, by law, exempt from execution, and also except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the said defendant [if there be i:>roperty which the plaintiff seeks to subject to his execution, after remov- ing incumbrances, add], and of the property hereinafter described, and the rents, issues, income and profits thereof, to wit [describing property]. And it is further ordered, that the said referee take from such receiver security for the faithful performance of his trust, to wit : a bond in the sum of dollars, with two or more suflicient sureties, to be approved by said referee, and file the same with the clerk of this court [or of the county of ]. And it is further ordered, that, upon the filing of such security and of the said referee's report, such receiver shall be vested with the usual rights and powers of receivers under this court ; and the said defendant, C. D., is hereby ordered to appear before the said referee, and assign, con- Receiveks. 219 vey, transfer and deliver over to such receiver [*], on oath, and under the direction of the said referee, the estate, prop- erty, choses in action and effects as to vs^hich such receiver is appointed' as aforesaid, with all the vouchers and papers re- lating thereto, as well as, from time to time, to produce such books and papers, and submit to such examination, as the said referee shall direct, in relation to the property or effects which he is directed to assign or deliver over ; and also that said C. D. execute and deliver to said receiver [under the direction of said referee] a general assignment of such prop- erty and effects ; and also [if there be real estate sought to be reached] execute, acknowledge and deliver to said re- ceiver [under the direction of said referee], a conveyance and assignment of the real estate mentioned in said com- plaint, and of the rents, issues and profits thereof ; and that the plaintiff be at liberty to examine witnesses before the said referee in relation to the real estate, leasehold, chattels real and personal and equitable interests, things in action and effects of the said defendant, C. D. ; and also as to any matter charged in the said complaint and not admitted by the said defendant, on such examination, so far as neces- sary to cai'ry out this order ; and it is also ordered, that the receiver, when so appointed, shall have general power and authority to sue for, and collect, any of the debts, demands and rents belonging to the said defendant, C. D., which. may be transferi'ed to him, and to compromise and settle such as are unsafe, or of a doubtful character [he may also sae, in the name of the defendant, where it is necessary or proper so to do] ; but the said receiver will not, in his ac- counts, be allowed for the costs of any suit brought by him against an insolvent from whom he is unable to collect his costs, unless such suit is brought by order of the court, or by the consent of all persons interested in the funds in his hands. And the tenants of such real estate of the debtor, C. D., as may also be assigned or transferred to the said receiver, ' The direction for the delivery of a party for a contempt, in refusing to the property to the receiver, is not deliver over the property to the rei- necessary to complete the title of the ceiver. (P«r Van Vorst, J., McKelsey receiver to the property, but is neces- v. Lewis, 3 Abb. N. C, 03.) sary to uphold" a proceeding to punish 220 Forms Relating to are to attorn to such receiver ; or the receiv may, when necessary, apply for an order that any of such tenants attorn and pay rents to him ; and such receiver is hereby permitted to make leases, from time to time, as may be necessary, of any such real estate, for a term not exceeding [one year]. It is also hereby made the duty of the said receiver, with- out any unreasonable delay, to convert all the personal estate and effects which may be assigned or delivered over to him into money ; but he is not to sell any real estate, Avithout the special order of the court, although he may sell des- perate debts and other doubtful claims to personal prop- erty, by public auction, giving at least ten days' public notice of the time and place of such sale. Before making such appointment, said referee shall ascer- tain whether a receiver be already appointed of the estate and effects of the said defendant ; and if there should be, and if the referee appoints him to be the receiver in this action also, then all the rights and powers herein provided shall attach to such present receiver.' Article Second. rORMS RELATING TO DEPOSIT, DELIVERY OR CONVEYANCE OF PROPERTY. (Code Civ. Pro., Ch. 7, Tit. 4, Art. 2.) No. 304. Notice of motion to compel a deposit in court of money or property. 305. Order for payment or deposit in court of money or property, 306. Ordei requiring slienfi to talce and deposit money or other personal property. No. 304. Notice of Motion to Compel a Deposit in Court of Money or Property. (Code Civ. Pro., § 717.) [Title of cause.] Sir— Take notice, that upon the pleadings [and examina- tion of the defendant] in this action the plaintiff will move, ■ A creditor is not disqualified for a State cannot be a receiver. (Cham- receivership, but a non-resident of the berlain v. Greenleaf, 4 Abb. N. C, 92.) Deposit and Delivery of PnoPERTr. 321 at a Term of the Court, to be held at , on the day of , 18— that the defendant be required to pay into or deposit in court, or deliver to the plaintiff, the sum of dollars [or the following property, viz.:], the same being admitted to be due [or to belong] to the plaintiff, and to be in the defend- ant's possession or under his control [or to be held by the defendant as trustee for the plaintiff], and for such other and further relief as may be just [with costs of this motion]. Dated , 18—. YourSj etc., E. F., Plaintiff's Attorney. [Office address.'] To I. L., Esq., Defendant's Attorney. Fo. 305. Order for Payment or Deposit of Money or Property. (Code Civ. Pro , § 717.) [At, etc., as in form No. 80.] [Title of cause or proceeding.] On reading and filing notice of motion, with proof of due service on the defendant, and the answer [or examination] of the defendant whereby he admits that the sum of dollars [or the following described property, describing it], being the subject of this action [or proceeding], is due to [or belongs to {or is held by the defendant as trustee for)] the plaintiff, and is in the defendant's possession or under his control [and on reading and filing (specify any opposing papers)], and, on motion of T. R., for the plaintiff, and I. J., for the defendant [or no one appearing to oppose] : • It is hereby ordered, that the defendant pay [or deliver] to the clerk of this court ' [or to the plaintiff, on his giving security (stating what security)], within days after the date [or after service upon him of a copy] of this order the said sum of dollars [or the said property], sub- ject to the further direction of this court. ' See note 2 to form No. 123. Code Civ. Pro., section 745; Rule 08, ^ As to disposition of money paid Gen. Rules of Practipe, mto court bjr officer receiving it, see 233 Forms Relating to No. 306. Order Requiring Sheriff to Talie and Deposit, etc., Money or otlier Personal Property. (Code Civ. Pro., § 718.) [At, etc., as in form No. 80. J [Title of cause.] This court having by an order made at a Term thereof, lield at ■, on the day of , 18 — , directed that the defendant pay [or deliver] to the clerk of this court [or to the plaintiff on his giving security as required by said order, viz.: (state security)], within days after the date of said order, the sum of dollars [or the following property, describing it], and it ap- pearing by the affidavit of , dated , 18 — , that said direction has been disobeyed by the defendant, and due notice of this motion having been given to the defendant's attorney : Now, on motion of E. F. for the plaintiff, and after hear- ing C. M. for the defendant, and on reading [specifying op- posing papers {or no one appearing to oppose)], it is hereby ordered and required, that M. N., sheriff of the county of , take and deposit [or deliver] the said money [or property] in conformity with the directions of this court contained in said order, as above recited. Tender and Other Offers. 223 CHAPTER YIII. FOKMS RELATING TO MISCELLANEOUS INTERLOCUTORY PRO- CEEDINGS AND REGULATIONS OP PRACTICE. TITLE I. Forms relating to tender and other offers and requests to the adverse party. TITLE II. Forms relating to proceedings upon the death or disability of a party, or the transfer of his interest. TITLE III. Forms relating to motions and orders generally. TITLE IV. Forms relating to miscellaneous practice regulations. TITLE I. FORMS RELATING TO TENDER AND OTHER OFFERS AND RE- QUESTS TO THE ADVERSE PARTY. (Code Civ. Pro., Ch. 8, Tit. 2.) No. 307. Notice of payment into court of amount tendered by defendant. 308. Offer by defendant to liquidate damages conclitionally. 309. Offer by defendant to allow judgment to be taken against him. 810. Notice of acceptance by plaintiff of offer of defendant. 311. Notice of acceptance by defendant of plaintiff's offer of judgment. 313. Judgment for plaintiff on filing defendant's offer and acceptance. 313. Offer by plaintiff when defendant sets up a couulorclaim. 314. Judgment on acceptance by defendant of offer of plaintiff. No. 307. Notice of Payment into Court of Amount Tendered by De- fendant. (Code Civ. Pro., § 783.) [Title of cause.] Sir — Take notice, that the amount of dollars, together with the costs of this action to the time of such tender, heretofore tendered to you [or to the plaintiff] on the ■ day of , IS — , in the above entitled action, has dbeen paid into court on the day of , 18-.' Yours, etc., E. F., BefendanV s Attorney . [Office address."] To T. R., Plaintiff's Attorney. ' In order to make a tender before must pay the money into court, and suit brought available, the defen<}ai)t allege that fact in his answer (Becker y, 224 Forms Relating to No. 308. Offer by Defendant to Liquidate Damages Conditionally. (Code Civ. Pro., §730.) [Title of cause.] Sir— Take notice, that the defendant hereby offers, pur- suant to statute, that if he fails in his defense in the above entitled action, the damages may be assessed at the sum of dollars.' Dated , 18—. Yours, etc., E. F., Defendant s Attorney. [Office address.'] To I. J., Esq., Plaintiff's Attorney. No. 309. Acceptance by Plaintiff of Offer to Liquidate Damages. (Code Civ. Pro., §736.) [Title of cause.] SiE — Take notice, that the plaintiff accepts the offer of Boon, 61 N. Y., 317), or must other- wise give notice of its payment. (Plai- ner V. Leliman, 20 Hun, 374.) If he fails to do so, the plaintifE may return the answer as a nullity. But the plaintifE cannot, after he has taken issue on the answer, avail himself of the objection, and the defendant, in such case, is entitled to judgment if he, on tlie trial, establishes the tender. (Platner V. Lehman, supra.) It was held, however, in Becker v. Boon {supra), that the omission to al- lege the tender in the answer, is not waived by going to trial where other issues are made by the answer; and to same effect, see Bull's Head Bank V. Koeliler (1 City Ct., 364). Under sections 731, 733 and 733 of the Code of Civ. Pro. (being from 3 K. S., 553, §§ 20, 31 and 23), the ten- der may be made in the action at any time before the trial, and, it would seem, need not be pleaded, but may be given in evidence under the notice. (But see Asendorf v. Meyer, 8 Week. Dig., 415 [N. Y. C. P., Gen. T.]); S. C, 8 Daly, 378. The tender must bo made uncon- ditionally, and the money paid into court. (Cass v. Higenbotam, 37 Hun, 406.) A tender made after the commence- ment of an action, without a tender of costs and without an order, permit- ting a tender without costs, is insuffi- cient to make out a defense. (Eaton V. Wells, 33 Hun, 133; affl'd, 83 N. Y., 576.) • The notice must be served before the trial, and within ten days after the tender. (Code Civ. Pro,, § 733.) ^ See form No. 123, note 3. ' The notice must be served witlithe answer. (Code Civ. Pro., § 736.) ^ gee note S to form No. Wi, Tender, Oeeees, etc. 225 the defendant in this action, that if he fails in his defense in said action, the damages may be assessed at the sum of — . dollars." Dated , 18—. Yours, etc., I. J., Plaintiff^ s Attorney. [Office address."] To B. F., Esq., Defendant's Attorney. No. 310. Offer by Defendant to Allow Judgment to Ibe Taken against Him. (Code Civ. Pro., § 738.) [Title of cause.] Sir — Take notice, that the defendant [C. D.] hereby offers to allow' judgment to be taken against him in the above entitled action for the sum of dollars [and interest thereon from the day of , 18 — ] [or for the recovery of the following described property, viz. ; or to the effect that, etc.], with costs.' Dated , 18—. E. F., Defendant s Attorney. [Office address."] To I. J., Esq., Plaintiff's AJtorney. [Add affidavit as in form No. 314, substituting word "de- fendant" for "plaintiff" where it occurs therein.] ' The acceptance must be served personal judgment against the obligor with or before tlie notice of trial, for deficioncy is asked. (Bathgate v. (Code Civ. Pro., § 736. Haskin, 03 N. Y., 261.) ' See note 3 to form No. 123. In a suit against copartners, one 3 The provisions of section 3S5 of the cannot make an offer of judgment, Code of Procedure, corresponding with unless there is evidence that the other those of section 788, Code Civ. Pro., approved or ratified it. (Weed v. Ber- giving defendant costs -where plaintiff gstresser, 2 Law Bui., 55.) does not accept an offer of judgment See note 1, p. 338, to form No. 314. and fails to obtain a more favorable ^ See note 3 to form No. 133. one, apply to foreclosure suits where a 29 '226 FoEMS Relating to No. 311. Acceptance by Plaintiff of the Offer of Defendant. (Code Civ. Pro., §738.) • [Title of cause.] Sir — Take notice, that the plaintiff hereby accepts the offer of the defendant [C. D.J in the above entitled action, to allow Judgment to be taken against him for the sum of dollars [and interest thereon from the ■ day of , 18 — ] [or for the property therein specified ; or to the effect that, etc.], with costs." Dated , 18—. Yours, etc., I. J., Plaintiff'' s Attorney. [Office address. ""] To E. F., Esq., Defendanf s Attorney. [Add affidavit as in form No. 314, substituting word "acceptance" for "offer."] No. 312. Acceptance Iby Defendant of Plaintiff's Offer for Judgment, (Code Civ. Pro., | 739.) [Title of cause.] Sir — Take notice, that the defendant in the above enti- tled action, accepts the offer of the plaintiff therein, to allow judgment to be taken against him for the sum of ■ dollai's [and interest thereon from the • day of , 18 — ], with costs \or against the defendant for the sum of dollars (and interest thereon from the ■ day of , 18 — ), and against the plaintiff for costs].' Dated , 18—. Yours, etc., E. F., Plaintiff's Attorney. [Office address.'] To I. J., Esq., Defendant s Attorney. [Add affidavit as to authority as in form No. 314, substi- tuting therein the word "defendant" for "plaintiff" where it occurs, and word "acceptance" for "offer."] ' Seu note 1, p. 228, to form No. 314, Sec note 2 to form No. 123. Tender, Ofeees, etc. 327 No. 313. Judgment for Piaintiflf on Filing Offer and Acceptance. (Code Civ. Pro., § 738.) [Title of cause.] Judgment of the day of ■ is . On filing the summons and complaint in the above enti- tled action with the offer of defendant, and proof of due acceptance of said offer by the plaintiff, and on motion of I. J., attorney for the plaintiff, it is adjudged, that A. B., the plaintiff, recover from and against C. D., the defend- ant, the sum of dollars [or the following described property, viz.; or stating other relief], with the costs of this action, amounting to the sum of dollars [making together the sum of ^ dollars]. J. L., ClerJc of County. No. 314. Offer Iby Plaintiff, when Defendant sets up a Counterclaim. (Code Civ. Pio., §739.) [Title of cause.] Sir — Take notice, that the plaintiff offers to allow judg- ment to be taken in the above entitled action against him for the sum of dollars [and interest thereon from the day of , 18 — ], with costs [or against the defendant for the sum of dollars, and against the plaintiff for costs]. Dated , 18—. Yours, etc., I. J., Plaintiff's Attorney. [Office address.'] To E. F., Esq., Defendant's Attorney. County, ss.: I. J., of , being duly sworn, says, that he is the attorney for the plaintiff in the above entitled action ; that he is duly authorized by the plaintiff to make the foregoing > See note 3 to form No. 183, 228 Forms Relatino to offer, subscribed by deponent, in behalf of the plaintiff in said action.' X. J • [Jurat as jn form No. 46. J No. 315. Judgment on Acceptance Iby Defendant of Offer of Plaintiff. (Code Civ. Pro., §730.) [Title of cause.] Judgment of the day of , 18—. On filing the summons, complaint and answer in the above entitled action, and the offer of the plaintiff, with proof of due acceptance thereof by the defendant, and on motion of attorney for the defendant [or plaintiff]; It is adjudged, that the defendant recover from and against the plaintiff the sum of — dollars, with dollars costs [or that the plaintiff recover from and against the defendant the sum of dollars, and that the de- fendant recover from and against the plaintiff" the costs of this action, amounting to the sum of dollars] [making together the sum of dollars]. J. L., Clerk of County. 1 Unless the offer or the acceptance the Court of Appeals in dismissing the is subscribed by the party making it, it appeal, said: "We concur -nith the must be subscribed by his attorney, and opinion of the Special and that of lie must annex thereto the foregoing the General Term, that the offer made affidavit. (Code Civ. Pro., § 740.) by the defendant to allow judgment An offer of judgment, signed by the to be taken was imperfect, because it defendant's attorney, is a nullity unless was not in conformity to the Code, verified, as required by this gection. and that there was no waiver of the (McFarren V. St. John, 14 Hun, 387.) defect by the notice served by the The defendant's attorney cannot, plaintiff's attorney (declining to accept after judgment for the plaintiff for the offer), or in any other manner." a sum less than the offer, be allowed (Kiggs v. Waydell, 78 N. Y., 580.) to amend his offer by annexing thereto If an amendment could be allowed his affidavit of his authority to make nunc pro tunc, it was in the discretion it. (Riggs V. Waydell, 17 Hun, 515.) of the courts below to allow it, and no On appeal in the latter case from the appeal lies from their refusal to do so., order refusing to allow the amendment, (Id.) Death, etc., or Tkansfeb of Interest. 229 TITLE II. FORMS RELATING TO PROCEEDINGS UPON THE DEATH OR DISABILITY OP A PARTY, OR THE TRANSFER OF HIS INTEREST. (Code Civ. Pro., Ch. 8, Tit. 4 ) No. 316. Affidavit on motion to continue action in name of representative of deceased party, sole plaintiff or defendant. 317. Affidavit on motion to continue by successor in interest of deceased plaintiff. 318. Notice of motion for leave to continue action. 319. Order continuing action in name of representative or successor in interest of sole plaintiff. 320. Order continuing action in name of representative of sole defendant. 321. Order in case of death of one of several defendants jointly liable. 323. Order directing abatement of action alter death of plaintiff unless continued. 333. Order on death of public officer, receiver, trustee, etc. No. 316. Affidavit on Motion to Continue Action in Name of Rep- resentative of Deceased Party, sole Plaintiff or De- fendant. I Code Civ. Pro., §757.) [Title of cause.] ■ County, ss. : E. F., of — , being duly sworn, says, that the above entitled action was commenced on the day of , 18—; that the place of trial therein is the county of ; that said action was brought to [state cause of action]; that [state condition of action at death of party]; that on or about the day of , 18—, the plaintiff [or C. D., defendant] therein died intestate [or leaving a last will and testament], [*] and being at the time of his death a resident of the county of ; that said E. F. was [or that M. N. was], on the day of , 18—, duly appointed by the surrogate of the said county of , administrator of, etc., of said A. B. [or C. D.J, deceased, [or that said last will and testament was, by the surrogate of the said county of , on the ^ay of , 18—, duly admitted to probate, and said E. F. {or said M. N.) was duly appointed by said sur- rogate as sole executor thereof], and has duly qualified as 230 FoPvMS Relati:ng to Bucli administrator [or executor] and entered upon the dis- cbarge of his duties as such administrator [or executor]/ B. F. [Jurat as in form No. 46. J No. 317. Affldayitj on Motion, to Continue Action by Successor in Interest of Deceased Plaintiff. (Code Civ. Pro., §757.) [Title of cause.] As in form Ko. 316 to [*] and from thence as follows : ' As to the effect of civil deatli by Beutence of imprisonment for life in a S^ate prison, upon rigbts of action be- longing to the prisoner, see 1 "Wait's Pr , 155; Freeman v. Frank, 10 Abb , 370; 2 K. S,, 701, § 20; Davis v. Duf- fle, infra. Imprisonment for a term less than life abates any suit in whicli the prisoner is plaintiff, so that no further proceed- ing can be bad therein until the action is properly re%'ived. (O'Brien v. lla- gau, r Duer., C6-1; see, however, Bon- nell V. R , W. and O. R. R Co. [13 Hun, 218], in "which this case is limited to proceedings by the plaintiff.) But the conviction and sentence of a party defendant to the State prison for a term of years, does not affect an action pending. (Davis v. Duffic, 4 Abb. [N. S.], 478; 3 Keyes, 600; 1 Wait's Pr. , 155.) Nor, it seems, does even a life sentence relieve a person from liability to be sued. (Bonnell v. R., W. and O. R R. Co. [supra']; Davis V. Duffie [supra] ) Section 757, Code Civ. Pro., applies as well to a case where the action was originally brought by more than one plaintiff or defendant, and where all but one of the plaintiffs or defendants have died, as to one where the action was originally brought by a sole plain- tiff or against a sole defendant (Coit v. Campbell, 82 N. Y., 509; aff'g S. C, 20 Hun, 50), and applies where both a sole defendant and solo plaintiff are dead. (Greene v. Martine. 84 N. Y., 618; aff'g B. C, 21 Hun, 136. As to when motion will be denied by reason of delay in making tlw3 ap- plication iind that mere delay will not of itself defeat the application, see Evans v. Cleveland (72 N. Y , 48C; rev'gS. C , 12 Hun, 140), Coit v. Camp- bell (supra), Greene v. Martine (27 Hun, 246). That the rule is the same in equitable as in legal actions, see Greene v. J\iar- tine (21 Hun, 12li; aff'd 84 N. Y., 648). Sections'; 55 and 757, Code Civ. Pro., apply only to actions. A proceeding to foreclose a mechanic's lieu abates by the death of the defendant and cannot be revived against bis representatives. (Leavy v. Gardner, 63 N. Y , GU ) Further as to what catises of action survive or abate by death, see Price v. Price (75 N. Y., 244; aff'g S. C, 11 Hun, 299), Chase v. Lord (77 N. Y., 1; rev'g S. C, 16 Hun, S69), Cregin v. Brooklyn, etc., R. R. Co. (75 N. Y., 192; S. C, 88 id., 595), More v.Deyoe (23 Hun, 208), Holliday v. Parker (23 Hun, 71), Roberts v. Marsen (23 Hun, 4S6), Reynolds v. Mason (6 Week. Dig., 531 [Gen. T. Sup. Ct.]), Car- ley V. Hodges (19 Hun, 187), Best v. Vedder (58 How. Pr , 187), Holsman V, St. JolinC90N. Y.,461). Death, etc., or Tkansfek of Interest. 231 Leaving this deponent liis sole heir at law [or by which he gave and devised to this deponent the real estate which is the subject of this action]. E. F. [Jurat as in form No. 46. J No. 318. Notice of Motion for Leave to Continue Action. (Code Civ, Pro., § 707.) As in form No. 168 to [*], and from thence as follows : At the opening of the court, or as soon thereafter as counsel can be heard; that E F., as administrator of the goods, etc. [or as executor of the last will and testament], of A. B., deceased, be substituted, as plaintiff [or as defendant] in the above entitled action for said A. B., deceased, and that said action be continued by said E. F. as such administrator [or executor] as plaintiff [or defendant], and for such other and further relief as may be proper. Dated , 18—. I. J., Attorney for Plaintiff [or for E. F., Administrator {or Executor), of A. B., . deceased]. [OfBce address.'] To K. L., Attorney for Defendant [and to M. R.J Administrator {or Executor), ofC. D., deceased]. No. 819. Order Continuing Action in Name of Eepresentative, or Successor in Interest of Sole Plaintiff. (Code Civ. Pro., § 757.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the aflBdavit of E. F., dated the day of , 18—, by which it appears [*] that A. B., the plaintiff in the above entitled action, has died during the pendency of said action intestate [or leaving a ! See note 3 to form No. 123. 233 Forms Relating to last will and testament], and that said E. F. has been duly appointed the executor of said last will and testament [or administrator of, etc.], of said A. B. [or that said E. F. has succeeded to the interest of the said plaintiff in the prop- erty which is the subject of said action] ; and due notice of this motion having been given to the defendant's attorney : It is hereby ordered, on motion of I. J., for said E. P., and on reading [name opposing papers], and after hearing K. L., for said defendant [or no one appearing to oppose], that said action be continued by said E. F., as adminis- trator [or executor], as aforesaid, in place and stead of said A. B., deceased.' No. 820. Order Continuing Action in Name of Representative of Sole Defendant. (Code Civ. Pro., §757.) As in form No. 319 to [*], and from thence as follows : That C. D., the defendant in the above entitled action, has died during the pendency of said action and that M. N. has been duly apijoin ted as the administrator of, etc., of [or as executor of the last will and testament of] said C. D., and that due notice of this motion has been given to said M. N., and to K. L., attorney for said C. D. in this action, and on reading and iiling [name any opposing papers]; It is hereby ordered, on motion of I. J. for the plaintifip, and after hearing K. L. for said M. N. [or no one appearing to oppose], that said action be and the same is liereby con- tinued against said M. N. as such administrator [or execu- tor] as defendant in place and stead of said CD., deceased.' ' The provisions of section 757, Code record, and tliat the pleadings, pro- Civ. Pro., apply to a case TS'licre a sole ccedings and evidence already had and plaintiff and defendant are both dead, taken, stand as the pleadings, etc., in (Holsman v. St. John, 90 N. Y., 461; the cause so revived. So held in the 15 Week. Dig., 511; 27 A. L. J., 174; case of the substitution of an admin- Greene V. Marline, 84 N. Y., 049; aff'g istrator with the will annexed, in the S. C, 21 Ilun, 13G.) place of the deceased sole executor of Where the order of substitution is the will. (Wood v. Flynn, 30 Hun, made, the court may direct that the 444.) See, also, note 1 to form No. 316. name of the administrator, etc., be ' See note 1 to form No. 316, and substituted in the pleadings and m the ■ note 1 to form No. 319. Death, etc., or Transfer of Interest. 233 No. 321. Order ia Case of Death of One of Several Defendants Jointly Liable. (Code Civ. Pro., §758.) [At, etc., as in form No. 80.] [Title of cause.] It appearing by the affidavit of E. P., dated , 18 — , that this action was bronglat upon the joint ' [or joint and several] promissory note [or other contract, describing it], and that the defendant, C. D., has died since the com- mencement of the action, and that said E. F. has been appointed the administrator of, etc., of said C. D. [or the executor of the last will and testament of said C. D.], arid due notice of this motion having been given to the plaintiff's attorney, and on reading [name any opposing papers] : It is hereby ordered, that the said E. F., as administrator of, etc., of [or as executor of the last will and testament of] said C. D., be brought into this action as a defendant in place of said C. D., deceased [or that this action be severed so that it shall proceed separately against the said E. F. as such administrator and against the surviving defendant, T, R. (o?' defendants, naming them)]. No. 322. Order Directing Abatement of Action after Death of Plain- tiff unless Continued. (Code Civ. Pro., § 761 ) [At, etc., as in form No. 80. j [Title of cause.] It appearing by the affidavit of [the defendant], dated ' The provision of section 75? of Code forbidding tlie passage of any State of Civil Procedure, tliat the estate of a law impairing tlie obligation of con- person or party jointly liable upon con- tracts as under the law existing at the tract with others shall not be dis- date of the contract, the death of the charged by his death, do( s not apply guarantor terminated his liability, to a joint contract of guaranty made (Randall v. Sackett, 77 N. Y., 4S0; before its passage. To allow its ap- Richardson v. Draper, 23 Hun, 188; plication to such contract would be in aflf'd, ou another point, 87 N. Y., 337.) violation of the federal gonstitutioft 30 ' 234 FoEMS Relating to -, 18 — , that the plaintiff, in the above entitled action, has died during the pendency of said action, and that no application has been made for the continuance of the same, although such death occurred more than since; and due notice of this motion having been served on K. L., the administrator of, etc. [or executor of the will], of said plaintiff, and upon [name other parties served], and on read- ing and filing [name any opposing papers] : 'Now, on the application of I. J., counsel for said defend- ant, and after hearing E. F., for the said K. L., adminis- trator lo7- executor] of, etc., of said plaintiff, and [state other appearances] : It is hereby ordered, that said action abate , unless it is continued by the said administrator [or executor] within [six] months after the granting of this order.' No. 323. Order on Death of PuWic Officer, Receiver, Trustee, etc. (Code Civ. Pro., §766.) [At, etc., as in form Ko. 80. J [Title of cause.] On reading and filing the affidavit of I. J. , showing that the plaintiff, A. B., who sued as trustee of C. D. [or re- ceiver of the A. M. Co. {or name public officer)], has died during the pendency of the above entitled action, and that K. L. has been duly appointed his successor in said trust [or office ; or receivership] ; and due notice of this motion having been given to , and on reading and filing [name opposing papers] : Now, on motion of E. F., counsel for said K. L., and after hearing, etc. [or no one appearing to oppose] : It is hereby ordered, that said action be and is hereby continued in the name of said K. L. as such trustee [or re ceiver {or name public officer)].' ' The lime must be not less than six ' Sec Orser v. Glenville Woolen Co., months, nor more than one year, after 11 Abb. (N. S), 85; S. C., CO Barb., the granting of the order. (Code Civ. 371 ; Board of Excise v. Gaminghouse, Pro., § 761.) id., 338j S. C, aff'd, 45 N- Y-, 349.) Motions and Okdeks. 235 TITLE III. FORMS RELATING TO MOTIONS AND ORDERS GENERALLY. (Code Civ. Pro., Ch. 8, Tit. 5,.) No. 324. Notice of motion, general form. 335. Order to show cause, general form. No. 324. Notice of Motion, General Form. (Code Civ. Pro., §780.) [Title of cause.] Sir — Take notice, that upon the pleadings and proceed- ings in this action, and upon the affidavits and papers, with copies of which you are herewith served, a motion will be made at a Term of the Court, to be held at , on the day of , 18 — , at the opening of court, or as soon thereafter as counsel can be heard [or before Hon. A. O., judge or Justice of the ■ Court, at , on the day of , 18 — , at o'clock in the noon] [*], for an order [specifying relief to be applied for], or for such other and further relief as to the court [or to said judge] may seem just and proper [and for costs of this motion]. Dated , 18—. E. F., Attornei^or ■ . [Office address.'] To Gr. H., Esq., Attorney for . No. 325. Order to Show Cause, General Form. (Code Civ. Pro., §780.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] Upon the annexed affidavits and papers, let the defendant \0T plaintiff] show cause, at a Term of the Court, to be held at on the day of , 18 — 5 at^he opening of the court, or as soon thereafter as ' " ~ i^ee form No, \%%, note 3, 236 Forms Relating to counsel can be heard [or before Hon. A. O., judge (or Jus- tice) of the Court, at , on the day of , 18 — , at o'clock in the noon], why an order should not be granted [state relief to be ap- plied for] [with costs of motion]. And it is further ordered, that copies of this order, and of said affidavits and papers annexed hereto, be served upon I. J., the [attorney for the] , personally, or through the post-office, by depositing the said copies prop- erly enclosed in a post-paid wrapper, and directed to the said I. J., at , on or before the — day of , 18 — , in the post-office at . Dated , 18 — [when made by judge]. A. O., Judge \or Justice] of the Court {when made by judge). TITLE IV. FORMS RELATING. TO MISCELLANEOUS PRACTICE REGULA- TIONS. Aeticle First, forms relating to general regulations respecting TIME. (Code Civ. Pro., Ch. 8, Tit. 6, Art. 1.) No. 326. Order enlarging time -witliin which proceeding in action must be talicn. 327. Order after expiration of time for proceeding, allowing it to be taken. 338. Order allowing appeal to he taken by heir, devisee or personal repre- sentative in certain cases. No. 326. Order Enlarging Time within which Proceeding in Action Must he Taken. (Code Civ. Pro., §781.) [At, etc., as in form Ko. 80 (when made by court).] [Title of cause.] Upon the affidavit hereto annexed, it is hereby ordered that the plaintiff [or defendant] have d^ys addi- tional tiroQ within which to [state proceeding]. Such eu- Enlargement op Time. 237 largement to be without prejudice to any existing right of the plaintiff [or defendant], in said action [or state other terms on which order is granted].' Dated , 18— [when made by judge.] A. O., Judge [or Justice] of the Court {when made hy judge). No. 327. Order After Expiration of Time for Proceeding, Allowing it to be Taken. (CodeCiv. Pro., §783.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the affidavit of A. B., showing good cause why the plaintiff [or defendant] should be relieved from the consequencesof his omission to [state proceeding], within the time allowed by law therefor ; and it appearing that due notice of this motion has been served upon the attorney for the defendant [or plaintiff] ; and on reading and filing [name opposing papers] : Now, on motion of E. F., attorney for the plaintiff [or defendant], after hearing, etc. [or no one appearing to oppose] : It is hereby ordered, that said plaintiff [or defendant] be allowed to [state act] within days from the date of this order, upon the following terms [state terms upon which order is granted]. No. 828. Order Allowing Appeal to be Taken by Heir, Devisee or Personal Representative, in Certain Cases. (CodeCiv. Pro., §785.) [At, etc.,. as in form No. 80.] [Title of cause.] It appearing by the affidavit of E. F., dated , ' For contents of aflSdaMt upon which an extension of time to answer, see -the order is to be granted in the case of Rule 31 of General Rules of Practice. 238 Forms Relating to 18—, that the plaintiff [or defendant] has died on the day of ■ , 18—, and before the expiration of the time allowed by law to appeal from the judgment [or order] entered herein on the day of , 18— [state nature of judgment or order] [or to move to set aside the final judgment entered herein on the day of , 18—, for error in fact], and it appearing that due notice of this motion has been served upon the attorney for the defendant; and on reading and filing [name any opposing papers] : Now, on motion of I. J., of counsel for K. L., the heir [or devisee ; or executor of the will ; or administrator of, etc.], of said plaintiff [or defendant] : It is hereby ordered, after hearing, etc. [or no one appear- ing to oppose], that said K. L. [as such executor (or admin- istrator)] have leave to take an appeal from said judgment [or order], on or before the day of , 18—.' Article Second. rORMS RELATING TO SERVICE OP PAPERS. (Code Civ. Pro., Cli. 8, Tit. G, Art. 8.) No. 329. Affidavit of personal service of notice or other paper in action on party or attorney. 830. Affidavit of service by mail of paper in action on party or attorney. 331. Affidavit of service on attorney during his absence from Lis office. 333. Affidavit of service on party at liis residence. 333. Affidavit of service on county clerls for non-resident party. No. 329. Affidavit of Personal Service of Notice or Other Paper in au Action on Party or Attorney. (CodoCiv. Pro., §790.) [Title of cause.] County, ss.; A. B., of , being duly sworn, says, that on the . day of — — , 18 — , he served the annexed notice ' Not more than four months from Pro,, § 784; see LavcUe V. Skelly, 34 the death of ancestor, etc. (Code Civ. Hun, 042.) Seuvice or Papers. 239 [or other paper, describing it] on E. F., the plain tiiJ [or defendant, or plaintiff's {or defendant's) attorney] in the above entitled action, by delivering to him, personally, a copy thereof. A. B. [Jurat as in form No. 46. J No. 330. Affidavit of Service by Mail of a Paper in an Action upon Party or Attorney. (Code Civ.Pio., § 797, subd. 1.) [Title of cause.] County, ss.: A. B., of , being duly sworn, says, that on the ■day of , 18—, he served the annexed notice [or other paper, describing it] on K. L., the j)laintiff [or the defendant, or plaintiff's {or defendant's) attotney] in the above entitled action, by depositing a copy thereof, prop- erly enclosed in a post-j)aid wrapjjer, in the post-office at , the postoffice of I. J., the j)laintiff [or defendant {or of T. R., the plaintiff's or defendant's attorney)], di- rected to said K. L., at , the address within the State designated by said K. L. for the purpose of such ser- vice upon the preceding papers in said action ' [or the place of residence of said K. L. {or the place where said K. L. keejjs an office), according to the best information which could be obtained conveniently concerning the same, by (here state sources of information), said K. L. having made no designation upon the preceding papers in said action of an address within the State for the purpose of the service of papers upon him in said action].' A. B, [Jurat as in form No. 46.] • As to what constitutes good service, . After the death of a party service under section 797 of Code Civ. Pro., upon his attorney is a nullity. (Adams see Green v. Warren (14 Hun, 434), v. Nellis, -59 How. Pr , 385.) Asinari v. Volkening (2 Abb N. C-, ^ Insert this clause in bracltets, only 454), Qaffney v. Bigelow (2 Abb. N. C , where no designation has been made 811). of a place of service. 240 Forms Eelating to No. 331. Affidavit of Service upon Attorney, during his Absence from liis Office. (Code Civ. Pro., § 797, subd. 3.) [Title of cause.] County, ss. : A. B., of , being duly sworn, says, that on the day of , 18—, he served the annexed no- tice [or other paper, describing it], upon I. J., the attorney for the , in the above entitled action, ['■•] by leaving a copy of the same, during the absence of said I. J. from his office, with the clerk [or partner] of said I. J. therein [or with a person having charge of said office].' A. .B. [Jurat as in form No. 46.] Or, if there is no person in charge of his office, as above to [*], and from thence as follows : By leaving a copy of the same between the hours of six o'clock in the morning and nine o'clock in the evening, in a conspicuous place in the office of said I. J., there being no person in charge thereof. Or from [*], as follows : There being no person in charge of the office of said I. J., by depositing the same between six o' clock in the morning and nine o' clock in the evening, inclosed in a sealed wrapper, directed to said I. J., in his office letter-box [or the office of said I. J. not being open, so as to admit of leaving the said notice {pr other paper de- scribing it) therein, and, there being no office letter-box, by leaving a copy of the same between six o'clock in the morn- ing and nine o'clock in the evening, at the residence of said I. J., in the ■ of , in the State of New York, with a person of suitable age and discretion, to wit : of the age of about years]. Dated , 18—. A. B. [Jurat as in form No. 46.] ■ See note 1 to last form No. 330, * Service of Papers. 241 No. 332. AffldaYit of Service of Paper upon a Party at his Residence. (Code Civ. Pro., § 797, subd. 4.) [Title of cause.] ,--- -' A. B., of , being duly sworn, says, that on the day of , 18 — , he served the annexed notice \or other paper, describing it] on E. F., the plaintiff \or de- fendant] in the above entitled action, by leaving a copy of the same at the residence of the said E. F., at the of , in the [county of and] State of New- York, between six o'clock in the morning and nine o'clock in the evening, with a person of suitable age and discretion, to wit : of the age of at least yeai"s. A. B. [Jurat as in form No. 46. J No. 333. Alfidavit of Service on County Clerk for Non-Resident Party. (Code Civ. Pre, §800.) [Titlte of cause.] County, 55.; A. B., of , being duly sworn, says, that on the ■ day of , 18 — , he served the annexed notice [or other paper, describing it] upon C. D., the plaintiff \or defendant] in the above entitled action, by delivering a copy Of the same to and leaving said copy with the clerk of the county of \or the clerk of the Court],' said plaintiff \or defendant] having appeared in said action in person, [*] and being a non-resident of the State of New York \or from (*) as follows : And it not being possible to ascertain his place of residence with reasonable diligence, and he not having designated any address within the State upon the preceding papers in said action ; that the following ' The word clerk signifies tlie clerk in tlie Supreme Court it signifies the of the court Vifherein the nctioa or spe- clerk of the county wherein the action cial proceeding is brought. If the or special proceeding is triable. (Code action or special proceeding is brought Civ. Tro., § 3343, subd. 4.) 3X 242 Forms Relating tO * eiiorts and inquiries have been made to ascertain the place of residence of said C. D., to wit : (here state briefly efforts, etc., to find party)]. A. B. [Jurat as in form No. 46. J Article Third, forms relating to discovery of books and papers. (Code Civ. Pro., Cli. 8, Tit. 0, Art. 4.) No. 334. Petition for the discovery of booli, document or otlier paper. 335. Order to sliow cause wliy discovery or inspection sliould not be allowed. 336. Affidavit to procure order vacating order to show cause v?hy dis- covery should not be allowed. 337. Order vacating order to show cause why discovery should not be allowed. 333. Order on return of order to show cause why discovery should not bo allowed. 339. Certificate of inspection by referee. No. 331. Petition for the Discorei-y of Book, Document or Other Paper. (Code Civ. Pro., § 803.) [Title of canse.J To the Court [or to Hon. A. 0., Judge {or Justice) of the — Courf] : The petition of A. B. respectfully shows, that he is the plaintiii [or defendant] in the above entitled action, which has been brought for the purpose of [state object of the action]. That said action is now pending, and at issue, upon the complaint and answer therein [or state other condition of the action]. That it is necessary for your petitioner, in order to enable him to frame his complaint [or to reply to the answer of the defendant; or in order to enable him to answer the complaint of the plaintifp], to obtain a discovery or inspec- tion of a certain book [or paper ; or document], to wit [here DiscovEKY OF Books and Papees. 243 describe book, paper, etc., of which production is required], which said boolt [or pajper ; or document] relates to the merits of said action [or of the defense to said action], and is in the possession or under the control of the said defend- ant [or plaintiff].' That the information sought to be obtained from the dis- covery and inspection of said book [or paper ; or docu- ment] is as follows [state nature of information sought], and that said book [or j)aper ; or document] contains such in- formation [or that the facts and circumstances on which a discovery and inspection of said book {or paper, etc.) is claimed are as follows (stating same)].' That your petitioner has demanded of the defendant [or plaintiff; or of defendant's (or plaintiff'' s) attorney] leave to inspect said book [or paper ; or document], but he has been refused leave to make such insj)ection. Wherefore your petitioner prays, that this court may grant an order that the said defendant [or plaintiff] produce and discover the said book [or paper, etc.], or require said defendant [or plaintiff] to give your petitioner an inspection and copy of said book [or paper, etc.], or permission to take a copy thereof. And your petitioner will ever pray, etc. A. B. Bated ; 18—. [Verification as in form No. 52, adding as follows : That the books {or papers ; or documents], whereof discovery or inspection with copy is sought, are not in the possession, or under the control, of the plaintiff {or defendant).] ' The documents must be set fortli mation and belief. The absence of with sufHcient precision to enable the the party is not sufficient reason for court to determine for itself whether dispensing with this positive oalh un- they ought to be produced as contain- less the affidavit at least sets forth the ing material evidence. (Merguelle v. sources and grounds of such informa- Note Co., 7 Robt., 77; see, also, New tion and belief. (Walker v. TheGranit England Iron Co. v. N. Y., L. and I. Bank, 44 Barb., 39; Opdyke v. Marble, Co, 55 How. Pr., 351; Walker v. 18 Abb , 2GG; Walker v. Granite Bank, Granite Bank, 19 Abb., 111.) 19 id., Ill ; Strong v. Strong, 3 Robt., 2 The petition must state specially 075; S. C, 1 Abb. [N. S.], 233; Wilkie what information is wanted, and that v Moore, 17 IIow. Pr., 4S0; see note 2 the books and papers referred to con- to form No. 178, page 123.) tarn such entries, and this must be A party cannot compel the produc- stated positively and not upon infor- tion of books, papers and accounts 244 Forms Relating to No. 335. Order to show Cause wiiy Discovery or Inspection Should not be Allowed. (Code Civ. Pro., § 805.) [At, etc., as in form No. 80 (where made by the court).] [Title of cause.] On reading and filing the petition of A. B., the plaintiff [or defendant] in the above entitled action, dated 18 — , praying for a discovery or inspection of the book [paper or document] mentioned in said petition, which peti- tion is duly verified by the affidavit of said petitioner ; and on motion of E. F., for said petitioner : It is hereby ordered, that the said defendant [or plaintiff] allow such discovery and inspection, and other relief, as prayed for in said petition, or show cause at a Term of the Court, to be held at , on the day of , 18 — , why the prayer of said petitioner should not be granted : And it is further ordered, that a copy of this order, and of said petition, be served upon said defendant [or upon I. J., attorney for said defendant], on or before the day of , 18 — : And it is further ordered, that all proceedings on the part unless it appears that sucli production ersville, 20 Hun, 517, and cases there is indispensably necessary and not a cited; Duff v. Ilutcbinson, 5 Month, simply IDrccautionary measure. Such L. Bui., 4.) necessity docs not exist when the party Rules 14 to 17, both inclusive, of the applying may have in his possession, Supreme Court regulate the practice or under his control the means of ac- upon these applications, quiring all the information which lie For a very full reference to the de- seeks to obtain. (Car:pbell v. Iloge, cisions and authorities aipon this prac- 2 Hun, 308.) lice, see notes to Hun's Court Rules, It is not a matter of right to inspect ed. 1884, p. 00 (Rule 14). books and papers, and the privilege is It is in the discretion of the court not given, except iu extreme cases, below, whether permission shall be where the refusal may involve the loss gi-anted difeudant to inspect and copy of a claim or defense. (Harbison v. plaintiff's books, and the exercise of Von Volkenburgh, 5 Hun, 454.) this discretion is not reviewable by the An application before pleading will Court of Appeals. (Clyde v. Rogers, be denied unless shown to be neces- 87 N. Y., CZ'j, dismissing appeal from sary for the purpose of pleading. S, C, 24 Hun, 145; see, also, Clyde v. (Brownell v. National Bank of Glov- Rogers, 94 N. Y., 541.) Discovery of Books and Papers. 245 of said defendant [or plaintiff] be stayed until the hearing of said application.' Date [of judge's order], A. 0., Judge [or Justice] oftlie Court {when made hy judge). No. 336. Affltlarit to Procure Order, Vacating Order to show Cause. (Code Civ. Pro., §806) [Title of cause.] County, ss.: C. D., of \ being duly sworn, says, that he is [description of affiant] : That on the day of , 18 — , an order to show cause was made in the above entitled action, and has ,been served upon the [defendant], of which a copy is hereto annexed [or recite substance of order]. That said order ought not to have been granted tor the following reasons [state reasons]. [Or that said order has already been complied with, the said plaintiff having been heretofore allowed to inspect the said book {or paper, etc.) (state facts in regard to inspec- tion).] [Or that the said (defendant) has not the possession or control of the said book {or paper, etc.), directed by said order to be produced or inspected (state any facts relating to possession tending to establish this).] That, etc. [substantially as in form No 209 from (f).] C. D. [Jurat as in form No. 46.] ' This clause, as to stay, is to be to orders to show cause, see note 1, inserted -wlien necessary or proper. ■ page 112, to form No. 162, and note 3, (Code Civ. Pro , § 805.) page 146, to form No. 213. gee note 3 to form No. 334, and aa 246 Forms Relating to No. 337. Order Tacating Order to Show Cause. (Code Civ. Pro., §80.6.) [At, etc., as in form No. 80 (when made by the court).] [Title of cause.] On reading and filing the affidavit of C. D., dated — 18—, showing that [reciting contents of affidavit] : It is hereby ordered, that the order directing [the defend- ant], to allow inspection of the [describing book (or paper, etc.)], or, in default thereof, to show cause, etc., made • , 18 — , be and the same is hereby vacated.' A. O., Judge {or Justice] of the Court {when made by judge). No. 338. Order on Return of Order to Show Cause. (Code Civ. Pro., §807.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the petition of the plaintiff [or de- fendant] and order to show cause, dated , 18—, why a discovery or inspection of the [describing book, etc.] should not be allowed to said petitioner by the defendant [or j)laintiff], in whose possession or control said book, etc., is ; and on reading [name other x^apers read] ; and after hearing E. F., for the said petitioner, and I. H. for said de- fendant [or plaintiff] : It is hereby ordered, that an inspection by said petitioner [and his attorney] of said book, etc., be and the same is hereby allowed in the following manner [stating manner of inspection] : ^ said inspection to take place within days from the date of this order ; and that [all other] pro- ' The order may be made by the ' See rule 10 of Gen. llulcs of Prac. judge who granted it, or by the court. (Code Civ, Pro., §806) DiscovEKY OF Books and Papers. 2-17 ceedings in this action be stayed, until this order shall have been complied with or vacated.' [And that K. L. be and he is hereby appointed a referee, to direct and superintend such inspection.] And that the sum of ten dollars be paid by said [defend- ant] to said [plaintiff] as the costs of this motion [and that the sum of (twenty)' dollars be added thereto, and paid by said defendant, for the fees of the said referee].' No. 339. Certificate of Inspection by Eeferee. (Code Civ. Pro., §807.) [Title of cause.] I, J. L., referee appointed by order of the court [or of Hon. A. O., judge of this court], dated ■ , 18—, do hereby certify, that C. D., the [defendant] in the above entitled action, has complied with the terms of the said order by allowing an inspection to be made by the [plaintiff] of the [describing book or paper, etc.], in the manner as prescribed by the said order. Dated , 18—. J. L., Referee. Article Fourth. FORMS RELATING TO BONDS AND UNDERTAKINGS GENERALLY. (Code Civ. Pro., Ch. 8, Tit. 6, Art. 5 ) No 340. Bond in action or legal proceeding, general form. 341. Undertaking in action or legal proceeding, general form. 343. Order granting leave to prosecute l)ond. ' The court or judge may direct that ^ The amount is not to exceed twenty the order shall operate as a stay of all dollars. other proceedings in the cause, either ^ As to proceedings in case of failure in whole or in part, until such order to obey' order, direcling discovery or shall have heen complied with or va- inspection, see Code Civ. Pro., § 806, cated. (Rule 17, Gen. Rules of Prac) 18 FOKMS Relating tO No. 340. Bond in Action or Legal Proceeding, General Form. (Code Civ, Pro., §812.) Know all men hy these presents : That we, A. B., of , merchant, C. D., of , banker [and E. F., of , merchant], are held and firmly bound unto G. H. [or to the people of the State of New York], in the sum of dollars, to be paid to the said G H. [or to the said people], or to his [or their] certain attorney, exe- cutor, administrators or assigns [or successors and assigns]: For which payment, well and truly to be made, we bind ourselves and our heirs, executors or administrators, jointly and severally, firmly by these presents. Sealed this • day of , in the year of our Lord one thousand eight hundred and . The condition of this obligation is such, [*] that if the above bounden, A. B. [his heirs, executors or administra- tors], shall and do well and truly [state condition of bond], then the preceding obligation to be void, otherwise to re- main in full force and virtue. • Sealed and delivered in presence of State of New York, A. B. [L. S.] CD. [L. S.] E. F. [L. S.] County, f **• On this day of , 18 — , personally came • before me, A. B. [C. D. and E. F.], to me known to be the individuals described in and who executed the foregoing instrument and to me [severally] acknowledged that [they] executed the same.' I. J. [official title.] State of New York, | County, \ **••■ C. D. [and E. F.], being [severally] duly sworn [each for ' To be acknowleclgcd or proved and party, -without a surety, must be ac- cortifled in like manner as a deed to be companied by bis afiSdavit as above, recorded (Code Civ. Pro., § 810.) (Id , § 813.) A bond or undertaking given by a A party need not join with bis sure. Bonds and Undertakings. 249 himself], deposes and says, that he is [one of] the sureties [or the surety] named in the foregoing bond ; that he is a resident of and a householder [or freeholder] within the State, and is worth the sum of dollars [amount of penalty of bond, or twice the sum specified in undertaking], over all the debts and liabilities which he owes, or has in- curred, and exclusive of property exempt by law from levy and sale under execution. C. D. [E. F.] Sworn to and subscribed before me, this — -- — ^ day of , 18 — . I hereby approve of the foregoing bond [or undertaking], as to its form and manner of execution and as to the sure- ties therein mentioned. Dated , 18—. A. O., Judge [or Justice] of Cou7-t [or , County Judge]. No. 341. Undertaking in Action or Legal Proceeding, General Form. (Code Civ. Pro., § 813.) [Title of cause.] Whereas [reciting facts] : Now, therefore, we, A. B., of [state occupation], and C. D., of [state occupation], do hereby, jointly and severally undertake [to and with E. F.], pursuant to the statute ; that [state terms of undertaking]. A. B. CD. In presence of . [Acknowledgment, justification and approval as in form No. 340.'] ties, unless tlie provision requires him An attorney or counsellor is prohib- to execute the same, and the execution hibited, by rule 5 of Gen. Kules of thereof by one surety is sufficient, Prac., from being surety on any bond although the word "sureties" is used, or undertaking given in legal procced- unless the provision requires two or ings. more sureties. (Id., §811.) ' See note 1 to form Nx). 340. See, also, note 1 to form No, 341. An undertaking offered by defend- 250 FoEMS Relating to No. 342. Order Granting Leave to Prosecute Bond or Undertaking Executed to People or Public Officer for the Benefit of Party or Person Interested. (Code Civ. Pro., § 814.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] On reading and filing the affidavit of A. B., dated , 18 — , showing that a bond [or undertaking], dated , 18 — , was given by the defendant, C. D., in the above enti- tled action, and executed by [said C. D. witli] E. F. and G. H. as sureties, to the people of the State of New York {or to public officer, stating official title] for the benefit of said A. B. ; that there has been a breach of the condition of said bond \or of tha terms of said undertaking], and due notice of this motion having been given to [naming persons interested] and on reading [specify opposing papers] • ' Now, after hearing I. J. of counsel for said A. B. and K. L. for said C. D. \or no one appearing to oppose]. ant, acknowledged before his attorney, and the affidavit of the sureties in ■which is sworn to before such attor- ney, cannot be received; e. g., to dis- charge an attachment. (Bliss v. JIol- ter, 8 Abb. N. C, 241 ; S, C , 58 How. Pr., 113 [Sp. T , Sup. Ct.],. It appears from section 811, Code Civ. Pro., that the persons described in that act as sureties in an undertak- ing, are persons other than the party in whose behalf the undertaking is given. {Morss v. Hasbrouck, 10 Abb. N. C, 407; S. C, G3 How. Pr,, 84 [Sup. Ct , Sp. T.] ; see S. C. on ap- peal to Gen. T., 15 W. D., 308 ) A surety who executed an undertak- ing, on appeal under section 33j of Code of Procedure, which required two sureties, upon condition that an- other shfud join with him in it, was held to be icleased from all liability thereunder, such condition not having been complied with. (Grimwood v. Wilson, 31 Hud, 315; following, Peo- ple V Bostwick, 33 N. Y.443- and distinguishing, Eussell v. Freer, 50 N. Y,, 07.) " If in the form in which it was filed it would have created a stay, then the surety would probably be precluded !)}• that circumstance from denymghis liability upon it. But it did not, as there is but one surety it did not stay or in any form prevent the plaintiff from collecting the judgment (Code Pro , §§ 348, 335)." Per Daniels, J , (id.,) concurring, for this reason, with the majority of the court. See, further, notes to various forms of undertakings, as to sufficiency of undertakings genei'ally. And see as to bonds executed by trust companies as sureties, under ch. 480 of Laws of 1881, Matter of Filer (11 Abb. N. C, 107), Ryanv. Cochrane (U Abb. N. C , 111). Colegate V. Penn- sylvania Co. (11 Abb. N. C, 111; id., 110, note) ' Sec note 4, p. 146, to form No. 183, Consolidation op Actions. «2j1 Ifc is hereby ordered and directed [or I do hereby order and direct], that said A. B. have leave to prosecute the said bond [or undertaking] in his own name. Date [of Judge's order]. A. 0., Judge [or Justice] of the Court (when made hy judge). Article Fifth. forms relating to consolidating causes, interpleader, dismissal of complaint for neglect to serve sum- MONS OR TO PROCEED, Etc. (Code Civ. Pro., Ch. 8, Tit. C, Art. 6.) No. 343. Affidavit to move for consolidation of actions. 344. Order consolidating actions. 345. Notice by plaintiff of con,solidation of actions. 346. Affidavit to obtain order of substitution of claimant as defendant. 347. Notice of motion to substitute claimant for defendant. 348. Order substituting claimant, and discbargiug defendant. 349. Order dismissing complaint for neglect to serve summons upon some of tbe defendants. 350. Affidavit on motion to dismiss complaint for failure to proceed in action. 351. Order and from thence as follows : That the above entitled action pending in the : — Court, be and is hereby removed to the Supreme Court, and that the above entitled actions be and they hereby are consolidated into one action, etc. (as above).] No. 345. Notice by Plaintiff of Consolidation of Actions. (Code Civ. Pro., § 819.) [Titles of causes.] Sir— You will please take notice, that the above entitled actions have been consolidated by the plaintiff into one ac- tion, and are hereafter to be considered as one action for all purposes. Dated , 18—. E. F., Attorney for Plaintiff. [Office address.'] To I. J., Defendant s Attorney. ■ See, as to consolidation of actions, Lockwood V. Fox, 8 Daly, 127; Bech V. Ruggles, Abb. N. C, 69: Camp- bell, etc., Co V L3'ddy, 1 Civ. Pro. R., 364; Tliird Ave. R. R. Co. v. Mayor, etc., of New York, 51 N. Y., 150; Kipp V. Delamater, 58 How. Pr., 188; Eleventh Ward Savings Bank v. Hay, 55 id., 438; S. C, 8 Daly, 328; afl'd, 73 N. Y , 609; Mayor v. Coffin, 90 N. Y , 313; Solomon v. Bclden, 12 Abb. N. C, 58; McKay v. Reed, id., 58, note; S. C , 1 City ( t , 464. The plaintiff will be ordered to pay costs of the motion when both the ac- tions were commenced at the same time, or imder circumstances which evince a disposition to make the pro- ceedings burdensome to the defendant. (Bank of U. S. v. Strong, 9 Wend., 451.) In other cases, if the plaintiff, •without reasonable grounds of objcc- jectioD, refuse, on request, to consoli- date, he will be required to pay the costs of the motion. .(Dunning v. B'k of Aiiburn, 19 AVend., 23.) Tlie motion, under this section, may be made as well by the plaintiff as by the defendant. (Briggs v. Gaunt, 4 Duer, 664.) Where separate actions are com- menced against two or more joint and several debtors, in the same court and for the same cause of action, the plain- tiff may in any stage of the jirocecd- ings consolidate them into one action. (Code Civ. Pro., §819.) It must appear not only that the causes of action are such as may be joined in one declaration, but also that no defense is intended in either of the suits, or that the questions which will arise in them are substantially the same. (Wilkinson v. Johnson, 4 Hill, 46.) The nature of the defense should be stated, that the court may judge 254 FoEMS Relating t\. No. 346. Affidavit to Obtain Order of Substitution of Claimant as [Title of cause.] County, ss. : Defendant. (Code Civ. Pro., § 830.) A. B., of , being duly sworn, says, that he is the defendant in the above entitled action ; that said action has been brought, and is now pending in this court, to re- cover [stating object of action] ; that the complaint therein was served upon him on the day of , 1 8 — , and that deponent has not yet answered the said complaint; And de^oonent further shows, that C. D., of , who is not a party to said action, makes a demand against him for the same debt [or property] sought to be recovered in this action without collusion with deponent , that the nature of the respective claims to said debt [or propertj^J, so far as known to this deponent, are as follows : [here set forth tlie particulars] ; And deponent further says, that he has no interest in the question to whom said debt [or property] belongs, and is ignorant, except as is above set forth, of the grounds or merits of the respective claims made to said debt [or prop- erty], and does not know to which of said claimants he may safely pay said debt [or deliver said property], and offers to pay into court the amount of said debt [or to deliver the possession of said property, or its value, to such person as the court may direct].' [Jurat as in form No. 46. J A. B ■whether the questions to be tried iu penses of a formal action. (Sherman tlic several suits are identical. (Dunn v. Partridge, 11 How. Pr., 154, S. C, V. Mason, 7 Hill, 154.) 4 Duer , 640; De Laucy v. Murphy, 34 2 See nolo 3 to form No. 123. Ilun, 503.) ' The provisions of the Code, like It must appear upon the application those of the English Statutes (1st and that there is nothing else to be litigated, 3d Will. IV, c. 5S), were not designed except the right of the different claim- to introduce new cases of interpleader, ants to the thing in question. (Fletcher but merely to enable defendants, in v. The Troy Savings Bank, 14 How , cases where an interpleader is proper, 383.) to relieve themselves by a summary A party claiming adversely to a de- proceedmg from the delays and ex- positor can be interpleaded by the Substituting Claimant foe Defendant. §53 No. 347. Notice of Motion to Substitute Claimant for Defendant. (Code Civ. Pro., §820) [Title of cause.] Sill — Take notice, that upon the complaint in this action, and upon the affidavit, a copy of which is herewith served upon you, a motion will be made at, etc., for an order sub- stituting C. D., of , in place of A. B., as defendant in the above entitled action, and discharging the said A. B. from liability to either said A. B. or C. D. on account -of the debt [or property], for the recovery of which said action is brought, on his paying into court the amount of said debt [or delivering the possession of the said property, or its value, to such person as the court directs]. Yours, etc., E. F., Attorney for Defendant: [Office address."] To I. J., Esq., Plaintiff's Attorney, and to C. D. bank in a suit against it by tlio deposi- tor, or bis assignee, for tlie deposit. ^German E.xchange Banli v. Commis- sioners of Excise, G Abb. N. C, 304; distinguisbing Lund v. Seaman's f-"av- ings Baulv, 20 How., 4G1 ; 37 Barb., 132; Marvin v. Elwood, 11 Paige, 365. Tbe order will not be granted where tbe defendant contests bis liability. (Brcnnan v. Liverpool, L. and G. Ins. Co., 13 Hun, C2; Baltimore and Ohio K. R. Co. V. Arthur, DO N. Y., 334.) Nor where he has a good defense as to one of the claimants. (Conner v. Weber, 13 Ilun, 5S0 ) The application is addressed to the discretion of the court, and ought not to be granted where it appears on the face of the papers that the claim of one by the claimants is clearly un- founded. (Pustet V. Flannelly, CO How. Pr., 07 [^f. Y. Super. Ct., Sp. T.]; Code Civ Pro., §820.) Section 830 of Code of Civ. Pro , applies only to proceedings by motion and by a defendant. (Baltimore and Ohio R. R. Co. V. Arthur (nupra). A city cannot determine the question of the right of salary of a claimant to a municipal ofBce, in an action in the nature of interpleader. The right to the salary depends upon the right to the ofDee, and the right to the public oflfico can only be tried in an action by the people. (City of Buffalo v. Mac- kay, 15 .Hun, 201.) See, also, Johnston v. Lewis, 4 Abb. Pr. [N. S.], i:0; Morgan v. Fillmore, 18 Abb. Pr., 217; Dom v. Fox, Gl N. Y., !:C4; rcv'gS. C, OLans., 102; Buf- falo Grape and Sugar Co. v. Alberger, 23 Hun, 352; Do Lancy v. Murphj', 24 id., 508; Barnes v. Mayor, 37 id., 330; Dows V. Kidder, 84 N. Y., 121; Johnston V. Stimmel, 89id., 117; aff'g S. C , 20 Ilun, 435; Bruggemann v. Bank of the JSIetropolis, 1 City Ct., 80; Caulkins V. Bolton, 31 Ilun, 458 ; Suprs. of Saratoga Co. v. Deyoc, 77 N, Y,, 219; rev'g S. c", 15 Hun, 536; Fowler 256 FOEMS Relating to No. 34S. Order Sulbstitutiiig Claimant, and Discharging Defendant. (Code Civ. Pro., §820.) [Title of cause.] On reading and filing the complaint in this action,.together with the affidavit of A. B., dated , 18—, and [name other papers read], and on motion of E. F., for the defend- ant [or plaintiff], after hearing G. H., for CD.: It is ordered, [*] that on payment by said defendant of the amount claimed by the summons in this action, princi- pal and interest, less ten dollars costs of this motion, within days after the entry of this order to the county clerk [or county treasurer], of county, said C. D. be substituted as defendant in said action in the place of said defendant [naming him], and that the said A. B. be thereupon discharged from liability to either the plaintiff above naiued or said C. D., on account of the debt for which this action is brought : And it is further ordered, that if the said C. D. does not appear to defend this action within twenty days after ser- vice upon him of a copy of this order, together with a copy of the complaint in this action, the plaintiff may apply, ex parte, for an order that the money so deposited be paid over to him. [Or as above to (*), and from thence as follows : That the defendant deliver the property mentioned in the complaint to M. N., Esq., who is hereby appointed receiver thereof; tliat C. D., of , be substituted as defendant, in this action in the place of the above defendant, A. B., who shall, upon the delivery of such property to said receiver, be discharged from all liability therefor, either to the plain- tiff or to the said C. D.] That the said receiver hold the said property, subject to the further direction of this court. That within • days after entry [or notice] of this order, the plaintiff serve a summons and a copy of his com- plaint, amended as he may see fit [with a copy of this order], V. Eutterly, 73 N. Y., 08; Weber v, "> Sec note 3 to form No. 133. Bank for Savings, 1 City Ct., 70.) Substituting Claimant fok Defendant. 257 upon the said C. D., and that the said C. D. answer such complaint within days thereafter. That if the plaintiff fails to serve his summons and com- plaint, and this order, as above directed, the defendant, A. B., may apply to the court for an order dismissing the action,, and directing that the said property be delivered by the receiver to the said defendant, A. B. ; and if the said C. D. shall neglect to answer such complaint, if served as herein directed, the plaintiff may apply, upon notice, for an order that said property be delivered by the receiver to the plaintiff. That dollars costs be allowed to the said C. D., to be deducted by him out of the fund [or to be paid by the plaintiff and allowed to him in case of final recovery of j udgmen t] . ' No. 349. Order Dismissing the Complaint for Neglect to Serve Sum- mons upon Some of the Defendants. (Code Giv. Pro., §821.) [At, etc., as in form No. 80. J [Title of cause.] The summons in the above entitled action having been served upon the defendant, C. D., more than — since, and said C. J), having appeared therein, and no service of said summons having been made upon the defendants, E. F. and G. H., and it appearing that a complete determination of the controversy in this action cannot be had without the presence of said last named defendants, and due notice of this motion having been given to M. N., attorney for the plaintiff, and on reading [specify papers read on motion] : ' Now, on motion of I. J., for said C. D., and after hearing M. N. for the plaintiff [or no one appearing to oppose] : It is hereby ordered, that the complaint herein be dis- missed as against the said defendant, C. D., and that said defendant, C. D., have judgment herein against the said plaintiff, dismissing the complaint, with costs, and that ' Substantially from 3 Barb Ch. Pr. See note 1 to form No. 340. (2d ed.), 695. ^ See note 4, p. 13G, to Form No 183. 33 258 FouMS Relating to dollars costs of this motion be paid by said plain tiff to said defendant, C. D. No. 350. Affitlayit on Motion to Dismiss Complaint for Failure to Proceed in the Cause. (Code Civ. Pro., § 828.) [Title of cause. J County, 55..' A. B., of , being duly sworn, says, that he is the defendant's attorney in the above entitled action ; that issue was joined therein on the day of , 18 — , that the place of trial therein is the county of ; that a circuit court [or special term] of the Court was held at , in said county, on the day of , 18 — , at which the said action might have been tried, and at which younger issues were tried in their regu- lar order on the calendar, and that said action was not noticed for trial [or brought to trial] by the plaintiff ' [or state other facts showing neglect to proceed in the action on the part of the plaintiff]. [Jurat as in form 'No. 46.] A. B. JSTo: 351. Order Dismissing Complaint for Failure to Proceed in Action. (Code Civ. Pro., § 833.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the affidavit of C. D., dated 18 — , by which it appears that the plaintiff has unreasona- bly neglected to proceed in the above entitled action agains: the defendant [or the defendants, E. F. and G H.], ana it > See rule 30 of Gen. Rules of Prac Y. Super Ct., 438; Osborne v. Sellick, tice, and .see Ellswortli v. Brown, 10 5 Week. Dig., 589. Hun, 1, Fisher v Dusenbury, 47 N DlSMISSIKO COMPLAIJNTT FOE NeGLEOT TO PbOOEED. 2'69 appearing that due service of notice of this motion has been served upon M. N., the attorney for the plaintiff, and on reading [specify other papers read]: Now, on motion of A. G., of counsel for the defendant [or for the defendants, E.. F. and G. H.J, and after hearing M. N., for the plaintiff [or no one appearing to oppose] : It is hereby ordered, that the complaint in this action be dismissed [as against the defendants, E. F. and G. H.], and that said defendant [or the said defendants, E. F. and G. H J have judgment against the plaintiff herein for costs of this action [unless the plaintiff shall proceed herein (against said defendants, E. F. and G. H.) within days after the service upon his attorney of a copy of this order]: And it is further ordered, that the plaintiff pay to the defendant [or to said defendants, E. F. and G. H.] dollars costs of this motion.' No. 352. Notice of Motion for Trial -of Issues by Jury. (Code Civ. Pro., §§ 823, 970.) As in form No. 168 to [*], and from thence as .follows : At the opening of court, or as soon thereafter as counsel can be heard, that the issues [or questions of fact involved]' ' in the above entitled action, as said issues [or questions] are stated in schedule A, hereto annexed, be submitted to a jury for trial, and for such other or further relief as to the court may seem proper. Yours, etc., A. B., Plaintiff^ s [or Defendanf s] Attorney. [Office address.'] To F. R., Attorney for Defendant. S. P. [and K. L.], Attorney for Defendant, I. J. ' Under sections 531 and 822 of Code Where a referee refused to proceed Civ. Pro., tlie court Las power to strilvc f urtlicr until Lis fees were paid, a de- out the complaint in an action, as a lay on tLe part of tLe plaintiff to take penalty for disobedience of an order action for two years tliereaftcr is suf- requiring plaintiff to serve ft bill of ficient cause for a dismissal of the corn- particulars, which amounts to an un- plaint under section 823 of Code Civ, reasonable neglect to proceed in the Pro. (Ellsworth v. Brown, 1(> Hun, 1.) action within the meaning of § 823. See, also, note 3 to form No. 350, (Gross V. Clark, 87 N. Y., 373.) 260 FoKMS Relating to Schedule A. [Annexed to above notice.J [Title of cause.] The following issues [or questions of fact] are proposed to be submitted to a jury for trial in the above entitled action, as mentioned in the foregoing notice, to wit : First. Whether, elc. Second. Whether, etc. A. B., Plaintiff'' s [or Defendant s\ Attorney. [OfRce address.'] No. 353. Order for Trial of Issues by Jury. (Codo Civ. Pro., g§ 8:23, 970.) [At, etc., as inform No. 80.] [Title of cause.] On reading and filing the affidavit of T. R., attorney for the plaintiff \or defendant] in the above entitled action, showing that this action is at issue upon the complaint and answer therein, and on reading and filing notice of motion on the part of the plaintiff \or defendant] herein for an issue or issues in this cause to be tried by a jury with proof of due service of said affidavit and notice of motion on F. E., ' See rule 81 ot Gen. Rules of Prac- An action for divorce, in which issue tice. had been joined, was noticed for trial The Code has not changed the former and put upon the calendar of the practice in respect to feigned issues, special term. Held, that issues for a except so far as to substitute a simple trial by jury might be then framed by interrogatory for the legal fiction of a the court, and an order made, putting wager. (Briukley v. Brinkley, 2 T. & tlie cause on the day calendar of the C, 501; see S. C, on appeal, 5GN. Y., jury trial term for a day specified, 192; Vermilyeav. Palmer, 52 id., 471.) without any further notice. (Compton As to practice upon the hearing of v. Compton, 40 N. Y. Super. Ct , 579.) issues settled in an equity action, see In cases under section 970, the flnd- Birdsall v. Patterson (51 N. Y., 43). mg of the jury upon each question is The motion is addressed to the dis- conclusive in the action, unless the cretiou of the court. (Colman v. verdict is set aside or a new trial is Dixon, 50 N. Y., 57:2.) granted. As to practice upon feigned issues, - See note 3 to form No. 13^, see Suell v. Loucks (13 Barb., 385), Order for Trial of Issues by Jury. 261 attorney for the defendant, S. P. [or plaintiff], and on R. L., attorney for the defendant, I. J., and on reading [specify other papers read], and after hearing, etc. [or no one ap- pearing to oppose] : It is hereby ordered, [*] that the following issues of fact arising [upon the pleadings] in this action be tried by a jury at the circuit court, in and for the county of , to wit : Mrst. Whether, etc. [stating question to be tried, e. g.], whether the said defendant, S. P., executed the bond and mortgage mentioned in the complaint in this action. Second. Whether, etc. [stating question to be tried, e. g.], whether the plaintiff executed the release of the said bond and mortgage, as stated in the answer. And that the plaintiff hold the affirmative upon the first question, and the defendant the aflirmative upon the second question ; that the issue between the plaintiff and the de- fendant, S. J., be [stating issue], e. g., whether the release of the farm of the said defendant from the lien of the mort- gage mentioned in the complaint of the plaintiff was ob- tained by the defendant, S. J., fraudulently, as alleged in the complaint? And that the plaintiff be considered as holding the affirmative of the last mentioned issue upon the trial thereof.' No. 354. Order Referring to Referee the Settlement of the Issues. (Code Civ. Pro., g§ 833, 970.) As in form No. 353 to [*], and from thence as follows : That the issues of fact arising upon the pleading's in this suit between the respective parties [or the questions of fact not in issue upon the pleadings involved in the above enti- tled action], be settled pursuant to statute and to rule 31 of the General Rules of Practice, to the end that testimony may be taken thereon. And it is further ordered, that for the purpose of settling 1 See note 1 to form No. 852. 262 Forms Uelating to the said issues [or questions], it be referred to , as referee, to ascertain and settle the said issues [or questions], in the form of interrogatories, to be tried by a jury, wherein shall be stated the several questions of fact to be passed iiI)on, the names of the parties to each issue, and which party is to be considered as holding the aflSirmative on each question to be tried. And it is further ordered, that said referee do summon before him, on such reference, all the parties entitled to take testimony in the cause [and that npon the coming in and confirmation of his report, the testimony to be taken in the cause shall be directed and be confined to the issues thus settled].' Ko. 355. Report of Referee Settling Issues and Questions to be Tried. (Code Civ. Pro., §§ 823, 970.) [Title of cause.] To tlie Gourt : In pursuance of an order of this court, made in the above entitled action on the day of , 18 — , by which it was referred to me to settle the issues of fact aris- ing upon the pleadings in this action between the respective parties [or the questions of fact not in issue upon the plead- ings involved in the -above entitled action], pursuant to statute and to rule 31 of the General Rules of Practice, to the end that testimony may be taken thereon : I, the subscriber, referee as aforesaid, do respectfully cer- tify and report that, having been charged by the [plain- tiff's] attorney with the execution of said order of reference, I have been attended by the attorneys for the respective parties [and have examined the pleadings] in this cause, and have settled the issues to be tried, upon the following ' This form is taken from the de- in brackets should be usually omitted cl!:!on of Edmonds, J., in Miller v. under the present practice. Wilson, 1 Barb., 223. The last clause Order por Trial of Issues by Jury. 263 interrogatories, to be answered by tlie verdict of the Jury upon the trial thereof, viz. [here insert the interrogatories] : And I further report that, upon the trial thereof, the plaintiff is to be considered as holding the affirmative of the first question, and the defendant the negative ; and the defendant the affirmative of the second question, and the complainant the negative. All of which is respectfully submitted. Dated , 18—. E. F., Referee. 264 Forms Relating to CHAPTER IX. FORMS RELATING TO EVIDENCE. « TITLE I. Forms relating lo compelling the attendance and testimony of a witness. TITLE II. Forms relating to depositions. TITLE III. Forms relating to documentary evidence. TITLE I. FORMS RELATING TO COMPELLING THE ATTENDANCE AND TESTIMONY OF A WITNESS. (Code Civ. Pro., Ch. 9, Tit. 2.) No. 356. Atfldavit of service of subpoena. 357. Subpoena to witness. 353. Subpoena ticket. 359. Subpoena and ticket with duces ieeUm clause. 300. Atfidavit to procure warrant to apprehend defaulting witness. 3G1. Warrant for apprehension of witness. 362. Warrant for commitment of witness for failure to testify in cases arising under section 854, Code Civ. Pro. 363. Order discharging witness, or other person, from improper arrest. 364. Affidavit to procure discharge of witness from arrest. 365. Affidavit to be made by witness on request of sheriff. No. 356. Affidavit of Service of Subpoena. (Code Civ. Pro., § 852.) County, ss. : A. B., of — -, being duly sworn, says, that on the day of ' — , 18 — , he personally served the annexed subpoena upon C. D., to whom it is directed, at the i)lace of residence of said C. D., in the of —— — -, in the county of ■ \or at the of — — - — :, in the county of ], by exhibiting to said C. D. the said original subpoena, and delivering to him a copy thereof \or a ticket containing the substance thereof], and paying \or tendering to] him his fees allowed by law Compelling Attendance, etc., of Witnesses. 265 for traveling from his [said] place of residence [or from the place of service where he was temporarily residing '] to and returning from the phice where he is required to attend, and for one day's attendance pursuant to said subpoena, namely : eight cents, for each mile going to the place of at- tendance, and fifty cents for said attendance, in all amount- ing to the sum of dollars." A. B. [Jurat as in form No. 46.J No. 357. Sulbpoeiia for Witness. (Code Civ. Pro , §§ 7, 852.) The People of the State of New York to A. B., greeting : Wt. command j'ou, that all business and excuses being laid aside you [and each of you] appear and attend at a Term of the Court [or before the justices of the Supreme Court, or some one of them, at a circuit court to be held in and for the county of ], at the , in the of [or before I. L., referee duly appointed under an order of the court, at ; J, on the day of , 18 — , at • o'clock in the noon, to testify, all and singular, what you n^ay know in a certain action now pending in said court, then ' Ordinarily a witness is subposnaed whole amount was taxable. (Pike v. at Ills permanent residence, and is thus Nash, IG IIow, Pr., 53.) entitled to his fees in traveling from For sheriff's certificate of service of such residence; but where the witness subpoena, sec form No. 35. is subpoenaed at the place of his tern- The expenses incurred by a farty in porary residence and business, and re- .serving subpoenas upon witnesses, can- turns thereto after testifying in the not be allowed by the clerk as a neces- cause, he is entitled to his'fces, com- sary disbursement under section 31 1 of patcd according to the distance to such Code of Pro. (Code Civ. Pro , §^3256 ; temporary residence. (Chirks v. Star- Townof Pierrcpont v. Lovelass,4riun, ing, 4How. Pr., 248; Mitchell v. West- C81.) orvelt, 6 id , 205; Wheeler v. Lozee, 12 ' As to amount of fees, see Code Civ. id. 440.) Pro., §8318. The clauses as to pay- Where the witness was subpoenaed ment of mileage are only to be inserted while away from home and being where the distance is over three miles about to return home, and he insisted from the place of attendance, as the upon his fees from his residence, which witness is only entitled to mileage in the parly paid, it was held that the such cases. (Id.) 34 266 Forms Relating to and there to be tried between -F. C, plaintiff, and O H., defendant, on the part of the plaintiff [or defendant], [*] and for a failure to attend you will be deemed guilty of contempt of court and liable to pay all loss and damages sustained thereby to the party aggrieved and forfeit fifty dollars in addition thereto. Witness, Hon. A. 0., one of the justices [or judges] of our said court, at , this day of , one thousand eight hundred and . J. L., Cleric. T. R., Attorney for Plaintiff [or Defendant]. [Office address.'] No. 358. Subpoena Ticket. (Code Civ. Pro., g§ 7, 852.) By virtue of a writ of subposna, to you directed and here- with shown to you, j^ou are commanded that, all business and excuses being laid aside, you be and appear in your proper person at a Term of the Court [or before one of the justices of the Supreme Court, at a circuit court appointed to be held in and for the county of ], at the in the of [or before I. L., referee duly appointed under an order of this court at ], on the day of , 18 — ^ at o'clock in the noon, to testify, all and singular, what you may know in a certain action now pending in said court, then and there to be tried between F C , plaintiff, and O. H., defendant, on the part of the plaintiff [or de- fendant], [*] and for a failure to attend you will be deemed guilty of a contempt of court and liable to pay all loss and damages sustained by the party aggrieved and forfeit fifty dollars in addition thereto. Dated this day of , 18 — , By the court. T. R., Attorney for Plaintiff [or Defendant]. [Office address.'] To ' See note 2 to form No, 133. Compelling Attendance, etc., of Witnesses. 267 No. 359. Subpoena and Ticket with Duces Tecum Clause. (Code Civ. Pro., gg 7, 853.) As in forms Nos. 357, 358 to [*], and from thence as fol- lows : And that you bring with you, and produce at the time and place .aforesaid, a certain [describing book, paper, etc. J now in your custody, and all other deeds, evidences and writings which you have in your custody or power concerning the premises. Concluding as in forms Nos. 357 358, from [*]. No. 360. Affidavit of Procure Warrant to Apprehend Defaulting Witness, Subpoenaed Pursuant to Section 854, Code Civil Procedure. (Code Civ. Pro., §855.) County, ss. : A B., of , being duly sworn, says, that hereto- fore, and on or about the day of , 18 — , a , subpoena was issued by I. L , as referee [or arbitrator, etc.], duly appointed and expressly authorized by law to hear, try and determine the matter of [describing proceeding], requiring E. F., of , therein mentioned, to attend before said I. L., at the time and place and for the purposes as stated in the said subpoena, which is hereto annexed and marked schedule A ; that said subpoena was duly served upon said E. F., in the manner required by law, as stated in the affidavit of service thereof annexed to said subpoena ; that said E. F. has failed to obey the said subpoena by fail- ing to attend before said I. L., as such referee [or arbitra- tor, etc.], at the time and place mentioned in said annexed subpoena." A. B. [Jurat as in form No. 46.] ' See note 1 to form No. bUS. 268 FoEMS Relating to No. 361. Warrant for Apprehension of Witness, Subpoenaed Pursu- ant to Section 854, Code of Civil Procedure. (Code Civ. Pro., §§ 855, 857.) To the Sheriff of the County of : Whereas, it has appeared, by the affidavit of A. B., that on or about the day of , 18 — , a subpoena was issued by I. L., a referee [or arbitrator, etc. J, duly ap- pointed and expressly authorized by law to hear, try and determine the matter of [describing proceeding], requiring E. F., of , therein mentioned, to attend before said I. L., at the , in the of , in the county of , at o'clock in the noon, for the purpose of giving testimony [or of having his deposition taken ; or of being examined] in said matter ; that said subpoena was duly served upon said E. F., at , and his fees for attending as such witness duly paid ; and, Whereas, the said E. F. lias failed to obey the said sub- poena by failing to attend before said I. L., as such referee [or arbitrator, etc.], at the said time and place : Now, therefore, you are hereby commanded to apprehend the said E. F., and to bring him before the said I. L., such referee [or arbitrator], on the day of , 18 — , at o'clock in the noon, at the office of said referee [arbitrator, etc.], in the — of , to be examined and give evidence in said proceeding, and to be further dealt with according to law.' Dated , 18—. A. , Judge [or Justice'] of the Court. M. W., Attorney for . [Office address."] ' See note 1 to form No. 363. » See uote 2 to form No. 133. CoMPiaLiNG Attendance, etc., oe Witnesses, 269 No. 362. Warrant of Commitment of Witness for Failure to Testify in Cases arising under Section 854, Code of Civil Pro- cedure. (Code Civ. Pro., §§ 856, 857, 808.) To tlie sheriff of the County of , greeting : Whereas, it lias appeared to me, by affidavit, that a war- rant was heretofore issued by me \or by Hon. A. O., judge of the — Court], dated 18 — , to the sheriff of county, commanding said sheriff to apprehend E. F., of , and to bring him before I. L., duly ap- pointed and authorized by law, as referee [or arbitrator, etc.], in the matter of [describing proceeding], at the office of said referee \_or arbitrator, etc.], in the of , at o'clock in the noon, to be examined, and give evidence in such proceeding ; and. Whereas, the said E. F. has been brought by said sheriff before said referee, at said time and place, and has refused, without reasonable cause, to be examined as such witness [or to answer a legal and pertinent question to wit (insert- ing question) ; or to i^roduce a certain book or paper, to wit (describing it), which lie was directed to bring by the terms of the subpoena served upon him in said matter ; or to sub- scribe his deposition after it had been reduced to writing] : Now, therefore, you are hereby commanded to commit the said E. F., to jail, there to remain until he submits to do the act wliich he was required to do as aforesaid, or is discharged according to law.' Dated , 18—. A. O;, Judge [or Justice'] of the Court. M. W., Attorney for [Office address.'] ' These proceedings do not apply to ness. (Code Civ. Pro., §§ 854, 859.) a matter arising, or an act to be done, Tlicse forms are prepared to meet the in an action in a court of record, nor case of a referee or abitrator appointed to a subpoena issued by a justice of to hear, try and determine the matter, the peace : or to a witness subpoenaed They can easily be conformed to the to attend a court held by a justice of other cases narncd in § 854. the peace; or to a case where spcciii'l See, under similar statute. In re provision is otherwise made by law, for Bradner, 87 N. Y., 171. pompelling the attendance of the wit- ' See pote ? to form No. 1??, 270 FOKMS Relatiko to No. 363. Order Discharging Witness or otlier Person from Improper Arrest. (Code Civ. Pro., § 861.) [At, etc., as in form No. 80 (when made by court.)] [Title of action or proceeding.] Proof liaving been made by afiidavit that M. N. Avas duly and in good faith subpoenaed [or ordered] to attend for ttie purpose of being examined in the above action [or matter] pending in the court, and tliat liis attendance, pursu ant to said subpoena, might lawfully be enforced by attach- ment [or by commitment], and that after he had been so sub- poenaed, and while going to [or remaining at, or returning from] the place where he was required by said subpoena to attend was arrested by the sheriff of county, in a civil action [or special proceeding], viz.: in [give title of action or proceeding], under an order of arrest granted therein by [court or judge], dated , 18 — ; It is hereby ordered, on motion of I. J., attorney for said M. N., that said M. N. be and he is hereby discharged from said arrest, pursuant to the pi'ovisions of the Code of Civil Procedure of the State of New York. Dated , 18 — [when made by judge]. A. 0., Judge [or Justice\ of the Court {when made by judge). No. 364. Affidavit to Procure Discharge of Witness from Arrest. (Code Civ. Pro., §§ 861, 86?.) [Title of action or proceeding.] County, ss.: A. B., of , being duly sworn, says, that on the day of , 18 — , he was duly, and in good faith, served with a subpoena [or order] to attend, on the day of , 18—, at • o'clock in the — noon, at . — [or befoi'e (naming court or Compelling Attendance, etc., of Witnesses. 271 ofBcer, etc.)], for tlie purpose of being examined in the above action [or matter], and that while going, jDursuant to said subpoena, to [or wiiile returning from, or while re- maining at] the said place of attendance, pursuant to said subpoena, he was arrested by F. P., the sheriff of • county [or other oflBcer], under an order of arrest, dated , 18 — , issued in a civil action between C. D., plain- tiff, and himself, said A. B., defendant [or in a special pro- ceeding, to wit : (giving the title)], pending in the Court, and is now held by said sheriff, in his custody, under said order of arrest.' That, etc. [substantially as in form No. 209 from (f). ] A. B. [Jurat as in form ISTo. 46. J No. 365. Affidavit to lt»e made toy Witness, on Request of Sheriif, to Prevent Arrest. (Code Civ. Pro., § 864.) [Title of action or proceeding.] County, ss.: A. B., of , being duly sworn, says, that on the day of , 18 — , he was legally served with a subpoena [or order] to attend, on the day of 'The exemption from arrest does Circuit Court Mass., July, 1882], 26 not extend to a witness who attends Alb. L._J., 331; In re Healy, 53 Vt., voluntarily, or without a subpoena, 094.) unless the witness is a non-resident of As to whether a distinction in respect the State. (Code Civ. Pro., gft860; to their immuniiy exists between suit- Hardenbrook's Case, 8 Abb., 41C, Mc ors and witnesses from a foreign State parte McNeil, 6 Mass. , 2G4, Cole v. and those residing in this State, gucere. McClellan, 4 Hill, 59, and note ; see, (Person v. Grier, ^upra ) also, 1 Wait's Pr., 598.) The rule is not confined to witnesses, A resident of a foreign State, while but extends to parties as well. (Mat- attending a court of this State as a thews v. Tufts, 67 N. Y., 568.) witness, cannot be served with a pro- A resident witness attending our cess for the commencement of a civil courts is privileged from arrest, but action against him, nor be arrested not from the service of ordinary pro- upon civil process (Person v. Grier, cess. (Schlesinger v. Foxwell, 1 City 66 N y., 124; Sanford v. Chase, 3 Court Rep., 461.) Cow., 381; Laraed v. Gnffla [U. S, 273 FoKJis Relating to , 18—, at o'clock in the noon, at [state place of attendance], before the Court [or before I. J., referee {or arbitrator, etc.), in the above enti- tled action (or matter), duly appointed to hear, try and de- termine the same {or state other purpose of appointment)], for the purpose of being examined as a witness in said ac- tion [or matter], on the part of ■; that he is still in attendance, as such witness, before said court [or referee {or abitrator, etc.)] ; [or that he is going for the purpose of attendance as such witness, etc. ; or is returning from attend- ance as such witness, etc.]; that he was not so subpoenaed [or ordered] by his own procurement, with the intent of avoiding arrest. A. B. [Jurat as in form No. 46.'] TITLE IT. FORMS RELATING TO DEPOSITIONS. Article First. forms relating to depositions taken and to be used within the state. (Code Civ. Pro., Ch. 9, Tit. 3, Art. 1.) No. 366. Affidavit to obtain order for examination of a party, etc., in pending action. 367. Affidavit to obtain .order for examination of person who expects to be a party to action. 368. Order for examination of party, etc., before trial. 369. Order for examination of person wbo expects to be a party to an action, etc. 370. Affidavit of service of order for examination of party, etc. 371. Stipulatipn for taking of deposition. 372. Deposition of party, or expected party, and return by judge or referee. ■ 373. Affidavit to obtain order to take deposition or affidavit to be used on motion. 374. Order appointing referee to take affidavit to be used on motion ' The affidavit may be taken by the officer making the arrest. (Code Civ. Pro.. § 864,) Depositions. 