Cornell University Law Library. THE GIFT OF Cornell University Library KF 8836.B79 "'Bradbury's torms of P'^^dirig in le^^^^^^^ 3 1924 020 170 860 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020170860 BRADBURY'S FORMS OF PLEADING IN LEGAL AND EQUITABLE ACTIONS ADAPTED TO CODES OF PROCEDURE J. H. B. BEADBUEY IN TWO VOLUMES VOLUME I THE BANKS LAW PUBLISHING CO. NEW YORK 1914 /^^/^7 * OOPTBIOBT, liK)8, BT THE BANKS LAW PUBLISHING COMPANY pri:face With very few exceptions the forms in this work are those which have been used in successful Utigations. They represent the knowledge and experience of many of the leading lawyers of the State. That many of them could be improved in gram- matical construction or clarity of statement is obvious. But as the successful use of the forms in a work of this character de- pends upon the abiUty of the user to intelligently vary them to meet the requirements of specific cases, it has been deemed advisable to give these forms of pleadings as they were presented to the court. The Table of Cases in the first volume will be found useful. The letter "F" after the citation indicates that the pleading of the successful party in that case will be found at the page indicated. Thus where an attorney finds a leading case which appears from the report to be precisely in point with his own he will frequently discover by consulting the Table of Cases the very pleading which was used in that litigation. The field covered is a large one. Particular attention and a good deal of space have been given to litigation growing out of fraud in the floating of corporate securities. While many notes from recent cases of vital interest have been added, no attempt has been made to cover the entire field as to the statements of law. That field properly belongs to the digests. H. B. Bbadbury. 60 Wall Street, New York, October 1, 1908. iii CONTENTS VOLUME I CHAPTER I PAQE Formal Parts of Pleadings 1 CHAPTER II Designation and Description of Parties to an Action 9 CHAPTER III Allegations op Assignments of Causes of Action . 46 CHAPTER IV Goods Sold and Delivered 50 CHAPTER V Breach of Contract for Sales of Personal Property 56 CHAPTER VI Breach of Contract of Warranty .... 75 CHAPTER VII Hire of Personal Property 106 CHAPTER VIII Work., Labor and Services 108 CHAPTER IX Breach of Contract of Employment .... 116 CHAPTER X Bills, Notes and Checks 161 CHAPTER XI Bonds 187 V vi Contents CHAPTER XII PAOS Official Bonds and Undertakings .... 222 CHAPTER XIII Negligence 280 CHAPTER XIV Indemnity 443 CHAPTER XV Guaranty 484 CHAPTER XVI Money Lent 542 CHAPTER XVII Money Had and Received 546 CHAPTER XVIII Account Stated 562 CHAPTER XIX Subscription Papers 670 CHAPTER XX Landlord and Tenant 573 CHAPTER XXI Insurance 644 CHAPTER XXII Miscellaneous Contract Actions .... 757 CHAPTER XXIII Judgments 790 CHAPTER XXIV Akbitration 834 Contents vii CHAPTER XXV Pleading Foeeign Statute ^47 CHAPTER XXVI Matrimonial Actions 353 CHAPTER XXVII Husband and Wife §77 CHAPTER XXVIII Breach op Contract to Marry 893 CHAPTER XXIX Replevin ggg CHAPTER XXX Conversion _ 903 CHAPTER XXXI Usury _ 924 CHAPTER XXXII Libel and Slander 93I CHAPTER XXXIII Assault and Battery 993 VOLUME II CHAPTER XXXIV Fraud and Deceit looi CHAPTER XXXV Conspiracy 1098 CHAPTER XXXVI Malicious Prosecution and False Imprisonment . 1107 Viii CONTEKTS CHAPTER XXXVII PAQE Miscellaneous Injueies to Propebty .... 1134 CHAPTER XXXVIII Miscellaneous Personal Injuries .... 1158 CHAPTER XXXIX Penalties 1163 CHAPTER XL Civil Damage Act 1179 CHAPTER XLI Bailment 1185 CHAPTER XLII Telegraph Companies 1251 CHAPTER XLIII Charter Party 1272 CHAPTER XLIV -Action in Aid of Attachment 1278 CHAPTER XLV Creditors' Suits ,. . . 1294 CHAPTER XLVI Marshaling Assets 1324 CHAPTER XLVII Sheriffs . 1328 CHAPTER XLVIII Taxpayers' Actions , . . 1354 CHAPTER XLIX Partnership 1390 Contents ix CHAPTER I, PASS ATlreHNBY ANO CbliBNT 14tl6- CHJAi'TBR LL Coli'J'iDRATiONsj Involving Corporate. Exis-tekce and Management of the.Aefaibs Thereof . . . 1441 CHAPTER LII Corporations; Liability of Officers, Directors and Stockholders 1452 CHAPTER LIII Municipal Corporations; Misgellaneotjs Actions by AND Against 1484 CHAPTER. LIV Injunction 1540 CHAPTER LV Trade-Marks and Unfair Trade 1609 CHAPTER LVI Monopolies and Restraint of Trade .... 1637 CHAPTER LVII Interpleader 1657 CHAPTER LVIII Equitable Suits Not Otherwise Classified . . 1669 CHAPTER LIX Accounting 1698 CHAPTER LX Vendor and Purchaser of Real Property . . 1714 CHAPTER LXI Ac!TK>N TO Compel Determination of Claim to Real ftlOPEETY - 1740 X Contents CHAPTER LXH Removing Cloud on Title 1753 CHAPTER LXIII Specific Perfokmance 1766 CHAPTER LXIV Partition 1797 CHAPTER LXV Waste 1821 CHAPTER LXVI Trespass 1826 CHAPTER LXVII Breach of Covenant 1838 CHAPTER LXVIII Nuisance 1851 CHAPTER LXIX Ejectment 1874 CHAPTER LXX Foreclosure of Mortgage I879 CHAPTER LXXI FOHECLOSURE OF MECHANICS' LlENS .... 1922 CHAPTER LXXII Foreclosure op Artisan's Common-Law Lien . . 1949 CHAPTER LXXIII Foreclosure of Receiver's Certificates . . . 1952 CHAPTER LXXIV To Establish Will 1967 Contents xi CHAPTER LXXV PAGE To Deteemine Validity of Will .... 1969 CHAPTER LXXVI Construction of Will 1973 CHAPTER LXXVII Trusts 2000 CHAPTER LXXVIII Condemnation 2050 CHAPTER LXXIX Original Actions in United States Supreme Cour' . 2067 CHAPTER LXXX Demurrers 2081 CHAPTER LXXXI Answers 2098 TABLE OF CASES The letter " F." after a citation indicates that a fonn from that case will be found at the page indicated. Vol. II begins at page 1001. Abbey V. Wheeler, 170 N. Y. 120, at page 127; 2089. Abel V. Nelson, 104 Supp. 362; 117, Abromovitz v. Markowitz, 58 Misc, 231; 108 Supp. 1044; 1390. Ackerman v. Ackerman, 123 App, Div. 750; 108 Supp. 534; F. 854. Acker v. Richards, 63 App. Div. 305 7 Supp. 929; 847. Adams v. Bristol, 187 N. Y. 547; F, 1816. Adams v. Purser, 126 App. Div. 20 101 Supp. 167; 2094. Adkinson v. State of N. Y., 187 N. Y 566; F. 356. .Stna Life Ins. Co. v.- North Star Mines Co., 55 Misc. 402; 2096. jEtna Life Insurance Co. v. North Star Mines Co., 56 Misc. 164; 2095. A. G. Hyde & Son v. Lesser, 93 App. Div. 320; 87 Supp. 878; 2093. Agne V. Schwab, 123 App. Div. 746; 108 Supp. 487; 2000. Ahr v. Marx, 44 App. Div. 391; 60 Supp. 1091; aff'd 167 N. Y. 582; 167. Albany Belting & Supply Co. v. Grell, 67 App. Div. 81; 73 Supp. 580; F. 1328. Alexander v. Union Surety & Guar- anty Co., 89 App. Div. 3; 85 Supp. 282; 187. Alger v. Alger, 83 App, Div. 168; 82 Supp. 523; F. 508. Allen v. Com Exchange Bk., 87 App. Div. 335; 84 N. Y. Supp. 1001 ; 164, 858; 2104. Alt v. Gray, 55 App. Div. 563; 67 Supp. 411; 1826. Amberg v. Manhattan Life Ins. Co., 171 N. Y. 314; F. 1278. Amory v. Nason, 125 App. Div. 815; 110 Supp. 131; 1066. Anglo-American Prov. Co. v. Davis Prov. Co., 169 N. Y. 506; 791. Aplington v. Pullman Co., 110 App. Div. 250; 97 Supp. 329; F. 1208. Applegate v. Lexington, etc., Mining Co., 117 U. S. 255; 807. Appleton V. Marx, 191 N. Y. 81; F. 602. Arkenburgh v. Arkenburgh, 11.4 App. Div. 436; 99 Supp. 1127; F. 1287. Armour Packing Co. v. Edison Elec- tric Illuminating Co., 115 App. Div. 51; 100 Supp. 605; 2093. Armstrong v. Heide, 47 Misc. 609; 94 Supp. 434; F. 57. Ashley v. Lehmann, 54 App. Div. 45; 66 Supp. 299; 4. Astoria Silk Works v. Plymouth Rubber Co., 126 App. Div. 18; 110 Supp. 175; 1939, 2087. Atkins V. Saxton, 77 N. Y. 195; F. 1339. Audley v. Townsend, 49 Misc. 23; 96 Supp. 439; 847. Austin V. Goodrich, 49 N. Y. 266; 1740. XIU XIV Table of Cases Vol. II Begins at Page 1001 Avery v. Lee, 117 App. Div. 244; 102 Supp. 12; F. 42. Avery v. Lee, 117 App. Div. 244; 102 Supp. 12; F. 1756. Avery v. Lee, 117 App. Div. 244; 102 Supp. 12; 1757. Ayers v. Grand Lodge A. O. U. W., 188 N. Y. 280; F. 37; F. 673. B Bach V. Kidansky, 186 N. Y. 368; F. 1736. Bacon V. Grossmann, 71 App. Div. 574; 76 Supp. 188; F. 546. Backus V. Kimball, 62 Hun, 122; 16 Supp. 619; 1278. Bahr v. Boley, 50 App. Div. 577; 64 Supp. 200; F. 922. Bailey v. Briggs, 56 N. Y. 407; 1740. Baker v. D. Appleton & Co., 187 N. Y. 548; aff'g 107 App. Div. 358; F. 143. Baker v. Metropolitan Life Ins. Co., 187 N. Y. 562; aff'g, without opin- ion, 111 App. Div. 500; F. 2128. Baldinger v. Turkowsky, 36 Misc. 822; 72 Supp. 897; 791. Bank of Staten Island v. City of New York, 68 App. Div. 231; 74 Supp. 284; aff'd, without opinion, 174 N. Y. 519; F. 21. Bank of Staten Island v. City of New York, 68 App. Div. 231; 74 Supp. 284; aff'd, without opinion, 174 N. Y. 519;F. 41. Bank of Staten Island v. City of New York, 68 App. Div. 231; 74 Supp. 284; aff'd, without opinion, 174 N. Y. 519; F. 48. Banta v. Banta, 84 App. Div. 138; 82 Supp. 113; 117. Barber v. General Asphalt Co., 125 App. Div. 412; 109 Supp. 1023; 2098. Barber v. Kendall, 158 N. Y. 401; F. 2158. Barnard v. Heydick, 2 Abb. Pr. (N. S.) 47; 3. Barnes v. Gushing, 168 N. Y. 542; F. 192. Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; F. 431. Bartlett v. McNeil, 60 N. Y. 53; 791. Bartlett v. Spicer, 75 N. Y. 528; 791. Bates V. Printup, 31 Misc. 17; 64 Supp. 561; 2157. Baxter v. Drake, 85 N. Y. 502; F. 819. Baxter v. Lancaster, 58 App. Div. 380; 68 Supp. 1092; F. 257. Baxter v. McDonald, 154 N. Y. 432; 2093. Baylies v. Ingram, 84 App. Div. 360; 82 Supp. 891; F. 586. Baylis v. Stimson, 110 N. Y. 621; 2. Becker v. Metropolitan Life Ins. Co., 188 N. Y. 620; F. 645. Beebe v. Mead, 101 App. Div. 500; 92 Supp. 51;F. 28. Beebe v. Mead, 101 App. Div. 500; 92 Supp. 51; F. 1659. Beglin v. People's Trust Co., 48 Misc. 494; 95 Supp. 910; 2102. Belanemsky v. Gallaher, 55 Misc. 150; 105 Supp. 77; 1756, 1758. Bell V. Mills, 78 App. Div. 42; 60 Supp. 34; 79. Bell V. Pletscher, 32 Misc. 746; 65 N. Y. Supp. 669; 178. Benedict v. Guardian Trust Co., 58 App. Div. 302; 68 Supp. 1082; 1017. Benedict v. Kress, 97 App. Div. 65; 89 Supp. 607; 163. Benjamin v. White, 55 Misc. 530; 105 Supp. 991; 2103. Bennett v. American Surety Co., 73 App. Div. 468; 77 Supp. 207; F. 258. Bennett v. McGaughy, 4 Miac. 192; 164. Table of Cases XV Vol. II Begins at Page 1001 Bennett v. Whitney, 94 N. Y. 302; 29. Bernheimer v. Adams, 70 App. Div. 114; 75 Supp. 93; aff'd 175 N. Y. 472; F. 899. Bernstein v. Schoenfeld, 81 App. Div. 171; 81 Supp. 11; F. 1753. Berry v. Fleming, 87 App. Div. 53; 83 Supp. 1066; F. 1557. Beyer v. Huber Co., 115 App. Div. 342; 100 Supp. 1029; 65. Bill V. New York Expanded Metal Co., 60 App. Div. 470; 69 Supp. 989; F. 363. Binder v. Robinson, 59 Misc. 155; 110 Supp. 229; 2094. Bird v. Post, 124 App. Div. 902; 108 Supp. 252; 1098. Birdsinger v. McCormick Harvesting M. Co., 183 N. Y. 487; 75. Bjork V. Post & McCord, 125 App. Div. 813; 110 Supp. 206; 2210, 2211. Black V. Mutual Life Ins. Co., 192 N. Y. (memo.); aff'g, without opinion, 117 App. Div. 449; 102 Supp. 722; F. 2134. Black V. Vanderbilt, 70 App. Div. 16; 74 Supp. 1095; 4. Black V. Vanderbilt, 70 App. Div. 16; 74 Supp. 1095; F. 2092. Blair v. Flack, 62 Hun, 509; 17 Supp. 64; 2183. Blanding v. Cohen, 101 App. Div. 442; 92 Supp. 93; aff'd 184 N. Y. 538; F. 519. Bliss V. Winters, 38 App. Div. 174; 56 Supp. 650; F. 1093. Blumenberg Press v. Mutual Mercan- tile Agency, 177 N. Y. 362; rever- sing 77 App. Div. 87; 78 Supp. 1085; F. 1949. Blumenthal v. Prescott, 70 App. Div. 560; 75 Supp. 710; F. 629. Ely v. Edison Electric Illuminating Co., 172 N. Y. 1; F. 1860. Bogendoerfer v. Jacobs, 97 App. Div. 355; 89 Supp. 1051; F. 440. Boice V. Municipal Telegraph & Stock Co., 192 N. Y. (memo.); aff'g, without opinion, 117 App. Div. 914; F. 1134. Booth V. Siebold, 37 Misc. 101; 74 Supp. 776; F. 19. Booth V. Siebold, 37 Misc. 101; 74 Supp. 776; F. 1648. Booth V. Dodge, 60 App. Div. 23; 69 Supp. 673; 32. Bornmann v. Star Company, 174 N. Y. 212; F. 944. Boskowitz V. Sulzbacher, 124 App. Div. 682; 109 Supp. 186; 2213. Bostwick V. Van Voorhis, 91 N. Y. 353; F. 187. Bowen v. Dawley, 116 App. Div. 568; 101 Supp. 878; 90. Boyd V. U. S. Mortgage & Trust Co., 187 N. Y. 262; F. 423. Boyer v. East, 161 N. Y. 580; F. 2147. Boyer v. East, 161 N. Y. 580; aff'g 25 App. Div. 625; 49 Supp. 1132; F. 2150. Bradley v. Bradley, 165 N. Y. 183; F. 1068. Bradley & Currier Co. v. Ward, 15 App. Div. 386; 44 Supp. 164; aff'd, without opinion, 162 N. Y. 618; F. 47. Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 347; F. 647. Breed v. Nat. Bank of Auburn, 171 N. Y. 648; aff'g, without opinion, 57 App. Div. 468; 68 Supp. 68; F. 1324. Bregman v. Kress, 83 App. Div. 1; 81 Supp. 1072; 1115. Breidenbach v. Mayer, 187 N. Y. 553; F. 1316. Briggs V. Hilton, 99 N. Y. 517; 82. Brown v. Doherty, 185 N. Y. 383; F. 1743. XVI Table of Cases Vol. II Begins at Page 1001 Brooks V. International Ry. Co., 187 N. Y. 574; F. 313. Brown v. New York, 57 Misc. 433; 108 Supp. 555; F. 1780. Brown v. Southern Michigan R. Co., 6 Abb. Pr. 237; 169. Brown v. Utopia Land Co., No. 1, 118 App. Div. 190; 103 Supp. 53; 275. Brush V. Blot, 16 App. Div. 80; 44 Supp. 1073; 2180. Brush V. Long Island R. Co., 158 N. Y. 742; aff'g, without opinion, 10 App. Div. 535; 42 Supp. 103; F. 288. Bryant v. Allen, 54 App. Div. 500; 67 Supp. 89; appeal dismissed, 166 N. Y. 637;4. Buchanan v. Tilden, 158 N. Y. 109; F. 888. Buckbee v. Board of Education, 187 N. Y. 544; aff'g, without opinion, 115 App. Div. 366; 100 Supp. 943; 2120. Buckingham v. Vincent, 23 App. Div. 238; 48 Supp. 747; F. 903. Buckley v. Mayor, etc., 159 N. Y. 558; aff'g, without opinion, 30 App. Div. 463; 52 Supp. 452; F. 1537. Burke, Matter of, 117 App. Div. 477; 102 Supp. 785; F. 834. Blimside v. Whitney, 21 N. Y. 148; F. 836. Burr v. Union Surety & Indem. Co., 107 App. Div. 315; 95 Supp. 114; F. 453. Burrow v. Marceau, 124 App. Div. 665; 109 Supp. 105; 1609. Busch v. Interborough R. T. Co., 187 N. Y. 388; 757. Busch V. Interborough Rapid Tran- sit Co., 187 N. y. 388; F. 999. Bush V. Delaware, L. & W. R. Co., 166 N. Y. 210; F. 289. Buys V. Third Avenue Railroad Co., 45 App. Div. 11; 61 Supp. 113; F. 319. Buxdaum v. Mason, 48 Misc. 396; 95 Supp. 539; 877. Byam v. Collins, 111 N. Y. 143; F. 987. Cameron, Matter of, 47 App. Div. 120; 62 Supp. 187; aff'd 166 N. Y. 610; 1967. Campbell v. Arbuckle, 123 N. Y. 662; aff'g, without opinion, 51 Hun, 641; 4 Supp. 29; F. 894. Campbell v. Campbell, 69 App. Div. 435; 74 Supp. 979; 8. Candee & Smith v. Fordham Stone Renovating Co., 126 App. Div. 15; 110 Supp. 355; 1390. Caponigri v. Cooper, 70 App. Div. 124; 74 Supp. 1116; F. 218. Caporale v. Benedetto, 183 N. Y. 538; aff'g 98 App. Div. 623; F. 1395. Carey v. N. Y. Central & ,H. R. R. Co., 184 N. Y. 592; aff'g, without opinion, 90 App. Div. 611 (no opinion); F. 2112. Carl V. Mayer, 51 App. Div. 5; 64 Supp. 1077; F. 238. Carleton v. Lombard, Ayres & Co., 149 N. Y. 137; 80. Carleton v. Lombard Ayres (realth Trust Co., 45 Misc. 2Q1; 91 Supp. 969; aff'd 99 App. Div. 620; 91 Supp. 1099; 2209. Kavanaugh v. Coipmonwealth Trust Co., 191 N. Y. 522; aff'g, without opinion, 120 App. Div. 902; 1480. Keating v. Coon, 188 N. Y. 624; F. 379. Keeler v. Dunham, 114 App. Div. 94; 99 Supp. 669; F. 1010, Keene v. Newark Watch Case M. Co., 112 App. Div. 7; 98 Supp. 68; F. 1S9. Kelly V. St. Michael's Roman Cath- olic Church, 124 App. Div. 605; 108 Supp. 927; 2212. Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, quoted with, approval in Carleton v. lyombard, Ayres A Co., 149 N. Y. 145; 83. Kelsey v. Bank of Mansfield, 85 App. Div. 334; 83 Supp. 281; F. 12. Kelsey v. Bank of Mansfield, 85 App. Div. 334; 83 Supp. 281; F. 909. Kent V. Villfige of N. Tarrytown, 50 App. Div. 502; 64 Supp. 178; 2093. Kent V. West, 163 N. Y. 589; dis- missing appeal, 33 App. Div. 112; 63 Supp. 244; F. 2083. Keuka College v. Ray, 167 N. Y. 96; F. 571. Keyes v. Flint, 69 App. Div. 141; 74 Supp. 483; F. 152. King V. King, 59 App. Div. 128; 68 Supp. 1089; F. 46. Kinsella v. Riesenberg, 124 App. Div. 322; 108 Supp. 876; 2211. Knickerbocker Trust Co. v. Garden, 113 App. Div. 825; 99 Supp. 620; F. 497. Knickerbocker Trust Co. v. Garden, 113 App. Div. 825; 99 Supp. 620; F. 1014. Koehler v. N. Y. Steam Co., 183 N. Y. 1; F. 372. Kolb V. Nat. Surety Co., 176 N. Y. 233; F. 469. Krasnow v. Singer Mfg. Co., 115 App. Div. 59; 100 Supp. 591; F. lliO. Krause v. Rutherford, 178 N. Y. 684; aff'g 81 App. Div. 341; 81 Supp. 465; aff'g 37 Misc. 382; 76 Supp. 773; F. 27i: Krueger v. Barthplpmay Brewery Co., 182 N. Y. 544; F. 369. XXVI Table of Cases Vol. II Begins at Page 1001 Kupfer V. Holtzmann, 88 Supp. 362; 117. Kurz V. Doerr, 180 N. Y. 88; F. 993. Lacs V. James Everard's Breweries, 107 App. Div. 250; F. 22. Lambert v. Westchester El. R. Co., 191 N. Y. 248; F. 324. La Montague v. Bank of N. Y., Nat. Banking Assn., 183 N. Y. 173; 1403. Landau v. City of New York, 180 N. Y. 48; F. 331. Lane v. Equitable Life Ass. Soc, 102 App. Div. 470; 92 Supp. 1131; F. 17. Lane v. Equitable Assur. Soc, 102 App. Div.. 470; 92 Supp. 877; F. 29. Lane v. Equitable Life Ins. Society, 102 App. Div. 470; 92 Supp. 877; F. 47. Langford v. Broadhead, 138 N. Y. 608; 14. Lang v. Lutz, 180 N. Y. 254; F. 1463. Lapetina v. Santangelo, 124 App. Div. 519; 109 Supp. 1135; 2094. Lapieduse v. Syracuse Rapid Tran- sit R. Co., 187 N. Y. 561; F. 316. Larkin v. N. Y. and Northern R. Co., 138 N. Y. 634 (no opinion); F. 285. Lateer v. Prudential Ins. Co., 64 App. Div. 423; 72 Supp. 235; F. 14. Laubheim V. De Koniglik, etc., Co., 107 N. Y. 228; F. 2117. Layton v. McConnell, 61 App. Div. 447; 70 Supp. 679; F. 1168. Leary v. Corvin, 181 N. Y. 222; F. 1086. Leask v. Richards, 188 N. Y. 291; F. 1973. Lehmaier v. Jones, 100 App. Div. 495; 91 Supp. 687; F. 590. Lehman v. Bentley, 135 N. Y. 651; F. 24. Lent v. N. Y. and Mass. Ry. Co., 130 N. Y. 504; 2090. Leonard v. N. Y. & Buffalo, etc., Tel. Co., 41 N. Y. 544; F. 1266. Lester v. Seilliere, 50 App. Div. 239; 63 Supp. 748; 4. Levy V. Bingham, 113 App. Div. 424; 99 Supp. 258; F. 1595. Lewis V. Cook, 150 N. Y. 163; 2093. Lewis V. Guardian Fire & Life Assur. Co., 181 N. Y. 392; F. 679. Lewis V. Howe, 174 N. Y. 340; 1740, 1741. Lewis Co. V. Metropolitan Realty Co., 112 App. Div. 385; 98 Supp. 391; aff'd 189 N. Y. 534; F. 614. Lewis V. Ocean Navigation & Pier Co., 125N. Y. 341;F. 919. Lewis V. Ryan, 55 Misc. 408; 2097. Lilianthal v. Lesser, 185 N. Y. 557; F. 39. Lilienthal v. Betz, 185 N. Y. 153; F. 23. Lindsay v. Mulqueen, 26 Him, 485; , 75. Link V. Sheldon, 136 N. Y. 1; F. 33. Link V. Sheldon, 136 N. Y. 1; F. 394. Ijnton V. Long Island R. Co., 91 App. Div. 515; 86 Supp. 903; aff'd 183 N. Y. 559; F. 2198. Little V. Rochester, 156 N. Y. 667; aff'g, without opinion, 87 Hun, 493; 34 Supp. 1010; F. 1688. Livingston v. Stafford, 184 N. Y. 536; aff'g, on opinions below, 99 App. Div. 108; 91 Supp. 172; F. 26. Livingston v. Stafford, 184 N. Y. 536; aff'g, on opinions below, 99 App. Div. 108; 91 Supp. 172; F. 40. Table of Cases XXVll Vol. II Begins at Page 1001 Lochs V. Herrmann, 185 N. Y. 560; aff'g, without opinion, 108 App. Div. 366; 95 Supp. 1141 (no opin- ions); F. 390. Long V. Richmond, 175 N. Y. 495; aff'g, without opinion, 68 App. Div. 466; 73 Supp. 912; F. 21 14. Lorillard v. Clyde, 122 N. Y. 41; F.-505. Loscher v. Hager, 124 App. Div. 568; 109 Supp. 562; 2209, 2213. Lowry v. Collateral Loan Association, 172 N. Y. 394; F. 35. Lowry v. Collateral Loan Association, 172 N. Y. 394; F. 924. Lowery v. W. U. Tel. Co., 60 N. Y. 198; F. 1258. Lummis v. Kasson, 43 Barb. 353; 2183. Lynde v. Lynde, 162 N. Y. 405; F. 809 M Maccarone v. Hays, 85 App. Div. 41 ; 82 Supp. 1005; 163, 165. Ma'crea v. Gotham Rubber Co., 113 App. Div. 455; 99 Supp. 373; 77. McBride v. N. Y. Tunnel Co., 187 N. Y. 573; F. 386. McCarg v. Burr, 186 N. Y. 467; F. 1121. McCarthy v. Supreme Court of the Ind. Order of Foresters, 187 N. Y. 565; F. 671. McClaughry v. Wetmore, 6 Johns. 82; F. 975. McClave v. Gibb, 11 Misc. 44; 31 Supp. 847; 2104. McClure v. Central Trust Co., 165 N. Y. 108; 93. McClure v. Wilson, 13 App. Div. 274; 43 Supp. 209; 2089. McCoubray v. St. Paul Fire & Marine Ins. Co., 169 N. Y. 590; aff'g, with- out opinion, 50 App. Div. 416; 64 Supp. 112; F. 688, McCrea v. Hooper, 35 App. Div. 572; 55 Supp. 136; aff'd, on opinion below, 165 N. Y. 633; 2095. McGehee v. Cooke, 55 Misc. 40; 105 Supp. 60; 165. McGorie v. MoAdoo, 113 App. Div. 271; 99 Supp. 47; F. 1597. McGuire v. Moran, 76 App. Div. 325; 78 Supp. 422; F. 329. McKeige v. Carroll, 120 App. Div. 522; 105 Supp. 342; 75, 77. McKelvey v. Marsh, 63 App. Div. 396; 71 Supp. 541; F. 1126. McKnight v. New York, 186 N. Y. 35; 2160. McMoran v. Laijge, 25 App. Div. 11; 48 Supp. 1000; 169. McMorris v. Howell, 89 App. Div. 272; 85 Supp. 1018; F. 1116. McNalley v. Fitzsimmons, 70 App. Div. 179; 75 Supp. 331; F. 30. McNeal v. Hayes Machine Co., 118 App. Div. 1.30; 103 Supp. 312; 28. McVey v. Security Mut. Lite Ins. Co., 118 App. Div. 466f 103 Supp. 1056; 3. Magar v. Hammond, 183 N. Y. 387; F. 994. Maloney v. Martin, 178 N. Y. 552; aff'g, without opinion, 81 App. Div. 432; 80 Supp. 763; F. 1101. Mandeville v. Reynolds, 68 N. Y. 528; F. 792. Marietta v. Cleveland, Cincinnati, etc., R. Co., 52 Misc. 16; 100 Supp 1027; 4. Markham v. David Stevenson Brew- ing Co., 104 App. Div. 420; 93 Supp. 684; F. 604. Marshall v. Commercial Travelers' Mut. Ace. Assn., 170 N. Y. 434, F. 662. Marshall v. Seelig, 49 App. Div. 433; 63 Supp. 355; F. 1065. Martin v. Central R. Co., 121 App. Div. 652; 106 Supp. 226; F. 1188. XXVIU Table of Cases Vol. II Begins at Page 1001 Mason v. Decker, 72 N. Y. 575; F. 61. Mason v. Decker, 72 N. Y. 595; 65. Matthews v. Matthews, 154 N. Y. 288; 2161. Mawhinney v. Bliss, 189 N. Y. 501; F. 1707. Mawhinney v. Bliss, 124 App. Div. 609; 109 Supp. 332; 2084. Mayer v. Phoenix Ins. Co., 124 App. Div. 241; 108 Supp. 711; F. 841. Mayor, etc., 'of N. Y. v. Bannan, 42 App. Div. 191; 58 Supp. 1031; F. 269. Mayor, etc., of New York v. Harlem Bridge, etc., Co., 186 N. Y. 304; F. 18. Mayor, etc., of New York v. Harlem Bridge, etc., Co., 186 N. Y. 304; F.36. Mayor, etc., of New York v. Harlem Bridge, etc., R. Co., 186 N. Y. 304; F. 1514. Mayor, etc., of New York v. N. Y. Refrigerating Co., 146 N. Y. 210; F. 217. Meade v. Madden, 85 App. Div. 10; 82 Supp. 900; F. 574. Mead v. Saratoga and Washington Fire Ins. Co., 179 N. Y. 537; aff'g, without opinion, 81 App. Div. 282; 80 Supp. 885; F. 690. Mead v. Stratton, 87 N. Y. 493; F. 1179. Meaney v. Way, 108 App. Div. 290; 95 Supp. 745; F. 42. Meaney^v. Way, 108 App. Div. 290; 95 Supp. 745; F.^ 1763. Medical College Laboratory of N. Y. V. N. Y. University, 178 N. Y. 153; F. 1672. Meech v. National Accident Soc, 50 App. Div. 144, 148; 63 Supp. 1008; 655. Meehan v. Atlas Safe Moving, etc., Co,, 185 N. Y. 586; F. 366, Meinhardt v. Excelsior Brewing Co., 82 App. Div. 627; 81 Supp. 1042; 2167. Meislahn v. Irving Nat. Bk., 62 App. Div. 231; 70 Supp. 988; aff'd 172 N. Y. 631; F. 138. Meeks v. Meeks, 122 App. Div. 461; 106 Supp. 907; F. 1702. Menkel v. City of New York, which was reported in the N. Y. Law J., January 29, 1908; 331. Mercantile Safe Deposit Co. v. Dimon, 55 App. Div. 538; 67 Supp. 430; F. 1666. Merker v. Bultman, 110 App. Div. 889; 96 Supp. 1136; F. 788. Merritt & Chapman Wrecking Co. V. Tice, 192 N. Y. (memo.); aff'g, without opinion, 118 App. Div. 123; 103 Supp. 333; F. 789. Merritt v. Smith, 50 App. Div. 349; 63 Supp. 1068; F. 1741. Mesnier v. Denike, 82 App. t)iv. 404; 81 Supp. 818; F. 1119. Metropolitan Trust Co. v. Tona- wanta, etc., R. Co., 43 Huh, 521; 2095. Meyer v. Moress, 106 App. Div. 656; 94 Supp. 771; F. 2191. Middletown v. .^tna Indemnity Co., 121 App. Div. 589; 106 Supp. 374; F. 209. * Middleworth v. Ordway, 191 N. Y. 404; 1774. Milage v. Woodward, 186 N. Y. 252; 118. Milage v. Woodward, 186 N. Y. 252; F. 136. Miller v. Miles, 171 N. Y. 675; aff'g 58 App. Div. 103; 68 Supp. 565; F. 913. Miller v. N. Y. City Ry. Co., 192 N. Y. (memo.); F. 1161. Milliken v. W. U. Tel. Co., 110 N. V. 403j F. 1355. Table of Cases XXIX Vol. II Begins at Page 1001 Minch V. Mail & Express Co., 190 N. Y. 503; aff'g, without opinion, 120 App. Div. 875; 935. Mincho v. Bankers' Life Insurance Co., 124 App. Div. 578; 109 Supp. 179; 2094. Mitchell V. Einstein, 42 Misc. 358; 86 Supp. 759; 1753. Moloney v. Nelson, 158 N. Y. 351; aff'g 12 App. Div. 545; F. 1914. Monahan v. Eidlitz, 59 App.' Div. 224; 69 Supp. 335; F. 374. Monroe v. Proctor, 51 Misc. 632; 100 Supp. 1021; 118. Montgomery v. Brush Electric Il- luminating Co., 168 N. Y. 657 aff'g, without opinion, 48 App Div. 12; 62 Supp. 606; F. 1474. Moore v. McGuire, 205 U. S. 214 F. 45. Moore v. Westemelt, 27 N. Y. 234 1328. More V. Knox, 52 App. Div. 145 64 Supp. 1101; aff'd, without opin- ion, 169N. Y. 591;F. 774. Morris v. Metropolitan Street Rail- way Co., 63 App. Div. 78; 71 Supp. 321; aff'd, without opinion, 170 N. Y. 592; F. 320. Morris Europ. & Amer. Ex. Co. v. Merchants' Europ. Ex. Co., 67 App. Div. 616; 73 Supp. 538; F. 1627. Morrison v. Smith, 177 N. Y. 366; F. 954. Moser v. Press Publishing Co., 59 Misc. 78; 109 Supp. 963; 1158. Mossa V. Mossa, No. 1, 123 App. Div. 400; 107 Supp. 1046; 870. Mossein v. Empire State Surety Co., 117 App. Div. 820; 102 Supp. 1013; F. 265. Motley v. Mercantile Trust Co., 51 Misc. Rep. 460; aff'd, on opinion of court below, 114 App. Div. 904; ;00 Supp. 281; F. 1029. Mott v. Comstock, 7 Cow. 654; F. 978. Mt. Vernon v. Kenlon, 97 App. Div. 191;89Supp. 817;F. 244. MuUins V. Siegel-Cooper Co., 95 App. Div. 234; 88 Supp. 737; aff'd 183 N. Y. 129; F. 426. Mumper v. Rushmore, 79 N. Y. 19; 2183. Munger v. Albany City Nat. Bk., 85 N. Y. 580; 646. Munsinger v. United Press, 62 A. D. 338; 65 Supp. 194; F. 2184. Murphy v. Eidlitz, 113 App. Div. 659; 99 Supp. 950; F. 1111. Murphy v. Reddy, 19 App. Div. 630; 46 Supp. 457; F. 1862. Murray v. Estes, 19 App. Div. 209; 46 Supp. 1002; F. 64. Murray v. O'Donohue, 109 App. Div. 696; 96 Supp. 335; F. 116. Murray v. O'Donohue, 109 App. Div. 696; 96 Supp. 335; 117. Mutual Life Ins. Co. v. Ross, 10 Abb. Pr. 260; 3. Mutual Life Ins. Co. v. Spratley, 172 U. S. 602; 808. Mutual Loan Assn. v. Lesser, 183 N. Y. 653; aff'g 94 App. Div. 619; 88 Supp. 1110 (no opinions in any of the reports); F. 164. Mutual Milk & C. Co. v. Heldt, 120 App. Div. 796; 105 Supp. 661; F. 148. Myers v. Sturgis, 123 App. Div. 470; 108 Supp. 1141; 1465. N National Bank of Deposit v. Rogers, 166 N. Y. 380; 7. National Broadway Bk. v. Sampson, 179 N. Y. 213; 1278. National Fire Ins. Co. v. SuUard, 97 App. Div. 233; 89 Supp, 934; F. 749. XXX Table of Cases Vol. II Begins at Page 1001 National Gum & Mica Co. v. Braend- ley, 27 App. Div. 219; 51 Supp. 93; F. 1631. National Gum & Mica Co. v. Mc- Cormack, 124 App. Div. 569; 109 Supp. 1139; 2095. National Wall Paper Co. v. Associ- ated Mfg. Mut. Fire Ins. Cor., 60 App. Div. 222; 70 Supp. 124; F. 677. Naylor v. N. Y. Central, etc., R. Co., 119 App. Div. 24; 103 Supp. 966; 1. Neidlinger v. Onward Construction Co., 188 N. Y. 572; F. 771. Nelson v. Hatch, 174 N. Y. 546 aff'g, without opinion, 70 App, Div. 206; 75 Supp. 389; F. 1420. Neu V. McKechnie, 95 N. Y. 632 F. 1181. New England Water Works v Farmers' Loan & Trust Company, 54 App. Div. 309; 66 Supp. 811: 546. Newton v. Jay, 107 App. Div. 457; 95 Supp. 413; F. 2005. New York, re New York & Brooklyn Bridge, 103 App. Div. 595; F. 2050. New York v. Holmes, 104 App. Div. 630; 93 Supp. 1123; aff'd, without opinion, 184 N. Y. 599; P. 18. New York v. Holmes, 184 N. Y. 599; aff'g, without opinion, 104 App. Div. 630; 93 Supp. 1123; F. 1517. New York v. Knickerbocker Trust Co., 104 App. Div. 223; 93 Supp. 937; F. 1587. New York v. Manhattan Ry. Co., 192 N. Y. 90; F. 1484. New York v. A. T. Stewart Realty Co., 109 App. Div. 702; 96 Supp. 513; F. 2123. N. Y. & Long Island R. Co. v. O'Brien as Fire Commissioner, etc., 192 N. Y. (memo.); F. 1558 N. Y. Bap. Mission Soc. v. Taber- nacle Church, 10 App. Div. 288; 41 Supp. 976; 2. N. Y. Bap. Mission Soc. v. Taber- nacle Church, 9 App. Div. 527; 41 Supp. 720; 2. New York Times v. Star Co., 105 App. Div. 642; 94 Supp. 1157; F. 35. New York Times v. Star Co., 105 App. Div. 642; 94 Supp. 1157; F. 959. Nichols v. City of New Rochelle, 111 App. Div. 921; 96 Supp. 1138; see 105 App. Div. 77; 93 Supp. 796; P. 337. Nichols V. Drew, 25 Hun, 315; aff'd 94 N. Y. 22; 2089. Nichols V. Riley, 118 App. Div. 404; 103 Supp. 554; 2093. Nichols V. Scranton Steel Co., 137 N. Y. 471; 8. Nichols V. Scranton Steel Co., 137 N. Y. 471; F. 61. Nichols V. Scranton Steel Co., 137 N. Y. 471, 485; P. 64. Nichols V. Scranton Steel Co., 137 N. Y. 471; P. 68. Northam v. International Ins. Co., 45 App. Div. 177; 61 Supp. 45; aff'd on opinion below, 165 N. Y. 666; P. 683. Norton v. Dreyfuss, 106 N. V. 90, at p. 94; 76. O'Brien v. Buffalo Furnace Co., 183 N. Y. 317; F. 377. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; F. 467. O'Connor v. Virginia Passenger & Power Co., 184 N. Y. 46; 2087. Oelrioh v. N. Y. Condensed Milk Co., 127 N. Y. 680; P. 408. Table of Cases XXXI Vol. II Begins at Page 1001 Ogden V. Getty, 100 App. Div. 430; 90 Supp. 664; F. 594. Oldenburgh v. N. Y. Central, etc., R. Co., 124 N. Y. 414; F. 283. Olmsted v. Olmsted, 190 N. Y. 458; F. 1813. Oishei v. Penna. R. Co., 191 N. Y. 544; in which the plaintiff recov- ered; aff'g, without opinion, 117 App. Div. 117; 102 Supp. 373 F. 1406. Ostrom V. Greene, 161 N. Y. 353 F. 16. Otto V. Van Riper, 164 N. Y. 536 F. 236. Pach V. Gilbert, 124 N. Y. 612; F. 1333. Page V. Page, 124 App. Div. 421; 108 Supp. 864; F. 857. Page v. Shainwald, 169 N. Y. 246; F. 2181. Palmer v. Great Western Ins. Co., 153 N. Y. 660; aff'g 10 Misc. 167; 30 Supp. 1044; F. 743. Palmer v. Roods, 116 App. Div. 66; 101 Supp. 186; 2083. Pape v. Pratt Institute, 127 App. Div. 147; 111 Supp. 354 (2d Dept., N. Y. Law J., June 24, 1908), 1851. Parish v. N. Y. Prod. Ex., 169 N. Y. 34; F. 23. Parish v. N. Y. Produce Exchange, 169 N. Y. 34; F. 1590. Parkes v. Pullman & Co., 36 App. Div. 208; 56 Supp. 734; 3. Parks V. City of New York, 187 N. Y. 555; F. 348. Parmele Co. v. Haas, 171 N. Y. 579; F. 19. Parmele Co. v. Haas, 171 N. Y. 579; F. 920. Parr v. Loder, 97 App. Div. 218; 89 Supp. 823; F. 1017. Parrish v. Sun Printing and Publish- ing Association, 6 App. Div. 585 39 Supp. 540; 2180. Pascal V. Goldstein, 51 Misc. 629 100 Supp. 1025; 82. Patchen v. Rof kar, 52 App. Div. 367 65 Supp. 122; F. 38. Patchen v. Rofkar, 52 App. Div. 367 65 Supp. 122; F. 1312. Paturzo V. Shuldiner, 125 App. Div. 636; 110 Supp. 137; 1930. Pawson V. Miller, 66 App. Div. 12 72 Supp. 1011; 905. Peace v. Wilson, 186 N. Y. 403 F. 790. Peacock v. Bell, 1 Saund. 73; 807. Pearsall v. W. U. Tel. Co., 124 N. Y. 256; F. 1263. Pease v. Freiwold, 39 Misc. 549; 80 Supp. 402; 1121. Peck V. Schenectady R. Co., 170 N. Y. 298; F. 26. Peck V. Schenectady R. Co., 170 N. Y. 298; F. 1569. Peck V. Washington L. Ins. Co., 91 App. Div. 597; 87 Supp. 210; aff'd 181 N. Y. 585; F. 649. Peerrot v. Mount Morris Bank, 120 App. Div. 247; 104 Supp. 1045; 2093. Pelletreau v. Brennan, 113 App. Div. 806; 99 Supp. 955; F. 1765. Pennoyer v. Neff, 95 U. S. 714; 791. People V. Bennett, 56 Misc. 160; 3. People V. Berghoff, 112 App. Div. 772; 99 Supp. 201; 1163. People V. Brooklyn Cooperage Co., 187 N. Y. 142; F. 1823. People V. Equitable Life Assurance Society, 124 App. Div. 714; 109 Supp. 453; 2086, 2087. . People V. Fisher, 190 N. Y. 468; F. 1831. .xxxu Table op Cases Vol. II Begins at Page 1001 People V. Keyser, 28 N. Y. 226, at p. 234; 164. People V. Liberman Dairy Co., 59 Misc. 22; 109 Supp. 1067; 1163. People V. Martin, 123 App. Div. 335; 107 Supp. 1076; F. 1169. People V. Murray Hill Bank, 10 App. Div. 328; 41 Supp. 804; F. 1441. People V. Snyder, 41 N. Y. 397, 400; 2103. People V. Snyder, 90 App. Div. 422; 86 Supp. 415; 1169. People ex rel. Hearst v. Ramapo Water Co., 51 App. Div. 145; 64 Supp. 532; 1443. People ex rel. Kenyon v. Sutherland, 81 N. Y. 1; 28. Peters v. Needham Piano and Organ Co., 124 App. Div. 479; 109 Supp. 572; 2094. Petrie v. Phcenix Ins. Co., 132 N. Y. 137; F. 725. Phalen v. U. S. Trust Co., 186 N. Y. 178; F. 880. Phalen v. U. S. Trust Co., 186 N. Y. 178; 1786. Phelps V. Viseher, 50 N. Y. 69; 169. Phillips V. Lindley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N. Y. 606; F. 489. Phillips V. Lindley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N. Y. 606; F. 850. Phillips V. Lindley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N. Y. 606; F. 851. Phillips v. Lindley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N. Y. 606; F. 852. Phcenix Bridge Co. v. Creem, 102 App. Div. 354; 92 Supp. 856; aff'd 185 N. Y. 580; F. 446. Pike v. Honsinger, 155 N. Y. 201; F. 34. Pike V. Honsinger, 155 N. Y. 201; F. 395. Pilhnan v. Billqvist, 187 N. Y. 551; F. 58. Piper v. N. Y. C, etc., R. Co., 156 N. Y. 224; F. 2120. Piatt V. Elias, 186 N. Y. 374; 546. Piatt V. Ehas, 186 N. Y. 374; F. 2183. Pluckham v. American Bridge Co., 186 N. Y. 561; aff'g, without opin- ion, 104 App. Div. 404; 93 Supp. 748; F. 381. Pohskoff v. Petry, 50 Misc. 602; 99 Supp. 481; F. 62. Pond V. New Rochelle Water Co., 183 N. Y. 330; 1769. Porter v. Wormser, 94 N. Y. 450; 2161. Port Jervis v. First Nat. Bank, 96 N. Y. 550; P. 470. Poyet V. Rohe, 187 N. Y. 550; F. 410. Powers V. Sherin, 89 App. Div. 37; 85 Supp. 89; 2087. Preiser v. Wielandt, 48 App. Div. 569; 62 Supp. 890; F. 625. Prentice v. Fargo, 53 App. Div. 608; 65 Supp. 1114; aff'd 173 N. Y. 593; 78. Presbyterian Society v. Beach, 74 N. Y. 72; F. 570. Prescott V. Le Conte, 178 N. Y. 585; aff'g, without opinion, 83 App. Div. 482; 82 Supp. 411; F. 620. Price V. Press Pub. Co., 117 App. Div. 854; 103 Supp. 296; 117. Price V. Press Pub. Co., 117 App. Div. 854; 103 Supp. 296; F. 2162. Pritchard v. Solomon (unreported); F. 1541. Probst V. Rochester Steam Laundry Co., 171 N. Y. 584; F. 577. Pymm v. City of New York, 111 App. Div. 330; 97 Supp. 1108; F. 1519. Q Queens County Water Co. v. Monroe, 83 App. Div. 105; 82 Supp. 610; F. 1368. Table of Cases xxxiu Vol. II Begins at Page 1001 Racquette Falls Land Co. v. Hoyt, 187 N. Y. 550; F. 1830. Ramsey v. National Contracting Co., 49 App. Div. 11; 63 Supp. 286; P. 429. Randrup v. McBeth, 116 App. Div. 195; 101 Supp. 604; F. 204. Reck V. Phoenix Ins. Co., 130 N. Y. 160; F. 723. Recknagel v. Steinway, 184 N. Y. 614; modifying 105 App. Div. 561; 94 Supp. 119; F. 878. Rector v. Clark, 78 N. Y. 21; F. 1137. Redpath v. Redpath, 75 App. Div. 95; 77 Supp. 668; 4. Reed v. Delaware, L. & W. R. Co., 190 N. Y. 516; aff'g, without opin- ion, 116 App. Div. 921; F. 1411. Reed v. Hayward, 82 App. Div. 416; 81 Supp. 608; F. 558. Reeves v. N. Y. Central, etc., R. Co., 192 N. Y. (memo.); aff'g, without opinion, 114 App. Div. 907; F. 1669. Reilly v. Freeman, 1 App. Div. 560; 37 Supp. 570; reargument denied, 2 App. Div. 620; 38 Supp. 1148; F. 1398. Reilly v. Reilly, 63 App. Div. 169; 71 Supp. 287; F. 1083. Reilly v. Steinhardt, 58 Misc. 471; 110 Supp. 1142; 2087. Rhein v. Rowe, 110 App. Div. 892; 96 Supp. 1143; F. 575. Rice v. Zindel, 105 App. Div. 642; 94 Supp. 1161; F. 979. Richardson v. Erckens, 53 App. Div. 127; 65 Supp. 872; aff'd 169 N. Y. 588; 163. Richman v. Consolidated Gas Co., 186 N. Y. 209; F. 1593. Riddle v. MacFadden, 116 App. Div. 353; 101 Supp. 606; 1158. Roberts v. Pioneer Iron Works, 125 App. Div. 207; 109 Supp. 230; 2091. Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57; F. 1215. Robertson v. N. Y. Press Co., 2 App. Div. 49; 37 Supp. 187; F. 963. Robinson v. Brennan, 90 N. Y. 208; F, 1334. Robinson v. Supreme Commandery, United Order Golden Cross, 177 N. Y. 564; aff'g, without opinion 77 App. Div. 215; 79 Supp. 13; F. 670. Robinson v. Vaughan, 49 App. Div. 170; 63 Supp. 197; F. 457. Rochester Ry. Co. v. Robinson, 133 N. Y. 242, 246; 2. Rochester Trust Company v. Oneonta C. & R. S. Railway Co., 122 App. Div. 193; 107 Supp. 237; F. 1952. Rochkind v. Perlman, 123 App. Div. 808; 108 Supp. 224; 2104. Rockland Lake Trap Rock Co. v. Lehigh Valley R. Co., 115 App. Div. 628; 101 Supp. 222; F. 328. Roebling's Sons Co. v. City of New York, 110 App. Div. 366; 97 Supp. 278; F. 1528. Roehm v. Horst, 178 U. S. 1; F. 61. Rogers v. IngersoU, 185 N. Y. 592; aff'g, without opinion, 103 App. Div. 490; 93 Supp. 140; F. 1286. Romaine v. Sweet, 57 App. Div. 613; 68 Supp. 516; F. 443. Rome V. Whitestown Waterworks Co., 187 N. Y. 542; F. 2052. Root V. London Guarantee & Acci- dent Co., 92 App. Div. 578; 86 Supp. 1065; aff'd 180 N. Y. 527; F. 658. Roots Co. v. N. Y. Foundry Co., 101 Supp. 104; 76. Ross V. Bayer-Gardner-Hines Co., 108 App. Div. 366; 95 Supp. 1157; F. 109, XXXIV Table of Cases Vol. II Begins at Page 1001 Ross V. Metropolitan St. R. Co., 104 App. Div. 378; 93 Supp. 679; same case, another appeal, 116 App. Div. 507; 101 Supp. 932; F. 2115. Rose V. N. Y. & Harlem R. Co., 108 App. Div. 206; 95 Supp. 711; F. 1578. Ross V. Royal Insurance Co., 107 App. Div. 615; 95 Supp. 1157; F. 747. Rosenburg v. Feiring, 124 App. Div. 522; 109 Supp. 1145; 2090. Rosenstein v. Vogemann, 184 N. Y. 325; F. 1272. Rosenthal v. Weir, 170 N. Y. 148; F. 38. Rosenthal v. Weir, 170 N. Y. 148; F. 1200. Rothschild v. Schiff, 188 N. Y. 327; F. 1987. Rouse V. Payne, 120 App. Div. 667; 105 Supp. 549; 236. Rowland v. Ely, 120 App. Div. 628; 105 Supp. 211; 65. Rowe V. Gerry, 188 N. Y. 625; aff'g, without opinion, 112 App. Div. 358; 98 Supp. 380; F. 1930. Royce v. Bell Telephone Co., 187 N. Y. 543; F. 1155. Rubin V. N. Y. & H. R. R. Co., 108 App. Div. 367; 95 Supp. 1157; F. 1575. Ruckert v. City of New York, 190 N. Y. 554; aff'g, without opinion, 121 App. Div. 898; 105 Supp. 1141; F. 1521. Russell V. National Exhibition Co., 60 App. Div. 40; 69 Supp. 732; F. 35. Russell V. National Exhibition Co., 103 App. Div. 609; 93 Supp. 1145; F. 778. Ryan V. Third Ave. R. Co., 92 App. Div. 306; 86 Supp. 1070; F. 2113. Ryhiner v. Feickert, 92 111. 305; 164. S Saal V. South Brooklyn Ry. Co., 122 App. Div. 364; 106 Supp. 996; F. 1863. Sabbatino v. Snow's U. S. Sample Ex. Co., 120 App. Div. 416; 104 Supp. 1004; F. 1194. Sabinson v. Herter, 30 Misc. 439; 62 Supp. 433; 546. Sackett v. MilhoUand, 110 App. Div. 893; 96 Supp. 1144; F. 1417. St. James Company v. Security Trust & Life Ins. Co., 178 N. Y. 560; aff'g, without opinion, 82 App. Div. 242; 81 Supp. 739; F. 542. St. John Wood-working Co. v. Smith, 178 N. Y. 629; aff'g 82 App. Div. 348; 82 Supp. 1025; F. 1300. St. Regis Paper Co. v. Santa Clara Lumber Co., 186 N. Y. 89; F. 1781. Salmon v. Blasier Mfg. Co., 53 Misc. 36; 103 Supp. 1030; 3. San Filippo v. American Bill Post- ing Co., 188 N. Y. 514; F. 425. Sanger v. French, 157 N. Y. 234; 2161. Saul V. U. S. Fidelity ^ Guaranty Co., 71 App. Div. 77; 75 Supp. 615; F. 241. Savage v. Brooklyn Heights R. Co., 187 N. Y. 565; F. 312. Savage v. Buffalo, 50 App. Div. 136; 63 Supp. 941; 2093. Savage v. Com Exchange Ins. Co., 36 N. Y. 655; F. 703. Schaap v. Van Dyk, 107 App. Div. 617; 95 Supp. 1159; F. 1400. Schaefer v. Caffrey (not reported); F. 1873. Schafer v. Mayor, etc., of New York, 154 N. Y. 466; F. 334. Scheider v. American Bridge Co., 78 App. Div. 163; 79 Supp. 634; F. 422. Table of Cases XXXV Vol. II Begins at Page 1001 Scheidt v. Epstein, 54 App. Div. 133; 66 Supp. 414; aff'd 170 N. Y. 583; F. 253. Schinasi v. Lane, 191 N. Y. (memo.); F. 536. Schindler v. Bank of London & Mexico, 102 App. Div. 616; 92 Supp. 1144; F. 36. Schlesinger v. Gilhooly, 189 N, Y. 1; 2167. Schlesinger v. Lehmaier, 49 Misc. 419; 99 Supp. 819; 924. Schlesinger v. Lehmaier, 191 N. Y. 69; 2167. Schoellkopf v. Coatsworth, 166 N. Y. 77; F. 632. ■ Schultz V. Rubsam, 104 App. Div. 20; 93 Supp. 334; 2209. Schwalbe v. Schwalbe, 105 App. Div. 643; 94 Supp. 1163; F. 866. Schwaman v. Truax, 179 N. Y. 35; F. 820. Schwinger v. Hickok, 53 N. Y. 280; 791. Scott V. Conn, 75 App. Div. 561; 78 Supp. 274; F. 5^0. Scott V. Dillon, 59 Misc. 522; 109 Supp. S77; 2102. Scriver v. Smith, 100 N. Y. 47; 1845. Seamans v. Barentsen, 180 N. Y. 333; F. 2164. Seidenspinner v. Metropolitan Life Ins. Co., 181 N. Y. 518; F. 646. Selisberg v. Shepp, 107 App. Div. 616; 95 Supp. 1160; F. 760. Sharp V. Ros6,'~139 N. Y. 652; F. 559: Shattuch V. Guardian Trust Co., 125 App. Div. 431; 109 Supp. 862; 2093. Shaw V. New York, 83 App. Div. 212; - 82 Supp. 44; F. 353. Shaw V. N. Y. El. R. Co., 187 N. Y. 186; F. 1581. Shaw V. Stone, 124 App. Div. 624; 109 Supp. 146; 2212. Shayne v. Evening Post Publishing Co., 168 N. Y. 70; F. 1448. Shea v. Fidelity and Casualty Co., 83 App. Div. 305; 82 Supp. 39; F. 472. Sheehan v. Erbe, 103 App. Div. 7; 92 Supp. 862; F. 1429. Sheehan v. Martin, 100 App. Div. 516; 91 Supp. 1113; F. 34. Sheehan v. Martin, 100 App. Div. 516; 91 Supp. 1113; F. 1424. Sherman v. Ecker, 58 Mise. 456; 109 Supp. 678; 2090. Shipman v. Niles, 177 N. Y. 527; aff'g, without opinion, 75 App. Div. 451; 78 Supp. 440; F. 515. Shoe & Leather Bank v. Thompson, 18 Abb. Pr. 413; F. 946. Sickles V. New Jersey Ice Co., 153 N. Y. 83; F. 2119. Sigmon v. Goldstone, 116 App. Div. 490; 101 Supp. 984; F. 119. Silleck V. Dahut, 35 Misc. 134; 71 Supp. 316; 2. Silveira v. Silveira, 34 Misc. 267; 69 Supp. 634; 870. Simmons v. Everson, 124 N. Y. 319; F. 418. Simon v. Mintz, 51 Misc. 670; 101 Supp. 86; 166. Simonson v. Mendham, 190 N. Y. 515; F. 763. Simson v. Parker, 190 N. Y. 19; F. 1380. Singer v. Abrams, 47 Misc. 360; 94 Supp. 7; 166. Singer v. Mayor, etc., 165 N. Y. 658; aff'g 47 App. Div. 42; 62 Supp. 347; F. 1874. Singleton v. Phoenix Ins. Co., 132 N. Y. 298; F. 727. Slaiger v. Soht, 116 App. Div. 874; 102 Supp. 32; 82. Slater v. Slater, 188 N. Y. 633; aff'g, without opinion, 114 App. Div. 160; F. 1076. XXXVl Table of Cases Vol. II Begins at Page 1001 Slater v. Von Chorus, 120 App. Div. 16; 104 Supp. 996; F. 584. Slater Trust Co. v. Randolph-Macon Coal Co., 000 Fed. Rep. 000 (N. Y. Journal, June 27, 1908); 1452. Slocum V. Slocum, 37 Misc. 143; 74 Supp. 447; 871. Smadbeck v. Law, 106 App. Div. 552; 94 Supp. 797; F. 29. Smadbeck v. Law, 106 App. Div. 552; 94 Supp. 797; F. 1722. Smith V. Anderson, 126 App. Div. 24; 110 Supp. 191; 2211, 2212, 2213. Smith V. Central Trust Co., 154 N. Y. 333; 807. Smith V. Coe, 170 N. Y. 162; aff'g 55 App. Div. 587; 67 Supp. 350; F. 25. Smith ■?. Coe, 170 N. Y. 162; aff'g 55 App. Div. 585; 67 Supp. 350; F. 51. Smith V. Irvin, 108 App. Div. 218; 95 Supp. 731; F. 2085. Smith V. Knapp, 30 N. Y. 581, 591; 1340. Smith V. London Assur. Corp., 109 App. Div. 882; 96 Supp. 820; F. 145. Smith v. Rathbun, 75 N. Y. 122; 7. Smith V. Wetmore, 167 N. Y. 234; 7, 8. Smith V. Whitney, 9 Mass. 334; 164. Smock V. Com. Trav., etc., Assn., 107 App. Div. 616; F. 2129. Snead v. Bonnail, 166 N. Y. 325; 1121. Snead v. Bonnail, 166 N. Y. 325; F. 1125. Snowden v. Guion, 101 N. Y. 458; F. 715. Southack V. Ireland, 109 App. Div. 45;95Supp. 621; F. 2187. South Bay Co. v. Howey, 190 N. Y. 240; 1649. Southern Railway v. Tift, 206 U. S. 428; F. 43. South Shore Traction Co. v. Town of Brookhaven, 53 Misc. 392; 102 Supp. 1074; 8. Spellman v. Muehlfeld, 166 N. Y. 245; F. 568. Spencer v. State of New York, 187 N. Y. 484; F. 357. Spero V. West Side Bank, 168 N. Y. 588; aff'g, without opinion, 42 App. Div. 619; 59 Supp. 57; F. 38. Spero V. West Side Bank, 168 N. Y. 588; aff'g, without opinion, 42 App. Div. 619; 59 Supp. 57; F. 906. Sporza V. German Savings Bank, 119 App. Div. 172; 104 Supp. 260; 27, 28. Sposato v. City of New York, 178 N. Y. 583; aff'g 75 App. Div. 304; 78 Supp. 168; 1860. Squiers v. Thompson, 73 App. Div. 552; 76 Supp. 734; aff'd 172 N. Y. 652; 3. Staiger v. Soht, 116 App. Div. 874; 102 Supp. 342; 77. Standard Materials Co. v. Brown & Son Co., 118 App. Div. 91; 103 Supp. 12; 2209. Stanton v. Mason, 119 App. Div. 437; 104 Supp. 155; F. 1114. Starbuck v. Phoenix Ins. Co., 19 App. Div. 139; 45 Supp. 995; F. 698. Stearns v. Lichtenstein, 48 App. Div. 498; 62 Supp. 949; F. 626. Steams v. Lichtenstein, 48 App. Div. 498; 62 Supp. 949; 2082. Stedwell v. Hartmann, 74 App. Div. 126; 77 Supp. 498; aff'd, on opin- ion below, 173 N. Y. 624; F. 2201. Steefel v. Rothschild, 179 N. Y. 273; F. 606. Steinfeld v. Natl. Shirt Waist Co., 99 App. Div. 286; 90 Supp. 964; F. 11. Table of Cases XXXVll Vol. II Begins at Page 1001 Steinfeld v. Natl. Shirt Waist Co., 99 App. Div. 286; 90 Supp. 964; F. 1618. Stephens v. New York, Ontario & Western Railway Co., 175 N. Y. 72; F. 1569. Sterling v. Chapin, 191 N. Y. 548; F. 1397. Stem V. Marcuse, 119 App. Div. 478; 103 Supp. 1026; 2087, 2093. Stemfels v. Metropolitan Street R. Co., 73 App. Div. 494; 77 Supp. 309; aff'd, without opinion, 174 N. Y. 512; F. 321. Stevens v. O'Neill, 169 N. Y. 375; F. 1129. Stevens v. Taylor, 111 App. Div. 561; 97 Supp. 925; F. 1549. Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588; F. 1207. Stillings v. Metropolitan St. Ry. Co., 177 N. Y. 344; aff'g 84 App. Div. 201;82Supp. 726;F. 310. Stokes V. Bradley, 107 App. Div. 616; 95 Supp. 1162; F. 767. Stone V. Mail & Express Co., 110 App. Div. 887; 96 Supp. 1147; F. 961. Storr V. Central Bedding Co., 55 Misc. 398; 106 Supp. 546; 4. Strauss v. American Publishers' Asso- ciation, 177 N. Y. 473; F. 1637. Stuart V. N. Y. Herald Co., 73 App. Div. 459; 77 Supp. 216; 847. Stuber v. McEntee, 142 N. Y. 200; 2104. Stumpf V. Shanks (not reported), in which, on demurrer, this complaint was upheld, at N. Y. Special Term; F. 954. Sturm V. Atlantic Mutual Ins. Co., 63 N. Y. 77; F. 702. Sturmdorf v. Saunders, 190 N. Y. 555; aff'g, without opinion, 117 App. Div. 762; 102 Supp. 1042; F. 535. Stuyvesant v. Weil, 167 N. Y. 421; 27. Sullivan v. Dunham, 161 N. Y. 290; F. 1826. Sullivan v. Ringler, 59 App. Div. 184; 69 Supp. 38; aff'd 171 N. Y. 693; F. 579. Sutherland v. Albany Cold Storage & Warehouse Co., 171 N. Y. 269; F. 1212. Swift V. American Ex. Nat. Bk., 103 App. Div. 610; 93 Supp. 1148 (memo.); aff'd (no opinion) 186 N. Y. 621; F. 2154. Talbot V. Laubheim, 188 N. Y. 421; F. 51. Taylor v. Enoch Morgan's Sons, 124 N. Y. 184; F. 126. Taylor v. Wright, 51 App. Div. 97; 64 Supp. 344; 1826. Tenement House Department v. Moeschen, 179 N. Y. 325; F. 1163. Tenement House Department v. Moeschen, 179 N. Y. 325; F. 1606. Tepfer v. Ideal Gas & Electric Fix- ture Co., 58 Misc. 396; 109 Supp. 664; 2090. Thalmann v. Capron Knitting Co., 182 N. Y. 525; aff'g, without opin- ion, 100 App. Div. 247; 91 Supp. 520; F. 781. Thebaud v. Great Western Ins. Co., 155 N. Y. 516; aff'g 84 Hun, 1; 31 Supp. 1084; F. 696. Third National Bank v. EUiott, 42 Hun, 121; aff'd 114 N. Y. 622 2183. Thomas v. Thomas, 9 App. Div. 487, 41 Supp. 276; F. 1085. Thomas v. Thomas, 131 N. Y. 205 F. 37. Thompson v. Western Union Tel. Co., 40 Misc. 443; 82 Supp. 675; 1163. XXXVIU Table of Cases Vol. II begins at Page 1001 Thomson v. Seaman, 67 App. Div. 58; 73 Supp. 488; F. 408. Thorn V. Sutherland, 131 N. Y. 622; F. 918. Thornton v. Aubum, 187 N. Y. 549; F. 1526. Thousand Island Park Assn. v. Tucker; 173 N. Y. 203; 1826. Thurber v. Commercial Travelers' Mut. Ace. Assn., 51 App. Div. 608; 64 Supp. 174; F. 661. Tindle v. Birkett, 171 N. Y. 520; F. 1002. Todd v. Gamble, 148 N. Y. 382; F. 61. Todd V. Gamble, 148 N. Y. 382; 65. Tompkins v. Lamb, 121 App. Div. 366; 106 Supp. 6; 76. Tonawanda v. Price, 171 N. Y. 415; F. 18. Tonawanda v. Price, 171 N. Y. 415; F. 1876. Traders' Nat. Bk. v. Parker, 130 N. Y. 415; 169. Tradesmen's National Bank v. U. S. Trust Co., 49 App. Div. 362; 63 Supp. 526; 2098. Travelers' Ins. Co. v. Stiles, 82 App. Div. 441; 81 Supp. 664; F. 495. Treadwell v. Clark, 190 N. Y. 51; F. 1222. Treffinger v. Groh's Sons, 112 App. Div. 250; 98 Supp. 291; aff'd, with- out opinion, 185 N. Y. 610; F. 140. Tremblay v. The Harmony Mills, 171 N. Y. ,598; F. 427. Trenton Mutual Life, etc., Assn. v. Perrine, 3 Zab. (N. J.) 402; F. 946. Trenton Potteries Company v. Title Guarantee & Trust Co., 50 App. Div. 490; 64 Supp. 116; F. 744. Triggs V. The Sun Printing & Pub. Assn., 179 N. Y. 144; F. 932. Trust Co. of Arherina v. State Safe Dep. Co., 187 N. Y. 178; F. 900. Trust Co. of N. Y. v. Universal Talk- ing Machine Co., 120 App. Div. 392; 105 Supp. 217; 8. Tying v. American Surety Co., 174 N. Y. 166; F. 273. Uggla v. Brokaw, 117 App. Div. 586; 102 Supp. 857; F. 617. Ulster Coimty Savings Institution v. Young, 161 N. Y. 23; F. 462. Ulster County Sav. Inst. v. Young, 161 N. Y. 23, at p. 33; 2161. Underbill v. Keims, 170 N. Y. 587; aff'g, without opinion, 54 App. Div. 214; 66 Supp. 573; F. 1876. Underbill v. Philips, 10 Hun, 591; 163. Underwood v. Grenwich Ins. Co., 161 N. Y. 413; 693. Union Trust Co. v. Sickles, 125 App. Div. 105; 109 Supp. 262; 1649. United Press Co. v. Abell Co., 73 App. Div. 240; 76 Supp. 692; 29. United States Aluminum Printing Plate Co. V. Stecher Lithographic Company, 110 App. Div. 887; 96 Supp. 1149; F. 776. Urbansky v. Shirmer, 111 App. Div. 50; 97 Supp. 577; F. 1767. Utica City Nat. Bk. v. Tallman, 63 App. Div. 480; 71 N. Y. Supp. 861; aff'd 172 N. Y. 642; 169. Utica National Brewing Co., Matter of, 154 N. Y. 268; 2166. Valentine v. Long Island R. Co., 187 N. Y. 121; F. 2105. Van Allen v. Shulenburgh, 58 Misc. 136; 110 Supp. 464; 2170. Van Heusen v. Argenteau, 124 App. Div. 776; 109 Supp. 238; 2090. Table of Cases XXXIX Vol. II Begins at Page 1001 Van Loan v. City of New York, 105 App. Div. 572; 94 Supp. 221; aff'g 45 Misc. 482; 92 Supp. 734; F. 2125. Vannoh v. Sixty-seventh Street Ate- lier Bldg., 55 Misc. 222; 105 Supp. 155; 2172. Van Norden Trust Co. v. O'Donohue, 122 App. Div. 51; 106 Supp. 948; 1797. Van Publishing Co. v. Westinghouse, Church, Kerr & Co., 72 App. Div. 121; 76 Supp. 340; 1002. Van Siclen v. Jamaica Elec. Lt. Co., 45 App. Div. 1; 61 Supp. 210; aff'd, on opinion below, 168 K. Y. 650; F. 1829. Van Wyck v. Allen, 69 N. Y. 61; 76. Vilas Nat. Bk. v. Rockland Lake Trap Rock Co., 191 N. Y. 517; F. 560. Vogel V. Banks, 60 App. Div. 459; 70 Supp. 1010; F. 904. Vogt V. Vogt, 119 App. Div. 518; 104 Supp. 164; F. 1151. Voisin V. Providence-Washington Ins. Co., 51 App. Div. 553; 65 Supp. 333; F. 700. W Waeber v. Talbot, 167 N. Y. 48; 76. Wagener v. Fidelity & Casualty Co., 188 N. Y. 640; F. 655. Wagner v. Soberer, 89 App. Div. 202; 85 Supp. 894; 2166. Wahrman v. Board of Education, 187 N. Y. 331;F. 354. Waite V. Abom, 60 App. Div. 521; 69 Supp. 967; 1390. Walden v. Jamestown, 178 N. Y. 213; aff'g 79 App. Div. 433; 80 Supp. 65; F. 345. Walden v. Jamestown, 178 N. Y. 213; 347, Waldorf Astoria Segar Co. v. Salo- mon, 184 N. Y. 584; aff'g, without opinion, 109 App. Div. 65; 95 Supp. 1053; F. 1553. Wallach v. Slater, 103 Supp. 225; 117. Waller v. Degnon Contracting Co., 120 App. Div. 389; 105 Supp. 203; 2211. Walsh V. Lispenard Realty Co., 55 Misc. 400; 106 Supp. 570; 2103. Walsh V. N. Y. & Kentucky Co., 88 App. Div. 477; 85 Supp. 83; 117. Walsh v. N. Y. & Queens County Raihoad Co., 80 App. Div. 316; F. 323. Walsh V. Richmond Light & R. Co., 124 App. Div. 533; 436. Walton V. Collins, 167 N. Y. 538; aff'g, without opinion, 38 App. Div. 624; 56 Supp. 1045; F. 16. Walton V. Collins, 167 N. Y. 538; aff'g, without opinion, 38 App. Div. 624; 56 Supp. 1045; F. 2047. Wamsley v. Atlas Steamship Co., 168 N. Y. 533; F. 1203. Wander v. Wander, HI App. Div. 189; 97 Supp. 586; F. 22. Wander v. Wander, 111 App. Div. 189; 97 Supp. 586; F. 870. Wander v. Wander, 111 App. Div. 189; 97 Supp. 586; 871. Ward V. Petrie, 157 N. Y. 301; 2083. Warner v. Southall, 165 N. Y. 496; aff'g 31 App. Div. 375; 52 Supp. 320; F. 976. Warren v. Parkhurst, 186 N. Y. 45; F. 1854. Warth V. Kastriner, 120 App. Div. 480; 104 Supp. 1056; F. 2162. Washington v. Thomas, 103 App. Div. 423; 92 Supp. 994; F. 793. Washington Trust Co. v. Morse Iron Works, 187 N. Y. 307; F. 1898. Wass V. Stephens, 128 N. Y. 123; F. 1112. xl Table op Cases Vol. II Begins at Page 1001 Watson V. Chilberg, 192 N. Y. (memo.); aff'g, without opinion, 116 App. Div. 914 (no opinion); F. 176. Watts V. Equitable Life Assurance Society, 55 Misc. 454; 105 Supp. 363; 4. Wazenski v. N. Y. C, etc., R. Co., 180 N. Y. 466; F. 296. Weed V. Burt, 78 N. Y. 192; F. 117. Weil V. Bermel, 23 App. Div. 624; 48 Supp. 1118; F. 20. Weil V. Bermel, 23 App. Div. 624; 48 Supp. 1118; F. 40. Weiland v. Forgotston, 44 App. Div. 54; 60 Supp. 483; 927. Welle v. Celluloid Co., 175 N. Y. 401; F. 364. Wells V. Monihan, 129 N. Y. 161; 2161. Wells v. Simpson, 29 Misc. 665; 61 Supp. 56; 163. Weniger v. Fourteenth Street Store, 191 N. Y. 423; F. 185. Wenk V. City of New York, 171 N. Y. 607; F. 20. Wenk V. City of New York, 171 N. Y, 607; 1354. Werbelovsky v. Michael, 106 App. Div. 138; 832. Westervelt v. Phelps, 171 N. Y. 212; F. 1280. Weston V. Commercial Adv. Assn., 184 N. Y. 479; F. 23. Weston v. Commercial Adv. Assn., 184 N. Y. 479; F. 950. Wheeler v. Lawson, 103 N. Y. 40; F. 1337. Wheeler v. Norton, 92 App. Div. 368; 86 Supp. 1095; F. 1828. Whitaker v. Stafford, 188 Jf. Y. 637; F. 1403. White v. Benjamin, 150 N. Y. 258; P. 1307. White v. Miller, 71 N. Y. 118; 76, 79, Whitman v. Holmes Pub. Co., 33 Misc. 47; 68 Supp. 167; 4. Whitman v. New York, 85 App. Div. 468; 83 Supp. 465; F. 1744. Whitney v. Cammann, 137 N. Y. 342; F. 1476. Wilks V. Grfficen, 120 App. Div. 311; 105 Supp. 246; 2211. Williams v. Conners, 53 App. Div. 599; 66 Supp. 11; 4, 119. WiUiams v. Fire Assn. of Phila., 119 App. Div. 573; 104 Supp. 100; 677. Williams v. Hatch, 192 N. Y. (memo^); aff'g, without opinion, 117 App. Div. 919; F. 1698. Wilhs v. Green, 5 Hill, 233; 164. Willis V. McKinnon, 178 N. Y. 451; F. 576. Winter v. Winter, 191 N. Y. 462; F. 878. Witmer v. Buffalo & Niagara Falls E. L. & P. Co., 187 N. Y. 572; F, 411. Wittleder v. Citizens' Electric Il- luminating Co., 50 App. Div. 478; 64 Supp. 114; F. 413. Wolfskehl V. W. U. Tel. Co., 46 Hun, 542; 1262. Wood V. Baker, 43 Misc. 310; 88 Supp. 854; 871. Wood V. Bodine, 32 Hun, 354; 1328. Wood V. Husted, 83 App. Div. 174; 82 Supp. 631; F. 484. Wood V. Snider, 187 N. Y. 28; F. 1147. Wood V. Wood, 16 N. J. L. 428; 164. Wood & Selick v. Ball, 190 N. Y. 215; 19. Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485; F. 797. Wright v. Chapin, 74 Hun, 521; 26 Supp. 825; 807. Wright v. Deering, 2 Misc. 296; 21 Supp, 929; 163, Table of Cases xli Vol. II Begins at Page 1001 Wright V. Hart, 182 N. Y. 330; 2091. Wright & Co. V. Faulkner, 52 Misc. 100; 101 Supp. 807; F. 19. Yale V. Curtiss, 151 N. Y. 598; rev'g 71 Hun, 436; 24 Supp. 981; 893. Yates V. Lansing, 9 Johns. 396, 437; 807. Young V. Eames, 78 App. Div. 229; 79 Supp. 1068; aff'd 181 N. Y. 542; F. 2192. Z Ziegler v. Garvin, 84 App. Div. 281; 82 Svpp. 769; 2209. Zlotnick V. Greenfield, 90 Supp. 1086; 172. BMBBURY'S FORMS OT PLEADING CHAPTER I FORMAL PARTS OF PLEADINGS > PAGE I. In General 1 II. Complaint 3 III. Answer, Including Counterclaim 5 IV. Reply 6 V. Demurrer V VI. Amended and Supplemental Pleadings 7 FORMS NO. PAGE 1. Formal parts of complaint , '. 3 2. Incorporating allegations in another cause of action without repeti- tion thereof 4 3. Allegations joining party united in interest as a defendant when he re- fuses to become a plaintiff 4 4. Answer. Formal parts 6 5. Defendant sued by wrong name 5 6. Answer of infant by guardian ad litem 6 7. Answer of lunatic, etc., by committee 6 8. Reply 6 9. Reply to new matter served by direction of the court 7 10. Demurrer to complaint 7 11. Amended pleading 7 12. Supplemental complaint ■ 8 I. In General ^ All pleadings must be in the English language, in words at ^ See Chapter II, Designation and Description op Parties to an Ac- tion. ^ Pleadings are not to be construed strictly against the pleader, but aver- ments which sufficiently point out the nature of the pleader's claim are sufB- oient, if under them he would be entitled to give the necessary evidence to establish his cause of action. Naylor v. N. Y. Central, etc., R. Co., 119 Vol. I-l (1) Bradbury's Forms of Pleading In General length and not abbreviated except such abbreviations as are commonly used in the English language and except such techni- cal abbreviations of writs and process as are now and have been heretofore commonly used; they must be legibly written or printed in black characters upon durable paper of good quality and if typewritten such paper shall be of linen quality equal in. weight to sixteen pounds to the double cap ream. Code Civ. Pro. §§ 22, 796; Rule 19, Gen. Rules of Prac. Numerals may be expressed in Arabic figures or Roman numerals. Code Civ. Pro. § 22. Folioing.^ Each pleading must be folioed if it contains more than two folios. But this does not include the verification. German Am. Bk. v. Champlin, 11 Civ. Pro. R. 452. This as well as all other requirements in Rule 19 is waived unless the pleading as to which the rule is violated is returned within twenty-four hours after it is received. But the waiver does not apply to the clerks of the courts and they have no power to waive the rule. However, the filing of a paper which is not folioed is an irregu- larity merely. N. Y. Bap. Mission Soc. v. Tabernacle Church, 9 App. Div. 527; 41 Supp. 720; and relief under Code Civ. Pro. §§ 721-723, may be granted to a party who has caused to be filed a judgment not folioed. N. Y. Bap. Mission Soc. v. Taber- nacle Church, 10 App. Div. 288; 41 Supp. 976. An affidavit and order extending the time to answer may be returned if not fo- lioed, even though such acts put the defendant in default. Silleck V. Dahut, 35 Misc. 134; 71 Supp. 316. Denying allegations between folioes is not permitted in an answer. Bajdis v. Stimson, 110 N. Y. 621, and cases cited, Vol. I, Bralbury's Lansing, p. 293. Indorsvig.- Attorney's name and address.'* App. Div. 24; 103 Supp. 966; Hunton v. Village of Peekskill, 119 App. Div. 500; 104 Supp. 220; Rochester Ry. Co. v. Robinson, 133 N. Y. 242, 246. * See title Folioino, Vol. I, Bradbury's Lansing, p. 292. ' See Vol. I, Bradbury's Lansing, p. 295. ' See Vol. I, Bradbury's Lansing, p. 295. Formal Parts of Pleadings Complaint II. Complaint Form No. 1 Formal Parts of Oomplaist Supreme Court,^ county of [Names of all the plaintiffs] ,^ ^Plaintiffs, against [Names of all the defendants],^ Defendants. A. B., the above named plaintiff, by C. D., his attorney, com- plaining of the defendant alleges: I. II. Etc. Wherefore, plaintiff demands judgment against the defend- ant for the sum of dollars, with interest from the day of , 19 , with costs.^ CD. Attorney for the plaintiff. [Office and post office qddress.] ' [Verification.] * 1 Code Civ. Pro. § 481. ^ Code Civ. Pro. § 481. A complaint is not demurrable because it demands equitable relief when only legal relief is justified on the facts set forth, Parkes V. Pullman & Co., 36 App. Div. 208; 56 Supp. 734; Squiers v. Thompson, 73 App. Div. 552; 76 Supp. 734; aff'd 172 N. Y. 652. In all cases where a demand for equitable relief is contained in the forms in this work the demand is given in full. The above demand is for actions at law. A motion to amend the prayer for relief is a motion to amend the pleading. McVey v. Security Mut. Life Ins. Co., 118 App. Div. 466; 103 Supp. 1056. To recover treble damages under Code Civ. Pro. § 1669 they must be de- manded in the complaint. Salmon v. Blasier Mfg. Co., 53 Misc. 36; 103 Supp. 1030; People v. Bennett, 56 Misc. 160. A complaint is not demur- rable nor should it be dismissed at the trial because the plaintiff has de- * Code Civ. Pro. § 520. A printed signature suffices. Barnard v. Heydick, 2 Abb. Pr., N. S. 47; Mut. Life Ins. Co. v. Ross, 10 Abb. Pr. 260. ■* See Vol. I, Bradbury's Lansing, p. 525. Bradbury's Forms of Pleading Complaint Form No. 2 ^Incorporating: Allegations in Another Cause of Action Without Repeti- tion Thereof FOR A SECOND CAUSE OF ACTION I. The plaintiff hereby repeats, reiterates and alleges each and all the allegations contained in the paragraph of this complaint marked "I," under the first cause of action with the same force and effect as if here re-alleged in fuU.^ Form No. 3 Allegation Joining Party United in Interest as a Defendant When He Refuses to Become a Plaintiff ^ I. The defendant A. B. is jointly interested with the plaintiff in this action, as [describe interest], but he has refused to join as a party plaintiff and is therefore made a defendant. manded the wrong relief or more relief than he is entitled to receive, if the facts pleaded show that he is entitled to any relief, either legal or equitable. Lester v. Seilliere, 50 App. Div. 239; 63 Supp. 748; Hotel Register Co. v. Os- borne, 84 App. Div. 307; 82 Supp. 609; Hackett v. Equitable Life Assur. Soc, 50 App. Div. 266; 63 Supp. 1092; Williams v. Conners, 53 App. Div. 699; 66 Supp. 11; Ashley v. Lehmann, 54 App. Div. 45; 66 Supp. 299; Bryant v. Allen, 54 App. Div. 500; 67 Supp. 89; appeal dismissed, 166 N. Y. 637; Chaurant v. ' Maillard, 56 App. Div. 11; 67 Supp. 345; Gee v. Pendas, 66 App. Div. 566; 73 Supp. 247; Black v. Vanderbilt, 70 App. Div. 16; 74 Supp. 1098; Redpath V. Redpath, 75 App. Div. 95; 77 Supp. 668; Gillespie v. Montgomery, 93 App. Div. 403; 87 Supp. 701; Whitman v. Holmes Pub. Co., 33 Misc. 47; 68 Supp. 167. Nor because alternative relief is asked. Hasberg v. Moses, 81 App. Div. 199; 80 Supp. 867. But a complaint framed purely as an equitable one, with a demand for equitable relief, when the facts disclose purely a cause of action at law, will be held insufficient on demurrer. Cozzens v. American Gen. Eng. Co., 55 Misc. 393; 106 Supp. 548; Storr v. Central Bedding Co., 55 Misc. 398; 106 Supp. 546; Black V. Vanderbilt, 70 App. Div. 16; 74 Supp. 1095; Doyle v. Delaney, 112 App. Div. S56; 98 Supp. 468; Watts v. Equitable Life Assurance Society, 55 Misc. 454; 105 Supp. 363. ' See Marietta v. Cleveland, Cincinnati, etc., R. Co., 52 Misc. 16; 100 Supp 1027. * Code Civ. Pro. § 448. Formal Parts of Pleadings Answer, Including Counterclaim III. Answer, Including Counterclaim^ Form No. 4 Answer, Fonnal Parts ^ [Name of court.] [Names of parties.] ^ The defendant, E. F., by his attorney, G. H., answering (separately) the complaint of the plaintiff herein : I. Admits, etc. II. Denies, etc. • III. For a separate and complete [partial] ^ defense to the cause of action set forth in the complaint the defendant alleges : IV. For a further defense and by way of counterclaim the defendant alleges : |||>, Wherefore the defendant demands judgment that the com- plaint be dismissed, with costs [and that the defendant have judgment against the plaintiff for, etc.]. [Signature and office address of attorney.] * [Verification.] * Form No. 5 Defendant Sued by Wrong Name [Title, etc.] The defendant, A. B., sued herein as C. D.', answering, etc. While 1 Code Civ. Pro. 1 501. 2 Id. § 500. ^^ ' There is no specific requirement in the 9/^^^ Rules relating to the names of the parties in the title to the answer. While the names of all the parties must a,ppear in the title to the complaint the general* practice in the case of answers is to include one plaintiff and one defendant when there are a con- siderable number of either with the words et al., or, and others, following. * Code Civ. Pro. § 508. ' * Code Civ. Pro. § 520. " See Vol. I, Bradbury's Lansing, p. 525. Bradbury's Forms of Pleading Reply- Form No. 6 Answer of Infant by Guardian Ad Litem ' [Title, etc.] The defendant, A. B., an infant under the age of twenty-one years, by his guardian ad litem, C. D., answering, etc. Form No. 7 Answer of Lunatic, etc., by Committee [Title, etc.] The defendant, A. B., a lunatic [or other incompetent], by C. D., his committee, appointed pursuant to an order entered in "the office of the clerk of the county of on the day of , 19 [or state other mode of appointment], answering the complaint, etc. IV. Reply Form No. 8 Eeply [Title, etc.] The plaintiff by way of reply to the counterclaim contained in the answer of the defendant herein : I. Denies each and every allegation contained in said counter- claim. or I. Denies [xpecific allegations]. II. Denies that the plaintiff has any knowledge or informa- tion sufficient to form a belief as to any of the allegations con- tained in said counterclaim. III. For a further and complete [partial] defense to the said counterclaim the plaintiff denies, etc.: [Signature of attorney and verification.] ^ ' For proceedings upon appointing guardian ad litem for plaintiff or de- fendant see Vol. I, Bradbury's Lansing, p. 45. ^ See notes to Form No. 1, ante. Formal Parts of Pleadings Amended and Supplemental Pleadings Form No. 9 Reply to New Matter Served by Direction of the Court ^ [Title, etc.] The plaintiff replying to the new matter set forth in the answer of the defendant herein, pursuant to an order of this court en- tered in the office of the clerk of the county of on the day of , 19 , denies, etc.: V. Demurrer Form No. 10 Demurrer to Complaint [Title, etc.] The defendant, C. D., hereby demurs to the complaint herein [to the alleged cause of action marked "First" in the complaint herein], on the ground [state grounds of demurrer; see forms, post]. [Signature of attorney.] - VI. Amended * and Supplemental Pleadings Form No. 11 Amended Pleading * [Title, etc.] The plaintiff by this amended complaint, complaining of the defendant alleges, etc. [Proceed exactly as in original pleading.] 1 Code Civ. Pro. § 516. ^A demurrer is usually signed by the written signature of the attorney, although there does not seem to be any positive rule requiring it. Of course it is not verified. ^ See title Amendments, Vol. I, Bradbury's Lansing, p. 207, for general principles. An amended complaint or answer completely takes the rlace of the pleading that preceded it for the purpose of the issues in the action. While an allegation in the complaint or answer served will usually be deemed conclusive on the party making it, the same rule is not applied to a pleading which has been superseded by an amended pleading. In that case the al- legation contained in the former pleading may be used as an admission against the party making it, but it is not conclusive and may be rebutted. ■* A referee has power to allow an amendment of the pleadings at the trial. General Electric Co. v. National Contracting Co., 178 N. Y. 369; Nat. Bk. of Deposit V. Rogers, 166 N. Y. 380; Smith v. Rathbun, 75 N. Y. 122; Smith v. Wetmore, 167 N. Y. 234. Bradbury's Forms of Pleading Amended and Supplemental Pleadings Form No. 12 Supplemental Complaint ' [Title, etc.] The plaintiff by this supplemental complaint served pursuant to an ord(U' of this court duly entered in the office of the clerk of the county of , on the day of > 19 j alleges and respectfully shows to the court : [Signature and address of attorney and I'erification.] A complaint may be amended on appeal to conform to the proof in the case, which proof was admitted without objection. Smith v. Wetmore, 167 N. Y. 234. In an action at law to recover for the buyer's breach of a contract to pur- chase pig iron the court sustained an amendment of the complaint at the trial before a referee to confoim it to the proof which changed the words "market price" to the words "contract price," it being declared that the former words were inserted in the contract in suit by mistake of both parties. Nichols r. Scranton Steel Co., 1.37 N. Y. 471. It was strenuously objected in the case above cited that the amendment changed the action from one at law to a suit in equity for the icformation of a written instrument, but this objection was overruled inasmuch as it clearly appeared that there had been a mutual mistake. * A supplemental pleading, as the name implies, does not supersede the for- mer pleading, but is to be read with it. Such a pleading is as a rule, which is almost universal,' only a'lowed to plead matters which have occurred since the beginning of the action. Calm v. Sullivan, 117 App. Div. 2.3.">; 101 Supp. 1060; South Shore Traction Co. v. Town of Brookhaven, 53 Misc. 392; 102 Supp. 1074; Trust Co. of N. Y. v. Universal Talking Machine Co., 120 App. Div. 392; 105 Supp. 217. A supplemental pleading is used for the purpose of setting up facts occurring after the action was begun or as to which the pleader was ignorant when the original pleading was made. Code Civ. Pro. § 544; Horowitz v. Goodman, 112 App. Div. 13; 98 Supp. 53. A supplemental answer cannot be served as of course as an amended plead- ing, but only on leave of the court. Galm v. Sullivan, 117 App. Div. 235; 101 Supp. 1060. A defense of settlement with the plaintiff and general release made after the answer was interposed can only be set up by way of supplemental answer upon permission of the court, not by an amended answer served as of course. Galm V. SuUivan, 117 App. Div. 235, 101 Supp. 1060. But the plaintiff in an action for divorce will not be allowed to serve a sup- plemental complaint setting up additional acts alleged to have been com- mitted after the action had been commenced. Faas v. Faas, 57 App. Div. 611; 68 Supp. 509; Campbell v. Campbell, 69 App. Div. 435; 74 Supp. 979. Designation axd Description op Parties List of Forms CHAPTER II DESIGNATION AND DESCRIPTION OF PARTIES TO AN ACTION PAGE I. Plaintiffs 11 II. Defendants 27 III. United States Courts 43 FORMS Part I. Plaintiffs NO. PAGE 13. Allegation that plaintiffs sue as partners and have filed a trade name certificate 11 14. Allegation that the plaintiff sues as receiver of an insurance corporation 12 15. Allegation that the plaintiff sues as legatee 13 16. Allegation in complaint that the plaintiff sues as administratrix 14 17. Allegation in complaint that the plaintiff sues as administrator with the will annexed 14 18. Allegation in complaint that the plaintiff sues as trustee under mar- riage settlement 15 19. Complaint alleging that plaintiff is capable of acting as trustee 15 20. Allegation that the plaintiff is president of a voluntary association. . . 10 21. Action by president of voluntary association composed of more than seven members; allegation as to capacity in which plaintiff sues .... 10 22. Allegation in complaint that plaintiff sues as trustee in bankruptcy ... 17 23. Recital in complaint that plaintiffs sue as assignees. Life Insurance policy '. 17 24. Allegation in complaint that the plaintiffs are a municipal corporation 18 25. Allegation that the plaintiff is a domestic municipal corporation 18 26. Allegation that the plaintiff is an incorporated village 18 27. Allegations in complaint that the plaintiff is a foreign corporation with a certificate to do business in this state 19 28. Allegation that plaintiff is a foreign corporation and has complied with the requirements for doing business in this state 19 29. Allegation that the plaintiff sues as a taxpayer 20 30. Allegation that the plaintiff is a taxpayer of a town 20 31. Allegation that the plaintiff is a taxpayer of New York City 21 32. Allegation that the plaintiff is a banking corporation 21 33. Allegation in complaint that the plaintiff sues by a guardian ad litem . . 21 34. Allegation in complaint that the plaintiff sues by a guardian ad litem . . 22 35. Recital in complaint that the plaintiff sues as an infant by a guardian ad litem .■ 22 36. Allegation in complaint that plaintiff sues as general guardian 22 37. Allegation in complaint that the action is a representative one 23 38. Representative plaintiff suing on behalf of himself and all others in- terested in a gratuity fund 23 10 Bradbury's Forms of PleadhsTg List of Forms NO. PAGE 39. Plaintiff suing for libel and being himself one of a class libelled 23 40. Allegation in complaint that the plaintiff sues as receiver in supple- mentary proceedings 24 41. Allegation that the plaintiff sues as receiver in foreclosure 25 42. Al egation in complaint that plaintiffs are entitled to sue as taxpayers. 26 43. Allegation that, plaintiffs own specified real property 26 Part II. Dependants 48. Name of defendant unknown 27 49. Christian name of defendant unknown 28 50. Allegations that the defendants are copartners 28 51. Allegation in complaint that defendant is sued as executor 29 52. Part of complaint showing one of the defendants is sued as executor. . 29 53. Allegation in complaint that defendant is sued as administrator de bonis non 30 54. Allegations that defendant is sued as administrator de bonis non; action to set aside partition of real property as fraudulent and unfair 30 55. Allegation that a defendant is sued as trustee under a declaration of trust 32 56. Allegation in complaint that the defendants are sued as physicians. . . 33 57. Allegation in complaint that the defendant is sued as physician .... 34 58. Allegation in complaint that the defendant is sued as an attorney .... 34 59. Allegation in complaint that defendant is plaintiff's attorney 34 60. Allegation that a defendant is sued as editor of a newspaper, its pub- lishing company also being sued 35 61. Allegation in complaint. Defendant incorporated under "pawn- brokers'' statute 35 62. Allegation in complaint that defendant is a foreign corporation doing business in this state and owning a baseball club 35 63. Allegation in complaint that defendant is a foreign corporation now doing business in this state 36 64. Allegation in complaint that the defendant is a railroad corporation, with power to lay tracks , 36 65. Allegation in complaint that defendant is a religious corporation 36 66. Allegation in complaint that the defendant, a fraternal order, is a do- mestic corporation 37 67. Allegation in complaint that a defendant is sued as a foreign fraternal association 37 68. Allegation in complaint that the defendant is sued as president of a joint stock company 37 69. Allegation that the defendant is sued as treasurer of a joint stock asso- ciation 3g 70. Allegation in complaint that the defendant is a banking association . . 38 71. Allegation that defendant is sued as an assignee for the benefit of creditors, such assignment, however, being sought to be set aside . . 38 Designation and Description of Parties 11 Plaintiffs NO. PAGE 72. Allegation in complaint that a defendant is sued as trustee in bank- ruptcy 39 73. Allegation in complaint that defendant is sued as the board of educa- tion of a city 39 74. Allegation in complaint that defendants are certain town officers .... 40 75. Allegations that the defendants are a town, and officers of that town and the county in which it is situated 40 76. Allegation in complaint that defendant is sued as commissioner of high- ways 40 77. Part of complaint. Allegation as to a county being municipal corpora- tion 41 78. Allegation that defendant is a municipal corporation 41 79. Allegation in complaint that the defendant is a municipal corporation in charge of the streets 41 80. Allegation that defendants own specified real property 42 81. Allegation as to execution of agreement by trustee to s 11 land 42 Part III. United States Courts 82. Allegations in complaint to show the jurisdiction of the I'nited States Circuit Court 43 83. Allegation in complaint in United States Supreme Court, to show jur- isdiction in action by state against foreign corporation 44 84. Allegation in bill of complaint in United States Circuit Court to show jurisdiction on the ground of diverse citizenship 45 I. Plaintiffs Form No. 13 Allegation That Plaintifis Sue as Partners and Have Filed a Trade Name Certificate ^ Supreme Court, County. A. B., C. D. and E. F., trading under the name of The National Shirt Waist Company, Plaintiffs, against The National Shirt Waist Com- pany, G. H. and J. J., Defendants. The plaintiffs complaining of the defendants allege (re- spectfully show to the court) ; 1 From Steinfeld v. Natl. Shirt Waist Co., 99 App. Div. 286; 90 Supp. 964; in which the plaintiff obtained an injunction. 12 Bradbury's Forms of Pleading • — _— — X — Plaintiffs I. That since the day of , 19 , plaintiffs were and now are copartners in business together in the county of New York, trading under the name and style of The N. S. W. Co. II. That in conformity with the statute in such cases made and provided, being Chapter 216, of the Laws of 1900, the plain- tiffs duly executed and acknowledged a certificate as by said statute required, and on or about the day of , 19 , caused said certificate to be duly filed in the office of the clerk of the county of New York, being the county wherein plaintiffs then and thereafter intended to conduct and transact such business, and to which said certificate plaintiffs beg leave to refer, and on the trial of this action will produce in place of setting the same forth at length. Form No. 14 Allegation That the PlaintiS Sues as Receiver of an Insurance Corporation ' The plaintiff further alleges that heretofore and on or about the day of , 19 , by an order of the Supreme Court of the State of New York, duly entered in the office of the clerk of the county of , on said day of , 19 , this plaintiff was appointed the temporary receiver of the said, the M. Fire Ins. Co. of New York; and that thereafter * and on or about the day of , 19 , this* plain- tiff was duly appointed as permanent receiver of the said. The M. Fire Ins. Co. of New York, by a final judgment of the Supreme Court, which said judgment was entered in the office of the clerk of county, on the day of , 19 , and that your petitioner duly qualified immediately on the entry of the order appointing him temporary receiver as aforesaid, as required by the terms of the order appointing him, and acted as such up to the time of his appointment as permanent receiver herein as aforesaid; and that pursuant to said final judgment, 1 From Kelsey r. Bank of Mansfield, 85 App. Div. 334; S3 Supp. 281; in Afhich an attachment was upheld. Designation and Description of Parties 13 Plaintiffs said plaintiff duly qualified as said permanent receiver, and now is and ever since has been acting as such in pursuance and in dis- charge of the duties imposed upon him. Form No. 15 Allegation. That the Plaintiff Sues as Legatee i I. That H. W., late of the town of , in the county of , and State of New York, died at said town on or about the day of , 19 , and that the said H. W. was at the time of his death a resident of said county. II. That the said H. W. left a last will and testament and a codicil thereto wherein and whereby he appointed one C. W. the exeuctor thereof; that on or about the day of , 19 , the said will and codicil were duly approved before and admitted to probate by the surrogate of the said county as a will of real and personal estate and letters testamentary thereupon were on said day and more than years since duly issued and granted by said surrogate to the said C. W. who then and there duly qualified as executor thereof. III. That the following is a copy of said last will and testament and the said codicil thereto, to wit: [Will is here set forth verba- tim.] IV. [Statement of the real property ovmed by H. W.] V. That in and by the second clause of said will the plaintiff, then Clarissa H. W., the daughter of the said H. W., was willed and bequeathed, amongst other things, the sum of dollars, to be paid to her years after the death of the said testator, the same to be paid out of his said farm upon which the said legacy then was and thereby became a charge and lien as by said will more fully appears and that the said bequest and legacy was not modifed or otherwise affected by the codicil to the said will. ^ From Conkling v. Weatherwax, 173 N. Y. 43, in which a judgment for the defendant was re-\-ersed and a new trial was granted. See Conkling v. Weather- wax, 90 App. Div. ^85. 14 Bradbury's Forms of Pleading Plaintiffs Form No. 16 Allegation in Complaint That the Plaintiff Sues as Administratrix* I. That heretofore and on the day of , 19 , by order of determination of the surrogate of the county of , dated on that day, the plaintiff was duly appointed ad- ministratrix of the goods, chattels and credits of G. J. L., de- ceased, and thereupon duly qualified and entered upon the dis- charge of her duties as such administratrix. II. That said J. G. L. died, leaving the plaintiff, his widow, and his mother, next of kin of said deceased. Form No. 17 Allegation in Complaint That the Plaintiff Sues as Administrator with the Will Annexed ^ I. That heretofore, E. W., late of the village of , county, departed this life, leaving his last will and testa- ment; which said last will and testament has been duly admitted to probate by the surrogate of county, who had jurisdic- tion for that purpose. By his said last will and testament, the said E. W. nominated and appointed one L. G., the executor thereof; but before the said last will and testament was admitted to probate as aforesaid, the said L. G. renounced in due form his right to act as executor of said will; whereupon, such proceed- ings were thereafter had before said surrogate, who had juris- diction for that purpose, that the plaintiff in this action was by our said surrogate duly appointed administrator with the will annexed, of said E. W., deceased, and after such appointment, as aforesaid, the said plaintiff accepted the said trust and duly qualified as such administrator and entered upon the duties thereof. 1 From Lateer v. Prudential Ins. Co., 64 App. Div. 423; 72 Supp. 235; in which the appeal was on a question of interpleader. ^ From Hazeltine v. Wood. This case, in which the plaintiff was successful, is not reported, but formed part of the case of Langford v. Broadhead, 138 N. Y. 60S (no opinion). Designation and Description of Parties 15 ^ \ . Plaintiffs Form No. 18 Allegation in Complaint That the Plaintifi Sues as Trustee under a Mar- riage Settlement ^ I. That heretofore and on or about the day of ,19 , in the city of New York, the said Maude A. C. and the defendant Mari A. C. intermarried and ever since have been and now are husband and wife. II. That heretofore and on the day of , 19 , said Maude A. C, Mari A. C. and the plaintiff, made and executed in writing a certain contract or agreement or articles of sepa- ration wherein and whereby the plaintiff was duly constituted the trustee of the said Maude A. C. A copy of said articles of separation is hereto annexed marked Exhibit A and made part hereof with the same force and effect as if herein fully and at large set forth. That in and by said articles of separation the defendant agreed to pay for and towards the better support and maintenance of his wife, the said Maude A. C, the sums following, viz : a weekly allowance of $ and rent of suitable prem- ises in addition thereto and % a year payable quarterly commencing the day of , 19 . That there- after it was mutually agreed between the parties to said agree- ment that a reasonable sum to be paid to said Maude A. C. for the rent of suitable premises as provided in said agreement was and should be the sum of $ a month. Form No. 19 Complaint, Alleging That Plaintiff Is Capable of Acting as Trustee ^ I. At the times hereinafter mentioned, the plaintiff was and now is a domestic corporation created, organized and existing > From Chamberlain v. Cuming, 65 App. Div. 474; 72 Supp. 928; in which the court directed that the wife be made a defendant unless she should elect to appear as plaintiff. 2 From Central Trust Co. v. West India Improvement Co., 169 N. Y. 314, in which a judgment in the defendant's favor was reversed. In Id., 109 App. Div. 517; 96 Supp. 519; the plaintiff was given leave to file and serve a supple- mental complaint. 16 Bradbury's Forms of Pleading Plaintiffs under the laws of the State of New York, and duly authorized to execute and perform the trusts provided and contained in the mortgage hereinafter set forth. Form No. 20 Allegation That the Plaintiff Is President of a Voluntary Association '' I. That the board of officers of the Regiment of the National Guard of the State of New York is a voluntary unin- corporated association, which was formed prior to the year 19 , of and among the officers of the said Regiment, and which has been continued to this date, and that it consists of more than seven members, and that the plaintiff is now the president and presiding officer thereof. Form No. 21 Action by President of Voluntary Association Composed of More Than Seven Members; Allegation as to Capacity in Which Plaintiff Sues ^ I. That she is the president of the S. C. L. S. & S. M. Assn., which is an unincorporated association consisting of seventy or more persons, the sole and only object of which is and has been to raise funds through the co-operation and united efforts of its members by way of membership fees, voluntary contributions, sociables, fairs, etc., for the purpose of erecting and maintaining in said county a soldiers' and sailors' monument. That said association was formed on or about the day of ' , 19 , by the election of Mrs. T. A. N. as president and this de- fendant, C. R., as secretary and treasurer and by the election of several vice presidents and other officers. That at the regular meeting of said association held on the day of , 19 , the offices of secretary and treasurer were separated and the defendant, C. R., was removed from the office of secretary 1 From "Walton v. Collins, 167 N. Y. 538; aff'g, without opinion, 38 App. Div. 624; 56 Supp. 1045; in which a judgment for the plaintiff was upheld. 