373 No. 366. Affidavit to Obtain Order for Examination of a Party, etc., in a Pending Action. (Code Civ. Pro., § 872.) [Title of cause ] COUITTY , ss.: A. B., of -, being duly sworn, says [that he is the plaintiff {or defendant) in the above entitled action] : ' That said action has been commenced on the day of , 18— by A. B. [or C D J, the above named plaintiff, vpho resides at , against E. F., the above named defendant, who resides at ; and said action is now pending in the court, and the place of trial therein is the county of . That said defendant has appeared [and answered] by IF., as his attorney, who resides [or whose office address is] at [or that said defendant has not appeared], and that the plaintiff has appeared by G. H. as his attorney, who resides [or whose office address is] at ." That said action is brought [here state the nature of the action, and the substance of the judgment demanded]. [That the nature of the defense to said action is as fol- lows (state the nature of the defense).'] That the testimony of the said defendant [or of said plaintiff; or of I. J , who resides in the of , in the county of ] is materia] and necessary for the plaintiff [or de- fendant] [or for the prosecution {or defense) of said action]. That the following facts and circumstances render the examination of the said defendant [or plaintiff ; or I. J.J material and necessary [here state same]'. ' It is sufflcient if sucli afflduvit bo tlie applicant's attorney must bo stated made by the attorney for tlie applicant in tlio affidavit. (Code Civ. Pro., § or a tliird party It need not bo made 877; Van Roy v Harriott, BO Hun, 77.) by tbe applicant himself. (Corbett v. An order made upon an cffldavit not De Comeau, 54 How. Pr., 506; S. C, containing that statement is irregular 4 Abb N C, 253; rev'd, on another and will be reversed. (Id.) point, 5 id., 1C9; Hale v. Rogers, 23 ^ xhe nature of (be defense is to be Hun, 19 ) But the materiality of the stated in ease tbe application is made ■witness must be alleged upon the at- by the defendant before answer, or by torney's own knowledge, or if it be either party after answer (sub. 2). made upon information the source (Robertson v Russell, 20 Hun., 243.) must be given. (Halev. Rogers, SKpm.) ■ ■* The affidavit must specify the facts ' ThO residence or office address of and circumstances, which show, in 274 Forms Eelating to That said defendant [or plaintiff , or I. J j is now sojourn- ing at , in the of [or that said I. J. {or C. D.) regularly transacts his business at , in the of —J.' [That the said I. J. is about to depart from the State {or is so sick) {or infirm) as to afford reasonable ground to believe that he will not be able to attend the trial of the above entitled action (as will appear from the certificate of his attending physician hereto annexed) {or state any other conformity ■with subdivision 4 of sec- tion 873, that the examinfition of the person is material and necessary (Rale 83, Gon. Rules of Prac, ; Greer v. Allen, 15 Hun, 433; Chapin v. Thompson, 16 id 53; Wayne Co. Sav. B'k v. Brack- ett, 31 Hun, 484), and must allege the existence of such facts. An allegation that the party desires to prove such facts is not sufficient. (Kirkland v. Moss, 11 Abb. N. C.,421.) It must be shown that the testimony of the person to be examined is mate- rial and necessary. The bare state- ment that such testimony is material and necessary is insufficient. (Matter of Bryan, 3 Abb. N. C, 289; Robert- son V. Russell, 20 Hun, 243; Crooke v Corbin, 23 id, 176; Sweeney v. Sturgis, 24 id., 103.) See, further, as to form of affidavit, Schepmoes v. Bousson (1 Abb. N. C, 481; S. C, 53 How. Pr., 401), Dunham V. Mercantile M Ins. Co. (0 Abb. N. C, 70; S. C, 50 How Pr., 240), Beach v. Mayor of N. Y. (4 Abb. N. C, 230; S. C, 14 Hun, 79), Hale v. Rogers (23 Hun, 19), Levy v Loeb (5 Abb. N. C, 157), Sprague v. Butterworth (23 Hun, 503), Sweeney V. Sturgis (24 Hun, 168), Smyth V. McGovern (7 Week. Dig , 480), Kinney v. Roberts (20 Hun, 100), Ludewig v. Pariser (4 Abb. N. C, 240, and note), Cornell v. Fryer (9 Abb. N. C, 52), Corbett v. Dc Coraeau (5 Abb. N. C, 109), Fourth Nat. Bank V. Boynton (29 Ilun, 441), Hutchinson T. Lawrence (29 Hun, 450), Hardy v. Peters (30 Hun, 79), Andrews v. Prince (31 Hun, 238), Town of Hancock v The First Nat. Bank (93 N. Y., 82). In Hardy v. Peters {supra), the rule as to the granting of the order is thus laid down by Brady, J. : " Whenever ii, appears that the examination )f an ad- versary is material and necessary, and the application is one not for the pur- pose of extracting evidence from him by unnecessary procedure, and when its good faith cannot be seriously Ques- tioned, it is almost a matter of course under our statute to direct the exami- nation in the furtherance of justice.'" When a sufficient affidavit Is pre- sented the judge is not justified in refusing tlie application, unless the affidavit also shows that the party is privileged from giving the testimony sought. (Sweeney v. Sturgis [supra] ; see, however, dissenting opinion of Dykman, J., in that case, aSipage 106; and see, also, cases above cited ; but see in favor of the view that the order must be granted upon a proper affidavit the exception in § 877, Code Civ. Pro , as amended by chapter 397 of 1882 ) Under section 870 of Code of Civil Procedure, the plaintiff is entitled to examine the defendant for the purpose of obtaining the facts ne'fessary to enable him to frame his complaint. (Glenney v. Stedwell, 64 N. Y., 120; S. C, 1 Abb. N. C, 327; Brisbane v. Brisbane, 20 Hun, 48.) ' The insertion of this clause in brackets is optional (sub. 2). Depositions. 275 special circumstances which render it proper that he should be examined).'] [That the names of the officers and directors of said (name of corporation) (whose testimony is necessary and material), are as follows, to wit (state names) : or that the following are the books and papers of said (name of corporation), as to the contents of which an examination or inspection is desired.^] [That said is confined in the jail of the county of , situated in the of ■ , in said county {or other prison within the State, describing it, and stating location), under a sentence for felony.'] That, etc. [substantially as in form No. 209 from (f).] [That said examination is to be had for the purpose of using the testimony upon the trial of said action.'] Add any other facts as required by subdivision 7, section 872, Code Civil Procedure. A. B, [Jurat as in form No. 46. J No. 367. Affidavit to OMain Order for Examination of Person who Expects to 1)0 Party to Action. (Code Civ. Pro., §872.) [Title of proceeding.'] County, 55..' A. B., of , being duly sworn, says, that he re- ' This statement need not be inserted ^ This clause is to be inserted in a case •wliero th3 examination of a party is provided for by section 877, Code Civ. desired (sub. 5) PiO , as re-enacted by cbapter 397 of Tliis clause is to be inserted, if 1883 the party sought to be examined is a ■* It was held in Batterson v, Sanford corporation (sub 7) In thai case, the (o Weolj. Dig., 131 [Gen. T., N. Y. proper changes should be made in the Super Ct];4jN Y Super Ct., 187; affidavit to suit the circumstances Knowlton v. Bannigan, 11 Abb. N. C, The offlcers and diiectors of a cor- 419), that the affidavit must state that poration can be examined, under sec- tho examination is to be for the purpose tiou 8;3, Code Civ. Pro , as amended of rising it on the trial: but there is nc by chapter .536 of 1880, but not the provision in the Code or rules requiring servants or agents. (Reichmann v this statement. It has been expressly' Manhattan Co., SO Hun, 433,) held that wJicrg the cxamipaUon -vvas' 276 FoKMS Relating to sides at , and is about, as plaintiff, to bring an action in the Court against C. D., as defendant, who resides at , the nature of the controversy, which is expected to be tlie subject thereof, being as fol- lows, to wit [here state same]. That the testimony of said A. B. [or of I. J., who re- sides at the of — '■ , in the county of ], is necessary and material for the said A. B. [or for the prose- cution of said action], and that the following facts and circumstances render the examination of the said A. B. [or I. J ] material and necessary [here state sach facts, etc.].' [That said A. B. {or I. J.) is now sojourning at the of , in the county of {or that said A. B.; or I. J.), regularly transacts his business at , in the of , county of ].^ That the said C. D. is of full age, and is a resident of the State of 'New York [or is sojourning within the State of New York ; or has an office within the State of New York, where he regularly transacts business in jperson, which office is located at the of , in the county of , at No. street {or other designation of particular locality)]. That the circumstances which render it necessary for the protection of the rights of said A, B., that the testimony of said A. B. [or I. J.], should be perpetuated, are as fol- lows, to wit [here state such circumstances].* for the purpose of enabling the plaintiff Week Dig., 1G7; S. C, 5 Abb. N C, to frame liis complaint no such state- 131), to the effect that section 870 of ment need be made. (Brisbane v. Bris- Code of Civ. Pro., as amended by bane, 20 Hun, 48; see, also, Code Civ. chapter 290 of Laws of 1878, only au- Pro., § 881; Berdell v Berdell, 83 N. tliorizos the examination of "one who y., 531, 532.) expects to be a i)arty," upon his own ' Where no action is pending, the application, and does not authorize the affidavit should be entitled "In re,' oi examination of a person not yet sued, ' In the ■ matter of the application, upon the application of another who etc ,' and not in the proposed action contemplates a suit against him. (In the matter of Bryan, 3 Abb. N. By section 871 of Code of Civ. Pro., C. 289."! "the deposition of a person not a '^ See note 4, p 373 to form No. 366- party, whose testimony is material and ' See note 1, p. 274, to form No. 3C6. necessary to a party to an action, pend- ^ This form of affidavit is drawn in ing in a court of record, other than a conformity with the decision of West- court specified m subdivisions 10, 17, brook, J in Paulmier v. Sweeney (7 18 or 19 of section two of this act, or Depositions. 277 4 [That said is confined in tiie Jail of the county of , situated at the of , in said county {or otlier prison, describing it, and stating location), under a sentence for felony/] That, etc. [substantially as in form No. 209 from (f).] [That said examination is to be had for the purpose of using the testimony of said upon the trial of said action."] Add any other facts as specified in subdivision 7 of sec- tion 872, Code Civil Procedure A. B. [Jurat as in form No. 46.] No. 368. Order for Examination of Party^ etc., Before Trial. (Code Civ. Pro., § 873.) [Title of cause.] On reading and filing the affidavit of A. B., hereto an- nexed, and on the ai^plication of the plaintiff [or defend- ant ; or of I. J.], who desires to take the examination and deposition of the defendant \or of the plaintiff ; or of J. K.], in this action, before the trial thereof : It is ordered, that the said defendant, C. D. \or the plain- tiff, A. B.; or said J. K.], do appear before me [or before M. F., who is hereby appointed referee for the purpose of taking the examination of said C. D. {or A. B. ; or J. K.)], ' at ■ , on the day of , 18 — , at o'clock in the ■ noon of said day, for the purpose of being examined pursuant to the provisions of article first of title three of cha^jter nine of the Code of Civil Procedure : to a. person wJio expects (o be a party to ' See note 4, p. 275, to form No. 306. an action about to be brought in suclx ^ Before tlic amendment of 1884 (by a court by a person otlicr tban the per cliapter 300) to section 873 of Code son to be examined, may also be taken Civ. Pro , a referee could only be ap- as prescribed in this article." pointed -when the examination of . a ' This clause is to be inserted in a witness not a party to the action was case provided for by section 877, Code directed, or in case of the examina- Civ. Pro., as re enacted by chapter 807 tion of a prisoner (id., § 877) ; but by of l£8-2. that amendment the hmitation was Sec as to form of affidavit, etc., notes stricken out, and the power to refer to form No. 3G6. now exists in all cases of examination. 278 Forms Relati^s^g to [It is further ordered, that said examination be limited to the following particular matters (here designate same).'] It is further ordered, that a copy of this order be served upon the said A. B. \or C. D. ; or J. K.J, and upon [other parties who have not appeared], days' before the said — ; day of , 18—.' [And it is further ordered, that said be produced by the person in charge of the prison [or jail, de- scribing it) at the said prison [or jail), subject to the follow- ing regulations and restrictions (insert such regulations, etc , as the judge may deem proj)er).] Dated 18- A. O., Judge [or Justice] of the \or County Judge\ Court • This limitation is discretionary ■witli tlie judge, and is only to bo in- serted 'wlion examination of party is desired. (Code Civ. Pro., § 873.) ' Tlie service must be made within the State, not more than twenty nor less than five days before the time fixed for the examination, unless spe- cial circumstances, making a difEerent time of service necessary, are shown in the affidavit, and that fact is recited in the order. (Id ) ^ This form is taken, substantially, from the case of Webster v. Stock- well (3 Abb. N. C , 115). The order should be served person- ally upon the party or person required to attend. A service upon bis attorney is not sufficient to give the court juris- diction to punish him for not obeying the order. (Tebo v. Baker, 77 N. Y , 33; aff'g S. C, 10 Hun, 183.) A copy of the order and affidavit must be served, also, upon the attorney for each party, or, if the party has not ap- peared, then upon bim as directed by the order. "Witnesses fees at the rate prescribed by law, in an action in the Supremo Court, must be paid or tendered when the order is served upon the party or other person required to attend. (Code Civ. Pro., § 874, as amended by chap. 397 of 1882.) The court, at special term, has no power to grant an order for tlic examin- ation of a defendant, for the jjurpose of enabling the plaintiff to make and serve his complaint. (Heishon v. Knicker- bocker Life Ins. Co , 77 N. T., 378.) Tlic order must be made by a judge, not by the court. (Id.) The county judge of the county in which the action is pending in the Su- preme Court, has the power to make the order. (Code Civ. Pro., § 873; Corbett v. Gibson, 16 Hun, 341.) The decisions are conflicting as io the granting of the order being obliga- tory or discretionary, when Ihe affida- vit is m the form prescribed by the statute and by the rule. (See cases cited in note 4, p. 373, to form No. 366.) The fact that the place of trial is in a county different from the residence or place of business of the party, does not authorize the order to be made returnable otherwise than as required by section 886 of Code Civ. Pro. (Gustaf V. Am. Steamship Co. [Gen. T., Supr. Ct.], 18 Week. Dig.,- 297.) . Depositions. 379 No. 369. Order for Examination of Person who Expects to be a Party to an Action, etc. (Code Civ. Pro., § 873.) [Title of proceeding.'] On reading the affidavit of A. B., liereto annexed, and on tlie application of said A. B., who desires to take his own examination and deposition [or the examination and depo- sition of E. F.J, with reference to an action which there is reasonable ground for belief will be brought in the — -. Court by said A. B. against C. D. [or against said A. B. by C. D.J, as stated in said affidavit, it is Ordered, that the said A. B. [or E. F.J do appear before me [or before M. F., who is hereby appointed referee for the purpose of taking the examinationj, at , on the day of , 18 — , at o'clock in the noon of that day, for the purpose of being examined. [It is farther ordered, that said examination be limited to the following particular matters (here designate matters. )'J [And it is further ordered, that said be produced by the person in charge of the (prison or jail, describing it), at the said prison {or jail), subject to the following regula- tions and restrictions (insert such regulations, etc., as the judge may deem proper). 'J It is further ordered, that a copy of this order be served upon said A. B. [or E. P.], and upon [name expected ad- verse parties], days, before the said day of , 18—. Dated , 18—. A. O., Judge [or Justice] of Court [or , County Judge]. » See note 1 to form No. 307. ' See section 877 of Code Civ. Pro , '^ The limitation is discretionary with as re-enacted by chapter 397 of 1882, the judge. (Code Civ.' Pro., § 873.) and note 5 to form No. 367. 280 Forms Relating tO No. 370. Affidavit of Service of Order for Examination of Party, etc. (Code Civ. Pro., § 876.) County, ss.: ^. T., of , being duly sworn, says, that on the day of , 18—, at tRe of in the county of , he served copies of the annexed order and affidavit upon , therein mentioned, by delivering said copies to and leaving the same with said ; and by paying [or tendering] to said his fees allowed by law for traveling pursuant thereto to and returning from the place where he is thereby required to attend, and for one day's attendance, to wit : at the rate of eight cents for each mile, going to said place of attendance, and fifty cents for such attendance, amounting in all to tlie sum of .' A. T. [Jurat as in form No. 46.] No. 371. Stipulation for TaMng of Deposition. (Code Civ. Pro,, § S79.) [Title of cause.] It is hereby stipulated, pursuant to the provisions of sec- tion 879 of the Code of Civil Procedure, between the parties to the above entitled action, that the deposition of M. N., ■ Witnesses fees, at tlie rate pre- he served upon bim as directed by the scribed by law in an action in llio Su- order. If no action is pending, they preme Court, must be paid or tendered, must be personally served upon each ■when the order is served upon the partj-- of the persons named therein as ad- or other person required to attend, verso parties. (Id.. §875.) (Code Civ. Pro., § 874, as am'd 188i.) fee, further, as to service, Tebo v- As to punishment for disobedience of Balier (77 N. Y., 33), Pake v. Proal order, see same section. (54 How. Pr., 03; 2 Abb. N. C, 418). A copy of the order and of the affi- Webster v. Stockvrell (.j Abb. N. C. davit upon which it was granted, must 115), Thompson v. Sickles (3 Abb. N. be served upon the attorney for each C, 131). party to the action in like manner as a The amount of fees to be paid is paper in the action ; or if a party has regulated by section 3318, Code Civ , not appeared in the action, they must Procedure. Depositions. 281 of , as a witness in the said, action, to be used therein, raay be taken before Hon. A. 0., judge [or justice] of the Court [oj- before I. L. as referee), at , in the • of , in the county of , on the day of , 18—, at o'clock in the noon, orallgr [or upon the interrogatories hereto annexed].' Dated -^ , 18—. J. Yi., Plaintiff'' s Attorney. [Office address.'] A. F., DefendanV s Attorney. [Office address.'] No. 372. Deposition of Party, or Expected Party, and Return by Judge or Referee. (Code Civ. Pro., § 880.) [Title of cause or proceeding.] Deposition of A. B., plaintiff [or defendant, or of I. J.], taken pursuant to article first of title three of chapter nine of the Code of Civil Procedure, by Hon. A. 0., judge of the Court \or by I. L., referee], under the order [or stipulation] hereto annexed, at , on the day of , 18 — [and other days to which the exami- nation of said was, from time to time, adjourned, as hereinafter stated].' Present — F. G., for plaintiff ; G. H., for defendant. Said having been first duly sworn by said judge \or referee], did depose as follows, being examined by F. G., for : Question. 1. [Insert question.] Answer. [Insert answer.] And so on to end of direct examination. And on his cross-examination, by G. H., for , said did further depose as follows : ' This stipulation cannot be made in ^ Tlic examination may bo adjourned cases specified iu section 877 of Code from time to time to anotlier day and Civ. Pro. (§879, id., as am'd 18S2.) to another place within the county, 8 See note 3 to form No, \%%. (Code Civ, Pro., | 876.) 36 282 Forms Relating to Cross-question. 1. [Insert question.] Answer. [Insert answer.] And so on. I, A. O., judge of the Court \pr I. L., referee], do hereby certify and report that the foregoing deposition of — was taken before me, in the above entitled ac- tion \or proceeding], pursuant to the annexed order \or stipulation], at the time[s] and place[s] above mentioned ; that every answer or declaration of said , upon said examination, is therein inserted, required by either party to be inserted ; that said deposition was, when completed, carefully read by me to the said , and was there- upon subscribed by him in my presencd. Dated , 18—.' A. O., Judge \or Justice] of Court [or I. L., Referee]. No. 373. Affidavit to Obtain Order to take Deposition or Affidavit to be used on Motion. (Code Civ. Pro., §885.) [Title of canse.] CouwTY, ss.: A. B., of , being duly sworn, says, that he is the plaintiff [or defendant] in the above entitled action ; that he intends to make a motion in said action in the Court [or that he intends to oppose a motion in the Court, of which notice has been given on the part of the defendant {or plaintiff)], for the following relief [here state the nature of the motion] : and that it is necessary for him .to have the affidavit of E. P., to use upon such motion, as to the following facts, to wit : [here state facts required by applicant.] ' See as to form of cerlificato, Foster Greensward v. Union Dime.Sav. Inst., V. Biillock (13 Hun, 200). Tlie party 59 id , 3D9.) may be compelled to answer any ques- The objections to questions, etc., tioQ pertinent to the issues, (jjludge need not be noted upon deposition. V. Gilbert, 43 How. Pr., 219 ; see, also, (Code Civ. Pro , § 883.) Depositions. 283 That said E F has refused to make his affidavit of such facts, which deponent verily believes are within his knowl- edge, although he has been requested to do so by deponent [or by M. N., whose affidavit is hereto annexed]. That said E. F. resides at the of , in the county of , and has an office for the regular trans- action of business at , in the county of [or that said E. F. does not reside in the State of New York].' That, etc. [substantially as in form No. 209' from (f) '] A. B. [Jurat as in form No. 46.] No. 374. Order appointing Referee to take AWidavit or Deposition to be used on Motion. (Code Civ. Pro , § 885.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] It appearing by the affidavit of A. B., the plaintiff [or defendant], herein, dated , 18 — , that he intends to make a motion for [here state relief], in the Court [or that notice of a motion on the part of the defendant {or plaintiflf) herein, in the Court, for (here state re- lief), has been given, which he intends to oppose], and that it is necessary for him to have the affidavit [or deposition] of E F. of ■ , to use upon the said motion ; and that said E F. has refused to make an affidavit of facts which the said applicant verily believes to be within his ' See Dauchy v. Miller (16 Abb [K Code Pro., § 401. (Rogers v. Durant, S ]. 100;, as to proper form of affidavit. 3 N, Y Sup. Ct. R. [T. & C], 076.) Plaintiff applied to D. for an affl It was bclJ iu Allen v. Meyer (73 davit, tor the purpose of opposing a N. Y., 1), that an application for an motion to facts within D 's knowkdge, attachment was a motion under section several times on successive days, but 401, siibdivision7ofCodoof Pro., from D each time declined to make the affl which section 885 of Code Civ. Pro. is davit, until he could consult his coun derived gel — held, suflScient to authorize an ' Insert this clause when the motion order for the examination of p., under is to be made without notice. Sec note 1 to form No- 373 as to notice. 284 FOKMS Relating to knowledge [and due notice of this motion having been served upon said E. F.*] : Now, on motion of A. Y., counsel for said A. B. [and on reading (name opposing papers)," and after hearing C. J., for said E. F. {or no one appearing to oppose)] : it is Ordered, that I. F., of , be and he is hereby ap- pointed a referee, to take the deposition of said E. F., for use upon said motion. Date [of judge's order]. A. 0., Jicdffe \or Justice] of the Court {lohen made iyjuclge). Article Second. FORMS RELATING TO DEPOSITIONS, TAKEN WITHOUT THE STATE, FOR USE WITHIN THE STATE. ' (Code Civ. Pro., Cli. 9, Tit. 3, Art. 2.) No. 375. Affidavit to obtaia commission for examination of -witness. 376. Affidavit for commission in case of default. 377. Affidavit for commission after judgment, -wliere necessary to carry tlie judgment into effect. 878. Affidavit for commission under subdivision tliree, section 8S8, Code Civil Procedure. 379. Affidavit for commission under subdivision four, section 888, Code Civil Procedure. 3S0. Notice of motion for commission. 381. Order for a commission. 383. Commission to examine ^vitness out of llic State. 383. Interrogatories to be annexed to commission. 384. Cross-interrogatories to be annexed to commission. 385. Notice of settlement of interrogatories. 386. Order for commission to issue, to examine vi'holly, or in part, on oral questions. 387. Commission to examine witnesses ■wholly, or in part, on oral ques- tions. 388. Affidavit to procure open commission, or for oral examination, or to take deposition. 389 Order for open commission, or taking deposition. 390. Open commission to examine witness 391- Notice of examination upon oral questions, and of taking deposi- tion • The order may be made upon, or '^ See note 4, p. 136j to form No, 18?(. without notice, (Code Civ. Pro-, ^ §85.;; Depositions. 285 No. 393. Affidavit of agent, or of party receiving from agent, by whom com- mission or deposition is returned. 393. Stipulation tliat commission issue. 391. Kolicc of motion for suppression of commission. 395. Order for tlic suppression of a commission. 390. Affidavit for commission, -where the witness does not understand the English language. 397. Order for commission, wher j witness docs not understand the En- glish language. 398. Letters rogatory. No. 375. Affidavit to Obtain Commission for Examination of Witness. (Code Civ. Pro., §g 887, 888, subd. 5.) [Title of cause.'] County, ss. : A. B., of , being duly sworn, says, that he is the [attorney for] plaintiff [or defendant]' in the above entitled action, which is now pending in the Court ; that the place of trial therein is the county of ; [*] that an issue of fact was joined therein, by the service of the de- fendant's answer [or plaintifE's reply], on the day of , 18 — ; and that said action has been noticed for trial at a of the Court, to be held at , on the day of , 18 — [or state other condition of the action] ; that the deponent has fully and fairly stated the case in said action to I. J., his counsel therein, who re- sides at , and has fully and fairly disclosed to him the facts which this deponent expects to prove by the wit- ness [or by each and every of the witnesses] hereinafter named ; that the deponent is advised by his said counsel, after such statement, and verily believes [f] that [he has a ' The provisions of section 887 et seg. North, 7 Barb. , C31 ; Murray v. Kirk- of Code of Civil Procedure, in reference patricli;,! Cow., 210; Johnson v.Lynch, to taking depositions out of the State, 15 How. Pr., 199; Beall v. Dey, 7 relate to actions only. (In the Matter Wend., 513 ) of an Attorney, 83 N. Y., 164 ) When made by the attorney in the " The affidavit may be made by the suit he should state m place of the attorney of the applicant, or by his averments as to advice of counsel that agent or attorney in fact. (Eaton v. from a statement made to deponent by 286 Forms Relating tO good and substantial defense to the action on the merits, and that]' the testimony of E. F. [and G H.] is material' to deponent in the prosecution [or defense] of said action ; that the said E. F. [and G. H.] are not within this State, but that said E. F. is at , in the State of [and said G. H is at , in the State of J. A. B. [Jurat as in form No. 46. J No. 376. Aifidarit for Commission in case of Default. (Code Civ. Pro,, § 888, subd. 1.) As in form No. 375 to [*], and from thence as follows: That C. D., the defendant in said action, is in default, for the want of an appearance [or answer] in said action, the summons [and complaint] therein having been served upon him on the day of , 18 — , and no appear ance [or answer] having been served upon plaintiff's at- torney [t]. That deponent has fully and fairly stated the case in said action to I. J,, his counsel therein, who resides at , and has f ally and fairly disclosed to him the facts which this deponent expects to prove by the witness [or by each every of the witnesses] hereinafter named. That the deponent is advised by his said counsel, after plaintiff (or defendant) be verily be- bo expects to prove by tbe -witness lieves that (tbo defendant bas a good wbose testimony be seeks to procure, and substantial defense to tbo action (Eaton v. North [supra].} on tbe merits, and tbat) the testimony ' As to cases la which a commission of E. F. is material, etc. (SeeBeallv. will issue, see McMonagle v. Conkey Dey [supra]; Eaton v. North [supra]; (14 Hun, 326), Hand v. Burrows (23 and see rule 24 of General Rules of Hun, 330), Kemp v. Dickinson (23 Practice.) Hun, 593). That a party may be cx- ' No stay will be granted where amined by commission, see Clark v. merits are not sworn to. (Warner v. Candee (29 Hun, 139); but it will not Harvey, 9 Wend , 444; Meech v. Calk- be issued if the court has reason to ins, 4 Hill, 534; Brisban ads. Hoyt, doubt the good faith of the applica- 1 Wend, 27.) tion. (Id.) " Where no laches are imputable to For forms of affidavit under the the applicant, and there is nothing to other subdivisions of sections 888, see cast suspicion over the application, the four following forms, applicant is not bound to state what Depositions. 287 such statement, and verily believes, that the testimony of E. F.. is required by deponent upon the assessment of dam- ages, by a writ of inquiry or reference, or otherwise, to enable the court to render judgment in said action. That the said E. F. is not within this State, but is at • , in the [State] of . That, etc. [substantially as in form No. 209 from (t).j A. B. [Jurat as in form No. 46.] No. 377. Affidavit for Commission After Judgment, wlierc Necessary to Carry the Judgment into Eii'ect. (Code Civ. Pro., § 888, subd. 2.) As in form No. 375 to [*], and from thence as follows : That final judgment in said action has been rendered by the Court against the defendant [or iDlaintiif], a copy of which is hereto annexed. [Then state as in form No. 376 from (f), to word "re- quired," and from thence as follows : Required by de- ponent, in order to carry said judgment into effect. That the said E. F. is not within this State, but is at ; in the State of .J That, etc. [substantially as in form No. 209 from (f).]' A. B. [Jurat as in form No. 46.] No. 378. Affidavit for Commission under Subdivision three of Sec- tion 888 of Code Civil Procedure. (Code Civ. Pro., § 888, subd. 3.) As in form No. 375 to [*] and from thence as follows : That an appeal has been taken by the from the final judgment rendered therein by the — Court [or that a motion for a new trial therein made by the ^ is pend- ing in the Court]. " Insert this clause when the motion is mads ex parte. 288 Forms Relating to [Then state as in form No. B76 from (t), to word "testi- mony," and from thence as follows: Testimony of E. F. will be material and necessary to deponent in the prosecu- tion (or defense) of said action, if a new trial is granted. That the said E. F. is not within this State, but is at in the State of .'] „ A. B. [Jurat as in form No. 46.J No. 379. AffldaTit for Commission under SuMivlsion four of Sec- tion 888 of Code Civil Procedure. (Code Civ. Pro., § 888, subd. 4.) As in form No. 375 to [*], and from thence as follows : That issue has not yet been joined therein, and that there is reason to aj)prehend that, before issue is joined and an application for a commission can thereafter be made, the witness, E. F., hereinafter named, will die, or become una- ble to give his testimony, or remove, so that his testimony cannot be taken, as aiDpears from the following facts, to wit : [here state causes of apprehension.] [Then state as in form No. 376 from (f), to end thereof ] That, etc. [substantially as in form No. 309 from (t) J A B [Jurat as in form No. 46.] No. 380. Notice of Motion for Commission. (Code Civ. Pro., § 850.') [Title of cause.] As in form No. 186 to [f], and from thence as follows : That a commission issue in this action, directed to F. P., of , in the State of , for the examination of ' It -was held in McColl v. Sun Mu- such a case^^s subdivision 3 of section tual Ins. Co. (CO N. Y., 832), that the 888 provides for. statute existing before the Code Civ. ' Notice of the application must bo Pro. (2 R. S., 894, § 11), did not au- given to the adverse party, unless lie thorize the issuing of a commission m is in default for want of an appear- ance. (Code Civ. Pro., § 689.) Depositions. 289 E. F., of , in said State, as a witness in this action, upon interrogatories to be annexed to such commission, in ■which the defendant \or plaintiff] may join ; and that the trial of this action be stayed until the return of the said commission ; and for such other and further relief as may be proper. I. J., Plaintiff'' s Attorney. [Office address.'] To C. F., Esq., Defendant's Attorney. No. 381. Order for a Commission. (Code civ. Pro., §889.') [At, etc., as in form No. 80 (when made by court).] [Title of cause.] On reading and filing the affidavit of A. B., dated — 18 — , by which it appears, satisfactorily, that the facts exist authorizing the issuing of a commission in this action ; and on reading and filing [name opposing papers] ; and on mo- tion of , after hearing , of counsel for the , opposed ; it is Ordered, that a commission issue in this action, directed to , of , in the State of , to ex- amine upon oath, [*] on interrogatories to be annexed to said commission,' E. F., of , as a witness in behalf of the in this action ; [f] and it is further ordered, > Sec note 2 to form No. 123. Civ. Pro., § 893, and sec form No. 386, ' The commission cannot issue witli- post. ) out order of court (or judge) as speci- It was held before the passage of fied. When issued by consent, an the Code of Civ. Pro. , that the court order must be entered on stipulation, may, on granting the order, allovir the (Mason and Hamlin Co. v. Pugsley, 19 adverse party leave to cross-examine Hun, 282. the ■witnesses orally. (Anderson v. When order is made by a judge out West, 9 Abb. [N. S.], 309; approving, of court, it must be entered in the Clayton v. Yarrington, 16 Abb. Pr., office of the clerk. (Code Civ. Pro., 373.) g 890.) As to the examination of a person ' The order may direct that the com- in lunatic asylum in another State mission issue without written interrog- under a commission, see Hand v. Bur- atories, and that the depositions be rows (23 Hun, 830). taken upon oral questions, etc. (Code 37 590 Forms Relating to that the defendant \or plaintiff] be at liberty to join in the said commission, and that the trial of this action be stayed until the return of the said commission.' Date [of judge's order]. A. O., Judge \or Justice] of the Court {when made by judge). Fo. 382. Commission to Examine Witness Out of the Stale. (Code Civ. Pro., §§ 887, 888, subd. 5.) The People of the State of New York to of .' [Seal.'] Know ye, that we, with full faith in your prudence and competency, have appointed you commissioner[s], and by these presents do authorize you [or any one of you] [ff] to examine E. F., of ■ [and G. H., of ■. ], in your said State, as a Avitness \or witnesses] in a caase pending in the Supreme Court of the State of New York \or other court, describing it], between A. B., plaintiff, and C. D., defendant, on the part of the plaintiff [or defendant], under oath, [f] upon the interrogatories annexed to this commission, [*] to take and certify the deposition of said \or of each] witness and to return the same and this commission according to the directions hereunto annexed. Witness, Hon. A. O., one of the justices [or judges] of our said Court, the day of , 18 — . J. L., County ClerJc of County. I. J., Attorney for Defendant [or Plaintiff]. [Office address.'] DiEECTIOWS FOE ExECUTIWG THE CoMMISSIOK. [To be annexed to commission,'' being copies of §§ 901, 903 of Code of Civil Procedure of the State of New York.] "§901. The person to whom a commission is directed, or before whom a deposition is taken, unless otlierwise expressly directed in the commission, or in the order for 'The corn-tor judge may, in any case, ^ The commission must be under the impose such terms as justice requires, seal of the court. The Code of Civil (Code Civ. Pro., § 880 ; Ring v. Mott, Procedure (§ 24) has effected no change 2 Sandf ., 683.) of the law in this particular. A seal is Depositions. 291 taking the deposition, must execute the commission, or the order, as follows : "1. He must publicly administer, to each witness exam- ined, an oath or affirmation to testify the truth, the whole truth and nothing but the truth, as to the matters respect- ing which the witness is to be examined. "2. He must reduce the examination of each witness to writing, or cause it to be reduced to writing by a disinter- ested person. After it has been carefully read, to or by the witness, it must be subscribed by the witness. "3. If an exhibit is produced and proved, the exhibit, or, if the witness, or other person having it in his custody, does not surrender it, a copy thereof must be annexed to the deposition to which it relates, subscribed by the witness proving it, and numbered, or otherwise identified, in writ- ing thereupon, by the commissioner, or person taking the deposition, who must subscribe his name thereto. "4. The commissioner, or person taking the deposition, must subscribe his name to each half sheet of the depo- sition ; he must annex all the depositions and exhibits to the commission, or to a certified copy of the order for taking the deposition, with the certificate specified in the next section ; and he must close them up under his seal, and address the packet to the clerk of the court, at his ofiicial residence. "6. If there is a direction, on the commission, or in the order, to return the same through the posl-ofiice, he must immediately deposit the packet, so addressed, in the post-office, and pay the postage thereon. "6. If there is a direction, on the commission, or in the order, to return the same by an agent of the party, at whose instance it was issued or granted, the packet, so ad- dressed, must be delivered to the agent. "7 Where a commission is directed to two or more still necessary wlien the 'Writ or process and that such waiver could he made is issuer! by special order of the court, as the commission was not issued hy ihe (Mason & Hamlin Organ Co. v. Pugs- special order of the court. (Churchill ley, 19 Hun, 383, and cases there cited ) v. Carter, 15 Hun, 385.) When the stipulation of the attorneys ' See note 3 to form No. 133. authorized the issuing of the "an- ^ See sections 904, 905 of Code Civil nexed commission," which was with- Procedure, and section 901 (id.), suhds. out a seal; held, that a seal was waived, 5 and 6. 292 FoEMS Relating to persons, one or more of them may execute it, as prescribed in this and tlie next section." A copy of this and of the next section must be annexed to each commission, or order to talie depositions, authorized by this article. "§ 902. The commissioner, or other person, before whom one or more depositions are taken, must subscribe, and annex to each deposition, a certificate, substantially in the following form, the blanks being properly filled up : " State [or TeeritoeyJ of , ) ^^ County [or Parish] of , f "I, , do certify that , the witness, personally appeared before me, on the day of , at o'clock in the noon, at the , in the 'State' [or 'Territory'] of , and after being sworn [or 'affirmed,' as the case may be] to testify the truth, the whole truth and nothing but the truth, did depose to the matters contained in the foregoing deposition, and did, in my presence, subscribe the. same, and indorsed the exhibits annexed thereto. And I further certify, that I have sub- scribed my name to each half sheet thereof, and to each exhibit. And I further certify, that appeared in behalf of the , and that appeared in behalf of the ." Directions for Return. Let the within commission be returned through the post- oflB.ce [or by P. Q., an agent of the plaintiff {or defendant)],' directed to the clerk of the county of , at the of -, in the State of New York. Dated , 18—. A. O., Judge [or Justice] of the Court. No. 383. Interrogatories to be Annexed to Commission. (Code Civ. Pro , §§ 891, 893.) [Title of cause.] Interrogatories ' to be administered to E. F., of , a ' It is provided by section 903, Code shall be a sufficient return to the com- Civil Procedure, that this certificate mission. Depositioks, 293 witness to be examined under the annexed commission, on behalf of the plaintiff [or defendant] in the above entitled action : Ji'irst. What is your name, age, occupation and place of residence? Second. Do you know tlje parties above named, or any or either of them ? If so, which of them, and how long have you known each or either of them ? T/iird. Lastly. Do you know of anything concerning the mat- ters in question, that may tend to the benefit and advan- tage of the plaintiff [or defendant]? If so, declare the same fully and at large, as if you had been particularly interrogated concerning the same. A. F., Attorney for Plaintiff [or Defendant.] [Ofllice address.'] No. 384. Cross-Interrogatories to be Annexed to Commission. (Code Civ. Pro. , §§ 891, 893.) [Title of cause.] Cross-interrogatories, on the part of the defendant [or plaintiff'], to be administered to E. P., of , a wit- ness to be examined under the annexed commission, on behalf of the plaintiff in the above entitled action. First. Second. Third. Lastly. Do you know of anything concerning the mat- ters in question, that may tend to the benefit and advan- tage of the defendant [or plaintiff] ? If so, declare the same fully and at large, as if you had been particularly interro gated concerning the same. T. R., Attorney for Defendant [or Plaintiff]. [Office address.'] ' As to what interrogatories should ' See note 3 to form No. 123. be allowed, etc., seelTline v. N. Y. C. * See note 3 tu last form, No. 383. and H. R. R. Co. (79 N. Y., 175.) . ' See note 3 to form No. 133, 394 FoKMS Relating to No. 385. Notice of Settlement of Interrogatories. (Code Civ. Pro., §891) [Title of cause.] Sir — Take notice, that the interrogatories of the plaintiff [or defendant], to be annexed to the commission issued in this action, and a copy of which is hereto annexed, and of any cross-interrogatories proposed by the defendant [or plaintiff], will be settled by Hon. A. O., judge of the Court, at his chambers in the of , on the — day of , 18—, at o'clock in the noon.' Yours, etc., E. F., Attorney for Plaintiff [or Defendanf]. [Office address.'] To I. J., Defendant's [or Plaintiff's] Attorney. No. 386. Order for Commission to Examine, Wliolly or Partly, on Oral Questions. tCode Civ. Pro., § 893.) As in form No. 381 to [*], and from thence as follows : E. F., of , as a witness on behalf of the in this action, without written interrogatories, and that his deposition be taken upon oral questions [or as follows from word "ordered" in form No. 381 : that a commission issue in this action, directed to of , to take the deposition of the witness, E. F., of , as a witness, in behalf of, etc., partly upon oral questions and partly upon written interrogatories to be annexed to said commission ; or as follows from word ' ' ordered ' ' in form No. 381 : that a commission issue to take the depositions of E. F., of , as a witness, in behalf of, etc., upon written inter- rogatories to be annexed to said commission, and of Gr. H., 1 As to power of tlie judge in settle- N. Y. C. and H. Jl. R. R. Co. (79 N. ment of interrogatories, sec TJliuc T, Y-> 175.) ' Sec note 3 to form Xo. 133, Depositions. 295 of , as a witness, in behalf of, etc., upon oral ques- tions]. Then continue as in form No. 381 from [f], to end thereof. Date [of judge's order]. A. O., Judge of the Gourt {when made by judge). No. 387. Commission to Examine Witnesses, Partly or Wholly, on Oral Questions. (Code Civ. Pro., §893.) As in form No. 382 to [f], and from thence as follows : Upon oral questions and without written interrogatories [or partly upon the written interrogatories annexed to this com- mission, and partly upon oral questions ; or upon the inter- rogatories annexed to this commission, and to examine the said Gr. H. as a witness in said cause on the part of the plaintiff {or defendant), under oath, upon oral questions]. Thence as in form No. 3s2 from [*], to the end thereof.' No. 388. AffidaYit to Procure Open Commission, or for Oral Exami- nation, or to Take Deposition. (Code Civ. Pro , §§ 893, 894 ) As in form No. 374, to the end thereof, adding as follows : That the said defendant [or plaintiff] is of full age.' That [state any facts that render the issue of such a com- mission proper].' [Jurat as in form No. 46.] A. B. ' Sections 896 and 899 of Code Civ. ^Tliegrantingof an opencommi.ssioQ Pro., provide for notice of the time is matter of discretion. Wliile tlie ex- and place of the examination under ercise of sucli discretion may he the this section (See form of notice No. subject of an appeal, it ought not to 391, post.) be disturbed unless it is quite clear to ^ See section 895 of Code Civ. Pro., the appellate court that the discretion as to cases in which such commission was unwisely exercised. (Jones, v may not issue, Hoyt [N.Y. Super. Ct., li:83], 14 "Week. 296 Forms Relating to No. 389. Order for Open Commission, or Taking Depositions. (Code Civ. Pro., §§ 894, 897.) As in form No. 381 to [*], and from thence as follows : Any witness who may be produced by either party, on or before the day of , 18 — , upon oral ques- tions to be put to the witness, when he is produced ; to take and certify the deposition of each witness so examined, and to return the same and the said commission, immediately after the expiration of the time above limited for the pro- duction of witnesses, according to the directions given in or with said commission, and that the trial of this action be stayed until the return of the said commission. [Or on reading and filing the affidavit of A. B., dated ■ , 18 — , showing that E. F. is a necessary and ma- terial witness in the prosecution {or defense) of the above entitled action, and that said E. F. is not within the State, but is at , in the State of , and after hear- ing, etc. : It is hereby ordered, that the deposition of said E. F., as such witness, be taken by M. N., of • , in said State of ,' on or before the day of , 18 — , and that the deposition of said E. F. be re- turned by said M. N., through the post-office {or by F. R., an agent of the plaintiff, or defendant).'] Date [of judge's order]. A. O., Judge [or Jtistice] of tJie Court (when made by judge). Dig, 113; S. C, 63 How. Pr., 94; 10 Law Bull., 97), Jones v. Hoyt (s«^a), Abb. N. C, 324.) Ileniy v. Mead {supra). It should not, however, be granted ' For the persons who may be ap- unless it clearly appears that such a pointed to take depositions, see Code commission is necessary for the pur- Civil Procedure, section 899. poses of justice. (Henry v. Mead [Supr. ' Copies of sections 900, 901 and 903 Ct., Sp. T., 1881], 4 Law Bull , 10 ) of the Code of Civil Procedure are to The Code of Civil Procedure, sec- be annexed to each certified copy of tion 894, only requires, in the case of the order to take a deposition. (See an application for an open commis- those sections ) sion, that the affidavit show "that The order is appealable to the Gen- one or more witnesses, not within the eral Term, and an order of the Gen- State, are material and necessary in eral Term refusing to entertain such the prosecution or defense of the ac- appeal, on the ground that it does not tion;" but see Smith v. Tallmadge (3 involve a substantial right, is an error Depositions. 297 No. 390. Open Commission to Examine Witness. (Code Civ. Pro., §§894, 897.) As in form No. 382 to [ff], and from thence as follows : To examine any witness who may be produced by either party in a cause pending in the Supreme Court of the State of New York [or other court, describing it], between A. B., plaintiff, and C. D., defendant, on or before the day of , 18—, upon oral questions to be put to the witness when he is produced ; tp take and certify the depo- sition of each witness so examined, and to return the same, and this commission, immediately after the expiration of the time above limited for the production of witnesses, ac- cording to the directions given in or with the commission. Witness Hon. A. O., one of the justices [or Judges] of our said court, the day of , 18 — . J. L., County Clerk of — — County. I. J., Attorney for Defendant [or Plaintiff \ [Office address.'] [K\mM copies of sections 900, 901 and 902 of Code Civil Procedire, in like manner as sections 901 and 902 are an- nexecon form No. 382.] No. 391. Notice of Examination upon Oral Questions, and of Taking Depositions. (Code Civ. Pro., §§ 890, 899.) [Title of cause.] Sir — Take notice, that the examination of E. F., as a witness, on the part of the [plaintiff] in the above entitled action, upon oral questions, will take place before commissioner, appointed by the Court in said ac- tion [or that the deposition of E. F., as a witness in the above entitled action, on the part of the (plaintiff), will be of law reviewable in the Court of Bank, etc., 85 N. Y., 546; rev'g S. C, Appeals. (Jamison v. Citizens Sav. 24 Hun, 350.) ' See note 3 to form No, 132. 38 ~ 298 Forms EELATma to taken by I. J., duly appointed by order of the Court, made on the day of , 18 — , for the purpose of taking such deposition], at , in the of , in the State of — , on the day of , 18 — , at o'clock in the noon.' Yours, etc., A. Y., Plaintiff's [or Defendant s\ Attorney. [Office address". J To C. B., Defendanf s [or Plaintiff's] Attorney. No. 392. Affidavit of Agent, or of Party Receiving from Agent, by whom Commission or Deposition is Returned. (Code Civ. Pro., §§ 904, 905 ) [Title of cause.] County, ss. : [*] F. E,., of , being duly sworn, says, that he, as the agent of A. B., the plaintiff [or defendant] in the above entitled action, received on the day of ■ '- , 18 — , from the hands of J. K., of , in the State of , the packet now delivered by deponent to J. L., county clerk of county, to whom it is directed [or novi^ delivered by deponent to Hon. A. O., a Judge of the Court, directed to J. L., county clerk of county], and that said packet has not been opened or altered since he so received it. F. E. [Jurat as in form Ko. 46. J [Or as above to (*), and from thence as follows : O. P., of , being duly sworn, says, that he received from T. E., the agent of the plaintiflE {or defendant) in the above entitled action, on the day of , 18 — , the packet now delivered by deponent to J. L., county clerk of the county of , to whom it is directed {or now de- ' This notice is to be served at least of tlie attorney for the adverse party five judicial days before the deposition and the place where the deposition is is talien, and one judicial day in addi- to be taken. (Code Civ. Pro., § 899.) tion for each fifty miles, by the usual ' See note 3 to form No. 123. route of travel, between the residence Depositions. 299 livered by deponent to Hon. A. 0., a judge of the Court, directed to J. L., clerk of county) ; that said T. R. is dead {or from sickness) (or other casualty, stating what), is unable to. deliver said packet; that said packet has not been opened or altered since he so received it, and that he believes that it has not been opened or altered since it came from the hands of J. K., of , in the State of 0. P [Jurat as in form No. 46.] No. 393. Stipulation that Commission Issue. (Code Civ. Pro., § 908.) [Title of cause.] It is hereby stipulated, pursuant to section 908 of the Code of Civil Procedure, that an order' of the - • Court may be entered, [*] directing that a commission issue in the above entitled action, to I. J., of '- , in the State of , to examine E. F., of , in said State, as a witness on the part of the ■, upon in- terrogatories to be annexed to said commission \or other method, stating it] {or to examine any witness who may be produced by either party, on or before the ■ day of , 18—, upon oral questions to be put to the witness, when he is produced] ; to take and certify the deposition of each witness so examined, and to re- turn the same, and the commission, immediately after the expiration of the time limited for the production of witnesses, according to the directions given in or with the commission. Said commission is to be in the foim pre- scribed by arti(!le second of title three of chapter nine of the Code of Civil Procedure, and is to be executed in the manner prescribed by said article [or olher manner of exe- cution, stating it] ; and the defendant {or plaintiff] may join therein, and the same is to be returned through the post- ' An order must be entered for the also, Clmrcliill v. Carter, 15 Hun, 385, issuing of the commission. (Code Civ. both of which cases are cited m note 3 Pro., § 908, and see Mason & Hamlin to form No. 383, g. v, Co. V. Pugsley, 19 Hun, a83; but see, 300 FoEMS Eelating to office [or by A. Y., of , an agent of the plaintiff {or defendant)], and that the proceedings in said action be stayed until the return of said commission. Dated , 18—. A, F., Plaintiff \'i Attorney, [Office address.'] B. J., Defendants Attorney. [Office address.'] [Or as above to (*), and from thence as follows : Direct- ing that the deposition of E. F., of , in the State of , a witness on the part of the plaintiff {or de- fendant), be taken, in the above entitled action, by I. J., of , in said State, on or before the day of ■ , 18 — , in the manner provided by article second of title three of chapter nine of the Code of Civil Procedure, for the taking of depositions of witnesses ; and the defend- ant {or plaintiff) may Join therein, and the same is to be re- turned through the post-office {or by A. Y., of , an agent of the plaintiff) {or defendant), and that the proceed- ings in this action be stayed until the return of said dej^osi- tion.] Dated , 18—. A. F., Plaintiff'' s Attorney. [Office address.'] E. F., Defendant s Attorney. [Office address.'] No. 394. Notice of Motion for Suppression of Deposition. (Code Civ. Pro., § 910.) [Title of cause.] As in form No. 324 to [^], and from thence as follows : That the deposition of E. F., taken under a commission issued in this action [or under the order of the Court, dated], on the day of , 18 — , be suppressed," on the grounds stated in the affidavit hereto 1 See note 3 to form No. 133. Huu, 2S3), O'Brien v. Comm. Ins. 5 See Butler v. Flanders (56 How. Co. (41 N. Y. Super. Ct., 334), Palmer v. Pr., 512; 44 N. Y., Super. Ct., 531), Great Western Ins. Co (47N.Y. Super. Newton v. Porter (69 N. Y., 183), Ct, 455), Jrare I)rexell(l Law Bui., 6), Mason & Hamlin Co. v. Pugsley (19 Earner v. Mylens (1 Law. Bui., 18), Depositions. 301 annexed, and for such other or further relief as may be proper, with costs of this motion. Yours, etc., M. N., Attorney for Defendant. [Office address.'] To I. P., Defendant' s Attorney. No. 395. Order for the Suppression of a Deposition. (Code Civ. Pro., § 910.) [At, etc., as in form No. 80. J [Title of cause.] It having appeared by the affidavit of A. B., dated - 18 — , that the deposition of B. F., taken under a commission issued to I. J., of , in the State of , to ex- amine E. F., a witness, on the part of the plaintiff \or de- fendant] \or taken pursuant to the order of the ■ Court, dated , 18 — ], and which was filed in the office of the clerk of county on the day of , 18, has been improperly [or irregularly] taken \or returned (or state other cases provided for in section 910)], and due notice of this motion having been given to F. H., the attorney for the plaintiff [or defendant], and on filing [name opposing papers], and on motion of C. D., of counsel for the defendant ; and after hearing A. M., of coun- sel for plaintiff ; it is Ordered, that the said deposition be and the same is hereby suppressed' [with dollars costs of this motion, to be paid by the to the ]. No. 396. Affidavit for Commission, where the Witness does not Un- derstand the English Language. (Code Civ. Pro., §912.) Add to forms Nos. 375, etc., as follows :• That said E. F. is, Davey v. Lowric (2 Law. Bui., 40), as ' See note 3 to last form No. 394, as to suppression of deposition. to suppression of deposition, etc. > See note 2 to form No, 122. 302 Forms Relating to by birth, a German [or state other nationality], and does not understand the English language, but understands the' Ger- man language. A. B. [Jurat as in form No. 46.] No. 397. Order for Commission, where Witness does not Understand the English Language. (Code Civ. Pro., § 913.) Add to forms Nos. 381, etc., as follows : And it appearing that said E. F. is a German [or state other nationality], and does not understand the English language, but understands the [German] language ; it is further ordered, that written interrogatories, to be annexed hereto [or to said commission], by way of direct and cross-examination, be framed in the English language, and also in the [German] language ; that only the interrogatories framed in the [German] language be put to the witness, and that his answers be taken, and the certificates be made out, in the same language. [And that the said [plaintiff] A. B., pay to the said C. D., the [defendant], the sum of dollars, for the expense of procuring the interrogatories, in his behalf, to be trans- lated.] Date [of judge's order]. A. O., Judge [or Justice] of the Court {when made iy judge). No. 398. Letters Rogatory. (Code Civ. Pro., § 913.) State of New York, ss. : The People of the State of New York, to any Judge or tri- hunal having jurisdiction of civil causes at the Island of 81. Croix, greeting : Whereas, a certain suit is pending in our Supreme Court, in which A. B. is plaintiff and C. D. defendant, and it has Depositions. 303 been suggested to us that there are many witnesses residing within- your iurisdiction, without whose testimony justice cannot be completely done between the said parties ; we therefore request you that, in furtherance of justice, you will, by the proper and usual course of your court, cause such witnesses to come before you, or some competent per- son, by you for that purpose to be appointed and author- ized, at a precise time and place by jow to be fixed, and there to answer on their oaths and atfirmations to the sev- eral interrogatories hereto annexed ; and that jon will caiise their depositions to be committed to writing, and returned to us under cover, duly closed and sealed up, together with these presents ; and we shall be ready to do the same for you, in a similar case, when required. Witness, A. O., a judge of our Supreme Court, at tlie of , the day of , 18 — .' J. L , County Cleric of County. J. E., Plaintiff'' s Attorney. [Office address'.] Article Third. FORMS RELATING TO DEPOSITIONS TAKEN WITHIN THE STATE FOR USE WITHOUT THE STATE. (Code Civ. Pro., Cb. 9, Tit. 8, Art. 3 ) No. 399. Subpoena for attendance of witnesses before commissioner in suit pending in foreign State or country. ' Where the execution of a commis- Pet. C. C. Rep., 236) and in Sweden. sion in a foreign country is forbidden (3 Ves., Sr., 330; 1 Barb. Ch. Pr., 805, by its laws, the proper course of pro- note [r] ; see further, Froude v. Froude, cedure is to apply for letters rogatory 1 Hun, 70; Anonymous, 59 N. Y., 313, or requisitory, addressed to the courts as to letters rogatory. of the foreign country, requesting The practice will be substantially them to take the deposition. (3 Wait's the same, on application for these let- Pr.,683; citing the Republic of Mexico ters, as for a commlssioQ, except that V. Arrang6is, 3 Abb., 470; S. C , 11 the alDdavit should show "that there How. Pr. , 1 ; In the matter of the execu- is good reason to believe that the ends tionof a foreign commission, 5 Sandf., of justice will be better promoted 674; see, also, 1 Barb. Ch. Pr. [3d thereby, than by the issuing of a corn- ed 1. 805.) mission " (Code Civ. Pro., § 913; see Commissioners are forbidden to ad- forms Nos. 875; etc., ante.) minister oaths in the island of St. « Sep note 3 to form No. 123. Croix (6 Wend., 476), in Havana (I 304 FoEMS Eelating to No. 400. Affidavit to obtain subpoena in suit in foreign court, where no com- mission lias been issued. 401. Subpoena of judge or justice of tlic peace in foreign suit, where no commission has issued. No. 399. Subpoena for Attendance of Witness before Commissioner in Suit Pending in Foreign State or Country. (Code Civ. Pro., § 915.) To of : You are hereby commanded to appear and attend [*] before I. J., a commissioner named in a commission issuing out of the Court of the ■ of \pr before M. N., a commissioner within the State for the State of \or before I. J. (official title)], at , in the of '], on the day of , 18—, at o'clock in the noon, to testify [on the part of the '- — ] in an action [or suit, or special proceeding] between A. F., plaintiff, and G. H., defendant \or give other title], pending in said court. And hereof fail not at your peril. Witness my hand, this day of , 18—, at the of .' A. O., Judge \or Justice] of the Court. No. 400. AffldaTit to Obtain Subpoena in Suit in Foreign Court, where no Commission has been Issued. (Code Civ. Pro., § 917.) [Title of action, etc.] COUKTY, ss. ,A. B., of , being duly sworn, says, that he is the [insert description of affiant]; that E. F., who resides {or ' The place of attendance must be ' The subpoena is granted upon pre- ■within the county in which ho resides senting an affidavit of the materiality or sojourns ; or if it is in another of the witness to the party and the county, not more than forty miles dis- commission, notice or other paper tant from his residence, or the place of authorizing the testimony to be taken, bis sojourn, (Code Civ. Pro,, § 916. (Id , § 915.) Depositions. 805 is sojourning] at , in the State of New York, is a material witness for the plaintiff [or defendant, or other description] in the above action [or suit, or special proceed- ing] ; that no commission to take the testimony of said E. F., in said action [etc], has been issued ; that accord- ing to the course and practice of the [naming court], the court in which the above entitled action [etc.] is pending, the deposition of a witness, taken before a judge of this court pursuant to a subpoena issued by him commanding such witness to appear before him, to testify as a witness in an action [etc.] pending in said court, is authorized to be received in evidence on the trial [or hearing] of said ac- tion [etc.]. A. B. [Jurat as in form No. 46.] No. 401. Subpoena of Judge or Justice of* the Peace in Foreign Suit, where no Commission has Issued. (Code Civ. Pro., §§ 917, 918.) As in form No. 398 to [*], and from thence as follows : Before me at , in the of , in the county of , on the day of , 18—, at o'clock in the noon, to testify, on the part of the , in an action [or suit, or special pro- ceeding] pending in said court between A. F., plaintiff, and G. H., defendant [or give other title], pending in the [naming court of the State (or Territory) or of the United States]. And hereof fail not at your peril. Witness my hand, this day of , 18—, at the of . A. O., Judge [or Justice] of the Court {or Justice of the Peace). TITLE III. FORMS RELATING TO DOCUMENTARY EVIDENCE. (Code Civ. Pro., Ch 9, Tit. 4, Art. 1.) No. iOi. Certificate by officer having custody of paper that it cannot he found. 306 FOEMS Relating to No. 403. Notary's certificate of presentment, etc., of note, etc. 404. Notary's certificate of protest of bill for non-acceptance. 405. Affidavit to prevent notary's certificate of presentment, etc., being presumptive evidence. No. 402. Certificate by Officer Haying Custody ef Paper, that it Cannot be Found. (CodeCiv. Pro., §931.) State of New York, County of , f I, J. L., county clerk of the county of [or other official description], do hereby certify that I have made dili- gent examination in my office' for the [describing paper], the legal custody of which belongs to me, and that said cannot be found. In witness whereof, I have hereunto set my hand and [L. S.J official seal, on this day of -—, 18—. J. L., Cleric of the County of [or other descri;ptioiti\. No. 403. Notary's Certificate of Presentment, etc., of Note, etc. (CodeCiv. Pro., §923.) State of New Yokk, City and County of - ' ' Be it kno \vn, that on the day of , in the year of our Lord IS — , at the request of E. F., I, W. H. B., a notary public of the State of New York, duly admitted and sworn, dwelling in the city of , did present the original note made by F. W. for dollars, which is hereto annexed, at the place of business of said F. W., and de- 1 It seems, Ihat the certificate of a search has been made for it, in his clerk of the proper county as to the office, as required by section 921 of non-filing of the paper is defective, the Code of Civ. Pro. (Briggg v, Wal- witere it omils to state thut diligent dron, 83 N, y , 583.) Documentary Evidence. 307 manded the payment thereof , which was refused." I, there- fore, on the same day and year above written, and after said demand and refusal, duly notified the indorsers of the non- payment of the same, as follows : By putting in the post- office in said city of , notices of such demand of payment and non-payment, addressed as follows : One for E. S., directed to him at , New York, and one for I. B., directed to him at — , Pennsylvania, and paid the postage thereon, each of the above named places being the reputed place of residence of the person to whom the notice was directed, and the post-office nearest thereto. Whereupon, I, the said notary, at the request aforesaid, have protested, and hereby solemnly protest, against the maker and indorsers of the said note, and all others con- cerned, for all exchange, re-exchange, costs, damages and interest incurred, or to be incurred, by reason of the non- payment of the said note. In witness whereof, I have hereunto subscribed my name P n and affixed my seal of office, the day and year first above written.' W. H. B., Notary Fublic. No. 404. Notary's Certificate of Protest of Bill for Non- Acceptance. (Code Civ. Pro., §928.) State of New York, ) City and County of , f Be it known, that on the day of , A. D. 'A notarial certificate, founded upon giving a second, and tlie second is of a presentment and demand, made, not equal force -with llie foVmer. (Kellum by the notary, but by bis cleric, is void. v. McKoon, 18 Week. Dig , 448 [Gen. (Gawtry V. Doane, 51 N. Y., 84.) T., Sup. Ct., 3d dept.]; citing Cayuga ^ The language of section 023, Code Co. Bank v. Hunt, 2 Hill, 685, and Civ. Pro. , does not forbid tiie construe- distinguishing Dutchess Co. Bank v. tion that a notary may not issue sev- Ibbottson, 5 Den,, 110.) cral certificates of protest, each of It is not the original or first certifl- whicb shall be an original, and com- cate which is made evidence by the petent as evidence. The loss of one Code, but the certificate of the notary certificate does not bar the oflBcer from who protested the note. (Id.) 308 FOEMS Eelating to 18—, at the request of M. Y., of said city, I, P. C, a notary public of tlie State of New York, duly admitted and sworn, dwelling in the city of , did present the original draft or bill of exchange, hereunto annexed, to G. H., at his place of business, the drawer therein named, for ac- ceptance, who refused to accept the same. Whereupon, I, the said notary, did protest, and by these presents do publicly and solemnly protest, as well against the drawee [and indorser] of the said bill as against all others whom it doth or may concern, for exchange, re-ex- change, and all costs, damages and interest already incurred, and to be hereafter incurred, for want of acceptance of the same. I, therefore, on the same day and year above written, and after said demand and refusal, duly notified the maker or drawer [and indorser] of the non-acceptance of the same, as follows : By putting in the post-office in the [city] of , notices of such demand, refusal and non-accept- ance, and paying the postage thereon, addressed as follows : One for A. F., directed to him at Geneva, New York, one for M. P., at Springfield, Massachusetts, each of the above named places being the reputed place of residence of the persons to whom the notice was directed, and the post-office nearest thereto. In witness whereof, I have -hereunto subscribed my name, [L. s.] and affixed my seal of office.' F. C, Notary Public. No. 405. Aflfidavit to Prevent Notary's Certificate of Presentment, etc., being Presumptive Evidence. (Code Civ. Pro , § 923.) [Title of cause.] County, ss.: A. B., of , being duly sworn, says, that he is the defendant {or plain tiflf] in the above entitled action ; that 1 gee note 1 and 8 to la§t form No. 403, Documentary Evidence. 309 he has not received notice of non-payment [or of non-ac- ceptance] of the note [or bill] upon which this suit is brought [or which is set up as a counterclaim by defend- ant's answer herein].' A. B. [Jurat as in form No. 46.] ' See Gawtry v. Doane, 51 N. Y., 84, cited in note 1 to form No. 403. 310 FoEHS Relating to CHAPTER X. FORMS RELATING TO TRIALS. TITLE I. Forms relating to trials generally, including exceptions ari^ motion for a new trial. TITLE II. Forms relating to trials without a jury. TITLE III. Forms relating to trials by jury. TITLE I. Article First. forms relating to noticing action for trial, and placing same upon calendar. (Code Civ, Pro , Ch. 10, Tit. 1, Art. 1.) No. 406. Notice of trial at circuit or special term. 407. Notice of trial before referee. 408. Note of issue. ISTo. 406. Notice of Trial at Circuit or Special Term. (Code Civ. Pro., §^.1) ^yi' [Title of cause.] '■» ^ SiE— Take notice, that the above entitled action will be brought to trial [*] [and an inquest taken therein'], at the next circuit p^'^pecial term] of this court, to be held at the court house in the ^^^^ of -^^^— ^=pii the-county of ^^=- , on the day of , 18 — , at the opening of the court, or as soon thereafter as counsel can be heard." Dated , 18~. Yours, etc., I. J., Attorney for Plaintiff \or Defendanf\. [Office address/] To K. L., Esq., Attorney for Defendant \or Plaintiff ^ ' It is not necessary for defendant to An inquest cannot be taken where the insert a notice that he will move to answer is verified. (Id.) dismiss the complaint to entitle him ^ Either party, who has served the to do so. (See § 980, Code Civ. Pro) notice, may bring the issue to trial Noticing for Trial, etc. 311 Due service of the above notice of trial, on the day of ■- , 18 — , is hereby admitted. Attorney for Defendant [or Plaint! ff^ No. 407. Notice of Trial Before Referee. (Code Civ. Pro., §§ 977, 1018.) As in form No. 406 to [*], and from thence as follows : Before M. F., referee, appointed by order of the — ■ Court, made in the above entitled action, dated , 18 — , at [his office] in the of , on the -• day of , 18 — , at o'clock in the noon. Dated , 18—. Yours, etc., I. J., Attorney for Plaintiff [or Defendant]. [Office address.'] To J. K., Esq, Attorney for Defendant [or Plaintiff 1. No. 408. Note of Issue. (Code Civ. Pro., § 977.) COURT, CouKTY. A. B., Plaintiff, agst. C. D., Defendant. ■E. P., Plaintiff's Attorney. Last pleading served , 18—. G. H., Defendant's Attorney. Issue of fact, triable by jury ^or by the, court withettUa— Jur y (or issue of law)].^ . County Clerk of County : %. Please put the foregoing issue [or issues] on the calendar for the circuit [or name other terra] of the Court, (§ 980, s«pra) ; but the defendant must the complaint. (Browning v. Paige, place the cause regularly on the cal- 7 How. Pr., 487.) endar, to be entitled to a dismissal of ' See note 2 to form No. 123. ' See note 3 to form No. 123. 312 FOEMS Relating tO to be lield at , on the day of 1 Dated , If— E. F., Plaintiff's Attorney [or Q. H., Defendant's Attorney]. [Office address.'] Article Secokd. FORMS RELATING TO PLACE OF TRIAL. (Code Civ. Pro., Ch. 10, Tit. 1, Art. 3.) No. 409. Demand by defendant for change of place of trial to proper county. 410. Consent by plaintiff's attorney to change of plaoe of trial to proper county. 411. Affidavit to procure ohange of place of trial to proper county after demand. 413. Affidavit to procure change of place of trial for convenience of ■witnesses. 413. Affidavit to change place of trial to secure an impartial trial. 414. Notice of motion to change place of trial. 415. Order to show cause why place of trial should not be changed with stay of proceedings. 416. Affidavit to prevent change of place of trial. 417. Order changing place of trial. No. 409. Demand by Defendant for Change of Place of Trial to Proper County. (Code Civ. Pro., § 986.) [Title of cause.] Sir— Take notice, that the defendant hereby demands and requires, that the above entitled action be tried in the county of , that being the proper county for the trial thereof, and that the place of trial therein be changed accordingly." Dated , 18—. Yours, etc., "^ M. N., Defendant's Attorney. [Office address.'] To E. P., Esq., Plaintiff's Attorney. ' See note 3 to form No. 123. ' See Sherman v. Gregory (42 How. Place or Trial. 313 No. 410. Cuiiseiit l)y Plaintiff's Attorney to Change of Place of Trial to Proper County. (Code Civ. Pro., §968.) [Title of cause.] Sir — Take notice, that I consent that the place of trial herein be changed to the county of , as proposed by tlie defendant in his demand heretofore served on me. Dated , 18—. Yours, etc., E. F., Attorney for Plaintiff, [Office address.'] To M. N., Esq., Defendant's Attorney. No. 411. Affidavit to Change Place of Trial to the Proper County [Title of cause.] County, ss.: After Demand. (Code Civ. Pro., § 968.) C. D., of , being duly sworn, says, that he is the defendant above named \or attorney for the above named defendant] ; that this action is brought to [state object of suit], and the county of is designated in the com- plaint as the place of trial [that both the plaintiff and the defendant reside in the county of , and resided there at the commencement of this action {or that the de- fendant resided, at the commencement of this action, in the county of , and that the plaintiff then resided and Pr., 481), Van Dyck v. McQuade (18 Sugar Co., 11 Abb. N. C, 333; S. C, Hun, 376), Christy v. Kiersted (47 How. 63 How. Pr. ,516.) Pr. ,467), Veeder v.Balter (S3 N. Y. , 156), Tbe time for service of notice of mo- Stacom V. Moon (15 Week. Dig., 348). tion, under section 986, Code Civ. Pro., A domestic corporation, sued by a non- is fifteen days after service of demand, resident, may liave the place of trial After the expiration of that time, the changed to the place designated in its change is waived. (Id.) But see Clark articles of incorporation, as the place v. Campbell (54 How. Pr., 166). where its principal business is to be ^ See note 2 to form No. 123. located. (Duche v. Buffalo Grape > See note 3 to form No. 123. 40 „ 314 Forms Relating to still resides in the county of ')] ; that the summons and complaint in this action were served upon this defend- ant on the day of , 18— ; that on the day of , 18—, and with his answer [or before ser- vice of his answer], this deponent caused the annexed de- mand, in writing, to be served on the attorney for the plaintiff,' and that said attorney has not consented to cliange the place cf trial f that the ground for requiring the change of place of trial is as follows : that both the plaintiff and the defendant reside in the county of [or state other ground].' CD. [Jurat as in form No. 46.] No. 412. Iffldavit to Procure Change of Place of Irial for Con- venience of Witnesses. (Code Civ. Pro., § 987.) [Title of cause.] ■ CotTNTT, ss. ; C. D., of , being duly sworn, says, that he is the defendant [or defendant's attorney '] in the above entitled ' Insert this clause as to residence, deed, it does not appear that it is neces- ■vrhere a change of place of trial is sary that there should be a defense at desired on the ground of the residence all, to entitle the defendant to a change of the parties, under section 084. See to the proper county. Lyon V. Lyon (iiO Hun, 455). * It is provided by rule 47 of Gen. ' The motion can only be entertained Rules of Prac. , that no order to stay after a demand, pursuant to section proceedings shall be granted for the 986, Code Civ. Pro., and such demand purpose of moving to change the place must be made by an attorney who has of trial, unless it shall appear, from appeared in the action. (Van Dyck the papers, that the defendant has used V. McQuade, 18 Hun, 371.) due diligence in preparing the motion 2 It has been usual to insert an aflB- for the earliest practicable day after davit of merits, in this affidavit, in issue joined, and that such order shall supposed compliance with section 46 not stay the plaintiff from taking any of the judiciary act of 1847 (ch. 280); step, except subpoenaing witnesses for but tills section was repealed by section the trial, without a special clause to 17, of chapter 470 of 1847, and both of that effect. those acts, with a few exceptions, of ' The affidavit must, in general, which said section 46 was not one, be made by the defendant himself; were repealed by chapter 245 of 1880. though, under special circumstances, There exists, therefore, no statute or set forth in the affidavit, it has been rule now, requiring such affidavit. In- held sufficient when made by another Place of Trial. 315 action ; that said action was commenced by the service of the summons and complaint upon the deponent [o?- upon defendant] on the, day of , 18—, and that issue was joined herein on the day of , 18 — , by the service of the defendant's answer [or of the plaintiff's reply] [*] ;' that this deponent has fully and fairly stated the case to , his counsel in this action, who resides at , and that he has a good and substantial defense on the merits to the action, as he is advised by his said counsel, and verily believes to be true ;' that this de- ponent has fully and fairly stated to his said counsel the facts which he expects to prove by each and every one of the following witnesses, viz.: E. F., G. H. and J. K. ; that each and every one of them are materitil and necessary witnesses for his defense on the trial of thi^ cause, as he is advised by his said counsel, and verily believes ; and that without the testimony of each and every one of the said witnesses, the defendant cannot safely proceed to the trial of this cause, as he is also advised by his said counsel and verily believes ; and that each and every one of said witnesses resides in the county of [viz.: E. P. in the town of ,' G. H. in the town of , and S. K. in the town of , in said county] ; that the facts which he expects to prove by said witnesses are as follows : By E. F., the fact that ; by G. H., the fact that e. g., tbe defendant's attorney. (Brit- side in the county to whicii tlie change tan V. Peabody, 4 Hill, 63, note.) The is sought, is sufficient, without speci- change may be made, also, upon the fying the town or village, in which each plaintiff's, motion (Pease v. Smith, 3 of them resides. (Bleecker v. Smith, Lans., 438; see Swartwout v. Payne, 37 How. Pr., 38; see, also, as to form IG Johns., 149.) of affidavit. Carpenter v. Continental ' The motion cannot be made until Ins. Co., 31 Hun, 78; Ackerman v. issue of fact has been joined, (Mer- Delude, 39 id,, 138 ) rill V. Grinnell, 10 How. Pr., 33; Hart- Sections 983, 983 and 984, Code Civ. man v. Spencer, 5 id , 135. Pro., are to be read in connection with ' See State Bank of Syracuse v. Gill section 987, and the words "must be (38 Hun, 406). tried," in those sections, are limited by The provisions of article second of the last-named section, which confers title one of chapter 10, Code Civ. Pro., full power upon the court to change relating to place of trial, are applica- the place of trial for any of the reasons ble to an action in the Supreme Court therein specified. (Gorman v. South only. (§ 091, Code Civ. Pro ) Boston Iron Co., infra.) ' An affidavit for a change of venue, As to what will be considered upon which states that all the witnesses re- appeal from the order, see Cromwell 316 Forms Kelating to and by J. K., the fact that , etc. [here should be inserted any matters relating to the nature of the controversy, and the place where the cause of action or de- fense, or both of them, arose, which may be deemed im- portant, and which do not fully appear by the pleadings].' A. B. [Jurat as in form No. 46.] No. 413. Affidavit to Change Place of Trial to Secure an Impartial Trial. (Code Civ. Pro., § 987, subd. 2.) As in form No. 412 to [*], and from thence as follows: That an impartial trial cannot be had in the county of ^ the county designated in the complaint as the place of trial of this action, as this deponent verily be- lieves, the grounds of which belief are as follows : [state grounds].'' A. B. [Jurat as in form No. 46.] No. 414. Notice of Motion to Change Place of Trial with Stay of Proceedings. (Code Civ. Pro., §§ 986, 987.) As in form No. 168 to [*], and from thence as follows : At the opening of the court, or as soon thereafter as counsel can be heard, that the place of trial in this action be changed from the county of to the proper county," viz.: the V. Romer (18 Weeli. Dig., 440), and N. Y. Week. Dig. , 142 ; see, also, Mur- Gorman v. South Boston Iron Co. (18 ray v. Minier, 10 id., 117, and see note Week. Dig., 539.) 4 to form No. 411, as to stay of pro- ' See rule 48 of Gen. Rules of Prac. ceedings. Where, on a motion for change of ^ See notes to last form No. 412. place of trial for convenience of wit- ' Under section 986 of Code Civ. nesses, it appears that the necessary Pro. , the notice should he given within and material witnesses are nearly equal ten days, after the Ave days within on each side, the place of the transac- which the plaintiff must consent to such lions controls. (Peck v. Parker, 15 change, after service of demand. If not Place of Trial. 317 county of [or from tlie county of to the county of ], and for such other and further relief as may be proper, with costs of this motion. A. P., Defendant ^ Attorney. [Office address.'] To I. L., Plaintiff "" s Attorney. Until the hearing and determination of the motion above noticed, let all proceedings on the part of the plaintiff be stayed." Dated , 18—. A. 0. , Judge [or Justice] of the Court. No. 415. Order to Show Cause why Place of Trial Should not he Changed with Stay of Proceedings. (Code Civ. Pro., §§ 980, 987.) [Title of cause.] On the affidavit hereto annexed, and upon the pleadings in this action, and upon the demand mentioned in said affi- davit, let plaintiff show cause at, etc., why the place of trial of said action should not be changed from the county of to the county of , and why the defendant should not have the costs of this motion, and such other order or relief as may be proper. And let copies of this order, and cff the annexed affidavit, be served upon the plaintiff's attorney, on or before the day of , 18—, personally, or by depositing the same in the post-office at , inclosed in a post- paid wrapper, directed to the said plaintiff's attorney at And until the determination of this motion, let all pro- ceedings on the part .of the plaintiff be stayed." Dated , 18—. A. 0. , Judge [or Justice] of Court. so given, the light to a change is waived, motion is to be made, see Duche v. (Diiche V. Buffalo Grape Sugar Co., 11 Buffalo Grape Sugar Co. (63 How. Pr,, Abb. N. C. 333; S. C , 63 How ,510; 516; Code Civ. Pro., § 980, and note but see Clark v Campbell, 54 How. 1 to form No. 414.) Pr., 166.) See note, 1, p. 113, to form No. 163, ' Sec note 3 to form No. 133. as to orders to show cause ; and note 4 to *As to tUe time within which the formNo, 411, as to stay of proceedings. 318 FoEMS Relating to Ko. 416. Affldayit to Preyeut Change of Place of Trial. (Code Civ. Pro., §| 980, 987.) [Title of cause.] County, ss. : A. B., of ; , beiBg duly sworn, says, that he is the plaintiflE in the above entitled action ; that he has fairly and fully stated to M. N., his counsel in this action, who resides at , the facts which he expects to prove by eacli and everyone of the following witnesses, viz.: E. P., of , in the county of ; G. H. , of , in the county of ; and tha-t they are each and every one of them material and necessary witnesses for de- ponent on the trial of this action, as he is advised by his said counsel and verily believes ; and that without the tes- timony of each and every one of said witnesses, deponent cannot safely proceed to the trial of this action, as he is also advised by his said counsel and verily believes ; that the facts which this plaintiff expects to prove by the said witnesses, are as follows [state facts to be proved by each witness, as in form No. 412], and add as in form No. 412, as to nature of controversy, etc. A. B. [Jurat as in form No. 46.] No. 417. Order Changing Place of Trial. (Code Civ. Pro., g§ 986, 987.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing notice of motion, and the affidavits of C. D., the above named defendant, and of A. B., the above named plaintiff ; and after hearing I. J., counsel for the defendant, for said motion, and J-, K., coimsel for the plaintiff, in opposition thereto, it is hereby Ordered, that the place of trial in this action be clianged from the county of to tha county of , with ^^ — — dollars costs, to abide the eyent of this action, Exceptions, Case, etc, 319 Article Thied. forms relating to exceptions, case and motion for a NEW TRIAL. (Code Civ. Pro., Ch. 10, Tit. 1, Art. 3.) No. 418. Exceptions to ruling of court or referee. 419. Case (without exceptions) on appeal from judgment, rendered upon verdict of jury. 430, Case (containing exceptions) on appeal from judgment, rendered on trial by jury. 431. Case and exceptions, on appeal from judgment, rendered upon report of referee or decision of the court. 433. Notice to be indorsed on case. 433. Bill of exeeptions. 434. Amendments proposed to case or exceptions. 425. Notice of settlement of case, etc. 436. Notice of motion for a new trial. 437. Order granting or denying motion for a new trial, 438. Affidavit to move for new trial on the ground of surprise. 489, Affidavit to move for new trial on the ground of newly discovered evidence. 430. Order for time to prepare case, vrith stay of proceedings. No. 418. Exceptions to Ruling of Court or Referee. (Code Civ. Pro., § 994.) [Title of cause.] The plaintiff [or defendant] hereby gives notice that he excepts to the rulings of the court [or of the referee], upon questions of law, in the above entitled action, contained in its v?-ritten decision [or contained in his report], as follows : To the first of said conclusions of law. To the second of said conclusions of law. To the third of said conclusions of law, in so far as it is thereby decided that, etc' Dated , 18—. E. F., Attorney for Plaintiff [or Defendant]. [Office address.'] 'As to time for taking exceptions entry of judgment and notice thereof, to rulings of court or referee, and that see French v Powers (80 N Y., 146). such time docg not begin to run unti] * See note 3 to form Ng 133, 820 FoEMS Eelating to No. 419. Case (without Exceptions) on Appeal from Judgment, Ren- dered upon Yerdict of Jury. (Code Civ. Pro., §997.) [Title of cause.] 1 The issues in this action came on to be tried at, etc. 2 . [name time and place], before, etc. [name the judge], 3, etc' at a circuit court, held for the county of Albany. A jury was duly called and sworn, and the case was opened by counsel for the plaintiflE. The plaintiff gave in evidence the following [state the testimony, by whom given, and the documentary evidence, if any]. The defendant then moved for a nonsuit, which the court overruled. The defendant then gave in evidence the following [state the testimony, etc.. as before, in respect to the plaintiff]. The judge then charged the jury that [here state the charge]. The defendant' s counsel then prayed the court to charge the jury that [state jjarticulariy what], which the judge de- clined to do. The jury found a verdict for [state for whom, etc.]." J. K., Attorney for \I)efendant\ [OfRce address."] A. 0., Judge [or Justice\ oftlie Court. [Add certificate of judge as in form No. 421.] [Indorsement of notice as in fonn No. 422."] ' Rule 32 of General Rules of Prac- so much of the evidence and other tico, requires the lines of the case to proceedings, upon the trial, as is ma- he so numhcred, that each copy shall terial to the questions to be raised correspond. thereby, and also the exceptions taken ^ If the verdict of a jury is impeached by the party making the case. If it for error on their part only, a case with- becomes necessary, provision is made out exceptions will be sufficient; but for separating the exceptions from the if the impeachment is for error of liiw, case. The rules, however, still refer it will be necessary to prepare a case to a case and exceptions, and a case containing exceptions or bill of excep- containing exceptions and a bill of ex- tions. (See 3 Wait's Pr, 424.) ceptions. (Gen. Rules of Prac , 31, The Code of Civ. Pro. (§ 997) only 33, 34, etc.) provides for a case to be prepared on ^ See note 2 to form No. 133. appeal from a judgment, or motion * Add also statements, etc., as re- for a new trial, which is to contain quired by rule 41. See form No. 431. Exceptions, Case, etc. 321 Ko. 420. Case (Containing Exceptions) npon Appeal from Judgment, Rendered on a Trial by Jury. (Code Civ. Pro., §§ 997, 1353.) [Title of cause.] 1 As in form No. 421 to [*], and from thence as fol- 2 lows : The issues thus joined came on for trial be- 3, etc. fore the Hon. A. O., one of the justices of this court, at a circuit court [or special term of this court], held at the of , in the county of , on the day Of , 18 — . A jury was called and sworn, and the plaintiff, by his counsel, opened the case to the jury. The plaintiff then, to maintain the issues on his part, called as a witness E. F., who testified [insert testimony in full, or so much as is material to the questions raised, and stating the exceptions taken by the party making the case]. The plaintiff" here rested, and the defendant moved for a nonsuit on the following grounds : 1st. That , etc. 2d. That , etc. The court denied the motion and the defendant excepted. The defendant, to maintain the issues on his part, then offered himself as a witness, and testified as follows [insert testimony in like manner as above]. The defendant then offered to show, that on the day of , last, the witness, , stated ■ , etc. The plaintiff objected to this evidence on the following grounds [stating them]. The court sustained the objection, and excluded the evi- dence, to which the defendant excepted. The court charged the jury that [state the substance of the charge, indicating the exceptions taken to any portions.] The jury found a verdict for the plaintiff for dollars.' Motion for new trial, etc. E. P., Attorney for . [Office address."] A. 0., Judge \or Justice'] of the Court. [Add certificate of judge as in form No. 421.] [Indorsement of notice as in form No. 422.] » gee notes to form No. 419 * See note 8 to form No. 183. 41 322 Poems Eelating to No. 421. Case and Exceptions, on Appeal from Judgment, Rendered on Eeport of Referee or Decision of the Court. (Cede Civ. Pro., §§ 997, 1353.) [Title of cause. J 1 This action was commenced on the day of 2 , 18 — , by the service of the summons and 3, etc' complaint therein. The defendant's answer was served on the day of , 18—. The pleadings are contained in the judgment roll, a copy of which is attached to, and forms a part of, this case." No change of parties has taken place, pending the suit [or state any change].' [*] The issues thus joined were referred to E. F., Esq., of , to be heard, tried and determined, and came on for trial before said referee on the day of , 18 — , and subsequent days [or were tried by the court at a circuit court {or Special Term of this court), held at the of , in the county of , on the day of , 18 — (a jury having been duly waived)], when the following testimony and evidence was taken [the referee having first taken the oath required by the Code of Civil Procedure]. Plaintiffs offered in evidence two drafts, and protests an- nexed, which drafts were received, read in evidence, and marked "Exhibit No. 1 " and " Exhibit No. 2," and are as follows [here set out drafts, etc., in full]. The defendant objected to the introduction of the drafts in evidence, on the following grounds [stating them], which objection was overruled, and the drafts were admitted in evidence, to which the defendant excepted. The plaintiffs then rested. A. F. [the defendant] was then sworn [in his own behalf], and testified as follows : I am the defendant in this case, and reside in the of , etc. Witness was shown a paper, and testified : The signature ' The lines of the case are to he so ^ Sec rule 41 of Gen. Rules of Prac, numhered that each copy shall corrcs- and Code Civ. Pro., § 1353. pond. (Rule 33 of Gen. Rules of Prac. ) = See rule 41 of Gen. Rules of Prac. Exceptions, Case, etc. 323 is that of A. & Co. It is a letter to me from them, of , 18—. Defendant's counsel offered the letter in evidence. [The plaintiffs' counsel objected to the evidence as incom- petent, improper and immaterial. The letter was written, and the circumstances of whicli it speaks occurred, after the plaintiffs became the owners of the drafts. The letter is mere hearsay as against the plaintiffs. The referee [or the court] overruled the objection, and the plaintiffs' coun- sel excepted.'] Witness resumed [continue with direct testimony, insert- ing excej)tions, etc., of appellant as above]. Upon cross examination, the witness testified as follows [here insert testimony upon cross-examination, in same manner as upon direct]. Upon re-direct examination, the witness testified as fol- lows [insert testimony, etc., as above]. The case was thereupon summed up and submitted, and upon the submission the plaintiffs' [or defendant's] counsel duly filed with said referee [or with the court] requests, in writing, to find and decide as follows :' 1. That, etc. [stating request.] The referee refused so to find, and the defendant duly excepted. 2. That, etc. [stating request.] The referee declined so to find,'except as found in his report, and the defendant duly excepted. [And the defendant's {or plaintiffs') counsel thereupon duly filed with said referee, requests to find and decide, among other -requests, as follows : First. That [stating first request and decision, as above]. Second. That ■. And the plaintiffs [or defendant] duly excepted to each and eveiy of said findings of said referee.'] ' A case sliould not contain the cxcep- in tlio case arc to be those taken by the tions takt'n by the respondent during party making the case. the trial, unless their insertion can be '' See section 1023, Code Civ. Pro., justified by the existence of a special as lo filing requests to find. As to reason thei'efor. (Dabney v. Stevens, effect of refusal to find as requested, 10 Abb. [N. S.]. 39; aS'd, 46 N. Y., see id., § 003, and sec Harris v. Van 681.) See also, section 907, Code Civ. Wart (10 Week. Big., 208 [N. Y. Ct. Pro., that the exceptions to be inserted of App.]), and casCJ there cited, as to 324 Forms Relating to The referee [or the court] thereafter made and delivered his report [or made its decision, in writing], which was duly filed, and is contained in the judgment roll herein, and is hereto annexed. And the defendant [or plaintiff] thereupon duly filed ex- ceptions to said report [or decision] which exceptions are contained in [or annexed to] the judgment roll herein; and are hereto annexed and form a part of this case.' [The foregoing is all the testimony given, and all the pro- ceedings had upon the trial.'] The following opinion was rendered by the referee [or judge (insert opinion, or insert afiidavit that no opinion in writing was given ; or, if given, that a copy could not be procured)]." A. F., Defendant' s Attorney/. [Office address.*] The foregoing case and exceptions, settled by and before me this day of , 18 — , and, as so settled, ordered filed in the county clerk's ofiice, and to b3 annexed to the judgment roll herein. ° The exhibits are to be printed at length." E. F., Referee [or Judge, etc.]. the sufBciency of such refusals, and " No case or exceptions to he annexed that the provisions of the Code and to the judgment roll shall hereafter be rules and practice of the court in re- filed by the clerk of the court, unless gard thereto, relate to matters of sub- the same is so ordered by the judge or stance and cannot be disregarded. referee who tried the case. (Kule 35 'It is not necessary to state, in a of Gen. Rules of Prac.) See, also, sec- case, that a finding upon the facts, or lion 997, Code Civ. Pro., that the case ruling upon the law, was made, where is to be signed and settled by the judge the finding or ruling appears in a ref- or referee before whom the action was eree's report, or in the decision of the tried, and see MoNish v. Bowers (30 court, upon a trial by the court with- Hun, 314); but the omission to settle out a jury. (Code Civ. Pro., § 997.) and sign the case cannot be complained This changes the former rule under of in the Court of Appeals, where the Code of Pro. (§ 268), as to which, see. General Term received and acted upon also. Smith v. Grant (15 N. Y., 590), the imperfect case. (Reese v. Boese, Otis V. Spencer (16 N. Y., 610). 93 N. Y., 632.) * See Magnus v. Trischett (3 Abb. * Exhibits shall not be printed at [N. S.], 175), Beard v. Yates (1 N. Y. length, unless the justice, surrogate or Sup. Ct. Rep. [T. & C], 21, addenda), referee so direct. (Rule 31 of Gen. ' See rule 41 of Gen. Rules of Prac. Rules of Prac.) * See note 2 to form No. 123. See, further, as to case and cxcep- Exceptions, Case, etc. 325 No. 422. Notice to be Indorsed on Case. [Title of cause.] Sir.— Take notice, that the within is a copy of the case [or case containing exceptions, or exceptions] proposed on behalf of tlie herein. Dated , 18—. F. P., Attorney for Plaintiff \or Defendaiif\. [Office address.'] To M. F., Esq., Attorney for Defendant [or Plaintiff^ No. 423. Bill of Exceptions. (Code Civ. Pro., § 097.) [Title of cause.] 1 As in form No. 421 to [*] and from thence as fol- 2 lows : " The issues thus Joined came on for trial be- 3, etc. fore Hon. A. O., on^e of the justices of this court, at a circuit court [or Special Term of this court], held at the court house in , on the day of , 18—. A jury was called and sworn, and the plaintiff, by his counsel, opened the case. tions on appeal from a judgment ren- The case must contain tlic evidence dered upon the decision of the court in narrative form, and not by question or a referee's report, Hunt v. Bloomer and answer, as required by rule 34, (13 N. y., 341), Johnson v. Whitlock Gen. Rules of Prac, except as othcr- (13 N. Y., 344), Magie v. Baker (14 wise specially ordered by the court or N. Y., 435), Smith v. Grant (15 N. Y., referee in the case of particular testi- 590), Otis v. Spencer (10 N. Y., CIC), monj', or it will be sent back for rc- IngersoU v. Bostwick (33 N. Y., 435), settlement. (McNishv. Bowers, svpra; Weed v. N. Y. and II. R. R. Co. (39 Smith v. N. Y. C. E. R. Co., 30 Ilun, N. Y, 61G), Doty v. Carolus (Gl N. Y., 144.; 547), Howell v. Mills (56 N. Y., 33C). As to what will disqualify a referee As a case cannot be made until the from settling a case, sec Leonard v. time to file exceptions has expired, the Mulry (93 N. Y., 393). party cannot be put in default for not ' Sec note 2 to form No. 133. serving a case before the expiration of ' A bOl of exceptions is only to con- the time allowed for framing the ex- tain so much of the evidence as may ceptions, as provided by section 994 of be necessary to present the questions Code Civ. Pro. (French v. Powers, of law upon which the same were 80 N. Y., 140.) taken on the trial, and it is made tho 326 Forms Relating to The plaintiff then, to maintain the issues on his part, offered in evidence the following instrument [insert instru- ment], to the admission of which, in evidence, the defend- ant objected on the following grounds [stating them]. The court held that the said instrument was not admissi- ble, and the plaintiff excepted. The plaintiff thereupon called as a witness, E. F., who testified as follows [insert testimony]. On cross examina- tion he testified as follows [insert testimony]. The defendant objected to this testimony, on the ground [stating it]. The court overruled the objection, and the defendant ex- cepted. The witness then farther testified as follows [stating tes- timony and exceptions, etc., as above]. The plaintiff asked the same witness as foUovrs [stating question]. The defendant objected, that this evidence was not admis- sible, on the following grounds [stating them]. The court sustained the objection, and the plaintiff ex- cepted. The defendant offered to show that [stating offer], to which offer plaintiff objected. The offer was allowed, and the evidence admitted, and the plaintiff excej^ted. The court directed the jury to find a verdict for the de- fendant, to which direction the plaintiff excepted.' Dated , IS—. A. P., Attorney for . [Office address.'] , [Add certificate of judge as in form No. 421.] [Indorsement of notice as in form No. 422.] duly of tbo justice, upon settlement, necessarily insA'ted. (Rule 34 of Gen. to strike out all the evidence and other Rules of Prac.) matters -which shall not have been See notes to form No. 421. 1 See note 3 to form No. 123. Exceptions, Case, etc. 327 No. 424. Amendments Proposed to Case or Exceptions. (Code Civ. Pro., § 997.) [Title of cause.] Sir— Take notice, that the [plaintiff] proposes the follow- ing amendments * to the case and exceptions, proposed on behalf of the [defendant] : First amendment : In line of page , erase the words [quoting them], and insert in their place the words [stating them]. Second amendment : Insert in line of page , after the word [quoting it], as follows [stating words to be inserted]. Third amendment : Strike out from line to line of page , both inclusive, and insert in place thereof as follows [stating matters for insertion]. Dated — , 18—. F. P., Attorney for . [Office address.''] To M. N., Attoi-neyfor Defendant. No. 425. Notice of Settlement of Case, etc* (Code Civ. Pro., §997.) [Title of cause.] SiK — Take notice, that the proposed case [of exceptions], together with the proposed amendments, will be presented for settlement to the Hon. A. 0., the judge [or I. L., Esq., the referee], before whom this cause was tried, at his cham- bers in the of — [or at his office in the of ■- — J, on the day of — , 18 — , at o'clock in the ijoon.' Dated ■ , 18—. E. F., Attorney for To M. N . , Attorney for [Office address. ' See Rule 33 of Gen. Rules of Prac. ^ See rule 33 of Gen. Rules of Prac. 2 See note 3 to form No. 133. 328 FOBMS Relating to Ko. 426. Notice of Motion for a new Trial. (Code Civ. Pro., §§1001, 1002.) [Title of cause.] Sir— Take notice, tliat on the case [or exceptions ; or upon the affidavits, of which copies are herewith served upon you], and upon all the pleadings and proceedings in this action, a motion will be made at a Special [or General] Term of the Supreme Court, to be held at , on the day of , 18—, at the opening of court, or as soon as counsel can be heard, for a new trial of this action." Dated , 18—. E. F., Attorney for . [Office address.'] To G. H.J Attorney for . No. 427. Order Granting or Denying Motion for a New Trial. (Code Civ. Pro., §§ 1001, 1003.) [At, etc., as in form No. 80.] [Title of cause.] A motion for a new trial, on the part of the herein, having been made [on the case], and uiDon reading and filing the affidavit of , in support of said mo- tion ; and after hearing C. D., of counsel for the defend- ant, in opposition thereto, and after reading [name any opposing papers] : Ordered, [*] that the said motion for a new trial be and the same is hereby granted [with costs to abide the event ; or on payment of all costs of the action after notice of trial ; or on condition that the stipulate, etc.]. \0r as above to (*), and from thence as follows : That the said motion be and the same is hereby denied (with costs).''] ' See note 2 to form No. 122. before the expiration of the time wilhia "^ By amendment to section 1003 of ivliich an appeal can be taken from the Code Civ. Pro , by chapter 403 of 1894, judgment, notice of tbo roolipn must be given Exceptions, Case, etc. 329 No. 428. Affidavit to Move for New Trial on tlie Ground of Surprise. (Code Civ. Pro , §§ 098, 1001, 1003.') As in form No. 429 to [*], and from thence as follows : That on the said trial, one F. B. was called as a witness on the part of the , bat did not appear. That said F. B. had been duly subpoenaed as such wit- ness, to attend such trial. ~ That, after the trial commenced, he was present at the court room [or other place of trial] ; but at the time he was called as such witness, he could not be found by , although he was diligently searched for by , to wit [state efforts made]. That such disappearance was a surprise to the , to whom said E. F., was a necessary and material witness ; that he expected to prove by said E. F. the following facts [stating them]. That deponent's counsel, thereupon, applied to said court [or referee] for a postponement of said trial, or for leave to withdraw a juror, on the ground of the absence of such witness, which application was denied by the said court [or referee]." [That annexed hereto is the affidavit of A. E., as to the facts, that can be testified to by said E. F.'] A. B. [Jurat as in form No. 46.] I A case need not be made upon this prise, in Tilden v. Gardiner (25 Wend., motion. (Code Civ. Pre, § 93l^ 663.) ' Tliis allegation is inserted in ac- See, further, Ross v. Wood (8 Hun, cordance with the decision in Glenden- 185; aff'd, S. C, 70 N. Y., 8), Hatfield ing V. Canary (5 Daly, 489), which v. Macy (52 Plow. Pr., 193), Messen- holds that ^e party must make such ger v. Fourth Nat. Bank of N. Y. (6 motion, in order to entitle himself to Daly, 190), Whiteman v, Leslie (54 a new trial on the ground of surprise. How. Pr., 494), Sehultz v. Third Ave. ' A new trial was granted on such a E. R. Co. (47 N. Y. Super. , 285), Gaw- state of facts, on the ground of suv- throp v, Leary (9 Daly, 353), Newhall 42 V. Appleton (47 N. Y. Super., 38). 330 Forms RELATma to No. 429. Affidavit to move for New Trial on the Grround of Newly Discovered Evidence. (Code Civ. Pro., § 1O05.) [Title of caixse.] County, ss. : A. B., of , being duly sworn, says, that he is the plaintiff [or defendant] in the above entitled action. That the place of trial in said action is the county of That a trial of the issues therein was had at a [stating court ; or before M. N., referee, duly appointed therein, to hear and determine the same]. That a verdict [or decision] was rendered therein at said term [or a report was made therein by said referee], on the day of , 18^, in favor of the - — , for [stating verdict, etc.] [and that judgment was entered on, the day of , 18 — , pursuant to said verdict {or report, or decision)].' ['"] That since the said trial [and the entry of said judgment], the deponent has discovered, for the first time, that h§ might have proved by of the following facts, material to tlie issues in said action [stating them].' That annexed hereto is the affidavit of said , iij corroboration of deponent's statements herein made." A. B. [Jurat as in form No. 46.] ' It was questionable, under tlie Code A motion for a new trial on the of Pro., wliellier tliis motion could be ground of newly discovered evidence made after judgment (Sec Peck v. will be denied, if such evidence con- Hiler. 30 Barb ,055; Rapelye v. Prince, sisls chiefly of the opuiio^of experts. 4 Hill, 119; Nash v. Wetmorc, 33 (Sullivan v. Dahlman, 1 City Ct , 475 ) Barb., 155; Folger v. Fitzhugh, 41 N. ^ The affidavit must show that the y., 228; Tracey v. Altmyer, 40 id., 598, newly discovered evidence is material, and cases cited ) But by section 1005 (People v. Draper, 28 Hun, 1 ) of the I ode of Civ. Pro., the entry, col- ' The motion papers should contain lection or other enforcement of a judg- an affidavit of the witnesses who, it is ment, does not prejudice a subsequent claimed, will give the additional evi- motion for a new trial. Where a new dence relied upon, stating that they trial is granted, the court may direct are ready to swear to the facts claimed and enforce restitution, as where a to be newly discovered. (Adams v. judgment js reversed pn ftppea}. Push, ? Abb, Pr. [N. 8], 104,) Trials Without a Juey, 331 No. 430. Order for Time to Prepare Case with Stay of Proceediugs, (Code Civ. Pro., §1005.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing tlie affidavit of , dated , 18 — , and on motion of A. F., attorney for ; it is hereby Ordered, that the have days from the date of this order to make and serve a case, and serve notice of a motion for a new trial herein ; and that in the mean- time, and until the hearing and determination of such mo- tion, if made, the entry of judgment herein be stayed.' TITLE II. FORMS RELATING TO TRIALS WITHOUT A JURY. (Code Civ. Pro., Ch. 10, Tit. 2.) No. 431. Decision of judge on trial by the court. 433. Order of court upon trial of issues of la-w. 433. Stipulation referring action. 434. Order appointing referee pursuant to stipulation. 435. Notice of motion for reference. 436. Affidavit to move for compulsory reference. 437. Order of reference, where examination of long account is involved. 438. Affidavit to oppose motion for reference. 439. Oath of referee 440. Waiver of referee's oath. 441. Subpoena before referee. 443. Attachment against witness for not obeying a subpoena. 443. Referee's report on trial of issues of fact. 444. Report of referee on trial of demurrer. 445. Requests to court or referee to find. No. 431. Decision of Judge on Trial by the Court. (Code Civ. Pro., §§ 1010, 1032.) [Title of cause.] This cause having been tried by the court without a jury, 1 Section 1005 of Code Civ. Pro., re- in an action triable by the court, lates to a new trial of the action, and (Chapiu v. Thompson, 80 N. Y., §75.) not to issues framed for trial by jury 332 Forms Relating to upon the issues of fact joined therein, and the proofs and allegations of the respective parties, and arguments of coun- sel having been heard and duly considered, I do find and decide as matters of fact, as follows : First. Second. Third. And I find and decide as matters of law, as follows : First. Second. Third. That the plaintiff [or defendant] is entitled to judgment against the for [stating relief], with costs,' which are hereby awarded to the to be taxed, and I direct judgment to be entered hereupon ac- cordingly. Dated , 18—. A, O., Judge [or Justice'] of the Cotirt No. 432. Order of Court upon Trial of Issue of law. (Code Civ. Pro., §§ 1010, 1031.) [At, etc., as in form No. 80.] [Title of cause.] The demurrer of the to the complaint [or reply] coming on to be heard by tliis court, after hearing A. F. , of counsel for the , in favor of such demurrer, and M. N., of counsel for the , in oijpositiou thereto: it is hereby Ordered, that the demurrer of the [defendant] be and the same is hereby overruled, with costs [with leave to the said (defendant) within twenty days from service of this order, and of the interlocutory judgment to be entered thereon, to pay the costs,' and (answer) the (complaint) of the (plain- tiff) herein], and that an interlocutory judgment be entered accordingly : And it is further ordered, that the [plaintiff] may enter ■ — * ^ See pote % to form No. 443, fost, ^ See note 2 to form No. 443, :posi. Trials Without a Jury. 333 final judgment herein ' for the relief demanded in the com- plaint [or other relief, stating it], in case the [defendant] shall fail to comply with any of the directions hereby given or terms hereby imposed." No. 483. Stipulation Referring Action. (Code Civ. Pro., § 1011.) [Title of canse.] It is hereby stipulated, by the parties to this action, that the whole issue therein [or that the following issues therein, viz. (stating them)], be referred to F. R., Esq.,' of , to hear and determine the same, and that an order so re- ferring the same may be entered. [In case of the refusal of said F. R. to serve as such referee, it is agreed that J. L., of ^, shall be substi- tuted for said F. R., as such referee {or that the action shall be referred in that case to a referee, to be agreed upon by the parties).'] Dated , 18—. A. M., Attorney for Plaintiff. [Office address.'] E. F., Attorney for Defendant. [Office address. '] ' The interlocutory judgment may Preston v. Morrow (66 N. Y., 453), direct that the final judgment be set- holding that, in such case, the court tied by a judge or referee. (See § 128 1 , had no power to appoint a new referee, Code Civ. Pro., as to proceedings in was decided before that amendment, such cases; see form of interlocutory (May v. Moore, 24 Hun, 351.) judgment No. 484.) But where a reference is made by ' SeeLiegeoisv. McCrackan(33IIun, consent of the parties and the referee 69.) dies, the reference is terminated, the ' As to cases in which reference can- ( xtent of the consent being that the not be made, of course, upon consent cause shall bo heard and decided by of the parties, see § 1013, Code Civ. the particular person whom they have Pro. agreed upon as referee. (Devlin v. < The amendment to section 1011 of The Mayor, 11 Week. Dig., IIG; S. C, the Code of Civ. Pro. by chapter 543 63 How. Pr., 163; Preston v. Morrow, of 1879, makes it compulsory upon supra.) the court to appoint a new referee. Stipulation for reference fixing time where the one named in the stipula- for hearing, construed in Parkhurst v. tion refuses to serve, unless the stipu- Berdell (87 N. Y. , 145). lation expressly provides otherwise, ' See note 3 to form No. 123. 334 Forms Relating to No. 434. Order Appointing Referee Pursuant to Stipulation. (Code Civ. Pro., §1011.) [Title of cause.] Upon filing the stipulation of the respective parties, dated ■ , 18 — , .consenting thereto : It is hel-eby ordered, that the whole issue in the above entitled action \or that the following issues in the above en- titled action, viz. (stating them)], be and the same is \or are] hereby referred to P. R., of , to hear and de- termine the same.' No. 435. Notice of Motion for Reference. (Code Civ. Pro , § 1013.) As in form No. 168 to [*], and from thence as follows : At the opening of the court, or as soon as counsel can be heard, [f] that the whole issue in the above entitled action be referred to F. R., of , to hear, try and decide the same, or for such other or further relief as may be proper [and for costs of this motion, to abide the event of the action]. Dated , 18—. Yours, etc., A. B., Attorney for . [Office address.'] To E. F., Attorney for . \0r as above to (f), and from thence as follows : That the following issues in this action (stating them) be referred to F. R., of , to hear and decide the same ; or that it be referred to F. R., of , to report said referee's finding, upon the following question {or questions) of fact, viz. (stating them), involved in the issue in said action, and for such, etc. (concluding as above).'] ' As to cases in "wbicli a reference * See note 3 to form No. 122. ■will not be granted, of course, see Code ^ This last-mentioned form of rpfer- Civ. Pro., § 1012. enc3 can only be granted in an action The order is entered by the clerk, of requiring the examination of a long course, on filing the stipulation. (Code account, where the case is triable by Civ. Pro., § 1011 ) the court •without a jury. (Code Civ. Trials Without a Jury. 335 No.- 436. Affldayit to More for Compulsory Reference.' (Code Civ. Pro., § 1013.) [Title of cause.] County, ss. : A. B., of , being duly sworn, says, that he is the in the above entitled action. That said action is brought to [state object of action]. That the place of trial therein is the county of That issue has been Joined therein by the service on the (^ay of J 18 — , of the defendant's answer [07' plaintiff's reply]. That the trial of said action will require the examination of a long account on the part of the , to wit, of at least items of charges [and credits], ° and will not require the decision of difficult question of law, as he is ad- vised by his counsel, A. E., who resides at — , after having fully and fairly stated to him the case in said ac- tion, and verily believes. A. B. [Jurat as in form No. 46. J Pro., § 1013; Barnes v. West, IG Hun, 68) As to power of court to refer an ac- tion brought by an attornej' for liis services, see Stcbbins v. Cowles (30 Hun, 523, and cases lliere cited; S. C, 18 Week. Dig , 152), Waring v. Cham- berlain (14 Week. Dig., 5G4), and see for other cases upon that subject, and as to compulsory references generally, note 1 to next form No 436. In Stebbins v. Cowles (svpra), the court held that the order of reference "being made by the county court in an action pending therein, was discretion- ary with that court, and that the Gen- eral Term could not interfere with this discretion, citing Wavel v. Wiles (24 N. Y., 635), Tannery. Marsh (53 Barb., 438) ' Among the more recent cases as to compulsory reference, consult Meiiitt V. Vigelins (28 Hun, 420),- and cases cited. People v. Peck (57 How. Pr, 315; aS'd S. C, 77 K Y., 630), Barnes v. West (16 Hun, 68), Camp v. Ingersoll (80 N. Y., 433), Magown v. Sinclair (5 Daly, C3), Place v. Chesebrough (03 N. Y., 315), Kingsley v. City of Brook- lyn (1 Abb. N. C. , 108), Hyatt v. Poach (1 Abb N. C, 125), Kain v. Delano (U Abb. [N. S.], 29), Davis v. Walsh (48 N. Y. Super. Ct., 515), Read v. Lozin (31 Ilun, 286). As to the order being discretionary, see Martin v. Windsor Hotel Co. (70 N. Y., 101), Pelt v. Tif- fany (11 Hun, 62). - The motion papers should show that a long account will be necessarily; involved. A general statement of the fact is not sufficient. (Kain v. De- lano [svpra].) See, also, note 2 to last form No. 435. 336 Forms Relating to No. 437. Order of Reference where Examination of long Account is Involved. (Code Civ. Pro , §1013.) [At, etc., as in form No. 80. J [Title of cause.] Upon reading and filing the affidavit of A. B., dated . ^ 18—, showing that the trial of this action will require the examination of a long account on the part of the [plaintiff], and will not require the decision of difficult questions of law ; and on reading the affidavit of C. D., (jated , 18—,' and t)n motion of M. IST., of counsel for the [plaintiff] ; and after hearing P. R., of counsel for the defendant: it is hereby Ortiered, that the issues in this action be and they are hereby referred to F. P., of , to hear, try and de- termine the same. [Or (in an action triable by the court without a jury), ordered, that the whole issue, or that the following issues, in the above action, viz. (stating them), be and they are hereby referred to F. R., of , to hear and decide the same; or that it be referred to F. R., of , to report the finding of said referee, upon the following ques- tions of fact involved in the issue in said action, to wit. (stating them).'] No. 438. Affidavit to Oppose Motion for Reference. (Code Civ. Pro., § 1013.) [Title of cause.] ■ County, ss.; C. D., of — -, being duly sworn, says, that he is the ■ in the above entitled action. ' See note 4, page 120, to form No. cases triable by tlic court, can only be 183, that papers read upon motion ordered where the trial will require must be recited. the examination of a long account. ' Under section 1013 of the Code of (Barnes v. West, 16 Hun, 08; see, also, Civ. Pro., as under the former prac- notes to forms Nos. 435, 436.) tice, a compulsory reference, even in Trials Without a Juey. 337 That deponent has fully and fairly stated the case in this action to his counsel, M. N"., who resides at , and that he is advised by said counsel, after such statement, and verily believes, that the trial of the said action wiU require the decision of difllcult questions of law [stating them]. That said questions, as he is advised by his said counsel, are difficult, and especially so in their application to the facts of this case. And deponent further states that the trial of the issues in this case will not require the examination of a long ac- count, for the reason that [stating reason]. C. D. < [Jurat as m form No. 46.] [Title of cause.] ■- — County, ss No. 439. Oath of Referee. (Code Civ. Pro., § 1016.) F. P. I, F. P., of , the referee appointed by order of the court in the above entitled action, do solemnly swear that I will fairly and faithfully try the issues [or determine the questions referred to me] in the above entitled action, and will make a just and true report, according to the best of my understanding.' [Jurat as in form No. 46.] ' An omission on the part of a referee that amendment. The omission was to be sworn, does not impair or affect held, in Mason v. Luddington (56 How. any judgment of a court of record. Pr., 183; 8Daly, 149 [1878]: aff'gS. C, (Code Civ. Pro., § 731, subd. 13.) 55 How. , 343), to be a mere irregular- This clause was introduced into sub- ity and not a jurisdictional defect, and division 13 by the amendment of 1879 that it might be waived by implica- (ch. 543), and the decisions in Ex- tion. See, also, Katt v. Germania Ins. change Fire Ins. Co. v. Early (4 Abb. Co. (36 Hun, 439), holding that it can- N. C, 78), McGowan v. Newman (4 not affect the regularity of a judgment, Abb. N C, 80), and Browning v. Mar- that the referee's oath was taken before Tin (5 Abb. N. C, 385), have now no one of the attorneys for the plaintiff, application, at least so far as relates to inasmuch as the failure to take the oath judgments entered since the passage of altogether, would not have that effect. 43 338 Forms Relating to No. 440. Waiver of Referee's Oath. (Code Civ. Pro., § 1016.) [Title of cause.] It is hereby stipulated that the referee's oath, in this ac- tion, is waived by the parties, pursuant to section 1016 of the Code of Civil Procedure.' Dated , 18- A. B., Plaintiff's Attorney. [Office address.'] C. D., Defendant s Attorney. [Office address.'] No. 441. Subpoena Before Referee. (Code Civ. Pro., § 1017.) For this form, see form No. 357 {ante) ; and for subpoena ticket, see form No. 858 {ante). No. 442. Attachment Against a Witness for not Obeying a Sabpoena. (Code Civ. Pro., §§ 14, 1018.) The People of the State of New YorJc, to the Sheriff of the County of ; We command you to attach A. B., and bring him forth- with \or on the day of , 18—], personally, before our circuit court \or other term, naming it], held in and for our county of \or before I. J., Esq., referee in the action hereinafter mentioned], at , to answer to us for certain contempts against us, in not obeying our writ of subpoena, commanding him to appear on the — ■ day of , 18 — , before the said circuit court \or other court, or referee], to testify in an action there to be tried ' The waiver may be oral or in in the referee's minutes. (Code Civ. •writing. If oral, it must be entered Pro., § 1016 ) '•' See note 3 to form No. 133. Trials Without a Jury. 339 between E. F., plaintiflE, and GI-. H., defendant ; and you are farther commanded to detain him in your custody until he shall be discharged by our said circuit court [or other term {or by said referee)], and have then and there this writ. Witness, Hon. A. O., justice [or Judge] of our said court, [L. S.J at , on the day of , 18—. A. F., Attorney for J. L., Cleric. [Office address.'] [Indorsed.] Allowed this day of , 18—. A. 0., Judge of Court [or I. J., Beferee']. No. 443. Referee's Report on Trial of Issues of Fact. (Code Civ. Pro., §§ 1019, 1033.) [Title of cause.] I, I. J., referee, duly appointed by the court in the above entitled action to hear, try and decide the whole issue therein [or other purpose of reference may be stated], do respectfully report : That having been attended by the parties and their coun- sel, and having heard the proofs and allegations of the re- spective parties, I do find and decide as follows : I find as matters of fact : First. That [insert finding]. Second. That [insert finding]. And I find as conclusions of law, as follows : First. That [insert finding], Second. That [insert finding]. Third. That there is now due from the defendant to the plaintiff the sum of dollars and cents ; " and I direct judgment to be entered accordingly [with costs to be taxed, which are hereby awarded to the plaintiff] [or that the defendant is entitled to judgment dismissing the complaint in this action (with costs to be taxed, which are ' See note 2 to form No. 123. report of the referee must specify tiie ' Where the double, treble or other sum awarded as single damages, and increased damages are given by stat- direct judgment for the increased dara- ute, the decision of the court or the ages. (Code Civ. Pro., § 1030.) 340 FoBMs Relatikg to hereby awarded to the defendant)], and I direct judgment to be entered accordingly.' Dated , 18—/ I. J., Referee. No. 444. Report of Referee on Trial of Demurrer. (Code Civ. Pro , § 1031 ) [Title of cause.] I, I. J., to whom the issue of law arising upon the de- murrer to the [complaint] in the above entitled action was referred to hear and decide the same, do report as follows : That having been attended by the counsel for the re- spective parties, and having heard their respective argu- ments, I find as matter of law : That the plaintiff \or defendant] is entitled to judgment upon the said demurrer herein, overruling [or sustaining] the same, with costs, and I direct interlocmtory judgment to be entered accordingly with leave to the defendant \or plaintiff] to plead anew \or to amend his answer], within days after service of a copy of tbis order and of said interlocutory judgment, upon payment of costs ; and in case the defendant \or plaintiff] fails to comply with any of the directions hereby given, or terms hereby imposed, I direct that final judgment be entered in said action for the relief demanded in the complaint \or other relief (stating it)], with costs." Dated , 18- I. J., Referee. ' The clauses relating to costs arc findings after the delivery of bis re- necessary to be inserted, where the costs port. (Barne v. Neuss, 14 Week. Dig., are in the discretion of the court or 522 ) referee. (Code Civ. Pro., § 1023.) By section 1022, Code Civ. Pro., the ' In order to prevent a party from report upon the trial of the whole issue terminating the reference, it is neces- of fact must state separately the facts sary for the referee to file his report found and the conclusions of law, and with the clerk, or deliver it to the must direct the judgment to be entered party, within sixty days from the final thereupon. submission of the cause. It is not ' As to practice on order sustaining sufficient to notify the attorney of its or overruling demurrer, see Liegeois v. readiness (Phippsv. Carman, 33 Hun, McCrackan (32 Hun, 69). 150; 20 W. D., 375, contra.) Where the decision does not direct A referee can make no additional the final judgment to be entered, on Tkial Jukoes. 841 No. 445. Requests to Court or Referee to find upon Facts and Law. (Code Civ. Pro., § 1033.) [Title of cause.] The defendant [or plaintiff] hereby, pursuant to section 1023 of the Code of Civil Procedure, submits to the court [or referee] the following statement of the facts, which he deems established by the evidence and of the rulings upon questions of law, which he desires the court [or referee] to make : ' Propositions of fact : First. That, etc. Second. That, etc. Propositions of law : Mrsi. That, etc. Second. That, etc. M. N., Attorney for [Office address."] TITLE III. FORMS IIELA.TING TO TRIAL JURORS. Article First. FORMS RELATING TO STRIKING AND PROCURING A SPECIAL JURY, AND PROCURING A FOREIGN JURY. (Code Civ. Pro., Ch. 10, Tit. 3, Art. 4.) No, 446. Notice of motion for strucli jury. 447. Order for striking special jury. 448. Notice of strildng a special jury wlien ordered by the court. 449. County clerk's or commissioners list of special jurors to be delivered to the sheriff. 450. Notice by sheriff, who is directed to summon foreign jury, to the clerk or commissioner of jurors of the county. 451. Order for a foreign jury. failure to comply with the terms im- spect, will be substantially as in form posed by the interlocutory judgment. No. 476. application for such judgment must be ' See as to form of statement, Sniffen made as upon a motion. (Id.) v. Koechliug (45 N. Y. Super Ct., 01), Where the report directs the action and see, also, Harris v. Van Wart (19 to be divided into two or more actions, Week. Dig., 21)8), and cases lliereiu the directions of the report, in that re- cited. _ ^ 2 See note 3 to form No. 123. 342 Forms Relating to Ko. 446. Notice of Motion for Struck Jury. (Code Civ. Pro., §1003.) [Title of cause. J As in form 'No. 168 to [*], and from thence as follows : At tlie opening of the court, or as soon thereafter as counsel can be heard, that a special jury be struck for the trial of the issues in the above entitled action, and for such other and further relief as may be proper. Yours, etc., M. N., Attorney for . [Office address.'] To A. P., Attorney for . No. 447. Order for Striking Special Jury. (Code Civ. Pro., § 1063.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the affidavit of G. H., dated , 18 — , by which it appears to the court that a fair and im- partial trial of the issues of fact, joined in the above enti- tled action, cannot be had without a struck jury \or that the importance and intricacy of the case in this action re- quires a struck jury] ; ' and on motion of M. N., counsel for the plaintiff, after hearing O. P., counsel for the defend- ant [and filing the affidavit of C. D., dated , 18 — , in opposition thereto] : It is hereby ordered, that a special jury be struck for the trial of said issues, to be had at a of the Court, to be held, etc. [and it is further ordered that the 1 See note 2 to form No. 132. 428), Foot v. Croswell (1 Cai. Rep., ' As to cases in wliicb slrucli juries 498'), Van Vecliten v. Hoplcins, 3 will or -will not l)e granted, and tlie Johns., 873), Thomas v. Rumsey (4 necessary proof therefor, see Walsh v. Johns., 483), Genet v. Mitchell (4 Johns., Sun Mutual Ins. Co (3 Robt., 646; S. 186), Stryker v. TurnbuU (3 Cai. Rep., C, 17 Abb. Pr., 356, and cases there 103), Livingston v. Cheetham(l Johns., cited), Manhattan Co. v. Lydi.a; (3 Cai. 61), Patchiu v. Sands (10 Wend., 570), Rep., 380; S. C, Col. & Cai. Cas., Teial Jueoes. 343 said jurors attend at the said term on tlie day of , 18-. ■] [And it appearing that the county clerk of county {or commissioner of jurors for the county of New York, or Kings) is interested in the action {or is related to the plaintiff, or defendant ; or is not indifferent between the parties, etc.), A. P., of , and P. G., of — , two disinterested persons, are hereby appointed to strike said jiiry.'] ISTo. 448. Notice of Striking a Special Jury when Ordered by the Court. (Code Civ. Pro., § 1064.) [Title of cause.] SiE — Please take notice, that on, etc. [here state a time at least eight clays after the date of service of this notice], I shall attend on behalf of the defendant, before 0. E., Esq., clerk of county, at his office in the of , for the purpose of having the jury struck, which has been ordered in this cause. Dated , 18—. Yours, etc., H. B., Attorney for Defendant. [Office address.'] To L. H., Attorney for Plaintiff. No. 449. County Clerk or Commissioner's Certificate, or List of Special Jurors, to he Delivered to the Sheriff. (Code Civ. Pro., § 1065.) [Title of cause.] A list of the namesg of twenty-four persons not. stricken ' This clause in brackets may be in- may in any case, in its discretion, malie sorted. (Code Civ. Pro., § 1063.) the appointment. (Code Civ. Pro., ' The persons so appointed possess, § 1068, as amended by ch. 460 of Laws for the purposes of the action, all the of 1884.) powers conferred upon the clerk or ^ gge note % to form No, 133. commissioner of jurors. Tt»e povirt 344 Forms Relating to out in this cause, and who compose the panel of the special jury, and of whom twelve are to try this cause, to wit : J. T., of the of , merchant. W. G., of the of , merchant. J. C, of the of , farmer. [And in that manner state the names, and addition of the whole twenty-four. J I certify that the above named twenty-four persons have been drawn to serve as jurors in the above entitled action, pursuant to an order of the Supreme Court, made the day of , 18, and which said twenty -four persons have not been stricken out by either of the parties in the said action. Dated , 18—. C. L., Clerk of County [or Commissioner of Jurors for the County of ]. To M. A., Sheriff of tJie County of . No. 450. Notice by the Sheriff, who is Directed to Summon Foreign Jury, to the Clerk or Commissioner of Jurors of the County. (Code Civ. Pro., § 1070.) [Title of cause.] Sir — Please take notice, that a foreign jury has been ordered by the Court for the trial of the issue in this cause, to be taken from the county of , and that a certified copy of such order has been delivered to me.' Yours, etc., A. B., Sheriff of County. To C. A., ClerTc of the County of [and to the Com- missioner of Jurors in the County of New York {or Kings)'].'' ' For list to be made by clerk or com- This notice must be given at least missioner, see form No. 449, making twenty days before the first day of the the necessary changes. term, at which the foreign jury is re- ' See Code Civ. Pro., section 1070. quired to attend. (Id.) Trial by Jtjey. 345 No. 451. Order for a Foreign Jury. (Code Civ. Pro., § 1070.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing affidavits [describing them], and hearing counsel for both parties ; Ordered, that a foreign jury be summoned for the trial of the issue in this cause, to be taken from the county of .' TITLE IV. forms relating to trial by jury. Article First. forms relating to the verdict. (Code Civ. Pro., Cli. 10, Tit. 5, Art. 2.) No. 453. Clerk's minutes of trial. 453. Same, upon verdict, subject to the opinion of the coittt. 454. Same, upon special verdict. 455. Judgment upon verdict. No. 452. Clerk's Minutes of Trial. (Code Civ. Pro., § 1189.) At a Circuit Court, held in and for the county of , at the court house in the of , on the day of — , 18 — . Present, Hon. A. O., Justice. [Title of cause.]. •On motion of A. B., Esq., attorney for the plaintiff: ' When the inhabitants of a town, in (Stryker v. Turnbull, 3 Cai. Rep., 103; a small county, contribute towards the S. C, Col. & Cai. Cas., 437; compare expenses of a suit involving a claim of President of New Windsor Turnpike a general nature ; e. g., a right of flsh- Co. v. Ellison, 8 Cai. Rep., 137.) eryj the court will grant a foreign jury. 44 .. 346 Forms Relating to Ordered, that a jury be empanelled in this cause, and that the parties proceed to trial. The defendant being called, appeared : Ordered, that his appearance, be entered. The following jurors, having been duly summoned, ap- peared, and were openly drawn and sworn, to wit : Jurors sworn [insert names of jurors]. Plaintiff's testimony [insert names of plaintiff's witnesses]. Defendant's testimony [insert names of defendant's wit- nesses]. [f] The jury having agreed upon their verdict, and being called on their oath, do say, [*] that they find for the plain- tiff for the recovery of dollars. [Or state the finding, as rendered.] Extra allowance of five per cent granted plaintiff on amount of recovery. Defendant moves for a new trial on the minutes. Motion denied. Sixty days granted defendant to make a case and excep- tions. J. L., Clerfc. No. 453. Same, upon Verdict, Subject to the Opinion of the Court. (Code Civ. Pro., § 1185.) As in form No. 452 to [f], and from thence as follows : The jury, under the direction of the judge, thereupon ren- dered a verdict for the [plaintiff], and assessed the amount of Ins recovery at the sum of dollars [or state other verdict], subject to the opinion of the court.' [Add any further proceedings.] [A copy.] J. L., Cleric. 1 A motion for judgment upon a ver- term, set aside the verdict, and direct diet subject to the opinion of the court, judgment to he entered for either may he made hy either party, and must party, with lilce effect, and in like he heard and decided at the General manner, as if such a direction had Term, (Code Civ. Pre, § 1334.) been given at the trial. (Id., § 1185, Notwithstanding that such a ver- Hall v. Hall, 13 Hun, 306.) diet has been rendered, the judge hold- A verdict, subject to the opinion of ing the trial term may, at the same the court, can only be directed where Teial by Jurt. 347 No. 454. Clerk's Minutes upon Special Yerdict." (Code Civ. Pro., § 1187.) . As in form No. 452 to [*], and from thence as follows : That they find as follows, upon all the issues of fact [or upon the issues of fact submitted to them (state the facts found by the jury, and not the evidence of those facts, thus)] : ' ' ■ That on the day of , in the year 18 — , one A. B. duly made and published his last will and testa- ment, in the manner and form required by law for passing real estate, and which was duly attested according to law, whereby, among other things, he devised to [state the par- ticulars]. That the said A. B., afterwards, on, etc., at, etc., died, without altering or revoking his said will. That [state all the facts consecutively, as found by the jurj^, and conclude as follows] ; Upon these facts found by them, the jury leaves the court to determine which party is entitled to judgment thereupon. position of tlie ciso, this is an aband- onment or waiver of the exceptions, and they will be disregarded. (Byrnes V. City of echoes, C7 N. Y., 204.) ' A special verdict is one by which' the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereupon. (Code Civ. Pro., § 1186.) Where a special finding is inconsistent with a general verdict, the furmcr controls the latter, and the court must render judgment accordingly. ' Id. , § 1 1 88 ; Fraschirris V. Henriques, Abb. [N. S ], 251.) 2 See Seward v Jackson (.8 Cow., 40C), Hill V. Covell (1 N. Y. [1 ( omst.], 532), Sisson v. Barrett (3 N. Y. [3 Comst.], 406), Langley v Warner (3 N. Y. [3 Comst ], G37), Barto v. Him- rod (8 N. Y., 483), Casey v. Dwyre (15 Hun, 153), Ebersole v N. C. R. R. (23 Hiin, 114), Carrv. Carr (53 N. Y.,251, aff'g S. C. 4 Lans , 314), Murray v. N. Y. Life Ins. Co. (30 Hun, 428 ) the case presents only questions of law. (Code Civ. Pro , § 1185; Wilcox v. Hoch, 63 Ba% , 509; Cobb v. Cor- nish, 10 N. Y., 603; Purchase v. Mat- teson, 25 id , 21 1 ; Sackett v. Spencer, 29 Barb., 1-0; Bell v. Shibley, 83 id., 6:0; Matson v. Farm. Build Ins. Co.^ 73N. Y.,310; rev'gS. 0,9 Hull, 415; Howell V. Adams, 68 N. Y„ 314; Par- tridge v. Newton, 9 Hun, 583.) Where, upon the trial of an action, exceptions were taken by each party to rulings admitting evidence, and de- fendant excepted to a refusal to sub- mit certain questions of fact to the jury, and the court directed a verdict subject to the opinion of the court at General Term, under section 118") of the Code of Civ. Pro. ; Jield. that this was error, and constituted a mistrial. tFire Department v. Thompson, 16 Hun, 474, and see cases above cited ) But when exceptions have been taken and the parties consent to sucU a dis- 348 FoBMS Relating to Upon motion of the plaintiff's attorney,' the court ordered judgment to be entered upon said special verdict in favor of the plaintiff, for [state judgment directed], with costs. [Then proceed as in form No. 412 to end thereof, as. far as the facts call for.] [Acopy.J ■ _ _ ^^ , J. L., Cleric. No. 455. Judgment Upon Verdict. (Code Civ. Pro., § 1189.) [Title of cause.] Judgment of the day of , 18 — . The issues in this action having been brought on for trial before Hon. A. O., and a jury, at a [circuit] court, held in and for the county of , at the court house in the of , on the day of , 18 — , and the issues having been tried, and a verdict for the [plaintiff] having been duly rendered, on the day of , 18 — , for the sum of dollars and costs \or a special verdict having been found by the^ jury, upon which the court directed judgment to be entered for the plaintiff for (stating direction)] ; Now, on motion of A. B., attorney for said [plaintiff], it is ordered and adjudged, that said [plaintiff] recover VL said defendant the sum of ■ dollars, damages found by said jury, with dollars costs, amounting in all to the sum of dollars, and have execution therefor \or other judgment in conformity with the verdict or direction]. J. L., Cleric. ' See Code Civ. Pro., § 1333; Griswold v. Dexter (63 Barb., 648). Judgments. 349 CHAPTER XI. FORMS RELA.TING TO JUDGMENTS. TITLE I. Forms relating to judgments in an action. TITLE II. Forms relating to judgments taken without process. TITLE III Forms relating to vacating or setting aside a judgment for irregu- larity or error in fact. TITLE I. Article First. , forms relating to general provisions concerning ' judgments. (Code Civ. Pro., Ch. 11, Tit. 1, Art. 1.) No. 456. Final judgment for plaintiff, general form, for recovery of money. 457. Final judgment, general form, other than upon default for general relief, for plaintiff or defendant. 458. Order of severance of an action against several defendants. No. 456. Final Judgment for Plaintiff, General Form, for RecoTery of Money. (Code Civ. Pro , § 1200.) [Title of cause.] This case having been tried at a Court, held at the of , before Hon. A. 0., a Justice of said court, and a jury [or a Jury having- been duly waived by oral consent of the parties in open court, entered in the minutes {or state other manner of waiver), or before I. J., Esq., a referee, duly appointed by order of this court, duly made and entered, and dated , 18 — , to hear and determine the same, and all the issues therein] ; and a ver- dict having been found for the plaintiff [or the decision of said Justice {or the report of said referee) having been duly made in writing, and filed, by which he finds for the plain- tiff], for [*] the sum of dollars : Now, therefore, it is adjudged, pursuant to said verdict 350 FoEMS Relating to [decision, or report], on motion of, etc., that the said plain- tiff, A. B., recover from and against the said defendant, C. D., the sum of dollars, together with the sum of dollars and cents, costs of this action, in all amounting to the sum of dollars and cents, for which amount judgment is rendered this day of , 18—'. ^ J. L., Cleric. No. 457. Final Judgment, General Form, other than upon Default for General Eelief, for Plaintiff or Defendant. (Code Civ. Pro., § 1200, etc.) [Title of cause.] Judgment of the day of , 18—. It is adjudged, pursuant to [reciting or referring to de- cision, report, order, verdict, etc., authorizing it], on motion of E. F., plaintiff's [or defendant's] attorney, that [*] A. B., the plaintiff, recover from and against the defendant, C. D., the sum of ■ dollars and cents, together with dollars and cents, costs of this ac- tion, amounting in all to the sum of dollars [or that the complaint of the plaintiff be dismissed (upon the merits'), and that the defendant, C. D., recover from and against the plaintiff, A. B., his costs of this action, to wit, the sum of dollars and cents]. [Or other relief, stating it.] J. L., ClerTc. ' See note 2 to next following form, the complaint, su that the verdict ■will No 457. not exceed that amount. But if alten- ' A final judgment, dismissing the tion is not called to the discrepancy at complaint, either before or after a trial, the trial, the General Term will not does not prevent a new action for the reverse the judgment, and order a new saraecause of action, unless it expressly trial on account of the excess, unless declares, or it appears by the judgment such amount be deducted, but will re- roll, that it is rendered upon the merits, duce the amount by deducting the ex- (Code Civ. Pro., § 1209.) cess as of the date of the verdict, and Under section 1207, Code Civ. Pro., as so reduced affirm the same with the judge presiding at a trial may di- costs. (Jencksv. Van Brunt, 19 Week. rect a deduction from a verdict in ex- Dig., 278.) cess of the amount demanded by the As to the meaning of the words in complaint, or order an amendment of that section, "the court may permit Judgments. 351 No. 458. Order of Severance of an Action Against Several De- fendants. Code Civ. Pro., §§ 456, 1205.) [Title of cause.] It is hereby ordered, on filing the affidavit of A. B., dated , 18— [and state other motion papers], and on the application of I. J., attorney for the plaintiff [after hearing G. H., attorney for the defendant, E. F.], that the above action be severed, and that the plaintiff take judgment against the defendant, A. B. [or against the defendants, A. B. and C. D.J, and that said action proceed against the defendant, E. F., as the only defendant therein.' Abticle Second. forms relating to mode op taking and entering a judgment. (Code Civ. Pro., Cb. 11, Tit. 1, Art. 3.) No. 459. Affidavit of default on motion for judgment. 460. Notice of application to the court for judgment on default. 461. Notice of assessment of damages by tlie clerk on default. 463. Final judgment, upon default of defendant, in actions specified in section 420, Code Civil Procedure. 463. Order for judgment on application to the court. 464. Inquisition on writ of inquiry. 465. Writ of inquiry. the plaintiff to take any judgment con- cessful party in an action to enter a sistcnt with the case made by the com- formal judgment, direct that, unless plaint, and embraced within the issue," judgment is so entered within a time see Stevens V. The Mayor (84 N Y., specified, the defeated party may enter 296), Peck v. N. Y and N. J. R. R it; and the exercise of this discretion Co. (85 N. Y., 246 ; S. C, 32 Hun, 139), is not reviewable by the Court of Ap- Benedict v. Benedict (85 N. Y., 625). peals. (Wilson v. Simpson, 84 N. Y., The plaintiff must establish the alle- 674.) gations of the complaint, and if they ' A motion to set aside separate judg- warrant legal relief only, he cannot ments entered in an action against de- have equitable relief upon the evidence, fendants jointly liable, must be made (Id ; De Bussierre v. Holladay 4 Abb. within a year from the time of their N, C, 111.) entry, such defect being a mere irregu- As to what constitutes a final judg- larity under 3 R. S., 359, § 3. (Code ment, see Produce Bank V. Morton (67 Civ. Pro., § 1382.) (Judd Linseed, N. Y., 199). etc., Oil Co. v. Hubbell, 76 N. Y., 513, The Supreme Court may, iu its dis- and see, also. Smith v. Osborne, 31 cretioD, instead of compelling the sue Hun, 390, and cases there cited.) 353 Forms Relating to No. 406. Demand by defendant of notice of execution of writ of inquiry. 467. Notice of execution of writ of inquiry. 468. Notice of assessment, computation, etc., by referee. 469. Judgment upon application to tlie court on default. 470. Order of reference, on application for judgment, after service by publication, etc. 471. Affidavit, on motion for judgment, after service by publication. 473. Referee's report, on application for judgment, after service by pub- lication. 473. Undertaking, on application for judgment, wbcre summons is served by publication. 474. Order for judgment in case of service by publication, etc, 475. Judgment where summons is served by publication. 470. Order of severance of action into two or more actions^ 477. Order for final judgment, upon demurrer, where decision does not direct final judgment. 478. Final judgment upon demurrer. 479. Judgment upon report of referee, or decision of court on trial of issues. 480. Notice of motion for confirmation of report of referee, etc., in action for divorce. 481. Same notice where husband is plaintiff. 483. Judgment for limited divorce, upon referee's report. 483. Judgment of absolute divorce, on report of referee. 484. Interlocutory judgment, upon decision of demurrer. No. 459. Affidavit of Default on Motion for Judgment. (Code Civ. Pro , §§ 1313, 1314.) [Title of cause.] County, ss. . A. B., of , being duly sworn, says, that he is the attorney for the plaintiff in the above entitled action. That the defendant has not appeared^-therein [or that the defendant duly appeared therein by his attorney, G. H^, and demanded a copy of the complaint, which was duly served upon said defendant's attorney on the day of , 18—, as will appear by the affidavit of I. J. {or by the admission of said attorney), hereto annexed, but that no answer or demurrer, or copy of either, to said com- plaint, has been received by plaintiff's attorney], A. B. [Jurat as in form No. 46.] Judgments. 853 No. 460. Notice of Application to the Court for Judgment on Default. (Code Civ. Pro., § 1319.) [Title of cause.] Sin— Take notice, that the plaintiff will apply to the ■ Court, at, etc., for judgment in the above entitled action against the defendant, for the relief demanded in the complaint. Dated , 18—. A. Y., Plaintiff \^ Attorney. [OflB.ce address.'] To E. F., Defendant's Attorney. No. 461. Notice of Assessment of Damages Ijy the Clerk on Default. (Code Civ. Pro., § 1319.) [Title of cause.] Sir — Take notice, that the amount due the plaintiff in this action will be assessed by the county clerk of ■ county, at his office in the of , on the day of , 18—, at o'clock in the noon. Dated , 18—. A. Y., Plaintiff \s Attorney. [Office address.'] To E. F., Defendant's Attorney. No. 462, Final Judgment upon Default of Defendant in Actions Specified in Section 420 of Code of Civil Procedure. (Code Civ. Pro., § 1331.) [Title of cause.] Judgment of the day of , 18 — . On filing due proof of the service of the summons in this action with a copy of the complaint [or with a notice stating the sum of money for which judgment will be taken], upon the defendant, C. D., more than twenty days since' and ' See note 3 to form No. 133. 45 354 FoEMS Relating to proof by affidavit that the said defendant has not appeared [or that the said defendant has seasonably appeared herein, but has made default in answering or demurring to the said complaint ; and the court having assessed the amount due the plaintiff at the amount hereinafter stated (and it appear- ing that due notice has been served upon said defendant's attorney of the time and place of said assessment')] : Now, on motion of O. M., attorney for the plaintiff, it is adjudged that the plaintiff, A. B., recover from and against the said defendant, C. D., the sum of dollars and cents, with the costs and disbursements of this ac- tion, which have been taxed at the sum of dollars and cents, in all amounting to the sum of dollars and cents." J. L. Clerk. No. 463.^- Order for Judgment on Application to the Court.' (Code Civ. Pro., §§ 1314, 1215.) [At, etc., as in form No. 80.] [Title of cause.] On filing due proof of personal service of the summons in this action, more than twenty days since, upon the de- fendant, C. D., within the State, and proof by affidavit that the said defendant has not appeared/[or that the said de- fendant has appeared by his attorney, E. F., and demanded the complaint, and that a copy of said complaint was served ' If the defendfint bas appeared gen- Where judgment is talcen against one erally, but has made default in plead- or more of the defendants served, there ing, ho is entitled to at least live days, should be an order of severance of the notice of the lime and place of an action entered, and a copy inserted in assessment by the clerk, and to eight the judgment roll, and reference made days' notice of the time and place of thereto in the judgment. (See Code application to the court for judgment. Civ. Pro., §§ 456, 1205, and form No. (Code Civ. Pro., § 1319; see Dix v. 458.) Palmer, 5 How. Pr., 233; Southworth See as to cases in which judgment V. Curtis, G id., 271, that notice to de- may be talcen on default of defendant fcndant is not necessary when the clerk without application to the court. Code enters judgment without an assessment. Civ. Pro., 420, So heia under § 240 of Code of Pro ) » For order upon failure of defend- = See Ballard v. Sherwood (85 N. Y., ant to reply to counterclaim, see form 853; rev'g S, C, 22 Hw, 462). ^q. 149, and see Code Civ. Pre, § 515, Judgments, 355 upon said defendant's attorney more than twenty daye since, and that no answer or demurrer or copy of either to the said complaint has been received by the plaintiff's attorney, and that due. notice of this application has been served upon said plaihtjg's attorney] f^ and the court having computed the amount due the plaintiff in this action' [or having assessed the damages to which the plaintiff is entitled ; or having taken the account of the transactions mentioned in the complaint ; or having taken proof of the facts (or stating what facts)], for the purpose of enabling it to render judg- ment in this action : ' [*] Ordered, 'on motion of I. J., attorney for the plaintiff, that plaintiff have judgment in this action for the sum of dollars [or state other relief], with costs. [Or as above to (*), and from thence as follows : It is hereby ordered, that it be referred to I. J. to (state purpose of reference), and that the said referee make his report thereupon to this court for its further action {or that final judgment be entered by the court in accordance with the report of said referee). ] [Or as above to (*), and from thence as follows :''It is hereby ordered, that the damages to which the plaintiff is entitled be ascertained by a jury, and that a writ of inquiry" issue for that purpose^ to the sheriff of county, and that said sheriff return the inquisition made by him into this court for its further action {or that final judgment be entered by the clerk for the damage ascertained by said in^ quisition, without further application to the court).] No. 464. Writ of Inqxiiry. "^ (Code Civ. Pro., § 1315.) The People of the State of New YorJc to the Sheriff of [L. s.] County, greeting : Whereas, A. B., lately in our ■ Court brought an , ■ See note 1 to form No. 4G3, or an injury to propertj-, llio damages ' Sec note 2 to form No. 403. must be ascertained by means of a writ ' Wliere the action is brought to re- of inquiry, (Code Civ. Pro., | 1315.) cover damages for a personal injuiy, 356 Forms RELATiira to action against C. D., in which he claimed damages against said C. D. in the amount of dollars, as stated in his complaint therein, by reason of the matters set forth in said complaint, a copy of which is hereto annexed ; and such proceedings were thereupon had in our said Court, that the said A. B. ought to recover his damages on occa- sion of the said matters ; but because it is unknown to our said court what damages the said A. B. hath sustained by means of the matters aforesaid ; Therefore we command you, that, by the oath of twelve good and lawful men of your bailiwick, you diligently in- quire what damages the said A. B.Tiath sustained by means of the matters in said complaint contained as aforesaid, and that you return the inquisition which you shall thereupon take, with all convenient speed, under your seal, and the seals of those by whose oath you shall take that inquisi- tion, to the clerk of county, together with this writ. Witness Hon. A. O., Judge of our Court, at the city of — , on the day of , 18 — .' J. It., Cleric. E. F., Attorney for Plaintiff {or Defendant}. [Office address.'] No. 465. Inquisition on Writ of Inquiry. (Code Civ. Pro., § 1315.) COTJKTY, 55./ An inquisition taken at the office of M. N., sheriff of county, in the town [or city] of , in the county of , on the day of , 18 — , before said M. N., sheriff as foresaid, by virtue of a writ of the people of the State of New York, to the said sheriff directed, and to this inquisition annexed, to inquire of cer- tain matters in the said writ contained and specified, by the oath of E. F., etc. [naming all the jurors], twelve good and ' For general form of writs, see Code ' Sec note 3 to f ona No. 133, Civ. Pro., §§ 33, 23, 34. — — ' Judgments. 357 lawful men of said county, who, upon their oath aforesaid, say, that A. B., in the said writ named, hath sustained dam- ages by reason of the premises in the said writ mentioned, amounting to dollars. In witness whereof, as well I, the said sheriff, as the said jurors, have set our seals to this inquisition, the day and year above written. [^Signed and sealed by Sheriff and Jurors.] No. 466. Demand by Defendant of Notice of Execution of Reference or Writ of Inquiry. (Code Civ. Pro., § 1219.) Sir — The defendant, C. D., hereby demands notice of the execution of any reference or writ of inquiry, which may be granted upon plaintiff's application for judgment in this action. Dated , 18- . A. F., Defendanfs Attorney. [Office address.'] - To B. G., Plaintiff's Attorney. No. 467. Notice of Exe<|gi)n of Writ. (Code Civ. ^^% 1319.) [Title of cause.] Sir— Take notice, that the damages which have been sus- tained by the plaintiff, by reason of the matters and things in the complaint contained, [*] will be assessed by a jury, before M. N., sheriff of the county of , at his office, in the ■ of , on the day of , 18—, at o'clock in the noon. Dated , 18—. Yours, etc., I. J., Plaintiff's Attorney. [Office address.'] To K. L., Defendant's Attorney. " See note 3 to form No. 133. 358 Forms Relating to No. 468. Notice of Assessment, Computation, etc., hy Referee. (Code Civ. Pro , § 1319.) As in form No. 467 to [*], and from thence as follows : Will be assessed by [or that the amount due upon, etc., will be computed by, or that the account mentioned in the com- plaint will be taken by, etc. J, I. J., referee, appointed for that purpose, on the day of , 18 — , at — M., at the office of said referee, No. street, in the of [or other place of reference]. Yours, etc., M. P., Attorney for Plaintiff. [Office address.'] To E. R., Defendant s Attorney. No. 469. Judgment upon Application to the Court on Default. (Code Civ. Pro., § 1215.) [Title of cause.] Judgment of the day of , 18 — . It is adjudged, pursuant to the order of the court in this action, dated , 18 — , [*] that the plaintiff recover from the defendant the sun|fl|k dollars and-^ cents, with dollarBRid cents costs and disbursements, in all amounting to dollars and cents. [Or as above to [*], and from thence as follows : On filing the report of I. J., referee in the above entitled action, dated , 18 — , (or on filing the inquisition made pursuant to a writ of inquiry issued to the sheriff of county), and from thence as above from (*).] J. L., Cleric. ' See note 2 to form No. 122; and by the defendant, in person, or by an see subdivision 2 of section 1219, Code attorney or agent. Civ. Pro. The notice is to be subscribed Judgments'. 359 No. 470. Affidavit on Motion for Judgment, after Service by Pul)li- catiou. (Code Civ. Pro., § 1216.) [Title of cause.] ^ County, 55./ A. B., of , being duly sworn, says, that he is the attorney for the plaintiff in the above entitled action [or other description of afiiant]. That said action is brought for [state object of action]. That the place of trial therein is the county of . That no answer or demurrer to the complaint therein has been received from the defendant, C. D., by plaintiff's attor- ney, nor has said defendant [appeared or] demanded a copy of the complaint [or that said defendant has appeared by Gr. H., as his attornej'', but has not demanded a copy of the complaint {or has not answered or demurred to the com- plaint, which was served upon said G. H., on the day of , 18—)]. [That a warrant of attachment has been granted in this action, and issued to the sheriff of county, by whom it has been levied upon the following property of the said defendant, to wit (describing it) ; that the value of said property, according to the inventory made and filed by said sheriff pursuant to said attachment, is the sum of dollars.'] [Jurat as in form No. 46.] A. B. ' For cases in which this proof of It was held, under the Code of Pro. , Issuing of attachment, etc , is required, that a money > judgment obtiiined by- see Code Civ. Pro., § 1317. publication of summons against a non- An order for publication of a sum- resident, who did not appear in the ac- mons is not invalid or irregular in an tion, could not affect any property of action against a non-resident for a per- the defendant, except such as had been sonal injury, in which no attachment taken by virtue of an attachment regu- can issue under section 635, Code Civ. larly issued in the action. (McKinney Pro.; but no judgment can be entered v. Collins, 88 N. Y,, 316; see, also, upon the service, under such order, Bartlett v. Holmes, 13 Hun, 398.) unless the defendant appears, (Clarke See note 3 to form No. 473, as to v. Boreel, 31 Hun, 594.) cases for which this form is intended. 360 FOKMS Kelating to No. 471. Order of Reference, on Application for Judgment, after Service Iby Publication, etc. (Code Civ. Pro , § 1216.) [At, etc., as in form No. 80.] [Title of cause.] Due proof having been made of the service of the sum- mons upon the defendant, C. D., more than twenty days since, without the State [or state other manner of service otherwise than personal] ; and on filing the affidavit of A. B., attorney for the plaintiff, dated , 18— by which it appears that the defendant has not appeared or demanded a copy of the complaint [or has appeared by G. H., as his attorney, upon whom due notice of the, appli- cation has been served, but has not demanded a copy of the complaint {or has not answered or demurred to the com- plaint, which was served upon said Gr. H. more than twenty days since)] : Now, on motion of the plaintiff's attorney, after hearing, etc. [or no one appearing to oppose] : It is hereby ordered, that it be referred to R. J., of , to take proof of the cause of action set forth in the complaint [and to examine the plaintiff, or his agent or attorney, on oath, respecting any payments to the said plaintiff, or to any one for his use, on account of his de- mand, and to report thereon to this court].' No. 472. Referee's Report on Application for Judgment, after Ser- vice by Publication. (Code Civ. Pro., § 1216.) [Title of cause.] I, the undersigned referee, appointed by order of the court, made in the above entitled action, to take proof of ' This clause in brackets is to be In- See note 2 to form No 472, as to sertcd. where the plaintifE is a non-resi- cases for ■which this form is intended, dent or foreign corporation. (Code Ci7. Pro., § 1316.) Judgments. 361 the cause of action set forth in the complaint [and to take the examination of the plaintiff, or his agent or attorney, on oath, respecting any payments to the plaintiff, or any one for his use, on account of his demand],' do hereby report : That having been attended by [the plaintiff and his attor- ney], I have taken such proof and examination, and report as f ollow^s : That [state facts constituting cause of action]. [That there is due and trfipaid to the plaintiff, at the date of this rejjort, on account of the note {or state other de- mand) set forth in the complaint, the sum of ■ dollars/] I. J., Referee, [Jurat as in form No. 46.] No. 473. Undertaking on Application for Judgment where Sum- mons is Served by Publication, etc. (Code Civ. Pro., § 1216.) [Title of cause.] Whereas, the plaintiff is about to make application for judgment, in the above entitled action, against the defend- ant, C. D., upon vi^hom service of the summons herein was made without the State \or state other mode of service not personal], and who has failed to [appear] and demand a copy of the complaint \or to answer or demur to the com- plaint] : Now, therefore, I, E. F.,° of , farmer, do hereby undertake, pursuant to section 1216 of the Code of Civil Procedure, that the said plaintiff, A. B., will abide the ' This clause is to bo inserted where fault where service has been niadewith- defendant is a n on resident, or foreign out the State, or otherwise than person- corporation, and the suit is brought ally, and where no special provisions upon a money demand. (Code Civ. are made therefor by the Code of Civil Pro., § 1316.) Procedure or by the General Rules of " The testimony is to be filed witli Practice. They do not apply, e. g., to the report. (Rule 30, Gen. Rules of cases of for. closure and partition, in Prac.) which the forms will be found under This form, and forms Nos. 470, 471, their appropriate sections. 474, 475, are intended to apply to cases ^ Sec section S'.l, Code Civ. Pro. ^f applications for judgment, upon de-. 362 "FoEMS RelatiiJ'G to order of the court touching the restitution of any estate or eflfects which may be directed by the said judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of said judgment,. in case the defendant or his representative applies and is admitted to defend the action and succeeds in his defense/ Dated , 18—. E. F. [Acknowledgment or proof and justification, and approval as in form No. 340.] No. 474. Order for Judgment, in case of Service by Publication, etc. (Code Civ. Pro , § 1216.) [At, etc., as in form No. 80.] [Title of cause.] Upon filing due proof of service of the summons herein by publication \or without the State, or otherwise than upon the defendant personally, stating manner'], more than twenty days since, upon the defendant, C. D. [a non- resident {or a foreign corporation)], and proof by affi- davit of said defendant's default, and the court having taken proof of the cause of action set forth in the com- plaint [and having required the plaintiff (or his, or its agent, or attorney), to be examined on oath respecting any pay- - ments to the plaintiff, or to any one for his use, on account of his {or its) demand ; or the court having appointed R. J., as referee, for the purpose of taking proof of the cause of action set forth in the complaint, and of taking the exam- ination of the plaintiff {or of his' or its agent or attorney), on oath, respecting any payments, etc. (as above), and the report of said referee having been duly made and filed].' ' See notes to forms ZSTos. 340, 341. ^ This proof is necessary to be taken ^ See forms Ifos. 97, 93 and 90 for by the court or a referee, where the proof of service of summons under defendant is a non-resident or foreign order for publication; and for proof corporation. (Code Civ. Pro., § 1316.) of service when defendant cannot be For form of order of reference and found or avoids service, see forms Nos. of referee's report, see forms Nos. 71, 72. 471, 473. Judgments. 363- [And proof having been made by affidavit tliat a warrant of attachment, granted in this action, has been levied upon property of the said defendant, and a descri^jtion of said property so attached, verified by affidavit, with a statement of the value thereof, according to the inventory, having been produced and filed.'] [And the court having required the plaintiff to file an undertaking, as required by law, and prescribed by section 1216 of the Code of Civil Procedui'e, and the same having been duly filed.] Ordered, on motion of G. H., attorney for the plaintiff, that plaintiff have j adgment in this action against the said defendant, C. D., for [stating relief], with costs of this action." No. 475. Judgment, where Summons Served by Publication, etc. (Code Civ. Pro., §1316.) As in form No. 469 to [*], and from thence as follows : That the plaintiff recover from and against the defendant, the sum of dollars, with dollars, the costs of this action, making together the sum of dollars ' [or state other relief]. J. L., CZer/i of Gounty. No. 476. Order of Severance of Action into two or more Actions. (Code Civ. Pro., § 1230.) [At, etc., as in form No. SO.] [Title of cause.] The defendant having answered the first cause of action set forth in the complaint, .and demurred to the second cause of action therein set forth ; It is ordered, on filing, etc. [name papers filed], and on > See ("ode Civ. Pro., § 1317, as to ^ As to cases for which this form is cases in which this proof as to levying intended, see note 2 to form No. 473. of attachment, etc., is required. ^ See note 3 to form No. 473, for cases for which this form is intended. 364 FoEMS Relating to the application of A. F., counsel for the plaintiff, after hear- ing I. J , counsel for defendant [or due notice of this motion having been given to defendant's attorney, and no one ap- pearing to oppose], that this action be divided into two actions, one comprising the said first cause of action and the answer thereto, and the other the said second cause of action and the demurrer thereto [or other similar order ac- cording to the facts]. No. 477. Order for Final Judgment upon Demurrer, where Decision does not Direct J'inal Judgment. (Code Civ. Pro., §1333.) [At, etc., as in form No. 80.] [Title of cause.] Judgment of the — day of , 18 — . Interlocutory Judgment having been rendered upon the demurrer herein, overruling [or sustaining] said demurrer, with dollars costs, with leave to the defendant [or l^laintiff] to pay said costs and serve an answer [or reply {or to amend his complaint, gtc.)] within twenty days after service upon his attorney of a copy of said interlocutory judgment, and a coi^y of said interlocutory judgment having been duly served upon E. F., the attorney for the said defendant [or plaintiff], more than twenty days since, and the defendant [or plainiiff] not having complied with the terms of said judgment by paying said costs and serving said answer [or reply {or by amending his said complaint, etc.)] : Now, on motion of A. F. , counsel for the plaintiff [or de- fendant], and after hearing M. N., counsel for the defendant [or plaintiff], it is Ordered, that the plaintiff [or defendant] have final judg- ment hei^ein for [stating relief].' ' The judgment may be entered by vide for final judgment in case of fail- the clerli in an action specified in sec- ure to comply vpltli its terms, etc. tion 420, Code Civil Procedure. This (Code Civ. Pro., § 1323 ) proceeding is only necessary where the For final judgment upon demurrer, interlocutory judgment does not pro- see form No. 478. Judgments. 365 No. 478. Final Judgment upon Demurrer. (Code Civ. Pro., S^g 1333, 1331.) [Title of cause.] • Judgment of tlie ■ day of , 18 — . It is adjudged, on motion of the attorney for the plaintiff [or defendant], pursuant to the order of the court made and entered herein on the day of , 18 — [or pursuant to the interlocutory judgment entered herein on the day of , 18—, the defendant {or plain- tiff) having failed to pay the costs awarded by the said interlocutory judgment and serve an answer (or reply, or to amend his complaint, etc.) herein within twenty days after the service of a copy of said interlocutory judgment upon his attorney], that the [plaintiff] recover from the [defendant] the sum of dollars and cents, with dollars and cents costs, making in all the sum of dollars and cents [or other relief, stating it].' J. L., Clerk. No. 479. Judgment upon Report of Referee, or Decision of Court, on Trial of Issues. (Code Civ. Pro., § 1338.) [Title of cause.] Judgment of the day of , 18—. Upon filing the report of I. J., referee duly appointed [or the decision of Hon. A. O., judge of the court] in the above entitled action, dated , 18 — , and on motion of K. L., attorney for the plaintiff [or defendant], it is Adjudged, that the plaintiff recover from the defendant the sum of dollars and cents, with dollars and cents costs of this action, in all amount- ing to the sum of ■ dollars and cents [or that the complaint herein be dismissed, and that defendant recover from plaintiff his costs of this action, to wit : the ' See note 1 to form No, 477, 366 Poems Relating to gum of dollars and cents {or state other relief as awarded by the report or decision)].' J. L., Cleric. * No. 480. Notice of Motion for Confirmation of Report of Referee, etc., in Action for Divorce, where wife is Plaintiff. (Code Civ. Pro., § 1329.) [Title of canse.J Sir— Take notice, that upon the- report of the referee in the above entitled action, and the testimony and the other proceedings upon the reference, certified to the court by the said referee, and the pleadings and proceedings in said ac- tion, a motion will be made at, etc., for the confirmation of said report and for judgment thereupon and in accordance therewith, [*] and that the care and custody of the children of the marriage of the plaintiff and defendant be awarded to the plaintiff ; and that the sum of dollars per annum, payable [quarterly], be allowed to the plaintiff, to be paid by the defendant, for her support and maintenance, and the support, maintenance and education of the said children, and that defendant give security for the payment thereof, and for such other and further order as to the court may seem proper, with costs of this motion.' Dated , 18—. Yours, etc., M. N"., Attorney for Plaintiff. [Office address.'] To C. n., Attorney for Defendant. ' See Scliroeter v. Schroeter (25 Hun, '^ As to powers of the court upon this 230), and other cases cited in note 2 to motion, see Schroeter v. Schroeter (23 form No. 480 as to judgment in mat- Hun, 330), Harding v. Harding (43 N. rimonial cases. ' Y. Super. Ct., 27), Greene v. Greene Section 1228, Code Civ. Pro., applies (14 Weelc. Dig., 159), Moore v. Moore to countjr courts. (Cooli v. Darrow, (14 Week. Dig, 255), McCleary v Mc- 22 Hun, 30G.) Cleary (30 Hun, 154, and note p. 155), Where a judgment entered upon a Ross v. Ross (31 Hun, 140). referee's report is hroader tlian the re- An application for judgment on a port authorizes, the error cannot he referee's report in a contested divorce corrected on appeal ; the remedy is by case should be made at Special Term motion to set aside or correct the judg- and not at chambers. (Smith v. Smith, ment. (Campbell v. Seaman, G3 JT- 4 Month. L. Bui., 57.) y., 5G8,) ' Sec note 2 to form No, 123, Judgments. 367 No. 481. Same where Husband is Plaintiff. (Code Civ. Pro., §1329.) As in last form [No. 480] to [*], and from thence as fol- lows : And for such other and further relief as may seem proper to the court, with costs of this motion. Dated , 18—.' Yours, etc., M. N., Attorney for Plaintiff. [Office address.'] To C. H., Attorney for Defendant. No. 482. Judgment for Limited Diyorce upon Referee's Report. (Code Civ. Pro., § 1229.) [At, etc., as in form No. 80. J [Title of cause.] Upon filing the report of the referee herein, dated — 5 18—, with notice of motion for confirmation thereof, and for judgment thereupon and in accordance therewith, at this term, and proof of due service of such notice upon the attorney for the defendant, with the testimony and other proceedings taken upon such reference, certified to the court by said referee with his report, and the pleadings and other proceedings in this action, and [name any other papers read ujion the motion] ; and on motion of F. L.. counsel for plaintiff, and after hearing P. R., counsel for tlie defendant, it is ordered and adjudged: [*] Tliat the said plaintiff and defendant be separated from bed and board forever ; provided, however, that said par- ties may, at any time hereafter, by their joint petition, apply to this court to have this judgment modified or dis- charged, and that neither of said parties shall marry any other person during the life of the other party. And it is further adjudged, that tlie defendant pay to the plaintiff the sum of '- dollars per annum, in quar > gee «otes to l^st form No, 49Q. » See np*ve ? to form No. 123, 368 Forms Relatinct to terly payments, for her support and maintenance [and tlie support and maintenance of the children of the marriage mentioned in the complaint], and that he give security to the clerk of the county of , to be approved by one of the justices of this court, for the payment of the said sum ; and that the plaintiff have the care and custody and education of the said children of the marriage until the further order of the court ; and that the defendant pay to the plaintiff, or her attorney, the sum of dollars, hereby adjudged as the costs of this action [or the costs of this action to be taxed according to law], and that she have execution therefor according to the rules and practice of this court." J. L., OlerJe. No. 483. Judgment of Absolute Divorce on Report of Referee. (Code Civ. Pro., § 1239.) As in form No. 482 to [*], and from thence as follows : That the marriage between the said plaintiff, A. B., and the defendant, C. D., be and the same hereby is dissolved, and the said parties are, and each of them is, freed from the obligations thereof. And it is further adjudged, that it shall be lawful for the said i)laintiff, A. B., to marry again, in the same manner as though the defendant, C. B., were actually dead; but it shall not be lawful for the said defendant, C. B., to marry again, until the said plaintiff, A. B., is actually dead." And it is further adjudged, that the defendant pay to the plaintiff, or her attorney, the costs of this action, hereby adjudged at the sum of dollars [or the costs of this action, to be taxed according to law]. [*] [It is further adjudged, that L. B., the infant child of said defendant, is not the issue of the said marriage between the plaintiff and the defendant, but is illegitimate, and not en- titled, in case of the plaintiff's death intestate, to inherit any share or portion of his estate, real or personal.] 1 See notes to form No. 480. ^ See note 8, p. 690, and § 1701, Code Civ. Pro. Judgments. 369 And it is further adjudged, that the said defendant is not entitled to any right or title of dower in the plaintiff's real estate, or to any interest or distributive share in his personal property, in case of his death intestate. [Where the decree is in favor of the wife, proceed as above to (*), and from thence as follows : And it is further ordered, that the defendant pay to the plaintiff the sum of -^ dollars, per annum, from the date hereof, in quar- terly payments, for the support and maintenance of the plaintiff and the children of the marriage named in the com- plaint, and that he give security to the clerk of this court in the county of , to be approved by one of the justices thereof, for the payment of the said sum ; but such payment is (not) to be in lieu of her right of dower in his real estate, or interest in his personal property, in case of his death intestate ; and that the plaintiff have the care, custody and education of the children of the marriage, D. B. and F. B., until the further of this court.] J. L., Cleric. No. 484. Interlocutory Judgment upon Decision of Demurrer. (Code Civ. Pro., § 1231.) [Title of cause.] Interlocutory judgment of the day of , 18—. The issues of law formed by the demurrer of the defend- ant, C. D., having been tried before O. F., as referee, who has duly made and filed his report thereon, dated , 18— \or before Hon. A. O., justice {or judge) of the court, at a (Special) Term of the Court, held at the (court house), in the of , on the day of , 18—, and the said justice having rendered Ms decision thereon, and an order in conformity therewith having been this day duly entered in the— clerk's office] : Now, in pursuance of such report \or order], and on motion of E. F., the attorney for the ■ , it is ad- 47 370 FoKMS Kelating to judged, that the demurrer of the be and the same is hereby overruled [or sustained], and judgment is hereby rendered against said defendant as prayed for in the com- plaint [or in favor of the defendant, dismissing^ the com- plaint, with costs], to be enforced, according to law, with leave, however, to the said , within twenty days from the service of a cojiy of this interlocutory judgment, to pay the costs of the and answer [or reply to] the complaint [or answer] herein [or to serve an amended com- l^laint herein] : .^ And in case of the failure of the to comply with the terms hereby imposed, or directions hereby given, the said shall be entitled to final judgment [f] for [state relief]. [Or as above to (f), and thence as follows : To be settled by said judge (or by a judge of this court) {or by said referee, or by 11. R., who is hereby apiDointed referee for that pur- pose).] J. L., Clerh. Article Third. forms relating to lien and satisfaction of a judg- MENT, DISCHARGE OF LIEN, Etc. (Code Civ. Pro., Ch. 11, Tit. 1, Art. 3.) No. 485. Notice of levy upon real property, or chattel real, after ten> years ' from time of filing judgment roll. 486. Affidavit on motion to exempt real property from lien of judgment pending appeal. 437. Notice of motion for order exempting real property, etc., from lien of judgment ponding nppcal. 488. Order suspending lien of judgment upon appeal. 489. Satisfaction of judgment. 490. Notice of motion for cancellation and discharge of judgment, after discharge of debtor in bankruptcy. 491. Affidavit on motion for cancellation of judgment, after discharge in bankruptcy. 492. Order cancelling and discharging judgment, after discharge of debtor in bankruptcy. Judgments. 371 No. 485. Notice of Levy upon Real Property or Chattel Real, after Tea Years from Time of Filing Judgment Roll. (Code Civ. Pro., § 1353.) [Title of cause.] Notice is hereby given, that, by virtue of an execution against property, to me issued and delivered, in the above entitled action, on the day of , 18 — , upon a judgment of the Court, entered and docketed in said action in the county clerk's office, on the day of ; 18—, in favor of the [plaintiff], M. B., and against the [defendant], A. F., for dol- lars and • cents, damages and costs, I have levied upon all the right, title and interest of A. F. [or of M. P., as the heir {or devisee) of A. F.], the said judgment debtor, in and to the real property [or chattel real], situated in the county of , described as follows, to wit [here insert description].' Dated , 18—. M. K, Sheriff of Counip. No. 486. Aiiidavit on Motion to Exempt Real Property from Lien of Judgment Pending Appeal. (Code Civ. Pro., §1350.) [Title of cause.] ■ County, 55..' A. B., of , being duly sworn, says, that he is [in- sert description of affiant]. That on the ; — day of , 18 — , a judgment was rendered by the Court in the above entitled action, in favor of the [plaintiff] and against the [defend- ant], for the sum of dollars and cents, damages- and costs, which judgment was duly entered and docketed in the county of , on the day last aforesaid [or on the day of , 18—] ' See Evans v. Hill, 18 Ilun, 4G4, 372 FoEMS Relating to That an appeal was duly taken therefrom by the said [defendant] on the day of , 18—, and within days after, etc. [stating facts showing ap- peal to have been taken within the time prescribed by law], to the [stating court]. That said appeal was perfected by [state manner of ap- peal], and an undertaking thereupon was given by said appellant, and filed in the clerk's office on the said day of • — , 18—, executed by E. F. and G. H., as sureties, of which, with the certificates of acknowledg- ment and of approval, and affidavits thereupon, copies are hereto annexed. That the real property [or chattel real], described as fol- lows, belonging to the defendant, situated in the county of , is subject to the lien of said judgment, to wit: [describe property] [or that the defendant is owner of cer- tain real property (and chattels real), situated in the said county of , which is {or are) subject to the lien of said judgment].' [Jurat as in form No. 46. J No. 487. Notice of Motion for Order Exempting Real Property, etc., from the Lien of Judgment Pending Appeal. (Code Civ, Pro., § 1250.) [Title of cause.] SiES — Take notice, that upon the affidavit, with a copy of which you are herewith served, and the pleadings and proceedings in this action, a motion will be made at, etc., for an order exempting the real property, and chattels real, of the appellant which are subject to the lien of the judg- ment entered in this action on the day of , 18 — [or the portion of the real property {or chattels real) • See Union Dime Sav. Inst. v. Dur- It seems lliat the provisions of sec- yea (67 N. Y., 84; aflf'g S. C, 3 Hun, tion 135f., Code Civ. Pro , are appli- 210), Harmon v. Hope (87 N. Y., 10), cable in actions in the United States Bronner v. Loomis (17 Hun, 439), Circuit Court, i United States v. Stur- Green v. Milbank (3 Abb. N. C, 138). gis, 14 Fed. R., 183.) Judgments. 373 described in said affidavit], from the lion of said judgment as against judgment creditors and purchasers and mort- gagees in good faith, pending the appeal to the , taken in this action, on the day of , 18 and for such other and further relief as may be proper." Dated , 18—. Yours, etc., M. N., Attorney for Appellant. [Office address.'] To C. P., Esq., Attorney for Respondent, and B. F., and Gr. H., Sureties. No. 488. Order Suspending Lien of Judgment upon Appeal. (Code Civ. Pro., § 1256.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the affidavit of A. B., dated ■ > 18 — , by which it appears that an appeal to the has been perfected, and an undertaking given thereon, sufficient to entitle the appellant, O. F., to a stay of the execution of the judgment rendered in this action, on the day of , 18—, against him in favor of the respondent, I. J., for ■ dollars, without an order for that pur- pose, "and due notice of this motion having been given to the attorney for the respondent and to E. F. and G. H., the sureties in said undertaking, and on reading [specifying other motion papers] : It is hereby ordered, on motion of I. J. for the said ap- pellant, after hearing G. H. for the respondent [or no one appearing to oppose], that the real property [or chattels real] hereinafter described [or all the real property and chattels real subject to the lien of said judgment] be ex- empted from the lien of the above mentioned judgment as against judgment creditors and purchasers and mortgagees in good faith thereof, and that the clerk of county be and he is hereby directed to make an entry on the > See note 1 to form No. 48G. « See note 3 to form No. 123. JJ 374 FoEMS Relatikg to docket of said judgment in each place where it appears in the docket book, substantially as follows: "Lien sus pended upon appeal. See order entered , 18— [or "lien partially suspended upon appeal. See order en- tered , 18—"]. [The following is a description of the roal property {or chattels real) above mentioned (here insert description).'] This order is granted upon the following terms [state terms]." No. 489. Satisfaction of Judgment. (Code Civ. Pro., § 12G0.) [Title of cause.] Satisfaction of a Judgment in this court, entered in the above entitled action in favor of A. B., plaintiflF, against C. D., defendant, for the sum of dollars and — cents, is hereby acknowledged. Judgment entered in the judgment book of the clsrk of the county of , on the day of , 18 — , on which day the judgment roll thereupon was filed, and said judgment docketed in said county clerk's office.^ A. B. County, ss.: On this day of , 18 — , before me person- ally appeared A. B., known to me to be the judgment credi- tor [or the assignee of the judgment creditor, or the attorney for the judgment creditor] above named, and acknowledged to me that he executed the foregoing instrument. 0. F. [official description.'] • This description .is to bo inserted party to the original action or to the where a portion of the real property, proceeding vacating tlie order. (Har- etc, is exempted. man v. Hope, 87 N. Y., 10.) ' An order vacating the order sus- See, also, note 1 to form No. 486. pendmg tlie lien and upon its face pur- ' See |§ 1236, 1237, 1246, Code Civ. porting to restore the lien nunc pro Pro, See, also, as to docketing decree tunc, does not restore it as against a of surrogate's court and satisfaction creditor vrhose judgment was docketed thereof, id., § 2553. In that case the in the interval between the granting of above form must be varied, according the two orders, and who was not a to the circumstances. Judgments. 375 No. 490. Notice of Motion for Cancellation and Discharge of Judg- ment, after Discharge of Dehtor in Bankruptcy. iCode Civ. Pro., § 1268.) [Title of cause.] Sirs— Take notice, that upon the affidavit hereto annexed, and [naming other papers], a motion will be made at, etc., for an order cancellirtg and discharging of record the judg- ment mentioned and described in said affidavit, and for such other and further relief as may be proper.' To C. R, Judgment. 3 ■^>-' , Judgment Yours, E Creditor," 1 etc., . F., Attorney for M. N. [Office address."] and E. P., Owners of said No. 491. AflfldaTit on Motion for Cancellation of Judgment, after Discharge in Bankruptcy. (Code Civ. Pro., § 1268.) [Title of cause.] County, ss. : A. B., of , being duly svrorn, says, that on the day of , 18 — , a judgment was recovered in the Court in the above entitled action, in favor of C. B. [plaintiff], and against M. N. [defendant], for dollars. That the judgment roll thereon was filed, and said judg- ment was entered and docketed in the county clerk's office, on that day. That after the entry of said judgment [or after the indebt- edness was contracted upon which said judgment was re- covered], a petition was filed by [or against] said M. N. in the [describing court], in bankruptcy. That such proceedings were thereafter had upon such petition, that on the day of , . 18 — , an ' See note 1 to form^No. 491. ment creditor, if practicable, even * See uote 2 to form No. 123. where tlie judgment has been assigned. 3 It will be safer to notify the judg- 376 FOEMS Relating to order or certificate was entered in the said [describing court], of wbicli a certified copy is hereto annexed, by which the said M. N. was discharged by that court from the payment of the debts mentioned in said order or certifi- cate, owed by him at the time of the filing of said petition, in which discharge was included the debt upon which said judgment was rendered [and the said Judgment], pursuant to the acts of Congress relating to bankruptcy.' [That since the recovery of said judgment by him, and on or about the day of , 18— by written assignment, dated that day, the .said C. B. assigned the same to E. P., who is now the owner thereof (as will appear from a certified copy of said assignment, hereto annexed).] [That the written consent of said C. B. (or E. P.) to the granting of an order discharging said judgment, with proof of the execution thereof, is hereto annexed.] A. B. [Jurat as in form No. 46.] No. 492. Oi'der Cancelling and Discharging Judgment, after Dis- charge of Debtor in Bankruptcy. (Code Civ. Pro., § 1268.) [At, etc., as in form No. 80.] [Title of cause. On reading and filing the affidavit of A. B., dated , 18 — , to which is annexed a certified copy of the order or certificate of the Court, dated , 18 — , dis- charging M. N. from his debts in bankruptcy, pursuant to the acts of Congress relating to bankruptcy, by which afii- davit it appears that a certain judgment rendered in the > See In re Brandreth (14 Hun, 585), Civ. Pro. K- [Browne], 457; S. C, 64 Bergen v. Patterson (24 Hun, 251), How. Pr., 452; 18 Week. Dig., 380), Fellowsv. Kittredge(56How.Pr.,49S), Blumenlbal v. Anderson (91 N. Y., 171; Townscnd v. Simpson (03 How. Pr., afl'g S. C.,28IIun, 93.) 507; S C, 13 N. Y. "Week. Dig , 450), And see as to cancellation of judg- Trimble V. More (47 N. T. Super. Ct., ment against insolvent debtor after 340), Amer. Ex. Bank v. Brandretli discliarge, Laws 1883, p 574, ch. 403. (13 Hun, 384), Popham v. Barretto (20 amending Code piv. Pro., § 3183, and Hun, 399), Seaman v. McReynolds (05 see form No. J3 ) How. Pr., 531), Arnold v. Oliver (3 Judgments. 377 Court, in favor of C. B., plaintiff, against M. N., defendant, on the day of , 18 — , for dollars, tlie judgment roll whereon was filed and said judg- ment docketed in the county clerk's office on that day was discharged by said order or certificate, and it ap- pearing that due notice of this application has been given to the said judgment creditor [or to E. P., the owner of said judgment by assignment from said C. B.J, accompanied with copies of the papers upon which it is made [or the written consent of said C. B. {or of E. P., the present owner of said judgment by assignment from said C. B.), with due proof of the execution thereof having been filed], and on reading [name any opposing papers] : Now, on motion of P. R. for the said M. N., after hearing M. P. for [the said C. B. {or no one appearing to oppose),] it is hereby Ordered, that the said judgment be and the same is hereby cancelled and discharged of record.' TITLE II. forms relating to judgments taken without process. Article First. forms relating to confession of judgment. (Code Civ. Pro., Ch. 11, Tit. 2, Art. 1.) No. 493. Statement on confession of judgment without action. 494. Judgment entered by confession. 495. Bill of costs on entry of judgment by confession. No. 493. Statement on Confession of Judgment Without Action. (Code Civ. Pro., g 1274.) — — COURT— County of . A. B., Plaintiff, agst. CD., Defendant. See note 1 to last form No. 491. 378 FoKMS Relating to I [or we], C. D. [and B. F.],' of , do hereby con- fess judgment in this court in favor of A. B., for the sum of — dollars and cents, and hereby author- ize said A. B., his heirs, executors, administrators or assigns, to enter judgment therefor against me [or us]. This confession of judgment is [*] for a debt or liability justly due [or to become due], arising out of the following facts [state facts]/ [Or as above to (*), and from thence as follows : For the purpose of securing the plaintiff, A. B., against a contin- gent liability, the following being a statement of the facts constituting such liability (here insert concise statement of such facts, and show that the sum confessed therefor does not exceed the amount of the liability)."] C. D., Defendant. OotrwTY OF ss. C. D., being duly sworn, says, that he is the defendant above named, and that the matters of facts set forth in the above statement are true. C. D. [Jurat as in form No. 40.] ' One or more joint debtors may con- fess a judgment for a joint debt, due or to become due. Where all tlie joint debtors do not unite in the conicssion, the judgment must be entered and en- forced against tliose only who confessed it ; and it is not a bar to an action against all the joint debtors upon the same de- mand. ( ode Civ. Pro., § 1278; sec National Bank v. Spencer, 19 Hun, 475; Tripp V. Saunders, 50 How. Pr., 379.) See, however, Candee v. Smith (93 N. Y., 349; S. C, 18 Week. Dig.,, 1), holding that where the holder of a joint promissory note, prior to the Code of Civ. Pro., took judgment by confes- sion for tba whole amount against one of the makers, the liability of the other makers was discharged by the judg- ment, the note as to all having been merged therein. ^ A statement upon which to enter judgment wUbout acUon, under the Code, is not sufficient, where it merely states and sets out a promissory note executed by the defendant to plantiff as the consideration of the indebted- ness. The facts out of which the in- debtedness evidenced by the note arose, should be concisely stated. (Chappel V. Chappel, ION. Y., 215.) Where the statement averred an in- debtedness and its amount, on prom- issory notes given for borrowed money, and also for the jDlaintsff's having assumed the payment of another prom- issory note made by the defendant, whereby the note had been paid and taken up, with a sufficient description of the several notes,- it was held suffi- cient, although it did not state, in terms, that the sum confessed was justly due, or to become due. (Lanning v. Carpenter, 20 N. Y., 447.) The particular facts must be set forth in such manner as to show a just debt an4 tlie aniQunt thereof; but ■wbwe the JUDaMENTS. 379 No. 494. Judgment Entered by Confession. (Code Civ. Pro., § 1375.) COURT.' A. B., Plaintiff, agst. CD., Defendant. Judgment of the day of 18—. On filing the within [or annexed] statement, made by C. D., and on motion of M. N., attorney for plaintiiJ, it is creation of a just debt is averred, it is unnecessary, in terms, to negative tliat it has been paid or otherwisedischarged. (Id) See further as to statements on con- fession of judgment by malier to payee upon promissory notes, Freligh v Brink (23 N. Y., 41b), Kellogg v. Cowing (33 N. Y., 408), Dunham v. Waterman (17 N. Y„ 9). As to statements for goods sold and delivered, see Miller v. Earle (24 N. Y., 110), Neusbaum v. Keim (24 N. Y., 325), Read v. French (28 N. Y., 285), Harrison v. Gibbons (U N. Y., 58), Fields V. Blund (81 N. Y., 239; 8 Abb. N. C, 321). As to statements to secure surety and indorsers, see Dow v. Plainer (16 N. Y. , 563), Hopkins v. Nelson (84 N. Y., 518); to secure future advances, see Cook v. Whipple (55 N. Y., 150); on sale of property, see Thompson v. Van Vech- ten (37 N. Y., 568); for money loaned, see Ely V. Cooke (38 N. Y., 305), Frost V. Koon (30 N. Y,, 438); see, also, Kir- by V. Fitzgerald (31 N. Y., 417), Cle- ments V. Gerow (1-Keyes, 297), Acker V. Acker (1 Keyes, 391), Gandall v. Finn (1 Keyes, 317; S. C, 33 How. Pr., 441), Man-in v. Marrin (27 Hun, 601; rev'd on appeal, without opinion, 93 N. Y., 644). The above cited cases are the leading »«tborities on tUe subject of tlje state- ment, and contain the general princi- ples regulating its contents. As to verification- of statement, see Ingram v. Bobbins (33 N. Y., 409). A judgment cannot be confessed for a tort. (Burkham v. Van Saun, 14 Abb. Pr. [N. S.], 163.) The Supreme Court has power, upon a motion to set aside a judgment by con- fession, to amend the statement. (Mit- chell V. Van Buren, 37 N. Y., 800; Union Bank v. Bush, 86 id., 631 ; Cook V. Whipple, 55 id., 150.) ^ The confession may be for both purposes above stated. (Code Civ. Pro., § 1373.) A married woman may confess judg- ment, if the debt was contracted for the benefit of her separate estate, or in the course of any trade or other busi- ness carried on by her on her sole and separate account. (Id.) As to rule previous to the Code Civ. Pro., see Watkins v. Abrahams (34 N. Y., 73), Roraback v. Stebbins (3 Keyes, 62), First Nat'l Bank of Canandaigua v. Garlinghouse (53 Barb., C15). ' If the statement is filed with the county clerk, the judgment must be entered in the Supreme Court; if it is filed with the clerk of a superior city court, the judgment must be entered in the court of which he is clerk. (Code Civ. Pro., § 1375.) 