2 From Ostrom v. Greene, 161 N. Y. 353; in which a judgment for the plain- tiff was affirmed. Designation and Description of Parties 17 Plaintiffs and Mrs. W. L. T. was elected as secretary in her place and stead and Mrs. T. has been acting as such secretary ever since said date and is still the secretary of said association. That Mrs. T. A. N. continued to be the president of said association and this defendant C. R. continued to be the treasurer thereof until tb,cy were removed from said offices respectively at a regular meeting of the association which was held on the day of , 19 . That at a regular meeting of said association held on the day of , 19 , due notice of an elec- tion having been given to all the members thereof, Mrs. J. M. 0., the plaintiff herein, was duly elected president of said association and Mrs. M. G. D. was dulj' elected as treasurer and both imme- diately entered upon and have continued to discharge the duties of said offices respectively. Form No. 22 Allegation in Complaint That Plaintiff Sues as Trustee in Bankruptcy ' I. That the plaintiff is a resident of this Slate and was on or about the day of , 19 , dul}' appointed tem- porary receiver in bankruptcy by the United States District Court for the Eastern District of New York, of tlic property of A. L. S. and L. R., copartners under the name of S. & R., who were on said date adjudicated bankrupts, and was thereafter, and on the day of , 19 , duly elected and appointed trustee of said bankrupts, and thereafter duly quali- fied as such trustee. Form No, 23 Recital in Complaint That Plaintifis Sue as Assignees. Life Insurance Policy ^ III. That on or about the day of , 19 , the ' From Davis v. City of New York, 75 App. Div. 518; 78 Supp. 330; in which a judgment sustaining a demurrer was reversed. ' From Lane v. Equitable Life Ass. Soc, 102 App. Div. 470; 92 Supp. 1131; which was before the court on a question of interpleader. Vol. 1—2 18 Bradbury's Forms of Pleading Plaintiffs said assured G. W. K., did under his hand and seal, duly make, execute, acknowledge and deliver a certain instrument or assign- ment in writing whereby, for a valuable consideration, he duly assigned all his right, title and interest in said policy No. and all the money which may be payable under the same to plaintiffs L. L., S. H., W. H. K., M. K., and L. W. and to one J. S. K., a true copy of which said instrument or assignment is hereto annexed and marked "Exhibit A" and is hereby made a part of this complaint; and that said written assignment so made as aforesaid was made with the consent of the defendant, the E. L. A. Society of the United States, in aU respects as required by the terms and conditions of said policy. Form No. 24 Allegation in Complaint That the Plaintifis Are a Municipal Corporation ' I. That the plaintiffs are and at all the times hereinafter mentioned were a municipal corporation organized and exist- ing under their ancient charters and the laws of the State of New York. Form No. 25 Allegation That the Plaintiff Is a Domestic Municipal Corporation ^ I. That the plaintiff herein was at all the times hereinafter mentioned and now is a domestic municipal corporation. Form No. 26 Allegation That the Plaintiff Is an Incorporated Village ^ I. That the above named plaintiff is and at all the times hereinafter mentioned was a domestic corporation duly organ- 1 From Mayor, etc., of New York v. Harlem Bridge, etc., Co., 186 N. Y. 304, in which the plaintiff was given judgment. 2 From City of New York v. Holmes, 104 App. Div. 630; 93 Supp. 1123; aff'd without opinion, 184 N. Y. 599. ' From Village of Tonawanda v. Price, 171 N. Y. 415, in which a judgment for the defendant was reversed. Designation and Description of Parties 19 Plaintiffs ized and existing under and by virtue of the general acts for the incorporation of villages passed in the years 1870 and 1897, and situated within the couLty of , New York. Form No. 27 Allegations in Complaint That the Plaintiff Is a Foreign Corporation with a Certificate to Do Business in This State ^ I. This plaintiff is a foreign corporation organized under the laws of the State of Illinois, having its principal place of business in the city of , State of Illinois, and also having in the county of a place of business, and being engaged there in the transaction of its business of catching, buying, selling and dealing in fish, etc., and other fresh and salt water food products, and the manufacture of and dealing in fish products. This plain- tiff has procured from the Secretary of State, a certificate that it has complied with all the requirements of law to authorize it to do business in this State, and it has duly done and performed the several things provided by law in that behalf. Form No. 28 Allegation That PlaintifE Is a Foreign Corporation and Has Complied with the Requirements for Doing Business in This State ^ I. Plaintiff is a foreign corporation created, organized and existing under and by virtue of the laws of the State of New Jersey, engaged in the manufacture of proprietary medicines in the city and county of New York, and having procured from the Secretary of State of New York, a certificate that it has complied with all the requirements of law, to authorize it to do ^ From Booth v. Seibold, 37 Misc. 101; 74 Supp. 706; in which an injunction pendente lite was granted. A permanent injunction was granted later. See Form No. 28 and notes. ^ From Parmele Co. v. Haas, 171 N. Y. 579, in which an order of arrest was held proper. See also Wright & Co. v. Faulkner, 52 Misc. 100; 101 Supp. 807. Compliance with § 15 of the General Corporation Law must be pleaded in the complaint, but failure to comply with § 181 of the Tax Law must be set up fts ^n ^fBrriiative defense. Wood & Selick v, Ball, 190 N, Y, 215, 20 Bbadbury's Porms of Pleading Plaintiffs business in this State, as provided by § 15, of the General Cor- poration Law of this State. Form No. 29 Allegation That the FlaintifC Sues as a Taxpayer ^ That he is a citizen of the State of New York, and a resident of the borough of , in the city of New York; that he is the owner of real property in the said city, which is assessed in an amount exceeding the sum of $1,000, and is liable to pay taxes on such assessment, and within one year previous to the commencement of this action has paid taxes on such assessment, exceeding said amount in said city. Form No. 30 Allegation That the Plaintiff Is a Taxpayer of a Town ^ FOR A FIRST CAUSE OF ACTION I. This plaintiff is, and at all the times hereinafter mentioned has been, a citizen of the United States of America, and a resident of the State of New York, and a freeholder and taxpayer of the town of , in the county of and State of New York, and his assessment for taxation therein amounts to dollars, and he is liable to pay taxes on such assessment in said town, and he has been assessed and has paid taxes upon an assessment of the above-named amount within one year previous to the commencement of this action, and he brings this action pursuant to the authority of the laws of , to prevent illegal official action on the part of the supervisor of the town of and the supervisor of the county of , and pursuant to the same chapter and also pursuant to § 1925 of the Code of Civil Procedure as amended by Chapter 524 of the 1 From Wenk v. City of New York, 171 N. Y. 607, in which, on demurrer, this complaint was upheld. See Forms Nor. 30, 31 and 42. 2 From Weil v. Bermel, 23 App. Div. 624; 48 Supp. 1118 (no opinion); jn which a judgment for the plaintiff was upheld. See also Form No, 42, Designation and Dkscription of Parties 21 Plaintiffs Laws of 1892, and all of the laws of the State of New York appli- cable thereto. Form No. 31 Allegation That the PlaintiflE Is a Taxpayer of New York Oity * That they are citizens of the State of New York, and residents and inhabitants of the city of New York, and have been such residents and inhabitants for several years last past, and are two of the corporators of said city. Form No. 32 Allegation That the Flaintifi Is a Banking Corporation ^ I. That at the times hereinafter mentioned the plaintiff was and now is a banking corporation duly organized under the laws of the State of New York and having its principal office for the transaction of business at , county. New York. Form No. 33 Allegation in Complaint That the Plaintifi Sues by a Guardian Ad Litem ^ I. That the plaintiff is an infant under the age of fourteen years, and that heretofore, and before the commencement of this action, L. A. H., his mother, was duly appointed by an order of this court, his guardian ad litem for the purpose of bringing and prosecuting this action on his behalf, and is still such guard- ian. ' From Davis v. New York, 1 Duer, 451; in which an injunction was upheld and a number of aldermen were punished for disobedience thereof. See Form No. 42. 2 From Bank of Staten Island v. City of New York, 68 App. Div. 231; 74 Supp. 284; aff'd without opinion, 174 N. Y. 519; in which a judgment for the plaintiff was upheld. ' From Haack v. Brooklyn Labor Lyceum Assn., 93 App. Div. 491; 87 Supp. S14. 22 Bradbury's Forms op Pleading Plaintiffs Form No. 34 Allegation in Complaint That the Plaintiff Sues by a Guardian Ad Litem ' I. That on Vie day of , 19 , pursuant to a petition made by the above-named infant, an order was duly made by the Hon. P. H. D., one of the justices of this court, and entered and filed in the ofhce of the clerk of the county of New York on ■ the said day of , 19 , appointing L. A., her father, her guardian ad litem, for the purpose of prose- cuting the action herein. Form No. 35 Recital in Complaint That the Plaintiff Sues as an Infant by a Guardian Ad Litem ^ XII. That on the day of , 19 , pursuant to a petition made by S. L., father of the infant plaintiff herein, an order was duly made by Hon. W. J. 0., one of the justices of this court, and entered and filed in the office of the clerk of the county of , on the said day of , 19 , appointing S. L., guardian ad litem of J. H. L., the infant plaintiff herein, for the purpose of commencing and prosecuting the action referred to herein. Form No. 36 Allegation in Complaint That Plaintiff Sues as General Guardian ' I. That the plaintiff was duly appointed general guardian of the property of A. McK. and B. L. McK., infants, by the surro- gate's court of the county of New York, on or about the 1 From Wander v. Wander, 111 App. Div. 189; 97 Supp. 586; in which, although the court held that the action lay, a judgment in favor of the plain- tiff was reversed and the matter remitted for the purpose of obtaining a deci- sion in the form required by Code Civ. Pro. § 1022. ^ From Lacs v. James Everard's Breweries, 107 App. Div. 250; in which a verdict for the plaintiff was reinstated. * From Gaxdnej v. Wood, 37 Miac. 93; 74 Supp. 750; in which, on demurrei, this complaint was upheld. Designation and Description of Parties 23 Plaintiffs day of J 19 , and that at the various times hereinafter ■ referred to the plaintiff was, and still is, general guardian of the property of each of the above-named infants. Form No. 37 Allegation in Complaint That the Action la a Representative One ' The plaintiffs by O. C. S., their attorney, bringing this action in behalf of themselves and of all other creditors of D. G. Y. B. Co., a former corporation, now dissolved, who may be similarly situated, and who may come in and contribute to the expenses of this action, for an amended complaint against the defendant respectfully show to the court and allege as follows : Form No. 38 Representative FlaintiS Suing on Behalf of Himself and all Others In- terested in a Gratuity Fund ^ The plaintiffs above named, on behalf of themselves and all others interested in the Gratuity Fund of the New York Produce Exchange iri a like situation, who shall come in and contribute to the expenses of this suit, by this their complaint, show to the court as follows : Form No. 39 Plaintiff Suing for Libel and Being Himself One of a Class Libeled ^ I. That at all the times hereinafter mentioned, the plaintiff waS; and still is, a duly qualified and registered physician and public officer, to wit: a coroner's physician in and for the borough of Manhattan of the city of New York, duly engaged in the per- ^ From Lilienthal v. Betz, 185 N. Y. 153; in which, on demurrer, this com- plaint was upheld. ^ From Parish v. N. Y. Prod. Ex., 169 N. Y. 34; in which a judgment for the plaintiff was aihrmed. 8 From Weston v. Commercial Adv. Assn., 184 N. Y. 479; in which a de- murrer to this complaint was overruled. 24 Bradbury's Forms of Pleading Plaintiffs formance of his duties as such, and was connected with, was part of, and was a member of the coroner's office of the borough of Manhattan, city of New York, and was also known in such connection as a deputy coroner. Form No. 40 Allegation in Complaint That the PlaintiS Sues as a Receiver in Supple- mentary Proceedings ^ I. That heretofore and on the day of , 19 , this plaintiff was duly appointed receiver of all the property, debts, equitable interests, rights and things in action, effects and estate, real and personal, of F. R. W. and W. H. S., judgment debtors, in proceedings pending in the city court of New York, entitled "In the matter of the examination of F. R. W., judg- ment Debtor, in Proceedings supplementary to execution," upon the application of L. H. and C. W. T., judgment creditors, by an order in said proceedings made by the Hon. J. E. N. and filed and recorded in the office of the clerk of the county of New York, on the day of , 19 , to which order and all the papers referred to therein and proceedings had, on which the same is based, plaintiff begs leave to refer for greater particu- larity. II. That this plaintiff thereafter duly made, executed and acknowledged his bond with two sufficient sureties, approved by Mr. Justice N., in the penal sum of $ , and condi- tioned for the faithful discharge of the plaintiff's duties as such receiver, which bond was duly filed in the office of the clerk of said city court on the day of , 19 , and this plaintiff duly qualified and did thereafter duly enter upon the execution of his trust under the order of his appointment. III. That on the day of , 19 , the plaintiff herein was duly authorized to commence this action, by an order made and signed by Hon. J. E. N., one of the justices of the city court of New York. 1 From Lehman v. Bentley, 135 N. Y. 651 (no opinion); in which a judg- ment for the plaintiff was affirmed. Designation and Description of Parties 25 Plaintiffs Form No. 41 Allegation That the PlaintifE Sues as Receiver in Foreclosure ^ II. That on the day of , 19 , the plaintiff F. S. S., was appointed receiver of said The W. C. Mf'g Co., by the Circuit Court of the United States for the District of Con- necticut in a foreclosure suit pending in said court in which the Central Trust Company of New York is complainant and the W. C. Mf'g Co. is defendant; that F. S. S., the plaintiff, executed and acknowkidged in the usual form and filed within days, with the clerk of the Circuit Court of the United States for the District of Connecticut, a bond, with sureties approved by said court, conditioned for the proper discliarge of his duties as such receiver, and to account for all funds coming into his hands according to the orders of said court, in the penal sum of dollars, and thereupon took possession of the plant and other property of said The W. C. Mf'g Co., within the State of Con- necticut, and entered upon his trust as such receiver, and has ever since been and still is acting and engaged in the discharge of his duties as such receiver. That on the day of , 19 , the plaintiff, F. S. S., was appointed receiver of said The W. C. Mf'g Co. by the Circuit Court of the United States for the District of Massachu- setts, in a foreclosure suit pending in said court, in which the Central Trust Co. of New York is complainant and The W. C. Mf'g Co. is defendant. That F. S. S., the plaintiff, executed and acknowledged in the usual form, and filed within days, with the clerk of the Circuit Court for the District of Massachu- setts, a bond, with sureties approved by said court, conditioned for the proper discharge of his duties as such receiver, and to account for all funds coming into his hands according to the orders of said court, in the penal sum of dollars, and thereupon took possession of the plant and other property of 1 From Smith v. Coe, 170 N. Y. 162; aff'g 55 App. Div. 587; 67 Supp. 350; in which judgment for the plaintiff was affirmed. 26 Bradbury's Forms of Pleading Plaintiffs said The W. C. Mf'g Co. within the State of Massachusetts, and entered upon his trust as such receiver, and has ever since been, and still is, acting and engaged in the discharge of his duties as Buch receiver. Form No. 42 Allegation in Complaint That Plaintiffs Are Entitled to Sue as Tax- payers * I. That the plaintiffs are and were at all times hereinafter mentioned each the owner of real property assessed in the town of county, N. Y.; that the sum of each of their said assessments amounts to at least $ ; that each of them is liable to pay taxes upon such assessments in the said town of ; and that each of them have been assessed therein in at least the said sum of $ within one year previous to the commencement of this action; that they and each of them is a citizen and resident of the said town of Form Wo. 43 Allegation That PlaintiSs Own Specified Real Property ^ The plaintiffs are the owners and aire in possession of the premises known as No. , Avenue, in the city of , and bounded northerly by lot of C. P. L. and E. W. P.; easterly by Avenue; -southerly by lot of D. C. S., and westerly by the B. K., and extending to the center of the said avenue along the whole easterly breadth of the said described lot, and are the owners in fee of the westerly one-half of what is called and known as W. Avenue, between the lines of the said lot produced. 1 From Livingston v. Stafford, 184 N. Y. 636; aff'g, on opinions below, 99 App. Div. 108; 91 Supp. 172; in which judgment for the plaintiff was upheld. See also Forms Nos. 29, 30 and 31. ^ From Peck v. Schenectady R, Co., 170 N. Y, 298; in which a judgment for the plaintiffs was modified, and, ds modified, affirmed. Designation and Description of Parties 27 Defendants n. Defendants Form No. 48 Name of Defendant Unknown ^ Supreme Court, County. John Smith, Plaintiff, against "William Brown," Defendant. The name "William Brown" being fictitious, the real name of the defendant being unknown to the plaintiff, the de- fendant being the captain of the sloop "Hornet." Or The defendant being the president of the Club [or otherwise designate the defendant so as to identify him]. The plaintiff, by his attorney, A. B., complaining oi the de- fendant alleges : I. That the name of the defendant is unknown to the plaintiff but that such defendant is the person, etc. [describing him with -particularity sufficient for identification], / * It is only where there Is a real defendant whose name is unknown that a > fictitious name can be used. Otherwise inserting a fictitious name meaning no one in particular has no effect on the htigation. Where a person is known by more than one name he may be sued or legal proceedings may be instituted against him by either, or the one by which he is generally known. Stuyvesant v. Weil, 167 N. Y. 421; Sporza v. German Savings Bank, 119 App. Div. 172; 104 Supp. 260. Under the doctrine of idem sonans absolute accuracy in spelling names in legal proceedings is not required. All that is necessary is that the name as spelled though different from the correct spelling conveys to the ear when pronounced according to commonly accepted methods a sound practically identical with the sound of the correct name. People ex rel, Kenyon v. Suther- 28 Bradbury's Forms of Pleading Defendants Form No. 49 When the Christian Name of the Defendant Is Unknown ^ Supreme Court, County. John Smith, Plaintiff, against "William" Brown, Defendant. The name William being fictitious, the real Christian name of the defend- ant being unknown to the plaintiff. The plaintiff complaining of the defendant alleges and re- spectfully shows to the court ; I. [See Form No. 48. Where only the Christian name is un- known the complaint frequently contains no other description than that in the title as above. However, if it is deemed necessary for prudential reasons to more fully identify the defendant it may be done as in Form No. 48.] Form No. 50 Allegations That the Defendants Are Copartners ^ That [at all the times herein mentioned] the defendants, F. M. and J. v., were copartners trading under the firm name and style of F. M. & Co. at No. , Street, in the borough of Manhattan, city and county of New York aforesaid, and that the defendants, G. H. M., G. S. C. and A. C. K., were copartners land, 81 N. Y. 1; Sporza v. German Savings Bk., 119 App. Div. 172; 104 Supp. 260. A corporation doing business under a name not its own and when sued answers without pleading the misnomer will be conclusively presumed to have been sued by the correct name. McNeal v. Hayes Machine Co., 118 App. Div. 130; 103 Supp. 312. ■^ See notes to Form No. 48. ^From Deebe v. Mead, 101 App. Div. 600; 92 Supp. 51; ia which inter- pleader was granted. Designation and Description of Parties 29 Defendants trading under the firm name and style of C. M. & Co. at No. Street, in the said borough of Manhattan, city and county of New York, aforesaid. Form No. 51 Allegation in Complaint That Defendant Is Sued as Executor > Supreme Court, New York County. Louis Smadbeck and Isidore B. Brooks, Plaintiffs, against Alfred W. Low as ^ Executor and Trustee Under the Last Will and Testament of Alice Mills Low, Deceased, Defendant. L That heretofore the defendant A. W. L. was duly appointed executor under the last will and testament of A. M. L., deceased, and duly qualified as such executor; that at all the times herein- after mentioned, defendant was authorized and empowered by virtue of his said office to make the contract hereinafter more fully set forth, and to thereby bind the estate of the decedent. Form No. 52 Part of Complaint Showing That One of the Defendants Is Sued as Executor ^ IX. That the said assured died, as aforesaid, leaving the last will and testament, wherein and whereby he appointed the said ' From Smadbeck v. how, 106 App. Div. 552; 94 Supp. 797; in which an order directing the cancellation of a li pendens was reversed. ^ The word "as" is a necessary part of the title. If it is omitted the words which follow it in the above title would be considered merely descriptio personcB. The defendant would then be sued in his personal not his official capacity. Bennett v. Whitney, 94 N. Y. 302; United Press Co. v. Abell Co., 73 App. Div. 240; 76 Supp. 692. ' From Lane v. Equitable Life Assur. Soc, 102 App. Div. 470; 92 Supp. 877; where the court allowed the defendant insurance company to interplead a claimant to the fimd in its hands, but struck out an allowance of costs to the insurance company to be deducted from the fund. 30 Bradbury's Forms of Pleading Defendants defendant, N. M. G., with others as executors thereof, and trus- tees of the trusts therein contained. That the said last will and testament was duly admitted to probate by decree of the surro- gate's court of the county of New York, which had jurisdiction thereof, on the , and letters testamentary thereof, were duly issued by and out of said surrogate's court to the defendant, W. M. G., who has duly qualified and entered upon the dis- charge of his duties as such executor, and that none of the other persons designated and appointed his executors under the said last will and testament of G. W. K., deceased, has qualified ex- cept the said W. M. G. Form No. 53 Allegration in Complaint That Defendant Is Sued as Administrator De Bonis Non' V. That on or about the day of , 19 , on application duly made to the surrogate's court of New York county, the defendant, M. E. F., was duly appointed adminis- trator de bonis non of all goods, chattels and credits of the said A. C, deceased, in the place of said P. A. C, deceased, and was qualified and she is now acting as such administratrix. Form No. 54 Allegation That Defendant Is Sued as Administrator, De Bonis Non Action to Set Aside Partition of Real Property as Fraudulent and Unfair ^ The amended complaint of the plaintiffs respectfully shows to this court: I. That J. P. M. died at the city of , , on or about the day of , 19 , and left him surviving as his only heir at law and next of kin, his father, the plaintiff M.M. ' From McNalley v. Fitzsimons, 70 App. Div. 179; 75 Supp. 331; in which, on demurrer, this complaint was held good. ^ From McNalley v. Fitzsimons, 70 App. Div. 179; 75 Supp. 331. Designation and Description of Parties 31 Defendants II. That heretofore at the city of , and on or about the day of , , A. C. died, intestate, seized and possessed of a large amount of real property which plaintiff alleges, upon information and beUef, was and is of the value of at least the sum of $ ; and at the time of her death the said A. C. left her surviving as her only heirs at law and next of kin, her sister, the above named defendant M. E. F., her brother P. A. C. [who has since died], and her nephew, above named, J. P. M., who was a son of one B. M. [who died in the year ], also a sister of the said A. C. ; and that plaintiff is the father of J. P. M., and was the husband of said B. M., the sister of said A.C. III. That on or about the , on apphcation duly made to the surrogate's court of New York county, letters of adminis- tration of all the goods, chattels and credits which were of said A. C, deceased, were duly granted by said court to P. A. C, and he duly quaUfied as such, and discharged the duties of said office down to the time of his death, which took place on the day of , 19 . IV. That said P. A. C. died, intestate, and left him surviving as his only next of kin and heirs at law, the defendants, M. L. C, his widow, who had and has a dower interest in all lands of which he died seized and possessed, M. J. C, M. L. C, F. J. C, S. A. C. and L. C. That all of said persons are of full age, except F. J. C, S. A. C. and L. C, who are each infants under the age of years. VI. That for more than years prior to his death the said J. P. M. had been, and was at the time of his death, a person of unsound mind, confined in an insane asylum in , ; and in or about the month of , in proceedings instituted in the court of chancery of the State of , the said J. P. M. was, after a trial before a commission de lunatico inquirendo, appointed by said court and a jury impaneled and sworn by said commission, and upon the findings of said com- mission. 32 Bradbury's Forms of Pleading Defendants Form No. 55 Allegation That Defendant Is Sued as Trustee Under a Declaration ot Trust 1 I. That heretofore and some time prior to the day of , 19 , the defendant, Theodore A. D., by virtue of an assignment, executed and delivered to him by P. W. T., obtained the legal title to certain letters patent issued by the United States numbered , for improvements in pneumatic tires. That under and by virtue of an agreement duly made and executed by the said defendant last named, and certain other persons, which was based upon a valuable consideration, the said last named defendant held said letters patent in trust for the benefit of himself and other persons, and that thereafter and on or about the day of , 19 , the said defendant, pursuant to the terms upon which he held said letters patent, did execute, make and deliver a certain instrument or declaration of trust whereby he, said defendant, Theodore A. D., did organize and form the T. T. Association, a voluntary or joint stock association of more than seven persons, which association was organized for the purpose of capitalizing and commercially exploiting the inventions covered by said letters patent, to the end that the persons beneficially interested in said inventions should obtain for their respective interests, shares of stock to be issued by said association. A copy of said instrument is hereto annexedmarked Exhibit A and plaintiff refers thereto as a part of this complaint. II. That pursuant to the terms of the said instrument under which the said T. T. Association was organized, as will more fully appear on reference thereto, the capital stock thereof was fixed at $ , represented by shares, each share being of the par value of $ . And that among other things it is provided by said instrument under which said asso- ciation was organized that the said defendant, Theodore A. D., shall retain the legal title to said letters patent as trustee of the 1 From Booth v. Dodge, 60 App. Div. 23; 69 Supp. 673; in which, as to the defendant Dodge, as trustee, the complaint was upheld. Designation and Description of Parties 33 Defendants said association and the stockholders thereof. And it. was also provided in said instrument that per cent of the said shares "shall be kept in the hands of the trustee as treasury- shares and all the rest, viz: shares, shall be divided among the members constituting said association at the present date, according to their several respective interests as the same may appear." And it is also provided in said instrument that "the treasury shares shall be retained by the trustee until the executive committee shall decide to sell the same, and same shall be only sold to provide money essential to carry on the business of the association. They shall then only be sold to the highest bidder, days after notice shall have been mailed to all the shareholders that said shares or a part of them are to be thus sold and asking for his bid." And it is also provided by said instrument executed by the said defendant, Theodore A. D., as aforesaid, that the said asso- ciation shall adopt a code of by-laws for the government of the executive committee of the said association and likewise for the government of the shareholders, and that thereafter and on or about the day of , 19 , at a regular meeting of the shareholders held on said day, certain by-laws were adopted by said association, a copy of which is hereto annexed, being part of the exhibit, marked Exhibit "A" and referred to as a part of this complaint. III. That these plaintiffs are and at all the times hereinafter mentioned have been the owners and holders of shares of stock of the said T. T. association. Form No. 56 Allegation in Complaint That the Defendants Are Sued as Physicians ' II. That at all the time and times hereinafter mentioned, the above-named defendants represented and held themselves out ^ From Link v. Sheldon, 136 N. Y. 1; in which judgment for the plaintiff was affirmed. Vol. 1—3 34 Bradbury's Forms of. Pleading Defendants to the plaintiff and others to be physicians and surgeons residing and practicing as such at the city of , N. Y. Form No. 57 Allegation in Complaint That the Defendant Is Sued as a Physician ' I. That the defendant above named is a Ucensed physician and surgeon, in active practice in , county, N. Y., and was at the times hereinafter mentioned. Form No. 58 Allegation in Complaint That the Defendant Is Sued as an Attorney ^ II. That the defendant W. T. W. is an attorney and counselor at law, and at the times hereinafter referred to was engaged in the practice of the profession of law in the borough of Manhattan, city of New York, having an office there for that purpose. Form No. 5Q Allegation in Complaint That Defendant Is Plaintiff's Attorney ^ I. That at all the times hereinafter mentioned, the defendant, J. M., was, or pretended to be an attorney and counselor at law, and duly admitted to practice as such in all the courts of this State. II. That at all the times hereinafter mentioned, the said de- fendant, J. M., acted as the attorney and advisor of the plaintiff in all the matters hereinafter set forth, and plaintiff placed im- plicit trust in him and reposed full confidence in his integrity and faithfulness, as such attorney and legal advisor; and plain- tiff conformed to and followed his advice and instructions. 1 From Pike v. Honsinger, 155 N. Y. 201; in which a judgment for the de- fendant was revei'sed. 2 From Gardner v. Wood, 37 Misc. 93; 74 Supp. 750; in which, on demurrer, this complaint was upheld. ^ From Sheehan v. Martin, 100 App. Div. 516; 91 Supp. 1113; in which,a judgment in favor of the plaintiff was affirmed. Designation and Description of Parties 35 Defendants Form No. 60 Allegation That a Defendant Is Sued as Editor of a Newspaper, Its Pub- lishing Company also Being Sued ' III. That during all of said times, the defendant, \V. R. H.. was an editor and publisher of said " " and the de- fendant, A. B. was an editor of said newspaper and the writer of the article hereinafter set forth. Form No. 61 Allegation in Complaint. Defendant Incorporated Under " Fawn- broker's " Statute 2 I. Upon information and beUef that the defendant is a corpo- ration organized under the provisions of Chapter 326 of the Laws of 1895, of the State of New York, and acts amendatory thereof, and the said corporation was organized to do business in the county of , State of , only. Form No. 62 Allegation in Complaint That Defendant Is a Foreign Corporation Doing Business in This State and Owning a Baseball Club ' I. That at all the times hereinafter mentioned the defendant was, and still is, a foreign corporation, incorporated, organized and existing under and by virtue of the laws of the State of New Jersey, having an office and place for transacting business, and owning property in the city of New York, in the State of New York, and engaged amongst other things, in giving public ex- hibitions of games and contests of baseball, said defendant cor- poration being owner and proprietor of the club, popularly and commonly known as "The New York Base B all Club." 1 From New York Times v. Star Co., 105 App. Div. 642; 94 Supp. 1157; in which, on demurrer, the comnlaint was held good. 2 From Lowry v. Collateral Loan Association, 172 N. Y. 394; in which a demurrer to the complaint was overruled. ^FromvRussell v. The National Exhibition Co., 60 App. Div. 40; 69 Supp. 732; in which a judgment fo the plaintiff was reversed. 36 Bradbury's Forms op Pleading Defendants Form No. 63 Allegation in Complaint That Defendant Is a Foreign Corporation not Doing Business in This State ^ I. That at all the tunes hereinafter mentioned the defendant was and still is a foreign corporation organized and existing under and by virtue of the laws of the United States of Mexico and engaged in the business of banking at the City of Mexico in said United States of Mexico. Form No. 64 Allegation in Complaint That the Defendant Is a Railroad Corporation, with Power to Lay Tracks ^ II. That the defendant is and at all the times hereinafter mentioned was a domestic corporation organized and acting under the laws of the State of New York, and authorized by Chapter 361 of the laws of 1863, and the various laws amenda- tory of the said chapter, to lay, construct, and use horse railroad tracks along certain streets and avenues in the city of New York. Form No. 65 Allegation in Complaint That Defendant Is a Religious Corporation ' II. That the defendant, the Congregation S. I., in the city of New York, is and at all times hereinafter mentioned was a religious corporation composed only of members of the Jewish faith, duly organized and existing under and pursuant to an act of the legislature of the State of New York, for the incorporation of religious societies, passed the day of , 19 , and is and was during all of said times, the owner and in control of aj^emetery, located at , Long Island, being situated 1 From Schindler v. Bank of London & Mexico, 102 App. Div 616; 92 Sudd 1144. rr ■ . J-f ^ From Mayor, etc., of New York v Harlem Bridge, etc., Co., 186 N. Y. 304; in which the plaintiff was given judgment. ^ From Cohen r. Congregation .Shearith ,Isra,el, 85 App. Div. 65, 82 Supp. 938; in which a change of venue was granted. Designation and Description of Parties 37 Defendants partly in the county of and partly in the county of in the State of New York. Form No. 66 Allegation in Complaint That the Defendant, a Fraternal Order, Is a Domestic Corporation ^ That at all the times hereinafter mentioned, the Grand Lodge of the A. 0. U. W. of the city of New York was, and now is, a domestic corporation, organized under the laws of the State of New York. Form No. 67 Allegation in Complaint That a Defendant Is Sued as a Foreign Fraternal Association ^ IV. Upon information and belief that the defendant. The Supreme Council of the Order of , now is, and at all the times hereinafter mentioned was, a foreign corporation or asso- ciation duly created, and existing, under the laws of the State of Indiana, pursuant to an act of the general assembly of the said State of Indiana, entitled "An act concerning the organization and perpetuity of voluntary associations, and repealing an act entitled, "An act concerning the organization of voluntary associations, and repealing former laws in reference thereto," approved , 19 , and repealing each act repeated by said act, and authorizing gifts or devises by will to te made to any corporation or purpose contemplated by this act," ap- proved , 19 ,, and acts supplemental and amenda- tory thereto. Form No. 68 Allegation in Complaint That the Defendant Is Sued as President of a Joint-stock Company ' II. That the above named, the M. U. Express Co., is a joint- 1 From Ayers v. Grand Lodge A. O. U. W., 188 N. Y, 280; in which a judg- ment for the plaintiff was affirmed. 2 From Thomas v. Thomas, 131 N. Y. 205; in which the plaintiff recovered. 'From Holt v. Ross, 54 N. Y. 472; in which a judgment for the plaintiff was affirmed. 38 Bradbury's Forms of Pleading Defendants stock company or association in the city of New York and county of New York, in this State, and consists of seven or more share- holders. III. That the defendant is the president of said company or association. Form No. 69 Allegation That the Defendant Is Sued as Treasurer of a Joint-stock Association ^ II. On information and belief that A. Express Co. is and at the times hereinafter was an unincorporated association consist- ing of more than seven persons, doing business under the said name as a common carrier or forwarder of merchandise in the United States, and that the defendant, W. L. H., is the treasurer thereof. Form No. 70 Allegation in Complaint That the Defendant Is a Banking Association ^ I. That the defendant is a banking association created by and under the laws of this State organized pursuant to an action of the legislature, entitled "An Act to Authorize the Business of Banking," and the acts amending the same.^ Form No. 71 Allegation That a Defendant Is Sued as an Assignee for the Benefit of Creditors, such Assignment, however, being Sought to be Set Aside * VIII. That as plaintiff is informed and believes on and long prior to the day of , 19 , the defendant W. was insolvent and unable to pay his debts, and well knowing 1 From Rosenthal v. Weir, 170 N. Y. 148; in which judgment for the plain- • tiff was affirmed. 2 From Spero v. West Side Bank, 168 N. Y. 588; aff'g, without opinion, 42 App. Div. 619; in which a judgment for the plaintiff was upheld. ^ It would be better to name the statutes, giving year and chapter number. * From Patchen v. Rofkar, 52 App. Div. 367; 65 Supp. 122; in which a judg- ment for the plaintiff was affirmed. DESIGNAtiOisr AND DESCRIPTION OF PARTIES 39 Defendants of his insolvency, and being so indebted as aforesaid to the Tren- ton Potteries Co., the defendant W. on the day of , 19 , did make, execute and deUver to the defendant R., a certain pretended general assignment dated on that day which said pretended general assignment purported to bargain, sell, assign, transfer and set over from defendant W. to defendant R., his successors and assigns, all the property and effects of every description belonging to defendant W. to have and hold the same upon trust, to pay the expenses of the trust and all the debts of defendant W. or so much thereof ratably as the proceeds of such property and effects would pay, which said instrument was signed, sealed and acknowledged by both of said defendants and was filed and recorded in the office of the clerk of the city and county of New York, on the day of , 19 . And the inventories and schedules accompanying the same were filed in said clerk's office on the day of , 19 , to all of which reference is hereby made, for greater certainty. Form No. 72 Allegation in Complaint That a Defendant Is Sued as Trustee in Bankruptcy ^ IV. Upon information and behef, that the said T., I. and S. L., on or about the day of , 19 , filed a petition in bankruptcy, individually, and were duly adjudicated bank- rupts, and that on or about the day of , 19 , the defendant, B. B., Jr., was duly elected trustee of the estates of the said bankrupts, and thereafter duly accepted the said trust and qualified as such trustee. Form No. 73 Allegation in Complaint That Defendant Is Sued as the Board of Edu- cation of a City ^ II. That heretofore and at all the times hereinafter mentioned, ' From Lilianthal v. Lesser, 185 N. Y. 557; in which judgment for the plain- tiff was afSnned. 2 From Davis v. City of New York, 75 App. Div. 518; 78 Supp. 336; in which a judgment sustaining a demurrer was reversed. 