380 Forms Eelating to adjudged, that A. B., the above named plaintiff, recover from the said C. D., defendant, dollars and cents, and dollars and cents costs and disbursements, amounting in all to the sum of dollars and cents. J. L., Cleric. No. 495. Bill of Costs on Entry of Judgment Iby Confession. (Code Civ. Pro., § 1275.) SUPREME COURT \pr othee Court].' • A. B., Plaintiff, agst. CD., Defendant. Costs allowed by Code Civil Procedure, section 1275, $15 00 Clerk's fees entering judgment, - - 50 Clerk' s fees, transcripts and filing, - - - Affidavits, .... . . Sheriff's fees receiving and returning execution, - 62 Postage, ... - ■ County, 5*. : M. N., of , being duly sworn, says, that he is the attorney for the plaintiff above named ; that the disburse- ments above mentioned have been or will be necessarily made or incurred in this action, to the deponent' s knowl- edge or belief. M. N. [Jurat as in form No. 46.] Article Second. FORMS RELATING TO SUBMISSION OF CONTROVERSY ON FACTS ADMITTED. (Code Civ. Pro., Ch. 11, Tit. 2, Art. 2.) No. 49G. Statement on submission of controversy without action. 497. Order for judgment upon submission of controversy without action. 498. Judgment upon submission of controversy witliout action. ' See note 1 to last form No. 494. Judgments. 381 No. 496. Statement on Submission of Controversy without Action. COURT, (Code Civ. Pro., §1279.) County. A. B. agst. C. D. The following question in difference between A. B., of , and C. D., of , both being of full age,' is hereby submitted to the Court,' to wit: Whether the said A. B. is entitled to recover judgment against the said C. D. for the sum of dollars, or any part thereof, with costs \or whether the said A. B. is entitled to the following relief, viz. : (stating relief claimed), with costs {or state other question)]. The following case is agreed upon by said parties, con- taining a statement of the facts upon which the said contro- versy hereby submitted depends : [here insert statement of such facts, stating, also, clerk's office in which the submis- sion, etc., are to be filed].' That an actual controversy {or question] exists at the ' Sec Lathers v. Pish (4 Lans., 213), Fisher V. Stilson (9 Abb., 33), as to invalidity of submission by or on be- half of infant, under section 373 of the Code of Procedure. It was held in City of Buffalo v. Mackay (15 Hun, 204), that the right to a public olfice could only be deter- mined in an action in the name of the people, and accordingly a submission of the question involving the right to the oflBce of health physician of Buffalo ■was dismissed. But see People ex rel. La'nsing v. Tremain (08 N. Y., 628; afl'g 8. C, 9 Hun, 573), and People ex rd. McCann v. Kilbourn (68 N. Y., 479; aff'g S. C, 9 Hun, 578), where the rights of the relators to ofBce in the city of Albany were determined upon a submission of the controversy under section 373 of the Code of Procedure. See, also, Kennedy v. The Mayor, etc., of N. Y. (79 N. Y., 361 ; S. C, 29 Am. R., 169). * If the action is in the Supreme Court, a superior city court, or the marine court (now city court) of the city of New York, it must be tried and judgment rendered at the Genera' Term. (Code Civ. Pro., § 1281; see, also, Waring v. O'Neill, 15 Hun, 105- and sec further § 1281 [swpra]; Ise- man v. Myres [30 Hun, 658], as to re- lief, costs, etc., upon. submission.) ^ See generally as to statement, Clark V. Vyise (40 N. Y., 612), Fearing v. Irwin (55 N Y., 486, 489; aff'g S. C, 4 Daly, 385), Union National Bank v. Kupper (63 N. Y., 617), Wood v. Squires (60 N. Y., 191, 193), Graves V. Brinkerhoff (4 Hun, 305), Dickinson V. Dickey (76 N. Y., 602); as to filing 38S Forms Relating tO time of this submission between the said parties upon the point hereby presented for decision.' C. D. COUITTY, ss.: A. B. [or C. D.J, of , being duly sworn, saj^s, that he is one of the parties to the controversy stated in the •foregoing case ; that said controversy is real, and that the submission thereof is made in good faith for the purpose qf determining the rights of the parties." A. B. [or C. D.j [Jurat as in form No. 46. j [Certificate of acknowledgment or proof substantially as in form No. — , by both parties.] No. 497. Order for Judgment Upon Submission of Controyersy Without Action. (Code Civ. Pro., § 1281.) [At, etc., as in form No. 211.'] A. B. agst. C. D. A case agreed upon between the parties above named, without action, pursuant to section 1279 of the Code of Civil Procedure, and duly verified on the day of , 18 — , and duly acknowledged [or proved], having been submitted to this court ; [*] and after hearing E. M., of the parties where there is a natural person a party by whom it may be made. An affidavit of an attorney of one of the parties is insufficient. (Bloomfield v. Ketcham, 65 N. Y., 657; S. C, 18 Week. Dig., 540.) ^ In the Supreme Court, in a Superior City Court or the Marine Court (now city court) of the city of New Yorlc, such action must be tried and judgment rendered at the General Term. An order of arrest, an injunction or a war- submission, etc.. see section 1280, Code Civ. Pro. ' The facts stated must show that there was at tlie time the submission was made a controversy or question of difference between the parties on the point presented for decision, and that a judgment can be rendered thereon ; the court may not pass upon a mere abstract question. (People v Mut. En. and Ac. Ass'n. 92 N Y., 622 ) s The affidavit must be made by one Judgments. 383 for the plaintiff, and F. C, for the defendant, and due de- liberation being had thereupon ; It is hereby ordered, that the plaintiff have judgment herein, that [state judgment]. No. 498. Judgment Upon Suhmission of Controversy Without Action. (Code Civ. Pro., § 1380.-) A. B. agst. CD. Judgment of the day of , 18 — . Recitals as in form No. 497 to [*], and from thence as follows : And an order of the General Term of the Court, in the department, having been made and entered on the day of ^ — , 18—, that the have judgment as hereinafter is adjudged : Now, therefore, it is adjudged, pursuant to said order, that [state relief, as directed by the order]. TITLE III. FORMS RELATING TO VACATING OR SETTING ASIDE A JUDG- MENT FOR IRREGULARITY OR ERROR IN PACT, Etc. (Code Civ. Pro., Cli. 11, Tit. 3.) No. 499. Notice of motion to set aside a iinal judgmeut for irregularity. 500. Notice of motion to set aside judgment for error in fact. 501. Notice of motion to set aside a regular judgment entered by default. 502. Order to show cause why judgment should not be set aside, etc. 503. Order setting aside judgment, etc., and directing restitution. rant of attachment, cannot be granted must be made dismissing the submis- in sucli an action ; the costs thereof are sion, without costs to either party ; un- alwa}fs in the discretion of the court, less the court permits the parties, or, but costs cannot be taxed for any pro- in a proper case, their representatives, ceedings before notice of trial. (Code to make an additional statement, which Civ. Pro., § 1281 ) it 'nay do, in its discretion, without If the statement of facts, contained prejudice to the original statement. in the case, is not sufHcient to enable (Id. ; see, also, People v. Mutual En. the court to render judgment, an order and Ac. Ass'n, 93 N. Y., 622. 384 FOKMS Relating to No. 499. Notice of Motion to Set Aside a Final Judgment for Irregularity. (Code Civ. Pro., §1283.} [Title of cause.] Sir — Take notice, that upon [name motion papers], a motion will be made at, etc., that the judgment entered herein against the defendant on the day of , 18—, [*] [by default] and all subsequent proceedings in this action, be set aside, [f] with costs, upon the ground, among others, of irregularity, viz. : in that [stating irregularity or irregularities],' and for such other or further relief, etc. Dated 18- M. F., Defendant s Attorney. [Office address.'] To G. H., Esq., Plaintiff '' s Attorney. ' When the motion is for irregularity the notice or order (to show cause) shall specify the irregularity complain- ed of. (Rule 37, Gen. Rules of Prac.) The question as to what defects are mere irregularities is discussed in the case of Clapp v. Graves (26 N. Y., 418), in which the court quotes with ap- proval the language of Justice Cole- ridge in Holmes v. Russell (9 Dowl., 487); "It IS difficult, sometimes, to distinguish between an irregularity and a nullity ; but I think the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection. If he can waive it, it amounts to an irregu- larity, if he cannot it is a nullity." (McMurray v. McMurray. 9 Abb. [N. S.], 323.) To entitle a party to have irregular proceedings sot aside, it should appear that ho is prejudiced by them in some way to his injury. (Green v. Howard, 14 Hun, 434.) The motion will be denied even if made within the year after the filing of the judgment roll as required by section 1282, Code Civ. Pro., if there has been great laches in making the motion. (National Bank v. Spencer, 19 Hun, 509.) A notice of motion to set aside a judgment, on the ground that the debtor was an infant at the time it was rendered, and that no guardian ad lileni was appointed for him, need not specify the irregularity complaiued of, as the motion is not based upon an irregularity, but upon an error in fact. (Peck V. Coler, 20 Hun, 534.) See, also. Woods v. Pangburn (75 N. Y., 495; rev'g S. C , 14 Hun, 540), JuddL. and S. Oil Co. v. HubbelliTGN. Y., 543), In Matter of city of Buffal© (78 N. Y., 3G2), Parish v. Austin (25 Hun, 430), Springsteene v. Gillett (30 Plun, 260), Jcx V. Jacob (9 Daly, 293), Schumann v. Orchard (9 Daly, 345). As to restitution, when judgment is sot aside, see Code Civ. Pro., sections 1292, 1333, and forms relating to these sections; Kidd v. Curry (39 Hun, 215); Martin v. Rector (28 Hun, 410). = See note 2 to form No. 123. Judgments. 385 No. 500. Notice of Motion to Set Aside Judgment for Error in Fact.' (Code Civ. Pro., § 1283.) As in form No. 499 to [*], and from thence as follows : And all subsequent proceedings in this action be set aside, with costs, and for such other or further relief as may be proper. Dated , 18—. M. N., Defendant^ s Attorney. [Office address."] To P. M , Attorney for Plaintiff. No. 501. Notice of Motion to Set Aside a Regular Judgment by Default. (Code Civ. Pro., §968.) As in form No. 499 to [*], and from thence as follows : Upon such terms as to the court may seem just [and that the money levied thereon be returned to the defendant °], and for such other, etc. Dated , 18—. A. F., Attorney for Defendant. [Office address.''] To I. J., Attorney for Plaintiff. No. 503. Order to Show Cause why Judgment Should not be Set Aside, etc. (Code Civ. Pro., § 1289.) [Title of cause.] On the affidavits and papers annexed hereto, let the plain- ' See McMurray v. McMurray (9 Abb. roll, unless notice thereof is given, for [N. S ], 323), In Matter of city of Buf- a day vpithin the two years, etc. (See falo (78 N. Y., 370), White v. Coulter Code Civ. Pro., § 1290.) (59 N. Y., 629), Peck v. Coler (20 Hun, See, also, as to cases of'disability, 534), Parish v. Austin (25 Hun, 430.) Code Civ. Pro., § 1291. This motion is to be made -within " See note 2 to form No. 123. two years after filing of the judgment ' See as to restitution, when judg- 49 386 For^rs Relating to tiff show cause at a [Special] Term of the Court, to be held at, etc., on the clay of , 18—, why the Judgment in this action, entered against the de- fendant by default, and all subsequent proceedings in this action, should not be set aside, with costs, upon the ground, among others, of irregularity, viz. [stating irregularity, as in form No. 499 {or state other relief, as in forms Nos. 600, 501)], and for such other relief, etc' And it is further ordered, that a copy of this order and copies of said annexed affidavits and papers, be served upon C. D., plaintiff's attorney, and on [naming other parties on whom service is directed to be made], on or before the day of , 18—. [And it appearing that A. F., named in said affidavit, can- not, with due diligence, be found within the State, I hereby further direct that the service of this order, and the annexed affidavits and papers, be made upon him, on or before the day of , 18 — , in the following manner (stating how)]. Dated ■ — , 18—. A, O., Judge [or Justice] of the Court. No. 503. Order Setting Aside Judgment, etc., and Directing Restitution. (Code Civ. Pro., § 1293.) [At, etc., as in form ISTo. 80. J [Title of cause.] On reading and filing the affidavit of A. B., dated 18 — , and notice of motion that the judgment entered [by default] in this action on the day of , 18 — , against the defendant, be set aside [for irregularity], with proof of due service thereof upon E. F., attorney for the plaintiff ; and on reading [name other motion papers] : ment is set aside for any cause, Code cause will be granted, see note 1, page Civ. Pro., §§1292, 1323; Kidd V.Curry 113 to form No, IG2; and see, also, (29 Hun, 215), Martin v. Hector (28 note 3, p. 146, to form No. 213, as to Hun, 410.) orders to show cause, prescribed by ■ As to cases in whicli orders to show statute. Judgments. 387 Now, on motion of M. N"., for the defendant, and after hearing Gr. H., for the plaintiff [oj- no one appearing to oppose] : It is liereby ordered, that the said judgment, and all sub- sequent proceedings thereupon, be and the same are hereby set aside, with dollars costs ; and that the moneys paid upon said judgment by said defendant on the day of , 18 — [or levied upon the execution issued thereon to the sheriff of county], to wit, the sum of dollars, be restored to the defendant by the plaintiff, with interest thereupon from the time of such levy [or payment] [and it is hereby referred to I. J. , as referee, to determine the amount of the damages so to be refunded].' ' See O'Gara v. Kearney (77 N. Y., be directed to determine it. (Id., p. 423), holding tliat llie order directing 425; Code Civ. Pro., § 1015; sec, also, restitution becomes in effect, a judg- Sheridan v. Mann, 5 How. Pr., 301; ment for the payment of money, and SafEord v. Stevens, 2 Wend., 164, 165, may be enforced by execution, and cited in above case. that proceedings for contempt cannot See, also, as to setting aside a judg- be had against a party for not comply- ment, etc., for irregularity, and resti- ing therewith. If the amount to be tution thereupon, notes to form No. restored is uucdrtaiu, a reference should 499. 388 Poems Relating to CHAPTER XII. FORMS RELATING TO APPEALS SPECIFIED IN CHAPTER TWELVE OP CODE OP CIVIL PROCEDURE. TITLE I. Forms relating to general provisions concerning appeals pro- vided for ir chapter 12 of Code of Civil Procedure. TITtfE. II. Fonns relating- to appeals to the Court of Appeals, and to ap- peals to the General Term of Supreme Court or of a superior city court. TITLE III. Forms relating to appeals to the Supreme Court from an inferior court. TITLE IV. Forms relating to appeals from a determination in a special pro- ceeding. TITLE I. FORMS RELATING TO GENERAL PROVISIONS CONCERNING AP- PEALS PROVIDED FOR IN CHAPTER TWELVE OF CODE OF CIVIL PROCEDURE. (Code Civ. Pro,, Ch. 13, Tit. 1.) No. 504. Atfidavit to procure order of substitution of executor, etc., on death of party, where adverse party has died beforo appeal was taken. 505. Order substituting executor, etc., of deceased party as respondent on appeal, where adverse party has died before appeal was taken. 506. Affidavit to procure order to show cause (No. 507) why judgment, etc., should not be reversed, etc. 507. Order to show cause why judgment, etc., should not be reversed, etc., where party to appeal dies and order of substitution is not made within three months after such death. 508. Order on return of order to show cause (No. 507) why judgment, etc., should not be reversed, etc. 509. Affidavit to obtain order substituting representative of deceased party to appeal. 510. Order substituting representative of deceased party to appeal. 511. Notice of appeal from final judgment or order. 513. Notice of appeal from judge's order. 513. Notice of appeal to the Court of Appeals, general form. 514. Notice of appeal to the Court of Appeals from order granting new trial. 515. Affidavit on application to serve notice of appeal where attorney is dead and respondent cannot be found in the State. 516. Order directing as to manner of service of notice of appeal upon re- spondent, where he cannot be found in the State. 517. Affidavit to procure order for entering of order made by judge out of court. Appeals. 389 No. 518. Order that judge's order made out of court be entered. 519. Order vacaliug judge's order on proof of non-compliance with order directing it to be entered. 530. Waiver of security on appeal 621. Notice of deposit in lieu of undertaking on appeal. 533. Order for new undertaking where sureties are insolvent. 533. Notice of motion that appellant flic new undertaking. 534. Notice to appellant's attorney of entry of judgment or order of affirmance, before suit on undertaking. 635. Affidavit to obtain order discharging levy under execution, where appeal has been taken and security given. * 536. Notice of motion to discharge levy under execution, where appeal has been taken and security given. 537. Order discharging levy under execution, where appeal has been taken and security given 538. Notice of motion to dismiss appeal. 53&. Order dismissing appeal on motion. 530. Order on decision of appeal from order. 531. Order affirming judgment on appeal. 533 Judgment of alHrmance on appeal. 533. Judgment of reversal on appeal. 534. Judgment dismissing appeal. 535. Order of Supreme Court upon remittitur from Court of Appeals affirming judgment. 636. Judgment upon remittitur from Court of Appeals affirming juog- ment. JSTo. 504. Affldayit to Procure Order of Substitution of Executor, etc., where Adverse Party has Died before Appeal was Taken. (Code Civ. Pro., § 1397.) [Title of cause.] ^ A. B., of , being duly sworn, says, that he is [description of affiant] : That on the day of , 18—, a judgment was rendered in the above entitled action by the Court, in favor of the [plaintiff], M. B., and against the [defendant]; E. F., for ■ dollars and cents [or state other relief], which judgment was entered in the ■ county clerk's office on that day [or that on, etc., an order was made and entered in the above entitled action (state nature of the order)]. 390 FoKMS Relating to That after' the rendition and entry of said judgment \or after the making and entry of said order], and on or about the day of , 18—, the said M. B. died, leav- ing his last will and testament, which has been duly ad- mitted to probate by the surrogate of county, in which county said M. B. resided at the time of his death ;_ and O. F. has been duly appointed by said surrogate as the executor thereof, and has qualified and entered upon the discharge of his duties as such executor \or that after, etc., the said M. B. died intestate, and that 0. F. has been duly appointed by the surrogate of county, in which county said M. B. resided at the time of his death, as administrator of, etc., of said M. B., deceased; or that after, etc., the said M. B. died intestate, and that O. F., of , is the sole heir at law of said M. B., deceased ; or that after, etc., the said M. B. died, and that by his will he gave and devised to O. F. the real property, to recover the possession of which said action was brought {or state such other facts as the case requires)]. That said E. F. has appealed from said judgment [or order] to [the General Term of] the Court, on the day of , 18—/ ^ A. B. [Jurat as in form No. 46.] No. 505. Order Substituting Executor, etc., of Deceased Party as Kespondent on Appeal, where AdvWse Party has Died before Appeal was Taken. (Code Civ. Pro., § 1297.) [At, etc., as in form No. 80. J [Title of cause.] On reading and iiling the affidavit of A. B., dated , ' This form maybe easily adapted Civ. Pro., did not apply to a case to tlae case of a deatli leifore the entry where a lunatic died pending an ap- of the order mentioned in section 1397, peal from an order made in a contro- Code Civ. Pro. Also to cases arising versy between his committee and a under section 1296, id. third person, and that the proceedings ' See In the matter of Beckwith (87 abated by the lunatic's death, N. y , 503), tUat sectioa 139, Code Appeals. 391 18 — , by which it appears that [reciting, substantially, con- tents of affidavit No. 504], and on reading and filing notice o£ this motion, with proof of due service thereof upon 0. F., the executor of the will of M. B., deceased [o?" other description of person, to be substituted] ; and on reading and filing [name opposing papers'] ; and after hearing I. J., of counsel for the appellant, E. F., and J. K., of counsel for said O. F. [or no one appearing to oppose] : It is hereby ordered, that said 0. F., the executor of, etc. [or other description], be and he is hereby substituted as respondent in place and stead of said M. B., deceased, as the respondent in the said appeal brought by said E. F. from the said judgment [or order]. No. 506. Affidavit to Procure Order to Show Cause (No. 507) why Judgment, etc.. Should not be Reversed, etc. (Code Civ. Pro., g 1298.) [Title of cause.] County, ss.: ji^ B., of , being duly sworn, says, that h© is [description of affiant]. That on the day of -, 18—, an appeal was taken by C. D. from the judgment of the Court, entered herein on the day of , 18—, for dollars and cents, damages and costs [or state other relief] [or from the order of the Court, entered herein on the day of , 18— (stating substance of order)], to the [name court]. That before any hearing had been had of said appeal, and more than three months since, and on or about the ^ay of , 18—, the said appellant, C. D. [or the respondent, M. N.], died. That deponent has made the following inquiries as to the persons interested in the estate of said C. D. [or M. N.], to wit : [state inquiries made], and that the following are all the persons interested in the said estate, so far as can be "" ~ 1 gee note 4, p. 136, to form Nq- 133. 392 , FoKMS RELATma to ascertained by defendant, to wit : [insert names of persons interested]. That no order has been made substituting any other per- son in place of said C. D. [or M. N.] in said appeal. A. B. [Jurat as in form No. 46.] No. 507. Order to Show Cause why Judgment, etc., Should not be Reversed, etc., where Party to Appeal Dies, and Order of Substitution is not made within Three Months After such Death. (Code Civ. Pro.,§ 1398.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the affidavit of A. B., dated , 18 — , showing that an appeal was brought by C. T>. from the judgment [or order] of the Court, entered in this action on the day of , 18 — , to [the General Term of] the Court. That before the hearing of said appeal, and more than three months since, and on or aboiit the day of , 18 — , the said appellant, C. D. [or the respondent, M. N.], died, and that no order substituting another person in place of said C. D. [or M. N.] has been made : It is hereby ordered, that all persons interested in the estate of said C. D. [or M. N.] show cause before this court, at a [Special'] Term thereof, to be held at , on the ■ day of , 18 — ,' why the said judgment [or order] appealed from should not be reversed [or affirmed, or why said appeal should not be dismissed]. It is further ordered, that a copy of this order [and of said affidavit] be served upon [designate parties to be served and manner of service], on or before the day of , 18—.= ^ It seems, the order to show cause making of the order. (Code Civ. Pro., should be made returnable at a Special § 1298.) Term. (Brokaw v. Brokaw, 5 "Week. ^ As to cases in which orders to show Dig., 267.) But see 33 Hun, 505. cause will be granted, see note S, p. Not less than six months after the 146, to form No. 31§. Appeals. 393 No. 508. Order on Return of Order to Show Cause (No, 507) why Judgment, etc., should not be Reversed, etc. (Code Civ. Pro., § 1298.) [At, etc., as in form No. 80. j [Title of cause.] , • An order having been heretofore made and entered in this action, upon the affidavit of A. B., dated — , 18—, at a [special] term of this court, held at — ■■ , on the day of , 18 — , that all persons in- terested in the estate of C. D. [or of M. N.], deceased, shovy cause at this term why the judgment [or order] entered in said action, on the day of , 18 — , should not be reversed [or affirmed {or why the appeal taken by C. D., deceased, from the judgment, etc., entered in this ac- tion, on the day of , 18 — , should not be dis- missed;], and on reading [name any opposing papers] ;' and due notice having been given to the said parties interested, by the service upon [name parties served], on or before the ; day of , 18 — , of a copy of said order [and of said affidavit], as prescribed by said order ; and on mo- tion of J. R., Esq., of counsel for the appellant, C. J), [or respondent, M. N.], and after hearing J. K., Esq., of counsel for [naming parties {or no one appearing to oppose)] : It is hereby ordered, that the said judgment [or order] be and the same is . hereby reversed [or affirmed ; or that the said appeal be dismissed] [with costs of said appeal to the appellant, or respondent]. No. 509. Affidavit to Obtain Order Substituting Representative of Deceased Party to Appeal. (Code Ci7. Pro., § 1299.) [Title of cause.] County, ss.: A. B., of — , being duly sworn, says, that he is [insert description of affiant]. ' See note 4, page 136, to form No. 183. 60 ,^ — 394 Forms Relating to That judgment was entered in the above entitled action, on the day of , 18—, in favor of the [plaia- tiffj and against the [defendant] for [stating relief] [or that an order vs^as entered in the above entitled action, on the (Jay of , 18 — (stating substance of order)]. That an appeal was taken by the said [defendant] to [the (General Term of] the Court, -on the day of , 18—, from said judgment \or order]. That afterwards, and on or about the day of , 18—, the said [appellant] departed this life, and that M. N. has been duly appointed the executor of the will of said appellant [or the administrator of, etc., of said appellant] by the surrogate of county. .AB. [Jurat as in form No. 46.] No. 510. Order Substituting Representative of Deceased Party to Appeal. (Code Civ. Pro., § 1399,) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the affidavit of A. B., dated , 18 — , by which it appears that C. D., the appellant [or re- spondent] in the appeal taken from the judgment of the ■ Court, rendered in this action, on the day of , 18 — [or from the order made in this action by the Court, on the day of , 18 — (stating substance of order)], has died since the taking of said appeal, and that M. N. has been duly appointed the executor of the will of said C. D. [or the administrator of, etc., of said C. D.], and it appearing that due notice of this motion has been personally served upon said M. N. , within the State, and on reading [name any opposing papers] :' It is hereby ordered, on motion of O. F., attorney for said respondent [or appellant], after hearing I. F. for said M. N. [or no one appearing to oppose], that said M. N., as such ■ ' See note 4, page 126, to form No. 183. Appeals. 395 executor [or administrator], be substituted as appellant [o?- respondent] in said appeal in place and stead of said C. D. No. 511. Notice of Appeal from Judgment or Order. (Code Civ. Pro., § 1300.) [Title of cause.] Take notice, that tlie plaintiff, A. B. [or the defendant, C. D.], appeals [upon questions of law and upon the facts'] to the [General Term of the '] Court, from the final [or interlocutory] judgment [or from the order], entered in this action on the day of , 18 — , in the county clerk's office [or from so much of the final (or interlocutory) judgment {or from so much of the order), entered in this action on, etc., in, etc., as directs that, etc.] [and that the appellant intends to bring up, for review, upon said appeal, the interlocutory judgment entered in said ac- tion {or the order entered in said action), on the day of , 18—].' Dated , 18—. J. F., Attorney for the Appellant, [Office address.'] To M. F.-, Esq., Attorney for the Respondent^ and the ClerTc of County. " It may be safer to insert this clause (§ 1330 ; Raymond v. Eiclimond, 70 under section 1346 of Code Civ. Pro., N. Y., 100.) ■wliere the appeal is talien upon the law The provision allowing an appeal and facts, from a judgment rendered from part of a judgment, do not ap- upon a trial by a referee or by the court ply to a judgment for a sum of money. ■without a jury. (Cromwell v. Burr, Daly, 4S2 [Gen. 2 See §§ 1840, 1844 and 1340, Code T.].) Civ. Pro. If *iiG provisions of tl:o Code, as to ^ See § 1801, Code Civ. Pro., and filing and serving notice of appeal and Bee Reese v. Smyth (95 N. Y., 645). copy undertaking, have not been corn- Under section 1300 of Code Civ. Pro. , plied with, it is an irregularity merely, a notice of appeal to the Court of Ap- which is waived by a submission of peals may be served before any under- the cause without objection, (Hill v. taking has been executed, and the un- Burke, 03 N. Y., Ill ) dertaking may be given at any time See, also, Bockes v Hathorn (78 N. before the expiration of the time for Y., 233; S. C, 7 Week. Dig., 537), appealing (§ 1334); but the notice does Burk v. Ayers (19 Hun, 17). not become effectual for any purpose <> See note 3 to form No. 133. until the undertaking has been given, 396 FOEMS Kelating to No. 512. Notice of Appeal from Judge's Order. (Code Civ. Pro., §§ 1300, 1348.) [Title of cause.] Take notice, that the defendant, A. B. [or plaintiff, C. D.J, hereby appeals to the General Term of the. Court, from the order of Hon. A. O., judge of the Court, made in the above entitled action, dated , 18—, and entered in the county clerk's office [or other clerk's office] on the day of , 18 — .' Dated , 18—. Yours, etc., A. F., Attorney/ for Appellant. [Office address.'] To B. M., Attorney for Respondent, and the County Cleric of County [or other Cleric]. No. 613. Notice of Appeal to the Court of Appeals, General Form. (Code Civ. Pro., § 1300.) [Title of cause.] Take notice, that the plaintiff, A. B. \or the defendant, C. D.], appeals to the Court of Appeals [*] from the judg- ment [or from the order] of the General Term of the Court, in this action, entered in the county clerk's office, on the day of , 18 — , affirming [or reversing] the final [or interlocutory] judgment [or the order] of the [Special Term of the] Court, entered in said clerk's office on the day of ■, 18— [or from so much of the final {or interlocutory) judgment {or fromi so much of the order) of the General Term of the Court, entered in this action on, etc., in, etc., as (specify part appealed from)]. [And that the appellant intends to bring up for review, upon said appeal, the interlocutory judgment entered in ' An appeal cannot be taken from a proceedings in case of non-entry, see judge's order made out of court, until Code Civ. Pro., § 1304; also forms it is entered in the oflSce of the proper Nos. 517, 518, 519. clerk. (Code Civ, Pro., § 1804.) For * See note 3 to form No. 133. Appeals. 397 said action {or the order entered in said action), on the day of , 18—.'] Dated , 18—. J. F., Attorney for Appelleint. [Office address.'] To M. F., Esq., Attorney for Respondent, and the County Clerk of County. No. 514. Notice of Appeal to Court of Appeals from Order Granting New Trial. (Code Civ. Pro., § 191, subd. 1, and § 1300.) As in form No. 513 to [*], and from thence as follows : From the order of the General Term of tUe Court in this action, entered in the. county clerk's office on the day of , 18—, granting a new trial herein ; and the said plaintiff {or defendant] and appellant hereby assents, that, if the said order is affirmed, judgment absolute shall be rendered against the said appellant." Dated , 1§— . J. T., Attorney for the Appellant. [Office address.'] To M. F., Esq., Attorney for the Respondent., and the County Cleric of Coimty. No. 515. AtHdavit on Application to Serve Notice of Appeal where Attorney is Dead and Respondent Cannot be Found in the State. (Code Civ. Pro , § 1302.) [Title of cause.] County, ss.: A. B., of , being duly sworn, says, that he is [description of affiant]. ' See section 1301, Code Civ. Pro., "■ See note 2 to form No. 123. and Reese v. Smyth (95 N. Y., C45), 'Tlio clause required by section 1301, as to specifying tlie interlocutory judg- Code Civ. Pro., may be added where ment, or intermediate order appealed necessary. See form No. 513. The from. For notice of appeal from order appeals specified in subdivision 1 of granting new trial, see form No. 514; section 191, are from an order granting see, also, notes to form No. 511. a new trial on a case or exceptions. 398 Forms Relating to That an appeal is about to be taken by the [plaintiff] from the judgment rendered herein on the day of , 18—, and entered in the county clerk's office on that day, to [the General Term of] the Court. That M. N., the attorney for said defendant, C. D., is dead [or state other reason why service cannot be made upon him]. That personal service of said notice cannot, after due diligence, be made vi^ithin the State upon the said. C. D. [state efforts which have been made to serve respondent].' That, etc. [substantially as in form No. 209 from (]■).] A. B. r Jurat as in form No. 46.] No. 516. Order Directing as to Manner of Service of Notice of Ap- peal upon Respondent, where he Cannot be Found iu the State. (Code Civ. Pro., § 1803.) [Title of cause.] It appearing to me, by the affidavit of A. B., dated , 18 — , that an appeal is about to be taken, by the plaintiff in the above entitled action, from the judgment rendered herein, on the day of , 18 — , and entered in the county clerk' s office on that day, to [the General Term of] the Court ; that M. N., the attorney for the defendant, C. D., is dead [or state other reason why he cannot be served], and that personal service of the notice of appeal herein cannot, after due dili- gence, be made within the State upon the said C. D. : Now, on motion of A. M., attorney for said A. B., I do hereby order and direct, that the notice of said appeal, given by said plaintiff, may be served upon said C. D., and that notice of the subsequent proceedings may be given to him in the following manner, to wit : [state manner of service]. Dated , 18—. A. O., Judge [or Justice] of the Court. 1 It seems, that under section 1302 of is therein provided that the appellant the Code Civ. Pro., the respondent may. (Hickox v. Weaver, 15 Hun, may proceed in the same manner as it 375.) Appeals. 399 No. 517. Affidarit to Procure Order for Entering of Order Made l)y Judge out of Coui't. (Code Civ. Pro., §1804.) [Title of cause.] A. B., of , being duly sworn, says, that he is [description of affiant] ; that an order, made in the above entitled action by the Hon. , judge, etc., dated , 18 — [stating nature of order], has not been entered in the clerk's office, as will appear from the cer- tificate of said clerk hereto annexed;' that the place of trial, designated in the complaint in said action, is the said county of ; that deponent desires to take an appeal from said order and desires to have said order entered for the purpose of taking such appeal therefrom. A. B. [Jurat as in form No. 46.] No. 518. Order that Judge's Order made out of Court Ibe Entered. (Code Civ. Pro., § 1304.) [Title of cause.] It appearing to me, by the affidavit of , dated , 18 — , that the order made by me in this action \or the order of Hon. A, O., judge of the Court, made on the day of , 18 — ] [state nature of order], has not been entered in the proper clerk's office, to wit : in the county clerk's office [and that the papers upon which said order was founded have not been filed in said clerk's office'] ; I do hereby order and direct that said order be entered [and said papers be filed] by the plaintiff's \or defendant's] attorney in said clerk's office, within days after service upon him of a copy of this order.' Dated , 18—. W. F., Judge of the Court. '• For form of clerk's certificate, see a cause for revocation of the order by form No. 402. section 1304, Code Civ. Pro. " Eitlier tlie non-entry of tlie order, ^ See Pool v. Saflord (10 Ilun, 49?), or the non-flling of the papers, is made 400 FoEMS Relating to 1^0. 519. Order Tacating Judge's Order on Proof of Non-Compliance with Order Directing it to be Entered. (Code Civ. Pro., § 1304.) [Title of cause.] An order lia\dng been heretofore made by me, dated , 18 — , directing tlie entry in the county clerk's office of the order of Hon. A. O., judge of the Court, made in this action [or of the order made by me in this action], dated on the day of , 18 — [state nature of the order] [and the filing in said clerk's office of the papers ui:)on which said last-mentioned order was founded], by the plaintiff's [or defendant's] attorney in this action, within days after the service upon him of a copy of my said order, directing said entry [and filing] ; and said last-mentioned order having been duly served upon E. F., attorney for the plaintiff [or defendant], more than days since, and said order of , 18 — , not having been entered [and said papers not having been filed] as directed thereby ; and it appearing that due notice of this motion has been given to said plaintiff's [or defendant's] attorney ; and on reading [name any opposing papers] ; ' Now, on motion of A. M., attorney for the defendant [or plaintiff], after hearing I. F., for the plaintiff [or defendant] ; I do hereby order that said order made by me [or by Hon. A. 0., judge of the Court], on the day of ~ , 18 — , be and the same is hereby revoked and an- nulled [with ■ dollars costs of this motion]. Dated , 18—. W. F., Judge [or Justice] of the Court. No. 520. Waiver of Security on Appeal. (Code Civ. Pro , § 1305.) [Title of cause.] The giving of an undertaking, or other security, by the ' See note 4, p. 136, to form No. 183. Appeals. 401 appellant on the appeal to the [General Term of the] Court in the above entitled action, is hereby waived [and the proceedings on the Judgment appealed from are stayed, without such undertaking being given]. Dated , 18—. M. N., Attorney for Respondent. [Office address.'] No. 521. Notice of Deposit in Lieu of Undertaking on Appeal. (Code Civ. Pro., § 1306.) [Title of cause.] Sir— Take notice, that the appellant has, pursuant to sec- tion 1306 of the Code of Civil Procedure, deposited with the clerk of the county of the sum of dollars, in lieu of the undertaking required by chapter 12 of the Code of Civil Procedure, upon the appeal in the above enti- tled action from the judgment \or order] entered in said ac- tion, on the day of , 18 — , in said clerk's office. Dated , 18—.' M. N., Attorney for Appellant. [Office address. °] To I. R., Attorney for Respondent. No. 522. Order for New Undertaking where Sureties are Insolvent, (Code Civ. Pro., § 1308.) [At, etc., as in form No. 80.] [Title of cause.] Satisfactory proof having been made by the affidavit of ' See note 2 to form No. 123. Where a deposit is made on appeal ' The money deposited is subject to the General Term, and the appel- only to the decision of the appeal to lant again appeals to the Court of Ap- ■which it relates. The respondent is peals, giving the proper undertaking, not entitled, on showing that the ap- the deposit must remain until the latter pellant is insolvent, to have the money appeal is determined. (Mclntyre v. held as security far the payment of Strong, 63 How. Pr., 405; S. C, 15 any judgment he may recover upon a Week. Dig., 109 [N. Y. Super. Ct , new trial. (Jordan v. Volkening, 14 Gen. T.].) Hun, 118) ' See note 2 to form No. 133. 403 FoKMS Relatiistg to A. B., dated , 18 — , that, since the execution of the undertaking given by the appellant upon the appeal frcmi the judgment [or oi'der] entered in this action on the ■ day of , 18 — , the sureties therein have become in- solvent [or G. H,, one of the sureties therein, has become insolvent] [or that the circumstances of the sureties therein {or of G. H., one of the sureties therein) have become so precarious that there is reason to apprehend that the under- taking is not sufficient for the security of the respondent] ; and it appearing that due notice of this motion has been given to M. K., the attorney for the appellant, and on read- ing [name any opposing papers] ; ' Now, on motion of A. F., of counsel for the respondent, after hearing I. J. , of counsel for the appellant [or no one appearing to oppose] ; It is hereby ordered, that the appellant file a new under- taking, and that he serve a copy thereof as required with respect to the original undertaking, within [twenty] days after the service of a copy of this order upon his attorney ; and, in case of his failure to do so, that his said appeal be dismissed [or that said order {or Judgment) appealed from be executed, as if the original undertaking had not been given].' No. 523. Notice of Motion that Appellant file New Undertaking. (Code Civ. Pro., § 1308.) [Title of cause.] SiK— Take notice, that upon the [name motion papers], a motion will be made at, etc., for an order that the appel- lant file a new undertaking, in the ap'peal from the Judg- ment [or order], entered herein on the day of , 18—, and serve a copy thereof as required with respect to the original undertaking, within [twenty] days, or such further time as the court allows, after the service upon him of a copy of the order requiring him to do so ; 1 See note 4,p 126, to form No. 183. refused in the discretion of the court. 2 TJje application may be granted or (Bering v. Metcale, 73 N. y., 613.) Appeals. 403 and that in case of his failure to do so, that the said appeal be dismissed, or that the said order [or judgment] from which said appeal is taken be executed, as if the original under- taking had not been given, and for such other or further relief as may be proper [with costs of this motion]. Yours, etc., M. T.^ Attorney for Respondent. [Office address.'] To I. J., Attorney for Appellant. No. 524. Notice to Appellant's Attorney of Entry of Judgment or Order of Affirmance, etc., before Suit on Undertaking. (Code Civ. Pro., § 1309.) [Title of cause.] SiE — Take notice, that on the day of , a judgment [or order] of [the General Term of] the ■ Court was entered in the above entitled action, in the county clerk's office, affirming the judgment [or order] entered in said action, on the day of , 18 — , in said clerk's office, and for the recovery of dollars, costs of appeal by the respondent, from the appel- lant [or for the payment, by the appellant, of ■ dol- lars costs to the respondent, or dismissing the appeal taken herein from the judgment {or order), etc., and for the recovery, etc.].' Dated , 18—. Yours, etc., H. F., Attorney for tJie Respondent. [Office address.'] To E. P., Esq., Attorney for Appellant. > See note 2 to form No. 123. bury (71 N. Y ,588; afE'g S. C, oHun, 2 See Yates v. Burch (87 N. Y., 409; 597). S. C, 13 Hun, 622), Kae v. Beacli (76 = See note 2 to form No. 123; and see N. Y., 161), aff'g S. C, sub nom., Kae cases cited in jiote 1 to form No. ICQ" y. Harteau (7 Daly, 95), Porter v. Kings 404 Forms Relating to No. 525. Aflfidavit to Obtain Order Discharging Levy under Execu- tion^ where Appeal has heen Taken and Security Given. (Code Civ. Pro, '§1311.) [Title of cause.] County, ss. : A. B., of , being duly sworn, says, that on the (Jay of , 18 — , a final judgment was entered, in the county clerk's ofiice, in favor of the and against the for dollars. That an execution was issued upon said judgment against the property of the said to the sheriflf of county, and that a levy was made, by virtue thereof, by said sheriff upon personal property of the said That an api)eal has been duly taken, by the said , from said judgment, on the day of , 18 — , and within days after, etc. [stating facts showing appeal to have been taken within the time prescribed by law], to the Court of Appeals [or other court, naming it], and that said apj)eal has been perfected by the service of notice thereof on G. H., the attorney for the said , and upon the clerk of county, and the security required to stay the execution of said judgment, to wit : an undertaking, a copy of which is hereto annexed has been given and filed in said clerk's office and a copy thereof served upon the said attorney for said . A, B. [Jurat as in form No. 40.] No. 526. Notice of Motion to Discharge levy under Execution, where Appeal has been Taken and Security Given. (Code Civ. Pro., § 1311.) As in form No. 168 to [*], and from thence as follows : At tbe opening of the court, or as soon as counsel can be heard, for an order directing that the levy heretofore made by the sheriff of county upon personal property of the appellant, by virtue of an execution issued to him upon Appeals. 405 the judgment rendered in the above entitled action, on the day of , 18 — , be discharged, and for such other or further order as may be proper. E. F., Attorney for Appellant. [Office address.'] To G. H., Attorney for Respondent, and to [name sure- ties']. No. 527. Order Discharging levy Under Execution where Appeal has been Taken and Security Given. (Code Civ. Pro., § 1311.) [At, etc.> as in form No. 80. J [Title of cause.] It appearing that an appeal has been taken to the Court of Appeals [or other court, naming it], by the defendant [or plaintiff], from the final Judgment entered in this action on the ■ day of , 18 — , in the ■ county clerk' s office, and that said appeal has been perfected, and the security required to stay the execution of the judgment has been given [or that security has been given upon such appeal equal to that required to perfect an appeal to the Court of Appeals, and to stay the execution of the judg- ment appealed from"] ; and it appearing that due notice of this motion has been given to tlid respondent's attorney, and to the sureties in the undertaking given on such appeal [and in the undertaking given on appeal to the General Term '], and on reading [name any opposing papers] ; and on motion of F. G., for the appellant, after hearing G. H., for the respondent [o7' no one appearing to oppose] ; It is hereby ordered, that the levy heretofore made by the sheriff of county upon personal property of the said appellant, by virtue of an execution issued to him upon ' See note 3 to form No. 122. Dig., 463, tliat notice of tlic motion ' This clause in brackets is to be in- should be given on appeal to the Court serted in case of appeal, other than to of Appeals, to the sureties in the un- the Court of Appeals. dertaking given on appeal to the Gen- ' See Foote v. Schmeder, 5 Week, eral Term. • 406 FoEMs Relating to said judgment, be and the same is hereby discharged upon the following terms, to wit [state terms of discharge].' No. 528. Notice of Motion to Dismiss Appeal. (Code Civ. Pro., § 1317.) As in form No. 168 to [*], and from thence as follows : At the opening of the court, or as soon thereafter as coun- sel can be heard, for an order dismissing the appeal from the judgment [or order] entered on the • day of , 18—, in this action [if made on the ground of irregularity, say : for irregularity in the following particu- lars, viz. (stating same)], and for such other or further order as may be proper, with costs of this motion. Dated , 18—. A. W., Attorney for Respondent. [Office address.'] To E, F., Esq., Attorney for Appellant. No. 529. Order Dismissing Appeal on Motion. (Code Civ. Pro., § 1317.) At a [General] Term of the Court, held at , on the dayiof , 18 — [in and for the judicial department]. Present. Hon. I. J., Presiding Justice, and W. M. and C. P., Justices. [Title of cause.] [*] On reading and filing notice of motion, and [name motion papers], with proof of due service thereof upon the attorney for appellant ; and on motion of P. F., for the respondent, after hearing M. N., for the appellant, and on reading [name any oi^posing papers] ; 1 Section 1311 of Code Civ. Pro., (Katz v. Kuhn, 9 Daly, 172 [Gen. T.]. does not apply, where the undertaking '' See note 2 to form No. 123. is given before the execution is levied. Appeals. 407 Ordered, that the appeal taken by C. D., from the judg- ment [or order] entered herein, on the — day of , 18 — , be dismissed, with [ dollars] costs of said appeal to the respondent. No. 530. Order on Decision of Appeal from Order. (Code Civ. Pro., § 1317.) As in form No. 529 to [*], and from thence as follows : The appeal from the order entered in the above entitled action, on the day of , 18 — , in county clerk's office [stating nature of order], having been heard at this term, it is hereby, on motion of A. M., for the , after hearing M. N., for the ; [fl Ordered, that the said order [f] be and the same is hereby wholly affirmed [or reversed], with dollars costs of the said appeal and disbursements for printing, to be paid to the by the . [Or as above to (f), and from thence as follows : Be modi- fied in the following particulars, to wit : (state modification), and that the said order, as thus modified, be and the same is hereby affirmed, with dollars costs of the said appeal and disbursements for printing, to be paid to the • by the .] [Or as above to (:{:), and from thence as follows : Ordered, that the said appeal be dismissed, with dollars costs thereof and disbursements for printing, to be paid to the by the .] No. 531. Order Affirming, Reversing or Modifying Judgment on Appeal. (Code Civ. Pro., § 1317.) " As in form No. 629 to [*], and from thence as follows : The appeal in the above entitled action Ijaving been heard at this term, it is hereby, on motion of A. M., for the re- spondent, after hearing M. N., for the appellant ; [f] 408 Forms Eelating to Ordered, that the judgment entered herein on the ■ aay of , 18—, be and the same is hereby [*] wholly affirmed, with costs of the said appeal, to the re- spondent. [Or as above to (*), and from thence as follows : Whoily reversed and a new trial therein ordered, with costs to abide the event of such new trial.'] [Or as above to (*), and from thence as follows : Wholly reversed, and the complaint in said action dismissed, with costs of said ajopeal to the appellant.] [Or as above to (*), and from thence as follows : Modified in the following particulars, to wit : (state modification), and that the said Judgment, as thus modified, be and the same is hereby affirmed, with costs of the said appeal to the {or state other relief).'] No. 532. Judgment of Affirmance on Appeal. (Code Civ. Pro., § 1317.) [Title of cause.] Judgment of the day of , 18 — . The appeal taken by the defendant [or plaintiff] in the above entitled action, having been heard at a [General] Term of the Court, held at [in and for the ■ judicial department] on the day of , 18 — , and an order of said [General Term] having been made and entered [j-] affirming the judgment of the Court, entered in said action on the day of , 18 — , in the county clerk's office of county, with costs of the said appeal to the respondent ; Now, on motion of E. F., attorney for the resjiondent, it is hereby adjudged, that the said judgment ajppealed from be and the same is hereby wholly [*] affirmed, and that the ' Tbe rule is well settled, that wliere Term. (Ehrichs v. De Mill, 75 N. Y., there is an issue upon material facts, 370, 374.) ■which may possibly be decided in more ^ See as to restitution, section 1323 than one way on another trial, there of the Code of Civ. Pro., and see foita should be a new trial ordered upon the of restitution clause in form No. 533, reversal of a judgment by the General also see note 1, page 410, to that form. Appeals. 409 respondent, A. M., recover from and against the appellant, M. N., the sum of dollars, costs of said appeal. [Or that the said judgment be and is hereby modified in the following particulars, to wit (state modification), and that the said judgment, as thus modified, be and the same is hereby affirmed, and that the recover from and against the , etc. (as above).'] J. L., Glerh. No. 533. Jiulgnient of Reversal on Appeal. (Code Civ. Pro., § 1317.) As in form No. 532 to [f], and from thence as follows : Eeversing the judgment of the Court, entered in said action,, on the day of , 18 — , in the county clerk's office of county, and ordering a new trial, with costs to abide the event [or reversing the judg ment of, etc. (as above), and dismissing the complaint, with costs of said appeal to the appellant] ; Now, on motion of E. F., attorney for the appellant, it is hereby adjudged, that the said judgment appealed from be and the same is hereby wholly reversed and a new trial ordered, with costs to abide the event " of such new trial \or reversed, and that the complaint be dismissed, and that the appellant recover dollars costs from the re- spondent (or state other relief)]. [And it appearing to the court that the respondent has collected the amount of the judgment so appealed from, with costs and sheriff's fees, to wit: the sum of dollars, it is further ordered and adjudged, that the said respondent make restitution to the said appellant by paying into court, and to the county treasurer of county, within days after service of this judgment on him or his attorney, the said sum of dollars, with ' A provision for restitution may be ' As to cases in whicli new trial inserted, when tlie judgment is modi- sliould be granted, see Ehriclis v. De fled. (Code Civ. Pro., § 1323 ) For Mill (75 N. Y., 370, 374), cited in note form of clause awarding restitution, 1 to form No. 531. see form No. 533, and see authorities cited ia note 1, page 410, to that form. 52 410 Forms EELATlwa to interest from the day of , 18—, the date of such collection by the respondent, to abide the further order of this court, after such new trial has been had {or instead of directing payment into court, say : by paying to the appellant, or his attorney, within, etc.)- 'J No. 534. Judgment Dismissing Appeal. (Code Civ. Pro., § 1317.) As in form No. 532 to [f], and from thence as follows : Dismissing the said appeal which was taken from the judg- ment of the Court, entered herein on the day of , 18 — , in county clerk's office, with costs of said appeal to the respondent ; Now, on motion of E. F., attorney for the respondent, it is hereby adjudged, that the said appeal be dismissed, and that the respondent, A. M., recover from and against the appellant, M. N., the sum of — , costs of said appeal. J. L., Clerk. No. 535. Order of Supreme Court Upon Remittitur from Court of Appeals, Affirming Judgment. (Code Civ. Pro., § 1317.) [At, etc., as in form No. 80. J [Title of cause.] The [defendant] having ajopealed to the Court of Appeals from the judgment heretofore, and on the day of , 18 — , entered in the above entitled action, affirm- ing the judgment entered in said action on the 1 As to restitution, see section 1323, 111), Kidd v. Curry (39 Ilun, 315), Cos- Code Civ Pro., O'Gara v. Kearney (77 tar v. Peters (4 Abb. [N. S.], 53), Hall N. Y , 433), People ex rel. Dailey v. v. Emmons (U Abb. [N. S.], 435). Livingston (80 N. Y., GO), Marvin v. A reference may be ordered to ascer Brewster Iron Mining Co. (50 N. T., tain llie amount lobe restored. (O'Gara 671), Sheridan v. Mann (.j How. Pr., v. Kearney Impra]; Code Civ. Pro., 201), Safford v. Stevens (3 Wend., 104, § 1015.) 105), Britton v. Pliillips (34 How. Pr., Appeals. 411 day of , 18— ; and said Court of Appeals having heard the said appeal, and having ordered and adjudged that said judgment so appealed from be affirmed and judg- ment rendered for the plaintiff, with costs ; Now, upon filing the remittitur from said Court of Ap- peals, and upon motion of E. C, attorney for said plaintiff, it is Ordered, that said judgment of the Court of Appeals, be and the same is hereby made the judgment of this court ; and that the aforesaid judgment, entered herein on the day of , 18 — , be and the same is hereby affirmed, and that judgment of this court be entered herein affirming said judgment, with costs of said appeal, against the [defendant], to be taxed.' J. L., Clerk. No. 536. Judgment upon Remittitur from Court of Appeals Affirming Judgment. (Code Civ, Pro., § 1317.) [Title of cause.] Judgment of thie day of , 18 — . The [defendant] having appealed to the Court of Appeals from the judgment heretofore, and on the day of , 18 — , entered in the above entitled action, affirm- ing the judgment entered in said action, on the ■ • day of , 18 — , and said Court of Appeals having heard the said appeal and ordered and adjudged that said judgment so appealed from be affirmed, with costs, and the remittitur from said Court of Appeals having been duly filed in this court, and an order duly entered thereon, mak- ing the jtrdgment of the Court of Appeals the judgment of this court, and directing judgment to be entered herein, as hereinafter adjudged, with costs, and the [plaintiff's] costs having been taxed at the sum hereinafter stated : Now, upon motion of E. C, attorney for said [defendant], ' For forms of remittitur, see Nos. witli slight change, to any other relief 43, 44, and see note 1 to form No 43. granted by the remittitur. This form of order may be adapted. 413 Forms Relating to it is adjudged, that the judgment hereinbefore mentioned, entered herein on the day of , 18—, be and the same is hereby affirmed. And it is further adjudged, that the [plaintiff], A. B., recover from and against the [defendant], C. D., the sum of dollars and cents, the amount of their costs herein as taxed, and that he have execution against the said defendant therefor.' J. L., Clerk. TITLE II. FORMS RELATING TO APPEALS TO THE COURT OP APPEALS, AND TO APPEALS TO THE GENERAL TERM OP THE SU- PREME COURT OR OF A SUPERIOR CITT COURT. TITLE III. FORMS RELATING TO APPEALS TO THE SUPREME COURT FROM AN INFERIOR COURT. (Code Civ. Pro., Ch. 13, Tits. 3, 4.) No. 537. Notice of entry of order to limit time of appeal therefrom to Court of Appeals. 538. Undertaking to stay proceedings on appeal from judgment or order, directing the ■payment of money. 539. Undertaking on appeal from judgment or order, directing the pay- ment of money in iixed installments. 540. Undertaking on appeal from judgment or order for recovery of a chattel or assignment or delivery of property. 541. Undertaking on appeal from judgment of foreclosure and sale. 543. Undertaking on appeal from judgment or order for the possession of real property, etc. 543. Notice of exception to sureties in undertaking on appeal. 544. Notice of justification of sureties in undertaking given on appeal. 545. Notice of allowance of sureties. 546. Allowance by judge of sureties after justification. 547. Undertaking on appeal from order, directing payment of money, with stay. 548. Affidavit to obtain stay of proceedings upon appeal from order, etc. 549. Notice of motion for stay of proceedings on appeal from order, etc. 550. Order staying proceedings on appeal from order, etc. 651. Notice of entry of judgment or order to limit time for appeal. 'For form of order for judgment This form of judgment may be used, •upon remittitur, see last form. No. 535, with slight changes, for any other judg- and see note 1 to that form, ment authorized by the order. Appeals. 413 No. 537. Notice of Entry of Order to Limit Time to Appeal There- from to Court of Appeals. (Code Civ. Pro., § 1325.) [Title of cause.] Sir — Take notice, that the within [or annexed] is a copy of an order of the General Term of the Court, en- tered in county clerk's office in the above entitled action, on the — ■. day of , 18 — . Yours, etc., M. N., Attorney for Plaintiff. [Office address.'] To P. F., Esq., Attorney for Defendant. No. 538. Undertaking to Stay Proceedings upon Appeal from Judg- ment or Order Directing the Payment of Money. (Code Civ. Pro., §§ 1826, 1327.) [Title of cause.] Whereas, on the day of — , 18 — , a judg- ment was recovered in the above entitled action in the [Supreme] Court, by the above named [plaintiff] A. B., against the above named [defendant] C. D., [*] for dollars damages and costs \or an order was entered for (state directions of order)]. "And the said [defendant], feeling aggrieved thereby, in- tends to appeal therefrom to the [insert name of court to which appeal is taken]. Now, therefore, \X\ we, E. F., of — ■, by occupation, a merchant, and G. H., of , by occupation a mer- chant,' do hereby, jointly and, severally, undertake, that ' See tiote 3 to form No. 122, and surety upon an undertaliing given upon note 1, to form No. 100; sec, also, Kil- appeal; and -where she contracts in mer v. Bradley (80 N. Y., 630), Wilson such a form as to make the contract V. Palmer (75 N. Y., 350; 8. C, 11 binding upon her separate estate, the Hun, 335), Matter of Beckwith (87 N. obligation may be enforced in an ac- Y., 503), Langdon v. Evans (29 Hun, tionatlaw; a resort to a court of equity 653; Baker v. Hatfield (29 Hun, 670), is not required. (Woolscy v. Brown, Sheridan v. Andrews (87 N. Y., 650). 74 N. Y., 83.) ' 4 warrjcft woman majr become ft 414 FoEMS Relating to the appellant will pay all costs and damages which may be awarded against [him] on said appeal," not exceeding five hundred dollars, [f]' and do also, jointly and severally, undertake, that if the judgment [or order] appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid by the said Judgment [or order'], or the part thereof as to which it is affirmed.* Dated 18- E. F. G. H. In presence of ■ . [Certificate of acknowledgement as in form No. 340.'] [Or if proved by subscribing witnees, certificate as fol- lows :] County, ss. : On this day of , 18 — , before me came I. J., ' The sureties in an imdertaking given on an appeal to tbe General Term, con- ditioned that the appellant "will i^ay all costs and damages which may he awarded against him on said appeal," are not liable for the costs of an appeal by their principal to the Court of Ap- peals, from a judgment of affirmance of the General Term. (Hinckley v. Kreitz, 58 N. Y., 583.) See, further, as to contract of sure- ties, etc. , Post V. Doremus (60 N. Y. , 371), Hill V. Burke (02 N. Y., HI), Wood V. Fisk (G3 N. Y., 245), Wheeler V. McCabe (47 How. Pr., 283), Richard son V. Kropf (47 How. Pr , 280; aff'd S. C, CO N. Y., 034), Burdett v. Low (85 N. Y., 241), Morss v. Hasbrouck (15 Week. Dig., 308), Delamater v. Byrne (59 How. Pr., 71), O'Sullivan v. Connors (22 Hun, 187), Christal v. Kelly (88 N. Y., 285), Yates v. Burch (87 K. Y., 409), Manning v. Gould (90 N. Y., 476; rev'g S. C, 47 N. Y. Super. Ct , 387), Burdett v. Lowe (85 N. Y., 241; rev'g S. C, 22 Hun, 588), Hinckley v. Kreitz, supra), Humerton v. Hay (65 I^. Y., 380). 19 W. D„ 509, ' If the undertaking is given only to perfect the appeal to the Court of Ap- peals, omit from [f] in this form. (Code Civ. Pro., §1320.) 2 See Holiister v. McNiell (18 Week. Dig., 513; S. C, 31 Hun, 629). '' For form of undertaking where the amount of judgment is payable by fixed installments, see next form, No. 539, and see provisions of sections 1332, 1333, 1834 and 1352, Code Civ. Pro, generally, as to undertakings, and see notes to forms Nos. 340, 341. As to guaranty of undertaking by company, see ch. 486 Laws of 1881, and cases cited in note 1 to form 341. Section 1337, Code Civ. Pro, applies, it seems, only to decrees absolutely re- quiring the payment of a sum fixed, or that might be ascertained by computa- tion. (Grow v. Garlock, 29 Hun, 598, and cases there cited.) It does not apply to a judgment for a deficiency upon foreclosure. (Id.) Where the adverse party has died since the making of the order, or the rendering of the judgment appealed from, or where the judgment appealed Appeals. 415 to me known, the subscribing witness within [or above] named, who, being by me sworn, did depose and say, that he resides in the of , in the county of ; that he knows E. F. and G. H., the persons whose names are subscribed to the foregoing instrument, to be the per- sons described in and who executed said instrument ; that he was present, and saw the said E. F. and G. H. execute the same, and that he thereupon subscribed his name as a witness thereto. B. C. [official title.] [AflS.davits of justification as in form No. 340.] [Indorsed.] Sir — Take notice that the within [or foregoing] is a copy of an undertaking filed in the county clerk's office on the day of , 18 — . To K. L. J. K., Attorney for Appellant. [Office address.'] Attorney for Respondent. from was rendered after his death, in a case prescribed by law, an appeal may te taken as if he was living; but it cannot be heard until the heir, devisee, executor or administrator, as the case leqiiires, has been substituted as the respondent. In such a case an under- taking required to perfect the appeal, or to stay the execution of the judg- ment or order appealed from, must re- cite the fact of the adverse party's death; and the undertaking enures, after substitution, to the benefit of the person substituted. (Code Civ. Pro., § 1397.) In an undertaking given on appeal to the Court of Appeals, the judgment of the General Term should be recited in full, so that it may appear that the justification will cover the amount of that judgment and the costs of both appeals. (Fay v. Lynch, 5 Month. L. Bui., 57.) An application far an order dispens- ing with or limiting the security re- quired to stay execution on appeal tQ the Court of Appeals, should be made to the court "in or from which the ap- peal is taken,'' and not to the Court of Appeals. (Code of Civ. Pro., § 1313 ; Hills V. The PeekskiU Sav. Bank, 95 N. Y., 675.) II seems, that the only cases where the application may be made to the court to which the appeal is taken (ex- cept where the appeal is to the same court which rendered the judgment or made the order appealed from), are those where the appeal is to the Su- preme Court from an inferior court, or to a General Term of the Supreme Court, or of a superior city court in a special proceeding. (Id.) That the court has no power to dis- pense with the undertaking, see Archi- tectural Iron Works v. City of Brook- lyn (85 N. Y., 652). ' It is not necessary that the under- taking should be approved. (See pro- visions of § 1335, Code Civ. Pro.) " See note 3 to form No. 188. 416 Forms Eelating to No. 539. Undertaking on Appeal from Judgment (or Order) Direct- ing the Payment of Money in Fixed Installments. (Code Civ. Pro., § 1337.) [Title of cause.] Whereas, on the day of , 18—, a judg- ment was recovered in the above entitled action, in the Court, by the above named [plaintiff], A. B., against the above named [defendant], C. D., for dollars damages, and dollars costs, which amount of damages was made payable in fixed installments, as therein set forth. [Or whereas, a Judgment {or an order) was made and entered in the above entitled action (among other things) for the payment by the above named defendant, C. D., to the above named plaintiff, A. B., of the sum of dollars per annum in (quarterly) installments {or set forth other provisions of judgment or order).] And the said defendant feeling aggrieved thereby intends to appeal [or has appealed] therefrom to the Court : Now, therefore, we, E. F., of , by occupation a ■ , and Gr. H., of , by occupation a , do hereby jointly and severally undertake, that the appel- lant will pay all costs and damages which may be awarded against [him] on said appeal, not exceeding five hundred dollars ; and do also jointly and severally undertake that the said appellant will pay each installment, which becomes payable, pending the appeal, or the part thereof as to which the said judgment [or order] is afiirmed, not exceeding the sum of dollars.' Dated , 18—. E. F. G. H. In presence of . [Certificate, affidavits and notice as in forms Nos. 340, 538. If proved by subscribing witness, see, for form of cer- tificate, last form, No. 588.] ' See notes to forms Nos. 340 and 341, and to last form, No. 538, Appeals. 417 No. 540. Undertaking on Appeal from Judgment (or Order) for Recovery of a Chattel or Assignment, or Delivery of Property. (Code Civ. Pro., g§ 1328, 1339.) As in form No. 538 to [*], and' from thence as follows: Directing the assignment [or delivery] of a certain docu- ment, to wit : [describing document] [or of personal prop- erty] [with dollars damages and costs] ' [or if the appeal is from an order, recite substance of order]. And the said [defendant] feeling aggrieved, etc., as in form No. 538, to [f], and from thence as follows : And do also .jointly and severally undertake, in the sum of dollars, that the appellant will obey the direction of the appellate court upon the said appeal." Dated , 18—. E. F. G. H. [Add certificate of acknowledgment, or proof and affi- davit of justification by sureties, as in forms Nos. 340, 538.] [Notice of filing undertaking as in form No. 538.] No. 541. Undertaking on Appeal from Judgment of Foreclosure and Sale. (Code Civ. Pro., § 1331.) As in foirm No. 538 to [*], and from thence as follows : ' If the judgment or order is for the A judgment directing a defendant to recovery or payment of damages and pass over certain moneys in the hands costs, or either of them, in addition to of a receiver of co-defendants, as being the other relief, it would to that extent, their property, and also directing the to stay execution for the collection of conveyance of real estate to the re- the money, require security, it seems, ceiver is not a money judgment, and under section 1337, Code Civ. Pro. In the undertaking on appeal should be such case insert, afterword "follows," under sections 1328, 1329 and 1330 of in above form, the words following Code Civ. Pro. (Bank of Havana v. the [t] in form No. 538, to the end of Moore, 8 Week. Dig., 193 [Gen. T., that form. Super. Ct.].) » See notes to form No. 538, and notes therein referred to, 53 418 FoEMS Eelating to Directing the foreclosure and sale of real property mort- gaged, as described in said judgment [with dollars damages and costs].' And the said [defendant] feeling aggrieved, etc., as in form No. 538 to [f], and from thence as follows : And do also jointly and severally undertake that if the said judg- ment is affirmed, or the said appeal is dismissed, the said appellant, C. T>., will pay any deficiency which may occur upon the sale, in discharging the sum to pay Avhich the sale is directed, with interest, and the costs and all expenses chargeable against the proceeds of the sale, not exceeding the sum of dollars." Dated , 18—. E. F. G. H In presence of . [Certificate, affidavits and notice as in form No. 638.] No. 542. Undertaking on Appeal from Judgment (or Order) for the Possession of Real Property, etc. (Code Civ. Pro., §1331.) As in form No. 538 to [*], and from thence as follows : Which entitles the said A. B. to the immediate possession of real property [or which directs the sale {or the delivery of the possession of) real property] therein described [with dollars damages and costs]' [or if the appeal is from an order, recite the substance of the order]. And the said [defendant] feeli-ng aggrieved, etc., as in form No. 538 to [f], and from thence as follows : And do also further jointly and severally undertake that the said C. D. will not, while in the possession of the said property, commit, or suffer to be committed, any waste thereon ; and that if the said judgment [or order] is affirmed, or the ap- peal is dismissed, he will pay the value of the use and occu- pation of the said property, or the part thereof, as to which the said judgment [or order] is affirmed from the time of ' See note 1 to last form No. 540. ^ See notes to form No. 538, and the notes referred to therein. Appeals. 419 taking the appeal until the delivery of the possession thereof, pursuant to the said judgment [or order], not ex- ceeding the sum of dollars.' Dated , 18—. E. F. G. H. In presence of . [Add cercifi-cate, affidavits and notice as in form No. 538.J No. 543. Notice of Exception to Sureties iu Undertaking on Appeal. (Code Civ. Pro., g 1335.) [Title of cause.] Sir — Take notice, that the respondent, A. B., excepts to the sufficiency of the sureties in the undertaking given by the appellant, C. D., upon appeal to the Court, in this action.' Yours, etc., M. N., Attorney for Respondent. [Office address.'] To M. N., Attorney for Appellant, No. 544. Notice of Justification of Sureties in Undertaking Given on Appeal. (Code Civ. Pro., § 1835.) [Title of cause.] Sib — Take notice, that the sureties named in the under- taking given by the appellant, upon appeal to the ■ • ' See notes to form No. 538, and 470; rev'g S. C, 47 N. Y. Super. Ct., notes tlierein referred to 887. ) ^ See Blake v. The Lyon and Fellows Wbetlier the respondent may, after Manufg Co. (75 N. Y., Gil), Ward v. exception taken, and before the refusal James (8 Hun, 520), Ilill v. Burke (02 to justiiy, waive the exception, qumre. N. Y., 111). (Id.) Failure of Iho sureties to justify, Whore the proceedings to procure •when excepted to, renders the under- justification of the sureties have lapsed taking void, and no recovery can be by accident, a new undertaking will had up.in it against the sureties (Man- be, allowed to be given. (Hardt v. ning v. Gould [Ct. of App., 1882], 16 Schulting, 59 IIow. Pr., 353.) N. Y. Week. Dig., 41 ; S. C, 90 N. Y., ^ See rote 3 to form No. 123. 420 Forms Rjilating to Court in this action, will justify before Hon. A. 0., judge of the Court, at [his chambers], in the of , on the day of , 18—, at o'clock in the noon. [Or that E. F., of , merchant, and Gr. H., of , farmer, the sureties named in the undertaking herewith served upon you, will justify, etc. (as above).'] Dated , 18—. M. N., Attorney for Appellant. [Office address. °] To A. M. , Attorney for Respondent. No. 545. Notice of Allowance of Sureties. (Code Civ. Pro., § 1335.) [Title of cause.] Sir- Take notice, that the sureties in the undertaking given by the appellant, on appeal to the [naming court], have been allowed by Hon. A. O., judge of the Court [or county judge].' Dated , 18—. Yours, etc., M. N., Attorney for Bespondent. [Office address.'] To E. F., Esq., Attorney for Appellant. No. 546. Allowance Iby Judge of Sureties After Justification. (Code Civ. Pro., § 1385.) I find the sureties iu the within undertaking sufficient, and hereby allow the same. ■* Dated , 18—. A. 0., Judge [or Justice\ of Court [or County Judge\. ' See sections 578, 579 and 580 of « See note 3 to form No 122. Code Civ. Pro., for proceedings upon. ^ See notes to last form, No. 544. justification. See, also, note 3 to form '' To be indorsed upon undertaking. No. 843. (Code Civ. Pro., § 1335.) Appeals. 421 No. 547. Undertaking on Appeal from Order Directing Payment of Money, with Stay, when Security is Required by the Court. (Code Civ. Pro., §§ 1343, 1351.) [Title of cause.] Whereas, on the — ■ day of , 18—, an order was made and entered, by the Court, in tlie above entitled action [state substance of order]. And the said A. B., defendant [or plaintiff], feeling ag- grieved thereby, intends to appeal therefrom to the [General Term of the] ■■ — Court, and the Court having made an order, dated ' — , 18—, that the execution of said order of , 18 — , be stayed until the decision of the said appeal on the execution of an undertaking, on the part of the said defendant [or plaintiff], with sufficient sureties, conditioned as herein provided. •Now, therefore [as in form No. 538, from (:{:)].' No. 548. iffldavit to Obtain Stay of Proceedings upon Appeal from Order, etc. (Code Civ. Pro., §§ 1843, 1351.) [Title of cause.] County, ss.: A. B., of , being duly sworn, says, that he is the [plaintiff] in the above entitled action ; that an appeal has been brought [or is about to be broiight] by him from an order of the Court, made at a Term thereof, held at , on the day of , 18—, directing that [or from a Judgment of the Court, entered in the county clerk's office on the day of , 18 — , for] [state nature of order or judgment] ; and that deponent will suffer serious incon- venience and loss if the execution of said order [or judg- ment] is not stayed until the decision of said appeal, for the following reasons [state the reasons]. A. B. [Jurat as in form No. 46.] > Or other forms of undertaking may be foltowed, as directed by the order. 422 Forms Relating to No. 549. Notice of Motion for Stay of Proceedings on Appeal /rem Order, etc. ^Code Civ. Pro., §§ 1343, 1351.) [Title of cause.] Sir— Take notice, that upon the affidavit, with i, copy of which you are herewith served, and upon all the pr pers and proceedings in this action, a motion will be made at, etc., on, etc., for an order staying the execution of the order [or judgment] mentioned in said affidavit, until the decision by the [General Term of the] Court of the appeal taken by the [plaintiff] from the said order [or judgment], and for such other or further order as may be proper. Dated — , 18—. E. F., Attorney for Appellant. [Office address.'] To Gr. H., Esq., Attorney for Respondent. No. 550. Order Staging Proceedings upon Appeal from Order, etc. (Code Civ. Pro., §§ 1843, 1351.) [At, etc., as in form No. 80 (when made by the court).] [Title of cause.] On reading and filing the affidavit of A. B., dated , 18 — , witli proof of due service thereof, and of notice of this motion, upon the defendant, C. D., and on reading and filing [name any opposing papers'] ; and on motion of E. F., for the plaintiff, after hearing I. J., for the defendant {or no one appearing to oppose] ; It is hereby ordered, that the exeoution of the order of the Court, made at a Special Term \or name other term] thereof, held at on the day of , 18 — \or that the execution of the judgment of the Court, entered in this action in county clerk's office on the day of , 18 — ], be and the same is ' See note 4, page 126, to form No. 182. Appeals. 423 hereby stayed, until the decision of the appeal taken there- from by the plaintiff, upon the said appellant tiling with the clerk of county an undertaking in due form, as required, to stay execution in case of an appeal from a final judgment for the same amount [or to the same effect] under section 1352 of the Code of Civil Procedure [or state other terms upon which stay is granted]. Date [of judge's order]. A. 0., Judge [or Justice] of Court {when made by judge). No. 551. Notice of Entry of Judgment or Order to Limit Time for Appeal. (Code Civ. Pro., §§ 1343, 1351.) [Title of cause.] SiE — Take notice, that a judgment [or order] of the Court was entered in the county clerk's office [or name other clerk' s office], on the — day of , 18 — , in the above entitled action, a copy of which is hereto annexed, and herewith served upon you.' Yours, etc., A. F. , Attorney for . [Office address.'] » See KoUins v. Wood (16 Hun, 586), Hathorn, 78 id., 328; Yorks v. Peck, that notice of the entry of judgment, 17 How. Pr., 193.) although it states the date and amount A party must be held to strict prac- of damages and costs, is not a " copy tice, where he undertakes to limit the of the judgment " required by section time to appeal. (Y orks v. Peck, supra; 1351 of Code of Civ. Pro., and service Kelly v. Sheehan, svpra.) thereof does not limit the time to ap- The notice of entry of judgment peal. must be one coming from the prevail- » An omission to state in, or indorse ing party. No other party, nor the upon, the notice the office address or attorney representing another party, place of business of the attorney, as has the right to serve a notice for the required by rule No. 3 of Gen. Rules of prevailing party, and a notice so served Prac. , renders the notice insufficient to will not, so far as he is concerned, set limit the time for appeal. (Kelly v. running the bar of the statute. (Kil- Sheehan, 76 N. Y., 325; Kilmer v. mer v. Bathsra, supra.) 424 FOEMS Relating to TITLE IV. FORMS RELA.TING TO APPEALS FROM DETERMINATIONS IN SPECIAL PROCEEDINGS. (Code Civ. Pro., Ch. 12, Tit. 5.) No. 553. Notice of appeal from order made in a special proceeding. No. 552. Notice of Appeal from Order Made in Special Proceeding. (Code Civ. Pro. § 1356.) [Title of proceeding.] Ta,ke notice, that A. B. api)ea]s to the General Term of the Court from the order made in the above enti- tled proceeding ' by the Court, at a [Special Term] thereof, held at , on the day of , 18 — , and entered in the clerk's ofBce [or from the order made in the above entitled proceeding by Hon. A. O., judge of the ■ Court, dated , 18 — , and entered in the clerk's office] [or from so much of the order made, etc., as directs that (specify part of order appealed from)] [and that the appellant intends to bring up for review, upon said appeal, the order entered in said pro- ceeding on the day of , 18 — ].' Yours, etc., A. M., Attorney for Appellant. [Office address. °] To F. P., Attorney for C. D., Respondent, and the County ClerJc of the County of [or name other cleric]. ' By section 13G0 of Code of Civil the appeal, except as otherwise speci- Procedure, the provisions of title 4 of ally proscribed by law. chapter 13 arc made applicable to ap- For forms, see Nos. 547-550. peals in special proceedings, so far as For notice under section 1359 to set they relate to perfecting the appeal time for appeal running, see No. 551. from an order, staying the execution, ^ See section 1358, Code Civ. Pro hearing the appeal and the entry and ' See note 3 to form No. 133. enforcement of the order made upon Executions. 425 CHAPTER XIII. I'ORMS RELATING TO EXECUTIONS. TITLE I. Forms relating to executions, time and manner of issuing same, and to officers executing tliem. TITLE II. Forms relating to enforcing executions against property, exemp- tion, sale, redemption, etc. TITLE I. FORMS RELATING TO EXECUTIONS, TIME AND MANNER OF ISSUING SAME, AND TO OFFICERS EXECUTING THEM. (Code Civ. Pro., Ch. 13, Tit. 1.) No. 553. Order directing issuing of execution against sheriff to person other than coroner. 554. Bond of person to whoin execution against sheriff is directed. 555. Clerk's certificate of filing bond hy party to ■whom execution against sheriff is to be directed. 550. Execution against property, general form. 557. Execution against property on judgment of justice of the peace, docketed with county clerk. 558. Execution against property, when warrant of attachment has been levied by sheriff. 559. Execution against real or personal property in the hands of an ex- ecutor, etc. 560. Indorsement on execution against executor or administrator. 501. Execution under subdivision 1 of sectionl731, Code Civil Procedure. 563. Execution for the delivery of possession of a chattel and to satisfy a sum contingently awarded against the judgment debtor. 563. Execution against the person. 604. Execution for the delivery of possession of real property or a chattel, with damages. 565. Affidavit on motion for leave to issue execution. 506. Notice of motion for leave to issue execution. 567. Order to show cause why execution should not issue. 568. Order granting leave to issue execution. 569. Notice of motion for leave to issue execution against property of deceased judgment debtor. 570. Affidavit on motion for leave to issue execution against property of deceased judgment debtor. 571. Order of court granting leave to issue execution against property of deceased judgment debtor. 573. Petition to surrogate's court for leave to issue execution against property of deceased judgment delator, 04 426 FoEMS Relating to No. 573. Decree of surrogate's court granting leave to issue execution against property of deceased judgment debtor. 574. Indorsement upon execution against the survivors of several judg- ment debtors. 575. Order appointing person to proceed upon execution where the sheriff is dead and there is no under-sheriff. No. 553. Order Directing Issue of Execution Against Sherift', to Person other than Coroner. (Code Civ. Pro., § 1363.) [At, etc., as in form No. 80.] [Title of cause.] It having appeared by the affidavit of A. B., dated , 18—, that a judgment was rendered' in the above entitled action in favor of the [plaintiff], and against the [defend- ant], for ■ dollars and cents \or state other rt-lief], and that the [defendant], M. N., is sheriff of county, and that sufficient reason exists therefor ; and that E. F., of , in this State, is of full age, and not a party to the action, nor interested therein ; It is hereby ordered and directed, that the execution upon said judgment be directed to said E. F., instead of to the coroners or a particular coroner of the county of [this order is, however, not to take effect until the said E. F. executes and files in the county clerk's office a bond to the peoi)le, with at least two sureties, approved by a judge of this court, or a county judge, in the penal sum of dollars,' conditioned for the faithful perform- ance of his duties under the execution]." ' Not less than twice the sum to bo A certified copy of the order, and collected by virtue of the execution, where the order requires the bond to (Code Civ. Pro., § 1302.) be given, the clerk's certificate that the ' This clause in brackets is to be in- bond has been filed as required by the serted in case the judgment is for a order, must be attached to the execu- sum of money, or directing the pay- tion. (Code Civ. Pro., § 1362) As to ment of a sum of money. (Code Civ. powers of person appointed, see same Pro., §1302.) section. ^ Insert here "by the court, ou ■ ," etc, Executions. 437 No. 554. Bond of Person to wliom Execution Against Sheriff is Directed. (Code Civ. Pro., § 1363.) As in form No. 340 to [*], and from thence as follows : That if the above bounden [name of appointee] shall faith- fully perform his duties under the ext-cution issued to him under the order of the Court, dated , 18 — , upon a judgment of Court, rendered , in action between I. F., plaintiff, and C. D., defendant, in favor of said [plaintiff] and against said [defendant] for dollars and cents [or state other relief], then this obligation to be void, otherwise to be and remain in full force and virtue. A. B. [L. S.J C. D. [L. s.] E. F. [L. s.] Sealed and delivered in presence of . [Acknowledgments or proof and affidavits of justification by sureties, as in forms Nos. 340, 538.J I hereby approve of the foregoing [or within] bond, and of the sureties therein mentioned. Dated , 18—. A. O., Judge [or Justice] of the Court [or County Judge]. No. 555. Clerk's Certificate of Filing Bond by Party to whom Exe- cution against Sheriff is to l)e Directed. (Code Civ. Pro., § 1303.) State of New York, [County] Cleric's Office, ' ^^■^ I, J. L., [county] clerk of [county], do hereby certify that the bond required by the within order, approved by Hon. A. O., judge of the Court, has been duly filed in the [county] clerk's office of [county], on the r^.^ day of , 18 — , 428 Forms RELATiNfi to In witness whereof, I have hereunto set my hand and seal, this day of , 18—. J. L., Clerii, No. 556. Execution against Property. (Code Civ. Pro , §§ 1303, 1364, 1366, 1369.) The People of the State of New York, to the Sheriff [or the Coroners, or A. N., a Coroner] of the County of ; ' Whereas, a judgment was rendered on tlie day of , 18—, in the Court, in an action in said court, wherein A. B., was plaintiff, and C. D., [iJ was de- fendant, in favor of the said [plaintiff] and against the said [defendant] [*] for the sum of dollars and cents, and the judgment roll upon said judgment was tiled' in the clerk's office of the county of on the day aforesaid [and (a transcript of said judgment was filed and)' said judgment was duly docketed in the office of the clerk of your county on the day of , IS — ] ;' and, Whereas, there is now actually due upon said judgment the sum of dollars and cents, with interest thereupon from the day of , 18 — ;' [t] Now, therefore, you are hereby required to satisfy the said judgment [ff] out of the personal property of the said judgment debtor[s] [or either of them], and if sufficient per- sonal property cannot be found, out of the real property belonging to him [or to them, or either of tliera], at the time when said judgment was docketed in the clerk's office of the county of • , or at any time thereafter ; and to return ' See section 173 of Code of Civil ' Sec, as to cases in -wliich this state- Procedure, and see "White v. Coulter ment as to filing transcript is necessary, (1 Hun, 358), that -where tlic execution section 1067, id. was improperly directed " to the sheriff ■* Where the execution is not issued of the county of county," and iKoperly to the county in which the judgment directed upon the indorsement, its roll is filed, it must specify tlic time of direction to the sheriff sufficiently docketing in tlic county to which it is appeared. issued. (Code Civ Pro., § 1369.) * The place of filing the judgment ' Sec, as to interest, section 1368, roll need only ho stated when the judg- Code Civil Procedure, ment was rendered in the Supreme Cpvjrt. (Code Civ, Pro., § 1366.) Executions. 429 this execution to tlie clerk of the county of ,' ■within sixty days after the receipt thereof. Witness, Hon. A. O., one of the of said court, at , on this day of , 18—.' B. F. {Attorney for the] Plaintiff [or Defendant]. [Office address.'] [Indorsement as in form No. 560."] No. 557. Execution Against Property on Judgment of Justice of the Peace, Docketed with County Clerk. (Code Civ. Pro., §§ 1363, 1367, 3043.) The People of the Slate of New YorJc to the Sheriff of the County of : Whereas, a judgment was rendered on the day of , 18 — , by A. F., Esq., a justice of the peace of the county of in an action in which A. B. was ' Except in cases specified in section 1367 {q. v.), it is to be returnable to the clerk with whom the judgment roll is filed. (§ 1366, id.) ^ For form of execution upon judg- ment by confession, where the whole amount is not due, see Code of Civil Procedure, section 1377. An execution maybe issued from the city court of Yonkers, under chapter 186 of Laws of 1878, title 4, sections 34, 54, to the sheriff of Westchester county without filing a transcript of the judg- ment with the clerk of that county, or docketing the judgment in the county clerk's office of that county. (Prime V. Anderson, 39 Hun, 014 ) As to amendability, etc., of execu- tion, see Benedict, etc , BI, Co v. Thayer (30 Hun, 547; S. C, 21 id., 614), Burnham v. Brennan (43 N. Y. ■ Super. Ct., 49), Heilner v Walsh (47 N. Y. Super. Ct., 369), Wright v. Nost- rand (94 N. Y., 31; rev'g S. C.,-47 N. Y Super. Ct., 441), Tasker v. Wallace (6 Daly, 364), Ward v. Sands (4 Month. L. Bui., 51), Douglass v. Haberstro(88 N. Y., 611; rev'g S. C, 25 Hun, 263), Mclntyre v. Sanford (9 Daly, 31), Peo- ple V. Seaton (35 Hun, 305), Thomas V. Bogert (Gen T., Sup Ct. [19 Week. Dig., 390]). An execution, although it be so de- fective that it is subject to be vacated and set aside on motion, may not be treated as void when questioned in col- lateral proceedings, where the defects are amendable, or where all the essen- tial facts necessary for the direction and protection of the sheriff are stated in the execution, or are plainly infera- ble from the facts stated. (Wright v. Nostrand, 94 N. Y., 31.) That an attorney cannot counter- mand execution after a sale of real property has been made under it, but before a certificate of such sale has been given. See Thomas v. Bogert (supra). 8 See note 3 to form No. 132. * As to indorsement in case of exe- cution against surviving judgr.ent debtors, see section 1383, Code Civ. Pro. ' See section 1667, Code Civ. Pro. 430 Forms Relating tO plaintiff and C. D. was defendant, in favor of said [plain- tiff] and against said [defendant], for dollars and cents damages, and dollars and cents costs, and a transcript of said judgment was filed in the county clerk's office on the day of , 18 — , and said judgment duly docketed in said clerk's office on the day last aforesaid ; and, Whereas, there is now actually due upon said judgment the sum of and cents, with interest thereon from the ■ day of , 18 — ; Now, therefore, you are hereby required to satisfy the said judgment, etc. [proceed as in form No. 556' from (tf) to signature, omitting the direction to satisfy the judgment out of the real property of the judgment debtor, Avhere the judgment is for less than twenty-five dollars, exclusive of costs].' J. L. , Gounty Cleric of County. [Indorsement as in form No. 560, substituting signature of clerk for that of attorney, and adding at end of direc- tion, the words : ' ' also collect costs of increase, dollars."] No. 558. Execution Against Property, Where Warrant of Attach- ment has been Xevied by Sheriff. (Code Civ. Pro., § 1370, subds. 1, 2.) Under subdivision one as in form No. 556 to [f], and from thence as follows : And, whereas, a warrant of attachment issued in said action has been levied by you upon i^roperty of the defendant ; Now, therefore, you are hereby required to satisfy the said judgment out of the personal property attached in said action, and, if that is insufficient, out of the real property attached, and to return, etc. [as in form No. 556 to the end thereof]. Under subdivision two as in form No. 556 to [f ], and from thence as follows : And, whereas, a warrant of attachment issued in said action has been levied by you upon property of the [defendant] ; ' The execution must be returnable to the clerk, with -whom the transcript is filed. Executions. 431 Now, therefore, you are required to satisfy the said judg- ment out of the personal property attached, and if that is insufficient, out of the other personal property of the judg- ment debtor ; if both are insufficient, out of the real prop- erty attached ; and, if that is insufficient, out of the real property belonging to him at the time when the judgment was docketed in the clerk's office of the county of , or at any time thereafter, and to return, etc. [as in form No. 556 to end thereof].' E. F., Attorney for . [Office address.'] [Indorsement as in form No. 560.] No. 659. Execution Against Real or Personal Property in the hands of an Executor, etc. (Code Civ. Pro., § 1371.) As in form No. 656 to [fl,. and from thence as follows : As executor of the will \or as the administrator of, etc., of M. N., deceased], \or insert other description of the capacity in which the property is held], was defendant, in favor of said plaintiff and against said defendant, as such executor \or administrator {or describe other capacity)], as aforesaid, for the sum of dollars and cents, upon which judgment the sum of — dollars and — cents, with interest thereon from the day of , 18 — , is now actually due ; [And, whereas, an order of the surrogate of the county of — , from whose court the letters testamentary under ' An execution against a resident of Tlie defect was not a mere irregu- the State who has absconded, and lias l;irity, and therefore was not amenda- been served by publication, must be ble. (Id.) in the form secondly above given; and The principle established by § 1370 where an execution in such a case was of Code Civ. Pro., is that non-resi- issued in the form first above given, it dents shall only answer by the attached was held that the execution, and a sale property, and residents shall answer of real estate made under it, were ir- generally, but in certain prescribed regular and void and both were set order of sale. (Id ) aside upon motion. (Place v. Riley, - See note 3 to form No. 123. 83 Hun, 17.) 432 FoEMS Relating to said will {or the letters of administration upon said estate) ■were issued, has been duly made, permitting execution to be issued upon said judgment for the sum of dol- lars and cents.'] And, whereas, the judgment roll upon said judgment was filed in the clerk's office of the county of on the day of , 18 — ,' and [a transcript of said judgment was filed and'] said judgment was duly docketed in the office of the clerk of your county on the day of , 18—;' Now, therefore, you are hereby required to satisfy the said amount of dollars and cents,' out of the personal [or real, or real and personal] property of the said M. N., in the hands of said' C. D., as such executor [or as such administrator, or describe other capacity], in your county, and that you return, etc. [concluding as in form No. 556]. A. F., Attorney for [Office address. °] No. 560. Indorsement on Execution Against Executor or Adminis- trator. (Code Civ. Pro., §§ 1371, 1825.) [Title of cause.] Execution to — — Levy county. A. F. , Attorney for Plaintiff. [Office address. '] dollars, with interest thereon from the day of , 18 — ,-• besides your fees and pound- ' Insert this clause as to order ia execution against executor or admin- istrator. (See Code Civ. Pro., § 1825.) ' See note 2 to form No. 550, ^ Sec note G to form No. 55G. * See note 4 to form No. 55G. '' Insert here amount directed to be collected by order of surrogate. The execution must also be indorsed to col lect that; amount. (§ 1825j Code Civ. Pro.) For form of this endorsement, sec form No. 500. ° See note 2 to form No. 122; and as to executions generally, amendability, etc. , see cases referred to in notes to form No. 550. As to form of execution under sec- tion 1371 of Code Civ. Pro., see Felt V. Dorr (29 Hun, 14), Olmsted v. Vre- denburgh (10 How. Pr., 215). ■" See note 3 to form No. 132. Executions. 433 age, as within directed, and return this execution within sixty days, after its receipt by you, to the clerk's office of the county of . A. F., Attorney for . Received , 18 — , at o'clock — m. A. M., mieriff. [By M. N., Ms Deputy. ^'l No. 561. Execution under SulbdiTision 1 of Section 1731 of Code of Civil Procedure. (Code Civ. Pro., § 1731.) The People of the State of New Yoi% to the Sheriff of the County of [or the Coroners {or to M. N., a Cor- oner) of the County of ■ ] ; Whereas, a Judgment was rendered on the day of , 18 — , in the — Court, in an action in said court, wherein A. B. was plaintiff and C. D. was defendant, in favor of the said defendant and against the said plaintiff, for the sum of dollars and cents damages and costs, and for the further sum of dollars and cents, and, if the latter sum is not collected, for the delivery by the said plaintiff to the said defendant of the following described chattel [or chattels] to wit : [par- ticularly describing it or them] [or say after word "cents," where it last above occurs, in place of what follows it above, as follows : And that he is entitled to the possession of the following described chattel (or chattels) to wit : (particularly describing same) until the said sum of dollars and cents is collected and paid] ; and. Whereas, the judgment roll upon said judgment was filed in the clerk's office of the county of on the day last aforesaid [and (a transcript of said judgment was duly filed, and) said judgment was duly docketed in the office of the clerk of your county on the day of , 18 — ] ; and, Whereas, there is now actually due upon said judgment 1 See section 1363, Code Civ. Pro. m 434 Forms Relating to llie sum of dollars and cents damages and costs as aforesaid, with interest thereupon from the ■ ^ay of 18—, and the further sum of dol- lars and cents, with interest thereupon from the ■ day of , 18 — ; Now, therefore, you are hereby required to deliver pos- session of the said chattel to the defendant, unless the plaintiff, before the delivery, pays to you the said sum of dollars, with interest as aforesaid, and your fees ; and in case the said chattel cannot be found within your county, then to satisfy that sum out of the personal property of the plaintiff ; and if sufficient personal prop- erty cannot be found, out of the real property belonging to him at the time when said judgment was docketed in the clerk's office of the county of , or at any time there- after. And you are further required to satisfy the said sum of ■ dollars and cents, damages and costs as aforesaid, out of [as in form No. 556 from (ft) to end].' E. F., Attorney for [Office address.'] [Indorsement as in form No. 660, adding particular direc- tions briefly.] No. 562. Execution for the Delivery of Possession of a Chattel, and to Satisfy a sum Contingently Awarded Against the Judg- ment Debtor. (Code Civ. Pro., § 1731, subd. 2.) As in form No. 556 to [*], and from thence as follows : For the delivery to the said [plaintiff] of the possession of the following described chattel [or chattels], viz. [describ- ing it or them particularly], and for the payment to the said plaintiff, by the said defendant, of the sum of dollars and ■ cents, damages and costs ; and if pos- session thereof is not delivered to the said plaintiff", A. B., then for the payment by the said defendant to the said plaintiff of the further sum of dollars, the sum fixed as the value thereof ; the j iidgment roll upon which ' See notes to form No. 55(5, ' See note 2 to form No. 133. Execution's. 435 J adgment was filed in the office of the clerk of the county of , on the day of , 18— [and (a tran- script of said judgment was duly filed, and) said judgment was duly docketed in the office of the clerk of your county on the day of , IC— J, and (he sum of dollars, with interest thereon from the day of , 18—, is actually due thereon for said dam- ages and costs ; and the further sum of dollars and cents, with interest thereon from the day of , 18—, is also actually due thereon if the possession of said chattel is not delivered to said plaintiflf ; Now, therefore, you are hereby required to deliver the possession of the said chattel within your county to the said plaintiff, A. B., and to satisfy the said sum of dollars and ■ cents, damages and costs, with inter- est as aforesaid, and the further sum of dollars and cents, with interest thereupon as aforesaid, if the said chattel cannot be found within your county, and your fees out of [as in form No. ^56 from (ff) to end].' E. F., Attorney for . [Office address.'] No. 563. Execution Against the Person. (Code Civ. Pro., §§ 13C4, 1372.) As in form No. 556 to [f], and from thence as follows : And, whereas, an execution against the property of the said judgment debtor has been, on the day of •, 18 — , duly issued to the sheriff of the county of [where he then resided and yet resides], and re- turned wholly \or partly] unsatisfied ; ' therefore we com- ' See notes to form No. 556. id., § 14S9. When such execution is ' See note 3 to form No. 122. first issued, it must be to the county * An execution against the person where tlie judgment debtor resides, if must contain this recital, except where he is a resident of the State. (Id.) it may be issued without the previous The requirement .is to issuing and re- issuing and return of an execution turning of execution may be waived, agiiinst property (see Code Civ. Pro., (N. Y.- G. and I Co. v. Rogers, 71 § 1372); and as to cases in which such N. Y., 377.) execution need not be flrat issued, see An execution against the person, 4S6 FoBMS Relating to mand you to arrest the said judgment debtor, and commit liim to the jail of your county until he pays the said judg- ment, or is discharged according to law, and that yon return this execution to the clerk of the county of , within sixty days after the receipt thereof. Witness, Hon. A. O., one of the of our said court, at , on this day of , 18 — .' E. F., Attorney for Plaintiff \or Defendant\ [Office address. ] No. 564. Execution for the Delivery of Possession of Real Prop- erty, or a Chattel, with Damages. (Code Civ. Pro., §§ 1364, 1373.) As in form No. 556 to [*], and from thence as follows : For the delivery to A. B,, the said [plaintifE], of the pos- session of the following described real property [or chat- tels], viz. : [insert particular description of property], and also for the recovery, by said A. B. against said C. D., of dollars damages and costs, the judgment roll upon which judgment was filed in the office of the clerk of the county of ■ , on the day of , 18 — stating that execution agaiust property The issuing of an execution against has been issued to the proper count}', the person of the judgment debtor is, is insufficient. It should specify, by it seems, witliin the scof e of the im- name, the county to ■wliich it was plied authority of the attorney for the issued, (People ex rel. Brack v. judgment creditor ; and when such an Reilly, 53 How. Pr., 218.) execution is issued and the debtor ar- ' See notes to form No. 550, ante. rested thereon, in a case where it is not The death of a judgment debtor authorized, the client may be held lia- wMle in custody under an execution ble, although there be no evidence that against the person, did not, under 3 R. be directed either the issuing of the S , 645, § 38, entitle the sheriff to execution or the arrest. (Guilleaume poundage. v. Rowe, 94 K Y., 268.) In order to entitle him thereto, it See as to right to issue execution seems he must show either a collection against the person of the plaintiff, in of the moneys called for, interference a case where the defendant has pre- by the judgment creditor with the exo- vailed, and would have been liable to cution of the process, or the discharge aiTcst upon a judgment recovered by of the judgment debtor under the pro- the plaintifE, see Parker v. Speer (16 visions of the act for the relief of im- Week. Dig., 417), Kloppenberg v. prisoned debtors. (Flack v. The State Neefus (4 Sandf., 655; 11 Abb. N. C, of New York, 95 N. Y., 461.) 877; 8. C, 81 N. Y., 639). EXECUTIOKS. 437 [and (a transcript of said judgment was duly filed and) said judgment was duly docketed in the office of the clerk of your county, on the day of , 18— J, and the sum of dollars and cents, with interest thereon from the day of , 18—, is actually due thereon : Now, therefore, you are hereby required to deliver the possession of the said real property [or chattels] above described, within your county, to the said [plaintiff], A. B., and to satisfy the said sum of dollars and cents, with interest thereupon, as aforesaid, out of [as in form No. 556 from (ff) to end].' , No. 565. Affldayit on Motion for Leave to Issue Execution. (Code Civ. Pro., § 1378.) [Title of cause.] CouNTy, ss. : A. B., of , being duly sworn, says, that he is [description of aflSant] ; That on the day of , 18 — , a judgment was entered in the Court, in the above entitled action, in favor of the and against the , for — dollars and cents [or state other re- lief], and [the judgment roll upon said judgment was filed and] said judgment Avas duly docketed in the — county clerk's ofiice [in which county said action was tria- ble] on the day last aforesaid." [That said judgment is still wholly unsatisfied {or that the sum of dollars and cents is still due and unpaid upon said judgment).'] [That the said is not a resident of the State, but ' See notes to form No. 5oG. duly docketed, and the five years with- The execution may contain, with in which an execution may issue with- respect to the money to he collected, out leave are to be computed from that the same directions as an execution time. (Kupfer v. Frank, 30 Hun, 74.) against the person, if the case requires ^ This must be shown in case of a them (Code Civ. Pro., § 1373.) money judgment. (Code tiv. Pro., § ^ The riglit to issue an execution 1378.) does not accrue until the Judgment is The burden of proving that the 438 FoEMS Relating to resides at , in the of J \pr that gaj(]^ resides at , iu this State, but that per- sonal service cannot, with reasonable diligence, be made upon him ; that (here state efforts made to serve him).] That no execution has been issued upon said judgment within five years after the entry thereof, and returned wholly or partly unsatisfied [or unexecuted].' [Jurat as in form No. 46.] No. 566. Notice of Motion for Leave to Issue Execution. (Code Civ. Pro,, § 1378.) [Title of cause.] Sir — Take notice, that a motion will be made upon the affidavit, a copy of which is hereto annexed, at a Special Term of the [Supreme] Court, to be held at, etc., on, etc., at the opening of court, or as soon as counsel can be heard, [*] for leave to issue execution upon the judgment mentioned in said affidavit, and for such other relief as may be proper [with costs of this motion]. Yours, etc., A. F., Attorney for . [Office address.'] To C. D., Defendant.' No. 567. Order to Show Cause why Execution should not Issue. (Code Civ. Pro., §1378.) [At, etc., as in form No. 80.] [Title of cause.] Upon the application of I. J., attorney for the , it judgment remains in part or wholly dent of the State, or personal service unpaid, upon such motion, is upon the cannot he made upon him with rea- moving party. (Michaels v. Abra- sonable diligence, notice must be given hams, N. Y Daily Reg , Mar. C, 1883.) in such manner as the court directs. ' See section 1377, Code Civ. Pro. (Code Civ. Pro., g 1878.) Otherwise ' See note 3 to form No. 133. personal service must be made. (Id.) ' If the adverse party is a non-resi- See, also, notes to last form No, 565i EZECTJTIONS. 439 is hereby ordered, that the , C. D., show cause, upon the annexed affidavit, at a Term of the Court, to be held at , on the day of 18 why an execution should not be issued upon the judgment mentioned in the said affidavit, and why the should not have such further relief as may be proper [with costs of motion]. And it is further ordered, that a copy of this order, and of said affidavit, be served upon the , by publica- tion of this order in the , a newspaper published in the county of , once a week for weeks, and by mailing copies of this order and of said affidavit, on or before the day of , 18—, in the post-office at the of ', directed to said , at , and paying the postage thereon [or state other manner of service].' No. 568. Order Granting Leave to Issue Execution. (Code Civ. Pro., § 1378.) [At, etc., as in form ISTo. 80.] [Title of cause.] On reading and filing the affidavit of A. B., dated ■ 18 — , with notice of motion, at this term, for leave to issue execution upon the judgment hereinafter mentioned, with l^roof of due service thereof on the [or order to show cause, returnable at this term, why leave, etc., with proof, etc. (as above)] ; and on reading [name opposing papers], and on motion of I. J., for the , after hear- ing K. L., for the ^^ — [or no one appearing to oppose] : It is hereby ordered, that leave to the = to issue execution upon the judgment of the Court, ren- dered in the above entitled action on the day of , 18 — , for dollars and cents [or ' See note 3 to last form No. 500, and No. 102, and note 3, page 140, to furra notes to form No. 565 ; see, also, as to No. 218, order tp show cayse, notQ 1 to form 440 FoEMS Relating to state other relief], be and the same is hereby granted [with dollars costs of this motion].' No. 569. Notice of Motion for Leave to Issue Execution Against Property of Deceased Judgment Debtor. (Code Civ. Pro., § 1380.) [Title of cause.] As in form No. 566 to [*], and from thence as follows : For leave to the • to issue execution upon the judg- ment rendered in the above entitled action described in said affidavit, said execution, to be enforced against the property- mentioned in said annexed affidavit upon which the judg- ment mentioned ia said affidavit is a lien, and for such other or further relief as may be proper. Yours, etc., A. F., Attorney for . [Office address."] To E. F. and G. H., and to I. J., Administrator of, etc. \or Executor of the Will], of C. D., Deceased.' No. 570. Alfldavit on Motion for Leave to Issue Execution Against Property of Deceased Judgment Debtor. (Code Civ. Pro., § 1380.) [Title of cause.] County, ss. ; A. B., of , being duly sworn, says, that he is [description of affiant]. That on the day of ■ — — , 18 — , a final judg- ment was rendered in the Court in the above enti- ' See notes to forms Nos. 555, 556. ment debtor. See section 1381, Code 2 See note 2 to form No. 132. Civ. Pro. ^ The notice must bo given to the The motion cannot be heard at a person or persons whose interest in the Special Term adjourned to the cham- property will be aifected by a sale by bers of the judge holding it, except by virtue of the execution, and also to the consent. (Matter of Wadley, 39 Huu, executor or administrator of the judg- 13.) EXECUTIOKS. 441 tied action [which was triable in the county of J in favor of A. B., the said [plaintiff], and against C. D., the said [defendant], for dollars and cents [or that on the day of , 18 — , a final judgment was recovered in the above entitled action, direct- ing the payment by the said (defendant) to the said (plain- tiff) of the sum of dollars and — cents]. \ That the judgment roll upon said judgment was filed in the county clerk's office [or name other clerk's office] on the day aforesaid. [That said judgment was duly docketed in the county clerk's oflice on the— day of , 18—,'] [or that a transcrij)t of said judgment was duly filed, and said judgment duly docketed, in the county clerk's office, on the day of , 18—.'] That more than one year since, and on or about the day of , 18—, the said departed this life intestate, being, at the time of his death, a resident of the county of [or state other facts necessary to give jurisdiction to surrogate], leaving him surviving E. F., of , and G. H., of , his only heirs at law [or leaving a last will and testament, by which he devised to E. F., of , and Gr. H., of , the (real) prop- erty hereinafter described].' That I. J. has been duly appointed, on the day of , IS—, by the surrogate of the said county of , as administrator of, etc. [or as executor of the said last will and testament], of said C. D., deceased.' That said C. D. was, at the time of his death [or at {or after), the time of the rendition and docketing of said judg- ' Insert this clause in brackets in the judgment debtor owned the property case of a judgment of the Supreme at the time of his death. Where he Court, only wliere execution is to be did not then own it the facts must be issued to a county other than that in stated, showing its present ownership. ■which the judgment roll is filed. If there are tenants of the property, ^ Insert this clause in brackets, where their interests should l)e sliown. the judgment was docketed from a jus- ^ The order must be made more than tice's transcript, and in that case omit three years after issue of letters, where statement as to filing judgment roll, the lien was created, as prescribed in (See Code Civ. Pro , § 1367.) section 1251 of Code Civ. Pro. (§ 1380, 2 The statements as to heirs at law, id.) etc., will only be necessary, where the 56 ^_, 443 FoEMS Relating to ment "as aforesaid], the owner of the following described real property, situated in the county of , upon which said judgment is a lien, to wit : All that certain, etc. [here describe property].' [*] That said judgment remains wholly unpaid [or that the sum of dollars is still due and unpaid upon said judgment." "■ ^ A. B. [Jurat as in form No. 46.] No. 571. Order of Court Granting Leave to Issue Execution Against Property of Deceased Judgment Debtor. (Code Civ. Pro., § 1380.) [At, etc., as in form No. 80.J [Title of cause.] On reading and filing the affidavit of A. B., showing that a final judgment was rendered by the Court, on the day of , 18 — , in favor of A. B. against C. D., for the sum of — dollars [or for the payment by C. D. to A. B. of the sum of dollars], and that said C. D. has departed this life more than one year since, and on or about the day of , 18 — , and that said judgment is a lien upon the real property de- scribed in said affidavit ; and it appearing that due service of notice of this motion has been made upon the persons ' If a particular dcscriptioa of the to this proceeding, contents of moving property cannot be gi«>en, say: "the papers, costs, etc. owner of real property, situated in It is only necessary that the moving the county of , upon which said papers should describe the lands against judgment was a lien." which the judgment is sought to be ' It is no defense to the application enforced. They need not contain a to the court from which execution is description of all the lands of the to be issued, tliat leave of the surrogate judgment debtor. ("Wadley v. Davis, has not been obtained to issue execution, svpra.) (Kerr v. Kreuder, 16 Week. Dig., 83; Section 1380 of Code of Civil Pro., S. C, 28 Hun, 452.) See, also. Marine applies only to judgments rendered Bank of Chicago v. Van Brunt (49 N. against the deceased in his life-time; Y., 1(50), Wallace v. Swinton (64 N. not to judgments against the executor Y., 188), Wadley V. Davis(30 Hun, 570), or administrator. (James v. Beesley, Gillies V. Kreuder (1 Demarest, 349), as 4 Rcdf., 236.) Executions. 443 whose interest in the said property will be affected by a sale of said loroperty by virtue of an execution, and also to tlie executor \or administrator] of said C. D., and on reading [name opposing papers] : Now, on motion of E. F., of counsel for said A. B., and after hearing, etc. \or no one appearing to oppose] : It is hereby ordered, that leave to issue execution upon said judgment, to be enforced against the said property upon wiiich said judgment is a lien, with like effect as if the said C. D. were still living, be and the same is hereby granted.' No. 572. Petition to Surrogate's Court for Leave to Issue Execution Agaiust Property of Deceased Judgment Debtor. (Code Civ. Pro., § 1380.) Tt) the Surrogate' s Court of the County of — — .• The petition of A. B., of ■ , respectfully shows, that he is [description of petitioner]. That on the day of , 18 — , a Judgment, etc. [proceed as in form No. 570 to (*), and from thence as follows] : Your pi'titioner, therefore, prays that a decree may be made by this court, granting leave to issue execution upon the said judgment, to be enforced against the said property upon which said judgment is a lien, with like effect as if the said C. D. was still living, and that the persons whose interest in said property will be affected as aforesaid, by a sale, by virtue of said execution, and also the executor \or administrator] of said C. D., may be cited to show cause why the prayer of this petitioner should not be granted]. And your petitioner will ever pray, etc." Dated , 18—. A. B. [Yerification as in form No. 52.] ' See notes 1 and 3 (p 412) to last Court. Such leave may bo granted form No. 570. at any time. (Kerr v. Kreuder, 28 5 The statute does not require that Ilun, 453; S, C, 10 Week. Dig., 85.) the leave of the surrogate should pre- No notice of the presentation of the cede the application to the Supreme petition to the surrogate is necessary. 444 Forms Relating to No. 673. Decree of Surrogate's Court Granting Leave to Issue Execution. (Code Civ. Pro., § 1380.) At a surrogate's court of county, held at the of — '■ , on the day of , 18—. Present, Hon. P. A. R., Surrogate. [Title of proceeding.] On reading and filing the written petition, duly verified, of A. B., dated , 18 — , setting forth the facts, and praying for leave to issue execution upon the judgment ren- dered by the Court, in an action between said A. B., plaintiff, and C. D., defendant, on the day of , 18 — , for dollars, in favor of said and against said [or for the payment of the sum of dollars by said to said ], to be enforced against the proj)erty described in said petition, upon which said judgment is a lien. And a citation having been issued to E. F. and G. H., the heirs at law [or devisees] of said C. D., and to I. J., execu- tor [or administrator] of, etc., of said C. D., and having been duly served upon said persons cited ; Ndw, after hearing [the proofs and allegations of the re- spective parties and] K. L. for the said petitioner, and L. M. , for said, etc. \_or no one appearing to oppose] ; It is hereby ordered and decreed, that leave to issue exe- cution upon said judgment, to be enforced against the said property upon which said judgment is a lien, in like manner as if the said C. D. was still living, be and the same is hereby granted.' P. A. R., Surrogate. Upon sucli presentation, tlie parties be bound by tlie decree without being interested must be cited to appear; cited. (Id.) but wliere tliey have voluntarily ap- See, also, notes to form No. 570. peared and made their objection at the ' See note 3 to last form No. 573. time the petition is presented, they will Executions. 445 ' ■ No. 574. Indorsement Upon Execution Against the Survivors of Several Judgment Debtors. (Code Civ. Pro., § 1383.) [Title of cause.] To the Sheriff of County : Take notice, that A. B., one of the judgment debtors in the judgment within mentioned, departed this life hereto- fore and on or about , 18—, and that you are required not to collect the within execution out of any property which belonged to him. Dated , 18—. A. P., Attorney for [Office address.'] No. 575. Order Appointing Person to Proceed Upon Execution where the Sheriff is Dead and there is no Under- SheriflF. (Code Civ. Pro., § 1388.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the affidavit of A. B., dated , 18 — , showing that M. N., the sheriff of the county of- , to wiiom Avas heretofore, on the day of , 18—, issued an execution upon the judgment rendered herein by this court, on the day of • , has died {or has been removed from office {or state other disqualification)] before the return of said execution, and that there is no under sheriff of said county ; Now, on motion of E. F., attorney for the : It is hereby ordered, that G. H., of , be and he is hereby designated and appointed to proceed upon such execution and complete the same as an under-sheriff might have done, such appointment to take effect upon his giving security by bond to the people of the State of New York in ■ See note a to form No. 133. 446 Forms Relating to the penalty of , with sufficient surety [or sureties], to be approved by a judge of this court, for the proper and faithful discharge of his duties under this appointment.' TITLE II. FORMS RELATING TO ENFORCING EXECUTION AGAINST PROP- ERTY, EXEMPTION, SALE, REDEMPTION, Etc. Article First, forms relating to property exempt from levy and SALE. (Code Civ. Pro., Ch. 13, Tit. 2, Art. 1.) No. 57(5. Notice to exempt burial lot from execution. 577. Notice of homestead exemption. 578. Complaiut in judgment creditor's action to procure a judgment directing sale of pi'operty exempted as a homestead. 579. Notice cancelling exemption. No. 576. Notice to Exempt Burial Lot from Execution. (Code Civ. Pro , § 1390.) Notice is hereby given, pursuant to the provisions of the Code of Civil Procedure, that the following described premises, to wit : All that certain lot of land, situated in the of , in the county of , bounded and described as follows [describe property fully], have been set apart for a family [or private] burying ground. Dated , 18—. A. M., Owner. In presence of . [Acknowledgment or proof as in form No. 538.°] ■ This designation does not apply to the county where the land is situated, a case where special provision is other- in the proper book for recording deeds, wise made hy law for the enforcement at least three days before the sale of of an execution after the death, re- the land by virtue of the execution, moval from office or other disqualiflca- (Code Civ. Pro.. § 1396 ) tion of the sheriff or under-sheriff. The clerk's certificate must be at- (Code Civ. Pro., § 13S8.) tached, as upon a deed, when required ' The notice must he recorded in the by law. (Id.) office of the county clerk or register of Executions. 447 No. 577. Notice of Homestead Exemption. (Code Civ. Pro., § 1398.) Notice is hereby given, according to the provisions of the Code of CivU Procedure, that the following described premises, situated in the ■ of , in the county of and State of New York, to wit : All that [insert full description], are designed to be held as a homestead, exempt from sale by virtue of an execution.' Dated , 18—. A. F., Owner. In presence of . [Acknowledgment or proof as in form No. 538. Add cer- tificate when required upon deed.] No. 578. Complaint in Judgment Creditor's Action to Procure a Judgment Directing Sale of Property Exempted as a Homestead, etc. (Code Civ. Pro., § 1403.) [Title of cause.] The plaintiff complains against the defendant, and alleges: That on the day of , 18—, the plaintiff recovered a judgment in the Court of the State of New York, against the above named defendant, for the sum of dollars, the judgment roll upon which judgment was duly filed, and which judgment was duly docketed in the county of on that day [and a transcript of said judgment was duly filed, and said judgment docketed in the ofiice of the county clerk of county, on the day of , 18—]. That execution upon said judgment was duly issued, and delivered to the sheriff of the county of , against the property of said defendant, that being then, and ever since, and still, the residence of the said defendant, which said execution has since been returned by said sheriff to ■ See, also, section 1397, Code Civil Procedure. 448 FoKMS Relating to the clerk's office of said county of unsatisfied in whole [or in part], and that the amount of dollars, with interest thereon from the day of — , 18—, is still unpaid thereupon. And the plaintiff further alleges, that at {or after] the time of the docketing of said judgment as aforesaid in the county of ■ , the said defendant was the owner of a certain lot of land, situated in said county, described as follows [insert description], of which he had \or has] filed a notice of exemption, pursuant to statute, as a homestead. And plaintiff alleges that the value of the said lot of land exceeds one thousand dollars, to wit : is of the value of at least dollars. Plaintiff therefore demands judgment that the said lot above described may be sold according to law, and the lien of said judgment [for the amount still unpaid thereupon, to wit;, the sum of , with interest thereupon from ■ ], may be enforced against said surplus, over the amount of one thousand dollars, and that plaintiff may have his costs of this action, and such other and further relief as may be proper. A. C, Plaintiff^ s Attorney. [Office address.'] [Verification, when verified, as in forms Nos. 151, etc.] No. 579. Notice of Cancelling Exemption. (Code Civ. Pro., § 1404.) Notice is hereby given, that the undersigned, pursuant to the provisions of the Code of Civil Procedure, cancels all exemptions from levy or sale by virtue of an execution, affecting the property situated in the county of , described as follows [here describe lot exempted, or any part thereof]. Dated , 18—. A. B., Owner. In presence of . [Acknowledgment, etc., as in form No. 538.] ' See note 3, p. 94, to form No. 134. Executions. 449 Article Second. forms relating to lien op an execution upon per- sonal property, levy upon and sale of personal PROPERTY, Etc. (Code Civ. Pro., Ch. 13, Tit. 3, Art. 3.) No. 580. Affidavit on application for order discliarging personal property of firm from levy. 581. Notice of motion for release from levy of personal property of part- nership. 583. Order releasing personal property of partnership. 583. Order to show cause why partnership property should not be re- leased from levy. 584. Order on return of order to show cause why partnership property should not be released from levy. 585. Undertaking to obtain release of partnership property from levy. 586. Inquisition of jury upon claim to properly levied on. 587. Undertaking to prevent relinquishment of levy upon property after inquisition by sheriff's jury. 588. Affidavit to move for substitution of indemnitors for sheriff. 589. Order substituting indemnitors as defendants in place of sheriff. 590. Order when indemnity related to a part only of the property levied upon. 591. Order where action is brought against the sheriff and the indem- nitors, etc. 593. Notice by sheriff to indemnitors of commencement of action. 593. Notice of sale of personal property by sheriff under execution. No. 580. Affidavit on Application for Order Discharging Personal Property of Firm from Leyy. (Code. Civ. Pro., § 1418.) [Title of cause.] County, ss. : C. D., of , being duly sworn, says, that he is a partner of A. B., in the firm composed of deponent and said A. B., engaged in the business of , and doing business under the firm name of A. B. & Co., at ; That the sheriff of the county of has seized [a portion of] the personal property of said firm, upon a levy made by him upon the interest of said A. B. therein by virtue of an execution against the individual property of said A. B., issued and delivered to said sheriff, upon a judg- m 450 FoKMS Relating to ment recovered on the day of , 18 — , in the Court, against said A. B. in the above entitled action by E. F. for dollars ; That the value of the interest of said A. B. in the prop- erty so seized does not exceed, according to the best of de- ponent' s knowledge and belief, the sum of dollars ; That deponent desires to give the undertaking prescribed in such case by section 1414 of the Code of Civil Procedure, and to obtain a release of said property and its delivery to deponent.' 0. D. [Jurat as in form No. 46.] No. 581. Notice of Motion for Release from levy of Personal Prop- erty of Partnership. (Code Civ. Pro., §1413.) As in form No. 324 to [*], and from thence as follows : For an order directing M. N., sheriff of county, to release the personal property of the firm of A. B. & Co., composed of A. B. and C. D., seized by said sheriff upon a levy upon the interest therein of said A. B., made by virtue of an execution against the individual property of said A. B., and to deliver it to said C. D., upon his filing the un- dertaking required by law, and for such other and further relief as may be proper." E- F., Attorney for C. D. [Office address.'] To K. L., Attorney for Plaintiff \or to I. J., Plaintiff ^ [Add stay of proceedings as in form No. 414.] 'See Atkins v. Saxton (77 N. Y., G93 and G94 (id.), referred to in sectioa 195), Saunders v. Irwin (17 Ilun, 842), 1415(id.), seeformsNos. 276-378 (««<«), Read v. McLanalian (47 N. Y. Super, and see notes to those forms. Ct , 27")), Cassidy V. U. S. Keflector Otlier atiidavits may be produced as Co. (o Month L. Bui., 54), Lang v. to value of interest of judgment credi- Otis (1 City Ct,, 241), Mcnaghv. Whit- tor in property seized, which fixes the ■well (32 N. Y., 146). amount to be inserted in the under- For forms under sections 095 and taking (§1414 id.). Under section 695, 090 of Code Civil Procedure, referred a reference may be ordered to ascertain to in section 1414 (id.), as applicable to such value. (Form No. 378.) these proceedings, and under sectjong As to "what courts tliese proceedings Executions. 451 No. 682. Order Releasing Personal Property of Partnership. (CodeCiv. Pro, §1413.) [litle 01 cause.] • On reading and filing the affidavit of C. D., dated —18, by which it appears that a seizure has been made by the sheriff of the county of of personal property of the firm of A. B. & Co., composed of A. B. and C. D., upon a levy by said sheriff, by virtue of an execution against the individual property of said A. B., upon the interest of said A. B. therein ; and on reading [name op- posing papers] ; and due notice of this motion having been given to said A. B., the plaintiff [or plaintiff's attorney] in this action, as directed by me,' and on motion of E. F., of counsel for said C. D., after hearing I. J., for said plaintiff [or no one appearing to oppose] ; and the undertaking by said C. D. approved by me, as required by law, having been duly filed, I dp hereby order and direct that [*] the said sheriff release the said property so seized by him, and deliver it to the said C. D. Dated , 18—. A. O., Judge [or Justice] of the Court \pr County Judge of — County], JSTo. 583. Order to Show Cause why Property of Partnership Should not be Released from Levy. (Code Civ. Pro., § 1413.) [Title of cause.] Upon the annexed affidavit of C. D., dated , 18 — , let the plaintiff, I. J., show cause before me, at , on the day of , 18—, at o'clock in the noon, why an order should not be made direct- ing M. N., sheriff of county, to release the personal are applicable to, see section 3347, ' The notice need not be given unless subd. 10, Code Civil Procedure. required by the judge. (Code Civ. 2 See notes to last form No. 580. Pro., § 696.) » gee note 3 to form No. 183. See, also, notes to (oira No, 580. 452 Forms Relating to property of the firm of A. B. & Co., composed of A. B. & C. D., seized by said sheriff, upon a levy upon the inter- est therein of said A. B., made by virtue of an execution against the individual pjioperty of said A. B., and to deliver it to said. C. D., upon his filing the undertaking required by law ; and. it is farther ordered, that all proceedings by said sheriff be stayed until the hearing and decision of the motion upon the return of this order to show cause [and it is further directed, that a copy of this order and of said affidavit be served upon [K. L., attorney for] said I. J., per- sonally, or by depositing, etc.,' on or before the ■ day of , 18— J.' Dated , 18—. A. O., Judge [or Justice] of the Court [or County Judge of County']. No. 584. Order on Return of Order to Show Cause why Partnership Property Should not Ibe Released. (Code Civ. Pro., § 1413.) [Title of cause.] On reading and filing the affidavit of C. D., dated 18—, and order to show cause, returnable before me this day, with proof of due service thereof on K. L. [attorney for the], plaintiff, and on reading and filing [name opposing papers], and on motion of E. F.,. of counsel for C. D., after hearing K. L. for I. J. [or no one appearing to oppose], and the said C. D. having given the undertaking required by law, approved by me, I do hereby order and direct. That [continue as in form No. 582 from [*] to end thereof]. ' As to form of directions for service p. 14G, to form No. 313. See, also, by mail, see form No. SC-S. notes to form No. 580. ^ For cases in wliicli orders to sLow No notice need be given unless di- cause are now allowable, see note 1, rected by judge. (Code Civ, Pro., p. 113, to form No. 1C3, and note 3, § C96.) Execution's. 453 No. 585. Uudertaking to Obtain Release of Partnership Property. (Code Civ. Pro., § 1414.) [Title of cause.] Whereas, M. N., sheriff of the county of ■ — , has seized personal proj^erty of the firm of A. B. &'Co., in which A. B. and C. D. are the partners, upon a levy upon the interest therein of said A. B., made by virtue of an exe- cution issued to said sheriff against the individual property of said A. B. ; and, Whereas, an application has been [or is about to be] made on behalf of said C. D , for an order directing the release of the said property by said sheriff, and its delivery to said CD.; Now, therefore, we, E. F., of , farmer, and Gr. H., of , merchant, do hereby, jointly and severally, un- dertake, pursuant to statute, that the said C. T>. will account to the purchaser, upon the sale to be made by virtue of said execution, of the interest of the said A. B. in the property seized, in like manner as he would be bound to account to an assignee of such an interest ; and that the said C. D. will pay to the purchaser the balance which may be found • due upon the accounting, not exceeding the sum of dollars.' Dated — — -, 18—. E. F. G. H. In presence of . [Acknowledgment or proof, justification and approval, as in forms Nos. 340, 538.] No. 586. Inqnisijtion of Jury Upon Claim to Property Levied Upon. (Code Civ. Pro., § 1419.) [Title of cause.] We, whose names are hereunto signed, being a jury sum- moned and sworn by the sheriff of county, to try ' See note 1 to form No. 580, and see notes to forms Nos. 340 and 341, as to undertakings generally. 454 Forms Relating to the claim of C. D. to the property levied upon by the said sheriff, under the execution issued in the above entitled ac- tion in favor of A. B. against E. F., to wit [stating the prop- erty], do, upon our oaths, say, that the said property belongs \or does not belong] to said C. D. [and that we have determined the value of said property at the sum of dollars.' In witness whereof, we the said jurors have hereunto set our hands and seals, this day of , 18 — ." [Signed and sealed hy jurors and hy sJieriff.'] Ko. 587. Uudertaking to Prevent Relinquishment of Levy Upon Property, After Inquisition Iby Sheriff's Jury. (Code Civ. Pro., § 1419.) [Title of cause.] Whereas, a levy has been made by M. N., sheriff of county, under an execution issued to him in the above entitled action, upon certain personal property as the property of the [defendant], and said property has been claimed by [or in behalf of] CD. as his property, and an inquisition has been made by a jury empannelled by the said sheriff, to try the validity of said claim ; and said jurors having found, by their inquisition, that the said prop- erty belongs to the said claimant, and having determined its value at the sum of dollars ; Kow, therefore, we, E. F. , of , merchant, and G. H. , of , banker, do hereby, jointly and severally, under- take, pursuant to statute, that we will indemnify the said C. D. to the amount of dollars ' against all dam- ages, costs and expenses, in an action to be brought against him by the said C. D., his assignee or other representative, ' The value of the property is to be ' Not less than twice the value of the assessed by them if they find the title property, as determined by the jury, in the claimant. (Code Civ. Pro., § and two hundred and fifty dollars in 1419.) addition thereto. (Code Civ. Pro., § ' See as to proceedings upon trial, 1419.) Code Civ. Pro., §108. Executions. 465 by reason of the levy upon, detention or sale of any of the said property by virtue of the said execution. E. F. G. H. In presence of . [Acknowledgment or proof, and Justification of sureties and approval by judge, as in forms Nos. 340, .'JSS.'] No. 588. Affldayit to Move for Substitution of Indemnitors for Sheriff. (Code Civ. Pro., §§ 1421, 1423.) [Title of cause.] County, ss. : I. J., of , being duly sworn, says, that on the day of , 18 — , a judgment was recovered in an action in the Court, in which J. K., was plaintiff and K. L. was defendant, in favor of said plaintiff and against said defendant for dollars. That an execution" was issued to M. N., sheriff of county, upon said judgment, against the property of said defendant. That a levy was made by said sheriff, under said execu- tion, upon certain personal property as the property of the said defendant. That a claim was made by or on behalf of C. D. to said property, and thereafter a jury was empannelled by said sheriff, pursuant to statute, to try the validity of said claim. That by their inquisition the said jurors found that the said property belonged to the said C. D., and determined the value thereof at the sum of dollars. That thereupon an undertaking was given by deponent, pursuant to the provisions of section 1419 of the Code of Civil Procedure, to prevent a relinquishment of said levy by said sheriff, a copy of which undertaking is annexed to this affidavit and marked schedule A. And deponent further says, that the above entitled action ' See Code Civ. Pro., § 812. swer to the case of a warrant of attach- ' This form may also be made to an- ment, by making some slight changes 456 FoEMS Eelating to lias been brought against the said M. N., as sheriff as afore- said, to recover the property so levied upon [or to recover damages by reason of the levy and detention (or sale) of said property]. That annexed to this affidavit are the written consents of E. F. and G. H., the sureties named in said undertaking, to be made defendants in this action [or of G. H., one of the sureties named in said undertaking, to be made defend- ant in this action, and that E. P., the other surety named therein, is dead].' I. J. [Jurat as in form No. 46.] We hereby consent to be made defendants in the above entitled action." Dated , 18—. E. F. G. H. In presence of No. 589. Order Substituting Indemnitors as Defendants in Place of Sheriff. (Code Civ. Pro., § 1431.) [At, etc., as in form No. 80.] [Title of cause.] • On reading and filing the pleadings in this action [and the affidavit of I. J., dated , 18—], by which it ap- pears [the substance of the affidavit (No. 588) may here be therein to meet that case. (See Code tions 1421 to 1425, Code Civ. Pro., are Civ. Pro., §g 658, 659.) not unconstitutional, inasmuch as Ihcy ' Tliis affidavit need not be made, if do not, by authorizing the substitution the facts appear by the pleadings, of the sheriff's indemnitors as defend- (Code Civ. Pro , § 1422.) ants, in his place, take away the in- The plaintifiE cannot object that the jured party's right of action for the sheriff is not made a party to the mo- injury, but merely confine its enforc:- tion, as he does not represent that ment to the real and actual trespassers, official. (Hessberg v. Riley, 16 Week. (See, also, Hessberg v. Riley, supra.) Dig , 231; S. C, 91 N. Y., 377.) ^ The consent must be acknowledged It was held by the Court of Appeals, or proved, and certified in like manner in Hein v. Davidson (19 Week Dig. , as a deed to be recorded in the county. 176; rev'g S. C, 18 id. 381), that sec- For forms, see Nos. 340, 538. EXECTJTIOKS. 457 recited], with the consent, duly acknowledged [or proved] and certified, as required by law, of E. F. and G. H., the sureties in the undertaking given as stated in said [affida- vit], to be made defendants in this action, and it appearing that due service of notice of this motion has been made upon the attorney for each of the parties to this action ; ' and on reading [name opposing papers] ; Now, on motion of T. R., of counsel for I. J., it is hereby- ordered, after hearing, etc. [or no one appearing to oppose], that said E. F. and G. H., be and they are hereby substi- tuted as defendants in this action in place of the said M. N., sheriff as aforesaid [upon the giving by said E. F. and G. H. of (state additional security required), and paying the sum of — dollars to said M. N. as the amount of his reasonable expenses necessarily incurred before this order is granted {or state other terms upon which the order is granted)].' No. 590. Order when Indemnity Related to a Part Only of the Property Levied Upon. (Code Civ. Pro., § 1434.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the pleadings and the affidavit of I. J., in the above entitled action, dated , 18 — , and the consent of E. F. and G. H., the sureties in the imder- taking mentioned in said affidavit, duly acknowledged [or proved] and certified as required by law, to be made de- fendants lierein, as to the part of the property hereinafter mentioned, and it appearing that due notice of this motion ' If the defendant has not appeared, additional security is discretionary, notice must be given to him personally. (Ilessberg v. Riley, 10 Week. Dig., (§ 1433.) 331; S. C, 01 N. Y., 377.) " See section 1433, Code of Civil Pro- See section 1434, Code Civ. Pro., as cedure, and Newhorn v. Bowe (3 to provisions of the order where the Month. L. Bui., 39), as to terms of indemnity relates only to a part of the granting order. Whether the bond property, and see next form, No. 590, will be held insufficient and the in- of order in that case. demnitors be compelled to furnish See, also, note 1 to last form No. 588. 58 - - 458 FoEMS Relating tO has been served upon each of the parties to this action, and on reading [name opposing papers] ; and on motion of M. E,., of counsel for said E. F. and G. H., after hearing, etc. [or no one appearing to oppose] ; It is hereby ordered, that this action be divided into two actions ; that the said E. F. and G. H. be substituted as defendants in tlie one relating to the following described personal property, to wit [describe property], as to which they have become indemnitors, without affecting the other, and that the controversy in each action be limited to that part of the property in respect to which it is to be con- tinued, to wit : in the action against the said E. F. and G. H. to the property above described, and in the other action which is to proceed against the said M. IST., as sheriff, to the balance of the property levied upon by him under the execution [or warrant of attachment] mentioned in said affi- davit. [Add terms imposed as to further security, etc., as in form No. 589.] No. 591. Order where Action is Brought Against the Sheriff and the Indemnitors, etc. (Code Civ. Pro., § 1435.) [At, etc., as in form No. 80.] [Title of cause.] After proper recitals, add as follows : It is hereby or- dered, [*] that the name of said M. N., as said sheriff, be struck out as a defendant in this action [add terms imposed as to further security, etc., as in form No. 589]. [Or from (*), as follows : That E. F. be substituted in this action as a defendant in place of said M. N., sheriff (add terms imposed as to further security, etc., as inform No. 589).] No. 592. Notice by Sheriff to Indemnitors of Commencement of Action. (Code Civ. Pro., § 1437.) [Title of cause.] Sir — Take notice, that an action has been commenced by ExEcuTioifs. 46D C. D. against me, as sheriff of the county of , to recover the property levied upon by me under execution [or warrant of attachment], issued in the above entitled action [or to recover damages for the levy upon and deten- tion (or sale) of the property levied upon, etc. (as above)] ' [or state other object of the action]. Dated , 18—. M. N., Sheriff of County. To E. F. [or G. H. {or other persons upon whom notice may he served)'].'' No. 593. Notice of Sale of Personal Property by Sheriff under Exe- cution. (Code Civ. Pro , § 1439.) Sheriff's Sale. cottnty of , ss. .' By virtue of an execution [or of several executions] issued out of the -, Court of the [State of New York], and to me directed and delivered, I have levied on and taken all the right, title and interest of , of, in and to the following property, to wit [describe property], which I shall expose to sale, at public auction, as the law directs, on the day of , 18—, at o'clock in the noon, at the [state place of sale], in the of , in the said county.' Dated , 18—. M. K, Sheriff of County. ■ Sec Preston v. Yates (24 Hun, 534). ment debtor. So held under the Re- ' Sec § 1427, Code Civ. Pro. vised Statutes, substantially like sec- 5 As to manner of sale of personal tion 1428, Code Civ. Pro. (Chapman property under execution, see section v. Morrill, 19 Hun, 318.) 1438 of Code Civ. Pro. ; see, also, Mor- Signing the notice as "sheriff," where gan V. Holladay (48 Plow. Pr., 8G; 38 the advertisement and sale are made N. Y. Super. Ct., 53, 117), Tugwell v. after the expiration of the sheriff's term Bussing (48 How. Pr., 89; 2 Hun, 100; of office, instead of "late sheriff," is an 4 N. Y. Supr. Ct. [T. & C], 681), Ben- irregularity merely, which does not in- nett V. Cagley (23 Hun, 408). validate the sale. (Van Gelder v. Van The notice need not describe the exe- Gelder, 26 Hun, 356 ) Cutiou, nor give the name of the judg- 460 Forms Relating to Article Third. forms relating to sale, redemption and conveyance of real property, rights and liabilities of persons interested. (Code Civ. Pro., Ch. 13, Tit. 3, Art. 3.) No. 594. Direction to be indorsed on execution issued to county where mort- gaged property is situated, wlicre judgment is for debt secured by mortgage. 593. Notice of sale by sheriff of real estate under execution. 596. Sheriff's certificate of sale of real property. 597. Affidavit to qbtain order to prevent waste. 598. Order to prevent waste. 599. Affidavit to obtain order to show cause why paity should not be punished for violation of the order. 600. Order to show cause why person violating order should not be pun- ished for contempt. 601. Warrant to sheriff. 603. Undertaking to supersede warrant. 603. Order superseding warrant and discharging wrong-doer. 604. Certificate of satisfaction of mortgage under which redemption is made. 605. Certificate of satisfaction of judgment under which redemption is made. 606. Affidavit of amount due on judgment. 607. Verification of assignment of judgment or mortgage. 608. Affidavit of amount due on mortgage. 609. Sheriff's certificate on redemption by judgment debtor, his grantees, etc. 610. Sheriff's certificate of redemption by a junior judgment creditor. 611. Sheriff's certificate of redemption by a senior judgment creditor. 613. Sheriff's certificate on redemption by a mortgagee. 613. Sheriff's deed on sale under execution. No. 594. Direction to he Indorsed on Execution Issued to the County where Mortgaged Property is Situated, where Judgment is for Debt Secured by Mortgage. (Code Civ. Pro., § 1433.) [Title of cause.] To the Sheriff of the County of ■ ^ ,• Levy ■ dollars, with interest thereupon from the day of , 18 — , besides your fees and pound- age, and return this execution within sixty days after the Executions. 461 receipt thereof to tlie clerk of the county of ; but you are not to levy this execution upon the following real property, to wit : all that [insert brief description of prop- erty], which is described in a certain mortgage, executed by C. D. to A. B., dated , 18—, and recorded in the county clerk's office, in book of mortgages No. — , at page — , or any part thereof.' E. F., Attorney for [Office address."] No. 595. Notice of Sale by Sheriflf of Real Estate Under Execution. (Code Civ. Pio,,§ 1434.) Sheriff's Sale. [Title of cause.] By virtue of an execution against the property of , issued out of the Court in the above entitled ac- tion, to me directed and delivered, I, M. N., sheriif of • ' county, shall sell at public auction on the day of ■ , 18—, at ■ o'clock in the noon, at [state place of sale], in the of , in the county of , and state of New York, all the right, title and interest which the said had on the day of , 18 — , or which he may have sub- sequently acquired, in and to that certain lot, etc. [describ- ing property].' Dated , 18—. M. N., Bheriffof Gounty. [By C. R., Deputy.] ' See Delaplaine V. Hitchcock, 6 Hill, the notice is signed by him as "sher- 14. iff " or as " late sheriff. " (Van Gelder 2 See note 3 to form No. 132. v. Van Gelder, 26 Hun, 356.) ' As to description of property, see As to what will constitute sufficient section 143j, ( ode Civ. Pro. ; as to presumptive evidence of the required manner of conducting sale, see section notice of sale having been given, where 1437, id. the validity of the sheriff's deed is It is immaterial, where the property questioned, see Clute v- Emtnerich (21 is advertised and sold by a sheriff, after Hun, 133). Jlis term of ofBce has expired, -whether 462 FoEMS Kelating a'O No. 596. Sheriffs Certificate of Sale of Real Estate. (Code Civ. Pro., § 1438.) [Title of cause.] I, M. N., sheriff of the county of , do certify, that by virtue of an execution in the above entitled action, to me issued and delivered, by which I was commanded to satisfy a judgment rendered in the above entitled action, in favor of the said A. B. and against the said C. D., on the ^ay of , 18—, for dollars and cents, and upon which was actually due the sum of dol- lars and cents, with interest thereupon from the day of , 18—, out of the personal property of the said C. D., and if sutBcient personal property could not be found then out of the real property in the said county of belonging to the said C. D., on the day of , 18—, the day on Avhich the said judgment was docketed in the said county, or at any time thereafter, I have this day sold at public auction, according to the stat- ute in such case made and provided, having previously given public notice of the time and place of sale of the same, according to law, [*] to G. H., who was the highest bidder, for the sum of dollars, which was paid by him therefor, and was the whole consideration money paid, all the right, title and interest of the said C. D., on the day of , 18 — , or at any time thereafter, of, in and to the real estate described in the annexed notice [or in and to the real estate described as follows (insert description)]. Given under my hand, the day , 18 — .' M. K., Sheriff of tlie County of . [Acknowledgment as in form No. 340.] If the sale was made in parcels, proceed as in above form to the [*], and from thence as follows : All the right, title and interest of the said C. D., on the day of ■, 18 — , or at any time thereafter, of, in and to the real estate described in the annexed notice \or in and to the real estate described as follows (insert description)], the whole consid- eration paid therefor being the sum of dollars. " ; — ■ ' ' A failure of tlie slieriff to deliver order vacating tbe sale. (O'Brien v. tbe certificate does not authorize an Hashagen, 20 Hun, 564.) Executions. 463 That said sale was made in parcels as follows : The parcel described as follows [insert description] to E. F., the price bid by him therefor being the sum of dollars. The parcel described, etc., to G. H., the price, etc. [and so on in regard to each parcel sold]. Given, etc. [as above to end]. [Signature as above.] No. 597. Affldavit to Obtain Order to Prevent Waste. (Code Civ. Pro., § 1443.) [Title of cause.] County, ss.: A. B. , of , being duly sworn, says, that on the day of , 18 — , deponent became the pur- purchaser of certain real estate, situated in the county of , upon a sale made under an execution issued against the property of C. D., upon a judgment rendered against him in the Court on the day of , 18—, in favor of E. F. ; and deponent received from the sheriff of — county, who made such sale upon said execution, the usual certificate thereof, a copy of which certificate containing a description of said premises is hereto annexed marked "A ; " that the said C. D. is still in the possession of the said premises so sold, the period allowed for the redemption thereof not having yet expired, and has, since the time of the sale to this deponent, com- mitted waste thereon [or has threatened {or made prepara- tion) to commit waste thereon] ; that is to say [here state, if waste has been committed, what the particular acts of waste are, or state particularly what threats or pi-epara- tions have been made] ; and this deponent desires that an order be granted restraining the said C. D. from the com- mission of any [further] waste upon the said premises." A. B. [Jurat as in form No. 46.] ' As to wliat acts may be done by mitting waste, see section 1441, Code the person entitled to the possession, Civ. Pro, without being chargeable with com- 464 Forms RELATiwa to •No. 598. Order to Prevent Waste. (Code Civ. Pro., § 1442.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] It having appeared satisfactorily to this court [or to me], by the affidavit of A. B., dated , 18—, that C. D., the person in possession of the property described in a cer- tificate of sale, a copy of which is annexed to said affidavit, executed to said A. B. by I. J., the sheriff of county, upon a sale made by him of said property, under an execution issued to him upon a judgment rendered by the court in favor of E. F. and against [said C. D.], has committed waste [or has threatened {or made prepara- tions) to commit waste] upon said property : It is hereby ordered and directed [or I do hereby order and direct], upon the application of M. N., counsel for said A. B., that the said C. D. and his servants, agents and em- ployees be and they are hereby prohibited from [specify acts particularly prohibited], and from the commission of any other acts of waste upon the said property. Date [of judge's order]. A. 0., Justice of Supreme Court [or County Judge '] {when made hy judge). No. 599. Affidavit to Obtain Order to Show Cause why Party Should not be Punished for Yiolation of the Order. (Code Civ. Pro., § 1443.) [Title of cause.] CotrNTT, ss. : A. B., of , being duly sworn, says, that C. D., named in the order of this court [or of Hon. A. O. (a), judge {or justice) of the Court, or county judge of 1 The order may be made by the Su- county judge of the county in -which preme Court, or any justice thereof, the property or any part thereof is ■within the judicial district, or the situated. (Code Civ. Pro-, § 1443.) Executions. 466 county], dated , 18 — , a copy of which, is hereto annexed, and which order, with a copy of the affidavit upon which it was granted, has been duly served upon liim, as will appear from the affidavit annexed, has committed waste in violation of said order, and since the service upon him of such order and copy affidavit, to wit, the said C. D. has [here state the acts complained of] ; and deponent asks the court [or asks your honor] to grant an order requiring him to show cause, at a time and place therein specified, why he should not be punished for a contempt. A. B. [Jurat as in form No. 46.] No. 600. Order to Show Cause why Person Yiolating Order Should not he Punished for Contempt. (Code Civ. Pro., § 1443.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] It satisfactorily appearing thatC. D. has, in violation of the order of [this] court [or of Hon. A. O., a justice of this court {or county judge of county)], dated , 18 — , committed waste upon the premises described in the certificate of sale, executed and delivered to A. B. by the sheriff of the county of , dated , 18 — , after the service upon him of the said order, with a copy of the affidavit upon which it was granted ; It is hereby ordered, that the said C. D. show cause at, etc., on, etc. [before me], why he should not be punished for contempt].' Dated , 18 — [when made by judge]. ' • A. O., Justice of iJie Supreme Court [or County Judge'] {when made hy judge). ' As to orders to show cause, see note 1, p. 380, to form No. 503, and notes therein referred to. 59 466 Forms Kelating to No. 601. Warrant to Sheriff. (Code Civ. Pro., § 1444.) The People of the State of New York, to the Sheriff of the County of ; Whereas, heretofore, to wit : on the — day of , 18 — , an order was made at, etc. [or by Hon. A. O., (a) justice of the Supreme Court {or county judge of county)], whereby C. D. was restrained and prohibited from the com- mission of waste on the premises described in a certificate of sale, made and delivered to A. B. by the sheriff of — -~ — county,, dated , 18 — ; and, Whereas, the said C. D., in violation of said order, com- mitted waste upon the said premises after the service upon him of the said order, with a copy of the affidavit upon which it Avas granted [to wit : the said C. D. did (here state the acts in violation of the order)] ; ' Kow, therefore, by virtue of the statute in that case made, you are commanded, and strictly enjoined, to commit the said C. D. to close confinement, and without allowing him the liberties of the jail, for the term of ." Gfiven under my hand this day of , 18 — . A. O. , Justice of the Supreme Court [or County Judge\. No. 602. Undertaking to Supersede Warrant. (Code Civ. Pro., §1445.) [Title of cause.] Whereas, a warrant was heretofore issued by the Hon. A. 0., a justice of the Supreme Court [or county judge of county], upon the application of A. B., to the ' The old statute (2 E. S., 337, §37), the warrant contained the words in from which, and section 28, this section brackets, but it is not considered ncces- (§ 1444) is substantially taken, pro- sary, although it may be safer under vided that the warrant should recite the present phraseology to insert them, the order and the "proof of the viola- ' Not more than a year. (Code Civ, tion thereof." Ufider this provision. Pro , § 1444.) ExECTJTioisrs. 467 sheriff of tlie county of , in the above entitled ac- tion, commanding the said sheriff to commit C. D. to close confinement for the term of ; Now, therefore, pursuant to the provisions of section 1445 of the Code of Civil Procedure, I, E. F.,' of do hereby undertake, in the sum of dollars, tliat the said C. D. will pay any judgment which the said A. B., or his assignee or otlier representative, may recover against him by reason of any waste heretofore or hereafter com- mitted upon Ihe property described in a certificate of sale, executed and delivered by the sheriff of • county to said A. B., dated , 18—, and recorded in county clerk's office on the day of , 18 — , in book [describing it], at page — ." Dated , 18—. E. F. In presence of . [Acknowledgment and affidavit of justification, and ap- proval as in form 'No. 340. J [For proof by subscribing witness, see form No. 538.] No. 603. Order Superceding Warrant and Discharging Wrong-doer. (Code Civ. Pro., § 1445.) [At, etc. (as in form No. 80, when made by court).] [Title of cause.] It appearing by the affidavit of A. E., dated — ■, 18 — , that C. J), has executed to A. B. the undertaking re- quired by section 1445 of the Code of Civil Procedure, and due notice of this motion having been given to said A. B. ; and on reading [name opposing papers] ; Now, on motion of E. G., counsel for said C. D., after hearing O. F., counsel for said A. B. [or no one appearing to oppose] ; ' There need be but one surety, as See, as to undertakings generallj'', the statute does not expressly require notes to forms Nos 340, 341. two. (Code Civ. Pro,, §811.) ^ See section 1430, Code Civ. Pro., as to recording ecrtificate. 468 Forms Kelating to It is hereby ordered [or I do hereby order], that the war- rant heretofore issued in the above entitled action to the sheriff of tlie county of , upon the application of said A. B., commanding him to commit the said C. D. to close confinement for the term of , be superseded, and the said C. D. discharged, upon the said C. D. paying to the said A. B. the sum of dollars for the costs and expenses of the proceedings, in which said warrant was obtained. Date [of judge's order]. A. O., Justice of the Supreme Court \pr County Judge\ {wlien made by judge). No. 604. Certificate of Satisfaction of Mortgage under which Re- demption is Made. (Code Civ. Pro., § 1463.) I, A. B., do hereby certify, that a certain mortgage made by C. D., to me [or to E. F.], dated on the day of , 18, and recorded in the county clerk's office on the day of , 18—, in book No. — of mortgages, at page — , upon which is due the sum of dollars and cents, is satisfied in full [or to the amount of dollars and cents], by the redemption made thereunder by me, from a sale made by the sheriff of county, under an execution issued to him against the property of the said C. D., of the premi- ses described therein [or of a part of the premises therein mentioned, described as follows (describing the part)], the certificate of which sale is dated , 18 — , and recorded in" county clerk's office, in book [describing it], at page — , on the day of , 18—. Dated , 18—. A. B. In presence of , [Acknowledgment as in form No. 340, or proof as in form No. 538.] Executions 469 No. 605. Certificate of Satisfaction of Judgment under which Re- demption is Made. (Code Civ. Pro., § 1463.) [Title of cause.] I, A. B., do hereby certify, that a certain judgment ren- dered in the above entitled action in favor of the [plaintiff] and against the [defendant], for the sum of dollars and .cents [of which I am now the owner], and en- tered in Albany county clerk's office on the day of , 18 — , upon which is due the sum of dollars and cents, is satisfied in full \or to the amount of dollars and cents] by the re- demption made thereunder by me, from a sale made under an execution against the jjroperty of said [defendant] by the sheriif of county of certain premises situated in said county, described in a certificate of sale, recorded in county clerk's office, in book [describing it], at page — , on the day of , 18—.' Dated , 18—. A. B. In presence of . [Acknowledgement or proof as in forms Nos. 340, 538.] No. 606. Affldayit of Amount due on Judgment. (Code Civ. Pro., § 1464.) County, ss.: A. B., of -^ being duly sworn, says, that he is the owner and holder [as executor, etc.]," of the judgment men- tioned in the foregoing \or annexed] copy of docket of judg- ment \or that he is the attorney {or agent) of C. D., the owner and holder of, etc., who is seeking to redeem certain premises from a sale under execution],' and that there re- ' See Section 1439, Code Civ. Pro. expressly svrorn to, tliat deponent is ^ See note 1 to form No 608. such attorney or agent. {Ek parte ' It is not suflScient, in tlie affidavit, Sliumway, 4 Denio, 258.) to name the deponent as the attorney The attorney of record, as such, is or agent of the creditor. It must be not authorized to make the affidavit. 470 FOEMS RELATING TO mains unpaid to this deponent [or to said C. D.J this day, on said judgment, the sum of dollars and cents. [That the reasons for deponent's knowledge that said amount is due, are as follows (state same).'] A. B, [Jurat as in form No. 46. J No. 607. Yerification of Assignment of Judgment or. Mortgage. (Code Civ. Pro., § 14C4, subd. 3.) County, ss. : A. B., of , being duly sworn, says, [*] that he is the owner [as executor, etc.], of the judgment [or mortgage] described in the foregoing assignment ; that he was present and saw C. D., whose name is subscribed thereto, execute the said assignment [or that he is acquainted with the hand- writing of C. D., whose name is subscribed to the foregoing assignment, and knows the signature to said assignment, to be in the genuine hand-writing of said C. D.J, and that the same was duly delivered to him by said C. D. A. B. [Jurat as in form No. 46. J « [Or, if made by a witness,' as above to (*')j and from thence as follows : That he was present when the foregoing assignment of judgment [or mortgage] was executed by C. D. to A. B., and saw said C. D., whom he knew to be the person described in and who executed said assignment, execute and deliver the same.' [Jurat as in form No. 46.] A. B. It must be made by the creditor, or assignee, or by a ■witness thereto. The by the attorney or agent employed in assignment, it of a judgment, may also making the redemption. (Id.) But bo acknowledged or proved, or if filed see this decision questioned in People and entered as prescribed in section V. Ransom (3 N. Y.. 490). 1370, a certiSed copy must bo filed or ' It seems that if the affidavit is made delivered (Code Civ. Pro. , § 1464, subd. by an agent or attorney, it should dis- 2) ; or, if of a recorded mortgage, a cer- close the reasons for his knowledge of tifled copy of the record must be filed the amount due. (Ex pa/rU The Bank or delivered. (Id., | 1465, subd. 2.) of Monroe, 7 Hill, 177.) ' "When there is no subscribing wit- 2 The affidavit may be made by the ness, any person who actually saw the Executions. 471 No. 608. Ailidayit of Amount due on Mortgage. (Code Civ. Pro., § 1465.) COTJNTT, 55.,- A. B., of , being duly sworn, says, that he is the owner and holder [as executor, etc.],' of the mortgage of which the foregoing \or annexed] is a copy \or that he is tJie attorney {or agent) of C. D., the owner and holder of the mortgage, etc., Avho is seeking to redeem the premi- ses {or a part of the premises), described in the mortgage (of which the annexed is a copy), from a sale under execu- tion], and that there remains unpaid to this deponent \or to said C. D.] this day, upon the said mortgage, the sum of dollars and cents. [That the reasons for deponent's knowledge that said amount is due, areas follows (state same).'] A. B. [Jurat as in form No. 46.] ISTo. 609, Sheriflfs Certificate on Redemption by Judgment Debtor, his Grantees, etc. (Code Civ. Pro., § 1468.) COTJNTY OF , SS. : I, M. N., the sheriff of said county, hereby certify, that on the day of , 18 — , A. B., in due form of law, tendered to me the sum of — dollars, being the instrument executed is a witness to it ment creditor upon redemption from ■within the meaning of the statute, a sale to another judgment creditor (People V. Fleming, 4 Denio, 137, 143.) under his judgment, see Youmans v. When the judgment is in favor of Terry (32 Hun, 624.) the person applying to redeem, as sur- ' See section 1150, Code Civ. Pro. vivor of a firm, he is not required to If the ownership is as executor or show any assignment to himself or to administrator, the creditor must file or prove his identity. (Nehrboss v. Bliss, deliver, with the other papers, a cer- 88 N. Y., 600.) tifled or sworn copy of his letters test- For form of proof by subscribing amentary or of administration. (Id., ■witness, see form No. 538. §1466.) As to amount to be paid by a judg- * See note 1, p, 470, to form No. 606. 472 Forms Relating to amount stated by liim to have been bid by the purchaser, on the sale by me of the premises hereinafter mentioned, under and by virtue of an execution issued out of the Su- preme Court of this State [or describe other court] against the said A. B. [or against one C. D.J in favor of E. F., on the day of , 18 — , with interest thereon j and the said A. B., then and there, claimed the right to re- deem the said premises as the judgment debtor [or the grantee {or heir, or devisee) of the judgment debtor] ; and that thereupon I received the money so tendered as afore- said, and have granted to said A. B. this, my certificate, in conformity to the statute in such case made and provided. The premises so redeemed, or intended to be redeemed, are described in the certificate of the sale thereof, as follows [insert description]. In witness whereof, I have hereunto set my hand, this day of , 18 — . A. B., Sheriff of County. [Acknowledgment or proof as in forms Nos. 340, 538.'] No. 610. Sheriff's Certificate of Redemption by a Junior Judgment Creditor. (Code Civ. Pro., § 1469.) County of , ss.: I certify that on the day of , 18 — [at the sheriff's office of said county],' A. B. tendered to me the sum of ," and also presented to me a copy of the docket of a judgment in his favor [or in favor of E. F.J against C. D., rendered in the Supreme Court of this State [or name other ' Th'j recording of tlie certificate in ton v. Arnoux, 56 N. Y., 507; afC'g S. tlie cor/ity wliere property is situated, C, 15 Abb. [N. S.], 158.) has the same eilect as in tie /jase of a ' Tliese words are to be inserted, conveyance. (Code Civ. Pro., § 1470.) when the redemption is made on or A receipt given by a sheriff, stating after the last day of the fifteen months, all the facts necessary to show a re- (Code Civ. Pro.. § 1455: Morss v.Pur- demption, although notformally stated vis, 3 Hun, 542; Gilchrist v. Comfort, to be a certificate, is a substantial com- 34 N. Y., S85.) pliancc with the statute. So held under ^ See Xoumans v. Terry (3a Hun, chapter410of Lawsof 1847, (Livings- 634.) Executions. 473 court], on the day of , 18—, certified by the county clerk of the county of , under his seal [together with an assignment of said judgment to said A. B. {or to Gr. H.), verified by his afiidavit (or state other mode of proof), and a certified [or sworn) copy of the let- ters of administration [or letters testamentary) issued to him upon the estate {or will) of said Gr. H.'] ; also an affi- davit of the said A. B., showing the amount remaining unpaid upon said judgment at the time of claiming the right to redeem, and also delivered to me a certificate of satisfaction executed by him [as such executor {or admin- istrator)], stating that said judgment was satisfied in full \or to the amount of dollars] by said redemption," and thereupon said A. B. claimed the right [by reason of his being such executor or administrator] to redeem, as a judgment creditor, [*] certain premises sold by me under and by virtue of an execution issued upon a judgment of the Court, in favor of I. J. and against K. L., on the day of , 18 — , and which premises are described in the certificate of sale as follows [describe premises]. Whereupon I received the moneys so tendered, and the papers so presented to me, by the said A. B., and have granted to him this, my certificate, in conformity to the statute in such case made and provided. In witness whereof, I have hereunto set my hand, this day of , 18 — . M. K, Sheriff of County. [Acknowledgment or proof as in forms Nos. 340, 538.] No. 611. Sheriff's Certificate of Redemption Iby a Senior Judgment Creditor. (Code Civ. Pro., §1469) County of , ss.: I certify that on the day of , 18— [at » See section 1466, Code Civ, Pro, « gee section 1463, Code Civ. Pro, 60 474 Forms Delating to the sherifi's office of said county],' A. B. presented to me a copy of the docket of a judgment, in his favor [or in favor of E. F.], against C. J)., rendered in the Supreme Court of this State [or name other court], on the day of , 18 — , certified by tlie clerk of ■ county, under his seal [and also an assignment of said judgment to said A. B., verified by his affidavit {or state other manner of proof)] ; also his affidavit [or an affidavit of R. I., pur- porting to be the agent {or attorney) of said A. B.J stating the sum remaining unpaid on said judgment at the time of claiming the right to redeem, and also delivered to me a certificate of satisfaction executed by him, stating that said judgment was satisfied in full [or to the amount of ] by said redemption, and thereupon said A. B. claimed the right to redeem, as a senior judgment creditor, certain premises sold by me under and by virtue of an execution issued upon a certain judgment of the [Supreme Court] of this State in favor of E. F. against Gr. H., on the day of , IS — , and vs^hioli premises are described in the certificate of sale, as follovps [describe property]. • Whereupon I received the papers so presented to me by the said A. B., and have granted to him this my certificate, etc. [as in form No. 610 to end. No. 012. Certificate of Redemption I y a Mortgagee. (Code Civ. Pro., § 14C0.) County of , ss.: I certify that on the day of , 18 — [a;t the sheriff's office of said county],'' A. B. tendered to me the sum of dollars, and also presented to me a copy of a mortgage, certified by the clerk [or register] of the said county, wrhere the same is recorded [together with a copy of an assignment thereof to E. F., verified by his affidavit (or state other mode of proof), and a certified {or sworn) ' See note 2, p. 472, to form No 610. made by assignee or by executor, etc., For statements ■where redemption is see last form No. 610, and note 1. 2 See note 3, jf. 473, to form No. CIO. Executions. 475 copy of the letters of administration (or letters testament- ary) upon the estate {or will) of said E. F.J,' and an affidavit of said A. B. [or of E. D., attorney {or agent) for said A. B.J stating the sum remaining unpaid on the said mortgage at the time of claiming the right to redeem, and also delivered to me a certificate of satisfaction executed by him [as such administrator of, etc., of said E. F. {or as executor of, etc., of said E. F.)J stating that said mortgage was satisfied in full [or to the amount of dollarsj by said redemp- tion," and thereupon said A. B., as a mortgage creditor [by reason of his being such executor {or administrator) of, etc., of said E. F.J, claimed the right to redeem, etc. [Conclude as in form No. 610 from (*)]. No. 613. SherilF's Deed on Sale under Execution. (Code Civ. Pro., § 1471.) This indenture, made this day of ■ , 18—, between M. N., sheriff [or late sheriff] of the county of , of the first part, and I. J., of , of the second part. Whereas, by virtue of a certain execution directed and delivered to the said sheriff, commanding him to satisfy a judgment rendered by the Supreme Court in the action, in the said >writ mentioned, in favor of A. B. and against C. D., on the ■ day of , 18 — , out of the personal property of the said C. D., and if sufficient personal prop- erty could not be found then out of the real property in the said county of belonging to the said C. D., on the day of , 18 — , the day on which the said judgment was docketed in the said county, or at any time thereafter, the said [latej sheriff did, in obedience to the com- mand of said execution, levy on and seize all the estate, right, title and interest which the said C. D. so had, of, in and to the premises hereinafter described, and on the day of , 18—, sold the said i^remises at public auction at , in the city [or townj of , in the county > See section HOG, Code Civ. Pro. ' See section 1463, Code Civ. Pro, 476 FoEMS Relating to • of , having previously given public notice of the time and place of such sale by causing a notice thereof to be published in a newspaper published in said county once in each of the six weeks immediately preceding said sale, and by conspicuously fastening up, at least forty-two days before the said day, in three public places in the said town [or city] where the said sale was to take place, and also in three public places in the town [or city] where said property is situated, a printed notice thereof ; and whereas, at such sale, the said premises were struck off to said I. J. [or to E. F.] for the sum of dollars, he being the high- est bidder therefor, and that being the highest sum bidden for the same ; and whereas, the said premises, after the expiration of fifteen months from the time of said sale, re- mained unredeemed [or and whereas, the said premises, after the expiration of one year from the time of said sale, remained unredeemed by any person entitled to make such redemption within that time ; and Avhereas, the said I. J., a creditor of the said C. D., having in his own name {or as assignee, or as executor, etc. ) a judgment against the said C. D., rendered before the exj)iration of fifteen months from the time of said sale {or having a mortgage duly recorded), which was a lien upon the said premises sold, has redeemed the said premises within the time and in the manner and form j)rescribed by the statute in such case made and pro- vided, and more than twenty -four hours having elapsed since the time of the said redemption, and no other creditor of the said C. D. has redeemed from the said I. J.] : Now, this indenture witnesseth that the said party of the first part, by virtiie of the said writ and in pursuance of the statute in such case made and provided, and in considera- tion of the sum of money so bidden, as aforesaid, to him duly paid, hath sold, and by these presents doth grant and convey, unto the said party of the second part, all the estate, right, title and interest which the said C. D. had on the ■ day of , IS — , or at any time thereafter, of, in and to all [describing premises sold] : To have and to hold the said above mentioned and de- scribed premises unto the said party of the second part, his heirs and assigns, forever, as fully and a§ absolutely aa Executions. 477 the said party of the first part as [late] sheriff, as aforesaid, can convey by virtue of the said v^rit and the laws relating thereto. In witness whereof, the said [late] sheriff has set his hand and seal hereto, the day and year first above written.' M. K, Sheriff. [l. s.] [By A. H., Deputy.] Signed, sealed and delivered in the presence of [Certificate of acknowledgment or proof as in forms JSTos. 340, 538.] Article Fourth. FORMS RELATING TO REMEDIES FOR FAILURE OF TITLE, AND TO ENFORCE CONTRIBUTION. (Code Civ. Pro, Ch. 13, Tit. 3, Art. 4.) No. 014. Complaint in action to recover purchase money when purchaser is evicted. 615. Complaint in action for contribution by one of two or more judg- ment debtors. 616. Complaint in action for contribution by heir, devisee, etc., of joint judgment debtor, who has redeemed from sale. 617. Affidavit by joint judgment creditor or redeeming creditor to pre- serve lien of judgment. 618. Notice to county clerk. 619. Affidavit by heir, etc., of judgment debtor, who has redeemed a portion of premises sold to preserve lien. 620. Entry by clerk upon docket to preserve lien. No. 614. Complaint in Action to Recover Purchase Money, when Purchaser is Evicted. (Code Civ. Pro., § 1479.) [Title of cause.] The complaint of the above named plaintiff respectfully ' As to -whom conveyance is to be executed to, see Code Civil Procedure, . sections 1473, 1473, 1474. 478 Forms Relating to shows, that heretofore, and on or about the — day of , 18—, he became the purchaser at a sheriif's sale, made by M. N"., the sheriff of county, under an exe- cution issued out of the Court, and delivered to said sheriff against the property of Gr. H., in the suit in said court of E. P., plaintiff, against Gr. H., defendant, of premi- ses described as follows [insert description]. That he paid the amount of the purchase money bid by him upon such sale to said sheriff, to Avit, the sum of dollars, and received therefor, from said sheriff, a certificate of such sale, to him duly made, subscribed and acknowledged by said sheriff as required by law, and dated on the day of , 18 — . That on the day of , 18 — , the said sheriff executed and duly acknowledged, and delivered to him, a conveyance, dated on that day, of said premises, no re- demption having been made by the owner of said premises, or any creditor, or any other person. That he entered into possession of said premises under said deed . That on or about the day of , 18^-, a judgment was rendered against him in favor of I. J., for the recovery of said premises, and on the day of , 18 — , he was evicted from said premises, under an execution issued upon said judgment which was recov- ered in a suit brought in the Court by said I. J. against him, in which a recovery of said premises was ob- tained on the ground, and in consequence of, irregularity in the proceedings concerning such sale \or in consequence of the said judgment upon which said execution, under which said sale was made, was issued, being vacated {or re- versed, or set aside for irregularity {or for error in fact)]. That the said defendant, C. D., had due notice of the commencement of said suit by I. J., from the plaintiff. That the defendant, C. D., herein, was [the owner of the judgment in said action, in which said first-mentioned exe- cution was issued, and] the person for whose benefit the said property was sold as aforesaid. Wherefore the plaintiff asks judgment, that he recover from the defendant the sum of , being the said pur- Executions. 479 chase money of said premises, with interest thereupon from the time of said sale, and the costs of this action. M. L., Attorney for Plaintiff . [Office address.'] [Verification as in forms Nos. 151, etc ] No. 615. Complaint in Action for Contribution by One of Two or More Judgment Debtors. (Code Civ. Pro., §1481.) [Title of cause.] Tlie complaint of the above named plaintiflE respectfully shows, that on the day of , 18 — , a Judg- ment was rendered in the Court, in favor of F. E,., against [f] said plaintiff and the defendant, C. D., for the sum of dollars ; the judgment roll whereupon was duly filed in the clerk's office of the county of , and which was duly docketed in the county clerk's office of the county of on the ^ — day of , 18—.' That execution against the property of said defendants was issued thereupon to the sheriff of the county of , and was by him levied upon certain real property, situated in the county of , which belonged solely to the plaintiff and no part thereof to the defendant, C. D. That said property was sold on the day of , 18—, by said sheriff according to law, and the whole \or a portion] of said judgment was, by said sale, collected out of the said real property of the plaintiff, the amount so col- lected being with interest and sheriff's tees accrued upon said Judgment and execution the sum of dollars. And the plaintiff further shows, that said [*] plaintiff and his said property was liable to contribute but the [one-half] part of said Judgment, and said defendant, C. D., was liable for the remaining [one-half] part of said Judgment. That said defendant, C. D., is [or was, at or since the time ' See note 3, p. 94, to form No 134. upon the real property against wliicb = State the facts as to docltetiDg, so it is sought to enforce it. as to show the judgment to be a lien 480 FoEMS Kelating to of the recovery of said judgment and docketing thereof in the county of , as aforesaid] the owner of certain real estate, situated in the county of , upon which said judgment is a lien, and which real estate is liable to satisfy the said judgment. That the said real estate [here state facts as to the situa- tion of property and title thereto, showing how the re- spective parcels are liable under section 1483 of Code Civ. Pro.] Wherefore the said plaintiff asks judgment, that said real property of the said C. D. may contribute, in the manner prescribed by law, the [one-half] part of said amount col- lected out of the real property of said plaintiff as aforesaid, to wit : the sum of dollars, with interest thereupon from the day of , 18—, and (hat plaintiff may have judgment therefor, and for the enforcement of the said contribution, in the manner prescribed by law and by the statute in such case made and provided ; and that the court will permit the plaintiff to use the said original judgment, and to collect, by an execution issued thereupon, out of any real property subject to the lien thereof, the sum which ought to be contributed by that property, and that the plaintiff may have such other or further relief in the premises as may be just and proper, together with the costs of this action. A. B., Attorney for Plaintiff. [Office address.'] [Verification as in forms Nos. 151, etc.] No. 616. Complaint in Action for Contribution by Heir, Devisee, etc., of Joint Judgment Debtor, who has Redeemed from Sale. (Code Civ. Pro , § 1488.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that on the day of , 18 — , a judg- ment was rendered in the Court in favor of T. R. 1 See note 3, p. 94, to form No. 134. Executions. 481 [plaintiff], and against A. B. [defendant], for the sum of dollars, and that [the judgment roll upon said judgment was duly filed and] said judgment was duly docketed in the county of , on the day of , 18-. That an execution was issued upon said judgment against the property of the said [defendant] to the sheriff of the county of , and that the said sheriff, by virtue of said execution, levied upon and sold, in one parcel, certain real property belonging to the said A. B., situated in the county of . That after such sale, and on or about the day of 18 — , the said A. B. died intestate, leaving him sur- viving the said plaintiff, and the defendant, F. G. his [state relationship], and only heirs-at-law, and that, as such heirs- at-law, the plaintiff became the owner of the undivided [one-half] part of said premises so sold, and the defendant, F. G., became the owner of the remaining undivided [one- half] part of said premises [or having duly made and pub- lished his last will and testament which he left unrevoked and in full force at his death, and by which he gave and devised to the plaintiff and said F. G. respectively, portions of said real proj)erty so sold ; or that after the recovery of said judgment, and on or about the : day of , 18 — , the said A. B. sold and conveyed to the plaintiff and the defendant, F. G., respectively, portions of the said real estate so sold by said sheriff, in fee simple]. And plaintiff further shows, that, after said sale, and on or about the day of , 18—, he, as such heir- at-law [or grantee, or devisee] of said A. B., duly redeemed the said premises so sold by said sheriff, [of] which the plaintiff was the owner of a portion [or was interested in] as aforesaid, from said sale, and that the amount paid by him for the purpose of said redemption was the sum of dollars, being the amount paid upon said sale by the pur- chaser, with interest thereupon from the day of such sale, at the rate of ten per centum a year. That the said defendant, F. G., as the owner of the said portion of [or interest in] said premises, is liable to con- tribute, and pay, towards the amount so paid in redemption 482 Forms Relating to by the plaintiff as aforesaid the [one-half], part thereof, to wit, the sum of dollars, with interest thereupon from the day of , 18 — . [Add prayer for relief, substantially as in form No. 615.] M. R., Plaintiff^ s Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] No. 617. Affldavit by Joint Judgment Debtor to PreserTe Lien of Judgment. (Code Civ. Pro., § 1485.) County, ss. : A. B., of , being duly sworn, says, that on the day of , 18 — , a judgment was recovered in an action in the [Supreme] Court, in which E. P. was plaintiff, and deponent and Gr. H. were defendants, in favor of said plaintiff and against said defendants for the sum of dollars, and the judgment roll thereupon was filed and said judgment docketed on that day in the county clerk's office [and s;iid judgment was also duly docketed in the county clerk's office on the day of ; 18— ]• That on or about the day of. , 18 — , an execution was issued to the sheriff of county, upon said judgment, against the property of the said defendants, and that under said execution the said sheriff levied upon and sold real property of deponent to I. J. for the sum of dollars. That the real property of said defendant, Gr. H., situated in the county of , is liable to contribute the [one- half] j)art of the amount paid and collected out of the real property of deponent, as aforesaid, to wit : the sum of ■ , with interest thereupon from the — — - — day of , 18 — , and deponent claims to use the said judg- ment for the reimbursement to him of the said sum." A. B. [Jurat as in form No. 46.] ' See note 8, p. 94, to form No. 134. "^ See note 2 to form No. 630. Executions. 483 No. 618. Notice to County Clerk. (Code Civ. Pro., § 1485.) To the County Cleric of the County of - You are hereby required to make the following entry upon the docket of the judgment mentioned and described in the foregoing affidavit of A. B., to wit: an entry stating the sum paid and collected as therein stated, out of the real property of said A. B., for the reimbursement of which said A. B. claims to use said judgment, to wit : the sum of dollars, with interest thereupon from the day of , 18 — , and that the said judgment is claimed to be a lien to that amount.' Dated ' , 18—. Yours, etc., A. B. No. 619. Affldayit by Heir, etc., of Judgment Debtor who has Re- deemed Premises Sold to Preserve Lien. (CodeCiv. Pro., § 1485.) County, ss. : X. B., of -■ , being duly sworn, says, that on the day of , 18 — , a judgment was recovered in an action in the [Supreme] Court, in which E. F. was plaintiff and I. J. was defendant, in favor of the [plaintiff] and against the [defendant] for the sum of dollars, the judgment roll whereupon was duly filed, and said judgment duly docketed, in the county clerk's office on that day [and said judgment was also duly dock- eted in. the county clerk's ofiice on the day of , 18 — ], That on or about the day of , 18—, an execution was issued upon said judgment against the prop- erty of the said defendant to the sheriff of the county of , and on the day of , 18—, the > See note 2 to form No. 620, and see that form for entry to be made - _ upon docket. 484 FoKMS Relating to said sheriff levied upon and sold certain real property under said execution belonging to the said defendant, situated in the said county of , for the sum of dollars. That afterwards said I. J. died [intestate], leaving this deponent and K. L. his heirs-at-law [or state other means of succession], and that said A. B. and K. L. became the owners respectively of the equal, undivided [one half] part [or of different portions] of said real estate so sold by said sheriff as such heirs-at-law [or devisees, etc.]. That on the day of , 18—, said deponent redeemed the said premises so sold from said sale, the amount paid by him upon said redemption being the sum of dollars. That the real estate of said K. L., situated in the county of , is liable to contribute the [one-half] part of the amount so paid by deponent to redeem said property as aforesaid, to wit : the sum of dollars, with interest thereupon from the day of , 18—, and de- ponent claims to use the said judgment for the 'reimburse- ment to him of the said sum.' A. B. [Jurat as in form No. 46.] [Notice to clerk same as form No. 618.] No. 620. Entry by Clerk upon Docket to Preserve lien. (Code Civ. Pro., § 1486.) This judgment is claimed to be a lien to the amount of dollars, the sum paid by A. B. in redemption [or collected from real estate of A. B. on execution], and for which reimbursement is claimed by him, by [his] affidavit and notice filed , 18 — ." Dated ^ , 18—. J. L., Clerk. ' See note 2 to form No. 630. notice must be filed willi and a similar ' Where it is desired to preserve the entry made by the clerk of each county. lien upon properly situated in two or (Code Civ. Pro., § 148G.) more counties, a similar affidavit and Actions to Recover Real Peojpeety. 485 CHAPTER XIY. FORMS RELATING TO SPECIAL PROVISIONS OF CODE OF CIVIL PROCEDURE REGULATING ACTIONS RELATING TO PROP- ERTY. TITLE I. Forms relatiDg to actions relating to real property. TITLE II. Forms relating to actions relating to chattels. TITLE I. Article First. forms relating to actions to recover re.vl property. (Code Civ. Pro , Ch. 14, Tit. 1, Art. 1.) No. 621. Complaint in action for the recovery of real property (No. 1). 633. Same (No. 2). 623. Same (No 3). 634. Complaint for recovery of real estate by grantee in the name of his grantor of land held adversely. 625. Complaint for recovery of real property held under lease in fee, ■when right of entry is reserved for want of distress. 636. Notice of intention to reenter 637. Notice of motion for restoration to possession. 638. AfHdavit on application to the court for delivery of property. 639. Order directing delivery of property. 630. AfBdavit on motion for order directing plaintiff's attorney to pro- duce his authority. 631. Order requiring plaintiff's attorney to produce evidence of his authority to commence action. 633. Evidence of attorney's authority to commence action for recovery of real property. 633. Order dividing action for real property where there are distinct occupants. 634. Verdict in action for recovery of possession of real property. 635. Order dividing action on death of a party. 636. Affidavit on motion for division of action, where different parties succeed to the rents and profits or liability therefor and to the real estate. 637. Order dividing action where party dies and different persons suc- ceed to his liability for rents and profits and to his interest in the property. 638. Affidavit on application for new trial in ejectment suit. 639. Notice of motion for order granting new trial, etc. 640. Ol'dcr granting new trial on application of party against whom Judg Ijie»t was rendered, 486 FOEMS Relating tO No. 621. Complaint in Action for the Recovery of Real Property (No. 1).' (Code Civ. Pro., § 1496.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that he is, and was, at the time of the commence- ment of this action, the owner, in fee [or for his own life, or state other estate]," and entitled to the possession of [the one equal, undivided (moiety) of]," the real estate situated in the town {or city) of — , in the county of , and d . bribed as follows, to wit : All, etc. [describe prop- erty].' That defendant is, and was, at the time of the commence- mencement of this action, in possession of [said moiety of] said property [having ousted the plaintiff therefrom]," and ' This form of complaint is given as being tlie one most frequently required in actions of ejectment. It contains all the requisite averments, viz. : of title, right of possession and unlawful with- holding of possession by the defend- ant. The form under the Revised Statutes, the section authorizing which is now repealed by chapter 245 of 1880, is given in form No. 633, as being a convenient one when the facts justify its use ; and a form is given (No. 622) which was held good substantially, on demurrer, in Garner v. Manhattan Building Association (G Duer, 969), although it apparently contains many unnecessary allegations. ^ The action of ejectment now tests not only the right to the possession, but the title under which the right ex- ists, whether iu fee, for life or for years. (Cagger v. Lansing, 64 N. Y., 417, 428.) It is not necessary to state, in detail, the facts constituting the estate or in- terest claimed in the land, but the gen- eral form or character of the estate interest must be averred. (Austin v. Schluyter, 7 Hun, 375.) " See section 1500, Code Civ. Pro. •* The property must be described with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appro- priate manner, so that, from the de- scription, possession of the property claimed may be delivered where plain- tiff is entitled thereto. (Code Civ. Pro., § l.Tll.) ' Insert this allegation of ouster, or of some other act, amounting to a total denial of plaintiff's right, when suit is against tenant in common. (Code Civ. Pro., § 1515.) As to right of recovery, see Wallace V. Swinton (64 N. Y., 188), Reformed Church V. Schoolcraft (65 N. Y., 134; rev'g S. 0,5 Lans., 206), Strong v. City of Brooklyn (68 N. Y., 1), Wood V. Wood (83 N. Y., 575; afC'g S. C, 18 Hun, 350), Thompson v. Burhans (79 N. Y., 93: rev'g S. C, 15 Hun, 580), Sweet V. Buffalo, N. Y. and P. R. Co. (79 N. Y., 393; aff'g S C, 13 Hun, 6!3), More v. Deyoe (33 Hun, 20'*)- (But see in connection with the latter ease, wjiicb arose lefore the enactment Actions to Recover Real Property. 