40 Bradbury's Forms of Pleading Defendants the said defendant, the city of New York, has and now is a domestic municipal corporation duly organized and existing under and by virtue of the laws of the State of New York, and the board of education is a duly authorized department thereof. Form No. 74 Allegation in Complaint That Defendants Are Certain Town Officers ' III. That said W. L. is supervisor of the said town of , said A. A. W., town clerk of said town of , and D. F. W., J. H. J. and E. J. K., and A. J. A., each a justice of the peace of said town of , and that said L., A. A. W., D. F. W., J., A. & K. compose and constitute the town board of the said town of Form No. 75 Allegations That the Defendants Are a Town, and Officers of That Town and the County in Which It Is Situated ^ II. Upon information and belief, the defendant, the town of , is, and at all the times hereinafter mentioned has been, a domestic municipal corporation. The defendant, J. B., is, and at all the times hereinafter mentioned has been, a supervisor of said town of . The defendant, G. W. M., is, and at all the times hereinafter mentioned has been, the town clerk of the said town of . The defendants, J. B., H. K., E. H. S., A. D., S. J. U., D. L. V. and F. W. D., are and at all the times hereinafter mentioned, have been members of the board of supervisors of the county of Form No. 76 Allegation in Complaint That Defendant Is Sued as Commissioner of Highways ^ II. That the said town of is a domestic municipal * From Livingston v. Stafford, 184 N. Y. 536; aff'g, on opinions below, 99 App. Div. 108; 91 Supp. 172; in which judgment for the plaintiff was upheld. 2 From Weil v. Bermel, 23 App. Div. 624; 48 Supp. 1118 (no opinions); in which ^a judgment for the plaintiff was upheld. ' From Livingston v. Stafford, 184 N. Y. 536; aff'g, on opinions below, 99 App. Div. 108; 91 Supp. 172; in which judgment for the plaintiff was upheld. Designation and DESCRiPT?ioN of Parties 41 Defendants corporation, and the said D. W. S. is commissioner of highways of the said town of at the present time and is now act- ing as commissioner ; that said town of has but one com- missioner of highways, said D. W. S. Form No. 77 Part of Oomplaint. Allegation as to a County Being a Municipal Oorporation ^ II. That during the year 19 , and prior thereto, the county of was a municipal corporation duly constituted under the laws of the State of New York. Form No. 78 Allegation That Defendant Is a Municipal Corporation ^ I. The defendant is a domestic municipal corporation, created and existing under the laws of the State of New York. Form No. 7Q Allegation in Complaint That the Defendant Is a Municipal Corporation in Charge of the Streets ^ II. That the above-named defendant, the city of Rochester, is and was at all the times hereinafter mentioned, a municipal corporation, duly organized under and by virtue of the laws of the State of New York, and that as such corporation it has had, during all the times mentioned in this complaint, and referred to, the control and management through its officers, agents and ser- vants of the streets, alleys, lanes, highways and river bridges within US' corporate limits, and that during all of said times it has been the duty of said defendant, the city of Rochester , 1 From Bank of Staten Island v. City of New York, 68 App. Div. 231; 74 Supp. 284; aff'd, without opinion, 174 N. Y. 519; in which a judgment for the plaintiff was upheld. 2 From Deering v. City of New York, 51 App. Div. 402; 64 Supp. 606. 3 From Donnelly v. City of Rochester, 166 N. Y. 315; in which a judgment for the defendant was reversed. 42 Bradbury's Forms of Pleading Defendants through its officers, agents and servants, to keep said streets, alleys, lanes and bridges in a safe and proper condition for or- dinary travel thereon, and that said defendant, the city of Rochester, had accepted said duty and assumed to exercise the same. Form No. 80 Allegation That Defendants Own Specified Real Property ' I. This plaintiff alleges, upon information and belief, that since and for some time prior to the day of , 19 , the defendants have been and are the owners in fee simple abso- lute and seized and possessed of the following described lands and premises : [Description.] Form No. 81 Allegation as to Execution of Agreement by Trustee to Sell Land ^ I. That on or about the day of , 19 , the defendant, J. T. W., as trustee of the trusts created by the last will and testament of T. P. W., deceased, was the owner and in possession of the following described real property ; [Here insert description.] II. That on the day aforesaid, the defendant, J. T. W., as trustee of the trusts created by the last will and testament of T. P. W., deceased, made and entered into an agreement with the plaintiff in writing, a copy of which is hereto annexed and marked Exhibit "A." [This is an agreement by which J. T. W. agreed to sell J. J. M. property therein described and J. J. M. agreed to buy it for $30,000, payable $1,000 dovm and $20,000 by mortgage.] ^ From Avery v. Lee, 117 App. Div 244; in which the plaintiff was given leave to make a certain inspection. 2 From Meaney v Way, 108 App Div 290; 95 Supp. 745. Designation and Description of Parties 43 United States Courts III. United States Courts Form No. 82 Allegations in Complaint to Show the Jurisdiction of the United States Circuit Court ' To the Honorable the Judges of said court. H. H. T. of T., Georgia [etc., naming three other Georgia men], all of whom are citizens of the State of Georgia, residing in and being inhabitants of the Southern District of Georgia; G. L. Co., a corporation of , Georgia; A. L. Co., a corporation of , Georgia, and S. P. Co., a corporation of , Georgia, each of said corporations being organized and existing under the laws of the State of Georgia, being citizens of said State and inhabitants of the Southern District thereof, bring this their bill of complaint, in behalf of themselves and all other members of the G. S. M. Association [a voluntary association] against S. Railway, a corporation and citizen of the State of Virginia; A. C. L. R. Co., a corporation and citizen of the State of South Carolina; L. & N. R. Co., a corporation and citizen of the State of Kentucky; N., C. & St. L. Railway Co., a corporation and citizen of the State of Tennessee; S. A. Line Railway Co., a corporation and citizen of the State of Virginia; C. of G. Railway Co., a corporation and citizen of the State of Georgia; G. S. & F. Railway Co., a corporation and citizen of the State of Georgia; M. & B. Railway Co., a corporation and citizen of the State of Geor^a; and against the S. Freight Association, a voluntary association or partnership, composed of the foregoing named railway companies and others, with its principal office in the city of , State of Georgia; and thereupon your orators com- plain and say : I. Your orators and other manufacturers of yellow pine lum- ber in the States of Geor^a, Florida and South Carolina, exceed- ing one hundred and fifty (150) in number, constitute the mem- bership of the G. Mill Association, which your orators aver to be ~ i From Southern Railway v. Tift, 206 U. S. 428, 44 Bradbury's Forms of Pleading United States Courts a voluntary association organized and maintained for promoting and protecting by proper and lawful means the interests of the yellow pine lumber industry in the States named. II. The defendants, and each of them, are common carriers engaged, among other things, in interstate commerce by the transportation of lumber from points within to points without the State of Georgia; and each of them maintains and operates lines of railway within the State of Georgia employed in such transportation of articles of commerce between the States. Your orators aver, on information and belief, that each of said railway companies is a member of the S. Freight Associa- tion; and that said association was organized and is maintained under agreements and for purposes which constitute an illegal combination in restraint of interstate trade, and for the fostering of monopoly in destruction of fair competition among carriers engaged in interstate trade. Form No. 83 Allegation in Complaint, in United States Supreme Court, to Show Jurisdiction in Action by State Against Foreign Corporation * To the honorable, the chief justice and associate justices of the Supreme Court of the United States sitting in equity, comes the State of Georgia by its attorney general, J. C. H., and L. J., special counsel, and leave of the court being first had'and ob- tained files this its bill of complaint against T. C. Co., a corpora- tion organized and existing under the laws of the State of New Jersey, but a resident of the State of Tennessee with its main office in county, said State; and the D., S., C. & I. Co. (Limited), a corporation of Great Britain, but a denizen of, and having its principal office in county, Tennessee. And whereupon, your orator complains and says: I. Your orator, the State of Georgia, is one of the original thirteen States of the American Union, and a sovereign State of the United States. 1 From Georgia v. Tennessee Copper Co.. 206 U. S. 230. Designation and Description of Parties 45 United States Courts The defendant, the Copper Co., is a corporation char- tered under the laws of the State of New Jersey, for the purpose of mining, manufacturing, and producing copper and sulphur ores, and products, in county, Tennessee, with its main office in said last-named county and State. The defendant, the D., S., C. & I. Co. (Limited), is a corporation created and organized under the laws of G. B. for the purpose of mining, manufacturing and producing copper, sulphur and iron ores and products in county, Tennessee, with its main office in said State and county, and, under and by virtue of the laws of the State of Tennessee, through filing a duly certified copy of its charter with the Secretary of State and being authorized to locate, carry on its business in said State, and so locating and carrying on the same, became and is a denizen of the State of Tennessee. Form No. 84 Allegation in Bill of Complaint, in United States Circuit Court, to Show Jurisdiction on the Ground of Diverse Citizenship ^ ■ Your orators, W. M. & J. S. McF., both citizens and residents of the State of Dlinois, partners doing business under the firm; name of M. & McF., which firm had a large lumber business in , Tennessee, bring this, their bill,.against the defendants [naming them], all of whom are residents and citizens of the State of Mississippi, with the exception of D. L. J., Jr., and H. B. W., who are either citizens and residents of the State of Arkansas or of the State of Mississippi, one or the other. ^^^^^^ 1 From Moore v. McGuire, 205 U. S. 214. 46 Bradbury's Forais of Pleading Promissory Note CHAPTER III ALLEGATIONS OF ASSIGNMENTS OF CAUSES OF ACTION FORMS NO. , PAGE 95. Allegation in complaint as to assignment to the plaintiff 46 96. Allegation of assignment; action on promissory note 46 97. Allegation in complaint as to assignment of part of sum due 47 98. Allegation in complaint that one of the plaintiffs has a cause of ac- tion, an undivided half interest in which he has assigned to his co- plaintiff 47 99. Assignment of insurance. PoUcy by executor 47 100. Services as coroner; assigned claim; consoUdation of New York City. 48 Form No. 95 Allegation in Complaint as to Assignment to the Plaintifi ^ Supreme Court, County. Nicholas V. Cody, Plaintiff, against Mary E. Dempsey, Defendant. The plaintiff complaining of the defendant alleges : *,J, mlr mU %lf mtt ^ ^ 'Sf JJ* ^ ^ ^* ^i *f» ^ 1* II. That said T. F. C, heretofore and before the commence- ment of this action, for valuable consideration assigned and transferred to the plaintiff all his right, title and interest in and to the compensation of dollars aforesaid. Form No. 96 In Complaint. Allegation of Assignment. Action on Promissory Note ^ IV. That thereafter, and before its maturity, said S. K. in- dorsed and delivered said note to the plaintiff for value. 1 From Cody v. Dempsey, 86 App. Div. 335; 83 Supp. 899; in which a judg- ment for the defendant was reversed. 2 From King v. King, 59 App. Div. 128; 68 Supp. 1089; in which an attach- ment was upheld. Allegations of Assignments of Causes of Action 47 Insurance Policy by Executor Form No. 97 Allegation in Complaint as to Assignment of Part of Sum Due ^ That on or about the day of , 19 , the said H. T. for a valuable consideration duly executed and deli^■ered to the plaintiff an instrumeiit in writing, of which a copy is annexed to and made a part of this complaint and marked Exhibit "A," with the intent to assign and transfer to the plain- tiff the sum of $ , of the moneys to become due on the said third payment under said contract. Form No. 98 Allegation in Complaint That One of the Plaintifis Has a Cause of Action, an Undivided Half Interest in Which He Has Assigned to His Co- plaintifi ^ That said plaintiff, H., individually rendered and performed services as attorney for this defendant between the day of , 19 , and the day of , 19 , in an action in the Supreme Court, in which A. K. was plaintiff and this defendant was one of the defendants, at the special instance and request of said defendant. That the value of said services was $ , no part of which has been paid. That on the day of , 19 , the said H., for value, duly assigned and transferred an undivided half interest in said last cause to the plaintiff, F. Form No. 99 Assignment of Insurance Policy by Executor ^ ' V. That the said above-named J. S. K., one of the assi gnees iProm Bradley & Currier Co. v. Ward, 15 App. Div. 386; 44 Supp. 164; aff'd, without opinion, 162 N. Y. 618; in which a judgment for the plaintiff was upheld. 2 From Farren v. McDonnell, 74 Hun, 176; 56 Supp. 354; aff'd, without opin- ion, 148 N. Y. 741 ; in which a judgment for the plaintiff was upheld. » From Lane v. Equitable Life Ins. Society, 102 App. Div. 470; 92 Supp. 877; in which the defendant insurance society was discharged from liability upon paying a sum of money into court. 48 Bradbury's Forms op Pleading Services as Coroner of the said policy, was a brother of said assured, and that he died on the day of , 19 , being at the time of his death, a resident of the city of , county of , State of , that he left a last will and testament, which was duly admitted to probate by the District Court of [ District], on the day of , 19 , and that M. L. K. and B. G. F., were the executors of the said will of J. S. K., and they have both qualified, and letters testamentary were duly issued to them by and out of the said last-mentioned District Court, which had jurisdiction thereof, on the day of , 19 , and they have both quaUfied and entered upon the discharge of their duties as executors, and that the said executors did, thereafter, assign all their right, title and interest in and to all moneys arising from the said life insurance policy of G. S. K., deceased, to the said plaintiff, C. H. H. Form No. 100 Services as Coroner; Assigned Claim; Consolidation of New York City' I. [Allegaiion that the plaintiff is a banking corporation. See Form No. 32.1 II. [Allegation that the county involved is a municipal corpora- tion. See Form No 25.] III. On information and belief, that during the year 19 one I. A. S. was a duly elected coroner of said county of , and rendered certain services to said county in his said official capacity. That the reasonable and legal value of said services was the sum of dollars. IV. On information and belief, that on or about the day of - , 19 , the board of supervisors of said county of duly audited and allowed the claim of said I. A. S. for said services so rendered as aforesaid at the sum of dollars. That said board of supervisors thereupon duly issued their order, No. , dated , 19 , and signed by the . 1 From Bank of Staten Island v. City of New York, 68 App. Div. 231; 74 Supp. 284; aff'd, without c^inion, 174 N. Y. 519; in which a judgment for the plaintiff was upheld. Allegations of Assignments of Causes of Action 49 Services as Coroner chairman and clerk of said board, directing the treasurer of county to pay the order of dollars. That said amount was made payable out of the tax levy of the year 19 and duly placed in the county abstract for the year. V. On information and beUef, that thereafter said voucher was indorsed to this plaintiff for value. That no part thereof has been paid. VI. That by virtue of Chapter of the laws of of the State of New York the office of county treasurer of the county of was abolished, and all the powers, duties and obliga- tions of said county treasurer were thereby devolved upon the comptroller of the city of New York as constituted by that act. VII. That more than days prior to the bringing of this action the plaintiff duly presented its said claim to the comptroller of the city of New York for adjustment, but that the said comptroller has neglected and refused to make an ad- justment or payment thereof. That the plaintiff is now the holder and owner of said claim, and that there is due thereon the sum of dollars, with interest from , 19 . Wherefore [prayer for money judgment]. yoii' i-^ 50 Bradbury's Forms of Pleading Goods Sold and Delivered CHAPTER IV GOODS SOLD AND DELIVERED FORMS NO. PAGE 105. Goods sold and delivered; general form 50 106. Goods sold and delivered; assigned claim 51 107. Goods manufactured and delivered pursuant to contract, coupled with cause of action for goods sold and delivered; action by re- ceiver 51 108. Goods sold and delivered to be paid for by a third party 54 109. Goods sold to be delivered to a third party 55 Form No. 105 Goods Sold and Delivered; General Form Supreme Court, County. John Doe, Plaintiff, against Richard Roe, Defendant. The plaintiff by his attorney, A. B., complaining of the de- fendant, alleges : I. That on the day of , 19 , the plaintiff sold and delivered to the defendant goods, wares and merchan- dise consisting of [general description], which are more particu- larly described in a bill of particulars hereunto annexed marked Exhibit "A" and made a part of this complaint, of the agreed [reasonable] value of dollars and the defendant agreed to pay said sum therefor. That said chattels were sold on a credit of days which expired on the day of , 19 . Complaints 51 Goods Sold and Delivered III. That demand ' has been made for said sum and no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 106 Goods Sold and Delivered; Assigned Claim ^ I. That on or about the day of , 19 , plain- tiff's assignor sold and delivered to the defendants, at their re- quest, certain goods, wares and merchandise, more specifically described and commonly known as gold watch cases, which the defendants accepted, and for which they had agreed to pay upon delivery of the same. II. That the same were sold at the agreed price of, and were reasonably worth the sum of $ . III. That no part of said sum has been paid, although duly demanded, and justly due and owing to the plaintiff. IV. That on or about the day of , 19 , for a good and valuable consideration the plaintiff's assignor, one C. A. K., in whose favor the above claim and obligation had accrued, assigned to the plaintiff named herein all the right, title and interest which the said C. A. K. had in and to the same. Wherefore [prayer for money judgment]. Form No. 107 Goods Manufactured and Delivered Pursuant to Contract, Coupled with Cause of Action for Goods Sold and Delivered; Action by Re- ceiver ^ I. That the W. C. M. Co. at all the times hereinafter mentioned was a foreign corporation organized and existing under and by virtue of the laws of the State o f New J ersey. 1 An allegation of demand is not usually necessary in an action for goods sold and delivered, but is generally inserted out of abundant caution to cover those exceptional cases where it is requisite. 2 From Talbot v. Laubheim, 188 N. Y. 421. One of the points decided in this case was the effect of admissions contained in a counterclaim when coupled with general denials. 3 From Smith v. Coe, 170 N. Y. 162; aff'g 55 App. Div. 585; 67 Supp. 350; in 52 Bradbury's Forms op Pleading Goods Sold and Delivered II. That on the day of , 19 , the plaintiff, F. S. S., was appointed receiver of said the W. C. M. Co. by the Circuit Court of the United States for the District of Connecticut in a foreclosure suit pending in said court in which the C. T. Co. of New York is complainant and the W. C. M. Co. is de- fendant. That F. S. S., the plaintiff, executed and acknowl- edged in the usual form and filed within five days, with the clerk of the Circuit Court of the United States for the District of Con- necticut, a bond, with sureties approved by said court, condi- tioned for the proper discharge of his duties as such receiver, and to account for all funds coming into his hands according to the orders of said court, in the penal sum of $ , and thereupon took possession of the plant and other property of said the W. C. M. Co., within the State of Connecticut, and entered upon his trust as such receiver, and has ever since been and still is acting and engaged in the discharge of his duties as such receiver. That on the day of , 19 , the plaintiff, F. S. S., was appointed receiver of said the W. C. M. Co. by the Circuit Court of the United States for the District of Massachu- setts, in a foreclosure suit pending in said court, in which the C. T. Co. of New York is complainant and the W. C. M. Co., is defendant. That F. S. S., the plaintiff, executed and acknowl- edged in the usual form, and filed within five days, with the clerk of the Circuit Court for the District of Massachusetts, a bond with sureties approved by said court and conditioned for the proper discharge of his duties as such receiver, and to ac- count for all funds coming into his hands according to the orders of said court, in the penal sum of $ , and thereupon took which a judgment for the plaintiff was affirmed. The defendants attempted to establish a counterclaim based on an alleged breach of warranty without a direct denial of the material allegations of the complaint. It was held that the counterclaims were properly dismissed, the court remarking (p. 167), "The allegations of a complaint are controverted or put in issue only by a general or specific denial. A material fact alleged is not controverted or put in issue by a statement inconsistent with the facts alleged or from which a general denial may be implied or inferred." Complaints 53 Goods Sold and Delivered possession of the plant and other property of said the W. C. M. Co. within the State of Massachusetts, and entered upon his trust as such receiver, and has ever since been, and still is, acting/ and engaged in the discharge of his duties as such receiver. III. That at all times hereinafter mentioned the defendants were, and still are, copartners engaged in the business of com- mission merchants, in the city of New York, under the firm name and style of C. & C. IV. That on or about the day of , 19 , the plaintiff, as receiver as aforesaid, entered into an agreement with the defendants, under the firm name and style of C. & C, to manufacture for and sell the said defendants bicycles, upon specifications furnished, the first shipment to consist of to bicycles to be made within weeks of acceptance of order, and subsequent shipments to be made regularly by almost every steamer of the V. Line to , a minimum quantity of bicycles to be delivered in Europe by the end of [a.nd wheels to be shipped in the months of and , respectively, at the price of dollars a wheel delivered on the dock in New. York City], That, pursuant to such order, plaintiff, as such receiver, has been, since the acceptance thereof, manufacturing and de- livering to the defendants the bicycles therein specified, and has delivered to the defendants thereunder a total number of bicycles, amounting to the sum of $ , which bicycles were duly accepted by the defendants. That defendants have paid to plaintiff on account of the bicycles delivered under said con- tract the sum of $ , leaving unpaid thereon the sum of S , all of which is now due and owing by the defendants to the plaintiff, and no part of which has been paid, although due demand has been made upon the defendants therefor. V. For a second cause of action against the above-named defendants, plaintiff alleges that on the day of , 19 , plaintiff, as such receiver as aforesaid, sold and delivered, to the defendants, under the firm name and style of C. & C, certain goods, wares and merchandise — to wit : juvenile 54 Bradbury's Forms of Pleading Goods Sold and Delivered bicycles at the agreed price of $ each, amounting to the sum of $ ; which is now due and owing by the de- fendants to the plaintiff, no part of which has been paid, although due demand has been made upon the defendants therefor. Wherefore, plaintiff demands judgment against the defendants ■for the sum of $ [etc.]. Form No. 108 Goods Sold and Delivered, to be Paid for by a Third Party ' I. Upon information and belief, that on or about the day of ; 19 , the said defendants herein [trustees of the W. T. M. E. Church] made and entered into a contract in writing with the W. P. and Construction Co. of the city of New York, wherein and whereby the said W. P. & C. Co. was to erect and complete in all particulars, the W. T. M. E. Church of Flatbush, L. I. A copy of said contract is hereto annexed and marked plaintiff's Exhibit " A." II. Among other things it was provided by said contract, as follows: "That all bills for timber and lumber are to be paid by the said trustees representing the said church, and all such bills are to be held by them as vouchers that the said timber and lum- ber is free from any lien or incumbrance. The amounts of said bills are to be deducted from the payments falling due the W. P. & C. Co." III. Upon information and belief that thereafter and upon the order of the W. P. & C. Co., the firm' of M. & Co. delivered and furnished to the W. T. M. E. Church timber and lumber, to the amount of $ IV. Upon information and belief that thereafter the J. R. A. Co. at the special instance and request of these defendants [trusses] paid the sum of $ to the said M. Co., and re- ceived from them an assignment of their aforesaid claim against these defendants. V. That prior to the commencement of this action, the said ^ From Murray v. Estes, 19 App. Div. 209; 45 Supp. 1002; in which, on de- murrer, this complaint was held good. Complaints 55 Goods Sold and Delivered J. R. A. Co. duly assigned to this plaintiff its claim against the defendants herein, and that plaintiff is now the owner and holder thereof for value. VI. Upon information and belief, the payment of the same has been duly demanded, but has been refused. Wlierefore, the plaintiff demands judgment against the de- fendant for the sum of $ , with interest thereon from the day of , 19 , besides the costs of this ac- tion. Form No. 109 Goods Sold to be Delivered to a Third Party ' I. Upon information and belief, that the plaintiff is a foreign corporation duly incorporated and existing under and by virtue of the laws of the Kingdom of Great Britain and Ireland, having its principal place of business at B., Ireland. II. Upon information and belief, that on or about the day of , 19 , at B., Ireland, plaintiff sold and delivered to the defendant at her request, certain goods, wares and mer- chandise particularly set forth in Schedule A hereto annexed and made a part of this complaint. III. Upon information and belief, that the defendant then and there promised and agreed to pay for the same £ , or in United States money the sum of $ , but that the said sum or no part thereof has been paid. Wherefore [prayer for money jvdgment]. 1 From Frazer & H., Lim., «. Mott, 118 App. Div. 791; 103 Supp. 851; in which a judgment of dismissal was reversed. There was evidence that the goods were shipped to a third person at the request of the defendant. 56 Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property CHAPTER V BREACH OF CONTRACT FOR SALES OF PERSONAL PROPERTY PAGE I. Buyer Against Seller 56 II. Seller Against Buyer 61 III. Actions on " Puts and Calls " 72 FORMS NO. Part I. Buyer Against Seller page 114. Breach of contract for sale and delivery of potatoes 66 115. Special damages by reason of contract by purchaser to resell 57 116. Allegation of consequential damages where the goods cannot be pur- chased in the open market 58 117. Delay in delivery of flour; damages caused by decrease in market price 58 Part II. Seller Against Buyer 118. Sale of chattels; refusal of purchaser to complete purchase 61 119. Disposition of goods by seller for account of purchaser holding pur- chaser for loss on transaction 62 120. Breach of contract for sale of chattels to be manufactured 63 121. Allegation of tender where the defendant has not previously given notice that he will not accept the goods 64 122. Breach of contract for the manufacture and sale of perishable article, for which there is a limited market 65 123. Sale of chattel; breach of contract by purchaser refusing to give notes as deliveries are made; amending complaint at trial by changing terms of contract in suit 68 Part III. Actions on "Puts and Calls" 124. Action on "Puts and Calls" 72 I. Buyer Against Seller Form No. 114 Breach of Contract for Sale and Delivery of Potatoes > Supreme Court, County. John K. Comstock, Plaintiff, against Henry H. Goff, Defendant. ' From Comstock v. Goff, 178 N. Y. 558; aff'g, without opinion, 79 App. Complaints 57 Breach of Contract for Sales of Personal Property The plaintiff, by his attorney, G. H., complaining of the de- fendant, alleges : I. That the plaintiff resides at , , and de- fendant resides at , Co., N. Y.: that on or about the day of , 19 , plaintiff and defendant en- tered into an agreement whereby it was mutually agreed be- tween them that the defendant should ship to the plaintiff, within a reasonable time from that date, bushels choice rural potatoes, and that the plaintiff should accept the same from the defendant, and pay him therefor the sum of $ per bushel, free on board cars at , N. Y., upon presen- tation to plaintiff of a draft for said sum with negotiable bill of lading -showing delivery thereof to the railway company, at- tached to said draft. II. That more than a reasonable time for such delivery of said potatoes has elapsed, and the plaintiff has always been ready and willing to receive and pay for them in the manner aforesaid, and has repeatedly demanded the delivery of said potatoes of this defendant in accordance with the terms of said contract. III. That the defendant has neglected and refused to deliver said potatoes, or any part thereof, and has wholly repudiated his said agreement, and that more than a reasonable time has elapsed since the making thereof, and defendant has waived the performance * of any and all acts required of plaintiff, and that plaintiff has suffered damage in the amount for which judgment is hereinafter demanded. Wherefore [prayer for money judgment]. Form No. llS Special Damages by Reason of Contract by Purchaser to Resell I. [Allegations as to making of contract and breach.] Div. 645; 80 Supp. 1132 (without opinion); affirming a judgment in favor of the plaintiff. * Where the promise of a buyer to accept goods and the agreement of the seller to sell are concurrent and mutual, neither can recover without alleging performance or tender of performance on his part. Armstrong v. Heide, 47 Misc. 609; 94 Supp. 434. 58 Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property II. That plaintiff depending on the contract with the defend- ant herein made a contract with one A. B., for the sale of the same goods which he agreed to purchase from the defendant herein for the sum of dollars, or dollars in ex- cess of the sum for which the defendant agreed to sell said goods to the plaintiff, and said defendant was well aware of said con- tract with said A. B., and that the plaintiff agreed to purchase said goods for the purpose of fulfilling his contract with said A. B., and by reason of the failure of the defendant to perform his said contract the plaintiff was compelled to and did go in the open market and purchase said goods at the best price for which he could secure them, to wit, the sum of dollars, to fill his said contract with said A. B., and by reason of the premises the plaintiff has been damaged in the sum of dollars. Form No. 116 Allegation of Consequential Damages Where the Goods Cannot be Purchased in the Open Market I. [Allegations as to making of contract and breach thereof] II. Said goods could not be purchased in the open market on the date on which the defendant herein agreed to deliver the same and it would be necessary to order them to be specially manufactured, involving a delay of months, which delay would have made the goods absolutely worthless to the plain- tiff, as the season in which they might have been sold would have passed. The plaintiff was therefore damaged in the sum of dollars, his reasonable profits on said goods if they had been delivered according to the terms of said contract. Form No. 117 Delay in Delivery of Flour; Damages Caused by Decrease In Market Price ^ I- Tha t at all the times hereinafter mentioned the plaintiffs 1 From Pillman v. DiUqvist, 187 N. Y. 551; in which a judgment in favor of the plaintiff was affirmed. Complaints 59 Breach of Contract for Sales of Personal Property were and now are copartners in trade carrying on business as corn merchants in , England. II. Upon information and belief that at all the times herein- after mentioned the defendants were and now are engaged in business in the city of under the name and style of G.,M.&Co. III. That on or about ,19 , in the city of , the defendants sold to the plaintiffs sacks of C. R. flour of pounds each, branded "C," at the price of shillings, pence English stei'ling per pounds, the aforesaid price including the cost thereof and all insurance and freight charges therefor to , England, the place of delivery ; and which said flour the defendants agreed to dispatch from the mill during the month of , 19 , and for which the defendants agreed to accept payment by draft drawn upon the plaintiffs at sixty days, with documents attached. IV. That on or about ,19 , in the city of New York, the defendants sold to the plaintiff sacks of C. R. flour of pounds each, branded "C," at the price of shillings and pence per pounds, the aforesaid price including the cost and all insurance and freight charges therefor to , England, the place of delivery; and which said -flour defendanto agreed to dispatch from mill within days from , 19 , for which defendants agreed to accept payment by draft drawn upon the plaintiffs at days, with documents attached. V. That on or about the ,19 , in the city of New York, the defendants sold to the plaintiffs sacks of C. R. flour of pounds each, branded "C," at the price of shillings pence per pounds, the afore- said price including the cost thereof and all insurance and freight charges therefor to , England, the place of delivery; and which said flour defendants agreed to dispatch from mill during the month of , 19 , and for which the defendants agreed to accept payment by draft drawn upon the plaintiffs at days, with documents attached. 60 Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property VI. That the defendants failed and neglected to dispatch from mill during , 19 , sacks of flour above mentioned and sold to plaintiffs on or about ,19 , or any part thereof, and further failed and neglected to dispatch from mill within days from , 19 , sacks of flour above mentioned sold to plaintiffs on or about , or any part thereof, and further failed and neglected to dispatch from mill during , 19 , sacks of flour above mentioned, sold to the plaintiffs on or about , 19 , or any part thereof. VII. That the mill from which the flour was to be dispatched and from which the said flour was dispatched as hereinafter set forth was situate at or near , in the State of VIII. That the usual and customary time of transit of flour of the kind and quantity above set forth by the customary and usual means of transportation used by the trade at the time afore- said from to aforesaid was about days. IX. That the market value of the flour of the kind purchased as aforesaid at , England, on or about , 19 , and on or about , 19 , was shilUngs and shillings, respectively, per pounds, and was from shillings pence to shillings pence higher than the contract price for the same flour. X. The plaintiffs further state that after the times limited by the aforesaid contracts the defendants dispatched • the flour purchased as aforesaid from the mill at , , , and said flour was delivered at , England, and received by these plaintiffs, to wit, sacks of pounds each on or about , 19 , sacks on or about , 19 , and sacks on or about , 19 , the market value of which at the dates of said delivery at , England, was shillings per pounds. XI. That the plaintiffs have paid the purchase price of said flour sold as aforesaid and have performed all the provisions of the contract on their part to be performed. XII. That the plaintiffs have been damaged in the sum of Complaints 61 Breach of Contract for Sales of Personal Property $ by reason of the failure and neglect of the defendants to ship the said flour purchased as aforesaid within the times provided therefor in the contract of sale. Wherefore [demand for money judgment], II. Seller Against Buyer Form No. 118 Sale of Chattels; Refusal of Purchaser to Complete Purchase ' I. That on the day of , 19 , the plaintiff and the defendant entered into a contract wherein and whereby the defendant agreed to purchase from the plaintiff and the plaintiff agreed to sell and deliver to the defendant granite paving blocks of the following sizes, to wit : [giving sizes] deliveries to be made on such of the piers of the defendant as the * The above complaint is adapted from Haddam Granite Co. v. Brooklyn Heights R. Co., 186 N. Y. 247. The distinction was made in that case between a sale of goods to be manufactured and a sale of goods which may be either on hand or to be purchased in the open market by the seller. Where the goods are to be manufactured, the rule was recognized, although not decided, that the damages would under some circumstances be the difference between the cost of manufacture and the selling price, while the damages in the case cited were held to be the difference between the market price of the goods at the time and place of delivery, as specified in the contract, and the contract price of the same goods. In Todd v. Gamble, 148 N. Y. 382, the same subject is discussed. There the general rule was recognized to be that for the breach by the purchaser of a contract to purchase goods which are to be manufac- tured by the plaintiff the measure of damages is the difference between the con- tract price and the market price. But it is there pointed out that if there is no regular market for the goods the damages are to be measured by the differ- ence between the cost of manufacturing and the contract price. In Nichols v. Scranton Steel Co., 137 N. Y. 471, the recovery was the difference between the market price and the contract price. While the rule is not entirely settled in the state court, in the Federal Supreme Court the rule seems to be that where the purchaser of goods to be manufactured repudiates the contract in advance of the manufacture of the goods, or is guilty of breach of contract which justi- fies the vendor in suspending the further manufacture of the goods, and he does so, then the measure of damages is the difference between the cost of manufacture and the contract price. Roehm v. Horst, 178 U. S. 1. As to different remedies of seller see Mason v. Decker, 72 N. Y. 575; Horst V. Montauk Brewhig Co., 118 App Div, 300; 103 Supp. 381, 62 Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property defendant might designate, on or before the day of ,19 , and the defendant agreed to pay ^ to the plaintiff the sum of dollars per thousand for such granite paving blocks, within days after the same were delivered. II. That the plaintiff duly delivered thousand of said blocks and the defendant paid to the plaintiff the agreed sum of dollars therefor; that the defendant thereupon in viola- tion of its said contract gave notice to the plaintiff that it would not accept the rernainder of said paving blocks mentioned in said contract, to wit, blocks of the agreed value of dollars. III. That the market value of said granite paving blocks of the size and quality specified in said contract at the time and place where they were to be delivered by the terms of said con- tract between the plaintiff and the defendant, was the sum of dollars per thousand blocks, or dollars for the entire number of blocks, which the defendant refused to accept, and the agreed price of the same blocks by the terms of said con- tract between' the plaintiff and the defendant was the sum of dollars; that by reason of the violation by the defendant of the said contract the plaintiff has been damaged, the difference between the market price and the agreed price of said blocks, to wit, the sum of dollars; that demand has been duly; made for said sum and no part thereof has been paid. IV. The plaintiff has ever been and is now ready and willing to perform the said contract on its part. Wherefore [etc.]