487 unlawfully withholds the same from the plaintiff, to the damage of the plaintiff of the sum of .' Wherefore the plaintiff demands judgment against the defendant for the recovery of [the said equal, undivided (moiety) of] said property, in fee, etc., and the possession thereof, with dollars damages for withholding the same, and the costs of this action. E. F., Plaintiff's Attorney. [Office address."] [Yerification as in forms Nos. 151, etc.] No. 622. Complaint in Action for Recovery of Real Property (No. 3). (Code Civ. Pro., § 1496.) [Title of cause.] The comi)laint of the above named plaintiff respectfully sliows, that heretofore and on and prior to the day of , 18 — , A. B. was the lawful owner in fee [or state other estate], and was in possession of the following described real property, to-wit: All, etc. [describe prop- erty].' That said A. B. continued to be the owner and seized and possessed of said premises up to on or about the ^ay of , 18 — , when i)laintifl became the owner seized in fee [or for his own life, or for the life of R. S., or for the term of years, or state other interest] * and entitled to the possession of [the one equal, undivided (moiety) of]' said premises, by a grant and conveyance [or lease] thereof from said A. B., duly executed and delivered to him [or set forth other manner of transmission of title, e. g., by devise from the said A, B., who died on or about that day. leaving a last will and testament, duly executed of chapter 14 of Code Civ. Pro., § 1686, and profits, or tlie value of tlie use and id.). Murphy v. Loomis (36 Hun, 659), occupation pf the property, where either Harrison v. Broolilyn B. and C. I. R. can be legally recovered from the plaia- E. Co. (15 Week. Dig., 363), Martin v. tiff. (Id , § 1497.) Rector (30 Hun, 188), Howell v. Leav- - See note 3, p. 94, to form No. 134. itt (95 N. Y., 617), Simms v. Voght ^ ^ee note 4 to form No. 631. (94 N. Y., 654). ■* See note 8 to form No. 631. < Tbese damages include the rents * See section 1500 of Code Civ. Prq. 488 Forms Relating to by him, and which he left unrevoked and in full force at his death, by which he devised the said [pqual, undivided (moiety) of said] premises to the plaintiff [or as the sole heir-at-law {or one of the heirs at-law) of said A. B., who died on or about that day intestate, and left said plaintiff such heir-at-law]. That on or about the day of , 18—, the said defendant [or defendants] entered into the possession of said premises [or into the possession of the equal, undivided (moiety) of said premises] ' [and ousted plaintiff therefrom]," and is [or are] now in the possession thereof, claiming title thereto and unlawfully withholding the same from the plaintiff, and has [or have] refused to give up possession thereof to the plaintiff, although requested so to do, to^ the damage of the plaintiff of dollars/ Wherefore the plaintiff claims judgment against the said defendant [or defendants] for the recovery of [the said (moiety) of] said premises, in fee, etc., and the possession thereof, with dollars damages for withholding the same, and the costs of this action. A. F., Attorney for Plaintiff. [OfBce address.'] [Verification as in forms Nos. 151, etc.] No. 623. Complaint in Action to Recover Real Property (No. 3). (Code Civ. Pro., §1496.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that the said plaintiff, on the day of ,- 18 — ,' was possessed of the real estate situate in the of , in the county of , described as follows [insert description]," which said premises the said plaintiff claims in fee [or for his own life, or for the life of one, R. '^See note 5 to form No. 023. " See note 3, p. 94, to form No. 134. * Insert this allegation as to ouster ^ Naming some day after the title in case of tenant in common. ,(Code accrued. Civ. Pro. § 1515.) « See note 4 to form No 6?1. 3 See note 1, p. 487, to form No. 031. Actions to Recovek Real Peopeett. 489 S., or for a term of years],' and he, the said plain- tiff, being so possessed thereof, the said defendant, C. D., afterwards, to wit : on the day of , 18—, entered into the said premises and ejected the said plaintiff therefrom, and unlawfully withholds from the said plaintiff the possession thereof to the damage of the said plaintiff' of dollars." Wherefore the plaintiff asks judgment that he may re- cover from and against the said defendant the said real estate and the possession thereof, together with dollars damages for withholding the same, and the costs of this action. I. J., Attorney for Plaintiff. [Office address.'] [Verification as in forms Nos. 151, etc.] Ne. 624. Complaint for Recovery of Real Estate by Grantee in the Name of his Grantor of Lands held Adversely. (Code Civ. Pro , § 1501.) [Title of cause J The complaint of the above named plaintiff respectfully shows, that heretofore, and on, and prior to the day of , 18 — , A. B., the above named plaintiff, was the lawful owner in fee \or state other estate], and entitled to the possession of the following described real property, to wit: All, etc. [describe property].* That said A. B. continued to be such owner up to the day of —. , 18 — , when by his deed, duly exe- cuted and delivered on that day, he granted and conveyed to C. D. the said real estate in fee [or state other estate, as in form No. 632.] That, at the time of such conveyance, the said premises were in the actual possession of the defendant, E. F , who held, or claimed to hold, the said premises, adversely to the said A. B., and that said E. F. is still in the possession of " See note 2 to form No. 621. ^ ^ee note 3, p. 94, to form No. 134 » See note 1, p. 487, to form No. 621. * See note 4 to form No. 621. 63 490 Forms Relating to the said premises, and unjustly and unlawfully withholds the said premises from the plaintiff, who is entitled to the possession thereof. Wherefore the plaintiff prays judgment, that he may re- cover from the said defendant, for the benefit of the said E. F., the possession of the said premises, with costs of this action.' G. H., Attorney for Plaintiff. [Office address.'] No. 625. Complaint for Recovery of Real Property held under lease in Fee when Right of Entry is Reserved for Want of Distress. (Code Civ. Pro., § 1505.) [Title of cause.] W. P., plaintiff in this action, complains of M. L., de- fendant in this action, and on his information and belief alleges, that S. V., now deceased, as party of the first part, and J. K. as party of the second part, to wit : on the day of , 18 — , at , in the county of , mutually made, executed, sealed and delivered a certain in- denture, dated on that day, by which the said S. V., did grant, bargain, sell, release and confirm unto the said party ' An action can be maintained by a only void as to tlie defendant, and good grantee of property, hold adversely, in between the parties, then the Code Civ. the name of his grantor, notwithstand- Pro. (§ 1591) permits the action in the ing the deed was given in violation of name of the plaintiff for the benefit of the statute making the conveyance a the grantee. (Id ) misdemeanor, the title being in liti- The permission granted by the stat- gation at the time of the conveyance, ute only extends to the first grantee, and that fact being known to the and does not apply to a remote grantee grantee. The recovery being upon the of the premises. (Smith v. Long, 13 previous title of the grantor, the in- Abb. N. C, 113; 15 Week. Dig., 321" validity of the deed or criminality of [Ct. of App]; rev'g S. C. 9 Daly, the act does not affect the recovery. 429.) (Chamberlain v. Taylor, 17 Week. As to costs in cases of recoveiy of Dig., Sj; 92 N. Y., 348.) judgment by defendant, see section If the deed is an absolute nullity, 1501, Code Civ. Pro., as amended by because it was a crime to give and re- ch. 399 of 1883. ceive it, then the plaintiff may recover ' See note 3 to form No. 122. as owner of the legal title; but if it is Actions to Recovek Eeal Property. 491 of the second part, his heirs and assigns, all that certain farm, piece or parcel of land, situate in the town of , in the county of — ■ — [within and parcel of the Manor of R., and known as lot No. — J, containing acres, and in said indenture particularly described [except as is therein excepted and reserved], to have aad to hold the said land, with all the appurtenances [except as in the said in- denture is excepted] of the said party of the first part, his heirs and assigns, unto the said party of the second part, his heirs and assigns, forever, yielding and paying therefor yearly, and every year during the continuance of said grant, unto the said S. V., now deceased, his heirs and assigns, the yearly rent of [ bushels of good, clean merchanta- ble winter wheat, and fowls], on the day of , next ensuing the making of said indenture, and thereafter in and upon the day of , in each year, which said yearly rent so reserved the said party of the second part did thereby, for himself, his heirs, executors, administrators and assigns, covenant, promise and agree to and with the said S. V., now de- ceased, his heirs and assigns, that he, the said party of the second part, his heirs, executors, administrators and assigns, shonld and would well and truly pay, or cause to be paid, to the said S. V., now deceased, his heirs or assigns, at the days and place and in manner specified in said indenture, as aforesaid, in each year ; that by and in said indenture, and after the grants, reservations and covenants aforesaid, it was agreed by and between the parties aforesaid, and pro- vided always, nevertheless, that if it should so happen that the rent above reserved, or any part thereof, should be behind and unpaid, by and for the space of — days next after the said»days of "payment, that then and in every such case, it should and might be lawful to and for the said S. V. , his heirs and assigns, or any of them, at the option of the said S. V., his heirs or assigns, either to prosecute for the recovery of the same, in some court of record, or in per- son, or by his or their servant or servants, bailiff or bailiffs, into the whole' or any part of the premises, to enter, and there to distrain, and the distress so taken to lead, drive, and carry away, and the same to expose to sale at public 492 FoEMS Relating to vendue, and out of the moneys therefrom arising, to deduct the rent then due and in arrear, together with the costs and charges of distress and sale, and to return the overplus, if any there should be, unto the said party of the second part, his heirs and assigns : and it was provided further, and said indenture and everything therein contained were upon this express condition, that if it should at any time happen, that no sufficient distress could be found upon the premises, to satisfy such rent due and in arrear as aforesaid, or if either of the covenants and conditions therein before con- tained, on the part of the said party of the second part, his heirs and assigns, to be performed, fulfilled and kept, should not be performed, fulfilled and kept, or should be broken, then and in each and every such case, and from thenceforth and at all times thereafter, it should be lawful to and for the said S. V., his heirs and assigns, or any of them, into the whole of the thereby granted premises, or into any part thereof, in the name of the whole, to re-enter, and the same, as in his and their former estate, to have again, re-possess and enjoy ; and the said party of the second part, his heirs and assigns, and all others, thereout and from thence utterly to expel, put out and amove, the said indenture, or anything therein contained to the con- trary thereof in anywise notwithstanding ; that said S. V., now deceased, owned the said demised land in fee at the time of the execution of said indenture and owned the said rents and covenants with said condition of re-entiy, with all the interest remaining in him in said premises immediately after the execution of said indenture at the time of the exe- cution of his will, and of his death hereinafter mentioned ; that on the day of , 18—, said S. V., the grantor in said indenture, duly made and executed his last will and testament in writing, at the enfl. whereof he sub- scribed his name in presence of [two] attesting witnesses, and at the same time declared it to be his last will and tes- tament, in the presence of said witnesses, who then and there subscribed their names at the end thereof as attesting witnesses, at his request, by which will he gave and devised to the plaintiff, W. P., the aforesaid rents and covenants with said condition of re-entry, and all the interest of said Actions to Recovee Real Pkoperty. 493 grantor in said demised or granted premises remaining im- mediately after the execution of said indenture ; that on the day of , 18 — , the said testator, S. V., died, leaving his said will unrevoked and in full force, whereby said plaintiff, W. P., became the owner of said rents, covenants and condition of re-entry and remaining interest of said grantor in said demised premises, which he has since continued to own and still owns. That no part of the rent reserved and covenanted to be paid, as aforesaid, accruing and falling due in the year 18 — , has ever been paid, and a large amount, to wit : dollars of rent and interest thereon previously accrued under said lease is also still in arrear and unpaid ; and that more than fifteen days before the commencement of this action, and since the day of , 18 — , the plaintiff, being the owner of said rent reserved, covenants, condition, remaining interest in said granted premises, and of said arrears of rent, served notice in writing upon the defendant, the assign to and in whom all the estate, right, title and interest of the said party of the second part, to said indenture in the thereby granted premises had then come and was vested by assignment, that default having been made in the payment of the rent accruing under said in- denture, as aforesaid, he, the said plaintiflf, intended to re-enter upon said demised or granted premises in pursu- ance of section 1505 of the Code of Civil Procedure, which notice was served on the said defendant, personally [of by leaving such notice at the dwelling-house of said defend- ant, on said premises, with a person of suitable age and discretion, to wit : .of at least years of age {or state other manner of service pursuant to the statute)]. That defendant was at the commencement of this action in possession of the said demised or granted premises, hav- ing entered upon the same under said indenture and under the party of the second part to said indenture, his heirs or assigns, and unjustly withholding from plaintiff the posses- sion of said premises which are described as follows [here insert description], which said described premises the plain- tiff at the commencement of this action owned [in fee], and claims [in fee], and demands judgment against the defendant 494 Forms Relating to for recovery of tlie possession thereof, with the costs of this action. P. C, Plaintiff's Attorney. [Ofl&ce address.'] [Verification as in forms Nos. 151, etc.] • No. 626. Notice of Intention to Re-enter. (Code Civ. Pro, § 1505.) Section 1505 op Code or Civil Pkoceduee. " 1505. Where a right of re-entry is reserved and given to a grantor or lessor of real property, in default of a sulii- ciency of goods and chattels whereon to distrain for the satisfaction of rent due, the re-entry may be made, or an action to recover the property demised or granted may be maintained by the grantor or lessor or his heir, devisee, or assignee, at any time after default in the payment of the rent ; provided the plaintiff, at least fifteen days before the action is commenced, serves upon the defendant a written notice of his intention to re-enter, personally, or by leaving it at his dwelling-house on the premises, with a person of suitable age and discretion ; or, if the defendant cannot be found with due diligence, and has no dwelling-house on the premises whereat a person of suitable age and discretion can be found, by posting it in a conspicuous place on the premises." Sir — Take notice, that default has been made in the pay- ment of the rent reserved, and payable under and by virtue of the provisions of an indenture or lease in fee, dated the day of , 18 — , executed by and between S. v., lessor or grantor, and J. K., lessee or grantee, and that 1, AV. P., giantor or lessor [or assignee {or heir, or devi- see) of said grantor or lessor], and owner of said rent and lease, intend to re-enter upon the land described and de- 1 See note 3, p. 94, to form No. 131 Actions to Kecover Real Pkopeett. 495 mised in and by said indenture," in pursuance of the cove- nants, reservations and conditions therein contained, and the provisions of section 1505 of the Code of Civil Pro- cedure, of which a copy is herewitli served. Dated , 18—. \ Signature of Plaintiff.'] To E. F. No. 627. Notice of Motion for Restoration to Possession. (Code Civ. Pro., § 1509.) [Title of cause. J Sir — Take notice, that upon the affidavit, with a copy of which you are herewith served, and upon all the papers and proceedings in the above entitled action, a motion will be made at, etc., on, etc., for an order that possession of the real property described in said affidavit be delivered to the defendant [or name other applicant], and for such other and further relief as may be proper. Dated , 18—. Yours, etc., E. F., Attorney for Defendant [or other Applicant']. [Office address.'] To Gr. H., Esq., Plaintiff's Attorney. No. 628. Affidavit on Application to the Court for Delivery of Property. (Code Civ. Pro., § 1509.) [Title of cause.] County, ss. : A. B., of , being duly sworn, says, that on the day of ^ , 18 — , a judgment was rendered by the Court in the above entitled action, which was brought for non-payment of rent in arrear upon a grant reserving rent [or upon a lease of real property], in favor ' A brief description may be given of wise, in addition to referring to the in- tlie property by lot number, or other- denture, but is probably unnecessary. ^ See note 3 to form No, 133. 496 FoKMS Eelating to of the plaintiff and against [this deponent] the defendant, for the recovery of the possession of certain real property situated in the county of , and described as follows, viz. [describe property], and for costs. That an execution was issued to the sheriff of county, on said judgment, and the said property was, on the day of , 18—, delivered by said sheriff to the said plaintiff by virtue of said execution. That on the day of , 18—, this deponent paid [or tendered] to the said plaintiff [or paid into court, and to the county treasurer of county {or name other officer) for the use of said plaintiff"] the sum of dollars, being the amount of rent in arrear as stated in said judgment, and the costs of this action, with interest, and all other charges incurred by the plaintiff. [And deponent further says, that he is a mortgagee of the lease {or of a part of the lease) mentioned in the complaint in this action by mortgage duly executed to him by said defendant, dated , 18 — {or state other facts entitling applicant to relief), and that he was not in possession thereof when said final judgment was entered.'] And deponent states that he is ready to make payment of the sum due by reason of rent accruing since the said judgment was rendered, to wit : the sum of dollars, and to comply with all other terms to be complied with by the grantee [or lessee], up to the time of the application to be made upon this affidavit, for an order that possession of said property be delivered to him. [And deponent further says, that the said plaintiff has made, or might, without willful neglect, have made, the sum of dollars, at least, of the said property during the possession thereof ' (here state facts as to rental value, etc., showing this to be the case).] A. B. [Jurat as in form No. 46. J ' Insert this clause in brackets when sion has been delivered to the plaintiff the application is made by any of the of the property recovered. (Code Civ. persons mentioned in section 1509, Pro., § 15:0.) Corroborative afflda- other than the defendant. (See Code vits as to this amount, should prop- Civ. Pro., § 1508.) erly be furnished. " Insert this clause when the posses- Actions to Eecovee Real Peopeety. 497 No. 629. Order Directing Delivery of Property. (Code Civ; Pro., § 1509.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the affidavit of A. B., dated , 18—, with proof of due service of a copy thereof, with notice of motion, on the attorney for the plaintiff, and on reading [name opposing papers], and after hearing I. J. for the motion, and K. L. in opposition thereto {or no one appearing to oppose] ; [*] It is hereby ordered, that upon payment by the said A. B. of the sum due by reason of the rent accruing since the judgment was rendered in this action, to wit : the sum of dollars, and [state other terms to be complied with], possession of the property, described as follows [de- scribe property], be delivered to [naming applicant], who shall hold and enjoy the same, without any new grant [or lease] thereof, according to the terms of the original grant \or lease] thereof. [And it is further ordered, that the amount of dollars, being the sum which the plaintiff has made, or which he might, without willful neglect, have made of the property, during the possession thereof, be set off against the rent accruing after said judgment was rendered, and be applied to the reimbursement to the said A. B. of the bal- ance, if any, of the sum paid into court by him, after making said set off.'] No. 630. Affidavit on Motion for Order Directing Plaintiff's Attor- ney to Produce his Authority. (Code Civ. Pro., § 1512.) [Title of cause.] County, ^.y..* A. B., of , being duly sworn, says [that he is the de- fendant(or defendant' s attorney)in the above entitled action]. ' These provisions are to be inserted to section 1510 of Code Civ. Pro., and where the facts justify them, pursuant where the amount can be ascertainecl 63 498 Forms Eelating to That said action has been brought to recover [the posses- sion of] real property. That the summons [with a copy of the complaint] was served upon him [or upon the defendant] on the ^ay of , 18 — , and that defendant has not answered the [said] complaint. That E. F. is the plaintiff's attorney in said action, and that evidence of the authority of the said E. F. to commence the action has not been served upon the defendant [or upon defendant's attorney].' A. B. [Jurat as in form No. 46.] No. 631. Order Requiring Plaintiff's Attorney to Produce Evidence of his Authority to Commence Action. (Code Civ. Pro., § 1513.) [At, etc., as in form No. 80 (when made by the court).] [Title of cause.] On reading and filing the affidavit of A. B., dated , 18 — , with proof of due service thereof, and of notice of this motion upon the plaintiff's attorney, and on motion of G. H., attorney for defendant ; It is hereby ordered [or I do hereby order and direct], after hearing M. N., for the plaintiff, and on reading [name any oijposing papers], that E. F., the attorney for the plain- tiff in the above entitled action, produce to the defendant [or to defendant's attorney], evidence as required by law of his authority to commence the above entitled action, and that all proceedings herein, on the part of the plaintiff, be and the same are hereby stayed until such evidence be produced. Date [of judge's order]. M. N., Judge [or Justice] of Court {when made hy judge). ■upon the motion. A reference to de- ger v. Lansing (G4 N. Y., 417; aflE'g S. termine tliis amount would probably C, 4 Hun, 813). oe necessary in most cases. ' See Carpenter v. Allen (45 N. Y, isee VS^itbecli v. Van Rensselaer (61 Super. Ct., 333). Tf. Y., 37; aff-g S. C, 3 Hun, 55). Cag- Actions to Recover Real Property, 499 No. 633. Evidence of Attorney's Authority to Commence Action tor Recovery of Real Property. (Code Civ. Pro., § 1514.) I hereby request and authorize [or I do hereby recognize the authority of] ' E. F., of , to commence an action, as my attorney, in my name against C. D. for the recovery of [the possession of] the real estate described as follows, to vrit [describe property briefly]. A. B. Dated , 18—. County, ss. : E. F., of , being duly sworn, says, that he is the attorney mentioned in the foregoing instrument ; that he was present and saw A. B., whom he knew, sign the foregoing instrument [or that he is acquainted with the hand-writing of A. B., whose name is signed to the foregoing instrument (having seen him write), and knows the sfgnature to the foregoing instrument to be in the genuine hand- writing of said A. B.]." E. F. [Jurat as in form No. 46.] No. 633. Order Dividing Action for Real Property where there are Distinct Occupants. (Code Civ. Pro., § 1516.) [At, etc., as in form No. 80.] [Title of cause.] It appearing by the allegations of the answer of the de- fendant, C. D., in the above entitled action, that he occu- ' This clause in brackets is to be dated before the commencement of the used where the instrument is made action. after the commencement of the action, ^ The aflBdavit may also be made by or the request may, ja that case, be any competent witness. (Code Civ. Pro,, § 1514.) 600 Forms Relating to pies in severalty [or that lie and the defendant, E. F., occupy jointly] the parcel of the property mentioned in the complaint, described as follows, to wit [describe parcel], and that the defendant, G. H., occupies and possesses in sever- alty, the remainder of said property ; Now, on the application of A. E,., counsel for the plain- tiff, after hearing T. L., for the defendants ; It is hereby ordered, that this action be divided into [two] separate actions, to wit : one by said plaintiff against said C. D. [or C. D. and E. F.], for the recovery of said parcel above described [with damages and costs], and the other by said plaintiff against the defendant, G. H., for the recovery of the remainder of said property [with damages and costs]. This order is granted upon the following terms [insert terms]. No. 634. Terdict in Action for Recovery of Possession of Real Property. (Code Civ. Pro., § 1519.) As in form No. 452 to [*], and from thence as follows : That the said C. ~D. is guilty of unlawfully withholding the premises described in the comjDlaint from the said A. B , and that the said A. B. is entitled to hold the same in fee [or for his own life ; or for the life of one R. S. ; or for a term of years], etc., as is stated in the complaint [and they assess the damages, which the plaintiff is entitled to recover for the withholding of the said property, at the sum of dollars].' 'These damages include tlie rents tion, but before the trial, and he would and profits, or the value of the use have been entitled to recover but for and. occupation of the property, where the expiration, the verdict, report or either can be legally recovered by the decision must be rendered according plaintifE. (Code Civ. Pro., § 1497.) to 1 he fact; and the plaimitf is enti- This form may be adapted ;o referee's tied to judgment for his damages for report or judge's decision. When the the withholding of the property, to the right and title of the plaintifE expires time when his right or title so expired. after the coiamengement of t}ie ac- (Code Civ, Pro., § 1530.) Actions to Recover Real Peopeett. 501 No. 635. Order Dividing Action on Death of a Party. C Code Civ. Pro., §1523.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the affidavit of A. B., dated , 18 — , by which it appears that the plaintiff, E. F. [or the defendant, G. H.], has died since the commencement of this action, and that I. J. and K. L. have succeeded to the title and interest of said plaintiff [or defendant] in and to different distinct parcels of the premises sought to be recovered in this action, vrith proof of due service of a copy of said affi- davit and of notice of this motion upon , and on reading [name any opposing papers] : Now, on motion of L. M., counsel for the said I. J. and K. L., and after hearing N. P. for the defendant [or no one appearing to oppose] : It is hereby ordered, that the said action be divided into two separate actions, the one by said I. J. as plaintiff against the defendant for the recovery of the parcel to which said I. J. has succeeded [with damages and costs], and the other by said K. L. against the defendant for the recovery of the parcel to which he has succeeded, as said parcels are respect- ively described in the said afladavit [with damages and costs]. This order is granted upon the following terms, viz. [stating themj. No. 636. Affidavit on Motion for Division of Action on Death of Party where Different Parties Succeed to the Rents and Profits or Liability Therefor, and to the Real Estate. (Code Civ. Pro., § 1523.) [Title of cause.] County, ss. : A. B., of , being duly sworn, says, that he is the [description of affiant]. That after the commencement of this action, and on or about the • day of , 18—, the [plaintiff] died, 60S FOEMS Helating 10 leaving a last will and testament, which was afterwards duly admitted to probate by the surrogate of the county of , in which county said [plaintiff] resided at the time of his death [or state other facts conferring jurisdiction on surrogate], and M. F. was duly appointed by said surro- gate the executor thereof [or intestate, and M. F. was after- wards duly appointed the administrator of his estate, by the surrogate of county, in which county said (plaintiflE) resided at the time of his death {or state other facts conferring jurisdiction on surrogate)]. That I. J. is the sole heir-at-law of said [plaintiff] and has succeeded as such to the title and interest of said jjlaintiff in and to said real estate [or state other manner of suc- cession]. A. B. [Jurat as in form No. 46. ] No. 637. Order DiTidiug Action where Party Dies, and Different Persons Succeed to his Liability for Rents and Profits, and to his Interest in the Property. (Code Civ. Pro., § 1523.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the affidavit of A. B., dated , 18—, wich proof of due service of a copy thereof, and of notice of this motion upon [name parties served], by which affidavit it appears that the [*] plaintiff has died, and that his executor [or administrator], M. F., has succeeded to his right to the rents and profits of the real estate sought to be recovered in this action, accrued before the death of said plaintiff, and that I. J. has succeeded to his title, to and interest in, the said real property, and on reading [name opix)sing papers] ; Now, on motion of R. L., counsel for said M. F. and I. J., after hearing S. T., counsel for [or no one appearing to oppose] ; It is hereby ordered, that the above entitled action be Actions to Recover Real Property. 60S divided into two actions, one by the said M. P. as such ex- ecutor [or administrator] as plaintiff against the said defend- ant for the recovery of the rents and profits of said property accruing before the death of said plaintiff, and the other by I. J. against the said defendant for the recovery of said prop- erty, v^rith the rents and profits thereof accruing, after the death of the said defendant. This order is granted upon the following terms [state same].' Or as above to [*', and from thence as follows: Defend- ant has died, and that M. F., his executor [or administra- tor], has succeeded to his liability for the rents and profits of the real estate sought to be recovered in this action, ac- cruing before the death of said defendant, and that I. J. has succeeded to his title to, and interest in, said real estate, and on reading [name opposing papers] ; Now, on motion, etc. ; It is hereby ordered, that the above entitled action be divided into two actions, one by the plaintiff against said M. F., as such executor [or administrator], for the recovery of said rents and profits accruing before the death of said defendant, and the other by said plaintiff against said I. J. for the recovery of the possession of said real estate, with the rents and profits accruing after the death of said defendant. This order is granted upon the following terms [state same].' No. 638. AiUdayit on Application for New Trial in Ejectment Suit. (Code Civ. Pro., §§ 1525, 1526.) [Title of, cause.] — County, ss.: A. B., of '—— , being duly sworn, says, that on tne - day of — ' , 18 — ," a final judgment was ren- dered by the — Court in the above entitled action, in ' The court may, in its discretion, the entry of the first judgment in the proceed as provided in title 4 of chap- action and not from the judgment of ter 8, or as provided in sections 1533 affirmance on appeal by the court of and 1533 of Code Civ. Pro. (§ 1531, id.) last resort. (Chautauqua County Bank ' The three years time within which v. White, 33 N. Y., 347.) this motion is to be made runs from 504 FOEMS Relating to favor of the plaintiff and against the defendant, for the re- covery of the possession of certain real property situated in the town \or city] of , in the county of -, described-as follows, to wit [describe property], with dollars damages and costs. That the Judgment roll upon said judgment was filed in the clerk' s office of county, on the said day of , 18 — . [That said judgment was rendered upon the trial of an issue of fact joined in said action.'] [That since said judgment was rendered the said defend- ant has departed this life and that (this deponent) E. F. is the sole heir-at-law of said defendant (or state other means of succeeding to title), and has succeeded to said defend- ant's interest and estate in and to said real property.] That the amount of costs and damages awarded by said judgment to said plaintiff, other than for rents and profits and for use and occupation, is the sum of ■ dollars, with interest thereupon from the day of , 18—. That said action was not founded upon an allegation of rent in arrear, nor in a case to which section 445 of the Code of Civil Procedure is applicable." A. B. [Jurat as in form No. 46.] No. 639. Notice of Motion for Order Granting New Trial, etc. (Code Civ. Pro., § lo25.) [Title of cause.] Sir — Take notice, that upon the affidavit hereto annexed, and upon all other jpapers and proceedings in the above en- ' If the application is under section rendered by default, etc., under scc- 1526 of Code Civ. Pro., omit this clause tion 1526, set forth the facts showing and state other method of rendition of that justice will be promoted by said judgment, e. g ,\>y default, etc. trial (§ 1525). ' See section 1528, Code Civ. Pro., As to who is assignee, within the as to last statement. meaning of sections 1525 and 1526, see If the new trial applied for is a Howell v. Leavitt (90 N. Y., 238). eecond new trial, or the judgment was Actions to Recovee Real Peopeety. S05 titled action, a motion will be made at, etc., on, etc., for an order vacating the final judgment rendered in said action on the day of , 18—, and granting a new trial therein, upon payment of the costs and damages awarded by said judgment to the plaintijBf, other than for rents and profits or for use and occupation, and for such other and further relief as may be proper. Dated , 18-. C. T., Defendanf s Attorney. [Office address.'] To J. K., Plaintiff's Attorney. No. 640. Order Granting New Trial upon Application of Party Against whom Judgment was Rendered. (Code Civ. Pro., § 1535.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing the affidavit of A. B., dated , 18—, with proof of due service thereof, and of notice of this motion, upon the [plaintiff's] attorney, and on reading [name opposing papers] ; Now, on motion of I. J., counsel for the defendant, after hearing K. L , for the plaintiff [or no one appearing to oppose] ; It is hereby ordered, that the judgment rendered in the above entitled action by the Court on the day of , 18—, on which day the judgment roll thereon was filed in the county clerk's office, be and the same is hereby vacated, and that a new trial in said action be and the same is hereby granted upon payment by the [defendant] to the plaintiff [*] of dollars, being the amountof costs and damages, other than for rents and profits or for use and occupation, awarded thereby to the plaintiff, [and that dollars costs of this motion are hereby allowed to the plaintiff]. [Or as above to (*), and from thence as follows : Of the 1 See note 3 to form No. 133. 64 506 Forms Relating tO amount of damages and costs awarded by said jadgment to the plaintiff, otlaer than for rents and profits or for use and occupation, and that it be referred to A. E.. to ascertain the amount of said costs and damages (and that dollars costs of this motion are hereby allowed to the plaintiff).] Article Second, forms relating to action for partition. (Code Civ. Pro., Ch. 14, Tit. 1, Art. S.) No. 641. Affidavit on application to surrogate for leave to bring partition ac- tion by infant. • 642. Order directing partition suit to be brouglit by infant. 643. Bond of guardian ad litem in partition suit. 644. Complaint in action for the partition of real property beld under devise containing provisions for trust estate and remainders. G45. Complaint in action for partition of real property among heirs-at-law 6 16. Notice to be annexed to summons served by publication upon un- knovpn owners. 647. Affidavit to move for reference in partition suit, where a defendant has made default, or a party is an infant, etc. 648. Notice to parties who have appeared of motion for order of ref- erence. 649. Order of reference where defendant has made default, or is an infant, etc. 650. Referee's report as to title, etc. 651. Interlocutory judgment in partition suit. 652. Interlocutory judgment where partial partition is adjudged. 653. Oath of commissioners. 654. Report of commissioners in partition. 655. Report of commissioners that sale of property, or of some part thereof, is necessary. 656. Final judgment upon report of commissioners malting actual par- tition. 657. Order modifying interlocutory judgment, on report of commis- sioners that sale is necessary. 658. Notice by referee to creditors to prove liens before him. 659. Affidavit on application by party for money paid into court by referee. 660. Notice of application to the court for moneys. 661. Affidavit of service upon owner of incumbrance of notice of appli- cation by owner for moneys. 662. Consent of party to accept gross sum in lieu of dower. 663. Release by married woman of inchoate dower right to her husband. 664. Referee's report of sale in partition suit. Final judgment in partition suit, on confirmation of referee's report of sale. 665. Action for Partition. 607 No, 666. Affidavit to move to substitute successor in interest as a defendant on deatli of one of two or more plaintiffs or defendants in partition. 667. Order substituting successor in interest as a party defendant, in case of death of one of two or more plaintiffs or defendants. 668. Petition of general guardian of infant, or committee of lunatic, etc., for authority to agree to partition. 669. Notice of motion for authority to agree to partition. 670. Order granting leave to agree to partition. 671. Order to show cause why the application should not be granted. 673. Order on return of order to show cause. 673. Keferee's report as to merits of application for authority to make partition. 674. Order upon referee's report. No. 641. Affidavit on Application to Surrogate for Leave to Bring Partition Action by Infant. (Code Civ. Pro., § 1534.) County, ss. : A. B., of , being duly sworn, says, that he is [description of affiant]. That C. D., who is an infant of the age of years, is the owner as Joint tenant [or as tenant in common] with G. H. of the equal, undivided one of certain real estate, situated in the of , in the county of , described as follows, to wit [insert description]. That, in the opinion of the deponent, a suit should be authorized to be brought by said infant for the partition of said property, and that the following are deponent's reasons for such opinion [here state facts showing that the interests of the infant will be promoted by such an action being brought].' [Jurat as in form No. 46. J A. B. ■ A partition sale may now be made in Muller v. Struppman (6 Abb. N. C, where such sale would be in contra- 343; 53 How. Pr., 211), has no longer vention of the provisions of a deed or any application. will, conveying or devising the prop- By section 1534, Code Civ. Pro., a erty, the statute (3 R. S., 203, § 176 judgment is not to be rendered for a [Edm. ed.]), having been repealed by partition or sale in an action brought chapter 245 of 1880, and section 2357 by infants, unless the court is satisfied of Code Civ. Pro.., applying, by its thattheinterestsoftheinfantswill.be terms, only to sales under title 1 of promoted thereby, and that fact is to chapter 14 of that act. The decision be expressly recited in the judgment. §08 FoEMS :Relating to No. 643. Order Directing Partition Suit to be Brought by Infant. (Code Civ. Pro., § 1534.) [Title of proceeding.] I, T. P., surrogate of county, being satisfied by the affidavit of A. B., dated , 18—, that C. D., who is an infant of the age of years, is the owner of the equal, undivided of the real estate described in sa-id affidavit, situated in the -. of , in the county of , as joint tenant [or tenant in common] with G. H., and that the interests of said infant will be promoted by his bringing an action for the partition of said property, do hereby authorize said C. D. to bring such action. Dated , 18—. T. P., Surrogate. No. 643. Bond of Guardian ad litem in Partition Suit. (Code Civ. Pro., § 1536.) As in form No. 340 to [*], and from thence as follows i That if the above bounden, A. B., shall faithfully discharge the trust committed to him as guardian of the infant de- fendant, C. D., in an action for partition in the Court, in which A. B. is plaintiff and C. D. and others are defendants, and shall render a just and true account of his guardianship in any court or place where thereunto re- quired, then this obligation to be void, otherwise to be and remain in full force and virtue.' A. B. [L. s.] C. D. [L. s,] E. P. [L. s.] Sealed and delivered in presence of . [Acknowledgment or proof, affidavits and approval, as in forms Nos. 340, 538.] ' The statute (§ 1536, Code Civ. Pro.) to that section, the boud is to be exe- requires one or more sureties as the cuted to the people of this State. Upon court directs. a motion to settl the form of the bond By the amendment of 1684 (ch, 404), made before that amendment, the guar- Action fok Paetition. 509 No. 644. Complaint in Action for the Partition of Real Property held under Devise, Containing Provisions for Trust Es- tate and Remainders. (Code Civ. Pro., § 1543.) [Title of cause.] The complaint of the above named plaintiff respectfully shows [upon information and belief], that A. B., the [brother] of said plaintiff, late of the of , in the county of , was, at the time of making his last will and testament as hereinafter mentioned, and also at the time of his death, seized in fee simple absolute, and in possession of those certain lots, pieces or parcels of land, situated in the county of , bounded and described as follows, to wit [describe property]. And, being so seized and possessed, the said A. B. died on or about the day of , 18 — . [*] And the said plaintiff further shows [on information and belief], that the said A. B., in his life-time, to wit : on or about the day of , 18 — , made and pub- lished his last will and testament in manner and form as re- quired by law to pass real and personal estate, whereby, .after certain other devises and bequests, he devised and be- queathed the rest and residue of his property in the follow- ing words and manner, viz. : ' ' Sixth. I give, devise and bequeath all the rest and remainder of my real and per- sonal estate, in equal portions, to my [brothers and sisters] living at the time of my decease, and the portion of such as are not now living, or who may not survive me, to their de- scendants, except the portion of my [brother], C. B., which I devise and bequeath to my executor hereinafter named, in trust, to receive the income and issues thereof, and apply the same to the use of my said [brother], C. B., during the term of his natural life, and, after the death of my said [brother], I give and devise the said portion to his children dian ad litem was ordered to file a new (id.), it Iiaving been oiiginally executed bond to the county treasurer of the to the people of the State of New York. county in -which the property sold was (McLaughlin v. Crawford, 18 Week, situated, as then required hy § 1585 Dig., 814.) See 20 W, D., 179, 610 FoKMS Kelating to living at the time of Ms decease, and to the descendants of such of his children as shall not survive him." That in and by said will, the said testator appointed the defendant, P. P., to be executor thereof. That said will was duly proved and recorded in the sur- rogate's court of county, on the day of , 18 — , and letters testamentary thereupon were, on the day of , 18 — , duly issued to the defend- ant, P. P., by said surrogate's court, and he has duly quali- fied as executor of said will. That the said rest and remainder of said testator's real estate, mentioned in the sixth clause of said will above re- cited, consisted, at the time of his death, of the lots above particularly described. And the plaintiff further shows, upon information and belief, that he, together with the defendants, C. P., B. P. and G. S., were the only surviving [brothers and sisters] of the said testator at the time of his death, except said C. B., and the defendants, S. B., J. P. and L. B., children of G. B., a brother of said testator, who died during said testa- tor's life- time, and J. G., S. B. and P. B., children of M. B., another brother of said testator, who died during the life- time of said testator, were the only descendants of deceased brothers and sisters of the testator living at the time of his. death. That said P. B. has, since the death of the said testator, by deed dated , 18—,' recorded in county clerk's office, in book No. — of deeds, at page — , granted and conveyed all his right, title and interest in and to the property devised by said will to the defendant, E. J. And the plaintiff further shows, upon information and belief, that under and by virtue of the provisions of said will and the grant aforesaid, the plaintiff and the defend- ants who are hereinafter stated to be so seized, are seized and possessed of those certain lots and pieces of land here- inbefore described, as tenants in common, and the rights and interests of the plaintiff and defendants therein are as follows, viz. : The said plaintiff and the defendants, C. P., B. P. and G. S., are each of th?m seized of and entitled, in fee simple Action for Partition. 511 absolute, to one undivided r thereof, the share of the defendant, said B. F., being subject to the inchoate right of dower therein of his wife, the defendant, P. F. The defendants, S. B., J. P. and L. B., are each of them entitled to the one part thereof in fee simple abso- lute, and the defendants, J. Gr., S. B. and F. B., are each of them seized of and entitled to one equal, undivided part thereof, in fee simple absolute, the share of said L. B., being subject to the inchoate right of dower therein of his wife, the defendant, J. B. The defendant, P. F., as executor and trustee named in said last will and testament, are seized of and entitled to the one equal, undivided — ^ part thereof during the life-time of said defendant, C. B., in trust to receive the in- come and issues thereof, and apply the same to the use of said C. B. The defendants, E,. B. and J. B., the only now living children of said C. B., have equal vested estates in re- mainder in the portion devised in trust as aforesaid, subject to open and let in any children of said C. B., who may be born hereafter, and the estate of each of them being liable also to be divested by his or her death during the life- time of said C. B., and to vest iji the survivors and the descend- ants of such of said children of said C. B. as shall be dead, leaving descendants, at the time of said portion being so divested. And the defendants, J. B. and M. B., the children of said E. B., have contingent interests in said portion so left in trust, and in case of their said father dying in the life-time of said C. B. they or such one of them as shall survive said C. B. will be entitled to share equally with the children and other descendants of said C. B. who may be living at the death' of said C. B. in the portion so left in trust. The defendant, H. B., wife of R. B., has no present in- terest in said premises, but would, on the death of said C. B., become entitled to an inchoate right of dower in such part of said premises, as should, by that event, vest abso- lutely in fee simple in her husband. The defendant,.?. P., is the husband of said defendant, C, F. [and has had living issue by her], and the interest of 512 Forms Relating to said C. F. is subject to the rights, if any, which her said husband may have therein as such. That the plaintiff and the defendants [naming them J, heirs-at-law of A. B., have a contingent interest also in said portion so left in trust, as the only persons novp living, who would, as the heirs-at-law of said A. B., the testator afore- said, be entitled to the said portion so held in trust, in case said C. B. should die leaving no children or descendants of children, him surviving ; and in case they should become so entitled, the defendants [naming wives of heirs-at-law], If living, would become entitled to inchoate rights of dower in such part of said premises as should vest in their said hus- bands, and the shares of said [name heirs-at-law who have living husbands] would be subject to the rights which their said husbands might have therein, as such husbands, if living. That the plaintiff and all of the defendants are of full age, excepting the defendants [naming them], who are minors under the age of fourteen years, and the defendants [naming them] who are minors upwards of fourteen years of age. That the defendant, O. B., as the widow of said A. B., is seized of a right of dower in said premises, which has not been admeasured.' [If there are defendants having shares or interests in the property who are unknown, or whose names, or part of whose names, are unknown, say : That the undivided part of said property belongs to the defendant, R. H. [stating nature of interest, and how derived] ; that the place of residence of said R. H. [if living] is unknown to the plaintiff and cannot be ascertained by him. Or that the name of the defendant who owns the undi- vided part of the premises (stating nature of interest, and how derived), is unknown to the plaintiff, and cannot be ascertained by him. Or that some person or persons, to the plaintiff unknown, I As to making doweress of entire laglian (8 Johns., 558), Wood v. Clute property, whose dower has not been (1 Sandf. Ch., 199), Tannery. Niles(l admeasured a party, see Code Civ. Pro. , Barb. , 560). section 1539; also, Bradshaw v. Cal- Action fok PARTiTioiir. 513 have estates or interests in said property, the nature and conditions. of which are to the plaintiff unknown. Or otherwise, as the case may require.'] That the lands and premises hereinbefore described, of which partition is desired, are the only real estate owned by all the parties to this suit as tenants in common,' and in which no other person is interested, and that there are no specific liens or incumbrances upon the said lands and premises against any of the parties to this suit" [or any liens or incumbrances may be set forth affecting the whole property, or any interest therein]. The plaintiff therefore prays that partition and division of the real property hereinbefore mentioned and described may be made by and under the direction of this court, between said plaintiff and said defendants, [f] according to their respective rights and interests therein, and that com- missioners may be appointed by the court for the purpose of making such partition, or in case a partition of said premises, or of any part thereof, cannot be made without great prejudice to the owners thereof, then that the said premises, or such part thereof as cannot be divided, may be sold by and under the direction of this court, and that the proceeds of the sale, after paying the costs and expe^nses of this suit, may be divided among the owners thereof, ac- cording to their respective rights and interest therein, and that plaintiff may have her costs of this suit and such other and further relief as may be just." J. H., Plaintiff'' s Attorney. [Office address.'] [Yerification as in forms Nos. 151, etc.] " See sections 1541, 1572 and 1583, section 1540; also, Woods v. Clute (1 Code Civ. Pro. Sandf. Cb., 199). s See rule 65 of Gen. Rules of Prac. ; " Although it is not necessary to set Moffatt V. McLaughlin (13 Hun, 449), forth the seisin of the ancestor or titl? Pritchard v. Dratt (33 Hun, 417). of the parties (Bradshaw v. Callag, ' As to persons having liens which han, 8 Johns., 558; Clapp v. Bromag' attach to the entire property and their ham, 9 Cow., 530, 565; Code Civ. Pro., being made parties, see Code Civ. Pro., § 1542), yet it will he found generally ijection 1539, Mead v. Jenkins (39 Hun, most convenient in practice to do so. 353, 25')), Townshend v. Townshend (I In an action brought by the heirs-at- Abb. N. C, 81); as to persons having law of the former owner, if there has liens upon undivided interests, see (id.) been an apparent devise of such land 614 Forms Relating to No. 645. Complaint in Action for Partition of Real Property Among Heirs-at-Law. (Code Civ. Pro., § 1543.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that L. H., of , in the county of ■ , was in his life-time, seized in fee simple and in possession of the following described real estate to wit [insert description]. That the said L. H., being so seized of the above described property, died on the day of , 18 — , intestate, leaving the defendant, C. H., his widow, and said. plaintiff and the defendants, E. C, wife of B. C, deceased, his children, and S. H. and E. H., his grandchildren, being children of H. H., a deceased son of the said L. H., his only heirs-at-law. That by the death of the said L. H., the plaintiff, A. H., and said defendants, E. C, wife of B. C, deceased, S. H. and E. H. became seized in fee as tenants in common, by descent from the said L. H., of the above described prop- erty ; that is to say : the plaintiff and A. H. and E. C. each became seized of the one equal, undivided fourth part of the by the -will of their ancestor, tlie com- v. Hughes (11 Abb. N. C, 37: 30 Hun, plaint should set forth the devise and 349), Sclicu v. Lehning (31 Hun, 183), its invalidity. (Voessing v. Voessing, Code Civ. Pro., § 1583. 12 Hun, C73; Code Civ. Pro., § 1537.) When an undivided portion of a As to who may maintain action and tract of land has been conveyed and the parties thereto, see Sullivan v. Sulli- grantor has afterwards conveyed to van (66 N. T., 37; rev'g 4 Hun, 108), others particular parts by meles and Brevoort v. Brevoort (70 N. Y., 136), bounds and the grantee of the nndivid- Jenkins v. Fahey (73 N. Y., 35.j; rev'g cd portion then petitions for partition S. C , 11 Hun, 351), Dubois v. Cassidy his share of the land should be so set (75 N. Y., 298), Miller v. Levy (46 N. oS and assigned as not lo embrace any Y. Super. Ct., 207), Monarque v. Mon- part of the land thus conveyed by arquc (8') N. Y., 326; 2t Alb. L. J., motes and bounds, if he can otherwise 8'.i6), Payne v. Becker (87 N. Y., 153), have a lair and equal partition. (Duel Culver V. Rhodes (87 N. Y., 348), Grin- v. White, 15 Week. Dig., 372 [Sup. Ct., uell V. Maclean (16 Hun, 133), Ver- Gen. T.] citing Webber v. Mallitt, 16 planck V. Verplanck (22 Hun, 10-1), Jlaine, 88.) Therasson v. White (52 How. Pr., 62), The claim of the grantee of the un- Bennett V. Bundy (13 Week. Dig., 160), divided half to own such interest does Muller V. Struppman (6 Abb. N. C, not raise such a conilict of titles as to 343), Rutherford v. Hewey (59 How. divest a court of equily of jurisdictioa Pr., 331), DaviPS v. Davies (15 Week. (Id.) Dig., 118; afl'd, 93 N. Y., 633), Hughes ' See note 3 to form No. 133. AcTiOK POB Partition. 615 said property, and the said S. H., and E. H. became seized each of one undivided eighth part thereof, which would have belonged to the said H. H. had he survived the said L. H., each oJ: the said portions being subject, however, to the .right ofdower of the said C. H., widow of the said L. H. That [the defendant] J. F., of ■ , is the owner of a mortgage upon the above described property, executed by the said L. H., and C. H., his wife, to him, dated , 18—, and upon which is due and unpaid the sum of dollars, with interest thereupon from the day of , 18-. That the dower of the said C. H., widow of L. H., in the said premises, has never been admeasured. That the said S. H. and E. H. are infants, said S. H. be- ing upward of fourteen years of age, and said E. H. being under fourteen years of age. And the plaintiff prays that partition may be made among the parties, etc. [as in form No. 644 from (f)].' F. Gr., Attorney for Plaintiff . [OfSce address."] [Yerification as in forms Nos. 151, etc.] No. 646. Notice to be Annexed to Summons Served by Publication, or Without the State, upon Unknown Owners in Parti- tion Suit. (Code Civ. Pro., § 1541.) As in forms Nos. 95 and 96 to the signature, and from thence as follows : The object of said action is to obtain the partition, or sale and division of the proceeds of the prop- erty, described as follows [insert brief description of prop- erty], and to obtain such other or further relief as may be proper, with costs of the action." Dated , 18—. A. M., Plaintiff'' s Attorney. [OfSce address.'] ' See notes to form No. 641, and as ' See Sandford v. White (56 N. Y., to allegations in ca^e of unknown own- 3" 9). ers. sec Uiat form. * Sec note 2 to form No. 133. 2 Sec note 2 to form No. 133. 616 FOEMS Relating to No. 647. Affidavit to Move for Reference in Partition Suit, where a Defendant lias made Default, or a Party is an Infant, (Code Civ. Pro., § 1545.) — : County, ss. : j^ -Q ^ of , being duly sworn, says, tliat he is [de- scription of affiant]. That this action has been brought to obtain a partition or sale, and division of the proceeds of the real property described in the complaint, among the owners thereof, ac- cording to their respective interests therein. That the summons [with a copy of the complaint] in said action was served upon the defendant, F. B., more than, twenty days since as appears by the afBdavit of M. C, which is hereto annexed ; and that said defendant has not appeared therein [or answered said complaint]. That the defendant, C. D., is an infant under [or upwards of] fourteen years of age, for whom M. 'N. has been ap- pointed guardia,n ad litem, and that said guardian has ap- peared in said action [by E. F., as his attorney], and put in the usual general answer in behalf of said infant.' That the owners of the one part of said property are unknown to the plaintiff. That the defendant, J. T., is an absentee.^ [That the plaintiff and the defendant, N. B., desire, as deponent is informed by them, to enjoy their shares in com- mon with each other.'] [Jurat as in form No. 46.] A. B. ' The provisions of section 1218, of f ant's interest in the property. Where the Code of Civ. Pro., apply only to he knows the rights of his client, and a judgment talien hy default, and not is -willing to assume the responsibility, to a case where a guardian ad litem has there is no reason why he may not con- appeared and put in the usual general sent to the partition. At any rate, the answer. (Newins v. Baird, 19 Hun, want of an answer does not affect the 306.) regularity of the partition. (Bogertv. There is no statutory provision re- Bogert, 4.1 Barb., 121.) quiring the guardian ad litem, in a par- For form of general answer, see form tition suit, to put in an answer. No. 699, post. although it is advisable that such an = Sec, also, rule CO of Gen. Rules of answer should be tiled to protect the Prac. guardian if he is ignorant of the in- ^ gge section 1548, Code Civ. Pro, Action for Partition. 517 No. 648. Notice to Parties who have Appeared of Motion for Order of Reference. (Code Civ. Pro., § 1545.) [Title of cause.] Sirs — Take notice, that upon the summons and complaint in this action, with proof oi; due service thereof [or of said summons] upon the defendants, and upon the affidavit, -witla. a copy of which you are herewith served, and upon all the papers and proceedings in this action, a motion will be made at, etc., on, etc., for an order appointing a referee to ascer- tain the rights, shares and interests of the several parties in the property sought to be partitioned in this action, and an abstract of the conveyances by which the same are held, and to take proof of the plaintiff's title and interest in said premises and of the several matters set forth in the com- plaint, and to report whether said property, or any part thereof, is so circumstanced that a partition thereof cannot be made without great prejudice to the owners [and for costs of this motion], and for such other and further relief as may be proper.' Dated , 18—. C. F., Attorney for Plaintiff . [Office address.'] To I. J., Attorney for the Defendant, M. N. and K. L., Attorney for Defendant, A. F., etc. No. 649. Order of Reference where Defendant has Made Default, or is an Infant, etc. (Code Civ. Pro., § 1545.) [At, etc., as in form No. 80.] [Title of cause.] Upon filing proof of due [personal] service of the sum- mons [and complaint] in this action upon the defendants, and of filing notice of pendency of the action' in the county clerk's office more than twenty days since, and on ' See notes 1 and 3 to form No. 047. ^ For form of notice of pendency of 2 See note 2 to form No. 133, action, see No. 746, and section 1070, 618 Forms Eelating to reading and filing the affidavit of A. B., dated • , 18—, by which it appears that [recite matters appearing by affidavit (form No. 647)], and it appearing that due notice has been given of this motion to such of the parties as have appeared, and to M. N. [attorney for the], guardian ad litem of the infant defendants, and on reading [name opposing papers], on motion of C. F., of counsel f(jr the plaintiff, after hearing I. J. for the defendant, R. M. \or no one appearing for the defendants] : It is hereby ordered, that M. R., of , be and he is hereby appointed referee in the above entitled action to ascertain and report the rights, shares and interests of the several parties to this action in the property described in the complaint and of which partition is sought, and an abstract of the conveyances by which the same are held, and to take proof of the plaintiff's title and interest in said premises and of the several matters set forth in the com- plaint,' and to report whether the property, or any part thereof, is so circumstanced that a partition thereof cannot be made without great prejudice to the owners ; ' and if he arrives at the conclusion that a sale of said property, or any part thereof, is necessary, then that he ascertain whether there is any creditor, not a party, who has a lien on the un- divided share or interest of any party/ [And it is further ordered, that said referee ascertain whether the said premises are so situated that the shares of the said (plaintiff) and of the defendant, N. B., can be set off to them, without partition as between themselves, to be held by them in common/] No. 650. Referee's Report as to Title, etc. (Code Civ. Pro., § 1545.) [Title of cause.] I, M. R., the referee, appointed in this action by order of Code Civ. Pro.; for clerk's certificate ' See section 1546, Code Civ. Pro. of filing and recording same, see in- ' See section 1561, Code Civ. Pro. dorsement upon form No. 746. * See section 1548, Code Civ. Pro. ' See rule 6fi of Gen. Rules of Prac, See, also, note 1 to form No. 647. and section 1545 of Code Civ. Pro, Action fok Paktition. 519 the court, made and entered herein on the day of , 18 — , respectfully report : That having been attended by counsel for the several par- ties, who have appeared [and by E. F. (attorney for the) guardian art of said propertj^, and said F. D. is the owner of the one equal, undivided —^ part thereof. That it is proposed to make a partition of such property, and to give to said C. B., in severalty, the following de- scribed lots, pieces or parcels thereof, to wit [describing them], and to said F. B., in severalty, the following de- scribed lots, pieces or parcels thereof, to wit [describing them]. That M. H., of , is the [state relationship] of said infant, etc., and F. R., of , is the [state relation- ship] of said infant, etc. [or state other facts necessary to enable the court to give proper notice of the application]. That [here state anything further proper to be stated in regard to the rights and interests of the owners]. ' For form of supplemental sum- to be brought in. (Code Civ. Pro., § mons, see form No. 103. It should 453.) be directed only to the new defendant Action toe Partition. 543 And your petitioner prays that authority may be given by this court to your petitioner to agree to the partition of said real property in the manner aforesaid. [Verification as in form No. 52.] No. 669. Notice of Motion for Authority to Agree to Partition. (Code Civ. Pro., § 1591.) [Title of proceeding.] Sir— Take notice, that upon the petition, with a copy of which you are herewith served, a motion will be made, at a Term of the Court, to be held at, etc., on, etc., at the opening of the court, or as soon thereafter as counsel can be heard, for an order granting the prayer of the said petition, and for such other and further relief as may be proper. Dated , 18—. Yours, etc., M. N., Attorney for Petitioner. [Office address.'] To M. H., F. E., etc- No. 670. Order Granting Leave to Agree to Partition. (Code Civ. Pro., § 1591.) [At, etc., as in form No. 80. J [Title of proceeding.] On reading and filing the petition of M. B., as general guardian of C. B., an infant \pr insert other description of petitioner], dated , 18 — , with proof of due service of a copy thereof and of notice of this motion on C. B., M. H. and F. R., and on reading [name opposing papers], and on motion of G. H. of counsel for said petitioner, after hearing, etc. \or no one appearing to oppose] : ' See note 3 to form No. 133. 544 FoKMS Kelating to It is liereby ordered, [*] ttat the prayer of said petitioQ be and is hereby granted, and that leave is hereby granted to said M. B., as such general guardian, etc., to agree to the partition of the real property described in said petition, in the manner specified in said petition, and to execute re- leases of the right and interest of said infant, etc., in and to that part of the property which falls to the shares of the other joint tenants [or tenants in common thereof]. [Or as above to (*), and from thence as follows : That it be referred to I. M., of , to take testimony as to and report upon the merits of such application, and as to whether the interests of said C. B. will be promoted by such a partition, and that he make his report thereupon with all convenient speed.] No. 671. Order to Show Cause why the Application should not be Granted. (Code Civ. Pro., §1591.) [At, etc., as in form No. 80.] [Title of proceeding.] On the annexed petition of M. B., as general guardian of C. B., an infant [or insert other description of petitioner], and on motion of Gr. H., of counsel for said petitioner : It is hereby ordered, that M. H., of , and T. R., of , show cause, at a Term of this Court, to be held, etc. , why the prayer of the said petition should not be granted. And it is further ordered, that a copy of this order, together with a copy of said petition, be served upon said C. B., M. H. and F. R., on or before the day of , 18-.' ' See, as to cases in whicli orders to f erred to in note 1, page 386, to form. show cause ■will be granted, notes re- No. 503. Action for Partition-. 645 No. 672. Order on Return of Order to Show Cause. (Code Civ. Pro., § 1592.) [At, etc., as in form No. 80. J [Title of proceeding.] On reading and filing the petition, dated , 18 — , of M. B., general guardian of A. B., an infant [or other de- scription], for authority to agree to the partition of the real property of said A. B., described in the said petition, and order to show cause at this term why the prayer of said peti loner should not be granted, with proof of due service upon C. B., M. H. and P. R., of a copy of said petition and of said order, and on reading [name opposing papers] ; and after hearing G. H., for said petitioner, and R. H., for [or no one appearing to oppose] : It is hereby ordered [conclude as in form No. 670 from (*)]. No. 673. Referee's Report as to Merits of Application for Authority to Make Partition. (Code Civ. Pro., § 1592.) [Title of proceeding.] To the Court : I, I. M., to whom it was referred, by order of this court, dated , 18 — , to take testimony and report as to the merits of the application of M. B., general guardian of C. B., an infant \or other description], for authority to agree to the partition of the real property of said A. B., described in said petition, do hereby report : That I have been attended by counsel for the petitioner, and for [name any other parties attending reference], and have taken testimony as to such application, and have come to the conclusion, after carefully considering the matter, that the interests of the said C. B. will be promoted by such par- tition, my reasons therefor being as follows [state reasons], I have annexed to this, my report, my minutes of testimony 69 - ' 646 FoBMS Relating to taken before me, marked "Schedule A," and wMcli forms part of this, my report. , Dated , 18—. I. M., Referee. No. 674. Order Upon Referee's Report. (Code Civ. Pro., § 1593.) [At, etc., as in form No. 80.J [Title of proceeding. ] On reading and filing the report of J. M., appointed ref- eree herein by an order of this court, made and entered on the day of , 18 — , with proof of due ser- vice of notice of this application on C. B., M. H., and F. N., and on reading [name opposing papers] ; and after hearing G. H., of counsel for the petitioner, and R. F., for -. — \or no one appearing to oppose] ; It is hereby ordered, the court being of the opinion that the interests of C. B., the [infant], named in said petition in this proceeding, will be promoted thereby, that the said report be and the same is hereby, in all things, confirmed, and that F. B , the said petitioner, be and he is hereby authorized to agree to the partition of the real property of said C. B., described in said petition, and in the name of the said C. B. , to execute a release of his right, and inter- est in and to that part of the said property, which falls to the share of F. D., the joint tenant [or tenant in common, with said C. B., of said property].' Article Thied. FORMS RELATING TO ACTION FOR DOWER. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 3.) No. 675. Complaint in action for dower against heirs-at-law in possession. 676. Complaint in action for damages against heir who has aliened land, after recovery of dower 677. Order for interlocutory judgment for admeasurement of dower. 678. Interlocutory judgment for admeasurement of dower. ' As to the validity and effect of sugh release, see Code Civ. Pro., § 1593, Action for Dower. 547 No. 679. Oath of commissioners or referee. 680. Report of referee or commissioners appointed to admeasure dower. 681. Order for final judgment of admeasurement. 682. Final judgment of admeasurement. 683. Order of reference upon report that admeasurement is not prac- ticable. 684. Order on report of referee, as to a sum to be paid in lieu of dower. 68.i. Final judgment for amount in lieu of dower, etc. 686. Complaint in action for recovery of money falling due for dower. 687. Complaint in action to procure a sale of property for unpaid install- ments of dower. 688. Undertaking to prevent stay of execution on appeal from final judg. ment admeasuring dower. 689. Consent to accept a gross sum in satisfaction of dower. 690. Aflidavit to move for leave to pay gross sum in .satisfaction of dower. 691. Notice of motion for leave to pay a gross sum in satisfaction of dower. 693. Order granting leave to pay a gross sum in satisfaction of dower right. 693. Interlocutory judgment for sale in action for dower. 694. Consent of plaintiff to take a distinct parcel as her dower in lieu of ■ a gross sum. 695. Report of sale in suit for dower. 696. Final judgment upon report of sale by referee or sheriff in action for dower. No. 675. Complaint in Action for Dower Against Heirs-at-Iaw in Possession. (Code Civ. Pro., §§ 1596-1606.') [Title of cause.] The complaint of the above named plaintiff respectfully shows, that the said plaintiff was lawfully married to C. D., in his life-time, and lived and cohabited with him until the time of his death, wliich took place on the day of 18—.' ' 5 That the said C. D., during such marriage and cohabita- tion, and at the time of his death, was seized of an estate ' An action of ejectment cannot be 14 of Code Civ. Pro., see Draper v. maintained for the recovery of dower. Draper (11 Hun, 610). where an action of dower can be main- * The action must be commenced tained as prescribed in article third of within twenty years after the death of titleflrst of CodeCiv. Fro. (§1499, id.) the husband, except, etc. (See Code For form of complaint in ejectment for Civ, Pro., § 1596.) flower before "the enactment of chapter 648 Poems Relating to of inheritance of and in tlie following lands, situated in tlie county of , to wit [describe lands].' [*] That the defendants, E. F. and T. U., claim to be the owners of said land as the heirs-at-law of the said C. D., and are in actual possession and occupation thereof.' Wherefore the plaintiff asks jndgment that admeasure- ment may be made of her dower in the lands and premi- ses above described, and that a referee [or three reputable and disinterested freeholders], may be appointed [as com- missioners], for the purpose of making admeasurement thereof, pursuant to the provisions of the Code of Civil Procedure of this State in such case made and provided, and that she may recover from and against the defendants damages for withholding her said dower, to the amount of dollars/ together with the costs of this action.* M. ]Sr., Plaintiff's Attorney. [Office address."] [Verification as in forms Nos. 151, etc.] No. 676. Complaint in Action for Damages Against Heir who nas Aliened Land, after Eecorery of Dower from his Grantee. (Code Civ. Pro., § 1608.) As in form No. 675 to [*], and from thence as follows : ' As to description of property, see See as to dower in real property of Code Civ. Pro., §§ 1511, 1606. copartnership, "Winter v, Ecliert (17 2 See sections 1597, 1598, 1599, Code Week. Dig., 166.) Civ. Pro., as to defendants, in action A receiver appointed in supplemen- for dower. tary proceedings against a widow wlio ^ As to measure of damages to be re- is entitled to dower, wLicli has not covered, see Code Civ. Pro., §§ ICOO, been assigned to her, and which she ICOl, 1602, A demand of dower, has conveyed to such receiver, who has should be alleged, where the action also complied with the provisions of is against any other person than the section 2468 of Code Civ. Pro., for the heir, as the damages date from that vesting of her psoperty in him, is enti- time in such case. (§ 1600.) tied to maintain an action in his own Where a recovery is had in a case name, as receiver, to admeasure the not specified in section 1600, Code Civ. dower. (Payne v. Becker, 87 N. Y., Pro. , plaintiff's damages may be recov- 153; rev'g S. C, 22 Hun, 28.) eredforwithholding her dower from the See, further, Aikinan v. Harsell (63 commencement of the action. (§1601, How. Pr., 110; S. C, 31 Hun, 634; i(}.) Bartlett V. Musliner, 28 id., 2.^3; Joggg Action for Dowee. 54& That upon the death of said C. D., E. F., who was the heir- at-law of said C. D., became the owner as such heirat-law of said property. That after the death of said C. D., and on or about the day of , 18—, the said E. F. aliened and conveyed the said property to G. H. That an action was commenced in the ■ court by the plaintiff against said G. H. for the recovery of her dower in said property, and such proceedings were had therein that a judgment was made and entered therein on the day of , 18 — , for the recovery of her said dower. Wherefore the plaintiff claims to recover from defendant damages to the amount of dollars for the withhold- ing her dower from the time of the death of her said hus- band, as aforesaid, to the time of the alienation of said property by sa^'d E. F. to G. H., as aforesaid, with costs of this action. M. N., Plaintiff '' s Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] No. 677. Order for Interlocutory Judgment for Adiueacsurement of Dower. (Code Civ. Pro., § 1607.) [At, etc., as in form No. 80.] [Title of cause.] The defendant having made default in appearing [or in pleading {or the right of the plaintiff to dower not being disputed by the answer)] : It is hereby ordered, [*] that the plaintiff's dower in the real property described as follows, to wit [insert here par- ticular description of property], be admeasured by I. F., v.Zoller, 29 id., 551; Badger V. Badger, discretion of the court, and are gov- 88 N. Y., 546; Corrigan v. O'Connor, erned by the conduct of the parties. 15 Week. Dig., 60; Witthausv. Schack, (Aikman v. Harsell, supra.) 31 Hun, 590.) ^ See note 3, p. 94, to form No. 134. * The costs of the action are in the ' See note 3 to form No. 133. 6S0 Forms S,ELATiNft tO who is hereby designated as referee for that purpose [or by J. K., L. M. and M. N., three reputable and disinterested freeholders, who are hereby designated as commissioners for that purpose], [f] [And it is further ordered, that it be referred to H. P. to ascertain the amount of damages to which the plaintiff is entitled by reason of the withholding of her dower, and that he make his report thereupon to this court.'] No. 678. Interlocutory Judgment for Admeasurement of Dower. (Code Civ. Pro., § 1607.) [Title of cause.] Interlocutory judgment of the day of , 81 — It is adjudged, pursuant to the order of this court made and entered [or pursuant to the verdict {or report, or de- cision) rendered herein], on the day of , 18 — [thence proceed as in No. 677, from (*) to (f)]. J. L., Clerk. No. 679. Oath of Commissioners or Referee. (Code Civ. Pro., § 1608.) [Title of cause.] I [or we], do [severally] swear, that I [or we] will faith- fully, honestly and impartially execute the trust reposed in me [or in us] by the judgment entered herein, on the day of , 18 — , as referee [or as commissioners] ap- pointed to admeasure the dower of the plaintiff in the prop- erty described in said judgment. J. K. L. M. M. N. [or I. P.] [Jurat as in form No. 46.] ' Such a report vrould be necessary reference, see Code Civ. Pro., sectioa only in tlie case of a default. As' to 1215. Action foe Dowek. S51 No. 680. Report of Referee or Commissioners Appointed to Admeas- ure Dower. (Code Civ. Pro., § 1610.) To the Court : I [or we], the subscriber [or siibscribers], referee {or com- missioners], appointed by an interlocutory judgment of this court, made and entered herein on the day of , 18 — , to admeasure the dower of A. B., widow of C. D., deceased, in the property hereinafter described [of which the said C. D., died seized], situated in the county of , do respectfully report, that I [or we], first hav- ing been duly sworn as required by law, faithfully, honestly and impartially to execute the trust reposed in me [or in us] as aforesaid, did, on the day of , 18 — , attend [or meet] at [on the premises hereinafter described], to execute the trust reposed in me [or in us] as aforesaid, and as well the said A. B. as the said E. F. and G. H,, in their proper persons [or by their attorneys] ap- peared at the time and place as aforesaid [or if they did not appear, state that they had been duly notified to appear at the time and place aforesaid], whereupon we, the said commissioners, caused a survey of the said lands and premi- ses, set forth in the said judgment, and herein more par- ticularly described, to be made, in the presence of the said parties ; that is to say [hereby describe the premises agree- ably to the survey], a map of which survey is hereto an- nexed ; and I [or we] do further report, [*] that I [or we] have admeasured and laid off to the said A. B., for her dower, the one-third part of the said premises, as follows [here describe the part set off to the widow, particularly designating it by posts, stones or other permanent monu- ments]. [Or as above to (*), and from thence as follows : That it is not practicable {or that in my, or our opinion, it is not for the best interests of all the parties concerned) to admeasure, and lay off to the plaintiff, a distinct parcel of the said prop- erty, and the following are the reasons for such opinion, to wit (here state fully the reasons, and all the facts relat- ing thereto.] 652 FoBMS Belating to I [or we] do farther report, that the following are the items of my [or our] charges attending the said admeasurement, including our fees as commissioners [or my fees as referee] : Five days' services [of each commissioner] at five dollars per day [for each], $75 00 Cash paid P. W. for five days' services as sur- veyor, at five dollars per day, - 25 00 Cash paid for two assistants to said P. W., at two dollars per day for each, 20 00 $120 00 In witness whereof, I [or we] have hereunto set our hands, this -— day of , 18 — . J. K., 1 L. M., y Commissioners. M. N.,j Or I. F., Referee. [Certificate of acknowledgment or proof as in forms Nos. 340, 638.] No. 681. Order for Final Judgment of Admeasurement. (Code Civ. Pro., §1013.) [At, etc.; as in form No. 80. j [Title of cause.] On reading and filing the report of J. K., L. M. and M. N., commissioners [or of I. F., referee] appointed pursuant to the interlocutory judgment made and entered herein on the day of , 18 — , to admeasure the dower of the lolaintiff, C. D., in the property situated in the county of , described in said judgment, which report bears date on the day of , 18 — , and by which report it appears, among other things, that the said commissioners [or referee] have [or has] caused a survey to be made of the lands and premises in the said judgment particularly de- ' scribed, and caused a map thereof to be made, and that they have admeasured and laid off to the said A. B., for her dower, the one-third part of the said lands and premises, ACTIOH FOR BOWEE. 653 wMch. said one-third part is hereinafter described, and due notice of this motion having been given to defendant's at- torney, and on reading [name opposing papers] : Now, on motion of A. F. for the plaintiff, after hearing P. R. for the defendant : It is hereby ordered, that the said report and admeasure- ment be confirmed. And it is further ordered, that the said C. D. ["*] be and she is hereby awarded, during her natural life, the possession of the premises described as follows, to wit [here insert de- scription], subject to the payment of all taxes, assessments and other charges accruing thereon after she takes posses- sion thereof, and that the plaintiff recover from and against the defendant the amount of damages to which she is enti- tled for the withholding of her dower by the defendant, and that H. F. be and he is hereby appointed referee to ascertain the amount of such damages [and that the said referee make his report to this court thereupon for its further action],' and that plaintiff recover also from and against the defend- ant her costs of this action. ISTo. 682. Final Judgment of Admeasurement. (Code Civ. Pro., § 1613.) [Title of cause.] • Judgment of the ^ day of , 18—. An order of this court having been made and entered herein, on the day of , 18 — , confirming the report of the commissioners [or referee] herein, dated , 18 — , and awarding to the defendant, C. D., during her natural life, the possession of the premises described as follows, to wit [insert description], subject to the payment of all taxes, assessments and other charges accruing thereon after she takes possession thereof, and the report of H. F., appointed referee by said order, having been made and filed, by which he awards to the said defendant the sum of dollars, as the amount of her damages for the withholding ' If this clause is omitted final judg- accordance with the report of the ref- ment may be entered by the clerlt in eree. (Code Civ, Pro., § 1315.) 70 654 FoBMS Relating to of her dower by the defendant' [and an order having been duly entered confirming said report and directing the pay- ment of said amount by the defendant] : It is hereby adjudged, that the plaintiflE is hereby awarded, during her natural life, the possession of the above described premises, subject as hereinbefore stated, and that the plain- tiff, C. D., recover from and against the defendant, , the said sum of dollars damages, and the further sum of dollars for her costs of this action, in all amounting to the sum of dollars. J. L., Cleric. •5 No. 683. Order of Reference Upon Report that Admeasurement is not Practicable. (Code Civ. Pro., § 1613.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the report of , referee \or of , commissioners], appointed to admeasure the dower of the plaintiff in the property described in the complaint, by the interlocutory judgment, made and entered herein on the day of , 18 — , by which report it ap- pears that it is not practicable \or that in the opinion of the said commissioners {or referee) it is not -for the best inter- ests of all the parties concerned] to admeasure and lay off a distinct parcel of said property ; and due notice of this motion having been given to defendant's attorney, and on reading [name any opposing papers] : Now, on motion of , for the plaintiff, and after hearing , for the defendant \or no one opposing] : It is hereby ordered and directed, that it be referred to J. M., as referee, to ascertain a sum equal to the one- third of the rental value of the said property to be paid to the plaintiff annually \or name other time] during her natural life, for her dower, in the said property, and to ascertain the amount of plaintiff's damages by reason of the withholding of her dower by the defendant, that, upon the coming in of the report of said referee, the court may make such further order as may be necessary. Action fok t)owER. BbS No. 684. Order on Report of Referee as to a Sum to be Paid in lieu of Dower. (Code Civ. Pro., § 1613.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the report of J. M., referee, ap- pointed by order of this court, dated on the day of , 18 — , and due notice of this motion having been given to defendant's attorney, and on reading [name opposing papers] : Now, on motion of , for the plaintiff, after hear- ing , for the defendant [or no one appearing to op- pose] : It is hereby ordered, that the sum of dollars, being the amount ascertained by the said report, equal to the one-third part of the rental value of the property de- scribed in the complaint in this action, be paid to the plain- tiff annually [or name other time or times of payment] during her natural life, for her dower in the said property, and that the said sums so to be paid be and remain a charge upon the said property during her natural life, and that the plaintiif recover in this action, from defendant, the amount of her damages for the withholding of her dower, as found by said referee, to wit, the sum of dollars, and her costs of this action, and that plaintiff have iudgment ac- cordingly. No. 685. Final Judgment for Amount in Lieu of Dower, etc. (Code Civ. Pro., § 1613.) [Title of cause.] Judgment of the day of , 18—. It is adjudged, pursuant to.the order of the court, made and entered herein on the ■ day of , 18—, that the sum of — ^ — — dollars, being an amount equal to one-third part of the rental value of the property described in the complaint in this action, be paid to the plaintiff 556 FoEMS !RELATmG Td [annually] during her natural life for her dower in the said property, and that the said sums so to be paid be and re- main a charge upon the said property during his natural life, and that the plaintiff also recover from defendant the amount of her damages for the withholding of her dower, to wit : the sum of dollars, together with dollars costs of this action. J. L., Clerk. No. 686. Complaint in Action for EecoTery of Money Falling Due for Dower. (Code Civ. Pro., § 1614.) [Title of cause.] The complaint of the above named plaintiff respectfully shows : That she is the widow of A. B., deceased, and as such was entitled to dower in the lands of which said A. B. was seized of an estate of inheritance at any time during her marriage with A. B. That after the death of said A. B., which occurred on the day of , 18 — , said plaintiff commenced an action for her said dower against F. F., the heir-at-law of said A. B., who was then, as such heir-at-law, in possession of and claiming title to the lands owned by said A. B. at the time of his death, and such proceedings were had in said ac- tion, that on the day of , 18—, a final Judg- ment was entered therein directing that the sum of • dollars be paid to the plaintiff [annually] during her natural life for her dower in the said property, and that the sums so to be paid be and remain a charge upon the said prop- erty during her natural life. And plaintiff further shows, that the installment of said amount so awarded to her for her dower, which fell due on the day of , 18—, being the sum of dollars, remains wholly unpaid ; [*] that at the time such installment fell due, as aforesaid, the defendant was the owner of said property. Wherefore the plaintiff asks judgment against the de- Action for Dowee, 657 fendant for the recovery of the said sum of dol- lars, with interest thereupon from the said day of , 18 — , and for the costs of this action. M. N., Attorney for Plaintiff. [Office address.'] [Verification as in forms Nos. 151, etc.] No. 687. Complaint in Action to Procure a Sale of Property for Unpaid Installments of Dower. (Code Civ. Pro., § 1614.) As in form No. 686 to [*], and from thence as follows : That said defendants [naming them], have, or claim to have, some interest in, or lien upon, the said lands and premises, or some part thereof, which interest or lien, if any, has ac- crued subsequently to the rendition of the said judgment, or subsequently to the said dower right. The plaintiff, therefore, demands that the defendants, and all persons claiming under them, subsequent to the com- mencement of this action, may be barred and foreclosed of all right, claim, lien and equity of redemption in the said premises. That the said premises, or so much thereof as may be sufficient to raise the amount due to the plaintiff for prin- cipal, interest and costs, and which may be sold separately without material injury to the parties interested, may be decreed to be sold according to law ; that out of the moneys arising from the sale thereof, the plaintiff may be paid the amount due on the said judgment, with interest to the time of such payment, and the costs and expenses of this action, so far as the amount of such moneys, properly applicable thereto, will pay the same, and that the plaintiff may have such other or further relief, or both, in the premises as shall be just and equitable, with costs of this action. M. N., Plaintiff's Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] ' gee potc 3 to form No, 1??. 558 Forms Relating to No. 688. Undertaking to Prevent Stay of Execution on Appeal from Final Judgment Admeasuring Dower. (Code Civ. Pro., § 1616.) [Title of cause.] Whereas, a final judgment was entered in the above enti- tled action, on the day of , 18—, admeas- uring and laying off to the plaintiflE a distinct parcel of the property described in the complaint in the above enti- tled action as her dower in said property and awarding to her during her natural life the; possession of that parcel [and for the recovery of dollars damages and costs]; and, Whereas, the defendant has appealed from the said judg- ment to the [General Term] of the [Supreme] Court ; Now, therefore, pursuant to the statute in such case made and provided, I, L. M., of ,' farmer, do hereby undertake that if the said judgment appealed from is re- versed or modified, and restitution is awarded, the said plaintiff and respondent [C. D.] will pay to the person en- titled thereto the value of the use and occupation of the part so admeasured and laid off to her, or of the portion of which restitution is awarded, during the time she holds possession thereof, pursuant to the said judgment. [Add words following the (f) in form No. 538, to end of that form, where the judgment awards damages and costs, if a stay is desired of their collection.'] L. M. In presence of . [Acknowledgment or proof and affidavit of justification and approval as in forms Nos. 340, 538. J No. 689. Consent to Accept a Gross Sum in Satisfaction of Dower. (Code Civ. Pro., §1617.) [Title of cause.] I, C. D., the plaintiff in the above entitled action, do ' One or more sureties. (Code Civ. approval, etc., and notes to forms Nos, Pro., § 1G16.) See, also, sections 810, 340, 341. 811, 813, as to forro of undertE^king, ^ gpg not? 1 to forni No 540, Action for Dower. 559 hei-eby consent to [*] accept a gross sum in full satisfaction and discharge of my right of dower in the real property de- scribed in the complaint in the above entitled action. In witness whereof, I have hereunto set my hand, this day of , 18—.' C. D. In presence of . [Certificate of acknowledgment, or proof, as in forms JSTos. 340, 638. J No. 690. Affidavit to Move for leave to Pay Gross Sum in Satisfac- tion of Dower. (Code Civ. Pro., § 1618.) [Title of cause.] County, ss. : E. F., of , being duly sworn, says, that he is the defendant [or one of the defendants] in the above entitled action. That said action is brought to [state object of action, and what proceedings have been had]. That the plaintiff has filed with the clerk of county,' in which said action is triable, her consent to accept a gross sum in full satisfaction and discharge of hef dower right in the premises described in the complaint in said ac- tion, duly acknowledged [or proved], and has served upon deponent a copy of such consent, of which consent a copy is also hereto tinnexed ; and deponent desires the leave of this court to pay such gross sum. [Jurat as in form No. 46.] E. F. ' A copy is to be served, witli notice Aliter, it seems, if the right of dower of the filing, on each adverse party who had been determined, and a sale of the has appeared, or who appears after the premises adjudged before plaintiff's filing. (Code Civ. Pro., § 1617.) death. (Id.) Upon the death of the widow the ac- See, also, Fulton v. Fulton (8 Abb. tion abates, although the consent has IT. C, 210). been filed previously thereto. (Mc- ' See Code Civ. Pro., §§ 1617 and Seen V. Fish, 19 Week. Dig., 403.) 3343, subd. 4, as to filing consent. 660 Poems Relating to No. 691. Notice of Motion for Leave to Pay a Gross Sum in Satis- faction of Dower Right. (Code Civ. Pro., § 1618 ) [Title of cause.] Sir— -Take notice, that a motion will be made at a [Special] Term of the Court, to be held at, etc., on, etc., at the opening of court, or as soon as counsel can be heard, upon the affidavit hereto annexed, and upon the consent of the plaintiff filed in said action, a copy of which is also hereto annexed, and upon the pleadings and proceedings in the above action, for an order granting leave to the defend- ant to pay a gross sum to the plaintiff, in full satisfaction and discharge of her dower right in the property described in the complaint in this action, and for such other and fur- ther relief as may be proper. Dated , 18—. Yours, etc., M. N., Attorney for Defendant. [Office address.'] To P. R., Attorney for Plaintiff. No. 692. Order Granting Leave to Pay a Gross Sum in Satisfaction of Dower Right. (Code Civ. Pro., §1618.) [At, etc., as in form No. 80. J [Title of cause.] On reading and filing the affidavit of E. F., dated , 18 — , to which is annexed a copy of the consent of the plaintiff to accept a gross sum in full satisfaction and discharge of her dower right in the property described in the complaint in this action, with notice of motion for leave to pay such gross sum in satisfaction as aforesaid, and on filing proof of due service of said notice of motion on plaintiff' s attorney, and the court having ascertained the value of the plaintiff's 1 See note 3 to form No. 133, Action foe Dower. 561 right of dower in the said property to be the sum of dollars, and on motion of M. IS", for the defendant, after hearing P. R. for the plaintiff, [or no one opposing] : It is hereby ordered and directed, that the defendant pay the sum so ascertained within [sixty] days after service of a copy of this order. And it is further ordered and directed that the plaintiff, upon I'eceipt of said amount of money, execute [to the de- fendant] a release of her said right of dower. No. 693. Interlocutory Judgment for Sale in Action for Dower. (Code Civ. Pro., §§ 1619, 1620.) [At, etc., as in form No. 80. j [Title of cause.] The ccmsent of the plaintiff, duly executed and acknowl- edged, having been filed, by which she consents to accept a gross sum in full satisfaction and discharge of her right of dower in the property described in the complaint in this ac- tion, and, on the application of the plaintiff {or defendant], the court having ascertained [by the report of A. F., duly appointed referee for that purpose], that a distinct parcel of the property, described in the complaint in this action, cannot be admeasured and laid off to the plaintiff as tenant in dower, without material injury to the interests of the parties : It is hereby ordered and directed, that the said property be sold by the sheriff of county [or by I. F., as referee] [here insert necessary provisions as to manner of sale and notice thereof, and to the distribution, investment and care of the proceeds, which are the same as in case of sale in partition (see form No. 651), so far as they are appli- cable, then add],' and that, upon the confirmation of such sale, each party to this action, and every person deriving title from, through or under a party, after the filing of the judgment roll, or of notice of pendency of this action, as > See Code Civ. Pro., § 1635, 71 562 Forms Relating to prescribed in article nintli of title one of chapter fourteen of the Code of Civil Procedure, be barred of and from any- right, title or interest in or to the said property sold,' Ko. 694. Consent of Plaintiflf to take a Distinct Parcel as her Dower, in Lieu of a Gross Sum. (Code Civ. Pro , § 1620.) As in form No. 689 to [*], and from thence as follows : Take a distinct parcel out of the [vacant {or unimproved')] lots described in the complaint in this action, in lieu of a gross sum, in full satisfaction and discharge of my right of dower in the said real property. Dated , 18—. CD. In presence of ; . [Certificate of acknowledgement as in form No^ 340, or proof as in form No. 538.] No. G95. Report of Sale in Suit for Dower. (Code Civ. Pro., § 1G33.) As in form No. 664 to [*], and from thence as foUoM^s : And I further report that I have received from said pur- chaser the amount required to be paid by him in cash, ac- cording to the terms upon which said sale was made, to wit : the sum of dollars, and the securities which were ' See Code Civ. Pro., g 1610. The and forms Nos 657, 658.) If the lien interlocutory judgment, in case of a is superior to the dower right, the judg- consent to take a portion of unim- ment should direct either that the sale proved and vacant lots as her dower, he made subject thereto, or that the under section 1630, will be similar to amount thereof be paid out of the pro- _form No. 678, and to the above form ceeds of the sale. (§ 1633, id.) No. 693, when a sale of a part is re- See note 1 to form No. 689, as to quired, except that the parcel is to be abatement of action. sot off in fee instead of for life, and ' Where all the property consists of that the admeasurement can only be vacant or unimproved lots, omit these made by commissioners. The forms words in brackets. (See Code Civ, for ascertainment of liens, are as pre- Pro., § 1630.) scribed in section 1561, (See § 1631, Action foe Dowek. 563 to be given by said purchaser, pursuant to said terms of sale, to wit [describe the securities received]. And that I have deducted from said cash proceeds of such sale, and retained in my hands, the sum of dollars, being the amount of any fees and expenses of such sale, of which the items are as follows [state the items]. And that I have paid out of the said proceeds, pursuant to the said interlocutory judgment, the following sums [here state payments made]. And that the net amount of the said cash proceeds of sale, after deducting the said payments, is the sum of dollars. And I further report that I have taken receipts for the a-mounts so paid, which are anhexed to this my report. All of which is respectfully submitted. Dated , 18—. M. R., Referee \or Sheriff.'] No. 696. Final Judgment upon Report of Sale toy Referee or Sheriff in Action for Dower. (Code Civ. Pro., § 1634.) [At, etc., as in form No. 80. J [Title of cause.] This cause having come on to be heard upon the report of sale of M. E,., sheriff [or referee], appointed by the inter- locutory judgment heretofore entered herein, to make the sale of the premises directed by said judgment to be sold, which report is dated on the day of — , 18 — , and due notice having been served upon the attorney for the defendant of motion at this term for confirmation of the said report and for final judgment thereupon ; Now, on motion of M. W., counsel for the plaintiff, after hearing P. F. for the defendant [or no one appearing to oppose] : It is hereby ordered- and adjudged, that the said report and the sale therein mentioned be and the same are hereby, in all respects, confirmed. 564 FoEMS Ktilating to And the court having ascertained by the report of E. F., to whom it was referred to report as to the rights and inter- ests of each of the parties in and to the proceeds of such sale,' and also what gross sum of money is equal to the value of the plaintiff's dower in the net proceeds of the sale, calculated upon the principles applicable to life annuities, that the sum of dollars is equal to the value of said dower, and that the defendant, C. M., is entitled to the one- part of remainder of said proceeds, and the defend- ant, P. R., is entitled to the other one part of the said remainder. It is further ordered and adjudged, that the gross sum, so ascertained, be paid to the plaintiff in full satisfaction of her said right of dower, and -that the remainder of the pro- ceeds be distributed among the said persons entitled thereto, according to their said respective interests therein. Article Fourth, forms relating to action to foreclose a mortgage. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 4.) No. 697. Complaint in action to foreclose a mortgage. 098. Complaint in foreclosure of infant's mortgage, executed pursuant to order of court. 699. Answer of infants iiT foreclosure suit. ' 700. Affidavit on motion for reference in action to foreclose mortgage. 701, Order of reference in action to foreclose mortgage. - 703. Referee's report of amount due, etc., in action for foreclosure of mortgage. 703. Final judgment in action for foreclosure of mortgage. 704. Judgment for deficiency in action for foreclosure of mortgage. '- 705. Notice of pendency of action to foreclose mortgage. "^ 706. SherifE's or referee's deed in action to foreclose mortgage. ^ 707. Report of sale in action for the foreclosure of mortgage. 708. Order confirming report of sale. 709. Notice of claim to surplus moneys. 710. Notice of motion for reference to obtain surplus moneys. 711. Affidavit on motion for reference on claim to surplus moneys. 712. Order of reference as to claims on surplus moneys. 713. Summons of referee upon such reference. 714. Certificate of clerk as to filing notices of claim to surplus moneys: 1 Or state other manner in which these rights, interests, etc., were ascer- tained. Action to Foreclose Moktoage. 565 No. 715. Claim of creditor before referee to surplus moneys. 71 6. Referee's report as to surpl\is moneys. 717. Notice of motion for payment of surplus moneys to claimant. 718. Order for payment of surplus moneys. 719. Complaint in action for strict foreclosure. 720. Judgment of strict foreclosure. 731. Complaint in action to redeem mortgaged premises by heirs-at-law against mortgagee in possession. 723. Same, by mortgagor against mortgagee. 733. Same, by lessee against mortgagor and mortgagee. 734. Judgment in action for redemption of mortgaged premises. 725. Affidavit on application for writ of assistance in foreclosure suit. 736. Writ of assistance in foreclosure suit. No. 697. Complaint in Action to Foreclose a Mortgage. (Code Civ. Pro , §§ 1C39, etc.) [Title of cause.] The complaint of the above named plaintiff respectfully shows to this court, upon information and belief, that the defendant, C. D., for the purpose of securing the payment to E. F. of the sum of dol'ars, with interest thereon, on or about the day of , 18^, executed and delivered to said E. F. a bond bearing date on that day, sealed with his seal, whereby the said C. D. did bind him- self, his heirs, executors and administrators in the penalty of dollars, upon condition that the same should be void if the said C. D., his heirs, executors and administrators should pay to the said E. F., his executors, administrators or assigns, the said sum of money first above mentioned, as follows [here insert condition of the bond], and as collateral security for the payment of the said indebtedness, the said C. T>. [and his wife, the defendant, F. D.], on the same day executed, duly acknowledged and delivered to the said E. F. a mortgage, whereby he [or they] granted, bargained and sold to the said E. F. the following described jiremises, with the appurtenances thereto, that is to say [here insert de- scripRon of property from mortgage]. That the said mortgage contained the same condition as the said bond and the further condition that if the said mortgagor should not pay the moneys thereby secured, ac- 566 FoEMS Relating to cording to tlie terms thereof, then the said CD., his heirs, "executors, administrators or assigns were empowered to sell the said mortgaged premises in due form of law, and out of the moneys arising from such sale to pay the said sum of money and interest in and by said bond secured to be paid, with the costs and expenses of the proceedings thereupon, the surplus, if any there should be, to be returned to the mortgagcjr, his heirs, executors, administrators or assigns. And the plaintiff further shows, that the said mortgage was duly recorded in the office of the clerk of the county of , on the day of , 18—, in book No. — of mortgages, page — . [And it was further expressly agreed in and by said bond and mortgage that should any default be made in the pay- ment of principal or interest, or of any part thereof, on any day whereon the same was made payable, and should the same remain unpaid and in arrears for the space of days, then and from thenceforth, that is to say, after the lapse of the said days, the aforesaid principal sum of dollars, with all arrearages of interest thereon, should at the option of said B. F., his executors, adminis- trators or assigns, become and be due and payable immedi- ately thereafter, although the period limited, as above set forth, for the payment thereof might not then have expired, anything thereinbefore contained to the contrary thereof in anywise notwithstanding.'] [And it was also agreed, by and between the parties to said bond and mortgage, that the said C. D. should and would keep the buildings erected and to be erected upon the lands described in said mortgage, insured against loss or damage by fire, by insurers and in an amount approved by the said E. F., not exceeding dollars, and assign the policy and certificate thereof to the said E. F., party of the second part and his assigns, and in default thereof it should be lawful for the said E. F. to effect such insurance, as mortgagee or otherwise, and the premium or premiums paid for effecting and continuing the same should be^ien on the said mortgaged premises, added to the amount ' This clause should be inserted when amount is due by reason of the non- it is necessary to claim that the whole payment of the interest or principal. Action to Foreclose Mortgage. 667 secured by the said bond and mortgage and payable on de- mand, with interest at the rate of per centum per annum. 1] That no other action has been brought to the knowledge or belief of the plaintiffs, to recover any part of said mort- gage debt. [Or that an action was brought heretofore in the Court, by the plaintiff, against said C. D., for the recovery of said mortgage debt ; that final judgment for tlje plaintiff was rendered therein on the • day of , 18 — , for the recovery against said C. T>. of the sum of dollars, and that an execution against the property of the said C. D. has been issued thereupon to the sheriff of the county of = — , where said C. I), resided at the time said execution was issued {or where the judgment roll upon said judgment is filed), and has been returned wholly un- satisfied {or that the sum of dollars was collected upon said execution, which was afterwards, on the day of , 18 — , returned unsatisfied as to the balance of said judgment).'] [That on the day of , 18 — , by deed dated that day, the defendant; C. D. (and his wife, the defendant, F. D.), conveyed the said premises described in said mort- gage, subject to the said mortgage, to the defendant, H. M., by which deed the said H. M. covenanted to assume and pay the said mortgage, as a part of the consideration of the said conveyance, which deed was duly delivered to and accepted by said H. M.=] [That the said mortgaged premises consist of (describe the premises and buildings) ; that the said buildings are. old and out of repair, and rapidly deteriorating ; that the pres- ent value of the premises does not exceed dollars, and the same are subject to a prior mortgage, on which the sum of dollars is due ; that they are a slender and inadequate security for the plaintiff's mortgage debt, and ' Insert this clause -when claim is for the payment of the debt, secured made for premium of insurance paid by the mortgage, may be made a de- by mortgagee. fendant in the action ; and if he has * See Code Civ. Pro., §§ 1629, 1630. appeared or has been personally served ' By section 1637, Code Civ Pro., -with the summons, the final judgment any person who is liable to the plaintiff may award payment by him of the 668 FoEMS Relating to that the defendants personally liable therefor are in- solvent.'] [And the plaintiff further shows, that the said bond and mortgage have been, before the commencement of this ac- tion, duly assigned to the plaintiff for a valuable consid- eration, and are now owned and held by the plaintiff.] And the plaintiff further shows, th;it the said defendant, C. D., has failed to comply with the conditions of the said bond and mortgage, by omitting to pay the sum of dollars, which, by the terms and conditions of said bond and mortgage, became due on the day of , 18—, and there is now justly due the plaintiff, upon the said bond and mortgage, the sum of ■ dollars, with interest thereupon from the day of , 18 — [together Avith insurance premiums paid by the plaintiff upon said property, to insure the buildings erected there- upon; the said defendant, C. D., having failed to pay the said premiums as he covenanted to do in and by said bond and mortgage, viz.: ■ dollars paid , 18 — , and dollars paid , 18 — , to effect dol- lars of insurance, upon which payments interest is also due, from the times of their being made respectively.] And the plaintiff further shows, that he is informed and believes that the defendants, other than said mortgagor [or mortgagors], have, or claim to have, some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage. • The plaintiff therefore demands that the defendants and all persons claiming under them subsequent to the com- residue of the debt remaining unsatis- Tc seems, that the grantee in a con- fied after a sale of tlie mortgaged veyance by deed-poll, containing a property and the application of the clause assuming the payment of the proceeds pursuant to the directions mortgage, upon acceptance of the deed, contained therein. See, also, Schwin- becomes bound as covenantor to pay ger V. Hickok (53 N. Y. , 280), that a the mortgage. (Bowen v. Beck, 94 N. service upon a defendant other than Y., 86.) personal, by whom there is no appear- ' Insert this clause, or a similar one, ance, entitles the plaintiff only to a vphere a receivership is required of the judgment of foreclosure and sale and rents and profits, no personal judgment can be taken against him upon such a service, . Action to Foreclose Mortgage. 669 mencement of this action may be barred and foreclosed of all right, claim, lien and equity of redemption in said mort- gaged premises. That the said premises, or so much thereof as may be sufficient to raise the amount due to the plaintiff for prin- cipal, interest and costs, and which may be sold separately without material injury to the parties interested, may be decreed to be sold according to law. That out of the moneys arising from the sale thereof, the plaintiff may be paid the amount due on the said bond and mortgage with interest to the time of such payment, and the costs and expenses of this action so far ,as the amount of such moneys properly applicable thereto will pay the same. And that the defendant, C. D.' [and H. M.], may be ad- judged to pay any deficiency which may remain after .apply- ing all of said moneys so applicable thereto. [That a receiver may be appointed of the rents and profits of said premises, by order of the court, to apply the same towards the payment of the plaintiff's demand.'] And that the plaintiff may have such other or further re- lief, or both, in the premises as shall be just and equitable. ° M. ]Sr., Plaintiff's Attorney. [Office address.*] [Verification as in forms Nos. 151, etc.] ' The deficiency for whicli the moit- have so much of the deficiency as was gagor and obligor is liable, is to be as- caused by the mortgagor's omission to certained by deducting all prior liens, • pay taxes, treated as a preferred debt, including liens for taxes and assess- (Mitchell v. Bowne, 14 Week. Dig., 334; ments, from the net proceeds of sale, 63 How. Pr , 1.) and this is tlie case, although he has See, also, Siewertv. Hamel(19Week. conveyed the land to a purchaser who Dig , 407), Loeb v. Willis (22 Hun, 508), has assumed the payment of the mort- Goodwin v. Simonson (74 N. Y., 133), gage. (Marshall v. Da vies, 78 N. Y., Moore v. Shaw (15 Hun, 428; appeal 414; rev'g S. C, 16 Hun, GOG.) dismissed, S. C.,-77 N. Y., 512), Van- Where the mortga;gor being person- derbilt v. Schreyer (13 Abb. N. C, ally liable for the deficiency, has died, 390; S. C, 91 N. Y., 393; rev'g S. C, his personal representatives may be 21 Hun, 537), Hencken v. James (16 made parties; and, in case of a defi Week Dig., S3), Mutual Life Ins. of ciencyuponthe sale, the plaintiff is en- N. Y. v. Hoyt (15 Week. Dig:, 489), titled to payment thereof out of the Payne v. Smith (28 Hun, 104), further mortgagor's personal property. (Gla- as to deficiency, cius V. Fogei, b« N. Y., 434.) As to what words in a mortgage exe- He is entitled also, in such case, to ciited without a bond, or other separate 78 670 FoKMS Relating to No. 698. Complaint in Foreclosnre of Infant's Mortgage Executed Pursuant to Order of the Court. (Code Civ. Pro., § 1629, etc.) [Title of cause.] The complaint of the above named j)laintifEs respectfully shows to this court, upon information and belief, that a petition was heretofore presented to this court by the de- fendant, M. C, an infant over fourteen years of age, and by the defendants, E. C, E. F. C, C. M. C. and C. C, infants under the age of fourteen years, by the defendant, C. C, their mother and next friend, praying for the mortgaging of the right, title and interest of said infants in the real estate therein and hereinafter mentioned and described, and such proceedings were afterwards had in said court upon the said petition that, by an order of said court, made on the day of , 18 — , one M. C. was appointed the special guardian of said infants for the purposes of such application, upon his giving the security therein required, and such securitj^ duly acknowledged and approved, was subsequently duly filed by said guardian in the proper office. That by another order of said court, made in said pro- ceeding on the day of , 18 — , the said M. C. was authorized and empowered to contract for the mort- gaging of the right, title and interest of the said infants in the said real estate, for an amount not exceeding that speci- fied in the referee' s report, referred to in said order, and upon the terms and conditions therein mentioned, to wit, for dollars, payable in years, at least, or a longer time. instrument, by a marriecl woman, will tiH, lie cannot, at the sale, require the not bind her personally for the payment officer to sell subject to the second of the debt, see Mack v. Austin (95 N. mortgage, as that is cut ofE by the fore- Y., 513), aff'g S. C, 29 Hun, 531) closure. (Homoeopathic Mut. L. Ins. ^ As to appointment of receiver of Co. v. Sixbury, 17 Hun, 434.) rents and profits, see Hollenbeck v. See, also, that the plaintiff may claim Donnell (94 N. Y., 342; rev'g S. C, 29 the surplus in such a case, under the Hun, 94), Burlingame v. Parce (13 second mortgage, if the land was sold Hun,. 144), Argall v. Pitts (78 N. Y., free from it, Mutual Life Ins. Go. v. 239), Smith v. Kelley (31-Hun, 387). Truchtnicht (3 Abb. N. C, 135.) ^ Where the complaint does not refer ^ See note 3 to form JTo. 133, to a second mortgage held \ij the plain- Action to Foreclose Moktgage. 571 That in pursuance of the last mentioned order the said special guardian afterwards made his report to said court, dated , 18 — , whereby he reported that he had entered into an agreement, subject to the approval of said court, with the plaintiffs, for the mortgaging to said plain- tiffs of all the right, title and interest of said infants in and to the said real estate, upon the terms and conditions therein mentioned, to wit, providing for the execution, by said guardian, of a mortgage in the names of said infants, to said plaintiffs, for the amount and time and upon the terma and conditions for and upon which said mortgage was exe- cuted, as hereinafter set forth. That by another order of said court, made in said pro- ceeding on the day of — , 18 — , it was ordered that the said report of said special guardian, and tlie agree- ment therein mentioned, be and the same were thereby rati- fied and confirmed, and that the said special guardian, in the names of said infants, execute, acknowledge and deliver to the said plaintiffs a good and sufficient mortgage, con- taining the terms and conditions provided by said agree- ment, of all the estate, right, title and interest of the said infants in and to the said premises, being the fee simple thereof, subject to their mother's dower interest therein, as hereinafter mentioned, upon the said plaintiffs complying with the terms and conditions upon which, by the said agree- ment, such mortgage was to be delivered, to wit, the payment to said special guardian by them of the sum of dollars. That the said plaintiffs thereupon complied with the said terms and conditions of said agreement on their part to be performed, and paid to said special guardian the said sum of dollars. That the said infants, by their said special guardian, in virtue of the several orders aforesaid, and in pui suancc of the statute in such case made and provided, in considera- tion of the sum of ■; dollars paid to their said guard- ian as aforesaid, and said «C. C, the mother of the said infants, and who had a vested dower right in said premises as the widow of M. C, deceased, the father of said infants, in consideration of the sum paid to said special guardian, fin4 of one floUar to her in hand paid, for the purpose of 672 FOEMS RELATINa TO releasing lier said dower interest in said premises to said plaintiffs [said C. C. thereby agreeing in consideration afore- said that she would not assert or set up her said dower interest in said premises as against said mortgage and against the said plaintiffs, the mortgagees therein named, their successors or assigns], on the day of , 18 — , as security for the payment of said principal sum of dollars, with interest thereon as hereinafter men- tioned, executed, duly acknowledged and delivered to the said plaintiffs a moi'tgage whereby they granted, bargained and sold to the said plaintiffs the following described premises, with the appurtenances thereto, that is to say [insert description of property from mortgage], upon the express condition that if the said parties of the first part should well and truly pay unto the parties of the second part, their successors and assigns, the sum of dol- lars in years from the date of said mortgage, with lawful interest thereupon at the rate of per centum per annum, payable semi-annually from the date thereof [with the privilege, however, to the parties of the first part of paying said principal sum at the expiration of three years from the date thereof, upon giving thirty days' pre- vious notice in writing to the parties of the second part of their intention to make such payment], and should keep the buildings erected or thereafter to be erected upon said premises insured in some solvent, incorporated and to be approved of fire insurance company in this Slate against loss or damage 'by fire, in the sum of at least dol- lars, and should assign and deliver the policy or policies of such insurance, and the receipts or certificates of renewal thereof to the said parties of the second part, their succes- sors or assigns, so and in such manner and form that they should at all time and times, until the full payment of the said moneys, have and hold the said policy or policies as a collateral and further security for the payment of all moneys due or to become due under said mortgage, and should, during all the time until all the said moneys secured by said mortgage should be fully paid and satisfied, pay and discharge, immediately after they should be or become due or payable, all taxes, water-rates, assessments and other Action to Fokeclose Mortgaoe. 673 charges which, might be levied, laid or assessed upon the above described premises, or any part thereof ; that then the said mortgage and the estate thereby granted should cease, determine and become nail and void. And the plaintiffs further shovs^, that the said mortgage was duly recorded in the office of the clerk of the county of , on the day of , 18 — , at o'clock p. M., in book No. — of mortgages, at page — , etc. And the plaintiffs further show, that the said defendants have failed to comply with the conditions of the said bond and mortgage, among other things by omitting to pay the sum of dollars of principal, which, by the terms and conditions of the said mortgage, became due on the day of , 18 — , and the interest thereupon from the day of , 18 — , and insurance premiums, as hereinafter mentioned, and there is now Justly due the plaintiffs upon the said mortgage the sum of dollars, with interest thereupon, as provided by said mortgage, from , 18 — , and insurance premiums paid by the plaintiffs upon said property on dol- lars of insurance, viz., dollars, on or about the day of , 18 — , and dollars on the day of , 18 — , and interest at the rate of six per centum per annum upon said insurance premiums from the times of their payment respectively, as afore- said. And the plaintiffs further show, that no other action has been brought to the knowledge or belief of said plaintiffs, to recover any part of said mortgage debt. And the plaintiffs further show, that they are informed and believe that the defendants above named, other than said mortgagors, viz., W. F. and M. B., have or claim to have some interest in or lien upon said mortgaged premises, or some pare thereof, which interest or lien, if any, has ac- crued subsequently to the lien of the said mortgage. [And the plaintiffs further show, that on the day of , 18 — , the said S. B., the mortgagee above men- tioned, by instrument in writing dated that day and duly 674 Forms Relating tO delivered, sold, transferred and assigned, for a valuable consideration, the said mortgage to the j)laintiflfs.'] The plaintiffs therefore demand, etc. [insert prayer for relief as in last form No. 697]." A. B., Attorney for Plaintiffs. [Office address.'] [Yerification as in forms Nos. 151, etc.] No. 699. Answer of Infants in Foreclosure Snit. (Gen. Rules of Prac, Ko. 60.) [Title of cause.] The defendants, E. F. and G. H., by M. K, their guard- ian ad litem, answering the complaint of the plaintiff, say, that they are strangers to all and singular the matters and things in the said complaint contained ; that these defend- ants are infants under the age of twenty- one years, and claim such interest in the premises, in the said complaint mentioned, as they are entitled to, and submit their rights and interests to the protection of the court.' A. P. {^Attorney for\ Ouardian ad'litem. [Office address. '] ISTo. 700. Affidavit on Motion for Reference in Action to Foreclose Mortgage. (Gen. Rules of Prac, No. 60.) [Title of cause.] County, ss.: A. B., of , being duly sworn, says, that he is the plaintiff's attorney in the above entitled action. ' If the mortgage lias been assigned estate of infants, see Code Civ. Pro., the proper changes must be made in §§ 2348, etc. See, also, notes to last above form. form No. 697. " If a receivership is demanded, in- ^ See note 3 to form No. 122. sert also necessary allegations, as in last * The answer need not be verified, form No. 697. (Code Civ. Pro., § 543.) For proceedings in mortgaging real ' See note 2 to form No, 133, AOTTON TO POEECLOSE MORTGAGE. 67S That said action is brought to foreclose a mortgage upon real property situated in the of , in the county of . That the defendants [naming them] have failed to answer the complaint within the time allowed for that purpose. That the defendant, E. F., has answered the said com- plaint by his attorney, J. K, by which answer the rights of the plaintiff are admitted. That the infant defendant, I. J., has appeared by his guardian ad litem, M. N., and interposed the usual general answer submitting the rights of said infant to the protection of the court. That the defendant, K. L., is an absentee. A. B. [Jurat as in form No. 46.] No. 701. Order of Reference in Action for Foreclosure of Mortgage. (Gen. Rules of Piac, No'. 60.) [At, etc., as in form No. 80. J [Title of cause.] The summons in this action having been served on the defendants, C. D. and E. F. and I. J., personally [and on the defendant, G. H., by publication thereof, pursuant to the order of the court], and the defendant, C. D., having failed to answer within the time allowed for that purpose, and the defendant, E. F., having answered the complaint, by which answer the rights of the plaintiff are admitted, and the infant defendant, I. J., having appeared by his guardian ad litem, M. N., and interposed tlie usual general answer, submitting the rights of said infant to the protec- tion of the court : It is hereby ordered, that it be referred to K. L., as referee, to compute the amount due to the plaintiff [and to such of the defendants as are prior incumbrancers of the mortgaged premises (and to examine and report whether the mortgaged premises can be sold in parcels ')]. [f] « ' This clause in brackets is to be due. (Rule CO of 1880, Courts of inserted when the whole amount is not Record.) 576 Forms Relating to And it is further ordered, that said referee take proof of the facts and circumstances stated in the complaint, and that said referee examine the plaintiff, or his agent, on oath, as to any payments which have been made.' No. 702. Referee's Report of Amount due, etc., in Action for Fore- closure of Mortgage. (Gen. Rules of Prac, No. 60.) [Title of cause.] To the Court : In pursuance of an order of this court, made in the above entitled action on the day of , 18 — , at a [Special] Term of the Court, held at , by which it was referred to the undersigned referee to ascer- tain and compute the amount due to the plaintiff upon and by virtue of the bond and mortgage mentioned and set forth in the plaintiff's complaint in this action [and to such of the defendants as are prior incumbrancers of the mortgaged premises] [and to examine and report whether the mort- gaged premises can be sold in parcels] [and to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any pay- ments which have been made] : I, M. N., the referee in the said order named, do report that I have computed and ascertained the amount due to the plaintiff upon and by virtue of the said bond and mort- gage, and that I find, and accordingly report, that there is due to the plaintiff for principal and interest on the said bond and mortgage, at the date of this, my report, the sum of dollars [and that there is due to the defendant, E. F., the sura of dollars at the date of this, my report, upon the (mortgage) to him set forth in the complaint]. [And that I have taken proof of the facts and circum- stances stated in the complaint, and find the same to be as ' Insert froin [f], only when there if any of the defendants are absentees, are infant defendants who have put m (Rule 60, supra.) general answers by their guardians, or Action to Foeeclose Mortgage. 577 stated in said complaint, and tliat I have taken the exam- ination of the plaintiff {or of the plaintiff's agent), on oath, as to any payments which havfe been made upon the said bond and mortgage]. [And I have examined as to whether the said mortgaged premises can be sold in parcels, and report that they cannot be so sold for the reason that they consist of one piece of property, which cannot be subdivided without greatly im- pairing its value {or state other reasons)] [or that they can ' be sold in (two) separate parcels, as they consist of (two) distinct pieces of property in no way connected with each other {or state other reasons).] Schedule A, hereunto annexed, shows a statement of the amounts due for principal and interest respectively, the period of computation of interest and its rate.' Dated , 18—. M. N., Referee. Schedule A. One bond dated the day of , 18 — , in the penal sum of dollars, conditioned to pay dollars, as follows, which is accompanied by a mortgage of the same date. Principal sum due ■ — , dollars. Interest thereon from the day of , 18 — , being year, month and day, at per centum per annum, is dollars. Amount due plaintiff this — day of , 18 — , dollars. M. N., Referee. No. 703. Final Judgment in Action for Foreclosure of Mortgage. (Code Civ. Pro., §§ 1626, 1037.) [At, etc., as in form No. 80.] [Title of cause.] The summons in this action having been served on the defendants [recite manner of service as in form No. 701] : ' See notes to form No. 701. 73 678 Forms Relating to Now, on reading and filing the affidavit of M. N., attorney for the plaintiff, proving that no answer has been put in by any of the defendants within the time allowed for that pur- pose, denying the material facts of the complaint, and due notice having been given of this motion to such of the defend- ants as have appeared in this action ; and it appearing that the complaint in this action, and due notice of the pendency of said action, were duly filed in the office of the clerk of the county of , on the day of , 18 — , and an order of reference having been made to compute the amount due to the plaintiff upon the bond and mort- gage set forth in the complaint [and to such of the defend- ants as are prior incumbnancers of the mortgaged premises] [and to examine and report whether the mortgaged premises can be sold in parcels'] [and to take proof of the facts and circumstances stated in the complaint, and to take the examination of the plaintiff or his agent, on oath, as to any payments which have been made'], and on reading and filing the report of the referee named in the said order of reference, by which report, bearing date the day of , 18 — , it appears that there was due on said bond and mortgage, at the date of said report, the sum of dollars, and that [here recite other part of report as may be necessary] : Now, on motion of M. N., attorney for the plain ti ft, no one appearing for the defendants \_or after hearing, etc.] : It is adjudged, that [f] the mortgaged premises described in the complaint in this action, as hereinafter set forth, or such part thereof as is sufficient to satisfy the mortgage debt, the expenses of sale and the costs of this action, as provided by sections 1626 and 1676 of the Code of Civil Procedure, and which may be sold separately without ma- terial injury to the parties interested [ft], be sold at public auction in the county of , by or under the direction of J. K., referee [or by the sheriff of ■ — county] ; [*] that the said referee [or sheriff] give public notice of the ' This clause in bracl^ets is to be in- qnired where the defendant is an infant serted where the whole amount secured and has put m a general answer by his by the mortgage has not become due. guardian, or in case any of the delend- (Rnle fiO of Gen. Rules of Prac.) ants are absentees. (Id.) ^ Such proof and examination is re- Action to Pokeolose Mortgage. 579 time and place of such sale according to law, and the prac- tice of this court ; that the plaintiff, or any other party, may become a purchaser on such sale ; ' that the said referee [or sheriff] execute to the purchaser or purchasers a deed or deeds of the premises sold ; that out of moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, including therein all taxes, assess- ments and water rates which are liens upon the property sold, and the amount necessary to redeem the property sold from any sales for unpaid taxes, assessments or water rates which have not apparently become absolute, as provided by sections 1626 and 1676 of the Code of Civil Procedure, the said referee [or sheriff] pay to the plaintiff, or his attorney, the sum of dollars and cents, adjudged to the plaintiff for costs and charges in this action, with interest from the date hereof, and also the amount so reported due as aforesaid, together with the legal interest thereon from the date of the said report, or so much as the purchase money of the mortgaged premises will pay of the same, take a receipt therefor and file it with his re- port of sale ; that he pay over the surplus moneys arising from the said sale, if any there should be, to the treas- urer of the county of [or to the chamberlain of the city of New York'], within five days after the same be received and ascertainable, subject to the further order of the court ; that he make a report of such sale, and file it with the clerk of this court, with all convenient speed ; that if the proceeds of such sale be insufficient to pay the amount so reported due the plaintiff, with the interest and costs as aforesaid, the said referee [or sheriff] specify the amount of such deficiency in his report of sale, and that the defendant, C. F.,' pay to the plaintiff the residiie of ■ By section 1679, Code Civ. Pro., contrary to that section is declared certain officers are prohibited from pur- void. chasing, as are also the guardians of ' Sec section 1633, Code Civ. Pro. ; infant parties to the action; except rule 61 of Gen. Rules of Prac, and note that a guardian may, where he is law- 1 to form No. 709, as to disposition of fully authorized so to do, purchase for surplus. the benefit of his ward. The violation 'See section 1627, Code Civ. Pro., of these provisions is declared to be a and note 1 to form No. 697, as to judg- misdemeanor, and a purchase made ment for deficiency. 680 FoEMs Relating to the debt remaining unsatisfied after a sale of tlie mortgaged property and the application of the proceeds, pursuant to the directions contained herein, and that the plaintiff have execution therefor, and that the purchaser or purchasers at such sale be let into possession on production of the ref- eree's \or sheriff's] deed. And it is further adjudged, that the defendants, and all persons claiming under them, or any or either of them, after the filing of such notice of pendency of this action, be for- ever barred and foreclosed of all right, title, interest and equity of redemption in the said mortgaged premises so sold, or any part thereof. The following is a description of the mortgaged premises hereinbefore mentioned, to wit [insert description from judg- ment].' J. L., Clerk. [If the mortgage debt is not all due and the mortgaged property is so circumstanced that it can be sold in parcels without injury to the interests of the parties omit the part of above from (f) to (ft), and substitute therefor as follows : That so much of said mortgaged property, and no more than shall be sufficient to satisfy the sum now due upon the said (bond and) mortgage, with the costs of this action and the expenses of the sale, be sold at public auction in the county of , by or under the direction of J. K. , referee {or by the sheriff of county), and that upon a subsequent default in the payment of principal or interest the plaintiff may apply for an order directing the sale of the residue, or of so much thereof as is necessary to satisfy the amount then due, with the costs of the application and the expenses of the sale. Then proceed as in above form from (*) to end thereof.'] [If the debt is not all due and the mortgaged property is ' See, generally, as to provisions to blc rights of the parties. (See Coles t. be contained in judgment, rule Gl of Appleby, 87 N. Y., 114; aff'g S. C, 22 Gen. Rules of Prac., and section 1026, Hun, 72; and see further upon the sub- Code Civ. Pro. ject of sale in parcels, McBride v. Lew- That it is proper for the court to di- isohn, 17 Hun, 524; Bowne v. Lynde, rect, in the judgment, the order in 13 Week. Dig., 97.) ■which different parcels of the premises ^ See section 1636 of Code Civ, Pro may be sold, according to the equita- Action to Foreclose Mortgage. 681 so circumstanced that a sale of the whole will be most bene- ficial to the parties omit the part of above from (f) to (ff), and substitute therefor as follows : That the whole property described by said mortgage be sold at, etc., by, etc.; that the proceeds of the sale, after deducting the costs of this action and the expenses of the sale, be applied to the satis- faction of the whole sum secured (here insert directions for such rebate of the interest as the court may direct) {or be first applied to the payment of the sum due upon said mort- gage debt, and that the balance, or so much thereof as is necessary, be invested, at interest, for the benefit of the plaintiff, to be paid to him, from time to time, as any part of the principal and interest becomes due) then proceed as in above form from (*) to end thereof.'] No. 704. Judgment for Deficiency on Foreclosure. (Code Civ. Pro., § 1627.) [Title of cause.] The report of J. E,., sheriff of county [or referee], appointed to sell the premises mentioned in the judgment in the above entitled action, having been filed^ on the day of , 18 — , whereby it appears that the proceeds of the said sale were insufficient to pay the amounts directed to be paid in and by said judgment, and that there is due from the defendant, , to the plaintiff for such deficiency the sum of dollars and cents, with interest from the day of , 18 — , and the said report of sale having been duly confirmed by an order of this court, entered on the day of , 18—: Now, on motion of F. M., attorney for plaintiff, it is ad- judged that the plaintiff recover against the said defendant, the said sum of dollars and cents, with interest from the day of , IS—, amount- ing in all to dollars and cents." J. L., Cleric. ' See section 1637 of Code Civ. Pro. ^^ See Siewert v. Hamel (19 Week. Also De Forest v. Farley (4 Hun, GIO), Dig., 407), Springsteene v. Gillett (80 following Livingston v. Mildrum (19 Hun, 260), and note 1 to form, p. 569. jj y 440). Jt ieems, that the judgment for de- 582 Forms Relating to No. 705. Notice of Pendency of Action to Foreclose a Mortgage upon Real Property. (Code Civ. Pro., § 1631.) [Title of cause. J Notice is hereby given, that an action has been com- menced and is now pending in this court upon a complaint of the above named plaintiff against the above named de- fendant for the foreclosure of a mortgage, bearing date the day of , 18—, executed by to ^ — , and recorded in the office of the clerk of the county of , on the day of , 18_, at o'clock in the noon, in book No. — of mortgages, page — , and that the mortgaged premises in the last mentioned county, affected by the said fore-- closure, were at the time of the commencement of this ac- tion, and at the time of filing this notice, situated in the last mentioned county, and are described in the said mortgage as follows, to wit [insert description from mortgage]. M. N., Plaintiff's Attorney. [Office address.'] To the County GlerTc of County : You are hereby directed to index the foregoing notice to the names of all the defendants above named [or to the names of the defendants (specifying particular defend- ants)].' Yours, etc., M. N., Plaintiff's Attorney. Indorsed. [Title of cause.] Notice of pendency of action. , Plaintiff' s Attorney. flciency being contained in tiie final also, as to former practice. Bank of iudgment of foreclosure and sale, no Rochester v. Emerson, 10 Paige, 115; further application to the court need Cobb v. Thornton, 8 How. Pr., 66; be made, nor need the report be con- Bache v. Doscher, 41 N. Y. Super, firmed, in order to issue execution for Ct., 150, 157; De Agreda v. Mantel, 1 the deficiency appearing in the report. Abb., 130.) (Moore v. Shaw, 15 Hun, 428; appeal ' See note 2 to form No. 122 (Jismissad, S, C , 7? N. T-, 512; see, ■" See sectiop 107:2, Code Civ. Prp, AoTioK TO Foreclose Moetgage. 683 County, ss. : Recorded in the clerk's office of the county of -~ , on the — -_ day of -^ , 18—, at — -— ~ hours, minutes, — m., in book No. — of notices of peud. ency of action, page — . ■ — , Clerk, Filed in said clerk's office, — , 18—, at hours, minutes, — m. -, GlerJc. No. 706. Sheriff's or Referee's Deed in Action for Foreclosure of Mortgage of Real Property. (Code Civ. Pro., § 1G33.) This indenture, made the day of , 18 — , between J. R., of , sheriff of county \or referee in the action hereinafter mentioned], of the first part, and B. J., of — ^ , of the second part. Whereas, at a Term of the Court, held at on the day of , 18 — , it was, among other things, ordered, adjudged and decreed by the said court, in a certain action then pending in the said court, between [name the plaintiff's] plaintiffs and [name the defendants] defendants, that all and singular the mort- gaged premises mentioned in the complaint in said action, and in said judgment described, or such part thereof as might be sufficient to discharge the mortgage debt in said action, the expenses of the sale and the costs of the action, as provided by sections 1626 and 1676 of the Code of Civil Procedure, and which might be sold separately without material injury to the parties interested, be sold at public auction, according to law and the course and practice of said court, by or under the direction of the said sheriff of county [or by said J. R., who was appointed a referee in said action, and to whom it was referred by the said order and judgment of the said court, among other things, to make such sale] ; that the said sale be made in the county where the said mortgaged premises, or the greater part thereof, are situated ; that the said sheriff [or said j-ef^ree], give public notice of the time and place of such 684 Forms Relating to sale, according to law and the practice of said court, and that the plaintifif, or any other party in said action, might become a purchaser on such sale ; that the said sheriff \or referee] execute to the purchaser or purchasers a deed or deeds of the premises sold ; ' and, Whereas, the said sheriff [or referee], in pursuance of the order and judgment of the said court, did, on the flay of , 18 — , sell at public auction, at [state place and time of sale], the premises in the said judg- ment mentioned, due notice of the time and place of such sale being first given, agreeably to the said judgment, at which sale the premises hereinafter described were struck off to the said party of the second part for the sum of dollars, that being the highest sum bidden for the same. Now, this indenture witnesseth, that the said sheriff [or referee], the party of the first part to these presents, in order to carry into effect the sale so made by him as afore- said, in pursuance of the judgment of the said court, and in conformity to the statute in such case made and pro- vided, and also in consideration of the premises, and of the said sum of money so bidden as aforesaid, having been first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey unto the said party of the second part [insert description of property from judgment {or of portion conveyed)], to have and to hold, all and singular, the premises above mentioned and described, and hereby conveyed, or intended so to be, unto the said party of the second part, his heirs and assigns, to his and their only proper use, benefit and behoof, forever. In witness whereof, the said party of the first part, sheritf [or referee] as aforesaid, hath hereunto set his hand and seal, the day and year first above written.'' J. E,., Sheriff [or Referee], [l. s.J Sealed and delivered in presence of . [Acknowledgment as in form No. 340, or proof as in form No. 538.] ' See rule No. 61 of Gen. Rules of ' As to rights of parties under the Prac. conveyance, see Lyon v. Lyon (67 N, Action to Foreclose Mortgage. 585 No. 707. Report of Sale in Action for the Foreclosure of Mortgage upon Real Property. (Rule 61 of Gen. Rules of Prac.) [Title of cause.] To the Court : In pursuance and by virtue of a final judgment of this court, made in the above entitled action at a Term thereof, held at , on the day of • , 18—, by which it was, among other things, ordered and adjudged, that the mortgaged premises described in the complaint in this action, as hereinafter set forth, or such part thereof as should be sufficient to satisfy the mortgage debt, the ex- penses of sale and the costs of the action, ks provided by sections 1626 and 1676 of the Code of Civil Procedure, and which might be sold separately without material injury to the parties interested, be sold at public auction, in the county of , by or under the direction of the under- signed referee [or sheriff] ; that the said referee {or sheriff] execute to the purchaser or purchasers a deed or deeds of the premises sold ; that out of the moneys arising from such sale, after deducting the amount of his fees and ex- penses on such sale, including all taxes, assessments and water rates which were liens upon the property sold, and the amount necessary to redeem the property sold from any sales for unpaid taxes, assessments or water rates, which had not apparently become absolute, as provided in section 1676 of the Code of Civil Procedure, the said referee [or sheriff] pay to the plaintifE or his attorney the sum of '■ dollars and cents, adjudged to the plain- tiff for costs and charges in this action, with interest from the date of said judgment, and also the amount so reported due as aforesaid, together with the legal interest thereon from the date of said report, or so much as the purchase Y., 250), Fuller V. Scribner (76 N.Y., 178), Code Civ. Pro., §§ 1343, 1633, 190), Becker v. Howard (66 N. Y., 5; Bache v. Doscher (67 N. Y., 429;- aff'g aflf'g S. C.^ 4 Hun, 359), Rathbone v. S. C, 41 N. Y. Super. Ct., 150). Hooney, 58 N. Y., 468), Emigrant In- As to form of deed, see Easton v. dustrial Savings Bank v. Goldman (75 PickersgiH (55 N. Y., 310). N. T. ,127), Dunning v. Fisher (20 Hun, 74 - 586 Forms Eelating to money of the mortgaged premises would pay of the same, take a receipt therefor and file it with his report of sale ; that he pay over the surplus moneys, arising from the said sale, if any there should be, to the treasurer of the county of ■ [or to the chamberlain of the city of New York], within five days after the same should be re- ceived and be ascertainable, for the use of the person or persons entitled thereto, subject to the further order of the court ; ' that if the proceeds of such sale should be insuffi- cient to pay the amount so reported due the plaintiff with the interest and costs as aforesaid, the said referee [or sheriff] specify the amount of such deficiency in his report of sale : I, the subscriber, the said sheriff [or referee] named in said judgment, do resj)ectfully certify and report, thafc having been charged by the attorney for the plaintiff with the execution of said judgment, I advertised said premises to be sold at public auction, at , in the town [or city] of , in the county of , on the • day of , 18 — , at o'clock in the ■ noon, having previously given public notice of th&time and place of the sale, as foUov/s : by causing a ]printed notice thereof to be conspicuously fastened up, at least forty-two days before the sale, in three public places in the town [or city] where the sale was to take place [and also in three public places in the town {or city) where the property ia situated], and by causing a copy of such notice to be pub- lished, once in each week for weeks immediately preceding the sale, in a newspajper published in the said county of [or in the newspaper printed at Albany, in which legal notices are required to be published], which notices contained the description of said mortgaged premises as described in said judgment.' ' Seo rule No. 61 of Gen. Rules of case it is regulated by section 1G78, id. Prac, and Code Civ. Pro., § 1633; See, also, as to notice of postponement also note 1 to form No. 709. of the sale and terms of sale, and other ''By section 1678, Code Civ. Pro., matters relating to the sale, the last the notice of sale is to be given as pre- mentioned section ; and see Valentine scribed by section 1434 of Code Civ. v. McCuc (26 Hun, 456), and cases Pre, unless the property is situated there cited, Hoffman v. Burke (21 wholly or partly in a city, in which Hun, 580), Everson v. Johnson (23 Action to Poeeclose Moetgage. 687 And I do further report, that on the said day of -, 18 — , the day on which the said premises were so advertised to be sold as aforesaid, I attended at the said time and i)lace fixed for said sale, to wit : at , and ex- posed said premises for sale at public auction to the highest bidder, and the same were then and there fairly struck off to J. K. for the sum of dollars, he being the highest bidder therefor, and that the highest sum bidden for the same. And I do further certify and report that I have executed^ acknowledged and delivered to the purchaser, the usual referee's [or sheriff's] deed lor said premises, and have paid over or disposed of the purchase moneys or proceeds of said sale, as follows, viz. : I have paid, pursuant to the directions of said judgment, the amount of dollars for taxes, assessments and water rates, which were liens upon the property sold, and to redeem said property from sales for unpaid taxes, assessments and water rates which had not apparently become absolute, and have taken receipts there- for, which are hereto annexed. I have paid to the attorney for the plaintiff the sum of dollars, being the amount of plaintiff's costs of the suit, with the interest, as taxed, and have taken a receipt therefor, which is hereto annexed. I have also retained in my hands the sum of dol- lars, being the amount of my fees, commissions and dis- bursements on said sale. And I have paid to the attorney for the plaintiff the sum of dollars, and have taken a receipt therefor, which is hereunto annexed. [And I do further certify and report, that there remains unpaid upon said mortgage debt, after applying the amount realized upon said sale properly applicable to the payment Hun, 115.) See iv< to State paper and of Prac. ; and further, as to manner of publication of nutiees therein, note 1, conducting sale, etc.. see Wallace v. p, 530, to form No. 650. Feely (61 How. Pr., 235); McLaughlin For regulations respecting judicial v. Teasdale (9 Daly, 33). sales in the cities of New York and For form of notice of sale, see form Brooklyn, see rulu 63 of Gen. Rules No 748. 688 Forms Relating to thereof, the sum of dollars, which I hereby report as the deficiency arising on said sale.'] [And I do further repoi't, that after paying the amounts aforesaid out of the proceeds of said sale, there remained. in my hands a surplus of dollars, which amount I have paid into court and deposited with the treasurer of county, for the use of the person or persons enti- tled thereto, and to abide the further order of this court, as I was directed to do by said judgment.] And I do further certify and report, that the premises so sold and conveyed by me as aforesaid, were described in said judgment and in the deed executed by me as aforesaid, as follows, viz.: [here insert description of property.] All of which is respectfully reported to this court. Dated , 18—. J. R., Referee \or Sheriffl. [Title of cause.] Received from J. R., the referee [or sheriff], who made the sale of the premises under and by virtue of the judg- ment in the above entitled cause, the sum of dol- lars, which sum, being part of the proceeds of the sale of the said premises, is received by me under and by virtue of the provisions of said judgment being [or on account of] the amount adjudged to be paid to said plaintiff, with interest thereon as mentioned in said judgment. M. N., Attorney for Plaintiff. [Title of cause.] Received from J. R., the referee {or sheriff], who made the sale of the premises under and by virtue of the judg- ment in the above entitled cause, the sum of dol- lars, being the amount of my costs in said cause as taxed, with the interest as taxed, which costs are paid me by said referee \or sheriff], under and by virtue of the provisions of said judgment. M. K, Attorney for Plaintiff. > As to deficiency upon sale, see (30 Hun, 260), Siewert v. Hamel (19 the cases referred to in note 1, page Week. Dig. 407) 569; and see Springsteene v. Gillett Action to Foreclose Mortgage. No. 708. Order Conflrming Report of Sale. (Gen. Rules of Prac, No. 61.) [At, etc., as in form No. 80.] [Title of cause.] On reading and filing tlie report, dated , IS—, of J. E,., the referee, appointed [or of C. P., sheriff of * county, directed], by the judgment entered in this action, to sell the premises described in the complaint, of the sale of said premises, and on motion of F. C, attorney for the plaintiff, due notice of this motion having been given to the defendants, who have appeared herein : It is hereby ordered, that the said report, and the sale therein mentioned, be and the same are hereby in all re- spects confirmed. No. 709. Notice of Claim to Surplus Moneys, (Code Civ. Pro., § 1030; Gen. Rules of Prac., Xo. 04) [Title of cause.] To J. L., Esq., County GlerJc of County [or name other Clerk] : ' Sir — Take notice, that I, the subscriber, am entitled to the surplus moneys, or some part thereof, arising upon the sale made on the day of , 18 — , under the judgment of this court, in the above entitled action, and that my said claim thereupon amounts to dollars an^ cents, with interest thereon from the day of , 18 — , and is made by virtue of a lien under a judgment of the Court, recovered against [S. M., the above named defendant], in my favor [or in favor of E. F.], on the day of , 18 — , and docketed in county on the [said] day of , 18 — [or ' The surplus, after paying liens, been issued upon his estate, within must he paid into the surrogate's court four years before the sale. (Code Civ. where the owner of the equity of re- Pro., § 3798.) demption has died, and letters have 690 Forms Relating to under a mortgage executed by (S. M., the above named de- fendant) to me (or to E. P.), dated on the day of , IS—, and recorded in county clerk's office on the day of , 18—, in book No. — of mortgages, at -page — (or otherwise describe claim)], and which was docketed [or executed] while said S. M. was the owner of the equity of redemption in the said mortgaged premises and before the said sale thereof [which lien is next in priority after the mortgage of the plaintifl in this action]. Dated , 18—. A. B. No. 710. Notice of Motion for Reference to Olbtain Surplus Moneys. (Code Civ. Pro., § 1633; Gen. Rules of Practice, No. 64.) As in form No. 168 to [*], and from thence as follows : At the opening of the court, or as soon as counsel can be heard, that it be referred to a suitable referee to be selected by the court to ascertain and report the amount due to A. B., or to any other person, which is a lien upon the surplus moneys arising upon the sale of the mortgaged premises in this action, and to ascertain the priorities of the several liens thereon, to the end that on the coming in and confir- mation of the report on such reference such further order may be made for the distribution of such surplus moneys as may be just, and for such other or further order as the court may deem proper. Dated , 18—. Yours, etc., I. J., Attorney for [Defendant~\, C. D. [Office address.'] To W. E,., Esq., Attorney for Plaintiff [and name par- ties or their attorneys, who have appeared or filed notice]. ' See note 3 to form No. 132. Action to Foreclose Mortgage. 5Q1 No. 711. Affidavit on Motion for Reference on Claim to Surplus Moneys. (Code Civ. Pro., § 1633; Gen. Rules of Practice, No. 64.) [Title of cause.] CouNTT, ss.: A. B., of , being duly sworn, says, that lie is [de- scribe affiant] : That this action was brought for the foreclosure of a mortgage upon certain premises therein described, situated in the county of . That on the day of , 18—, a final judg- ment was entered therein in the county clerk's office for the foreclosure of said mortgage and the sale of said premises, and that said premises were sold pursuant to said judgment by A. B., referee [or by the sheriff of county], on the ^ day of ■ ; 18 — . That the report of sale of said referee [or sheriff], dated -, 18 — , has been duly filed, with the clerk of county, by which it appears that after paying the amounts directed by said judgment to be paid out of the proceeds of- said sale there remained a surplus of dollars, which amount has been paid by said referee [or sheriff] into court and deposited with the treasurer of county [or the chamberlain of the city of New York] for the use of the persons entitled thereto [or state other disposition thereof]. That this deponent is entitled to the said surplus moneys, or some part thereof, and that the nature and extent of his claim thereupon are set forth in the notice hereinafter men- tioned, a copy of which is hereto annexed. That by the official searches for conveyances and incum- brancBs, made in this action and filed with the judgment roll therein, the following unsatisfied liens upon said sur- plus moneys appear, to wit [state same], and that no other unsatisfied liens thereupon are known to this deponent to exist. That a notice of deponent's claim to such surplus moneys 592 Forms Eelating to has been filed by him, with the clerk of county, a copy of which notice is hereto annexed, marked schedule A. A. B. [Jurat as in form No. 46. j No. 713. Order of Reference as to Claims on Surplus Moneys. (Code Civ. Pro., § 1633; Gen. Rules of Prac, No. 64.) [At, etc., as in form No. 80. J [Title of cause.] The report of I. J., referee in the above entitled action [or of the sheriff of county], dated , 18 — , of the sale of the premises described in the complaint in this action, having been duly filed, and an order having been entered at a Term of this court, held at on the day of , 18^, confirming the same, from which report it appears that there is a surplus in the hands of the county treasurer of county [or name other officer], arising from said sale ; and it appearing that A. B., a judgment [or mortgage] creditor of the defendant, S. M., having a lien by virtue of his said judgment [or mortgage] at the time of such sale, has filed with the clerk of the county of a notice of such claim, as required by rule 64 of the General Rules of Practice : Now, on reading and filing the affidavit of said A. B., dated , 18 — , and it appearing that due notice of this motion has been served on every party or his attorney, who has appeared in this cause, or has filed witli said clerk a notice of his claim upon such surplus, and on reading [name any opposing papers] : Now,- on motion of A. F., attorney for said A. B., and after hearing, etc. [or no one opposing] : It is hereby ordered, that it be referred to C. E., Esq., as a referee, to ascertain and report the amount due said A. B., or to any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon, to the end that, on the coming in of the report of said referee, such further order may be made for the distri- Action to Foeeolose Moetgage. 593 bution of such surplus moneys as may be just, and that the said ref . ee make his report thereon with all convenient speed. No. 713. Snmmous of Referee Upon Claim to Surplus Moneys. (Code Civ. Pro., § 1633; Gen. Rules of Prac., No. 64.) [Title of cause.] SiKS — I, M. E., the referee appointed by an order of the Court, made at a Term thereof, held at the of , on the day of V 1 18 — , to ascertain and report the amount due to the defend- ant, Gr. H., or to any other person, which is a lien upon the surplus moneys arising upon the sale of the premises de- scribed in the complaint in this action, and to ascertain the priorities of the several liens thereon, do hereby appoint the day of , 18—, at my office, in the — of , at o'clock in the noon, for the hearing of the matters so referred to me, at which time and place aU parties concerned are to attend.' Dated , 18—. M. R., RefereB. To [name parties interested]. No. 714. Certificate of Clerk as to who have Appearea and Filed Claims against Surplus. (Code Civ. Pro., § 1630; Gen. Rules of Prac., No. 64i^ [Title of cause.] I, the undersigned clerk of the county of , do hereby certify that the following defendants and no others have entered appearances in this cause, to wit : C. D. by his attorney, and E. F. by his attorney, and that the following notices of claims thereto and no others were filed in my office previous to the entry of the ' dr a notice of hearing before the mons, by the attorney for the claimant, referee may be given in place of the sum- in the usual form. (Rule 04, sii^ro.) 75 694 Forms Relating to order of reference as to such surplus moneys, to wit : one on the part of L. M., another on the part of J. K. [and name other claims in like manner], and that no notice of claim to such surplus was annexed to the referee's report of sale filed in my office on the day of , 18 — .' Dated , 18—. J. L., Clerk. No. 715. Claim of Creditor, Before Referee, to Surplus Moneys. (Code Civ. Pro., § 1633; Gen. Rules of Prac, No. 64) [Title of cause.] The claim of G. H., a [judgment] creditor of C. D., the defendant in this suit, to the surplus moneys arising from the sale of the mortgaged premises under the judgment in this action,. The said G. H. states, that he resides at in the county of , and that he has a lien upon the said surplus moneys by virtue of a judgment recovered against the mortgagor, 0. D., in the Supreme Court, for the sum of dollars, on the day of , 18 — , and docketed in county on the [said] day of , 18—, and while he, the said CD., was the owner of the equity of redemption in the mortgaged premises, and before the commencement of this suit, which lien is next in pri- ority after the mortgage of the plaintiff, and the whole of which judgment is still due and unpaid. He, therefore, claims the whole amount of said surplus moneys (If ising from said sale, which amount to the sum of dollars. Dated , 18—. G. H. To M. R., Esq., Referee. CotrNTT, 55. : G. H., the above claimant, being duly sworn, says, that the facts set forth in the above claim are true : that the amount therein claimed as being due to him upon the judg- 1 gee Hulbert v. McKay (8 Pai^e, 651). Action to Foeeolose Mortgage. 595 ment therein mentioned, is justly due ; and that neither he, nor any person by his order, or to his knowledge or belief, for his use, has received, the amount thus claimed, or any part thereof, nor any security or satisfaction whatever for the same, or any part thereof, other than the said judg- ment. G. H. [Jurat as in Jorm No. 46.] No. 716. Referee's Report as to Surplus Moneys. (Code Civ. Pro., § 1633; Gen. Rules of Prac, No. 64.) [Title of cause.] I, the undersigned referee, appointed by order of this court, dated , 18 — , to ascertain and report the amount due to the defendant, G. H., or to any other per- son, which is a lien upon the surplus moneys arising upon the sale of the premises described in the complaint in this action, and to ascertain the priorities of the several liens thereon, do respectfully report : That I have caused a summons to be served upon the owner of the equity of redemption in said premises and every party who has appeared in the cause, or wh6 has filed with the clerk, where the report of sale is filed, the notice required by rule 64 of the General Rules of Practice, pre- vious to the entry of said order of reference, as their names have appeared by the certificate of the clerk of county annexed hereto and marked schedule A, requiring them to attend before me, which summons, with the proofs of service thereof, I have also annexed hereto marked schedule B. ] That I was attended upon the said hearing mentioned in said summons by [recite appearances]. That the amou^jt of siach surplus has appeared before me by the certificate of the county treasurer of county, which is hereto annexed, marked schedule C, to be the sum of dollars. That I have annexed to this, my report, marked sohediilo Pj the miniites of testiinonjr taken by me upon such refer- 696 Forms Relatiitg to ence, showing all the proceedings had thereupon, and I re- port my conclusions therefrom as follows : As matters of fact I find as follows [here state facts found by referee]. And as matters of law I find as follows : That [state conclusion as to the party or parties entitled to the surplus]. All of which is respectfully submitted.' Dated , 18—. M. R., Referee, No. 717. Notice of Motion for Payment of Surplus Moneys to Claimant. (Code Civ. Pro., § 1G33; Gen. Rules of Prac, No. 64.) [Title of cause.] Sir — Take notice, that the report of M. R., referee ap- pointed pursuant to rule C4 of this court, by order of the court dated , 18 — , will be presented to the court, at a Term thereof to be held at, etc., on, etc., at the opening of the court, or as soon thereafter as counsel can be heard, and a motion will be then and there made for an order [confirming said report], and that the treasurer of county pay to the defendant, G. H. , or his attor- ney, the whole \or dollars] of the surplus moneys in this cause, deposited with him, and for such further or other relief as may be proper, with costs." Dated , 18—. Gr. H., Claimant [or Attorney for M. F., Claimant]. [Office address.'] ' See Hulbert v. McKay (8 Paige, The question as to any claim being 651), Franklin v. Van Cott (11 Paige, a lien upon the fund, and in what 139), De Ruyter v. Trustees of St. order it shall he paid, may be deter- Peter's Church (3 Earb. Ch., 555), as mined in proceedings for the distribu- te proceedings before referee and form tion of the surptus, and an independent of report. action is not maintainable to reach such As to -what claims may be heard by siu-plus and establish a claim thereon, referee, and as to powers of referee, see (Pliess v. Bulkley, 90 N. Y., 2S6; aff'g Bergen v. Carman (79 N, Y., 146), Ta- S. C, 34 Hun, 514.) tor V. Adams (20 Hun, 131), and cases ^ In a proceeding for surplus moneys therein cited. arising upon sale of mortgaged premi- Action to Foreclose Moetgage. 697 No. 718. Order for Payment of Surplus Moneys. (Code Civ. Pro., § 1633; Gen! Rules of Prac, No. 6t) [Title of cause.] On reading and filing the report, dated , 18 — , of M. E,., referee appointed herein by order of the court, dated , 18 — , from which it appears that G. H. is entitled to the [whole] of the surplus moneys in this action, now in the hands of the county treasurer of county, and due notice of this motion having been given to the [at- torney for the] defendant, C. D., and to the attorneys for the parties who have appeared in this cause, and who have filed notice of a claim to such surplus, previous to the entry of said order of reference, and on reading [name any other motion papers], and on motion of C. J., of counsel for said Gr. H. , after hearing, etc. [or no one appearing to oppose] : It is hereby ordered, that the said report be and the same is hereby in all things confirmed, and that the said county treasurer pay to the said G. H., or his attorney [said] 0. J., on the receipt of either, the balance of said surplus moneys, viz. : the sum of ■ dollars [less his commissions and charges], and less the sum of dol- lars due the said referee, and which said treasurer is hereby directed to pay to him, and ten dollars costs of this motion, which are hereby allowed to said G. H.' [And that the residue of said surplus moneys be paid by said county treasurer, after deducting his commissions and charges, to the defendant, C. D., the said mortgagor and owner of the equity of redemption.] ses only motion costs and referee's fees ed by tlic litigation, the unsuccessful can be allowed. (Wellington v. The claimants will be charged with the Ulster County Ice Co. , 5 Week. Dig. , costs occasioned by their claims. (Law- 104; McDermott v. Hennesy, 9 Hun, ton v. Sager, 11 Barb., 349. See, also, 59.) Bevierv. Schoonmaker, 29 How. Pr., When the claim of the successful 411, 432.) party is just, and the amount of the ' See note 2 to form No. 123. surplus is small and a large amount of ' See note 2 to last form iTo. 717, as costs has been unnecessarily occasion- to costs of proceedings. 698 FoKMS Relating to No. 719. Complaint in Action for Strict Foreclosure. As in form No. 697 to the end of second paragraph on page 566, and from thence as follows: And the plaintiff further says, that the said defendants have failed to comply with the condition of the said bond and mortgage, ]by omit- ting to pay the sum of dollars, which became due on the day of , 18 — , and there is now Justly due the plaintiff upon the said bond and mortgage the sum of dollars, with interest from the day of , 18 — . That soon after the said mortgage debt became due, as aforesaid, the said plaintiff entered into the possession of the said mortgaged premises and the receipt of the rents and profits thereof, and has since continued to be and still is in possession. ' That the said rents and profits so received by the plaintiff have not been sufficient in amount to equal the annual interest upon the said bond and mortgage [or state other- wise, as the fact may be]. That the plaintiff has laid out considerable sums of money in expenditures for permanent improvements upon said premises [stating the general nature and value thereof] which he claims should be allowed him by way of set off against so much of the said rents and profits ; and he has also paid the sum of dollars for taxes and assess- ments [or if any prior lien is discharged state the nature of the lien, the amount thereof, and when paid], all of which sums the said plaintiff claims should be allowed him and credited on his account against so much of said rents and profits ; which said several sums, when so applied and cred- ited to the said plaintiff charging him with the amount of rents and profits so received by him, will leave remaining due to him, the said plaintiff, on his said bond and mort- gage, as he claims, the sum of doUars. The plaintiff further alleges, that the defendant, E. F., has an interest in said mortgaged premises, under and by virtue of a mortgage thereon, executed by the said defendant, C. D., subsequent to the mortgage of the plaintiff, and the de- fendant, G. H., has an interest therein, etc. [setting forth the interests of the respective parties in a general manner]. Action to Foeeclose Mortgage. 699 That the plaintiff has applied to the said defendant, C. D., etc., and requested him [or them] to pay him, the said plaintiff, the said sum so due on his bond and mortgage, or to come to an accounting with him thereon, for the said rents and profits, permanent improvements, etc., and after the proper charges to pay the said plaintiff what should ap- pear to be due him on his said bond and mortgage ; or, in default thereof, to release his [or their] right and equity of redemption in the said mortgaged premises ; but the said defendants have hitherto refused, and still refus3 so to do, or to comply with any part of said plaintiff's request. Wherefore the plaintiff demands judgment against the defendants that an account may be taken of what, if any- thing, is due and owing to the plaintiff for princiiDal and interest on his said bond and mortgage, and that an ac- count may. also be taken of the rents and profits of the said mortgaged premises which have been received by said plaintiff, and also of the expenditures of the said plain- tiff for permanent improvements, and for taxes and assess- ments [and for the amount so paid for prior incumbrances, etc.], and that the defendants may be adjudged to pay to the plaintiff what may be found due to him, on taking the said account, together with his costs of this action, by a short day to be appointed by the court for that purpose ; or, in default thereof, that the said defendants, and all per- sons claiming under them, may be absolutely debarred and foreclosed of and from all right and equity of redemption in and to the said mortgaged premises, and every part thereof ; and that said defendants may deliver up to the plaintiff all deeds, papers and writings in their custody or power relat- ing to or concerning the said mortgaged premises, or any part thereof, or for such other and further relief in the premises as the court may think proper to grant, with costs of this action.' J. C, Plaintiff's Attorney. [Oiiice address. °] [Verification as in forms Nos. 151, etc.] • See, as to action for strict foreelo- v. ReylDurn (8 Wall , 318), Bolles r. sure, 3 Barb. Ch. Pr. [2d ed.], 186; Duff (48 N. Y., 4(i9), Eoss v. Board- Johnson V. Donnell (1§ 111., 97), Clark man (33 Hun, 527), Farrell v. Parlier 600 Forms Relating to No. 720. Judgment of Strict Foreclosure. After recitals as in form No. 703, add : It is adjudged, that upon the defendants paying unto the said plaintiff the amount which is so found and reported due to him, for principal and interest as aforesaid, with dollars costs, hereby adjudged to the plaintiff, within [six] months after the entry of this judgment and service of notice thereof [with interest thereon from the date of the above mentioned report until the time of such payment], at [specifying place and hours for paying]. That the said plaintiff do reconvey the mortgaged premises to the said defendant, 0. D., by a suitable and proper instru- ment of conveyance, to be approved of by the court in case the parties cannot agree upon the form thereof, free and clear of all incumbrances, done or suffered by him, or by any person claiming by, from or under him [and with the usual covenants against his or their acts], and that he de- liver up all deeds and writings in his custody or power relat- ing thereto upon oath to the said defendant, C. D., or to whomsoever lie shall appoint ; and, further, that the said plaintiff cancel and discharge such mortgage of record. But in default of the said defendants paying unto the plain- tiff such principal, interest and costs as aforesaid by the time limited for that purpose, then it is adjudged that the said defendant, C. D., and all persons claiming by, from or under him, do stand absolutely debarred and foreclosed of and from all equity of redemption of, in and to the said mortgaged premises. The following is a description and the particular bound- aries of the jpremises hereinbefore mentioned [insert de- scription].' (50 111., 274), Grant v. Graham (I N. to form of judgment of strict fore- Y. Leg. Obs., 75), Lantz v. Bucking- closure. The above form is from 3 ham (11 Abb. [N. S.]. 64). Barb. Ch. Pr., (ad ed.). 753. See, also, ' See note 2 to form No. 133. cases cited in note to last form, No. ' See, also. Kendall v. Treadwell (5 719, generally, as to action for strict Abb., 16; S. C, 14 How. Pr., 165), as foreclosure and judgment therein. Action to Fobeclosje Mortgage. 601 No. 721. Complaint in Action to Redeem Mortgaged Premises by Heirs- at- Law Against Mortgagee in Possession. [Title of cause. J The plaintiflE complains of the defendant, and alleges : [*] That J. B., who was the plaintiflE' s father, was, at the date of the mortgage hereinafter mentioned, and continued to be, to the time of his death, seized in fee simple of a certain piece or parcel of land, situate, lying and being [describing the premises]. That said J. B., being so seized, on or about the day of , 18 — , executed to the said CD., the above named defendant, a mortgage upon said premises for secur- ing the payment of the sum of dollars, with interest, then advanced by said C. D. to the said J. B. That soon after the making of said security, the said de- fendant entered into the possession of said mortgaged premises, and into the receipt of the rents and profits thereof, and has ever since continued to be in such posses- sion and receipt. That said J. B. departed this life on or about the day of , 18 — , intestate, leaving the plaintiflE his sole heir-at-law. That the plaintiff has applied to said defendant, since the death of said J. B., to come to an account of the rents and profits of the said premises so received by him, and to pay over to the plaintiff what he should appear so to have received beyond the amount of the principal and interest due him, and to deliver up the possession of the said mort- gaged premises ; but the defendant refused, and still re- fuses, so to do. Wherefore the plaintiff demands that an account may be taken of what, if anything, is due to the said defendant for principal and interest on said mortgage ; and that an account may also be taken of the rents and profits of the said mortgaged premises which have been possessed or re- ceived by said defendant, or by his order, or for his use, or which, without his willful default or neglect, might have been received ; and that if it shall appear that the said rents 76 602 FoEMS Relating to and profits have been more than sufiicient to satisfy the principal and interest of the said mortgage, then that the residue may be paid over to the plaintiff, and that the plain- tiff may be permitted to redeem said mortgaged premises, he being ready and willing and hereby offering to pay what, if anything, shall appear to remain due in respect to the principal and interest on the said mortgage ; and that the defendant may be adjudged to deliver up the possession of the said mortgaged premises to the plaintiff, or to such person as he shall direct, free from all incumbrances made by him, or by any person claiming under him, and may also deliver over to the plaintiff all deeds and writings in his custody or power relating to said mortgaged premises, or for such further or other relief as to the court may seem just.' J, C, Plaintiff'' s Attorney. [OtBce address."] [Verification as in forms !N"os. 151, etc.] No. 723. Same, by Mortgagor against Mortgagee. As in last form to [*], and from thence as follows: That on the day of , 18 — , the plaintiff made to the defendant a bond, under his hand and seal, dated on that day, conditioned to pay [insert condition of bond], and being owner in fee [or otherwise] of the premises hereinafter described, made to the defendant a mortgage, of even date therewith to secure the payment thereof, whereby the plaintiff granted, bargained and sold to the defendant 1 Where an action is brought for the tion is by action. (Erouglasa v. Wood- purpose of redeeming a mortgage, and worth, 51 Barb., 79.) a decree is made authorizing the plain- After the death of a mortgagor, his tiff to redeem upon payment of a speci- heirs are the only persons entitled to fled sum, and declaring that if he fails bring the action. It cannot be brought to redeem, his claim be dismissed, such by the administrator of the mortgagor, dismissal will operate as a foreclosure (Sutherland v. Eoso, 47 Barb., 145.) of the mortgage. (Beach v. Cooke, 28 This form is from 3 Barb. Ch. (2d N. Y , 508, 535: aff'g S. C, 39 Barb., ed.), 754. 360) « See note 3 to form No. 123. The only way to obtain a redemp- ACTIOK TO I^ORECLOSE MORTGAGE. 603 the said premises upon the condition, nevertheless, that [insert condition of the mortgage], which said premises are bounded and described as follows [insert description as in mortgage]. That the plaintiff has paid to the defendant aU the inter- est due upon the said mortgage debt from the day of , 18—, up to the day of , 18 — , and that on the day of , 18 — , when [or and after] the said mortgage debt became due he tendered to the defendant the sum of dollars, together with all interest [and costs] due thereon, and has ever since been ready and willing to pay the same, but the defendant re- fused to receive the same or to deliver up the said mortgage to be cancelled. Wherefore the plaintiff demands judgment that an ac- count be taken of the amount now due to the defendant on said bond and mortgage for principal and interest [and costs], and that the plaintiff may be at liberty to redeem said mortgaged premises upon payment of whatever may be found so due, and that the defendant, upon payment thereof, may acknowledge satisfaction of said mortgage and discharge the same of record, and such other and further relief as may be just.' J. C, Plaintiff'' s Attorney. [Office address."] No. 723. Same by Lessee Against Mortgagor and Mortgagee. As in form No. 721 to [*], and from thence as follows : That on the — day of , 18 — , the defendant, C D., being the owner in fee of the following described premises, leased the same to the plaintiff by an indenture, dated on that day, a copy of which is annexed as a part of this complaint ; and that, by virtue of the said lease, the plaintiff entered upon, and ever since has been, and still is, in possession of said premises, and is vested with the > From 3 Barb Ch. Pr. (2d ed.), 756. ' See note 2 to form No. 1S3. 604 FoEMS Relating TO unexpired term thereof, whicli premises are bounded and described as follows [insert description]. That on the day of , 18—, the said defend- ant, C. D., made to the defendant, E. F., a mortgage upon the same premises, to secure the payment of dol- lars, on the day of , 18 — . That on the last mentioned day the said mortgage debt became due, but has not been paid, and that said E. F. has commenced an action [or proceedings under the statute], to foreclose the said mortgage for such default. That on the day of , 18 — , the plaintifE tendered dollars to said E F., being the amount dae on said mortgage, with interest, and the costs of said action [or proceeding] up to that time in redeniption of said mortgage, and has ever since been ready and willing to pay the same, and did then request hirii to assign the same to the plaintiff, but he refused to do so. Wherefore the plaintiff demands judgment, that he be allowed to redeem the said mortgage upon paying to the defendant, E. F., the amount due upon said mortgage ; and that, upon such payment, the said defendant, E. F., by an assignment duly executed and acknowledged by him, assign said bond and mortgage to the plaintiff, and for such other and further relief as may be just.' J. C, Plaintiff's Attorney. [Office address.'] ' The assignees of a term of years Week, Dig., 571; S. C, 82 N. Y., 155), may, to protect their estate, redeem a Patterson v. Birdsall (64 N. T,, 294). mortgage covering the premises given A subsequent incumbrancer, seeliing by their lessor prior to the lease ; and to redeem from a sale in an action of it will make no difference if the lease- foreclosure, ineffectual as to him, will hold premises consist of but a part of the net be required to pay the costs of the land covered by the mortgage. (Aver- foreclosure action, but will be required ill V. Taylor, 8 N. T., 44.) to pay those of the action to redeem, See as to right of subrogation, Jen- unless it is improperly resisted by the kins V. Continental Ins. Co. (12 How. defendant. (Belden v. Slade, 20 Hun, Pr., 66), Bloomingdale v. Barnard (7 635.) Hun, 460), Ellsworth v. Lockwood (43 The above form is from 3 Barb. Ch, N. T., 89), Twombly v. Cassidy (10 Pr. (2d. ed.), 756. « See note 2 to form No. 123. AcTioiT TO Foreclose Moetgage. 605 No. 724. Judgment in Action for Redemption of Mortgaged Premises. [At, etc., as in form No. 80. j [Title of cause.] After proper recitals, add : Therefore it is adjudged, that the defendant pay to the plaintiff the sum of dol- lars, the amount which is so found and reported due to him for principal and interest as aforesaid [with dollars for the value of his said improvements], and with dollars costs, hereby adjudged to the plaintiff, within six months after the entry of this judgment, and Eorvice of notice thereof [with interest thereon from the date of the above mentioned report until the time of such payment], at [specifying place and hours for paying], and that the said defendant do re-surrender the said mortgaged premises unto the said plaintiff, or unto such person or per- sons as he shall direct, free and clear of all incumbrances, done or suffered by him, or any person claiming by, from or under him, and deliver to the said plaintiff, on oath, under the direction of the court, if the parties cannot agree in respect thereto, all deeds and writings in his custody or power, relating to the said mortgaged premises ; but in de- fault of the said plaintiff's paying unto the said defendant what is so reported to be due to him for principal, interest [improvements] and costs, as aforesaid, it is ordered that this action do, from thenceforth, stand dismissed out of this court with costs.' No. 725. Aflidavlt on Application for Writ of Assistance in Fore- closure Suit. [Title of cause.] County, **./ W. S., of , being duly sworn, says, that this ac- ' The decree on a bill to redeem costs if the money is not paid hy that should limit a time for redemption, time. (Waller v. Harris, 7 Paige, 167.) ftjjd direct the bill to be dismissed with See, also, note 1 to form No. 721, ag to effect of decree, 606 Forms Relating to tion was brought for the foreclosure of a mortgage upon certain real property situated in the county of , and which is fully described in the judgment in this action, a copy of which is hereto annexed. That a sale was made under said judgment by the referee [or sheriff] appointed to make said sale, and that the said premises were duly sold by the said referee [or sheriff], and were purchased by this deponent, who duly paid the amount bid by him therefor, and on the day of , 18 — , deponent received from said referee [or sheriff] a deed of the said premises, as more fully appears from the report of sale and order confirming the same, and also said deed [certified copies of] which, respectively, are hereunto an- nexed. That on and before the delivery of said deed the defend- ant, E. F., was in possession of said premises [and so continued until the day of , 18 — , and ever since], on which last mentioned day this deponent went upon said premises, and after exhibiting to said B. F. [the annexed certified copies of said report and order confirming the same and],' said deed, duly and personally demanded of said E. F. the possession of said premises ; but that he refused, and still refuses, to surrender the same or any part thereof." [Jurat as in form No. 46.] W. S. ' It is now only required that the either with or without a recovery of deed be produced to entitle the pur- mesne profits, or damages for with- chaser to be let into possession of the holding the same, the ordinary writ of premises. The words in brackets may execution, which issues, of course, is therefore be properly omitted. (See the proper remedy, and a writ of assist" rule 61 of Gen. Rules of Prac, and ance is unnecessary. But when the form No. 703.) judgment directs a sale of the prop- " This writ has not been abolished erty, or some other act to be done in by the Code, nor has any substitute respect to it ; or when some person been provided for it. It remains as other than a party becomes entitled to before, a necessary, and in some cases the possession under the judgment, indispensable instrument for carrying then the writ becomes proper and neces- into full effect a judgment of the court, sary. It may also issue in all other (3 Barb. Ch. Pr. [2d ed.], 531 ; note cases, against a party, or those claiming [10], citing "Van Sant. Eq. Pr., 637). under a party subsequent to the com- "When a judgment is simply for the mencement of the suit to give posses- delivery of the possession of real estate, sion of Jands, where the delivery of Action to Foreclose Mortgage. 607 No. 726. Writ of Assistance in Foreclosure Suit. [Seal.j The People of the State of New York to the Sheriff of the County of greeting : Whereas, on the — ■ day of , 18 — , by a judg- ment rendered in our [Supreme] court, in an action then depending in said court, wherein A. B. was iDlaintiff, and C. D. and G. H. were defendants, it was, among other things, adjudged, that all and singular the mortgaged premises mentioned in the complaint therein [or so much thereof as might be sufficient to raise the amount due to the said plain- tiff for the principal, interest and costs in said action, and which might be sold separately without material injury to the parties interested], be sold at public auction, by or under the direction of W. O., Esq., a referee duly appointed for that purpose [or by the sheriff of the county of— ], and also that the purchaser at such sale be let into posses- sion of the premises on production of the referee's [or sheriff's] deed; and, Whereas, the said referee [or sheriff] has duly filed his report of said sale, and the same has been duly confirmed by an order of said court, from which report it appears that the premises hereinafter described were sold to W. S., and that the referee's [or sheriff's] deed has been executed and acknowledged, and delivered to the said W- S., purchaser as aforesaid ; and that the said W. S. has not been let into nor taken possession of the said premises, according to the tenor of the said judgment, notwithstanding the said W. S. [has served on the said G. H., who is in possession of said premises a certified copy of said order confirming the re- port of sale, and '], has [also] produced and shown to the said Gr. H. the said deed of the premises, executed in pur- suance of the said judgment. Therefore we command you, that you forthwith enter such possession is made part of the or a division or partition thereof tc- judgment or is consequent thereon tween the parties. (Id.) whether jt he on a sale of such lauds • gee pote 1 to form No, 735, 608 FOEMS RULATIKG TO npon the said premises and eject and remove therefrom the said G. H., and any of the other parties defendant in this action who may be in possession of said premises, or any part tliereof, and any persoQ who, since the commencement of this action, has come into the possession of said premises, or any part thereof, under him or them, and detains the same, or any part thereof, against the said W. S., and that you put the said W. S., or his assigns, in the full, peaceable and quiet possession of the said premises without delay, and him, the said W. S., in such possession thereof, from time to time, maintain, keep and defend, or cause to be kept, main- tained and defended, according to the tenor and true intent of said judgment, and that you return this writ, when fully executed by you, to the clerk of the county of .' The said premises are described as follows, viz. [insert description]. Witness, Hon. J. P., one of the justices of our said [Su- preme] court, at , this day of , 18 — .' J. C, Plaintiff^ s Attorney. [Office address."] J. W. H., ClerTc. Aeticle Fifth. forms kelatiitg to action to compel the determina- tion op claims to real property. (Code Civ. Pro., Cli. 14, Tit. 1, Art. 5.) No. 737. Complaint in action to compel the determination of claim to real property. 728. Answer in suit for the determination of claim to real property. 739. Final judgment awarding defendant possession in action to compel determination of claim to real property. 730. Final judgment for the plaintifE in action for determination of claim ~ to real property. 731. Complaint in action to determine widow's dower. ' See section 23, Code Civ. Pro. ' See note 2 to form No. 122. "> See note 3 to form No. 725. Action to Determine Claim to Real PROPEETr. 609 No. 727. Complaint in Action to Compel the Determination of Claim to Real Property. (Code Civ. Pro., § 1639.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that said plaintiff is seized of and entitled to the real property, situated in the of , in the county of , described as follows [insert description].' That plaintiff's estate in said property is in fee [or for his life, or for the life of A. B. , or for a term of years'], and that he holds said property as the heir \or devisee] of C. B. \or as purchaser from J. P.]. That said property, at the commencement of this action, was and, for the three years next preceding, has been in the actual possession ° of the plaintiff [and those from whom plaintiff derives his title]. That the defendant unjustly claims title to an estate therein in fee \or for life, or for a term of ■ years].* The plaintiff, therefore, demands judgment, that the de- fendant, and every person claiming under him, be forever barred from all claim to any estate of inheritance or free- hold, or for a term of years, or other term of years not less than ten, in possession, reversion or remainder, in the property hereinbefore described, together with the costs of this action.' M. N., Plaintiff '' s Attorney. [Office address."] [Verification as in forms Nos. 151, etc.] 'See section 1511, Code Civ. Pro., 521; Schroeder v. Gumey, 10 Hun, as to description. (§ 1639, id.) 413.) ' Not less tlian ten years. (§ 1639, * The claim by defendant must be in id.) fee, for life or for not less than ten ' Actual possession means a posses- years. (§ 1638, id.) sion in fact effected by actual entry on " As to form of complaint in this ac- the property; an actual occupation, tion, seR Fisher v. Hepburn (48 N. Y. , (Churchill v. Onderdonk, 59 N. Y., 41), Churchill v. Onderdonk 59 N. Y., 134.) Slight acts of ownership, show- 134), Bailey v. Briggs (56 N. Y., 407), ing a legal and constructive possession, Davis v. Head (65 N. Y., 5GG), Clevc- will not suffice. (Van Wagenen v. land v. Crawford (7 Hun, 610), Code Botsford, 13 Week. Dig., 381; see, Civ. Pro., § 1639. also, Boylston Vi Wbeeler, 61 Ni T., This action is not authorized against 77 610 FoKMS Relating to No. 728. Answer in Suit for the Determination of a Claim to Real Property. (Code Civ. Pro., §§ 1639, 1640.) [Title of cause. J The defendant, for answer to the complaint in this action, denies that the property mentioned and described in the said complaint was, at the time of the commencement of this action, or that it had been, for the three years next preced- ing the commencement of said action, in the actual pos- session of the said plaintiff, or of those from whom said plaintiff derived his title [add any further denials of the allegations of the complaint].' And the defendant alleges that he is seized of, and entitled to, the property described in the said complaint, holding the same adversely to the alleged title of the plaintiff. That defendant has an estate in said property in fee [or for his own life, or for the life of A. B., or for a term of • years], in possession [or in reversion, or in remain- der],' as the heir [or devisee] of M. C. [or as the purchaser {or lessee) of J. M.]