. Form No. 119 Disposition of Goods by Seller for Account of Purchaser Holding Pur- chaser for Loss on Transaction I. [Allegations showing making of contract and breach by de- fendant, and notice by the defendant that he will not accept the goods, etc. See Form No. 118.] If no terms of cretlit are specified in the contract, the agreed price is due .upon the delivery of the goods. Poliakoff v. Petry, 50 Misc. 602; 99 Supp. 4S1. Complaints 63 Breach of Contract for Sales of Personal Property II. That upon such refusal the plaintiff only gave notice to the defendant that such goods would be sold at public auction to the highest bidder on the day of » 19 i at [place of sale] ; that at said time and place said goods were offered for sale to the highest bidder and the same were sold for the sum of dollars, which was dollars less than the sum which the defendant agreed to pay therefor; that the expenses of said sale amounted to the sum of dollars, which to- gether with the difference between the contract price and the sale price. pf said goods amount to the sum of dollars, which sum the plaintiff has been damaged by rs^son of the failure of the defendant to perform his said contract, and said sum has been duly demanded of the defendant and no part thereof has been paid. Wherefore [etc.]. Form No. 120 Breach of Contract for Sale of Chattels to be Manufactured I. That on the day of , 19 , the plaintiff and the defendant entered into a contract in writing wherein and whereby the plaintiff agreed to manufacture, sell and deliver to the defendant, and the defendant agreed to purchase from the plaintiff the following goods and chattels, to wit. For the aggregate sum of $ , delivery to be made on or before the day of , 19 , free on board the cars at , payment to be made on sight draft, with bill of lading attached thereto. II. That the plaintiff has ever been and now is ready and willing to perform the said contract on his part and has partially performed the same by manufacturing according to the terms of said contract, the following goods, to wit, which the plaintiff still has in his possession. III. That on the day of , 19 , the defendant, in violation of his said contract, gave notice to the plaintiff that he, the defendant, would refuse to perform the said contract and would refuse to accept said goods when manufactured, and 64 Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property gave notice to the plaintiff not to manufacture any goods under said contract as the defendant would refuse to accept any of said goods. IV. That the cost of manufacturing and delivering said goods free on board the cars at , on or before the day of , 19 ; would be the sum of $ , and by reason of the violation by the defendant of his said contract, the plaintiff has been damaged in the sum of $ , which is the differ- ence between the contract price of said goods, and $ , the cost of manufacturing and delivering the same [or the market price in some cases] ^ which said sum the plaintiff has duly de- manded of the defendant, and the defendant has failed and re- fused to pay the same, and no part thereof has been paid. V. That the goods already manufactured as hereinbefore stated are still in the possession of the plaintiff and the plaintiff has given notice to the defendant that the same were held sub- ject to his, the defendant's, order, and the defendant has not given any direction as to the disposition of the same. Wherefore [demand for money judgment]. Form No. 121 Allegation of Tender ^ Where the Defendant Has not Previously Oiven Notice That He Will not Accept the Ooods I. [Allegations as in previous forms as to making o^ contract, etc.] II. That on the day of , 19 , the plaintiff duly tendered to the defendant said goods at strictly in accordance with the terms of said contract; ^ that the defendant in violation of said contract refused to accept ■• the same. ^ See notes to Form No. 118, ante. ^ If the vendee gives notice that he will not accept any more goods the ven- dor is relieved from the necessity of tendering them. Nichols v. Scranton Steel'Co., 137 N. Y. 471, 485. ' If the contract fixes no time for delivery, the law imports an undertaking to deUver within a reasonable time. lakman v. Wahnetah Silk Co., 110 App. Div. 191;96Supp. 1067. ^ Acceptance, without objection, of goods after the date specified in the Complaints G5 Breach of Contract for Sales of Personal Property III. That the plaintiff thereupon gave due notice to the de- fendant that said goods would be sold at public auction at , on the day of , 19 , and said goods Avere so sold at said time and place for the sum of dol- lars, which was dollars less than said contract price, an ! in which last mentioned sum with dollars, the expenses of said sale, making in all the sum of dollars, the plain- tiff has been damaged by reason of the failure of the defendant to perform his said contract. [Or in place of above] III. That the plaintiff thereupon stored ^ said goods in the name and for the account of the plaintiff in, the ware- house at , and gave due notice to the defendant thereof, and said goods still remain in said warehouse subject to the order of the defendant. Form No. 122 Breach of Contract for the Manufacture and Sale of Perishable Article, for Which There is a Limited Market ^ I. That, at the time hereinafter mentioned, the plaintiffs were and now are copartners engaged in the business of manufac- contract has been held to waive the delay in delivery. E. T. Burrows Co. v. Rapid Safety Filter Co., 49 Misc. 539; 97 Supp. 1048. See also note in 54 L. R. A. 718; Rowland v. Ely, 120 App. Div. 628; 105 Supp. 211. But it has been held that the acceptance of the goods sold after the time of delivery does not preclude the buyer from recovering damages for the delay and that he may coimterclaim therefor when sued for the purchase price. Beyer v. Huber Co., 115 App. Div. 342; 100 Supp. ,1029. ' See Horst v. Montauk Brewing Co., 118 App. Div. 300; 103 Supp. 381, to the effect that a seller of goods may upon tender of performance on his part and demand of payment and refusal of the buyer to perform, treat the prop- erty as belonging to the buyer and sue for the agreed price. The same rule was announced in Mason v. Decker, 72 N. Y. 595, and in that case it was further said that the seller has the election either so to do or to sell the prop- erty as agent of the purchaser, apply the proceeds upon the purchase price and recover the balance, or he may retain the property and recover as damages the difference between the contract price and the market price. ^ From Todd v. Gamble, 148 N. Y. 382; in which a judgment in favor of the plaintiff was afErmed. Vol. 1—.'=; 66 Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property turing and dealing in chemicals, having factories at 'L. I. C, in the State of New York, and an office or place of business in the city of New York, under the name, firm and style of L. F. & Co, II. That during the same times the defendants were and now are copartners engaged in the business of manufacturing soap at I., in the State of 0., and having an office or place of business in C, in said State, under the name, firm and style of P. & G. III. That on or about the day of , in the year 19 , the defendants made and entered into an agreement in writing with the plaintiffs dated on that day, wherein and whereby, they said defendants, agreed to take and purchase from the plaintiffs whatever quantity of silicate of soda they, said defendants, should require to use in their factories during one year from date [one year from the day of j 19 , meaning], the same to be of their, said plaintiffs', regular standard make [meaning that the same was to be of the regular standard quality of the silicate o\ soda manufactured by the plaintiffs], at the price of $ per pounds, free on board in New York [meaning that the same was to be delivered to the defendants on board of boats or railroad cars in New York free from charge or expense to the defendants other than the price of $ per pounds]; "Terms — cash, days" [meaning that the price of silicate of soda was to be paid within days from the time of each delivery of the same]. And in and by said agreement the said defendants reserved the right to use such amount of English silicate as might be neces- sary in their business. And, in consideration of such agreement on the part of the defendants, the plaintiffs undertook and promised to sell and deliver to them as aforesaid, at the price and upon the terms aforesaid, whatever quantities of silicate of soda of the quality aforesaid they, said defendants, should require for use in their factories during one year from said day of , 19. Tlic defendants staic",] and represented to the plaintiffs that they, said defendantrf, would roiiuiri" from to Complaints 67 Breach of Contract for Sales of Personal Property- barrels of the silicate of soda per week, and gave notice to the plaintiffs that they must be prepared to deliver that quantity to the defendants in each and every week. IV. That in order that they, said plaintiffs, might be prepared to deliver to the defendants from to barrels of the silicate of soda per week as might be required by the defend- ants, it was necessary that they should enlarge their plant and increase their facilities for the manufacture of the same; and, in consequence of said representation and notice, and relying upon the performance of said agreement by the defendants on their part, they, said plaintiffs, did enlarge their plant and increase their facilities for the manufacture of silicate of soda at an ex- pense of over $ V. And said plaintiffs further say that, under and in pursuance of said agreement, they delivered to the defendants silicate of soda as follows: — On , 19 , barrels; on , 19 , barrels; on , 19 , bar- rels; on , 19 , barrels; or pounds, all of which the defendants accepted and received and paid for under and in pursuance of said agreement, except the sum of $ VI. And said plaintiffs, upon information and belief, further say that, during the year commencing on the day of , 19 , the said defendants required for use and did use in their factories barrels, or more, of silicate of soda, each barrel containing about pounds, besides the amount of English silicate which they necessarily used in their business. VII. And said plaintiffs say that, although they were ready and willing at all times during the year commencing on agree- ment, in all things on their part to be performed and fulfilled, of which the said defendants had notice, and were ready and willing to deliver to said defendants silicate of soda of the regular stand- ard quality of that manufactured by plaintiffs, free on board of boats or railroads car in New York, at and for the price of $ for each pounds payable in days from the time of delivery, to such amount and in such quantities 68 Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property as the defendants required for use in their factories during tliu year commencing on the day of , 19 , of wliich the said defendants had notice, yet the said defendants^ althougli requested so to do, neglected and refused to perform or fiili,lJ the said agreement on their part, and neglected and refused to take and purchase from the plaintiffs such quantities of silicate of soda as they, said defendants, required for use in their fac- tories during the year commencing on the day of , 19 , besides the amount of English silicate necessarily used in their business, and neglected and refused to take and purchase from the plaintiffs any silicate of soda except the barrels above mentioned. VIII. And said plaintiffs say that in consequence of the failure of the said defendants to perform and fulfill their said agree- ment, they, said plaintiffs, were greatly damnified and injured; that they lost a considerable portion of the expense incurred in enlarging their plant and increasing their facilities for the manu- facture of silicate of soda as aforesaid; that they were deprived of and lost great gains and profits which they would have made and received from the manufacture and sale of the quantities of silicate of soda provided for in said agreement, if the said defend- ants had fulfilled the same; and by reason of the premises they sustained loss and damage, as they are informed and believe, in the sum of $ Wherefore [prayer for money judgment]. Form No. 123 Sale of Chattel; Breach of Contract by Purchaser Refusing to Give Notes as Deliveries Are Made; Amending Complaint at Trial by Chang- ing Terms of Contract in Suit ^ I. On information and belief tha;t at the time and times here- 1 From Nichols v. Scranton Steel Co., 137 N. Y. 471, in which a judgment in favor of the plaintiff was affirmed. The contract of sale was in writing and appears in full in the report of the case. The defendant pleaded a modifica- tion of the contract and full performance thereunder. The modification wm also in writing and is set forth in the report. The plaintiff contended that the words "market price" contained in the amended contract were inserted Complaints 69 , Breach of Contract for Sales of Personal Property inafter mentioned W. R. H. was, and he still is, a merchant doing business at No. Street in the city of P., in the State of Pennsylvania, as a dealer in iron and steel under the name and style of W. R. H. & Co. II. On information and belief that at said time and times the said defendant was and it is still a foreign corporation, created and existing by and under the laws of said State of P. III. On information and belief that on or about the day of J 19 ; the said W. R. H. under the said name and style of W. R. H. & Co. made and entered into a contract in writing with said defendant, of which a copy is hereto annexed and marked Schedule "A," and is hereby referred to and made part of this complaint. IV. On information and belief, that thereupon and thereafter the said W. R. H. delivered to said defendant divers quantities of the Bessemer pig iron mentioned in said contract, the items whereof, with the dates of the deliveries of the same, are set forth in a schedule thereof, which is hereto annexed and marked Schedule "B," and is hereby referred to and made a part of this complaint. V. That the aggregate amount of said items of said Bessemer pig iron is tons. VI. On information and belief, that said Bessemer pig iron was so delivered as aforesaid pursuant to said contract, and in part performance thereof on the part of the said W. R. H. VII. Upon information and belief, that said Bessemer pig iron, so delivered as aforesaid, was received and accepted by said defendant under said contract as pro tanto a performance thereof on the part of the said W. R. H. VIII. That the values of said quantities of said Bessemer pig iron, so delivered as aforesaid, at the price named in said con- by mistake of both parties for the words "contract price" and upon proof being offered to this effect the referee before whom the case was tried allowed the complaint to be amended to conform to the proof which ruling allowed the plaintiff to recover as if the words "contract price" were contained in the modified contract. This ruling was sustained by the Court of Appeals and a money judgment affirmed. Bradbury's Forms of Pleading Breach of Contract for Sales of Personal Property tract were the sums set opposite the several items thereof in said Schedule " B," and in the aggregate amounted, at said price, to the sum of $ IX. On information and belief, that such defendant has paid to the said W. R. H. on account of said quantities of said Besse- mer pig iron so delivered as aforesaid divers sums of money, and in further payment therefor has delivered to said W. R. H. divers promissory notes. X. On information and belief, that the items of said sums of money and the amounts of said promissory notes, with the dates of the payment of said sums of money and of the delivery of said notes, and the present worths of said notes at the respective dates thereof, are set forth in a schedule of the same, which is hereto annexed and marked Schedule "C," and is hereby re- ferred to and made part of this complaint. XI. That the aggregate amount of said sums of money and said present worths of said promissory notes is the sum of $ XII. That the balance of said sum of $ is the sum of $ XIII. On information and belief, that thereupon and there- after, and before the commencement of this action, the said de- fendant repudiated and renounced said contract, and refused to be bound then or thereafter by the terms thereof, or to fulfill then or thereafter the conditions or any of the conditions of said contract required by the terms thereof to be performed on the part of said defendant. XIV. On information and belief that thereupon and there- after and before the commencement of this action payment of the said balance was demanded by the said W. R. H. of said defendant, but the same has not been paid nor any part thereof. XV. That the balance of the whole amount of tons of said Bessemer pig iron mentioned in said contract over and above and after deducting therefrom the aggregate amount of the same so delivered as aforesaid, is tons thereof. XVI. On information and belief, that the said W. R. H. was COMFLAlNfS Breach of Contract for Sales of teis^nal Property at all times prior to the assignment hereinafter mentioned, and the said plaintiff ever since said assignment has been ready, able and willing to deliver the said balance of tons of said Bessemer pig iron to said defendant pursuant to the terms of said contract, and to perform all the conditions of said contract re- quired by the terms thereof to be performed on the part of the said W. R. H. XVII. On information and belief that said defendant has re- fused and still refuses to receive or accept and pay or settle at the price named in said contract for said tons of said Bessemer pig iron or any part of the same. XVIII. On information and belief that the market price and value of said Bessemer pig iron was at the date of said refusal, and at all times since said refusal, has been not more than $ per ton, and said pig iron could have been bought and sold at any and all times since said date at not more than said price; wherefore, the said W. R. H. was, and the said plaintiff now is, damaged by said defendant's said refusal in the sum of $ per ton thereof, amounting in tlie aggregate to the sum of $ XIX. That after the said deliveries of the said tons of said Bessemer pig iron, and after the said repudiation and renunciation of said contract and refusal to be bound by the terms or fulfill the conditions thereof, and after the said demand of payment of the said sum of $ , and after the said re- fusal of the said defendant to receive or accept and pay or settle for the said tons of said Bessemer pig iron, and before the commencement of this action, the said W. R. H. assigned to the said plaintiff all his claims and demands of any and every sort whatsoever against the said defendant" which he had under and by virtue of said contract, by deed of assignment bearing date on the day of , 19 , and on said day duly made, executed, acknowledged and delivered to said plaintiff. XX. That said plaintiff at the time of the commencement of this action and for a long time prior thereto was and he still is a 72 Bradbury's Forms of Pleading Rreach of Contract for Sales of Personal Property resident of the city of B., in the county of K., in the State of New York. Wherefore [prayer for money jvdgment]. III. Actions on " Puts and Calls " Form No. 124 Actions on " Puts and Calls " ^ I; That on the day of , 19 , the defendant, for a valuable consideration, duly made and delivered a contract ^ While much of the business on the various stock exchanges in the country represents purchases made by actual deliveries of stocks, a large percentage of the dealings in stocks is carried out by means of contracts known as "puis and calls." Sometimes merely a "put" is sold and at others merely a "call," while again the contract is both a "put" and a "call" and is sometimes termed a, "straddle." By a "put" the signer of the contract agrees that lie will purchase from the holder of the contract at any time within a certain period, a specified number of shares of the stock of a particular corporation, at a price named. In other words, that the holder of the contract may "put" to him the stock mentioned within the time specified and he will pay the price therein agreed upon for it. The one who signs this "put" sells it to the first holder for such sum as may be agreed upon between the parties. The pur- chaser of the "put" of course expects that the stock will go below the price mentioned in the "put," in which event he will buy it in the open market and "put" it to the signer of the contract. Thus, merely by way of illustra- tion, if a certain stock is selling at 99 and the purchaser of the "put" thinks that probably the price will go down to 96 or lower he may propose to buy from the maker of the contract a " put " for 100 shares of the stock at 97 and offer to pay $100 for the contract. The maker of the contract believes that the stock will rise in value and therefore sells the "put." Now, if within the time specified in the contract the price goes below 96 the holder of the contract can buy the stock in the open market and tender it to the maker of the con- tract at 97. The profits of the holder of the contract will be the difference between the price at which he can buy the stock and the value thereof at S96 per share, the one dollar a share between 96 and 97 representing the amount which he has paid for the "put." A "call" works out on exactly the same principle, except that in this case the signer of the contract agrees that he will sell to the holder thereof, within a time specified, a certain number of shares of a particular stock at a price named. That is, the holder of the contract may "call" upon him for the stock within the terms of the contract. In this case the maker of the contract hopes that the price of the stock will remain below the price specified in the contract and therefore he will not receive a " call" to deliver it at the contract price, for if the market price should go above the con- Complaints 73 Breach of Contract for Sales of Personal Property in writing wherein and whereby he agreed at any time on or before the day of , 19 , to purchase from the owner and holder of said contract shares of the common [preferred] stock of the , and to pay therefor at the rate of dollars per share. II. That on or before the day of > 19 , the plaintiff duly purchased said contract for value in the open mar- ket and is now the owner and holder thereof. III. That on the day of , 19 , at in the city of , the plaintiff duly tendered to said de- fendant shares of the common [preferred] stock of , being the same stock mentioned in said contract; and said stock when so tendered was duly indorsed and assigned in blank by the person to whom the same was issued; and the plaintiff at said time and place demanded of the defendant, C. D., the said sum of dollars, being the contract price men- tioned in said contract; and the defendant failed and refused to accept said stock and pay for the same and no part of said sum has been paid except as hereinafter stated. IV. That thereafter and on the day of , 19 , at in the city of , due notice was served on said CD., the defendant herein, that said stock would be sold at auction to the highest bidder for cash at in the city of on the day of , 19 , at o'clock jn the forenoon; that at said time and place and strictly tract price he would be compelled to purchase the stock in the market and de- liver it at a loss. Sometimes these contracts, as before stated, contain both a "put" and a " call," in which event the maker of the contract takes a chance both ways and therefore he demands a higher price for the contract. These "puts and calls" are entirely diiferent in their details from "margin" trans- actions, in that the stock itself is, in a large majority of cases, not purchased or sold at all in " put-and-call " transactions. If the option of the "put" or "call" is exercised the parties usually settle by a payment of the difference between the market and the contract price, without having the stock change hands at all. In margin transactions the stock is usually actually purchased and held for the account of the purchaser by the banker or broker who makes the purchase for the customer. Except in the so-called " bucket shops " where there is hardly a pretense of an actual sale or purchase, but a mere gambla that the stocks will go up or down. 74 BeAdbury's Forms of Pleading Breach of Contract for Sales of Personal Property pursuant to the terms of said notice said stock was so offered for sale at auction ' to the highest bidder for cash and the same was sold for the sum of dollars, the proper costs and expenses of said sale being the sum of dollars. Wherefore [demand for money judgment]. ' Of course, if the action was on a "call" instead of a "put" the allegations would be .that the plaintiff had demanded the stock and tendered payment therefor at a specified time and place. The damages would be the difference between the contract and the market price of the stock. . Complaints 75 Breach of Contract of Warranty CHAPTER VI BREACH OF CONTRACT OF WARRANTY * FORMS "O- PAOE 130. Express warranty as to quality of carpet 75 131. Sale of potatoes 77 132. Seed wheat yg 133. Warranty. Representations made by seller as to quality when the quality is known to the seller but not to the buyer; storage eggs ... 80 134. Purchase of cloakings by sample 82 135. Written contract for sale of oil; when warranty will be implied 84 136. Title of goods; implied warranty 90 137. Implied warranty in sale of judgment 91 138. Implied warranty upon sale of corporate stock that it is free from liens 93 Form No. 130 Express Warranty as to Quality of Carpet ^ I. That at , on or about the day of , 19 , the defendant offered to sell the plaintiff for $ , to be paid to him by this plaintiff, yards of carpet, * An agent to sell has no implied authority to warrant. McKeige v. Carroll, 120 App. Div. 522; 105 Supp. 342. Consequential damages. — A provision in a contract of sale warranting a machine sold " to do good work, to be well made, of good materials and to be durable, if used with proper care " cannot be construed to relate to anything beyond the machine to properly accomplish ther purpose for which it was made, and for an indemnity to the buyer against its failure in that respect; the pur- chaser cannot recover damages for personal injuries by reason of the breaking down of the machine. Birdsinger v. McCormick Harvesting M. Co., 183 N. Y. 487. See the seed cases cited in note to Form No. 132. Acceptance and retention of property. — There seems to be great confusion in the case as to when a warranty will survive acceptance. It is held generally that an express warranty survives acceptance and that the buyer may keep the goods and recover damages for the breach of the warranty, either in an independent action, or by way of counterclaim when he is sued for the pur- ^ From Lindsay v. Mulqueen, 26 Hun, 485. 76 Bradbury's Forms of Pleading Breach of Contract of Warranty which said carpet defendant warranted [and fraudulently repre- sented] to be a first class imported English body Brussels carpet and made of all wool. chase price. Van Wyck v. Allen, 69 N. Y. 61; White v. Miller, 71 N. Y. 118- Hawkins v. Pemberton, 51 N. Y. 198. In the last mentioned case, the court said: "Here there was a positive repre- sentation that the article sold was blue vitriol; the plaintiff meant the pur- chasers to imderstand that it was blue vitriol, and he sold it as such. The defendant relied upon the representations believing it to be blue vitriol, and bought it as such. If,, upon these facts, the court was not authorized to hold as matter of law that there was a warranty, it was at least bound to submit the question of warranty to the jury.'' "It is now quite well settled that the acceptance by the vendee of articles manufactured for him under an executory contract, after an opportunity to examine them, precludes him from raising any question as to defects or im- perfections which were visible and capable of discovery on inspection, unless there is a warranty of their quality which was intended to survive their ac- ceptance, and give the vendee further time for trial and examination. When there is such a warranty the vendee may still retain the goods, and when ac- tion is brought for their price, recoup such damages as he can show he has suf- fered by reason of the defective or inferior character of the gbods delivered. He may also, in such an action, recover damages for a breach of contract on the part of the vendor in respect to the time of its performance, if he can prove that he has suffered loss therefrom." Norton v. Dreyfuss, 106 N. Y. 90, at p. 94. See also Tompkins v. Lamb, 121 App. Div. 366; 106 Supp. 6, where a breach of contract as to the kind of stone used in a monument was held to survive acceptance where expert evidence was necessary to discover the fact of the breach of the contract. An implied warranty that goods are merchantable, does not survive accept- ance where there is an opportunity for the buyer to inspect the goods and discover alleged defects. And if he does accept them and keeps them after discovering defects, the implied warranty is waived, and the buyer cannot recover damages for its breach. ' Waeber v. Talbot, 167 N. Y. 48. In an action on a note for the price of goods sold, where the defendant sets up breach of an express warranty as a defense, but not as a counterclaim, he must show a rescission of the contract by showing the return or offer to return the goods. P. H. & F. M. Roots Co. v. N. Y. Foundry Co., 101 Supp. 104. Where a refrigerating plant erected for the plaintiff by the defendant under a contract failed to meet an express warranty contained in the contract, it was held that the defendant had a right to retain it and recover or offset as dam- ages the difference between the value of the plant as erected and its value had it been as required by the contract. Isbell-Porter Co. v. Heineman, 113 App. Div. 79; 98 Supp. 1018. Where a fire hose did not last for a year as guaranteed by the seller, but the Complaints 77 Breach of Contract of Warranty II. That the plaintiff, relying on said warranty and repre- sentations and believing the same to be true, was induced thereby to purchase, and did purchase the same from the defendant and paid him therefor $ III. That in truth and in fact said carpet so sold as aforesaid was not a first-class imported English body Brussels carpet made of all wool, as by the defendant warranted and represented, but the same was of a mixed texture known as jute and was a greatly inferior article [all of which the defendant knew at the time he made the fraudulent warranty and representations aforesaid]. Wherefore [demand for money judgment]. Form No. 131 Sale of Potatoes ^ I. On information and belief, that at all times herein men- tioned the defendants were and still are copartners doing busi- ness at N., N. J., and elsewhere, as wholesale dealers in hay, straw, grain, potatoes and other produce, by and under the firm name and style of M., W. S. & Co. purchaser had used it for some time before it gave out, in an action on the warranty, it was held that the plaintiff could not recover the purchase price, but merely the difference between the value of the hose had it complied with the warranty, and its actual value. Macrea v. Gotham Rubber Co., 113 App. Div. 455; 99 Supp. 373. If property is returned for an alleged breach of warranty, or because of alleged fraud and the seller accepts the same, the contract of sale is rescinded, unless the acceptance is conditional. Dougherty v. Neville, 108 App. Div. 89; 95 Supp. 806. A sale by sample amounts to an express warranty, and the right to recover for the breach of such warranty survives acceptance by the buyer even though the defects were discoverable upon inspection. Staiger v. Soht, 116 App. Div. 874; 102 Supp. 342. A statement on the billhead of one making a sale, that all claims must be made within ten days after the receipt of the goods has been held not to be binding on the purchaser. Dodato v. Gatti-McQuaid Co., 97 Supp. 972. Pleading warranty ns defense. — An independent contract of warranty as a defense to a contract of sale which contains no warranty must be pleaded to be available as a defense. McKeige v. Carroll, 120 App. Div. 522; 105 Supp. 342. ^ From Hogue v. Simonson, 188 N. Y. 637; aff'g, without opinion, 114 App. Div. 906; in which judgment in favor of the plaintiffiWas affirmed. 78 Bradbury's Forms of Pleading Breach of Contract of Warranty II. Plaintiff further shows to this court, on information and belief, that before the time of the commencement of this action, and on or about ,19 , in the county of S., N. Y., said plaintiff purchased of the defendants, as such firm, a quantity of potatoes; that at the time of the purchase and shortly prior thereto the said defendants stated, represented and warranted to this plaintiff that the said quantity of potatoes amounted to bushels, and that the same were fancy and uniform round stock and, with few exceptions, free from small, very large or long potatoes, and not grub eaten, and of first-class quality and condition. That relying upon said statements, repre- sentations and warranty the plaintiff purchased the said pota- toes and paid to the defendant therefor cents per bushel for bushels, amounting to $ , or thereabouts, and that said statements, representations and warranty were false and untrue; that the said quantity of potatoes contained many very small potatoes, a large quantity of very large ones and many long ones and very few round ones, and a large per- centage thereof were grub eaten, and the said potatoes were not in good order and condition, and were not fancy stock or uniform round stock, as stated, represented and warranted. That by reason of said facts and premises the plaintiff was damaged in the sum of $ , as he is informed and believes, which became due before this action and on or about the day of , 19 , and remains wholly due and unpaid. Wherefore [prayer for money judgment]. Form No. 132 Seed Wheat ^ I. That on the day of , 19 , the plaintiff 1 From Prentice v. Fargo, 53 App. Div. 608; 65 Supp. 1114; aff'd 173 N. Y. 593; in which judgment absolute was ordered in favor of the plaintiff. A sale of seed as alfalfa seed, when as a matter of fact a large percentage of the seed is trefoil and dodder, constitutes a breach of an implied warranty for which the seller is liable. Depew v. Peck Hdw. Co., 121 App. Div. 28; 105 Supp. 390. (See cases cited herein.) An implied warranty arises from a sale of seed oats that they do not con- Complaints 79 Breach of Contract of Warranty purchased of the defendant a quantity of wheat, to wit, about bushels thereof, which the defendant warranted and represented was good number seven winter wheat, fit and proper to be sown, and that the same had not been heated or damaged or rendered unfit for sowing, and that the same had not been wet, and that none of it had grown. That plaintiff purchased said wheat for the purpose of sowing the same to raise a crop in the usual course of husbandry, which fact was well known to de- fendant at the time of the sale thereof by the defendant to this plaintiff. II. Plaintiff further alleges upon information and belief that said wheat was not good wheat and not fit to be sown, and had been heated and fermented, and damaged, and' had been wet and some of it had grown before being threshed. III. That by reason of the premises only a small portion thereof would grow, or could be made to grow and raise wheat. IV. That plaintiff relying upon said warranty and represen- tations, and believing them to be true, sowed about bushels of said wheat upon acres of land, owned and occupied by him, that being the usual amount of wheat sown upon that quantity of land, the said land being properly culti- vated and prepared, and said wheat properly sown and put in as seed wheat; and that by reason of the facts hereinbefore stated and because said wheat had been heated and fermented, and was not good, or fit or proper to be sown, and had lost its power to grow, and had been wet and had grown as aforesaid, only a small portion thereof ever gi-ew or came up, and plaintiff ob- tain other seeds, which warranty is broken by the presence of mustard seed in considerable quantities with the oats. Bell v. Mills, 78 App. Div. 42; 60 Supp. 34. "The doctrine that a bargain and sale of a chattel of a particular descrip- tion imparts a contract of warranty that the article sold is of that description is sustained by a great weight of judicial authority. ... A dealer who sells an article describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies apon the description as a representation by the seller that it is the thing de- scribed and this constitutes a warranty." White v. Miller, 71 N. Y. 118, at p, 129. 80 Bradbury's Forms of Pleading Breach of Contract of Warranty "tained only about bushels of wheat from said crop and only a small quantity of straw, whereas if said wheat had been as represented and warranted as aforesaid, plaintiff, as he is in- formed and believes, could and would have obtained from said wheat, so sown, a large crop, to wit, over bushels of wheat and tons of straw, whereby plaintiff suffered damages in the sum of $ Wherefore [prayer for money judgment]. Form No. 133 Warranty. Representations Made by Seller as to Quality When the Quality is Known to the Seller but not to the Buyer; Storage Eggs ' I. That the plaintiffs are now and were at all times hereinafter mentioned copartners in business under the firm name or style of E. & C, and the defendant above named is and was at all of said times a foreign corporation organized and incorporated under the laws of the State of I. II. That on or about the day of , 19 , the defendant offered to sell the plaintiffs for $ , to be paid to it by these plaintiffs, carloads of eggs, which said eggs defendant warranted to be "selected" storage eggs, which qual- ity is the second highest grade of storage eggs, and is also known to the trade as "storage firsts." III. That these plaintiffs, relying on said warranty^ and repre- sentations and believing the same to be true, were induced thereby to purchase and did purchase said carloads of eggs con- sisting of dozen in all, from said defendant and paid it 1 From Egbert v. Hanford Produce Co., 92 App. Div. 252; 86 Supp. 1118; in which a judgment in favor of the plaintiff was affirmed. Where oil was sold under written contract that it was of a certain quality and test, and when delivered it was found not to come up to the standard, and the buyer upon examining it rejected it for these reasons, it was held that there was an implied warranty that the oil was as stated in the written contract and the buyer upon rejecting it, after discovering the defect, had a nght to recover from the seller the purchase price already paid. Carleton v. Lom- bard, Ayres & Co., 149 N. Y. 137. For complaint in last-mentioned case see Form No. 135. Complaints' 81 Breach ot Contract of Warranty therefor cents per dozen, or the sum of $ ; that said eggs were not delivered and did not come into the hands of these plaintiffs upon the purchase or when payment therefor was made, but the same were upon said sale taken and held by the defendant as warehousemen for these plaintiffs, at , Iowa. IV. That thereafter the plaintiffs directed said defendants who were still in possession of said eggs to ship the same to said plaintiffs at their place of business in the city of , and that thereafter said eggs were so shipped by the defendant and received by the plaintiffs. That to that time, that is to say, the time of such receipt of said eggs by the plaintiffs, they had no opportunity to see or inspect, nor had they seen or inspected the said eggs. V. That upon an inspection of said eggs by the plaintiffs made immediately after their arrival, it was ascertained, and the plain- tiffs allege the fact to be, that said eggs were not of the quality or kind warranted and agreed by the defendant upon said sale as aforesaid; that they were not selected storage eggs, nor were they the second highest grade of storage eggs, nor were they of the grade or quality known to the trade as "storage firsts," biit on the contrary that said defendant had failed to perform its agree- ment with said plaintiffs; that said eggs were of a ^-ery inferior kind and quality, in part of the quality known to the trade as "storage seconds," the lowest grade of eggs known to the trade, and the remainder being most of the eggs shipped to the plaintiff as aforesaid of a quality so poor that no grade could be given them, and all of said eggs were of a quality which in the market commands, and then commanded, a smaller price, and is, and then was, of much less value than eggs of the kind and quality warranted and agreed by the defendant. VI. That all of said eggs were on an average worth cents per dozen, less than they would have been had they been of a kind and quality agreed and warranted by the defendant, and said plaintiffs have sustained at least $ damages in consequence of such breach of agreement by the defendant. Vol. 1—6 82 Bradbury's Forms of Pleading Breach of Contract of Warranty VII. That these plaintiffs, immediately on ascertaining that said eggs were not of the kind or quality warranted and agreed as aforesaid, notified said defendant of the character and con- dition of said eggs as aforesaid, and offered to return the same or to hold and dispose of the same as the defendant might elect, but the defendant refused to receive the said eggs or to return to the plaintiffs the price therefor, whereupon the plaintiffs, as said eggs were perishable and rapidly deteriorating in value, notified the defendant that they would dispose of said eggs in the open market for the best price that could be obtained there- for; that thereafter the plaintiff did so dispose of said eggs and received and realized for the same $ , which is $ less than the sum paid for said eggs by the plaintiffs to the de- fendant, and at least $ less than would have been re- ceived and realized for said eggs by the plaintiffs had they been of the kind and quality warranted and agreed by the defend- ant. Wherefore [prayer for money jvdgment]. Form No. 134 Purchase of Cloakings by Sample ^ I. That in or about the month of , 19 , at the plaintiff bought certain goods of the defendant, by samples, * From Briggs v. Hilton, 99 N. Y. 517. A sale by sample amounts to an express warranty which survives acceptance even though defects complained of are discoverable on inspection. Slaiger r. Soht, 116 App. Div. 874; 102 Supp. 32. Where there is a variance between the specifications in the contract and the sample the specifications will usually prevail if there has been no fraud on the part of the seller. Davis v. Reisinger, 120 App. Div. 766; 105 Supp. 603. Exhibition merely of a sample is insufficient to find a sale by sample: the evidence must show that the parties agreed or understood that the bulk of the commodity conesponded to the sample. Pascal v. Goldstein, 51 Misc. 629; 100 Supp. 1025. Where a contract wa.s made to sell Bassein rice "like sample" both parties believing the sample to be Bagsein rice, when as a matter of fact the sample Complaints 83 Breach of Contract of Warranty which represented sound and merchantable goods suitable for and known as "cloakings," which goods defendant agreed should in all respects be equal to such samples, and plaintiff bought relying thereupon. II. That in the month of thereafter following, de- fendant delivered to plaintiff six bales containing fifty-seven pieces of such cloakings; that the first bale so dehvered con- tained ten pieces, which plaintiff examined and found to corre- spond with said samples. III. That relying upon defendant's said agreement and guar- antee, plaintiff accepted and paid for said six bales the agreed price, to wit, $ IV. That thereafter, and without knowledge of their real con- dition, plaintiff sold and delivered a portion of said goods to their customers; that said customers afterwards returned the same as damaged, and refused to keep or pay for same; that thereupon plaintiff examined the goods contained in said five was Java rice of a much better quality, it was held that the buyer could only hold the seller as long as both were ignorant of the mistake and could not hold the seller for orders accepted after the buyer was aware of the error although the seller had not yet discovered it. Davis v. Reisinger, 120 App. Div. 766; J05 Supp. 603. "When the seller is the maker or manufacturer of the thing sold, the fair presumption is that he imderstood the process of its manufacture and was cognizant of any latent defect caused by such process, and against which rea- sonable diligence might have guarded. This presumption is justified, in part, by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purpose for which such or similai- articles are designed. When, therefore, the buyer has no op- portunity to inspect the article, or when from the situation, inspection is im- practicable or useless, it is unreasonable to suppose that he bought on his judgment or that he did not rely on the judgment of the seller as to latent de- fects, of which the latter, if he used due care, must have been informed, during the process of manufacture. If the buyer rehed, and under the circumstances had reason to rely on the judgment of the seller, who was the manufacturer and maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use." Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, quoted with approval in Carleton v, Lombard, Ayres & Co., 149 N, y, 145, 84 Bradbury's Forms of Pleading Breach of Contract of Warranty other bales, so delivered by defendant, and found that no part thereof corresponded with said samples, but they were im- perfect, unmerchantable and wholly unfit for cloakings and of no value therefor. V. That plaintiff immediately notified defendant of the char- acter and condition of said goods, as aforesaid, and offered to return the same, but defendant refused to receive them or to return to plaintiff the price paid therefor. VI. That by reason aforesaid, plaintiff has been damaged $ Wherefore [demand for money jvdgment]. Form No. 135 Written Contract for Sale of Oil; When Warranty Will be Implied;* Recovery Against Manufacturer of Amount of Recovery by Second Buyer Against Original Purchaser. I. That at all the times hereinafter mentioned the plaintiffs were and still are copartners, doing business as such in the city of under the firm name or style of C. & M. II. That throughout the same period the defendant was and still is a domestic corporation organized and existing under the laws of the State of , and during and throughout the year 19 , was engaged in the manufacturing or refining pf petro- leum oil for export, having its manufactory or refinery located at the city of , in the State of III. That on or about the day of , 19 , the plaintiffs entered into a contract in writing with the defendant in the words and figures following, to wit : ' From Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, in which a judg- ment in favor of the defendant was reversed, it being held that there was an implied warranty. Complaints 85 Breach of Contract of Warranty "Form No. "Case Oil Contract. "New York, ,19 . "Sold for Account of L. A. & Co. "ToC.&M. f " cases per cent, more or less, each case packed with two of their patent cans, with low screw tops or nozzles, and brass labels, containing gal- lons each of refined petroleum of their S. Brand, Color o irt c; J^ Standard White or better; fire test 76 degrees Abel or up- ^ 2 wards, at cents per gallon, cash on delivery. ^ g To be delivered in yard free of expense to vessel, to be p _§ ready not earlier than the day of , 19 , ^ ^ not later than the day of , 19 , with ^ p, days to load. ^ ;j " Brass labels, cent each. "^ =a "AH drawbacks to accrue to sellers. Buyers to com- '^ pq plete bond and furnish landing certificates. In case of damage by fire or other accident, by reason of which p sellers are unable to deliver the goods in the time speci- eg fied in this contract, a notice from sellers that they in- | tend to repair their works shall make it the duty of the 5- buyers to elect, within hours, whether they will allow an extension of time, sellers paying any demurrage that may accrue, or accept other brands. "Subject to the rules of the New York Produce Ex- change. " Brokerage, per cent, by sellers. "B. &C., " Brokers. "Accepted, New York, ,19 . "C. & M. "L.A.&C0." IV. That plaintiffs entered into said contract for the purchase of said refined petroleum with the express intention of shipping 86 Bradbury's Forms of Pleading Breach of Contract of Warranty the same on board of a sailing vessel at defendant's yard at , for direct transportation to the port of , , of which intention the defendant was duly informed and well knew at the time said contract was entered into and said contract was made, with the understanding, on the part of both plaintiffs and defendant, that the plaintiffs would forth- with, upon delivery of said petroleum by defendant, ship the same to , aforesaid. V. That before closing said contract with defendant for the purchase of said petroleum, as aforesaid, these plaintiffs had received from J. H., N. G. and others, composing the firm of G. & Co., of , , a firm offer of purchase of a like amount of refined petroleum, of the same brand, test and packing, to be shipped at the port of not later than the day of , 19 , for account and risk of said G. & Co. on board the British ship C, bound for , which said firm offer was accepted by these plaintiffs immediately after the closing of said contract with this defendant, and in full re- liance upon its carrying out the terms and provisions of said contract, as well as of the warranties hereinafter set forth. VI. That in pursuance of the contract so entered into between these plaintiffs and this defendant, on the day of ,19 , as aforesaid, said defendant, between the day of , 19 , and the day of , follow- ing, delivered at its yard in , alongside of saidC, cases, each case purporting to contain cans of refined petroleum of said "S" brand, which said petroleum had been refined by this defendant. VII. That the defendant, in consideration of the purchase of said petroleum by these plaintiffs, warranted to the plaintiffs : (1) That the refined petroleum contained in said cans was of good and merchantable quality. (2) That the said petroleum had been properly manufactured or refined, and contained no latent or hidden defects resulting from the process of manufacture or refining; and (3) That the said petroleum was in fit condition to be trans- Complaints 87 Breach of Contract of Warranty- ported to by a sailing vessel, and be delivered there in good order and condition. VIII. That prior to the delivery of said petroleum under said contract, as aforesaid, the same had been duly inspected and examined in the ordinary and usual manner by an authorized inspector of the New York Produce Exchange, thereunto nomi- nated under the rules of said exchange by these plaintiffs, which was the mode of inspection contemplated and approved by the parties hereto under the rules of said Produce Exchange, and the said inspector having certified that said petroleum was in accordance with said contract, it was thereupon delivered along- side of said C, as aforesaid, and was forthwith stowed by these plaintiffs on board of said vessel for transportation to said G. & Co., at IX. That thereupon, and relying on the defendant's said war- ranties as set forth in the seventh paragraph of this complaint, these plaintiffs paid to said defendant the full purchase price agreed, of $ X. That thereafter, and on or about the day of , 19 , said C. sailed from defendant's yard at , , for the port of aforesaid, where it arrived in due season and began the discharge of its said cargo; that during the course of such discharge it was for the first time ascertained, and plaintiffs charge the fact to be, that the merchandise so delivered by defendant, as aforesaid, was not refined petroleum of a merchantable character, and was not of a merchantable commodity; that on the contrary, a very large proportion of the cans so delivered contained petroleum imperfectly refined and not so refined as to be of a merchantable character, but contained foreign substances which would, in the course of transportation, corrode the cans and whi^h should and would have been elimi- nated therefrom by proper refinement, and the presence of which rendered the said so-called petroleum wholly unmerchantable and unfit for transportation; so that when the same arrived at said port of the said cans, with few exceptions, had become corroded and perforated by the action of the contents thereof to 88 Bradbury's Forms of Pleading Breach of Contract of Warranty such an extent that they would not retain such contents, and could not be delivered as an article of merchandise or commerce at said port. XI. That the defects in said oil were of a hidden nature and were latent defects, and were not such as could have been dis- covered by inspection or examination of said oil that it was prac- ticable for these plaintiffs to make at the time said oil was de- livered to them in defendant's yard in as aforesaid. XII. That at once, upon discovering the real character and Condition of said oil, these plaintiffs duly informed said defendant of such character and condition, declined to accept said oil as a sufRcient tender under their said contract with defendant, and asked instructions from defendant with regard thereto. That said defendant refused to take retm-n of said oil from these plain- tiffs, but in consideration of the complete acceptance of same by plaintiffs as a sufficient tender under their said contract with defendant, said defendant then and there represented and war- ranted to plaintiffs that said oil was in good order and condition, had been properly refined, and contained no defects whatsoever at the time of its shipment on board said C, at as afore- said. XIII. That, relying upon said representations and warranty, and upon the warranties made by said defendant as hereinbefore and in the seventh paragraph of this complaint contained, these plaintiffs declined to accept the return of said oil from said J. H., N. G. and others, or to exercise any act of ownership with regard thereto, said G. having notified plaintiffs, upon ascertaining the true character and condition of said oil at the time of its ship- ment as aforesaid, that they would not accept the same as a sufR- cient tender under their contract of purchase fropi plaintiffs. XIV. That thereupon and thereafter and on or about the day of , 19 , said J. H., N. G. and others, having paid unto these plaintiffs the agreed purchase price of said oil before the true character and condition thereof had been or could have been ascertained, brought their suit in the Court of the State of against said plaintiffs to re- Complaints 89 Breach of Contract of Warranty cover the damages they had sustained by reason of said oil being unmerchantable at the time of its shipment on said C, at . That these plaintiffs at once informed defendant herein that such action had been brought, at the same time requesting said d(>feudant to intervene and assume the defense thereof, and giving duo notice that they would look to it for all damages and expenses they might be put to by reason thereof. That said defendant was duly notified of the progress of said suit from its commencement to its final termination; took part, through its officers, servants and counsel, iji the preparation of the defense thereof for trial ; furnished evidence to prove, among other things, that said oil had been properly refined and was merchantable, and up to contract at the time of its shipment in as afore- said; its president and its employees attended and were ex- amined as witnesses on the trial of said action; and said defendant was represented by its own counsel throughout such trial, other than the counsel for the plaintiffs herein. XV. That such proceedings were had in said action; that at a circuit of this court, held in the city and county of , during the months of and ,19 , a verdict was rendered therein against these plaintiffs and in favor of said J. H., N. G. and others, for the sum of $ XVI. That thereafter and on the day of 19 , judgment was duly entered in said action in favor of said J. H., N. G. and others and against these plaintiffs for the sum of I damages and costs, which sum these plaintiffs were obliged by law to pay, and, after due notice to this defendant, and on the day of , 19 , did pay, less, how- ever, the sum of $ agreed by J. H., N. G. and others to be deducted from the amount of said judgment upon the same being satisfied of record. XVII. That in addition to the sum so paid by these plaintiffs in satisfaction of said judgment, as aforesaid, and at divers dates prior to the entry thereof, these plaintiffs expended the sum of $ for actual and necessary disbursements in the defense of said action, and were otherwise put to expense and damage 90 Bradbury's Forms of Pleading Breach of Contract of Warranty by the breach of said warranties as aforesaid in the further sum of $ XVIII. That no part of the moneys so paid by the plaintiffs as aforesaid in satisfaction of said judgment, and by way cf expenses, has been repaid unto them, although repayment thereof was duly demanded of this defendant prior to the com- mencement of this action. Wherefore [prayer for money jndgment]. Form No. 136 Title of Goods ; Implied Warranty ^ I. That at the time hereinafter mentioned, the plaintiffs were copartners in business, in the city of , under the name of J.S.F.&Co. II. That on or about the day of , 19 , the defendant, I. F. C, entered into an agreement in writing with the plaintiff and delivered the same to them, of which the follow- ing is a copy : "Whereas a certain agreement was entered into between the S. M. Co. and J. S. F. & Co., dated , 19 , a copy of which is in possession of I. F. C; and "Whereas: — In pursuance of the terms of said agreement certain merchandise has been delivered to the said I. F. C, and certain drafts have been drawn upon the said I. F. C.'by the said S. M. Co., amounting in the aggregate to the sum of $ ; and "Whereas: — J. S. F. & Co. have actually advanced under said 1 From Forgotston v. Craigin, 62 App. Div. 243; 70 Supp. 979; in which a judgment for the plaintiff was directed by the court at trial term, on the pleadings. The appellate division reversed this judgment, on the ground that the answer set up facts showing that the plaintiff did not have title to the goods and as there is always an implied warranty of title in the sale of goods the judgment should not have been directed. For purchasers' action where there is a failure of title in the seller of chattels sold on installment payments, see Bowen v. Dawley, 116 App. Div. 568; 101 Supp. 878. See Forms Nos. 137 and 138 and oases cited. Complaints 91 Breach of Contract of Warranty agreement the sum of $ and having incurred certain expenses in relation thereto, amounting to the sum of $ ; and "Whereas: — It has been agreed that said merchandise shall be turned over to said C. to be absolutely at his disposal, free from any claims of the said J. S. F. & Co. "Now This Agreement Witnesseth: That in consideration of the sum of One Dollar by each to the other in hand paid, said J. S. F. & Co. and said I. F. C. have agreed with each other as follows : "The said goods are to be in the absolute control of said C, and the said J. S. F. & Co. transferred to said C. all their right, title and interest therein, and the proceeds thereof, and in con- sideration thereof, said C. agrees to pay to said J. S. F. & Co. the sum of $ within days from the date hereof. "In Witness Whereof, the parties hereunto have set their hands and seals this day of , 19 . "In presence of: [Signed.] [Signed.] "L. S." III. That the plaintiffs have duly performed all the conditions of said contract on their part. IV. That no part of the sum of $ secured to be paid by said contract has been paid and there is now due thereon from the defendant to the plaintiffs the sum of $ , with in- terest thereon from the day of , 19 . Wherefore [prayer for money judgment]. Form No. 137 Implied Warranty in Sale of Judgment * I. That on or about the day of , 19 , the above-named defendant instituted an act ion in this c ourt against 1 From Flandrow v. Hammond, 148 N. Y. 129, in which a judgment in favor of the defendant was reversed on the ground that the sale of a judgment carried with it an implied warranty that it was a valid judgment and where a levy had been made under it that the levy was also valid. See also precedmg form. 92 Bradbury's Forms of Pleading Breach of Contract of Warranty the M. B. of C, the same being a foreign corporation created by and under the laws of the State of I., to recover about the sum of $ , and which said action was so instituted by the service of the summons and complaint by publication, and a warrant of attachment was issued therein against the property of the de- fendant therein to the sheriff of the city and county of New York. II. That prior to the day of » 19 , the said M. B. of C. commenced an action in this court against one T. V. B., upon certain promises in writing made by him, and on that day recovered judgment for the sum of $ , and the same was duly docketed in the ofRce of the clerk of the city and county of N. Y. That thereafter the said T. Y. B. died, and pending a contest relative to the proof of his will, special letters of adminis- tration were issued to one E. S. as temporary administrator of his estate. III. Plaintiff further alleges in said action so instituted by this defendant against the M. B. of C, wherein said warrant of at- tachment was issued to the sheriff of the city and county of N. Y., and wherein a return was made by him showing the execution of the attachment upon the judgment above set forth in the sec- ond paragraph of this complaint, by leaving a certified copy of said warrant of attachment with J. L. J., the individual holding such judgment, as the plaintiff's and judgment creditor's attor- ney, with a notice showing the property levied upon. That thereafter and on or about the day of j 19 , this defendant did enter judgment by default against the said M. B. of C. in said action so instituted by him as aforesaid for the sum of $ , being the action wherein the above named attachment was issued. IV. The plaintiff further alleges that on or about the day of , 19 , he did, for the purpose of becoming the owner of the said judgment so obtained by said M. B. of C. against the said T. V. B., make and enter into an agreement in writing, a copy of which is hereto annexed, marked Schedule "A," and forming part of this complaint. V. The plaintiff further alleges that, pursuant to the terms of Complaints 93 Breach of Contract of Warranty the last-mentioned agreement, he did, about the day of , 19 , pay to this defendant the sum of $ , and that this defendant, pursuant to the terms of the said agreement described as Schedule "A," and annexed to this complaint, did procure an order for the sale of said judgment so obtained by said M. B. of C. against T. V. B.; and the same was sold by virtue of the judgment and execution pretended to have been obtained by this defendant against said M. B. of C, and was purchased by this defendant and thereafter assigned to this plaintiff. VI. The plaintiff further alleges that this defendant never obtained any valid judgment against the said M. B. of C, and that this defendant did not by virtue of any proceedings insti- tuted by him sell or was he able to sell, or in any manner transfer, or caused to be transferred, the said judgment of the M. B. of C. against T. V. B. to this plaintiff, which plaintiff was desirous of legally acquiring pursuant to the agreement hereto annexed and forming part of this complaint, and this plaintiff did not acquire title to said judgment of M. B. of C. against T. V. B. or any part thereof. VII. Plaintiff further alleges, upon information and belief, that the said T. V. B. and his estate was solvent, and the said judgment for $ could have been collected from said T. V. B. and his estate; and that by reason of the failure of this defendant to transfer said judgment plaintiff has been damaged in the sum of $ , with interest from , 19 , VIII. Plaintiff further alleges that before the commencement of this action, he duly demanded of the defendant the return of $ , with interest from , 19 , which demand the defendant refused. Wherefore [prayer for money judgment]. Form No. 138 ImpUed Warranty Upon Sale of Corporate Stock That it is Free From Liens ^ I. On information and belief, that defendant, C. T. Co. of 1 From McClure v, Central Trust Co., 165 N. Y, 108, in which a judgment 94 Bradbuey's Forms of Pleading Breach of Contract of Warranty N. Y. is now and was at all the times hereinafter mentioned, a domestic corporation, duly organized and existing under the provisions of Chapter 832 of the Laws of the State of New York, enacted in the year 1873, and the acts amendatory thereof and supplemental thereto, and having its principal office in the city of New York. II. Plaintiff further alleges on information and belief, that the H. H. W. & Co., Ltd., hereinafter mentioned, is now, and was, at all the times hereinafter stated, a foreign corporation, duly organized and existing under the laws of England, and having its principal place of business in the city of L., and that the capital stock of said H. H. W. & Co., Ltd., is now and was, at all the times hereinafter mentioned divided into shares, thereof being preferred and thereof being com- mon stock. III. The plaintiff further alleges, on information and belief, that in or about the month of , 19 , at the city of New York, said defendant, C. T. Co. of N. Y., by its agents, duly authorized, and said defendant H. H. W., entered into an agree- ment and combination for the sale of certain of said shares of stock in said H. H. W. & Co., Ltd., owned by said defendant, H. H. W., with the fraudulent intent to deceive the public generally and this plaintiff, and to induce them to purchase said shares of stock in reliance upon the false representations of these defendants in regard to the value and character thereof, and of the power and authority of these defendants in relation thereto, as hereinafter more fully set forth. IV. The plaintiff further alleges, upon information and belief, that in pursuance of said fraudulent agreement and combina- tion, and at various times prior to and since said ,19 , said defendant H. H. W. personally, and by his duly authorized agents, and said defendant, C. T. Co., by its duly authorized agents, represented to the public generally and to this plaintiff, in favor of the defendant was reversed. The cases relating to impHed war- ranty as affecting the doctrine of caveat emptor are reviewed See also two preceding forms for imphed warranty of title. Complaints 95 Breach of Contract of Warranty by prospectuses and advertisement and otherwise, that said defendant, C. T. Co. of N. Y., held for sale of said shares of said common stock of said H. H. W. & Co., Ltd.; that said shares were full paid and non-assessable; that they were entitled to all the profits of the business of said H. H. W. & Co., Ltd., after the debenture bonds thereof and per cent dividends on said preferred stock had been paid; that said H. H. W. & Co., Ltd., had paid for the property used by it in the busi- ness for which it was organized, the sum of $ ; that said stock was fully worth $ per share; that the defendant, C. T. Co., of N. Y., had power and was authorized to act as agent for the transfer of said shares, and had power and was authorized to open subscription books therefor; that said C.T. Co. of N. Y. had power and was authorized to deliver and would deliver to the purchaser of said shares or any of same, its certifi- cate to the effect that it held in trust for the purchaser and would deliver to him, or to his assigns, on demand, such shares as should be purchased by him, together with a deed of transfer thereof. V. And this plaintiff further alleges, on information and belief, that each and every of said representations was false; that the defendants made same falsely and fraudulently and in bad faith, with intent to deceive the public and this plaintiff, and to induce them to purchase said shares; that said defendants knew said representations were false, and that they made same as of their own knowledge, and that they knew this plaintiff was relying upon said representations, and its superior means of knowledge of the facts possessed by defendants, and not upon his own knowledge thereof in purchasing a portion of said stock as here- inafter set forth. VI. And the plaintiff further alleges that he believed, relied upon, and was, in fact, deceived by said representations of the defendants, and was induced thereby to purchase a portion of said stock to his damage as hereinafter set forth. VII. Plaintiff further alleges, on information and belief, that at some time in , 19 7 said H, H. W, & Co., Ltd., pur- 96 Bradbury's Forms of Pleading Breach of Contract of Warranty chased from defendant, H. H. W., all the property located at , New York State and elsewhere, used by said W. in the preparation and sale of certain specialties; that no cash was paid to said W. by said company, but in Ueu thereof said com- pany issued to said W., in payment for said property, shares in said common stock of its said capital. VIII. Plaintiff further alleges, upon information and belief, that the property so purchased by said W. was, at the' time of said purchase, ever since has been, and is now, substantially all the property owned by said H. H. W. & Co., Ltd. IX. Plaintiff further alleges on information and belief, that the following is a correct copy of each of the certificates issued to said W. by said company upon said purchase to represent his shares in the said capital stock of said company, viz. : No. . Number of shares H. H. W. &. Co., LTD., Incorporated under the Companies Acts, 18 to 18 . Capital £ in shares of £ each. Issued as follows : £ , per cent accumulative preference shares, £ ; ordinary shares, £ This is to Certify that H. H. W., of R., New York, U. S. A., is the registered holder of Ordinary Shares of £ each. Fully Paid, in H. H. W. & Co., Ltd., subject to the -Articles of Association and Regulations of the Company, such shares being numbered to inclusive. Given under the common seal of the said company this day of , 19 . Directors. H. H. W. & Co., Ltd., W. E. S. W., Secretary. No transfer of any of the above shares can be registered with- out the production of this certificate. X, Plaintiff further alleges, on information and belief, that Complaints 97 Breach of Contract of Warranty said shares of stock so issued, to said W. upon said purchase by said H. H. W. & Co., Ltd., were the only shares of common stock of said company which these defendants ever had for sale, and that each of the said certificates representing said shares contained the notice that it was subject to the articles of associa- tion and regulations of said company, together with the other matters, as set forth in the foregoing copy. XI. Plaintiff further alleges, on information and belief, that defendant C. T. Co. of N. Y., never was the agent of said H. H. W. & Co., Ltd., for the transfer of said stock, or for any other purpose, and that it had no books of transfer of said com- pany in its possession or under its control, and had no power or authority to make a valid transfer of said stock, or to take sub- scriptions therefor, and that in all its transactions with plaintiff and with the pubUc, as hereinafter set forth, if acting as agent at all, said defendant was acting as agent for said defendant, H. H. W. XII. Plaintiff further alleges, on information and belief, that on or about the day of , 19 , at said city of L. said H. H. W. lawfully and for a- valuable consideration duly executed and delivered to said H. H. W. & Co., Ltd., an instru- ment or charge, of which the following is a copy : ToW.H.H.&Co.,Ltd.: Whereas, it appears by the accounts of the company that I am indebted to the company in the sum of £ Now, for the purpose of securing payment of said sum, to- gether with the interest thereon, at the rate of per cent per annum, until repayment, I have this day transferred into the names of Mr. T. W. B., M. P., and Mr. R. B., as trustee for the company, per cent preference shares of £ each of the company, and ordinary shares of £ each, to be held by the company as collateral security for repay- ment of the said debt and interest, and I hereby charge said shares with repayment of the said debt and interest, and agree that all dividends becoming payable on the said shares, and any Vol. 1—7 Bradbury's Forms of Pleading Breach of Contract of Warranty other shares of the company standing registered in my name, shall be retained by the company and be sot off against and taken in reduction of the said debt. And I further bind myself to pay the whole of the said debt by or before the day of , 19 , and if all be not paid by that time, agree that the company shall be at liberty to sell any of such shares upon such terms as they may think fit and apply the proceeds in reduction of the debt. It is understood that the above is without prejudice to any other rights or remedies the company may have against me in respect of the said debt, and that I shall be at liberty at '■ny time to exchange any of the above-mentioned shares for other shares of the company of equal nominal value should I wish to do so, and that as the debt is reduced a proportionate amount of shares shall be released and retransferred to me or as I may direct, but so that the company shall at all times retain shares taken at their nominal or par value to double the amount of the debt and interest remaining owing. Dated, [Signed] H. H. W. XIII. And plaintiff further alleges on information and belief, that at the time of said execution and delivery of said instru- ment or charge, said W. was and ever since has been, and is now, insolvent and unable to pay his debts, and that he was at said time, and ever since has been and that he was and is now justly indebted to said H. H. W. & Co., Ltd., in the amount of upwards of $ , and that said instrument or charge was at said time, and ever since has been and is now a valid lien upon all the shares of stock offered for sale by the defendants as aforesaid, and upon all dividends accruing upon same, to secure the pay- ment of said indebtedness of said W. to said H. H. W. & Co., Ltd. XIV. And plaintiff further alleges, on information and belief, that by virtue of the articles of association and the by-laws law- fully enacted of said H. H. W. & Co., Ltd., said company, at the time of the execution and delivery of said instrument or charge, Complaints 99 Breach of Contract of Warranty and ever since, has held and now holds a further valid lien upon all the stocks so offered for sale by these defendants, and upon all dividends accruing thereon, as security for the payment to it of said indebtedness of said W. XV. And plaintiff further alleges, on information and belief, that the following is a correct copy of the said articles of associa- tion and by-laws of said H. H. W. & Co., Ltd., viz. : "Art. 43: The Company shall have a first and paramount lien upon all the shares not fully paid up, registered in the name of any member (whether solely or jointly with others) for his debts, Uabilities and engagements solely or jointly with any other person to or with the company whether the period for the pay- ment or discharge thereof shall have actually arrived or not, and such lien shall extend to all dividends declared on such shares." [Above article amended , 19 , approved the day of , 19 , striking out words in quotations "not fully paid up."] " Art. 44: For the purpose of enforcing such lien, the directors may sell such shares subject thereto in such manner as they see fit, but no sale shall be made until, as aforesaid, the period for the payment of said debt shall have arrived, and until notice in writing of the intention to sell shall have been served on such member, his executors or administrators, and default shall have been made by him or them in the payment, fulfillment or dis- charge of such debts, liabilities or engagements for seven days after such notice. "Art. 132: The directors may retain dividends payable on any shares .upon which the Company has a lien, and may apply the same in or towards satisfaction of the debts, liabilities or engagements in respect of which the lien exists, including all such sums of money as may be due and payable on account of calls or installments unpaid." XVI. And plaintiff further alleges, on information and belief, that defendants, in bad faith and fraudulently, and with intent to deceive the public and this plaintiff, and to induce them to pur- chase their stock, concealed the facts aforesaid from them, 100 Bradbury's Forms of Pleading Breach of Contract of Warranty and the existence of said liens upon said stock and dividends thereon. XVII. And plaintiff further alleges that this plaintiff did not at any time before his purchase of a portion of said stock as here- inafter set forth, know of said facts or the existence of said liens upon said stock, and upon dividends thereon, but relied wholly upon the knowledge of said stock conveyed to him by said de- fendants, and said defendants well knew of the existence and validity of said liens upon said stock and said other facts above mentioned, and well knew that this plaintiff relied upon said defendants for any information which he ought to have in regard thereto, prior to his purchase of a portion of said stock, as here- inafter set forth. XVIII. And plaintiff further alleges, on information and belief, that by reason of said fraudulent concealments of said facts, and of the existence of said liens upon said stock, and the dividends thereon, this plaintiff was deceived and induced to purchase a portion of said stock to his damage as hereinafter set forth. XIX. And plaintiff further alleges, on information and be- lief, that said^ defendants with a fraudulent intent to deceive this plaintiff and induce him to purchase said stock, at all times concealed from him all knowledge as to whether defendant, T. C. T. Co., was acting as agent in effecting the sale of said stock to this plaintiff, and with like intent concealed from him its principal, if any, for whom it was so acting, and that this plain- tiff at no time knew that said defendant was acting as agent in effecting said sale, and at no time knew for what principal, if any, it was so acting. XX. And plaintiff further alleges that by reason of said false and fraudulent representations of these defendants and said fraudulent concealments of said defendants of the existence and validity of said liens upon said stock and upon said dividends, and the fraudulent concealment by said defendants of said other facts hereinbefore alleged this plaintiff was deceived by these d. fondants and induced by them to purchase, on or about Complaints 'X01 Breach of Contract of Warranty the day of , 19 , and would not otherwise have purchased from said defendants, shares of said common stock thus incumbered by said hens, and to pay therefor, the sum of $ cash. XXI. And plaintiff further alleges that on or about said day of , 19 , he did purchase of defendants said shares of common stock in said H. H. W. & Co., Ltd., and did pay to defendants therefor said sum of $ , and these defendants received said sum therefor, and on or about , 19 , defendant, T. C. T. Co. of New York, issued to this plaintiff its certificates, of which the following are copies : shares. TRUSTEE'S RECEIPT. shares. "No. . H. H. W. & Co., "Limited. "'ORDINARY' SHARES, "£ Steriing Each. "Shares "C. T. Co. of New York hereby certifies that there has been deposited with it in trust shares as above stated. Said shares, together with the deed of transfer thereof will be delivered to W. McC, or assigns, on surrender of this trust receipt properly indorsed. The receipt is transferable at the office of said T. Co. in New York, either in person or by power of attorney, and until surrendered all dividends collected upon said s'^ar-s liy said T. Co., will be paid to the registered holder of this receipt, or to his order. "N.Y. "C. T. Co. of N. Y., "Trustee. "By E. F. H., Vice-president "B.G.M., "Secretary. "C.T.Co.of N.Y." 102 Bradbury's Forms of Pleading Breach of Contract of Warranty shares. TRUSTEE'S RECEIPT. shares. "No. . H. H. W. &Co., "Limited. "'ORDINARY' SHARES, "£ Sterling Each. "Shares "The C. T. Co. of New York, hereby certifies that there has been deposited with it in trust shares, as above stated. Said shares together with a deed of transfer thereof will be delivered to W. McC, or his assigns, upon surrender of this trust receipt properly indorsed. The receipt is transferable at the office of said C. T. Co. of New York, either in person or by power of attorney, and until surrendered all dividends collected upon said shares by said T. Co. will be paid to the registered holder of this receipt, or to his order. "N.Y., "C.T.Co. ofN. Y., "Trustee. "B.G.M., "Secretary. "C.T.Co.ofN.Y. 