. And defendant demands judgment, that the complaint herein may be dismissed with costs, and that plaintiff and every person, etc. [as in complaint No. 727]. B. H., Defendant's Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] infant defendants. (Bailey v. Briggs, fully disturbed or molested, in the supra.) It may be maintained against meantime, an injunction may be issued one claiming to hold a certificate of sale under section 603 of the Code of Civil of the property, for the term of ten thou- Procedure. (Stamm v. Bostwick, 30 sand years, for non-payment of muni- Hun, 70.) cipal assessments. (Burnhamv.Onder- * See note 2 to form No. 122. donk, 41 N. Y., 425.) See, also, Ford ' Or a general denial may be made V. Belmont (09 N. Y., 567; aff'g S. C, -with the matter foUovfing as matter of 35 N. Y. Super. Ct., 135), Donahue v. defense. O'Conor (45 K Y. Super. Ct., 278). = As to -what defendant must estab- It is clearly contemplated by the pro- lish where he claims an estate in rever- visions enacted to control the proceed- sion or remainder, and proceedings in ings in this action, that the plaintiff such case, see section 1643 of Code should be continued in the possession Civ. Pro. during its pendency ; and whore there ' See note 3, p. 94, to form Ko. 134. is danger of his possession being unlaw- Action to Determine Claim to Real Peopeety. 611 No. 729. Final Judgment Awarding Defendant Possession^ in Action to Compel Determination of Claim to lieal Property. (Code Civ. Pro., §§ 1643, 1644.) [Title of cause.] Judgment of the day of , 18—. It is adjudged, pursuant to the verdict [or report, or de- cision], rendered in the above entitled action, that the de- fendant, C. D., is entitled to the immediate possession of the property mentioned and described in the complaint, to wit [de-^cribe property], and he is hereby awarded pos- session thereof. And it is further adjudged, pursuant to said verdict, etc., that said defendant recover from the plaintiff, A. B., the sum of dollars, damages for the withholding of the said property, and for the costs of this action, to wit : the sum of dollars, in all amounting to the sum of dollars [and that the plaintiff, and every person claiming under him, by title, accruing after the filing of the judgment roll, or of the notice of pendency of this action, as prescribed in article ninth of title first of chapter four- teenth of the Code of Civil Procedure, be forever barred from all claim to any estate of inheritance, or for life, or for the term of years in the said property].' J. L.. Oler7c. No. 730. Final Judgment for the Plaintiff in Action for Determina- tion of Claim to Real Property. (Code Civ. Pro., § 1645.) [Title of cause.] ■ Judgment of the day of , 18—. It is adjudged, pursuant to the verdict [or report, or ' This clause in brackets will be a to final judgment, where the defend- proper provision to be inserted in a ant claims the property by virtue of judgment where the defendant estab- an estate in remainder or reversion, lishes a right to the property as pro- This form may be easily adapted to vided in section 1641 of Code Civ. Pro. such a case. See section 1643, Code Civ. Pro., as 612 FoEMS Relating to decision] rendered herein [or the defendant having made default in appearing {or pleading) it is adjudged], that the defendant, and every person claiming under him, by title accruing after the filing of the judgment roll in this action, or of the notice of the pendency of this action, as prescribed in article ninth of title one of chapter fourteenth of the Code of Civil Procedure, be forever barred from all claim to any estate of inheritance, or for life, or for a term of ■ years, or other term of years not less than ten, in the prop- erty described as follows [describe property] [and it is fur- ther adjudged, that the plaintiflE recover from and against the defendant the sum of dollars costs and disburse- ments in this action].' J. L., Clerk. No. 731. Complaint in Action to Determine Widow's Dower. (Code Civ. Pro., § 1617.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that he is the owner of an estate in fee [or for his own life, or for the life of M. N., or for years] in the real property described as follows, to wit [describe property]. That the defendant, C. B., claims to have a right of dower in the whole [or in a part (describing it)] of the said prop- erty, as the widow of F. B., deceased, who died more than four months before this action was commenced and on or about the day of , 18 — . That said defendant is not under any of the disabilities specified in section 1638 of the Code of Civil Procedure. That the plaintiff admits the existence of the said defend- ant' s right of dower in the whole of said premises, or in the part of the said premises above described [or insists that the ' When the judgment is taken upon of a demurrer to the complaint. (Code the defendant's default in appearing or Civ. Pro., § 1645.) pleading, it shall not award costs to As to effect of judgment, see section either party, unless it is taken upon a 1646 (id.); and see, as to applications default in answering, after the decision for new trial, that section and forms Nos. 638, etc. Action for Waste. 613 defendant has not a right of dower in the said property or any part thereof]. And the plaintiff demands judgment that the dower of the said defendant may be admeasured, and that the plain- tiff may have his costs of this action. [Or that the defendant be forever barred from any claim of dower in said property, and that plaintiff may have his costs of this action.'] E. F., Plaintiff's Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] Article Sixth. FORMS RELATma TO ACTION FOR WASTE. (Code Civ. Pro, Ch. U, Tit 1, Art. 6.) No. 732. Complaint by devisee of lessor against tenant in action for waste. 733. Complaint by heir-at-law of lessor in action for waste. 734. Complaint in action for waste by lessor against lessee. 735. Complaint in action for waste by remainderman against life-tenant. 736. Complaint in action for waste against tenant in dower. 737. Complaint in action for waste by ward against guardian. 738. Complaint in action for waste by grantee of real property sold under execution. 739. Complaint in action for waste by joint-tenant, or tenant in common, against his co-tenant. 740. Judgment for treble damages in action for waste. No. 732. Complaint by Devisee of Lessor Against Tenant in Action for Waste. (Code Civ. Pro., §1651." [Title of cause.] The complaint of the above named plaintiff respectfully shows, that on and before the day of , 18 — , one C. B. was the owner in fee of the following described premises [describe property], and continued to be such ' See Code Civ Pro , g§ 1648, 1649. sections, see forms in dower, Nos. 677, For forms of proceedings under those etc. "^^ ' See note 2 to form No. 122. 614 Forms Relating to owner up to the time of his death, which occurred on the ■ day of , 18-." [f] That said C. B., in his life-time, and on or about the day of , 18 — , leased the said premises to the defendant for the term of years next succeed- ing tlie day of , 18 — , and said defendant, as such lessee, entered into possession of said premises, and has ever since continued to be, and is still, in possession thereof, [ft] That said C. B., in his life-time, duly made and published his last will and testament, in writing, dated , 18 — , which he left unrevoked and in force at his death, and thereby gave and devised the said premises to the plaintiff, who, at the death of said C. B., became as such devisee, and has since continued to be, and still is, the owner thereof in fee, subject to the rights of the defendant under said lease. [*] That the defendant heretofore, [fl during the continuance of said lease, and while he was in possession of said prop- erty as such tenant, [||] and on or about the day of , 18 — , and on divers other days and times between that day and the time of the commencement of this action, committed acts of waste ujpon said above described premises [here stale acts of waste; e. g., by cutting down divers trees, to wit : one hundred beech trees, one hundred maple trees, etc., of great value, to wit: of the value of dollars, standing, growing and being upon the said farm, and took and carried away the same, and disposed thereof to his own use] ; that such acts of waste were committed wrongfully and maliciously," and without a special and law- ful written ' license so to do. And the plaintiff alleges that, by means of the said acts, he was, and is, greatly injured in his said reversionary estate and interest in the said described premises, and that he has sustained damage to his said estate and interest in ' On a lease made by the ancestor, ^ A parol license is invalid under the the plaintiff must allege the seizin in statute, the object of the provision of fee of the ancestor, the demise to the which, for a written license, is the same defendant and a descent to the plaintiff, as that of the statute of frauds. (Mc- (Carris v. Ingalls, 13 "Wend., 73.) Gregor v. Brown, 10 N. Y., 114, 119.) ' See section 1655, Code Civ. Pro. Action for Waste. 615 the amount of dollars [which amount is equal in value to the value of said defendant's unexpired term in the said premises], for which amount [and for the forfeiture of defendant's said estate, and the possession of said premi- ses], and the costs of this action, the plaintiff demands Judg- ment against the defendant." '^ M. R., Attorney for Plaintiff. [OflB.ce address.'] [Verification as in forms Nos. 151, etc.] No. 733. Complaint by Heir-at-Law of Lessor in Action for Waste. (Code Civ. Pro., §§ 1651, 1GD2.) [Title of cause.] As in form No. 732 to [ff], and from thence as follows : That said C. B. died intestate and left him surviving the plaintiff, his sole heir-at-law, and as such heir-at-law said plaintiff became the owner in fee simple of the real prop- erty above described at the death of said C. B., and has been such owner ever since and still is such owner,' subject to the rights of the defendant under said lease [thence as in form No. 732, from (*) to end thereof]. No. 734. Complaint in Action for Waste by lessor against lessee. (Code Civ. Pro,, § 1651.) [Title of cause.] The complaint of the above named plaintiff respectfully ' See as to relief generally, sections or inheritance. (Robinson v. Kinne, 1655 and 1656, Code Civ. Pro. As to supra.) recovery of treble damages, see sec- The reversioner may recover for tions 1020, 1184 and 1655, Code Civ. waste against the tenant, although, Pro., Robinson v. Kinne (1 N. Y. after its commission, he alienates the Supr. Ct. [T. & C], 60; aff'd, S. C, 70 estate and has no interest at the time N. Y., 147), Carris V. Ingalls(l2 Wend, of action. (Robinson v. Wheeler, 25 70), Rutherford v. Aiken (3 T. & , 60). NY., 252. ) The recovery for waste is limited to the The lessor is not bound to wait until amount of the damage to the freehold the expiration of the tenancy before 616 FoEMS Eelatikg to shows, that he, on the day of , 18—, being the owner in fee of the premises described as follows [de- scribe property], of which premises he has since continued to be and still is the owner, demised the said premises to the defendant for the term of years [proceed as in form Ko. 733 from (*) to end].' No. 735. Complaint in Action for Waste by Remainderman against Life-tenant. (Code Civ. Pro., § 1651.) As in form No. 732 to [f], and from thence as follows : That said C. B., in his life-time, duly made and published his last will and testament in writing, dated , 18 — , which he left unrevoked and in force at his death, and thereby gave and devised the said premises to the defendant for and during his natural life, and after the death of the said defendant to the plaintiff in fee, and the said- plaintiff, at the death of the said C. B., became, as such devisee, and has since continued to be and still is the owner thereof in fee after the expiration of the life estate of the defendant.' That the defendant entered into the possession of said premises as such life-tenant at the death of said C. B., and has been ever since and still is in possession thereof as such life-tenant, and that said defendant heretofore and since the death of said C. B. and [then proceed as in form No. 732 from (X) to end, substituting for the words "reversionary estate" in that form the words "estate in remainder"]. bringing his action. If the acts were ^ See Ellsworth v. Putnam (10 Barb., in fact injurious, an action could be 568). maintained thereon iminediately(Agate ^ See notes to forms Nos. 732, 733. V. Lowenbein, 57 N. Y., 604), in which ' A person seized of an estate in re- case also the authorities upon the sub- mainder or reversion may maintain an ject of waste as between landlord and action founded upon an injury done tenant, and as to the proper time for to the inheritance, notwithstanding any bringing action therefor, are collated, intervening estate for life or for years. > See note 3 to form No. 133, (Code Civ. Pro., § 1665.) Action fob Waste. 617 No. 736. Complaint in Action for Waste against Tenant in Dower. (Code Civ. Pro., § 1651.) [Title of cause.] The complaint of tlie above named plaintiff respectfully shows, that he is and has been, since the ■■ — day of , 18 — , seized in fee simple of the remainder in the premises described as follows [describe property], after the expiration of the dower estate for her life therein of the defendant. That the defendant heretofore and while she was in pos- session of said premises as such tenant in dower [proceed thence as in form No. 732 to end from [||], substituting the words "estate in remainder" for the words "reversionary estate" in that form]. No. 737. Complaint in Action for Waste by Ward against Cruardian. (Code Civ. Pro., § 1653.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore, and on or about the day of , 18 — , the defendant was appointed the general guardian of the estate of the plaintiff, and entered upon the discharge of his duties as such guardian, and still con- tinues to be such guardian \_or continued to be such guardian until the day of , 18—]. That during the continuance of said guardianship, and on or about the — day of , 18 — , and on various days between that day and the time of the commencement of this action, the said defendant [has] committed acts of ■waste upon certain real estate belonging to the plaintiff, to wit, upon the property described as follows [describe property]. That the acts constituting such waste were as follows [de- scribe acts of waste], to the damage of the plaintiff of the sum of dollars. Wherefore the plaintiff demands judgment that he may 78 618 Forms Relatino to recover from and against the defendant the sum of dollars, with costs of this action.' M. N., Plaintiff's Attorney. [OflSce address.'] [Yerification as in forms Nos. 151, etc.] No. 738. Complaint in Action for Waste by Grantee of Real Property Sold Under Execution. (Code Civ. Pro., § 1654.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that a judgment was heretofore rendered in the [Supreme] Court in favor of A. B., plaintiff, against C. D., defendant, the Judgment roll upon which was filed in the county of on the day of , 18— [and said jiidgment was duly docketed in the county of on the day of , 18—].' That on the day of , 18 — , execution was issued upon said judgment against the property of the de- fendant to the sheriff of county, and on the day of , 18 — , the said sheriff sold, under and by virtue of said execution, all the right, title and interest which said defendant had on the day of , 18 — , or at any time afterwards, of, in and to the real prop- erty, described as follows, to wit [describe property], which said property was conveyed by the said sheriff to the plain- tiff on the day of , pursuant to said sale. That after the time of such sale, and on or about the day of , 18 — , and on divers days between that day and the time of the commencement of this action, the defendant being then in possession of said property, committed acts of waste upon said premises, to wit [here describe acts of waste], to the damage of the plaintiff's interest in said property of the sum of dollars. ' See Torry V. Black (58 N. T., 185). the judgment was docketed, and sale '' See note 3 to form No. 123. made, in a county other than that iu ' Insert this clause in brackets when which the roll was filed- Action foe Waste. 619 Wherefore, etc. [demand of judgment as in form No. 738]. M. IN., Plaintiff's Attorney. [Office address.'] [Verification as in forms Nos.- 151, etc.] No. 739. Complaint in Action for Waste toy Joint Tenant or Tenant in Common against his Co-tenant. (Code Civ. Pro , § 1656.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that he is a joint tenant \or tenant in common, said plaintiff being the owner of the undivided part thereof, and defendant being the owner of the undivided part thereof] with the defendant of the real prop- erty described as follows [insert description], and has been such joint tenant [or tenant in common] since the day of , 18 — •. That during the continuance of such joint tenancy [or tenancy in common], and on or about the day of , 18 — , and at various times since that day, the de- fendant committed waste upon said property, to wit [describe acts of waste], to the damage of the plaintiff of dollars. Wherefore the plaintiff demands judgment that he may recover of the defendant the sum of ■ dollars, with costs of this action, or, if plaintiff shall so elect, that the said property may be partitioned' [as in form No. 644]. M. N., Plaintiffs Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] No. 740. Judgment for Treble Damages in Action of Waste. (Code Civ. Pro , § 1655.) [Title of cause.] Judgment of the day of , 18 — . It is adjudged, pursuant to the verdict [or report, decision, ' See note 3 to form No. 133. tiU elects to liave partition, see sections ' As to proceedings m case the plaiii- 1657 and 1658 of Code Civ, Pro. 620 FoEMS Eelating to etc.] rendered herein on the day of , 18—, that the said plaintiff, A. B., recover from and against the said defendant, C. D., treble' the amount of the damages found by said verdict [or report, etc.], such treble amount being dollars, together with the sum of dol- lars, for his costs and disbursements herein, in all amount- ing to dollars." [And it is farther adjudged, that the said A. B. recover from and against the said C. D. the premises described as follows (describe property), with the appurtenances, and that the said plaintiff have execution therefor. J. L., Clerk. Article Seventh, forms kelatikg to action for a nuisance. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 7.) No. 741. Complaint in action for a nuisance. No. 741. Complaint in Action for a Nuisance. (Code Civ. Pro., § 1660.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that the plaintiff, before and at the time of the com- mitting of the grievance- hereinafter mentioned, was, and from thence hitherto hath been, and still is, lawfully seized of an estate in fee -simple [or for his own life, or for the life of C. D.J," in and to the real property described as fol- lows, to wit [describe property], and was, during the time ' See, as to recovery of treble dam- City of Brooklyn (10 Abb. N. C, 180), ages, note 1, p. 615, to form No. 733. People v. N. Y., etc., R. R. Co. (15 2 As to the proper subjects of in- Week. Dig., 50; S. C, 89 N. Y., 266), quiry before a sheriff's jury, upon writ Vanderwiele v. Taylor (C6 N. Y., 341), of inquiry in an action for waste when Jutte v. Hughes (C7 N. Y., 267; rev'g the defendant has made default, see S. 0., 40 N. Y. Super. Ct., 120), Ad- Harder V. Harder (36 Barb., 409). ams v. Popham (76 N. Y., 410), Heeg" ' See Fish v. Dodge (4 Denio, 311), v. Licht (80 N. Y., 5T9; rev'g S. C, Hutchinsv. Smith (63 Barb., 251) and 16 Hun, 257>, Snow v. Williams (16 cases there cited; Campbell v. Seaman Hun, 468), Saltsman v. Shults (14 Hun, (63 N. Y., 563; afl'g S. C, 2 N. Y. 256), Dickinson v. Mayor of N. Y. (93 Super. Ct. [T. & C], 231), Negus v, N. Y , 584), People v. Met. Telephony" Action for Nuisance. 621 above mentioned, and is,' in the possession of said property, and in the occupation with his family of the dwelling-house erected thereon. That the defendant was, before and at the time of the commission of the said grievance [and still is], the owner in fee simple [or for his own life, or for the life of M. N.J of premises adjoining [or in the neighborhood of J the above described premises belonging to the plaintiff. That heretofore, and on or about the day of , 18—, the defendant erected a smith's forge [or lime-kiln, or name other erection] upon his said premises, so near to the said dwelling-house of the plaintiff as to ren- der it unfit for occupation by the plaintiff, by reason of the noise [or name other cause of annoyance] caused by said forge [or name other erection], and that thereby the enjoy- ment by said plaintiff and his family of the said dwelling- house has been, and is, interfered with, and said dwelling rendered uncomfortable for habitation, and [state other injurious effects of erection].' And plaintiff alleges that he has been damaged by said erection to the amount of dollars, for which amount [and for the removal of the said erection], ' together with the costs of this action, the plaintiff demands judgment against the defendant. E. F., Attorney for Flaintiff. [Ofllce address.*] [Verification as in forms Nos. I5l, etc.] Aeticle Eighth. FORMS RELATING TO OTHER ACTIONS CONCERNING REAL PROPERTY. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 8.) No. 742. Complaint in action against person in possession as life-tenant and holding over. Co. (11 Abb. N. C, 304; S. C, 31 Hun, as to what constitutes a nuisance, and 596), Wenzlick V. McCotter (S7 N. Y., when action therefor may be main- 123; rev'g, 22 Hun, 60), Mairs v. Man- tained. hattan Real Estate Assoc. (89 N. Y., ' SeeElIsworth v. Putnam (16 Barb., 498J, Chipman v. Palmer (77 N. Y., 565). 56), Vogd V. Mayor of N. Y. (93 N. » Sections 1660 to 1664 of Code Civ. Y., 10), Groat v. Moak (94 N. Y., 115), Pro , do not apply to an action wherein 622 FoEMS Relating to No. 743. Complaint In action by joint tenant or tenant in common to recover bis proportion of rents and profits of real estate. 744. Complaint in action for cutting down, etc., trees. 745. Complaint for forcible entry and detainer. No. 742. Complaint in Action against Person in Possession as Life- tenant and Holding Over. (Code Civ. Pro., § 1664.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that on and before the day of , 18 — , C. B. was the owner of the real property described as follows, to wit [describe property]. That said C. B. died on or about tlie day of , 18—, having made his last will and testament, which he left in full force and unrevoked at his death, by whicli he devised the said property to the defendant, M. R., for the life of J. R,., and from and after the death of the said J. R. to the plaintiff in fee. That said J. R. died heretofore, to wit : on or about the day of , 18—, and that said defendant's said estate in said property terminated by the death of the said J. R. ; but that said M. R. held over and continued in possession of said property, without the express consent of the plaintiff, until the day of , 18 when he delivered the possession thereof to the plaintiff. And plaintiff alleges that the value of the profits of said property received by the said M. R., during the time of his so holding over, is the sum of dollars, for which amount, with the costs of this action, the plaintiff demands judgment against the defendant. M. N., Plaintiff's Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] the complaint demands judgment for the removal of the nuisance or both a sum of money only. (§ 1663, id.) (§ 1662, id.) ' The final judgment may award « See note 2 to form No. 182. damages to the plaintiff, or may direct Otjeier Heal Actions. 623 No. 743. Complaint in Action by Joint Tenant or Tenant in Common against Co-tenant to Recover liis Proportion of Rents and Profits of Real Estate. (Code Civ. Pro., § 166G.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that the plaintiff and defendant became heretofore owners as tenants in common [or joint tenants] in tlie real property described as follows [describe property] [the plain- tiff being seized (in fee simple) of the one part thereof, and the defendant being seized (in fee simple) of the one part thereof]. That during the years 18— and 18 — the defendant re- ceived the sum of dollars of the rents and profits of said property to the one — part whereof the plain- tiff is entitled ; but that the defendant has not paid over to the plaintiff his said portion of said rents and profits, or any part thereof, although the plaintiff has demanded from him the payment of the same. Wherefore tlie plaintiff demands judgment against the defendant for dollars, with the costs of this action. M. N., Plaintiff'' s Attorney. [Ofiice address.'] [Verification as in forms Nos. 151, etc] No. 744. Complaint in Action for Cutting Bown, etc., Trees. (Code Civ. Pro., § 1667.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore and on or about the day of , 18 — , and on divers other days and times between that day and the time of the commencement of this action, the defendant entered upon the real property of the defend- ant described as follows, to wit [describe property], and cut down, prostrated and destroyed certain wood then growing " See note 3 to form No. 133. 624 Poems Relating to and being on the said premises, to wit : five hundred oaks, five hundred ash trees, five hundred elms, etc. [according to the fact], and other trees, and fifteen acres of the under- wood of the said plaintiff, of great value, to wit : of the value of dollars ; and the timber, wood, branches and bushes thereof coming and arising, to wit : fifty loads of timber, fifty cart loads of branches, and fifty cart loads of bushes, of the said jplaintiflf, of great value, to wit : of the value of dollars, took and carried away and con- verted and disposed of, to his own use, and did also there girdle and despoil other trees of the said plaintiff then and there standing and being on the said lands of the plaintiff, to wit [here mention the number and kinds of trees], all of which acts were done and committed without the leave of the plaintiff and against the statute in such case provided, to the damage of the plaintiff of dollars. Wherefore the plaintiff demands judgment against the defendant for the sum of dollars, being treble the amount of said damages sustained by the plaintiff, with the costs. of this action.' M. N., Plaintiff's Attorney. [Oflace address."] [Verification as in forms Nos. 151, etc.] No. 745. Complaint for Forcible Entry and Detainer. (Code Civ. Pro., § 1669.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore, and on or about the — day of , 18 — , the defendant made forcible entry \or made entry in a peaceable manner, according to the fact] into the lands, whereof the following is a description [describe lands], and forcibly put the plaintift" out of the possession ' An owner of land out of possession not for subsequent injurious acts, such cannot recover for injuries to the land as the felling of trees. (Wood v. La- until after he has recovered possession, fayotte, 68 N. Y., 181 ) Where the entry of the person in pos- See, as to damages, sections 1030, session vpas tortious, the owner can 1184, 1668, Code Civ. Pro. recover only for the original trespass, ' See note 2 to form No. 132. Real Actions Generally. 625 lor forcibly (or by putting him in fear of personal violence) holds the plaintiff out of possession, if the entry was peacea- ble] of the said land. That plaintiff has an estate of freehold now subsisting in the said lands and premises [or state other right to the pos- session, according to the fact], whereby this plaintiff actu- ally and constructively became possessed of the said land and premises, and entitled to the possession thereof [if for a limited period, state the time when it will expire]. And the plaintiff alleges that he has been damaged by the aforesaid acts of the defendant in the sum of dollars, for treble which amount the plaintiff claims judg- ment against the defendant with costs of this action.' M. N., Plaintiff's Attorney/. [Office address.'] [Verification as in forms Nos. 151, etc.] Article Ninth. forms relating to genera.l provisions of code of civil procedure applicable to real actions. (Code Civ. Pro., Ch. 14, Tit. 1, Art. 8.) No. 746. Notice of pendency of action by plaintiff. 747. Notice of pendency of action by defendant. 748. Notice of sale of real property under judgment. 749. Terms of sale under judgment. 750. Notice of postponement of sale under judgment. ' As to recovery of treble damages, per. Ct. [9 J. & S.], 323), People ex see Code Civ. Pro., §§ 1020, 1184, 1669. rel. McBride v. N. Y. C. R. R. Co. (51 As to what must appear to constitute N. Y., 633), King v. Phillips (1 Lans., a forcible entry and detainer, see Dud- 431), Wood v. Phillips (43 N. Y., ley V. Chanfrau (3 Edm. Sel. Cas., 153), People ex r«J. Cooper v. Field (53 138). Barb., 198; S. C, 1 Lans., 333; aflf'd, In proceedings for forcible entry and 58 Barb., 270), People v. Carter (39 detainer, the main question for deter- Barb., 208.) mination is, whether the party charged Where the owner of land, wrong- entered by force upon one having pre- fully held out of possession, regains viously a peaceable possession under possession peaceably he may maintain claim of right, and whether the person it, and consequently may lawfully rfe- whose possession was invaded has been sist an attempt of the former occupant held out by force. (Kelly v. Sheehy, to retake possession, without being 60 How. Pr., 439.) guilty of a wrongful detainer. (Bliss See, further, Health Department v. v. Johnson, 73 N. Y., 529.) Police Department, etc. (41 N. Y. Su- 79 ■ 626 Forms Relating to No. 751. Affidavit on application for order staying waste. 753. Order restraining defendant from commission of waste. 753. Affidavit to procure a survey of premises in action relating to real property. 754. Notice of motion for survey. 755. Order for survey. 756. Complaint against party in possession under conveyance from de- fendant, after filing of lis pendens, in action of ejectment or for dower. No. 746. Notice of Pendency of Action by Plaintiff. (Code Civ. Pro., § 1670 ) [Title of cause.] Notice is hereby given, that an action has been commenced in the Supreme Court of the State of New York [or name other court] by the above named plaintiffs against the above named defendants, and is now pending in said court, and that the object of said action is [here state object of ac- tion], [*] and that the real property situated in the county of , affected by said action, is described as follows, to wit [describe property].' Dated , 18—. M. N., Plaintiff^ s Attorney. [Office address."] To the County Cleric of County : You are hereby directed to index the foregoing notice to the names of all the defendants [or to the names of the de- fendants, C. D. and E. F.], in the above entitled action.' M. N., Plaintiff'' s Attorney. ' For like notice in action for foreclos- nullity. (Jaffray v. Brown, 17 Hun, ure of mortgage, see form No. 705 ; and 575. ) see as to notice of levy made upon real This section includes all actions estate, under a warrant of attachment, affecting estates in lands, estates for Code Civ. Pro., § 649, subd. 1, and life, for years, at will and by sufEer- form No. 243. ance, as well as of inheritance. (Wil- ^ See note 2 to form No. 122. mont v. Meserole, 41 N. Y. Super. Ct., 2 See section 1672, Code Civ. Pro. 274.) A notice of lis pendens, filed to levy See, also, as to actions in which the on real property under a warrant of notice maybe filed, Ruck v. Lange(10 attachment, describing the property as Hun, 303), Cornell v. Utica I. and E. "all the real property of defendant, R. R. Co (61 How. Pr., 184), Kunz v. or in which she may have an interest, Bachman (61 How. Pr., 519). situated in Chenango county," is a Beal Actions Generally. 637 No. 747. Notice of Pendency of Action by Defendant. (Code Civ. Pro., § 1673.) As in form No. 746 to [*], and from thence as follows : And that the defendant, C. D., sets up in his answer a coun- terclaim, upon which he demands an affirmative judgment for the following relief, to wit [state the relief claimed by defendant], and that the real property, etc. [as in form No. 746 to end thereof]. Dated , 18—. F. P., Attorney for Defendant, C. D. [Office address.'] [Add directions to county clerk, as to indexing, as in form No. 746, substituting names of plaintiffs for those of defendants.] No. 748. Notice of Sale of Real Property under Judgment. (Code Civ. Pro., § 1678.) [Title of cause.] Notice is hereby given, that the real property described as follows [insert description], will be sold by the under- signed referee \or sheriff of county], at public auction, at [insert place of sale], in the city \or town] of , in the county of , at o'clock in the noon, on the day of , 18—, pursuant to the judgment made and entered in the above entitled action, on the day of , 18—.' Dated , 18—. M. E., Referee [or SJieriff.'] ' See note 2 to form No. 132. the days on which the notice was pub- ' The notice of sale in foreclosure lished, it not appearing that the omis- need not state that the property will sion was followed by any injurious be sold in parcels. (HofEman v. Burke, results. (Everson v. Johnson, 23 Hun, 21 Hun, 580.) 115.; The sale will not be set aside be- See, further, as to publication of cause the notice was not published in notice, Valentine v. McCue (86 Hun, all the editions of the paper issued on 456). 628 S'OEMS liELATlNGt T6 No. 749. Terms of Sale under Judgment. (Code Civ. Pro., § 1678.) [Annex notice of sale. J The premises described in the annexed advertisement of sale, will be sold under the direction of the undersigned referee \or sheriff], upon the following terms : 1. per cent of the purchase money of said premi- ses will be required to be paid to the said referee \or sheriif] at the lime and place of sale, and for which the referee's \or sheriff's] receipt will be given. 2. The residue of the purchase money of said premises will be required to be paid to the said referee \or sheriff], at his office, in the of , on the day of , 18 — , at o'clock in the noon, when the said referee's [or sheriff's] deed will be ready for delivery. 3. The referee \or sheriff] is not required to send any notice to the purchaser ; and if he neglects to call at the time and place above specified, to receive his deed, he will be charged with interest thereafter on the whole amount of his purchase, unless the referee \or sheriff] shall deem it proper to extend the time for the completion of said purchase. 4. All taxes, assessments and water rates which, at the time of sale, are liens upon said premises, and the amounts necessary to redeem the property sold from any sales for unpaid taxes, assessments or water rates which have not apparently became absolute," will be allowed by the referee \or sheriff] out of the purchase money , provided the pur- chaser shall, previous to the delivery of the deed, produce to the referee {or sheriff] proof of such liens, and duplicate receipts for the payment thereof. 5. The purchaser of said premises, or any portion thereof, shall, at the time and place of sale, sign a memorandum of his purchase and pay the above mentioned per cent of the purchase money. 6. The bidding will be kept open after the property is struck down ; and in case any purchaser shall fail to com- > See Code Civ, Pro., §§ 1626, 1676. Eeal Actions Generally. 639 ply with any of the above conditions of sale, the premises so struck down to him will be again put up for sale, under the direction of the said referee [or sheriff], under these same terms of sale, without application to the court, unless the plaintiff's attorney shall elect to make application ; and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the resale, and also for costs or expenses occurring on such resale. [If the property is to be sold subject to any right of dower, charge or lien, state the same.'] Dated , 18—. M. N., Referee \or Sheriff\ Memokandtjm of Sale. I have this day of , 18 — , purchased the premises described in the above annexed printed advertise- ment of sale, for the sum of dollars, and hereby promise and agree to comply with the terms and conditions of the sale of said premises, as above mentioned and set forth. Dated , 18—. A. B. Received , 18 — , from A. B. the sum of dollars, being per cent on the amount bid by him for property sold by me, under the judgment in the above entitled action. M. N., Referee \or Sheriff \ No. 750. Notice of Postponement of Sale under Judgment. (Code Civ. Pro., § 1678.) [Annex notice of sale.] The foregoing sale is postponed, to take place on the day of , 18 — , at the same hour and place mentioned in the foregoing notice. Dated , 18—. M. N., Referee [or Sheriff]. gee Code Ciy. Pro., § 1678, 630 FOKMS RELATING TO No. 751. Affidavit on Application for Order Staying Waste. (Code Civ. Pro., § 1681.) [Title of cause.] County, ss.: A. B., of , being duly sworn, says, that he is the plaintiff in the above entitled action, which has been com- menced for the recovery of the premises described as fol- lows, to wit [describe property] [or state other relief]. That the defendant, C. D., has, during the pendency of the said action, committed waste upon [or done damage to] the said premises by [set forth acts of waste or other injury]. A. B. [Jurat as in form No. 46. J Ko. 752. Order Restraining Defendant from Commission of Waste. (Code Civ. Pro., § 16S1.) [At, etc., as in form No. 80 (when made by court).] [Title of cause.] Due proof having been made by the affidavit of A. B., dated , 18 — , that, during the pendency of this ac- tion, which is brought to [state purpose of action], the defendant, C. D., has committe'd waste upon [or has done damage to] the property in controversy in this action : It is hereby ordered, that said defendant be and he ia hereby restrained and prohibited from the commission of any further waste upon [or damage to] said property.' Dated , 18 — [when made by judge]. A. O., Judge of Court {to judge' s order). ' Tliis order does not affect the plain- ary injunction in such an action. (Code tiff's right to a permanent or a temper- Civ. Pro., 1 1681.) Real AcTioiirs Geneeallt. 631 No. 753. Affldayit to Procure a Survey of Premises in Action Ec- lating to Real Property, (Code Civ. Pro., § 1683.) [Title of cause.] County, ss. ; A. B., of '■ , being duly sworn, says, that he is the plaintiff in the above entitled action, vs^hich is brought to [state object of the action]. That the place of trial in said action is the county of That it is necessary [as he is advised by his counsel, E. F., who resides at , and verily believes to be true], in order to enable this deponent to prepare his complaint [or answer] in this action [or to prepare for the trial of this action (or for any other proceeding in the action, stating it)], to have a survey made of the premises in question in said action [or of the boundary line (here state par- ticularly what line)], and the reasons why the said survey has become necessary are as follows, to wit [here state them briefly], and that it will be necessary to enter upon the real property [in possession] of the [defendant] described as fol- lows [describe property] for that purpose, for the reason that [state reason]. A. B. [Jurat as in form No. 46. J No. 754. Notice of Motion for Survey. (Code Civ. Pro., § 1683.) [Title of cause.] SiE — Take notice, that upon an affidavit, with a copy of which you are herewith served, and upon the pleadings and proceedings in this action, a motion will be made at, etc., on, etc., for an order that the plaintiff [or defendant] in this cause be permitted to make a survey of the premises [or boundary line, etc.] in question in this cause [and be per- mitted to enter upon the real property (in possession) of 633 Forms Relating to the (defendant) described in said affidavit, upon which it is necessary to enter for that purpose], and for such other, etc. Yours, etc., M. N. Attorney for Plaintiff [or Defendanfj. [Office address.'] No. 755. Order for Survey. (Code Civ. Pro., § 1683.) [At, etc., as in form 'No. 80.] [Title of cause.] On reading and filing affidavit and notice of motion, with proof of due service thereof on the attorney for the [defend- ant], and on motion of A. B. of counsel for the [plaintiff] in this action, no one appearing to oppose [or after hearing 0. D. of counsel for the (defendant)] : It is hereby ordered, that the said [plaintiff] be permitted to make a survey of the [here insert description of the premises, or boundary line of which a survey is required, as definite as may be], and that the said [plaintiff] be permit- ted to enter upon the said premises [or upon the premises of the (defendant), described as follows (insert description)], for that purpose." No. 756. Complaint against Party in Possession under Conveyance from Defendant, made after Filing of Lis Pendens, in Action of Ejectment or for Dower. (Code Civ. Pro., § 1685.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore an action was brought by the plain- tiff against C. D. for the recovery of [a dower interest in] the real property situated in county and described ' See note 2 to form No. 123. 'As to authority of party under order, see Cgde Civ. Pro., § 1684. Eeal Actions Generally. 633 as follows [describe property], and a notice of pendency of said action was filed in said county of , on the day of , 18—, with the complaint in said action, in form as required by section 1670 of the Code of Civil Procedure, stating the names of the parties and the object of the action, and containing a brief description of the property in said county of affected thereby. • That a judgment was rendered in said action for the re- covery by said plaintiff against said C. D. of said property [or of said dower], and for dollars damages for withholding said property [or said dower], and dollars costs, the judgment roll upon which said judgment was filed in said county of , on the '■ — day of , 18 — [and a transcript of said judgment was duly filed, and said judgment duly docketed, in the county clerk's office of county, on the day of ■ — , 18-J.' That an execution against the property of said C. D. was afterwards, and on or about the day of , 18 — , issued to the sheriff of the said county of for the plaintiff's said damages, and that said execution has since, and on the day of , 18 — , been re- turned by said sheriff wholly unsatisfied [or unsatisfied to the extent of dollars of said damages], and that said damages [or such portion of said damages] are still unpaid. That on or about the day of , 18 — , and after the filing of the notice aforesaid of the pendency of said action, the said C. D. conveyed to the defendant the above described premises, by deed bearing date on the day last aforesaid, and that said defendant took possession of said premises under said deed, and was in possession thereof, under said deed, from the day of , 18 — , to the day of , 18 — , and that during said defendant's possession the sum of dollars of said damages accrued. Wherefore the plaintiff demands judgment that he may recover from the defendant the sum of dollars, ' Insert this clause in brackets where other than that in ■which the judgment the execution is issued to a county roUis filed, 80 634 Forms Relating to ■with interest thereupon from the day of 18 — , and the costs of this action. M. N., Plaintiff'' s Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] TITLE II. forms relating to actions relating to chattels. Article First, forms relating to action to recover a chattel. (Code Civ. Pro., Ch. 14, Tit. 2, Art. 1.) No. 757. Affidavit of plaintiff to require cliattel to be replevied. 758. Affidavit of agent, or attorney of plaintiff, to require a chattel to be replevied. 759. Undertaking in replevin. 760. Notice of exception to sureties. 701. Affidavit by defendant to require a return of chattel replevied ■with notice. 763. Affidavit by agent or attorney of defendant to require return of chattel replevied. 763. Undertaking on part of defendant to obtain return of chattel re- plevied. 764. Notice by sheriff to plaintiff that he requires indemnity on claim by third person. 765. Affidavit by third person claiming title to chattel replevied. 766. Affidavit by agent or attorney of third person claiming title to chattel replevied. 767. Complaint in action by claimant against sheriff. 708. Undertaking indemnifying sheriff on claim by third person. 769. Sheriff's return to requisition for replevy of chattel on delivery thereof to the plaintiff. 770. Sheriff's return where a third person claims the chattel, and the plaintiff indemnifies or refuses to indemnify sheriff. 771. Sheriff's return of redelivery of chattel to defendant. 773. Sheriff's return where none of the chattels is found. 773. Notice to sheriff to file return. 774. Notice by plaintiff of abandonment of claim to chattels not replevied. '(75. Complaint in action for a chattel. 776. Complaint for the wrongful detention of chattel or chattels. 777. Answer in action for a chattel. 778. Notice that defendant demands judgment for return of chattels. 779. Verdict, report or decision in action for chattel. 780. Final judgment in action for chattel. " See note 3 to form No. 128. AcTioK TO Eecovee Chattel. 635 No. 781. Complaint against sureties on undertaking given by defendant to procure return of cliattel. 782. Complaint on undertaking given by plaintiff on replevy of chattel. 783. Answer in action upon undertaking in replevin that chattel was injured or destroyed. No. 757. Affldayit of Plaintiff to Require Chattel to l)e Repleyied. (Code Civ. Pro., § 1695.) [Title of cause.] County, 55.; A. B., of — , being duly sworn, says : 1. That he is the plaintiff' in the above entitled action, and that he is, or was at the ciuie of the commencement of this action, the owner [or is {or was at the time of the com- mencement of this action') entitled to the possession by virtue of a special property therein, the facts with respect to which are as follows, to wit (set forth facts with respect to the special property)] ' of the chattel, [or of the chattels] described as follows, to wit [*] [describe chattel or chattels, and where description of a chattel is in bulk, state weight, measurement, or other quantity ; and where there are two or more of one kind, state the number thereof].' 2. That said chattels are [or were at the commencement of this action] wrongfully detained by the defendant. 3. That the alleged cause of the detention thereof, accord- ing to the best knowledge, information and belief of this deponent, is [here set forth alleged cause]. 4. That said chattels have not been taken by virtue of a ■warrant against the plaintiff, for the collection of a tax, assessment or fine, issued in pursuance of a statute of the State, or of the United States. [Or that said chattels have been taken under color of a warrant for the collection of a tax (or assessment, or fine), issued in pursuance of a statute of the State {or of the United States), but that said taking was unlawful by reason of the following defects in the said process, to wit (specify ' For affidavit made by agent or at- ^ See Donald v. Rockwell (19 Week, torney, see next form No. 758. Dig-, 193). ' See section 1697, Code Civ. Pro. ■" See section 1673, Code Civ. Pro. 636 FoEMS Relating to same, or specify other causes), or that the detention thereof is unlawful by reason of the following facts which have subsequently occurred, to wit (here specify facts).'] 5. That said chattels have not been seized by virtue of an execution or warrant of attachment against the property of the plaintiff, or of any person from or through whom the plaintiff has derived title to the chattel [or chattels] since the seizure thereof. \0r that said chattels have been seized by virtue of an execution {or warrant of attachment) against the property of the plaintiff {or against the property of G. H., from or through whom the plaintiff has derived title to the said chattel, or chattels, since the seizure thereof), but that said chattels were exempt from such seizure by reason of the following facts (here specify facts) {or that the detention thereof is unlawful by reason of the following facts, winch have subsequently occurred, to wit (here set forth such facts)]. 6. That the actual value of said chattel \or chattels] is the sum of dollars." A. B. [Jurat as in form No. 46.] Requisition to be indorsed upon or annexed to affidavit : To the Sheriff of the County of {or to the Sheriff of any county where the chattel {or chattels) described in the foregoing {or within) affidavit is {or are) found'] : You are hereby required to replevy the chattel [or chat- tels] described in the foregoing [or within] affidavit. Yours, etc., M. ]Sr., Plaintiff'' s Attorney. [Office address.'] ' See Troy and Lansingburgh R. R. decisions were made before tlie enact- Co. V. Kane (72 N. Y., 614), Hudler ment of the Code of Civ. Pro, ; and V. Golden (36 JST. Y., 446), O'Reilly v. see to same effect, following O'Reilly Good (43 Barb., 531), that an action v. Good {supra), American Tool Co. cannot be maintained to recover per- v. Smith (33 Hun, 131). sonal property, subject to execution, ' See provisions of section 1697 ■where it is taken by the proper ofiBcer (supra) as to statements of value, in a in virtue of a warrant issued for the case where two or more chattels are to collection of a tax or assessment, and be replevied, which is regular on its face. These For proceedings where a part only Action to Recovek Chattel. 637 No. 758. Affldarit of Agent or Attorney of Plaintiff to Eequire a Chattel to toe Replevied. (Code Civ. Pro., §§ 1695, 1712.) [Title of cause.] County, ss.: E. F., of , being duly sworn, says, that he is the agent [or attorney] of the plaintitf in the above entitled action. That the plaintiff is [or -was at the time of the commence- ment of this action] ' the owner [or that the plaintiflp is {or was at the time of the commencement of this action)' entitled to the- possession, by virtue of a special property therein, the facts in respect to which are as follows, to wit (here set forth facts in respect to special property)], of the chattel [or chattels] described as follows, to wit [proceed as in form No. 757 from (*), stating whatever allegations are made upon information and belief to be so made, then add : that the ground of deponent's belief, as to all matters not stated upon deponent's knowledge, are as follows (here state grounds as to each allegation made upon information and belief)]. That the reason why this affidavit is not made by the plaintiff is, that the plaintiff is not within the county of , where this deponent resides [or has his office] [or that the material facts are within the personal knowl- edge of deponent ; or thai the plaintiff is not capable of making this affidavit, for the reason that (here state inca- pacity)].' B. F. [Jurat as in form No. 46. J [Add requisition as in last form No. 757.] of the chattel or chattels have been to he delivered to the sheriff in behalf replevied under this affidavit, etc., and of the plaintiff, veith a requisition to a second or subsequent replevin is replevy a chattel, may be made by the made, see section 1713, Code Civ. Pro. plaintiff's agent or attorney, if the 2 See note 2 to form No. 122. material facts are within his personal ' See section 1096, Code Civ. Pro. knowledge; or, if the plaintiff is not ' The words of section 1712, Code within the county where the attorney Civ. Pro., are as follows, so far as they resides, or has his office, or is not capa- relate to this affidavit: "The affidavit, ble of making the affidavit." 638 Forms Relating to No. 759. Undertaking in Replevin. (Code Civ. Pro., § 1699 ) [Title of cause.] Whereas, an action has been brought [or is about to be commenced], in the Court, by the above named plaintiff against the above named defendant to recover a chattel [or certain chattels] of the estimated value of dollars, and said plaintiff desires to cause the said chattel [or chattels] to be replevied : Now, therefore, in pursuance of the statute in such case made and provided, we, A. F., of , in the county of and State of New York, farmer, and G. H., of • , in the county of ■ and State of New York, merchant, do hereby jointly and severally undertake, in the sum of dollars' for the prosecution of the action, for the return of the chattel [or chattels] to the defendant, if possession thereof is adjudged to him, or if the action abates or is discontiuued before the chattel is [or said chat- tels are] returned to the defendant, and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. Dated , 18—. A. F. G. H. In presence of . [Certificate of acknowledgment or proof and affidavit of justification by the sureties as in forms Nos. 340, 538.] I hereby approve of the sureties named in the within undertaking. Dated , 18—. M. N., Sheriff of — County. ' Not less than twice the value of the chattel or chattels as stated in the affidavit. (§ 1699, Code Civ. Pro.) Action to Eeoovek Chattel. 639 No. 760. Notice of Exception to Sureties. (Code Civ. Pro., § 1703.) [Title of cause.] Sui— Take notice, that the defendant excepts to plain- tiff's sureties in the undertaking served upon him, on the day of , 18 — , in the above entitled action.' M. ISr., Defendanf s Attorney \pr C. D., Defendant, or¥. G., Agent for Defendanf]. [Office address.'] To M. N., Sheriff of County. No. 761. Affidavit by Defendant to Require a Return of Chattel Replevied with Notice. (Code Civ. Pro., § 1704.) [Title of cause.] County, ss.: C. D., of , being duly sworn, says, that he is the defendant in the above entitled action/ and that he is the owner of the chattel [or chattels] which has [or have] been' replevied in this action by the sheriff of county \or that he is entitled to the possession of the chattel {or chattels) which has {or have) been replevied (*) in this ac- tion by the sheriff of county, by virtue of a special property therein, the facts in respect to which are as fol- lows, to wit (here set forth such facts)].* CD. [Jurat as in form No. 46.] To the Sheriff of the County of : Take notice, that the defendant, C. D., requires the return ' See, as J.o iustification of sureties, « See Teschner v. Deveron (59 How. Code Civ. Pra, §§ 1703, 1705, and Pr., 467), that sections 1704 and 1705 of 578 to 583, and forms Nos. 195, 196. Code Civ. Pro., are mandatory, and ' See section 1703, Code Civ. Pro., must be strictly complied witli to enti- and note 2 to form No. 133. tie the defendant to a return of the ' For affidavit by agent or attorney property. of defendant, see next form, No. 763. 640 FoBMS Eelating to of the chattel [or chattels] replevied by you in this action. Dated , 18—. Yours, etc., 0. F., Defendant' s Attorney. [Office address.'] No. 762. Affidavit by Agent or Attorney of Defendant to Require Return of Chattel Replevied. (Code Civ. Pro., §§ 1704, 1713.) [Title of cause.] COIINTY OF , ss. : 2 p., of , being duly sworn, says, that he is the agent {or attorney] of the defendant in the above entitled action. That the defendant is the owner of the chattel [or chat- tels] which has [or have] been replevied in this action by the sheriff of county [or that the defendant is enti- tled to the possession of the chattel (or chattels) which has {or have) been replevied in the action by the sheriff of county, by virtue of a special property therein, the facts in respect to which are as follows, to wit (here set forth such facts)].' That the allegations made by deponent in this affidavit are within his personal knowledge, except the allegations therein stated to be made upon information and belief. That the grounds of deponent's belief, as to all matters not stated upon his knowledge, are as follows, to wit : as to the allegation that [repeating it], as follows [here state grounds of such belief (and in the same manner refer to each allegation not made upon personal knowledge, and state the grounds of his belief thereof)]. That the reason why this affidavit is not made by the de- fendant is, that said defendant is not within the county of ' See note 3 to form No. 123. mation and belief, (Code Civ. Pro , ^ The affidavit must state what alle- § 1713.) gallons, if any, are made upon ipf or- Action to Eecovek Chattel. 641 , where the said property is replevied [or that the said defendant is not capable of making this affidavit by- reason of (state incapacity), or that aU the material facts are within the personal knowledge of deponent]. E. F. [Jurat as in form No. 46. J [Same notice as in last form, No. 761.] No. 763. Undertaking, on Part of Defendant, to Obtain Return of Chattel Replevied. (Code Civ. Pro., § 1704, subd. 2.) [Title of cause.] Whereas, pursuant to a req^uisition of the above named plaintiff, M. N., the sheriff of county, has replevied a certain chattel [or certain chattels] described in the affi- davit of the plaintiff, the value of which is stated in said affidavit at the sum of dollars ; and. Whereas, the above named defendant desires to obtain a return of the said chattel \or chattels] to him : Now, therefore, we, M. J., of , farmer, and R. F., of , banker, do hereby jointly and severally under- take, pursuant to the statute in such case made and pro- vided, that we are bound in the sum of ■ dollars ' for the delivery of said chattel [or chattels] to the plaintiff, if delivery thereof is adjudged, or if the action abates in con- sequence of the defendant's death, and for the payment to him of any sum which the judgment awards against the defendant." Dated , 18— • M. J. R. F. [Certificate of acknowledgment or proof and affidavit of justification of sureties and approval as in forms Nos. 340, 538.] ' Not less than twice the value of the sections 170 1, 1705, and 578 to 583 of chattels, as stated in the affldavit of Code Civ. Pro., and forms Nos. 195, the plaintiff. (Code Civ. Pro., §1704.) 196. ' As to justification of sureties, see 81 643 Forms Relating to No. 764. Notice by Sheriff to Plaintiff that he Requires Indemnity on Claim toy Third Person. (Code Civ. Pro., § 1709.) [Title of cause. J SiR—Take notice, that the affidavit, a copy of which is herewith served upon you, has been delivered to me, and that I require indemnity against the claim therein set forth. Dated , 18—. M. N., Sheriff of • County. To I. H., Plaintiff's Attorney. No. 765. Aifidavit hy third Person Claiming Title to Chattel Replevied. (Code Civ. Pro., § 1709.) [Title of cause.] COTTWTT, SS.: A. B., of , being duly sworn, says, that he claims and has, as against the defendant, a right to the possession [*] of the chattel \or chattels] [described as follows (insert description)],' which has [or have] been replevied by the sheriff of county in this action, which right existed at the time when it was [or they were] replevied. That the facts upon which his said right of possession depends are as follows to wit [set forth facts]." A. B. [Jurat as in form No. 46.] ■ The description of tlie cliattels need the sheriff by taking the property into only be given if two or more chattels his possession. (Second Nat. Bank of have been replevied and the claim re- Oswego v. Dunn, 2 Civ. ?ro. Rep. lates to only part of them. (Code Civ. [Browne], 259; S. C, 03 How. Pr., Pro., §1709.) 43i [Supr. Ct., Sp. T.], reviewing " For affidavit by agent or attorney, many cases and authorities, see next form, -No. 706. See, also, Manning v. Keenan(73 N. The claim must have been in exist- Y., 45), Lynch v. St, John (56 How ence v^hen the replevy was made by Pr., 144), Action to Recover Chattel. 643 No. 766. Affldarit by Agent or Attorney of Third Person Claiming Title to Chattels Replevied. (Code Civ. Pro., § 1709, 1713.) [Title of cause.] County of , ss.: E. F., of , being duly sworn, says, that he is the agent [or attorney] of A. B., of . That said A. B. claims, and has, a right to the possession [proceed as in form No. 765 from (*) to end thereof, stating any allegations made upon information and belief to be so made, then add] : That the allegations made by deponent in this affidavit are within the personal knowledge of deponent, except the allegations stated to be made upon information and belief. That the grounds of deponent's belief as to all matters not stated upon his knowledge, are as follows, to wit : as to the allegation that, etc. [repeating it], as follows [here state grounds of such belief] [and in the same manner refer to each allegation not made upon personal knowledge, and state the grounds of his belief thereof]. That the reason why this affidavit is not made by said A. B. is, that said A. B. is not within the county of ■ wherrt the said property was replevied [or that the said A. B. is not capable of making this affidavit by reason of (state incapacity), or that all the material facts are within the personal knowledge of deponent]. E. F. [Jurat as in form No. 46. J No. 767. Goniplaint in Action by Claimant against Sheriff. (Code Civ. Pro., §1710.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore and on or about the day of , 18 — , the defendant being then the sheriff of county replevied as such sheriff a certain chattel [or certain chattels] descrilbed as follows [describe same], 644 Forms Relating to by virtue of a requisition issued in an action brought in the Court, by A. B. as plaintiff against C. D. as de- fendant, for the recovery of said chattel [or chattels (among other chattels')]. That before the said chattel [or chattels] had been actually delivered to either party the plaintiff in this action claimed as against the said C. D. a right to the possession thereof, existing at the time when it vi^as [or they vi'ere] replevied, and an affidavit was made and delivered to tlie defendant in this action, as such sheriff, in behalf of the plaintiff in this action, stating that he made such a claim [specifying the chattel {or chattels) to which it related'], and setting forth the following facts upon which his right of possession depended [here set fortli facts as they appeared by the affidavit]. And the plaintiff further says, that by reason of the facts above set forth he was entitled, as against the defendant, to possession of the said chattel [or chattels] at the time the same was [or were] replevied, as aforesaid. That after the delivery of said affidavit to said defendant, as such sheriff, said defendant delivered the said chattel [or chattels] to the plaintiff in said action, brought for the recov- ery thereof to the damage of this plaintiff of dollars [or and that plaintiff has been damaged by the taking and detention of said chattels in the amount of dollars]. Wherefore ■ the plaintiff demands judgment against the defendant for the sum of dollars, together with the costs of this action. T. C, Plaintiff '' s Attorney. [Office address."] [Verification as in forms Nos. 151, etc.] No. 768. Undertaking Indemnifying Sheriff on Claim by Third Person. (Code Civ. Pro., § 1711.) [Title of cause.] Whereas, M. N., the sheriff of ■ county, has re- ■ Insert these words where two or the claim relates to only part of them. noro chattels have been replevied, and ' See pote 2 to form No, 132, Action to Recover Chattel. plevied in this action certain chattels [described ^s follows (describe same)'], which have not yet been actually delivered by said sheriff to either party ; and, Whereas, C. F. claims to be entitled to the possession thereof, as against the defendant, and an affidavit has been made and delivered to said sheriff in behalf of said C. F., according to law, stating that he makes such claim, and setting forth the facts upon which his right of possession depends, and the said sheriff has served a notice, pursuant to statute, that he requires indemnity against the said claim : Now, therefore, we, E. F., of , farmer, and G. H., of , merchant, do hereby jointly and severally un- dertake, that we will indemnify the said M. N., as sheriff as aforesaid, against any liability for damages, costs or expenses, to be incurred in an action brought against him, by the said claimant, or a person deriving title from or through the said claimant, by reason of the taking or deten- tion of the said chattel [or chattels], or its [or their] delivery to the plaintiff, not exceeding the sum of — dollars." Dated , 18—. E. F. G. H. In presence of . [Acknowledgment or proof and affidavit of sureties as in forms Nos. 340, 538, except that the affidavit must show that the sureties are freeholders or householders of the sheriff's county ; approval as in No. 340. J No. 769. Sheriff's Return to Requisition for Replevy of Chattel on Delivery thereof to the Plaintiff. (Code Civ. Pro., § 1715.) Countt of , ss.: I certify and return, that on the day of ■-, 18 — , I replevied the chattel [or (a portion of) the chattels] •' This description is to be inserted not less than the actual value of the ■when a part of the chattels replevied chattel claimed, and two hundred and are claimed. fifty dollars in addition thereto. * At least five hundred dollars, and 646 PoBMS Relating to mentioned? in the within [or annexed] affidavit and requisi- tion by taking possession of the same [or of all thereof to be found in my county, to wit (describe same)],' and at the same time I delivered to the defendant, personally [or to the agent of the defendant from whose possession the said chattel {or cha,:tels) was {or were) taken ; or neither the defendant nor his ngent, from whose possession the said chattel was {or chattels were) taken, being found within the said county, I left at the usual place of abode of the defendant {or of said agent), with a. person of suitable age and discretion], a copy of said affidavit, 'requisition and of the under- taking received by me from the plaintiff ; " [*] and the defendant having failed to except to the plaintiff's sure- ties, or to require the return of the said chattel [or chattels] within the time prescribed for that purpose [or having made default in serving notice of the justification of his sureties in the undertaking given by him on requiring the return of said chattel {or chattels) ; or having made' default in procuring the allowance of the undertaking given by him on requiring, etc.; or the plaintiff, after the defendant had excepted to his sureties, having duly procured the allow- ance of his undertaking], and no person not a party to the action having claimed, as against the defendant, a right to the possession of said chattel [or chattels], existing at thfe time, when it was [or they were] replevied,' I immediately, and on the day of , 18 — , delivered the said chattel [or chattels] to the plaintiff, and on the same day I duly delivered to the defendant the said undertaking, received by me from the plaintiff, together with the exam- ination of the sureties, and the judge's allowance thereof.* [That the cause of my omission to replevy the chattel {or chattels) described in the said affidavit as follows (describe chattel, or chattels not replevied), is as follows, to wit (state cause)/] Dated , 18—. M. N., Sheriff of County. ' See Bection 1703, Code Civ. Pro. to cases in which this last clause is to ' See section 1700, Code Civ. Pro. be inserted. ^ See section 1706, Code Civ. Pro. See other forms of return on delivery ^ Pee section 1708, Code Civ. Pro. of chattels to plaintiff, Nos. ao and 26. ' See section 1715, Code Civ, Pro., aa Action to Recover Chattel. 647 No. 770. Sheriff's Heturn where a Third Person Claims the Chattel and the Plaintiff Indemnifies or Refuses to Indemnify Sheriff. (Code Civ. Pro., §1715.) As in form No. 769 to [*], and from thence as follows : And one, E. F., having made claim of a right to the posses- sion as against the defendant of said chattel [or chattels], existing at the time when it was [or they were] replevied, before the same had been actually delivered by me to either party, and having made and delivered to me an affidavit of such claim in due form of law, and the plaintiff [f] having given me the indemnity required by the Code of Civil Pro- cedure, I delivered the sAid chattel [or chattels] to the plaintiff, and the first mentioned undertaking to the de- fendant [add clause as to cause of omission as in form No. 769 (last clause), where necessary]. Dated , 18—. M. N., Sheriff of County. \0r as above to (f), and from thence as follows : And the plaintiff neglecting and refusing to give the necessary in- demnity, after being thereto required, I delivered said chat- tel {or chattels) to the said E. F.] [Dated , 18—.] [8ignature.'\ No. 771. Sheritt*'s Return of Redelivery of Chattel to Defendant. (Code Civ. Pro., § 1715.) As in form No. 769 to [*], then add : And the defendant having excepted to the sureties of the plaintiff, and the plaintiff having m'ade default in serving notice of their jus- tification [or in procuring the allowance of his undertaking] [or the defendant having required the return of said chattel (or chattels) and having duly procured the allowance of his undertaking given upon such requisition], I immediately, and on the day of , 18—, delivered the chat- tel [or chattels] so taken to the defendant, and on the same day I delivered to the plaintiff the undertaking received by 648 Forms Relating to me from the defendant [together with the examination of the sureties and the judge's allowance thereof]. [That the cause of my omission to replevy the chattel {or chattels) described in 1;he said affidavit of plaintiff as follows (describe chattel, or chattels) is as follows (state cause).'] Dated , 18—. M. ]Sr., Sheriff of County. No. 772. Sheriff's Return where None of the Chattels is Found. (Code Civ. Pro., S 1715.) I have made diligent search, but no part of the within described chattels could be found in my county, so that I could make delivery thereof as I am within commanded. Dated , 18—. M. N., Sheriff' of County. No. 773. Notice to Sheriff to File Return. (Code Civ. Pro., § 1716.) [Title of cause.] To the Sheriff of the County of : SiE — Take notice, that you are hereby required to file with the clerk of county [or describe other clerk] the plaintiff' s affidavit in this action, and the accompany- ing requisition to you to replevy the chattels described in said affidavit, with your return, stating in what manner you have executed such requisition, within ten days service of this notice upon you, or to show cause at a Term of the Supreme Court [or describe other court], to be held at , on the day of , 18 — , at the opening of court, or as soon thereafter as counsel can be ' See Code Civ. Pro., § 1715, as to See for another form on redelivery cases in which this clause is to be in- to defendant, No. 28. serted. Action to Recovee Chattel. 649 hedrd, why you should not be punished for a contempt of the court.' Yours, etc., F. Gr., Plaintiff'' s [or DefendanV.s\ Attorney. [Office address."] No. 774. Notice by Plaintiflf of Ahaudoiiment of Claim to Chattels not Replevied. (Code Civ. Pro., §1719.) [Title of cause.] Sir — Take"Botice, that the plaintiff abandons so much of his claTm as relates to the chattels which have not been re- plevied in this action. Dated , 18—. Yours, etc., G. H., Plaintiff '' s Attorney. [Office address."] To I. J., Defendants Attorney. No. 775. Complaint in Action for a Chattel. (Code Civ. Pro , §§ 1720, 1731, 1733.) [Title of cause.] The complaint of the above naiS^^ plaintiff respectfully shows, that at the time of the commencement of this action \or on and before the day of , 18 — J,' he • The notice may be served at any quirement in reference Ibereto is, tliat timebeforeflnal judgment, except that it shall contain a plain and concise it cannot be served on the part of the statement of the cause of .action, defendant before answer. An omis- (Western R. R. Co. v. Bayne, 75 N. sion to compjywith such a notice is Y., 1.) punishable as a contempt of the court. See, also, Simmons v. Lyons (55 N. (Code Civ. Pro., § 1716.) Y., 671), Schofield v. Whitelegge (49 2 See note 3 to form No. 133. N. Y., 259), Davenport Glucose Manuf. 8 The time of the replevy of the Co v. Taussig (SI Hun, 563), Chapin chattel, if it was prior to the com- v. Merchants' Nat Bank of Whitehall mencement of the action. (31 Hun, 539), Berney v. Drexel (19 The complaint is not required to be Week. Dig., 348), further as to form in any specific form, TllS OUJy re- of complaint. 650 Forms B-ELATiisra to was the owner and was entitled to the immediate possession [or was entitled to the possession, by virtue of a special property therein, the facts upon which said special prop- erty depended, being as follows, to wit (set fortii facts)], of the chattel [or chattelaj described as follows, viz. [describe chattels], of the value of dollars. That before the commencement of this action [or on the said day of , 18 — J, the defendant wrong- fully took the said chattel [or chattels] into his possession, and wrongfully detains the same from the plaintiff.' Wherefore the plaintiff demands that the defendant may be adjudged to deliver to the plaintiff the said chattel [or chattels], and to pay the plaintiff damages for the detention thereof, to the sum of — dollars, and that in case a delivery thereof cannot be had, that the plaintiff may re- cover the value of said chattel [or chattels] with damages as aforesaid ; and that in case the defendant shall retain the said property during the pendency of this action, that he may recover such further damages for such wrongful detention as may be just, and that plaintiff may recover his costs of this action. M. N., Plaintiff'' s Attorney. [Office address. °] [Verification as in forms Nos. 151, etc.] No. 776. Complaint for the Wrongful Detention of Chattel or Chattels. (Code Civ. Pro., § 1C21.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore and on or about the day of — , 18 — , the said defendant received from the plain- tiff [or from one G. H.], to be delivered to the said plaintiff when he should request the same [or set forth other facts as ' Where the complaint sets forth back upon an alleged lien. (Hudson title in the plaintiff, he must stand or v. Swan, 83 N. Y., 553; rev'g S. C, 7 fall Upon that claim; he cannot, if his Abb N. C, 524.) alleged title proves to be invalid, fall « See note 3 to form Ko. 133, AcTioNTo Recovee Chattel. 651 to the manner of defendant's coming into possession], the chattel [or chattels] described as follows, to wit [describe chattels], of the value of dollars ; but the said de- fendant, although often requested, has refused, and yet re- fuses, to deliver the said chattel [or chattels] to the said plaintiff to his damage of dollars. Wherefore the plaintiff demands judgment against the defendant for recovery of the said chattel [or chattels] with dollars damages for the detention of the same, or, in case a delivery thereof cannot be had for the value thereof with damages as aforesaid, and that in case the said de- fendant shall retain the said chattel [or chattels] during the pendency of this action, that he may recover such further damages for such wrongful detention as may be just, and that plaintiff may recover his costs of this action.' M. N"., Plaintiff's Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] No. 777. Answer in Action for a Chattel. (Code Civ. Pro., §§ 1720, 1733, 1724.) [Title of cause.] The defendant for answer, to the complaint herein, denies that he ever took from the plaintiff, or wrongfully detains, or has detained from him, the chattel [or chattels] described in the complaint [or any of them]. He denies that said chattel [or chattels {or any of them)] •was [or were], at the time of the commencement of this ac- tion, or on or before the day of , 18 — , the property of the plaintiff. He denies that he has knowledge or information sufficient to form a belief as to whether the value of the said chattel [or chattels] is as stated in said complaint. And for a further defense this defendant alleges, that at the time of the commencement of this action [or on the > See notes to last form No. 775. = See note 2 to form No. 122. 652 Poems Relating to day of , 18 — J," he was in the lawful pos- session of [a certain portion of] said goods, being the owner thereof [or having the right of possession thereto, by virtue of a special property therein, the facts upon which said special property depends being as follows, to wit (set forth such facts)]. [Or that at the time of the commencement of this action, one C. D. was the owner of said chattel (or was entitled to the possession thereof by virtue of, etc., as above)."] [Or that said chattel {or chattels) was {or were) distrained while doing damage upon real property of which the de- fendant was then lawfully possessed {or upon the real prop- erty of which C. B., by whose command defendant was acting, in distraining said chattel, was then lawfully pos- sessed).'] F. R., Defendant s Attorney. [Office address."] [Verification as in forms Nos. 151, etc.] No. 778. Notice that Defendant Demands Judgment for Return of Chattels. (Code Civ. Pro., § 1725.) [Title of cause.] Sir — Take notice, that the defendant demands judgment in this action for the return of the chattel [or chattels] de- livered to the plaintiff [or to E. F.], or for the value thereof [with damages for the detention thereof]. Yours, etc., M. N., Defendant s Attorney. [Office address.*] To G. H., Esq., Plaintiff's Attorney. ' The time when the chattel was re- = See sections 1720, 1723, Code Civ. plevied, if it was replevied before the Pro. commencement of the action. « See section 1724, Code Civ. Pro. * See note 3 to form No. 133. Action to Recover Chattel. 653 No. 779. Yerdict, Report or Decision in Action for Chattel. (Code Civ. Pro., §| 1736, 1727.) As in form No. 452 to [*], and from thence as follows : That the plaintifif [or defendant] is entitled to recover from the defendant [or plaintiff] the possession of the chattel [or chattels],' described as follows, to wit [describe same], the value of which is hereby fixed at dollars, with dollars damages, and the costs of this action. [Or as in form No. 452 to (*), and from thence as follows : That the plaintiff was the general owner of the chattel {or chattels) described as follows (describe same), at the time of the commencement of this action {or at the time the same was, or were, replevied), but it was {or they were) rightfully distrained doing damage upon the real property of the de- fendant, and the value of said chattel {or chattels) is greater than the damages sustained by the defendant by the injury for which it was {or they were) distrained, which damages are hereby fixed at the sum of dollars, and that the defendant is entitled to recover the said sum from the plaintiff, and, if said sum is not collected, is entitled to the delivery of said chattel {or is entitled to possession of said chattel, until the said amount is collected or otherwise paid),' with costs of this action]. [Or as in form No. 452 to (*), and from thence as follows : That the plaintiff was the general owner of the chattel {or chattels) described as follows (describe same), at the time of the commencement of this action {or at the time the same was or were, replevied), but the defendant had a special property therein, and the value of such chattel {or chattels) is greater than the value of the said special property {or than the sum charged upon the siaid chattel, or chattels, by reason of such special property), which value {or sum so charged) is hereby fixed at dollars, and that de- ' As to verdict, etc., where part of (38 X. Y., 433), Allen v. Fox (51 N. Y., the chattels are recovered by plaintifif 562), Townsend v. Bargy (57 N. Y., and part by defendant, see Code Civ. 665), Phillips v. Melville (10 Hun, 211), Pro., § 1738, Angel v. Hollister (38 N. as to verdict and damages, T., 378), and see Brewster v. Silliman 654 Forms Relating to fendant is entitled to recover said amount from the plain- tiff with his costs of this action.'] No. 780. Final Judgment in Action for Chattel. (Code Civ. Pro , § 1730.) [Title of cause.] Judgment of the day of , 18—. It is adjudged, pursuant to the verdict [or report, or de- cision] rendered in this action, on motion of M. N., attorney for the , [*] that the [plaintiff, A. B.J, recover from the [defendant, C. D.], the possession of the chattel [or chattels] described as follows [describe same], with dollars damages " [and that if the possession of said chattel (or chattels) is not delivered to the (plaintiff), that (plaintiff) recover from (defendant) the value of said chattel {or chat- tels) as fixed by said verdict {or report, or decision), to wit, the sum of — J,' and that [plaintiff] recover also from defendant dollars, costs of this action. J. L., Cleric. [Or as above to (*), and from thence as follows : That the defendant, 0. D., recover from the plaintiff, A. B., the sum of dollars damages, fixed by said verdict {or re- port, or decision), and if said sum is not collected, that the chattel (or chattels) described in said verdict, etc., as follows (describe same), be delivered to the defendant] [or that the said defendant is entitled to the possession of the chattel {or chattels) described as follows (describe same), until the sum so awarded to him is collected or otherwise paid, and that defendant also recover from plaintiff the sum of dollars, costs of this action."] J. L., ClerTc. ' See section 1730, Code Civ. Pro. (71 N. Y., 77), Dwight v. Enos (9 N. » See section 1728, Code Civ. Pro., Y., 470), Fitzhugh v. "WimanO N. Y., as to judgment for part of chattels in 559), Johnson v. Carnley (10 N. Y., favor of plaintiff, and for part in favor 570), Cochran v. Gottwald (41 Super, of defendant. Ct., 317). ^ As to cases in which this clause of ■* This latter form is for cases speci- recovery of value is to he inserted, see fied in seetion 1737, Code Civ. Pro. Code Civ. Pro., § 1730; Buck v. Rem- An objection that the judgment is sen (34 N. Y., 383), Allen v. Judson erroneous in form, relates to an error Action to Recover Chattel 6S5 No. 781. Complaint against Sureties on Undertaking Criven by De- fendant to Procure Return of Chattel. (Code Civ. Pro., § 1733.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore and on or about the • day of , 18 — , the defendants, E. F. and G. H., made and executed, pursuant to statute, a written undertaking to the effect that they were jointly and severally bound in the sum of — dollars for [*] tlie delivery to A. B., the plaintiff in an action brought by said A. B. against C. D., for the recovery of certain chattels described as follows [describe same], if delivery thereof should be adjudged in. said action to said A. B., or if the action should abate in consequence of the death of the said defendant, C. D., and for the pay- ment to said A. B. of any sum which the judgment should award against the said defendant, C. D. [f] And plaintiff further shows, that such proceedings were afterwards had in said action ; that on or about the =- day of , 18 — , he, the said plaintiff thert-in, recov- ered judgment therein for the delivery of said chattels to him [or state other relief], the judgment roll whereupon was filed in county clerk's ofiice on the day last afore- said [and a transcript thereof was duly filed, and said judg- ment duly docketed, in the clerk's office of county on the day of , 18 — ].' That an execution was subsequently issued upon said judgment to the sheriff of coanty in favor of this plaintiff for the delivery of the possession of said chattels, and to satisfy the sum of dollars, with dol- lars costs, out of the property of said defendant [or state other directions], and that said execution has been since returned by said sheriff to said coiinty clerk's office" wholly unsatisfied and unexecuted [or state to what extent satisfied of practice which should be corrected tion I'Sl, Code Civ. Pro., see forms in the court below, and cannot be raised Nos. 5lil, 562. in the Court of Appeals. (Buck v, ' See Code Civ. Pro., § 1365. Remsen, Johnson v. Carnley, supra.) ' See section 1366, Code Cov. Pro, For forms of execution under sec- 656 Forms Relating to or executed], and tliat the said judgment remains wholly [or to the extent aforesaid] unpaid and unexecuted. Wherefore the plaintiff j^rays judgment that he may re- cover from the defendants the sum of dollars, with the costs of this action,' M. N., Plaintiff's Attorney. [Office address.'] [Verification as in forms' Nos. 151, etc.] No. 782. Complaint on Undertaking Given Iby Plaintiff on Replevy of Chattels. (Code Civ. Pro., § 1733.) As in form No. 781 to [*], and from thence as follows : The prosecution of an action brought by A. B., as plaintiff, against C. D. [the plaintiff herein], as defendant, for the return of the chattels sought to be recovered in said action, to the said defendant, C. D., if possession thereof was ad- judged to him ; or if the action abated or was discontinued before the chattel was returned to the said C. D., and for the payment to said C. D. of any sum which the judgment awarded to him against the plaintiff [then allege rendition of judgment and issue of execution and return as in form No. 781, and make same prayer for judgment].' M. K, Plaintiff's Attorney. [Office address."] [Verification as in forms Nos. 151, etc.] No. 783. Answer in Action upon Undertaking in Replevin that Chattel was Injured or Destroyed. (Code Civ. Pro., § 1735.) [Title of cause.] And defendant alleges as a further defense to this action, ' See Shaw v. Tobias (3 N. Y., 188), dertaking of plaintifE and complaint Daniels v. Patterson (3 N.Y., 47), Har- therein. rison V. Wilkin (78 N. Y., 390), Good- "■ See note 2 to form "Ko. 123. win V. Bunzl (19 Week. Dig., 509), as ' See notes to last form No. 781. to this action, and action upoa uu- ^ gee note 2 to form No, 123, Action to Foreclose Lien upon Chattel 657 that after said chattel was replevied the same was destroyed [or injured so as to diminish the value thereof to the extent of dollars] by the act of the plaintiff [or with the consent of the plaintiff] [or that the said chattel was de- stroyed {or injured so as to diminish the value thereof to' the extent of dollars), after it had been taken by virtue of the execution issued upon the judgment, as set forth in the complaint].' M, N., Defendant's Attorney. [OflBlce address.'] [Verification as in forms Nos. 151, etc.] Article Second. FORMS RELATING TO ACTION TO FORECLOSE A LIEN UPON A CHATTEL. (Code Civ. Pro., Ch. 14, Tit. 2, Art. 2.) No. 784 Complaint in action to foreclose a chattel mortgage. 785. Complaint for fc^reclosure of lien by pledge. 786. Final judgment for the plaintiff upon default, in action to foreclose lieu upon chattel. 787. Affidavit to procure warrant in action for foreclosure of chattel lien. 788. Warrant for seizure of chattels in action for foreclosure of lien. 789. Undertaking on granting warrant in suit to foreclose chattel lien. No. 784. Complaint in Action to Foreclose a Chattel Mortgage. (Code Civ. Pro., § 1737.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore and on or about the day of , 18 — , the defendant, E. F., being indebted to the plaintiff [or to F. C] in the sum of dollars, made, executed and delivered to the above named plaintiff [or to F. C. j an instrument in writing, bearing date on that day, ' See Carpenter V. Stevens (12 Wend., section 1735, Code Civ. Pro., follows , that where the chattel died with- the rule laid down in the latter case. out the default of the plaintiff, after ^ See note 2 to form No. 123. the replevin the undertaking was dis- ' To be inserted in case the mortgage charged, and Suydam v. Jenkins (3 has been assigned. Sandf. [S. C], 614, 644, 645 lamtra]). 83 Forms Relating to by which, for the purpose of securing to the said plaintiff [or to said F. C.J the payment of the said debt, with interest thereupon from the date thereof, he sold, assigned and trans- ferred to the said plaintiff [or to said F. C] the following goods and chattels, viz. [describe same]. That said sale was upon the express condition that if the said E. F. should pay to the said plaintiff [or to said F. C] the said sum of dollars, with interest as follows [set forth condition of payment], which said sum and inter- est the said defendant, E. F., thereby covenanted to pay, then that said transfer should be void and of no effect. [And the plaintiff further shows, that on or about the day of , 18—, the said F. C, for a valua- ble consideration, duly assigned the said instrument to the plaintiff, by an instrument in writing bearing date on that day and duly delivered to the said plaintiff.'] And the plaintiff further shows, that the said defendant, E. F., has failed to comply with the conditions of said mortgage by omitting to pay the said sum of dol- lars, which by the terms thereof fell due on the day of -, 18 — , and that there is now justly due and unpaid thereupon to the said plaintiff the sum of ■ dollars, with interest thereupon from the — day of , 18-. That, as plaintiff is informed and believes, heretofore and on or about the d ,y of , 18 — , the said de- fendant, E. F., conveyed his interest in the said chattels to the defendant, Gr. H., and that said G. H. is, as plaintiff is informed and believes, the owner of the equity of redemp- tion in said chattels, and that the defendant, J. K., is, as plaintiff is informed and believes, the owner of a mortgage upon said chattels subsequent to the mortgage of the plaintiff. Wherefore the plaintiff prays judgment, that said -chat- tels be sold to satisfy the said amount of the lien of said mortgage and the costs in the manner provided by law, and that the proce-eds of such sale, less the fees and expenses thereof, may be applied to the payment of the amount of the said lien and the costs of the action, and that the plain- ' To be inserted in case the mortgage has been assigned. Action to Foreclose Lien upon Chattel. 659 tiff may have judgment against the defendant, E. F., for the amount of said debt which shall remain unpaid after such sale and the application of the proceeds thereof applicable thereto, and that the defendants and all persons claiming under them, or any or either of them, may be barred and fore- closed of all right, title, interest and equity of redemption in and to said chattels, and for such other and further relief as may be proper." M. N., Attorney for Plaintiff. [Oiflce address."] [Verification as in forms Nos. 151, etc.] No. 785. Complaint for Foreclosure of Lien toy Pledge. (Code Civ. Pro., § 1737.) [Title of cause.] The complaint of the above named plaintiff respectfully shows, that heretofore, and on the day of , 18 — , the defendant borrowed of the plaintiff the sum of dollars, which he agreed to repay, with interest, three months from that date. That the defendant has not paid the said amount, nor any part thereof, but that the same, with interest thereon as afoigsaid, remains wholly due and unpaid from defend- ant to plaintiff. That at the time of the borrowing of said amount, as aforesaid, the said defendant, as security for the repayment thereof, delivered to the defendant the following chattels, viz. [here describe chattels], and that the plaintiff had a lien. upon said chattels at the time of the commencement of this action for the repayment of said amount, and still has such lien. ' An action ■will lie in equity to fore- ing-house keepers under this act ; as close a chattel mortgage. (Briggs v. to liens by livery stable keepers, see Oliver, 68 N. Y., 336.) chapter 498 of 1872, page 1165, and See, as to liens by boarding-house chapter 145 of 1880. page 270, amond- keepers, chapter 446 of 1860, page 771, ing same, also, Armitage v. Mace (19 ■which allo^ws a detention by them of Week. Dig. , 520) ; and see chapter 530 the baggage and effects of boarders for of 1879, page 580, as to liens by hotel board due, and see Cady v. McDowell keepers, etc. (1 Lansing, 484), as to ■who are board- '' See note 3 to form No. 133. 660 Forms Kelating to Wherefore the plaintiff prays judgment [insert prayer for judgment as in form No. 784]. M. N., Plaintiff'' s Attorney. [Office address.'] [Verification as in forms Nos. 151, etc.] No. 786. Final Judgment for the Plaintiff upon Default, in Action to Foreclose Lien upon a Chattel. (Code Civ. Pro., § 1739.) [Title of cause.] Judgment of the day of , 18—. The summons [with a copy of the complaint herein] having been served upon the defendant personally more than twenty days since, and said defendant not having appeared [or hav- ing made default in answering] : It is adjudged, pursuant to the order of the court made and entered on the day of , 18 — , on mo- tion of E. F., attorney for the plaintiff, that the chat- tels described as follows in the complaint in this action, to wit [describe, same], be sold to satisfy the amount of plaintiff's lien thereupon, as set forth in said complaint, to wit : the sum of dollars, with interest thereon from the day of , 18 — , as ascertained by the court [or by the report of M. E.., referee, dated , 18 — ], and the costs by P. G., of , as referee [or by the sheriff of county], in like man- ner as where a sheriff sells personal property by virtue of an execution ; and that said referee [or sheriff] apply the proceeds of such sale, less his fees and expenses, to the payment of the amount of said lien and the costs of this action, and that he pay the surplus to the defendant, E. F. [or that he pay the surplus into court, and to the county- treasurer of the county of , to be kept by said treasurer for the defendant, E. F., until it is claimed by him]. And that said referee make report of such sale to this court, and file the same witli his receipts for the amounts paid by him. » See note 3 to form No, 132, Action" to Foreclose Lien upon Chattel. 661 And it is further adjudged, that said referee state in his said report of sale the amount of any deficiency in the amount realized upon such sale, to pay the amount of said lien, and that the plaintiff recover judgment against the de- fendant, E. F., for the amount so reported. No. 787. Affidavit to Procure Warrant in Action for Foreclosure of Chattel Lien. (Code Civ. Pro , § 1738.) [Title of cause.] A. B., of , being duly sworn, says, that he is the plaintiff in the above entitled action [or other description of affiant]. That said action has been commenced to foreclose a lien upon the chattels described as follows [describe chattels], under a mortgage [or pledge, etc.] thereof, made by the de- fendant, E. F., to the plaintiff [or to F. C, and assigned to the plaintiff] [or describe other lien]. That said lien existed at the time of the commencement of this action. That the amount of dollars, with interest there- upon from , 18 — , is due and unpaid upon said mortgage [or upon the loan {or upon the indebtedness se- cured by said pledge)], over and above all counterclaims known to the plaintiff. That the plaintiff is not in possession of the said chattels.' A. B. [Jurat as in form No. 46.] No. 788. Warrant for Seizure of Chattels in Action for Foreclosure of Lien. (Code Civ. Pro., § 1738.) [Title of cause.] To the Sheriff of County [or to the Sheriff of any County'] : It having appeared to my satisfaction, by affidavit, that " " ~' See note 1 to next fotm No. 788. 662 ■p'oEMs Relating Td the above entitlea action has been commenced to foreclose a lien upon the chattels described as follows [describe same], under a mortgage [or pledge, etc.] thereof, made by the de- fendant, E. F., to the plaintiff [or to F. C, and assigned to the plaintiff] [or describe other lien], which said lien existed at the time of the commencement of this action. That the amount of ■ dollars, with interest there- upbn from , 18—, is due and unpaid upon said mortgage [or upon the indebtedness secured by said pledge, etc.], over and above all counterclaims known to the plain- tiff, and that the plaintiff is not in possession of the said chattels. Now, therefore, you are hereby commanded to seize the said chattels, and safely keep them to abide the final judg- ment in this action.' A. O., Judge [or Justice] of Court [or County Judge], M. N., Plaintiff'' s Attorney. [Office address.'] No. 789. Undertaking on Granting Warrant in. Suit to Foreclose Chattel Lien. (Code Civ. Pro., § 1738.) [Title of cause. J Whereas, the above named A. B., as plaintiff, has cpm- menced [or is about to commence] an action against the de- fendant, E. F., above named, to foreclose a mortgage [or ' Where the sheriflE seized chattels an action could be maintained against under a warrant issued in due form him by the owner for the recovery of and regulaLUpon its face, in an action the property. (Carpenter v. Lott, 31 to foreclose a lien thereupon, and took Hun, 349.) them from the owner, who was not a The sheriff should, it seems, have party to the action, and the owner de- taken the same proceedings upon the manded the return of the chattels, claim to ownership, as are authorized which was refused by the sheriffT- in the case of a claim by a third party Held, that although in making the to property seized under warrant of seizure the sheriff acted rightfully, yet attachment. (Id.) in detaining the property after the de- ° See note 2 to form No. 138. mand, he acted wrongfully, and that Action to Foreclose Lien upon Chattel. 663 name other lien] upon certain chattels, and is about to apply for a warrant for the seizure of said chattels : Now, therefore, we [conclude as in form No. 241, substi- tuting word *' seizure" for "attachment" in first line of page l6-<].' ' Set!, as to proceedings in case of ter v. Lott (31 Hun, 349), cited in note claim of title to property by third per- 1 to last form No. 788. son not a party to the action, Carpen-