'By E. F. H., Vice-president. XXII. And plaintiff further alleges, upon information and belief, that the statements contained in said certificates to the effect that said defendants, T. C. T. Co., of New York, held in trust for plaintiff said shares of stock, and would deliver the same to him, or to his assigns, with a deed of transfer thereof upon demand, were false; that defendants knew them to be false, and that they made same with a fraudulent intent to further deceive this plaintiff into his said purchase of said stock, and to prevent his knowing the true character and value thereof, and that this plaintiff was deceived by said statements, and because of same did not make inquiries concerning said stock which he otherwise would have made. Complaints 103 Breach of Contract of Warranty XXIII. And plaintiff further alleges, on information and belief, that said H. H. W. & Co., Ltd., by reason of said instru- ment or charge executed and delivered to it by said W. as afore- said, and by reason of the laws of England, under which it was organized and its articles of association and by-laws as above set forth, lawfully claims and holds a lien upon said shares of stock and dividends thereon held for sale as aforesaid by these defendants, and upon the shares of same and dividends thereon sold by them to this plaintiff as aforesaid for the payment of said indebtedness due it by said H. H. W. of upwards of $ XXIV. And plaintiff further alleges, on information and be- lief, that said H. H. W. & Co., Ltd., refuses, as it lawfully may do, to transfer said shares of stock into the name of the purchaser thereof from said defendants or to recognize said purchaser as the owner thereof, or as entitled to the dividends thereon until said indebtedness is paid, and that it retains, as it lawfully may do, the dividends declared thereon, and refuse to pay same to tlie purchaser of said stock from said defendants until said in- tlebtedness is paid, and that said H. H. W. is still the registered owner and holder thereof upon the books of said company. XXV. That by reason of the facts aforesaid, said shares of stock purchased by this plaintiff of these defendants, were at the time of said purchase, ever since have been, and now are of no value whatever, and thereby arid because of said fraudulent conduct as above set forth of these defendants, this plaintiff has suffered damages in the amount of I , together with the interest thereon from the date of said purchase. XXVI. And plaintiff further alleges, that on or about day of , 19 ) 'this plaintiff presented to said defendant, T. C. T. Co. of New York, the certificates issued to him as afore- said, and demanded the shares of stock so purchased by him. XXVII. And plaintiff further alleges, on information and belief, that said defendants were not then, and had never been and are not now in possession of such stock as they had agreed and pretended to sell to this plaintiff, and have never been able to deliver same, but in lieu thereof offered this plaintiff 104 Bradbury's Forms of Pleading Breach of Contract of Warranty shares of said common stock, being a portion of the stock issued to said W. as aforesaid, and which was subject to the aforesaid liens, held by said company as above set forth, and which then and ever since has stood and now stands registered in the books of said company in the name of said H. H. W. XXVIII. That this plaintiff then and for the first time learned of the fraud that had been committed upon him by defendants by reason of their said misrepresentations and concealments, and refused to accept said stock so offered to him, and that the same is still in the possession of said defendant, C. T. Co. of New York. XXIX. That prior to the time when said demand was made, this plaintiff had received from said defendant, C. T. Co. of New York, the sum of $ on dividends alleged by de- fendant, C. T. Co. of New York, to have been declared and paid to it upon said stock by said H. H. W. & Co., Ltd., but plaintiff alleges on information and belief, that said dividends were paid to said defendant by said W. and not by said H. H. W. & Co., Ltd., and that they were so paid with its knowledge and consent, and with the fraudulent intent of further deceiving this plaintiff and keeping him in ignorance of the said facts as known to said defendants, and that said payments were thus made without the knowledge of this plaintiff and that he was thus de- ceived and prevented from knowing sooner the facts as they were, as hereinbefore set forth. XXX. Plaintiff further alleges, upon information and belief, that the following are correct copies of the memoranda delivered to him upon the payment to him of said dividends. "C. T. Co. of N. Y., Street, New York, , 19 . "Memorandum of Dividend for Six Months Ending , 19 . "On Stock of "H. H. W. & Co., Limited, "(A corporation), CoMPLAINfS i05 Breach of Contract of Warranty "InnameofW.McC. " per cent on shares preferred (£ each), at $ to the £ $ " per cent on shares common (£ each), at $ to the £ $ "Total, $ " Less income tax charged by the English Government. "Check herewith for $ " Yours very respectfully, "C. T. Co. of N. Y." "C. T. Co. of N. Y., Street, New York, , 19 . "Memorandum of Dividend for Months Ending ,19 . "On Stock of "H. H. W. & Co., Ltd. " (A corporation) "InnameofW.McC." (Same as above.) XXXI. And plaintiff further alleges, on information and belief, that said stock was not in the name of this plaintiff, as stated in said memorandum, but was at all times registered in the name of said H. H. W., as aforesaid. XXXII. Plaintiff further alleges that he brings into court and hereby tenders to defendants the said sum of $ paid to him upon said stock as aforesaid, with interest thereon, and brings into court and hereby tenders the said defendants the certificates issued to him as aforesaid by said defendant, C. T. Co. of New York. ^ Whekeforb [prayer for money judgment]. 106 Bradbury's Forms of Pleading Hire of Personal Property CHAPTER VII HIRE OF PERSONAL PROPERTY FORM NO. PAGE 140. Hire of personal property 106 Form No. 140 Hire of Personal Property Supreme Court, County. John Doe, Plaintiff, against Richard Roe, Defendant. The plaintiff, by his attorney, A. B., complaining of the de- fendant alleges: I. That on the day of , 19 , at in the city of , the defendant hired from, the plaintiff and the plaintiff delivered to the defendant the following described personal property [description] under an agreement then duly entered into between the plaintiff and the defendant that the defendant should pay to the plaintiff for the use of said property from , 19 , until , 19 , the sum of dollars. II. It was further agreed between the plaintiff and the de- fendant that the defendant would return said property herein- before described to the plaintiff at in the city of on or before the day of , 19 , in as good con- dition as when the same was delivered to the defendant, ordinary wear and tear excepted. III. That said defendant has failed and refused to pay the said sum of dollars for the use of said chattels although Complaints 107 Hire of Personal Property the same has been duly demanded of him and said defendant had the use of said chattels from the day of , 19 , until the day of , 19 ; that the defendant failed to return said chattels to the plaintiff at in the city of on or before the day of , 19 , as agreed and the plaintiff was compelled to send for said chattels and cart them from in the city of to the place where the said defendant agreed to deHver them on or before ,19 , at an expense to the plaintiff of the sum of dollars, no part of which has been paid although duly demanded; that said chattels when the plaintiff thus regained possession thereof were not in as good condition, ordinary wear and tear excepted, as when the same were delivered to the de- fendant as aforesaid, but the same were damaged while in the possession of the defendant to such an extent that the plaintiff was compelled to expend and has spent the sum of dollars in repairing said chattels and putting them in as good condition as they were in when they were delivered to the de- fendant as aforesaid, ordinary wear and tear excepted, which sum has been duly demanded of the defendant and no part thereof has been paid. Wheeefore, etc. 108 Bradbury's Forms of ^Pleading Work, Labor and Services CHAPTER VIII WORK, LABOR AND SERVICES FORMS ' NO. PAGE 143. Work, labor and services; general form 108 144. Work, labor and services under agreement that tenant should pay rent to plaintiff if landlord failed to pay for improvements 109 145. Services of broker in making sale of real property Ill 146. Services of broker in making sales; another form; where title defect- ive 112 147. Advertising in a newspaper or periodical 113 148. For work and materials on building contract where there has been a variation in the original agreement 114 149. Building contract; allegation of delay in building contract by reason of change of plans or other cause for which the plaintiff is not at fault 115 Form No. 143 Work, Labor and Services ; General Form Supreme Court, County. John Doe, Plaintiff, against Richard Roe, Defendant. The plaintiff, complaining of the defendant alleges: I. That between the day of , 19 , and the day of , 19 , both dates inclusive, at the spe- cial instance and request of the defendant, the plaintiff performed work, labor and services for the defendant as follows, to wit: [describe generally the nature of the work]. II. That the agreed [reasonable] value of said work, labor and services was the sum of $ , demand for which has been duly made, and no part thereof has been paid. Wherefore [demand for money judgment]. Complaints 109 Work, Labor and Services Form No. 144 Work, Labor and Services Under Agreement That Tenant Should Pay Rent to PlaintifE if Landlord Failed to Fay for Improvements^ I. That the defendant herein is, and at the times hereinafter specified was a foreign corporation, created and existing under and pursuant to the laws of the State of New Jersey, and the plaintiff was and is a citizen and resident of the city of New York, State of New York. II. That on and prior to the day of , 19 , the said defendant was and still is in possession of a portion of the premises known as and by the street numbers , , and , street, in the borough of Man- hattan, city of New York, holding the same as tenant of and under one N. C. H., to whom the rents of said premises accruing since said date have been solely payable except for the agree- ment as between said N. C. H. and the defendant herein, of the one part, and this plaintiff, of the other part, as hereinafter set forth. III. That at said borough and city, and on or about the day of , 19 , the defendant herein, with the con- sent in writing of the said N. C. H. and of F. W. H., her husband, covenanted and agreed in writing to and with this plaintiff, that in consideration that this plaintiff would continue to execute and perform work, labor and services and furnish materials in the completion of certain required alterations and improvements respecting said real property, pursuant to the order and direc- tion therefor of the said N. C. H., or her husband, the defendant herein would pay unto this plaintiff the sum of dollars per month, on the first day of each month from and after the ex- piration of twenty days after the completion of said work, labor and services, and delivery of materials as so required— until the claim of this plaintiff for the reasonable value and amount of such work and materials shall be fully paid— provided the same 1 From Ross v. Bayer-Gardner-Hines Co., 108 App, Div. 366; 95 Supp. 1157; in which a judgmeDt fox- the plaintiff was affirmed. 110. Bradbury's Forms of Pleading Work, Labor and Services had not been paid in full by the said N. C. H. or husband, prior to the expiration of said period of twenty days after such com- pletion, it being also thereupon agreed as between the said de- fendant and the said N. C. H. that in such event the said pay- ments to this plaintiff should constitute payment of the said rents as so payable from defendant to the said N. C. H., the said agreements being contained and embraced in two letters, copies whereof being hereto annexed, marked Exhibit "A," and in- tended to form a part hereof. IV. That pursuant to the said agi'eement. Exhibit "A" hereof, the plaintiff did thereafter perform and render the work, labor and services and did furnish materials in and about the said real property, all of which being completed on the day of ,19 , of which the defendant had due notice. V. That on the day of , 19 , there was justly due and payable from the said N. C. H. to the plaintiff, a balance for, and on account of, said work and materials, in the sum of dollars, which became due and payable on the day of , 19 , and this plaintiff did, on said , 19 , give notice, in writing, to the defendant of the existence of the said claim, and that more than twenty days had expired since the completion of said work and materials, whereby the plaintiff was entitled under said agreement (Ex- hibit "A" hereof) to the payment at the hands of said defendant of all rents thereafter to accrue until the payment in full of the said claim of this plaintiff, pursuant to said agreement. Exhibit " A," hereof. VI. That on the day of , 19 , the sum of $ , being rent of said premises so occupied by said de- fendant, as such tenant, became due and payable, and a like sum of $ for rent aforesaid also became due on •, 19 , and a like sum of $ for rent aforesaid also became due on , 19 , said sums representing respectively the rents due from defendant for the months of , , , and , 19 , and which by the terms of the said agreement (Exhibit "A" hereof) were assigned and became Complaints 111 Work, Labor and Services vested in and payable to this plaintiff, to be applied by the plain- tiff toward payment of his said unpaid claim of $ VII. That the plaintiff has duly demanded from the defendant, since the same became due as aforesaid, each and every of said sums, no part whereof has been paid, and that there is now justly due and payable from the defendant to the plaintiff on account, as above stated, the sum of $ , with interest on $ from , 19 , and interest on $ from , 19 , and interest on $ from , 19 , and interest on $ from , 19 . Wherefore, the plaintiff demands judgment against the de- fendant for the sum of $ , with interest on, etc., besides the costs and disbursements of this action. Form No. 145 Services of Broker in Making Sale of Real Property I. That on or about the day of , 19 , the defendant, who then represented himself to be the owner of the property at No. , street, in the city of , requested the plaintiff as broker to produce a pur- chaser for said property for the sum of $ , and the defendant agreed to pay to the plaintiff per cent of said purchase price on the sum of $ , and if the plaintiff s'-iould procure a purchaser at a price in excess of said $ , then the plaintiff was to have in addition ten per cent of any excess over and above the said sum of $ , for which lie could procure a purchaser for said property. II. The defendant further agreed to sell said property on the following terms, to wit : $ on the signing of the contract to purchase; $ upon the closing of title, and the re- mainder of $ by first mortgage on the property, which should be secured by a bond for a like amount to be executed by the purchaser. III. That on or about the day of , 19 , the plaintiff procured a responsible purchaser who was ready and 112 Beadbuey's Forms of Pleading Work, Labor and Services — ■ 1, willing to enter into a contract for the purchase of said property upon the terms hereinbefore mentioned, and said purchaser was of sufficient financial ability to carry out said contract, and said proposed purchaser duly signed a contract wherein and whereby he agreed to purchase said property for the sum of $ , a copy of which contract is hereunto annexed and made a part of this complaint, and said contract was thereafter and on the day of , 19 , duly presented to the defendant and he was requested to sign the same, and at the same time there was tendered to the defendant the sum of $ in cash, being the amount agreed upon between the plaintiff and the de- fendant as a preliminary payment upon the signing of any con- tract for the sale of said property; that the defendant refused to sign said contract or to proceed with the sale of said property or to accept the said sum so tendered and that by reason thereof the plaintiff is entitled to recover from the defendant, the sum of $ , being per cent on the purchase price of said property, demand for which has been duly made and no part thereof has been paid. Wherefore [demand for money jiulgment]. Form No. 146 Services oi Broker in Making Sale; Another Form; Where Title Defective [Add in place of Paragraph III in last preceding, form the follow- ing:] III. That the plaintiff procured a purchaser for said property on terms that were satisfactory to the said defendant, and on or about the day of , 19 , the defendant and one , entered into a contract wherein and whereby the said agreed to purchase and the said defendant agreed to sell the said property for the sum of $ ; that by the terms of said contract the title was to be closed on the day of , 19 ; that on said day of , 19 , said and the defendant met at No. , street, in the city of , and said re- Complaints 113 Work, Labor and Services fused to proceed with the purchase of said property on the ground that the title thereof was defective, in that [here specify defect in title], and the plaintiff is informed and believes that said title was defective and that the plaintiff could not give a good market- able title to said property as specified in the contract of sale, and solely for that reason the contract to purchase was not com- pleted by said ; that by reason of the premises, the plaintiff is entitled to recover of the defendant, the sum of $ , being per cent on $ , the purchase price. That demand has been duly made for said sum and no part thereof has been paid. Wherefoke [demand for money judgment]. Form No. 147 Advertising in a Newspaper or Periodical ^ I. That on the day of , 19 , the plaintiff and defendant entered into a contract wherein And whereby the defendant requested the plaintiff to publish in a periodical known as the [newspaper] published by the plaintiff in the city of , a certain advertisement, said advertisement to be inserted in each number of the plaintiff's periodical from the day of , 19 , to the day of , 19 , both days inclusive, and the defendant agreed to pay to the plaintiff for pubhshing said advertisement, the sum of $ , payment to be made in equal monthly installments on the day of each month in the sum of $ II. That the plaintiff duly performed said contract in all re- spects and published said advertisement as provided therein in the said , in each edition thereof from the day of , 19 , to the day of , 19 , 1 If the contract itself does not provide that payments shall be made in in- stallments before the completion of the publication, the publisher cannot sue for any sum on the contract until the last publication under the terms thereof. If, therefore, the contract does not provide for installment payments, the foregoing form should be varied to meet the requirements of the particular case. Vol. 1—8 114 Bradbury's FoSms of Pleading Work, Labor and Services both days inclusive, and there became due and owing to the plaintiff by reason thereof, the sum of $ , demand for which has been duly made and no part thereof has been paid. Wherefore [demand for money jvdgment]. Form No. 148 For Work and Materials on Building Contract Where There Haa Been a Variation in the Original Agreement I. That on or about the day of , 19 , the plaintiff and defendant entered into a contract in writing under seal, a copy of which is hereunto annexed, marked Exhibit "A," and made a part of this complaint, wherein and whereby the plaintiff agreed to perform and cause to be performed all the work, labor and services necessary, and furnish all materials for the erection of a certain building on the premises known as No. , street, in the city, county and State of New York for the gross sum of $ II. That the plaintiff duly performed all the conditions of said contract and performed all the work, labor and services, or caused the same to be performed, and furnished all the materials strictly in conformity with said contract, except as hereinafter specified. III. That as to certain materials agreed by the plaintiff to be furnished in and about said work, to wit : [here specify the materials], the defendant instructed the plaintiff to "change the character of said materials, so that instead of furnishing [describe materials] the defendant instructed the plaintiff to furnish [describe materials] and the plaintiff followed said instruc- tions. IV. That the materials so furnished were of the value of $ greater than those specified in the contract, which said sum the plaintiff is entitled to recover from the defendant in excess of the amount specified in said contract. That the architect in charge of said work has duly certified in writing that the plaintiff has performed the contract in accordance with the terms thereof, with the variation hereinbefore specified, and Complaints 115 Work, Labor and Services that the plaintiff is entitled to receive payment pursuant to the terms of said contract with the addition of the sum of $ specified in the paragraph of this complaint marked III. Or, IV. That the architect in charge of said worlc who was em- ployed by the defendant has wrongfully, willfully and without just cause refused to give a certificate as to the performance of said contract on the part of the plaintiff, or that the plaintiff is entitled to the sum due thereunder. That demand has been duly made for said sum, and no part thereof has been paid except the sum of $ , leaving a balance due of $ Wherefore [demand for money judgment]. Form No. 14Q Building Contract; Allegation of Delay in Building Contract by Reason of Change of Plans or Other Cause for Which the Plaintiff Is Not at Fault That said work was not completed on the day of ,19 , as provided in said contract, by reason of tlie fact that the defendant made numerous changes in the plans of said work after the same was well under way, and said changes were the following, to wit : [describe changes] and that the con- tract was completed on or about the day of , 19 , which was a reasonable time for the completion thereof after said changes had been made. Or, That said work was not completed at the time specified in said contract by reason of the fact that numerous strikes took place among the workmen employed on said building, which strikes could not have been prevented by any act of the plaintiff and which were not caused by any wrongful act on his part, and that notice of said strikes was duly given to the defendant pur- suant to the terms of said contract, and by reason of said strikes the plaintiff was delayed days in the completion of said contract, so that the same was completed on the day of , 19 . 116 Bradbury's Forms of Pleading Breach of Contract of Employment NO. CHAPTER IX BREACH OF CONTRACT OF EMPLOYMENT » FORMS ' PAOB 153. Wrongful discharge 116 154. Wrongful discharge of servant 119 155. Breach of contract of employment as tailor 119 156. Breach of contract of employment as insurance solicitor 121 157. Agent selling on commission in exclusive territory 126 158. Sole agency control to sell paving to mxmicipal corporation 130 159. Breach of contract to employ plaintiff with the use of canal boat and crew 136 160. Action on a quantum meruit for the value of services where control of employment silent as to amount of compensation 138 161. Renewal of yearly contract of employment by holding over 140 162. Complaint; renewal of contract of employment by continuing from year to year to do same work without specific renewal; discharge by receiver; liability of corporation assuming liabilities of old firm . 143 163. Action by master against servant (accountants) for damages caused by failure of servant to perform duties 145 164. Enjoining discharged employee from engaging in same business and thus enforcing a covenant in the contract of employment 148 165. Action for amounts due employee under contract for stipulated amount monthly and percentage of profits 153 Form No. 153 Wrongful Discharge ^ Supreme Court, County. William A. Murray, Plaintiff, against John J. O'Donohue, Defendant. The plaintiff, complaining of the defendant, alleges: ^ The difference between an action for loages and one for damages for a torcmgful ^ From Murray r. O'Donohue, 109 App. Div. 696; 96 Supp. 335; in which it was held that the complaint although inartificially drawn justified a re- covery for a breach of contract of employment as distinguished from ap action for wages, Complaints 117 Breach of Contract of Employment I. That the plaintiff is a resident of the State of and the defendant resides therein doing business in , State of , under the name and style of " T. H. Co." discharge is clearly pointed out in the following cases; Weed v. Burt, 78 N. Y. 192; Murray v. O'Donohue, 109 App. Div. 696; 96 Supp. 335. In an action for wrongful discharge the stipulated salary up to the time of the trial is, prima facie, the measure of damages. Emerson v. Powers, 89 N. Y. 527; Murray v. O'Donohue, 109 App. Div. 696; 96 Supp. 335. Different remedies of servant for breach of contract of employment, see Banta V. Banta, 84 App. Div. 138; 82 Supp. 113. Premature action. — ^An action brought before the end of the month for which salary is claimed is premature, and must be dismissed even though the case is not brought to trial imtil after the end of the month. Dixon v. Bunnell, 52 Misc. 560; 102 Supp. 775. This is where the action is brought for salary or wages, not for damages for breach of contract of employment. In the latter case the recovery can be for damages up to the time of the trial. See cases cited supra. Where under a contract by which wages are to be paid periodically the serv- ant is wrongfiiUy discharged in the middle of such period, he cannot recover as wages for the whole of that period, but must resort to an action for damages for the breach of the contract. Walsh v. N. Y. & Kentucky Co., 88 App. Div. 477; 85 Supp. 83. Employees who strike in the middle of a week when working under employ- ment by the week cannot recover for the portion of the week which they worked. Eden v. Silberburg, 89 App. Div. 259; 85 Supp. 781. Commissions as compensation. — An agent selling on commission is entitled to recover upon showing either that goods sold were in fact paid for or that the failure to fill the order was the fault of the employer. Abel v. Nelson, 104 Supp. 362. Advances against commissions. — ^An agreement to pay an agent a specified sum per week which sum is to be charged against commissions entitles the agent to recover this drawing account during the entire time of the contract, irrespective of the sales. Wallach v. Slater, 103 Supp. 225. But if the agent abandons the employment the excess paid him over commissions earned may be recovered. Kupfer v. Holtzmann, 88 Supp. 362. Bonus. — A promise by an employer to give an employee a bonus at the end of the term of his employment if he will carry out a then existing contract of employment is without consideration and is void. Price v. Press Pub. Co., 117 App. Div. 854; 103 Supp. 296. Sickness which prevents a servant from performing his contract is consid- ered an act of God and no breach of the contract will result because of his failure to perform under such circumstances. Gaynor ii. Jonas, 104 App. Div. 35; 93 Supp. 287. Pleading other employment hy discharged employee. — Where the employer tepudiates the contract of employment it is not necessary for the plaintiff to lit; Bradbury's Forms of Pleading Breach of Contract of Employment II. That on or about the day of , 19 , the plaintiff and defendant entered into an agreement wherein and whereby the defendant employed the plaintiff as a general man- ager of the defendant's store at , for the term of one year from said date at the yearly salary of $ , and ten per cent additional on the yearly net profits of the business at said store. III. That thereupon and pursuant to said agreement the plain- tiff entered into the employment of the defendant and managed and conducted the business of the defendant at the aforesaid store from ,19 , to on or about the day of , 19 , and duly performed all the terms and conditions on the part of the plaintiff to be performed under the said agree- ment. IV. That on or about the day of , 19 , the defendant paid the plaintiff for his services under said agreement the amount payable thereunder up to the day of , 19 , and wrongfully and without just cause therefor discharged the plaintiff, and since that time has prevented the plaintiff from performing his part of the said agreement, notwith- standing the plaintiff duly tendered his services to the defendant according to said agreement. V. That for the nine remaining months of said agreement the sum of $ became due and payable to the plaintiff as salary, and with the net profits due the plaintiff as aforesaid, the plaintiff has suffered damages in the sum of I Wherefore [demand for money judgment]. show afRrmatively that employment was sought for by him and could not be obtained ; but the burden of proof is upon the defendant to show in mitiga- tion of damages that the plaintiff found employment elsewhere, or that other similar employment was offered and declined, or, at least, that it might have been found with reasonable diligence. Howard v. Daly, 61 N. Y. 362; Monroe .V. Proctor, 51 Misc. 632; 100 Supp. 1021; Graff v. Blumberg, 53 Misc. 296; 103 Supp. 184; Milage v. Woodward, 186 N. Y. 252; Fuchs v. Koemer, 107 N. Y. 529. Different employment. — An employee being discharged is not bound to accept employment of a different nature. Fuchs v. Koemer, 107 N. Y. 529. Complaints 119 Breath of Contract of Employment Form No. 154 Wrongful Discharge of Servant ^ I. That on or about the day of , 19 , at ' , , the defendant engaged the services of the plaintiff at his special instance and request to work for him for the period of months from on or about said day of , 19 , at the rate of $ per month. II. The plaintiff did perform services for said defendant in accordance with the terms of said contract from on or about said day of , 19 , to said day of , 19 , and was paid by said defendant for said services. III. That on or about the day of , 19 , the defendant wrongfully discharged said plaintiff. IV. That plaintiff then and there refused to be discharged. That plaintiff tendered defendant his services at the time of being so discharged by said defendant and has ever been ready and willing to perform said services for said defendant. V. That there is now justly due from defendant to plaintiff the sum of $ for one month's pay. VI. That no part thereof has been paid although payment has been repeatedly demanded of the defendant by the plaintiff and said defendant refuses to pay the same. Wherefore [demand for money judgm£nt]. Form No. 155 Breach of Contract of Employment as Tailor ^ For a first cause of action. I. That the defendants above named at the times hereinafter 1 Sustained in Williams v. Conners, 53 App. Div. 599; 66 Supp. 11. It was held that the complaint was not defective merely because the plaintiff called the amount demanded as damages "wages," when strictly speaking "wages" could not be recovered in an action for breach of a contract of employment. 2 From Sigmon v. Goldstone, 116 App. Div. 490; 101 Supp. 984; in which a judgment dismissing the complaint was reversed. 120 Bradbury's Forms of Pleading Breach of Contract of Employment mentioned were and are copartners engaged in business under the firm name of J. & F. G. & Co. II. Tiiat on , 19 , in the city and county of , the defendants, under their firm name of J. & F. G. & Co., entered into and signed an agr.eement with the plaintiff, a copy of which is hereto annexed) whereby the plaintiff agreed "to give his undivided time and service in the employ of the defendants in the capacity of designer, pattern cutter and foreman for the term of months, beginning from and on the day of , 19 , and terminating , 19 , for the sum of $ for each and every week during the said term." III. That the plaintiff entered upon said employment, , 19 , and continued therein until on or about , 19 , when the defendants on or about said date, discharged and re- fused to allow the plaintiff to perform said services, though the plaintiff was ready and willing to perform the contract of em- ployment, as hereto set forth. IV. That by reason of said refusal and breach on the part of the defendants, the plaintiff has been damaged in the sum of $ For a second cause of action. I. The plaintiff alleges the matters stated and set forth in paragraphs I and II of the first cause of action for paragraph I of the second cause of action. II. That hereinbefore the defendants retained for the account of the plaintiff, according to said contract of employment, $ from each and every week's wages for the period from ,to ,19 . III. That the sum retained by the defendants for the account of the plaintiff amounted to $ , and that the same is due and owing to the plaintiff herein by the defendants. IV. That demand has heretofore been made upon the de- fendants by the plaintiff for the said sum of $ , but the same has been refused. Wherefore [demand for money judgment]. Complaints 121 Breach of Contract of Employment Form No. 156 Breach of Contract of Employment as Insurance Solicitor ' I. That at all times hereinafter mentioned the said defendant was, and still is, a domestic corporation duly organized and ex- isting under and by virtue of the laws of the State of ; that it was organized and incorporated for the purpose of doing the life insurance and accident insurance business under a special charter granted to it in the year ; that its principal busi- ness has been and is still the insurance of lives. II. That on or about the day of , 19 , under and by virtue of a certain contract of that date, the said defend- ant employed the plaintiff as its agent for the cities of and , and the said plaintiff in and by the said contract agreed to so serve the defendant exclusively for the purpose of soliciting life insurance business for the defendant company; as such agent plaintiff was made responsible to defendant in a fidu- ciary capacity for all moneys received by him for premiums or otherwise for the said defendant; he was also made personally responsible for his own acts and collections, and the acts and collections of his employees. III. That the defendant company in and by the said contract agreed to pay the plaintiff "in full compensation" for his ser- vices and expenses and the services of plaintiff's employees a first year's commission of fifty per cent graded and ten per cent renewals and an expense allowance of $ per month, not to exceed premiums collected, said compensation and the particulars of said contract being more fully set forth in the copy of the said contract which is hereto annexed and hereby made a part hereof, being marked Exhibit "A." 1 From Daniel v. Manhattan Life Ins. Co., 116 App. Div. 780; 102 Supp. 27; in which a judgment in favor of the plaintiff, but for a less sum than he claimed, was affirmed. The principal point decided was that various extensions of the agreement of employment had the effect of abrogating a provision in the original agreement that the contract could be terminated on notice of thirty days. 122 Bradbury's Forms of Pleading Breach of Contract of Employment IV. That in order to enable plaintiff to compete for business as its said agent and to handle brokers and subagents it was necessary for the defendant company to provide a larger first year's commission or brokerage to meet the current price or cost of the business than the said first year's commissions guaranteed to the plaintiff in said contract, and to meet this condition of the business the defendant company, hereinafter called the com- pany, specially stipulated in the said contract to advance fifteen per cent of the first year's premiums ; but this said advance was later found to be insuflScient to meet such competition and the actual needs of the agency work of the plaintiff, and thereafter, on the day of , 19 , the said advance was enlarged and changed to five per cent of the first year's premiums, under and by virtue of an amendment to said contract copy of which is hereto annexed as a part hereof, being marked Exhibit "B:" "Said advance to be a charge and lien upon all the re- newals commissions accruing to the party of the second part (plaintiff) under this contract upon all the business secured through brokers as aforesaid." V. That later on, in order to enable plaintiff, as its agent, to better handle the said brokerage business and to increase his compensation and renewal remuneration accruing to him from said brokerage renewal account, defendant released the ad- vances charged as aforesaid against "All the renewal commis- sions accruing to the party of the second part (plaintiff-herein) under this contract upon all business secured through brokers as aforesaid," and provided that each of the said twenty-five per cent brokerage advances were to be a "charge and lien upon the renewal commissions accruing to the party of the second part (plaintiff herein) under this contract upon the premiums re- ceived on such individual policies so obtained;" and under this latter arrangement (copy of which is hereto annexed as a part hereof, being marked Exhibit "C"), the company has canceled all the said advances charged against non-renewing or lapsed business of the said agency of plaintiff and has credited the said brokerage charged account with the regular ten per cent renewal Complaints 123 Breach of Contract of Employment as the same accrued from payments received from the individual policies. VI. That in addition to the aforesaid "full compensation," the company, in cruder to stimulate the plaintiff as its said agent, to produce and settle for at least $ of first year's pre- miums, further agreed in and by the said contract (see Exhibit "A"), "Should the premiums paid to the said party of the first part (company) upon policies issued during the first year of this contract, and settled within thirty days after the termination of said first year, equal the amount of $ , an additional renewal commission of five per cent for the second year will be allowed upon such second year's premiums as shall be paid to said party of the first part (plaintiff), as an extra contingent fee for such special service"; that upon such settlement or settle- ments as hereinafter set forth plaintiff thereby at once earned the same and became entitled to its payment at the time of the payment of the premiums in the second year or years. VII. That the plaintiff failed the first year of his contract to secure and settle for the said quota of business amounting to $ , and on or about , 19 , duly requested and suggested in writing to the company a five year contract and in- creased agency remuneration to enable and justify plaintiff, as its agent, to expend more money and increase the business, and thereafter, to wit: On the day of , 19 , in a letter to plaintiff from the company's vice president it stipulafed as follows: "In order to enable you (plaintiff herein) to devote your entire time exclusively to the interests of this company and to bear all the expenses of your agency, except medical examin- er's fees, we will, in addition to the allowance named in your contract bearing date , 19 , allow you to deduct out of the first year's premiums collected by you, on business secured by you, $ per month for the nine months ending , 19 . "We will also give you the exclusive privilege of working the cities of and , except the right of our agents temporarily visiting such cities to solicit insurance therein and 124 Bradbury's Forms of Pleading Breach of Contract of Employment also the right to the Rev. Mr. H. to pursue his work in the Metho- dist churches in these cities. We will also, until further notice give you the right to solicit insurance in the territory contiguous to the cities of and "If for the year ending , 19 , $ in first year's premiums upon business secured during that time, have been settled to the company, your contract and this agreement will be extended to cover the year ending , 19 ." Copy of which is hereto annexed as a part hereof, being marked Exhibit "D." VIII. That thereafter plaintiff did succeed in securing and settling for $ of first year's premiums for the year ending , 19 , and thereupon plaintiff's said contract of , 19 , with its amendments became at once operative, to- gether with the said stipulation of , 19 (Exhibit " D "), and plaintiff continued h's work as the agent of the de- fendant until the year ending , 19 , whereupon his said agency contractual rights were further continued and extended from the of , 19 , to the of , 19 , as is more particularly set forth in the copy amendment hereto annexed as a part hereof, being marked Exhibit "E;" that thereafter plaintiff's said contractual agency relations and interests were further continued and extended from , 19 . to , 19 , and further from ,19 , to , 19 , under and by virtue of an instrument in writing, copy of which is hereto annexed and made part hereof, being marked Exhibit "F." IX. That plaintiff relying upon his said contract, the enlarge- ment of his compensation from time to time, the extensions, continuations and amendments thereof, did secure and settle for the said required quota of business, to wit: $ of first year's premiums within thirty days after the termination of the years ending ,19 ,19 ,19 ,19 ,19 , and thereupon and thereby plaintiff became entitled to the said contingent extra additional five per cent second year's renewal commission upon any and all second year's premiums paid the Complaints 125 Breach of Contract of Employment company during the years ending ,19 ,19 ,19 , 19 ,19 , in accordance with his said contract as heretofore set up and alleged. Now, therefore, on information and belief, plaintiff further alleges that on , 19 , the sum of $ had become due and payable to plaintiff, being per cent on the sum of $ second year's premi- ums as aforesaid paid to the company; that on the day of , 19 , the sum of $ had become due and payable to this plaintiff, the same being the said per cent additional second year's renewal commissions on $ on second year's premiums paid the company during the year ending day of , 19 ; that on the day of 1 19 , the sum of $ had be- come due and payable to this plaintiff, the same being the said per cent additional second year's renewal commission on $ second year's premiums paid the company during the year ending the day of , 19 ; that on the day of ) 19 > the sum of $ had be- come due and payable to this plaintiff, the same being the said per cent additional second year's renewal commission of $ second year's premiums paid to the company during the year ending the day of , 19 ; that on the day of , 19 > the sum of $ had become due and payable to this plaintiff, the same being the said per cent additional second year's renewal com- mission of per cent on $ second year's pre- miums paid the company during the year ending the day of , 19 . That this plaintiff has demanded the payment of the aforesaid amounts due him as aforesaid from the defendant company and the said defendant company has refused to pay the same and still refuses to pay the same to this plaintiff. Wherefore [demand for money judgment]. 126 Bradbury's Forms of Pleading Breach of Contract of Employment Form No. 157 Agent Selling on Commission in Exclusive Territory ^ 1. For a first cause of action: I. That defendant, as plaintiff is informed and believes is, and at the times hereinafter mentioned was, a corporation duly- incorporated and existing under and by the laws of the State of , and has its ofRce and chief place of business in the city and county of , and was at the times hereinafter mentioned engaged in the manufacture and sale of soaps, sapolio and sal soda. II. That plaintiff, before the times hereinafter mentioned, had been for a long time, to wit: years, engaged in the busi- ness of selling soaps for the manufacturers of soaps, and had traveled over a large portion of the States of , , and other States on said business, and had made a large number of business acquaintances in the soap trade, and had built up a large and profitable trade therein, and had many customers in said trade in said States, which trade and customers were of great value to liim and represented the capital which he had in said business of selling soaps. III. That on or about the day of , 19 > at the said city of , the plaintiff and the defendant, through its duly authorized agent and secretary, A. B. S., made an agree- ment in writing, of which a copy is hereto annexed as part of this complaint. IV. And to carry out the terms of said agreement, it was, shortly thereafter, further agreed between plaintiff and defend- ant that the latter would pay plaintiff a commission of per cent on castile soaps sold or for which orders were accepted, in accordance with the terms of said agreement, and which were the articles mentioned therein as "other goods." V. That on or about the day of , the day of , the day of and the ' From Taylor v. Enoch Morgan's Sons, 124 N. Y. 184; in which a judgment in favor of the plaintiff was affirmed. Complaints 127 Breach of Contract of Employment day of , 19 ) further agreements were made between the parties hereto modifying said agreement in writing to the effect that plaintiff was thereafter permitted to sell defendant's various brands of laundry soaps under the terms of said agree- ment in the cities of , , and , , and , , and to sell sapolio in said city of , and plaintiff was entitled to commission on orders for said goods accepted from said cities. VI. That the plaintiff duly entered upon his duties under said agreement, and traveled throughout the States of , and , and the cities mentioned in paragraph V of this complaint at his own expense, and introduced and sold defendant's various brands of soaps, sapolio and sal soda, and handled no other goods to conflict with defendant's said goods, and by his exertions and influence sold large quantities of de- fendants' said goods, and induced a great number of people to give orders to defendant for its said goods and succeeded in es- tablishing a large trade for defendant throughout said States and cities, which continued during his employment under said agree- ment, and plaintiff duly performed all the conditions of said agreement and as modified as above set forth, on his part, until the day of , 19 , when and not until then said agreement was terminated by notice given plaintiff by defendant in accordance with its terms. VII. That at divers times between , 19 , and 19 , while said agreement was in force and in accord- ance with its terms, plaintiff sold in the States of ^ , and , and in said cities large quantities of defendant's brands of laundry soaps at various prices not less than cents per pound, and castile soaps, and in said States large quantities of sapolio and sal soda, and plaintiff sold large quantities of sapolio to defendant's regular trade in said States outside the cities of and , and cer- tain parties in referred to and so called in said agreement. VIII. That at divers times between , 19 , and 19 while said agreement was in force and in ac- 128 Bradbury's Forms of Pleading Breach of Contract of Employment cordance with its terms, defendant received and accepted from bona Me purchasers in the States of , and and said cities mentioned in paragraph V hereof, a very large number of orders for great quantities of laundry soap at various prices not less than cents per pound and of castile soap and sal soda, and defendant so received and accepted from bona fide purchasers in said States a very large number of orders for great quantities of sapolio sold to trade not there- tofore sold by the defendant, and for large quantities of sapolio sold to defendant's regular trade outside of , and certain places in before mentioned. IX. That in accordance with the terms of said agreement there became due and owing to plaintiff a large sum of money, the amount of which is unknown to the plaintiff, as commissions for the goods so sold and for the orders so accepted. X. That plaintiff has frequently applied to the defendant for an account of the orders so obtained and accepted as aforesaid and payment of his commission thereon in accordance with the terms of the said agreement, but he has not been able to obtain any satisfactory answer, information or account, and defendant has repeatedly refused permission to the plaintiff to examine its books in order that he might discover the amount so due him. XL That no part of the money due him for commissions as aforesaid has been paid plaintiff, excepting there have been paid various sums from time to time during said period between , and , in the aggregate amounting to about the sum of. $ in cash as part of the money which the de- fendant agreed to advance against plaintiff's commission, and that there is now due and owing to the plaintiff by reason of the premises a large amount of money, to wit : $ , the exact amount of which is to the plaintiff unknown. 2. For a second cause of action the plaintiff alleges : I. He repeats the allegations contained in the foregoing I, II, III, IV, V and VI paragraphs set forth in the first cause of ac- tion, and which are hereby referred to and made a part hereof, aS if they were severally incorporated herein. Complaints 129 Breach of Contract of Employment II. That at divers times, on repeated occasions and for long pferiods of time, the defendant, between , 19 , and , 19 , wholly failed and neglected, without any just cause or excuse, to make and supply their various' brands of soap in accordance with the terms of said agreement whereby the plaintiff by defendant's said neglect and misconduct lost the sales and the commissions on such sales of a large amount of goods which otherwise might have been sold under said agree- ment, and defendant wrongfully and without any just cause or excuse greatly delayed the shipment of the orders for goods accepted and of goods sold under said agreement, and wholly, on repeated occasions, failed and neglected to ship said goods promptly as in their general business, having in view the mutual interests of plaintiff and defendant, and from about , 19 , to , 19 , wrongfully, regardless of the mutual interests of the parties hereto and in violation of its agreement, refused to make and supply its various brands of soap to plain- tiff's trade, except at prices greatly in excess of the reasonaible and market value thereof, and at which prices the defendant sold the same goods to its general trade, whereby plaintiff lost many sales, and oftentimes delayed shipment for many days, whereby many orders were withdrawn and many purchasers refused to accept goods, the shipment of which was delayed as aforesaid, and the plaintiff lost the sales and the commissions on such sales of large quantities of goods, and defendant made and supplied goods under said agreement of a bad and unmerchantable quality on many different occasions during said time, which purchasers in many instances refused to accept on account of the inferior quality thereof, whereby plaintiff lost the sales and commissions on such sales of a large quantity of goods. III. And in consequence of the foregoing facts and the failure of the defendant to keep the said agreement, the plaintiff has been greatly damaged in his business of commercial traveler, and in his reputation as salesman, and has lost his trade and his routes described in said agreement. IV. And plaintiff alleges that by reason of the premises he has Vol. 1—9 130 Bradbury's Forms of Pleading Breach of Contract of Employment suffered damages at the hands of the defendant in a large amount, to wit : $ , no part of which has been paid, and which the defendant refuses to pay. Wherefore, plaintiff demands judgment: 1. That an account be taken of all laundry soaps, sapolio and other goods sold by plaintiff, and of all orders accepted, under said agreement, between the day of , 19 , and the day of , 19 , and that the amount of the commissions thereon due plaintiff under theHerms of said agreement be determined, and of the money paid plaintiff on account of said commissions. 2. That defendant be adjudged to pay plaintiff what shall upon the taking of such account appear to be due him. 3. And that in addition thereto the defendant be adjudged to pay plaintiff the sum of $ , his damages under said second cause of action, besides his costs and disbursements of action. Form No. 158 Sole Agency Contract to Sell Paving to Municipal Corporation ' For a first cause of action : I. The defendant is and was at all times hereinafter mentioned a domestic corporation. II. On , 19 , in the city and county of , the plaintiff and the defendant mutually entei-ed into a contract, in writing, under seal, a copy whereof, marked Schedule "A," is hereto annexed and made part of this amended complaint; wherein and whereby the defendant for a valuable consideration appointed the plaintiff its sole agent for the period of years from ,19 , to use and make all reasonable, honest and lawful efforts to secure for the defendant, from the city of , the right to make bids for laying a certain kind of p avement or paving blocks in said contract described; and \ From Dunham v. Hastings Pavement Co., 189 N. Y. 500; in which this cora- plamt was sustaiped oij d§muiTer, as to all three causes of action. Complaints 131 Breach of Contract of Employment covenanted and agreed to and with the plaintiftthat it would pay to the plaintiff ior his services the difference between the sum of $ per square yard, and the price at which each and every contract for laying said pavement or paving block should be awarded to the defendant, provided such contract should require a foundation of gravel and sand under the blocks; or the difference between the sum of $ per square yard and the price at which each such contract should be awarded to the defendant, if such contract should require a concrete foundation under said blocks; such payment to the plaintiff to be made by paying per cent of the amount thereof at the time when each of said contracts should be made between the city of and the defendant, and the remaining per cent when the defendant should receive payment in full from the city of III. In and by said contract, the plaintiff covenanted and agreed to and with the defendant that he would, during the con- tinuance of said contract, use and make all reasonable, honest and lawful efforts to secure for the defendant, from the city of , the right to make bids for laying the aforesaid pave- ment or paving blocks upon the streets of said city of IV. Thereafter in or ,19 , at the city of , in the county aforesaid, the plaintiff and the defendant for a valuable consideration by their mutual agreement modified the aforesaid contract so that the plaintiff's compensation for the aforesaid services should be the sum of cents per square yard upon all contracts which should be awarded to the defendant by the city of for laying the aforesaid pave- ment or paving blocks, to be paid to the plaintiff on account of each of said contracts when the defendant should receive pay- ment therefor from said city of ; and in all other respects the aforesaid contract was confirmed. V. Immediately after the execution of the aforesaid contract the plaintiff entered upon the performance thereof, and con- tinued to perform the same, and during the years 19 ,19 , and 19 , secured for the defendant, from said city of 132 Bradbury's Forms of Pleading Breach of Contract of Employment the right to make bids for laying the aforesaid pavement or pav- ing bloclcs upon the streets of said city of , and during; said years contracts were awarded to the defendant by said cit}- of for the laying of said pavement and paving blocks to the extent of square yards ; an itemized statement of which contracts is hereto annexed, marked Schedule "B," and made part of this amended complaint. VI. The plaintiff duly performed all the conditions of the afore- said contract on his part to be performed, until prevented from further performance by the defendant in or about , 19 . VII. Before the commencement of this action, the defendant received from said city of payment upon each of the contracts specified in Schedule "B," hereto annexed. VIII. The defendant, in violation of its aforesaid covenant, neglected and refused, and still neglects and refuses, to pay the plaintiff the sum of cents per square yard for each square yard of the aforesaid pavement or paving blocks laid by it under the aforesaid contracts, amounting in the aggregate to the sum of $ , excepting the sum of $ , paid before the commencement of this action; although plaintiff has duly demanded payment of said sum. For a second and separate cause of action, the plaintiff alleges as follows : IX. The defendant is and was at all times hereinafter men- tioned a domestic corporation. X. The defendant is indebted unto the plaintiff in the sum of $ , with interest thereon from the day of , 19 , for services performed by the plaintiff for the de- fendant in the years 19 , 19 and 19 , at the city of , in the county aforesaid, at the special instance and request of the defendant, in and about securing for the defendant, from the city of , the right to make bids for laying a certain kind of pavement or paving blocks, known as the "compressed asphalt paving block," upon the streets of the city of XI. The defendant has- not paid said sum or any part thereof, although frequently requested to pay the same. Complaints 133 Breach of Contract of Employment For a third and separate cause of action, the plaintiff alleges as follows : XII. The defendant is and was at all times hereinafter men- tioned a domestic corporation. XIII. On , 19 , at the city of , in the county aforesaid, the plaintiff and the defendant mutually entered into a contract, in writing, under seal, a copy whereof, marked Sched- ule "A," is hereto annexed and made part of this amended com- plaint; wherein and whereby the defendant for a valuable con- sideration appointed the plaintiff its sole agent for the period of years from ,19 , to use and make all reasonable, honest and lawful efforts to secure for the defendant, from the city of , the right to make bids for laying a certain kind of pavement or paving blocks in said contract described; and covenanted and agreed to and with the plaintiff to pay the plaintiff for his services the difference between the sum of $ per square yard and the price at which each and every contract for laying said pavement or paving blocks should be awarded to the defendant, provided such contract should re- quire a foundation of gravel and sand under the blocks; or the difference between the sum of $ per square yard and the price at which each said contract should be awarded to the de- fendant, if such contract should require a concrete foundation under said blocks; such payment to be made to the plaintiff by paying per cent of the amount thereof at the time when each of said contracts should be made between the city of and the defendant, and the remaining per cent when the defendant should receive payment in full from the city of XIV. In and by said contract, the defendant further cove- nanted and agreed to and with the plaintiff, that if the defendant should lay any pavement in the city of , without the consent of the plaintiff, the defendant would pay to the plain- tiff, in the installments aforesaid, not less than per cent of the contract price as a penalty, or such sum as might be in excess of $ per square yard, when said pavement or 134 Bradbury's Forms of Pleading Breach of Contract of Employment paving blocks should be laid on a sand and gravel foundation; and further covenanted and agreed to and with the plaintiff, that the defendant would not, during the continuance of the aforesaid contract, sell, give or furnish its paving blocks or pavement to any other person whomsoever, for the purpose or with the in- tention of having the same used upon any street in the city of , and that it would not allow any other person or per- sons to lay such pavement or paving blocks in the city of without the consent of the plaintiff. XV. In and by said contract, the defendant further cove- nanted and agreed to and with the plaintiff, that if the defendant should, within years, after the aforesaid day of , 19 , lay not less than square yards of the aforesaid pavement or paving blocks, in the city of , then the plaintiff should have the right to renew the aforesaid con- tract for a further term of years, upon giving notice in writing to the defendant days prior to the expiration of said first period of years. XVI. In and by the aforesaid contract, the plaintiff cove- nanted to and with the defendant that he would, during the con- tinuance of said contract, use and make all reasonable, honest and lawful efforts to secure for the defendant, from the city of the right to make bids for laying the aforesaid pavement or paving blocks upon the streets of said city of XVII. Thereafter, in or , 19 , at the city of , in the county aforesaid, the plaintiff and the defend- ant for a valuable consideration by their mutual agreement modified the aforesaid contract, so that the plaintiff's compensa- tion for the aforesaid service should be the sum of cents per square yard upon all contracts which should be awarded to the defendant by the city of , for laying the aforesaid pavement or paving blocks, to be paid to the plaintiff on account of each of said contracts when the defendant should receive pay- ment therefor from the said city of ; and in all other respects the aforesaid contract was confirmed. Complaints 135 Breach of Contract of Employment XVIII. Immediately after the execution of the aforesaid con- tract, the plaintiff entered upon the performance thereof, and continued to perform the same; and until the defendant's repu- diation of said contract, as hereinafter set forth, and the defend- ant's refusal to permit the plaintiff further to perform the same, the plaintiff duly performed all the conditions of the said con- tract on his part to be performed; and the plaintiff has ever since been and still is ready and willing, and has offered, to con- tinue to perform the same. XIX. Within years after said day of , 19 , the defendant laid more than square yards of the aforesaid pavement or paving blocks, in the city of , and plaintiff gave notice to the defendant in writing, days prior to the expiration of said first period of years, to wit: , 19 , that he elected to and did renew said contract for the further term of years, and thereupon the aforesaid contract was, by the mutual agree- ment of the plaintiff and the defendant, renewed and continued for a further term of years, to wit: to and including , 19 . XX. The defendant has failed to perform its aforesaid cove- nants, and in violation thereof and of its agreement not to inter- fere with or prevent the plaintiff from performing the aforesaid contract, in or about , 19 , repudiated the aforesaid contract and undertook to terminate the plaintiff's agency, and refused to permit the plaintiff to continue the performance of said contract, and thereupon and continuously thereafter pre- vented the plaintiff from performing the same; and thereafter, in further violation of its said covenants, the defendant, during the continuance of the aforesaid contract, sold its aforesaid pave- ment or paving blocks, without the consent of the plaintiff, to other persons, firms or corporations for the purpose and with the intention of having the same laid and used upon streets in the city of ; and in further violation of its aforesaid cove- nants, the defendant, during the continuance of the aforesaid contract, allowed other persons, firms or corporations to lay said 136 Bradbury's Forms of Pleading Breach of Contract of Employment pavement in the city of without the consent of the plain- tiff. XXI. The streets upon which such pavement and paving blocks were laid as aforesaid by the defendant, and the streets upon which said pa ^^ement and paving blocks were laid by per- sons, firms or corporations other than the defendant as' afore- said, and the number of square yards of such pavements and pav- ing blocks so laid, in violation of the defendant's covenants as hereinbefore alleged, are set forth in full in the schedules hereto annexed and marked "C," Supplementary to Statement B, Supplementary to Statement C, Second Supplementary to State- ment B, Second Supplementary to Statement C, which are hereby made a part hereof. XXII. By reason of the defendant's breach of its aforesaid covenants, the plaintiff was deprived of the value of said con- tract and lost the benefit thereof, and the sums which he would otherwise have received thereunder, from , 19 , until ,19 ; to the plaintiff's damage : $ Wherefore [demand for money judgment]. Form No. 159 Breach of Contract to Employ Plaintifi With the Use of Oanal Boat and Grew ' I. That the plaintiff resides in the city of , county, , and the defendant in the city of , in said State. II. That on the day of , 19 , the plaintiff and the defendant made an agreement in writing, of which the following is a copy: Articles of Agreement entered into this day of , 19 , between G. W. M., owner of the canal boat, "J. W. M.," and G. E. W. of the city of , N. Y. WITNESSETH: The party of the first part, in consideration of payments to be made as hereinafter named, hereby agrees 1 From Milages. Woodward,, 186 N. Y. 252; in which a judgment in favor of the plaintiff was affirmed.- Complaints 137 Breach of Contract of Employment to furnish the said canal boat with its crew, three horses and all necessary equipment to the party of the second part, for the pur- pose of boating sand from the property owned by the party of the second part, and located on the bank of the near , county, , to the city of , N. Y., or to such other place on the as said party of the second part may direct. The party of the second part hereby agrees, for the use of said boat, its crew, team and equipment, for the purpose hereinbefore expressed, to pay to said party of the first part the sum of $ per week of six days. Or, should said party work seven days per week, he is to receive $ per week. This contract is entered into by the parties hereto for and during the term of four weeks, beginning , 19 . (Sgd.) III. That in pursuance of said contract the plaintiff entered upon his employment under said agreement on the day of , 19 , and furnished his canal boat, with its crew, horses and necessary equipment, as provided in said contract, and has fully and in all things performed his part of said contract during the weeks, as provided in said contract, beginning , 19 , and ending , 19 , and during all of said time held himself in readiness to perform all o^ the condi- tions of said agreement upon his part. IV. That in pursuance of said contract, and on the day of , 19 , the plaintiff entered upon the discharge of his duties under said contract and furnished his canal boat, with its crew, horses and the necessary equipment, to the party of the second part, for the purpose of boating sand, and that un- der the direction of said defendant he worked for a time for said defendant drawing sand as provided in said contract, when the defendant refused to allow the plaintiff to further carry out the terms of said contract, and thereupon the plaintiff held him- self in readiness with his canal boat, crew, horses and all necessary equipment, to work for defendant as provided in said contract during the time thereof and until the expiration of four weeks. 138 Bradbury's Forms of Pleading Breach of Contract of Employment beginning ,19 , and the defendant, without cause, and unjustly, refused to allow the plaintiff to perform his part of said contract, and unreasonably and without cause, discharged him, and prevented him from carrying out said agreement and performing the same upon his part. V. That by the terms of said contract there became due to the plaintiff the sum of $ , no part of which has been paid, and that by reason of the wrongful and unlawful discharge of plaintiff by defendant, the plaintiff sustained damage in the sum of $ , no part of which has been paid. Wherefore [demand for money jvdgm£nt]. Form No. 160 Action on a Quantum Meruit for the Value of Services Where Contract of Employment Silent as to Amount of Compensation ^ 1. For a first cause of action. I. That the defendant herein is a National Banking Associa- tion, situate at the city of , county of , borough of and State of , created by and under the laws of the United States, and organized pursuant to an Act of Con- gress, entitled "An Act to provide a National Currency secured by a pledge of the United States bonds and to provide for the circulation and redemption thereof," approved June 3, 1864, and the acts supplementary thereto and amendatory thereof, and said defendant is a domestic corporation. II. That heretofore and from on or about the day of , 19 , until up to and including the day of , 19 , this plaintiff was duly employed by the said de- fendant as assistant check clerk at No. , street in the city and county of , borough of , at a salary of $ per annum, payable in semimonthly in- stallments of $ each. III. That thereafter and on or about the said day of , 19 , this deponent was asked by said defendant to > From Meislahn v. Irving Nat. Bk., 62 App. Div. 231; 70 Supp. 988; aff'd 172 N.Y. 631. Complaints 139 Breach of Contract of Employment accept the position of check clerk in the place and stead of the former incumbent of such office, whose salary for performing the duties of said position had been $ per annum, pay- able in semimonthly installments of $ each. IV. That at or about the time when this plaintiff was asked by said defendant to accept said position of check clerk, as afore- said, and before he accepted said position this plaintiff duly de- manded the salary theretofore attached to the said position of check clerk, and it was thereupon understood and agreed by and between this plaintiff and said defendant that this plaintiff was to receive the sum of $ per month, payable semi- monthly as aforesaid. V. That thereafter this plaintiff duly accepted said position of check clerk tendered to him by said defendant, as aforesaid, and thereupon duly entered upon and performed all the duties of such position from the day of , 19 , until the day of , 19 . VI. That from time to time thereafter and upon each of the dates hereinafter mentioned, said defendant paid to this plaintiff the sum of $ on account of his said salary as check clerk, to wit: , 19 , ,19 [setting forth the various dates], and , 19 ; aggregating in all the sum of $ , leaving a balance due and owing to this plaintiff from said de- fendant of $ VII. That demand was heretofore and before the commence- ment of this action duly made by this plaintiff upon said defend- ant for payment of said sum of $ , but no part thereof has ever been paid. 2. For a second cause of action. I. That the defendant herein is a National Banking Associa- tion, situate at the city of , county of , borough of and State of , created by and under the laws of the United States, and organized pursuant to an act of Con- gress, entitled "An Act to provide a National Currency secured by a pledge of the United States bonds and to provide for the circulation and redemption thereof," approved , 19 , 140 Bradbury's Forms of Pleading Breach of Contract of Employment and the acts supplementary thereto and amendatory thereof, and said defendant is a domestic corporation. II. That heretofore and from the day of , 19 , to the day of , 19 , at No. , street, in the city and county of , borough of , this plaintiff rendered certain services to the said de- fendant at the request of said defendant, as clerk in charge of a department belonging to the defendant known as the check desk. III. That the said services were reasonably worth the sum of $ a month. IV. That by the custom of said defendant all the salaries due or payable to the clerks or employees of said defendant were payable in semimonthly installments, at the middle and end of each calendar month. V. That by reason of the premises, the value of the services rendered to said defendant as aforesaid, by this plaintiff, amounted in aggregate on , 19 , to the sum of $ , and no part of the said sum has been paid except the sum of $ , of which % was paid 6n each of the following dates, to wit : , 19 {setting forth the dates\, and , 19 ; leaving a balance still due and owing to this plaintiff from said defendant of % , for the payment of which demand has heretofore been duly made of said defendant by this plaintiff. Wherefore {demand for money judgment]. {The total amount was set forth, and the interest was aslzed for on the amount of each semimonthly payment from date on which the payment fell due.] Form No. 161 Renewal of Yearly Contract of Employment by Holding Over ' I. That at the times hereinafter mentioned the defendant was and still is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. 'From Treffingerv. Groh's Sons, 112 App. Div. 250; 98 Supp. 291; aff'd, without opinion, 185 N. Y. 610; affirming an interlocutory judgment overrul- ing a demurrer to the complaint. Complaints 141 Breach of Contract of Employment II. That on or about the day of , 19 , the plaintiff entered into an agreement with the defendant by which it was understood and agreed that, in consideration of the plain- tiff's faithfully serving the defendant in the capacity of brew- master of the brewery owned and operated by the defendant, for the period from , 19 , to , 19 , the de- fendant would pay to the plaintiff the sum of dollars per year for the said services, and the defendant thereupon hired the plaintiff to work for it as its brewmaster for the said period at the said salary, and also to furnish and provide for him during the term of his employment living apartments in the premises on street in the city of New York, occupied by the said defendant for its brewery, and the plaintiff agreed with the de- fendant so to work and serve for the said time and the said com- pensation. III. The plaintiff and the defendant both duly performed all the conditions on each of their said parts to be performed during the period up to and including , 19 , and the plaintiff duly performed all of his duties as brewmaster as afore- said and the defendant duly furnished the said living apart- ments and duly paid the said dollars to the said plain- tiff for said period. IV. That thereafter the plaintiff held over and continued in the employ of the defendant in said capacity during the entire year, 19 , in the same capacity, and duly performed all of said duties during the said year 19 , and the defendant duly paid the plaintiff for his said services during the year 19 , the said sum of dollars, and furnished the said living apartments during the year 19 , and the plaintiff so held over and continued in the employ of the defendant, with the knowledge and consent of the defendant, and that said employment during the year 19 was continued l^y the defendant and the plaintiff without any new express agreement, and the defendant continued and retained the plaintiff in its employ during the year 19 , whereby it elected to continue the said employment for another year, commencing on or about the day of , 19 , 142 Bradbury's Forms of Pleading Breach of Contract of Employment upon the same terms and upon the same compensation as pro- vided for and agreed to in the said agreement for the year 19 . V. That thereafter the plaintiff held over and continued in the employ of the defendant in said capacity during the entire year 19 , in the same capacity, and duly performed all of said duties during the said year 19 , and the defendant duly paid the plaintiff for his said services during the year 19 , the said sum of dollars and furnished the said living apartments during the year 19 , and the plaintiff so held over and continued in the employ of the defendant, with the knowledge and consent of the defendant, and that said employment during the year 19 was continued by t^ie defendant and the plaintiff without any new express agreement, and the defendant continued and retained the plaintiff in its employ during the year 19 , whereby it elected to continue the said employment for another year, com- mencing on or about the day of , 19 , upon the same terms and at the same compensation as provided for and agreed to in the said agreement for the year 19 . VI. That thereafter and during the year 19 , and for a period up to about the day of < 19 , the plaintiff held over and continued in the employ of the defendant without any new express agreement, and the defendant continued and re- tained the plaintiff in its employ in the same capacity as afore- said, and the defendant thereby elected to continue the said em- ployment for the year commencing on or about the day of , 19 , upon the same terms and at the same compen- sation as provided for and agreed to in the said agreement for the years 19 and 19 ; and that by reason of the foregoing facts an agreement was duly made by and between the defendant and the plaintiff for the employment of the plaintiff by the de- fendant for a period of one year from ,19 , at the said compensation, subject to the said-terms. VII. That the plaintiff continued in said service up to on or about the day of , 19 , and duly performed up to that date all the conditions and covenants and agreements on his part to be performed; that on or about the day Complaints 143 Breach of Contract of Employment of , 19 , the defendant broke the said contract and wrongfully discharged the plaintiff from its employ, and wrong- fully compelled the plaintiff to remove from the said apartments occ'ipied by him, and refused to continue the plaintiff in its said employ or to pay him any part of the compensation hereinbefore set out for the period from , 19 , to , 19 , to the damage of the plaintiff in the sum of dollars. VIII. The plaintiff has at all times performed all the condi- tions to said contract on his part to be performed, excepting where performance has been prevented by the acts of the de- fendant hereinbefore set forth. Wherefore [prayer for money judgment]. Form No. 162 Renewal of Contract of Employment by Continuing Prom Year to Tear to do Same Work Without Specific Renewal; Discharge by Receiver; Liability of Corporation Assuming Liabilities of Old Firm ^ I. Upon information and belief, that defendant, D. A. & Co., is a domestic corporation organized and existing under the laws of the State of New York. II. During the month of , 19 , this plaintiff entered ' into a contract with a firm known as D. A. & Co., whereby the said firm hired the said plaintiff to work for it as manager of the number book department for the term and period of one year, beginning on the day of , 19 , and agreed to pay to him therefor the sum of $ per year, in such pay- ments as plaintiff might draw on account thereof, not exceeding the said sum of $ during said term of one year, and the plaintiff agreed with the said firm of D. A. & Co. so to work and serve for the said time and for the said compensation. III. That the plaintiff entered upon such services and con- tinued therein during the existence of the said firm of D. A. & Co. and the various changes which were made in said firm's membership. 1 From Baker v. D. Appleton & Co., 187 N. Y. 548; aff'g 107 App. Div. 358; in which a judgment in favor of the plaintiff was affirmed. 144 Bradbury's Forms ok Pleading Breach of Conti-act of Employment IV. That at the expiration of said term of one year from , 19 , and during the continued existence of this firm, no other contract was ever made between said firm and this plain- tiff, but he continued after the expiration of said term of one year and for each successive year thereafter to render the same ser- vices and receive the same compensation as theretofore. V. That on or about , 19 , the business previously carried on by the said firm of D. A. & Co., which had employed plaintiff as aforesaid, was transferred and turned over to a corpo- ration known as the D. A. & Co., organized on or about said date, under the laws of the State of New York, and that said plaintiff, after said company had assumed and taken over the business of the said firm of D. A. & Co. continued to render the same services for such corporation which he had previously rendered for the firm of D. A. & Co., and received from such cor- poration the same compensation as theretofore, to wit : $ per year. VI. That after , following the organization of said corporation, the said plaintiff continued without any new con- tract of employment and rendered for said corporation of D. A. & Co. the same services which he had previously rendered, and, received from said corporation the same annual salary, and that said contract first entered into with the said firm of D. A. & Co. was continued successively from year to year until on or about the day of , 19 , when this plaintiff was wrong- fully discharged by said corporation and notified that his ser- vices would be no longer required. VII. Upon information and belief, that on or about the day of , 19 , the defendant, D. A. & Co.^was organized under and pursuant to the laws of the State of Nw York, and that said corporation assumed all the liabilities of the said aforementioned corporation of D. A. & Co. and received all the assets and property of said aforementioned corporation of D. A. & Co., which said company had, on or about the day of , 19 •, gone into the hands of a receiver, one J. H. D., he having been on or about that day, duly appointed receiver Complaints 145 Breach of Contract of Employment of said corporation by the Supreme Court of the State of New York. That subsequently and on or about the day of , 19 , the said J. H. D. was discharged as such receiver of the said aforementioned corporation of D. A. & Co. and di- rected to return to said corporation all the assets and property in his hands. That subsequently the said receiver transferred to the said aforementioned corporation of D. A. & Co. all the assets and property of every kind and nature which had come into his hands or possession as such receiver, and which said assets and property the said aforementioned corporation duly transferred to this defendant, D. A. & Co., herein, upon an agree- ment relating to the reorganization of the business of the said aforementioned corporation of D. A. & Co., and by which this defendant, upon receiving all of the assets and property of the said aforementioned corporation, became liable and agreed to assume all the liabilities of the said aforementioned corporation, among which is the claim of this plaintiff herein set forth. VIII. That by reason of the breaking of plaintiff's contract for services by the said aforementioned corporation of D. A. & Co., this plaintiff has suffered damages to the amount of $ Wherefore [demand for money judgment]. Form No. 163 Action by Master Against Servant (Accountants) for Damages Caused by Failure of Servant to Perform Duties ^ For a counterclaim to the cause of action alleged in the com- plaint, the defendant alleges : IV. At the times hereinafter mentioned the defendant was and is a foreign corporation incorporated under and by virtue of the laws of the United Kingdom of Great Britain and Ireland, and engaged in carrying on business of fire and marine insurance In the city and State of and elsewhere. > Counterclaim from Smith v. London Assur. Corp., 109 App. Div. 882; 96 Supp. 820. Vol. I— 10 146 Bradbury's Forms of Pleading Breach of Contract of Employment V. At the times hereinafter mentioned the plaintiffs were co- partners, carrying on business as accountants in the city of and elsewhere. VI. Heretofore and on or about the day of , 19 , said plaintiffs under their firm name of C. R. C. & Co., submitted to the defendant an estimate for the audit of the books and accounts of the fire and marine insurance offices of the de- fendant in the city of , and requested the defendant to employ the plaintiffs to audit the said books and accounts of the defendant in the manner and upon the terms stated in said estimate. The plaintiffs represented to the defendant that the plaintiffs were competent and skillful accountants, and that their audit could be reUed upon by the defendant as being thorough, careful and competent in every way. VII. Thereafter and on or about the day of , 19 , the defendant accepted the said estimate of the plaintiffs, and employed the plaintiffs upon the terms stated to make the said audit of the books and accounts of the fire and marine in- surance offices of the defendant in the city of ; and until the day of , 19 , the said plaintiffs, in pursuance of the said employment, from time to time audited or pretended to audit said books and accounts of the fire and ma- rine offices of the defendant in the city of , and sub- mitted to the defendant periodical reports giving the result of such audit or pretended audit, and the defendant from time to time paid the plaintiffs the amounts agreed to be paid for the services so agreed to be rendered by the plaintiffs. VIII. On or about the day of , 19 , the marine insurance office of the defendant in the city of , was discontinued, and no books and accounts of such marine office were thereafter kept by the defendant in the city of , or audited by the plaintiffs. Since said day of , and 19 , and until the day of , 19 , the plaintiffs have in pursuance of said agreement of employment above recited, continued to audit or to pretend to audit the said books and accounts of the fire insurance business of the defend- Complaints 147 Breach of Contract of Employment ant in the city of , and have submitted to the defendant periodical reports giving the result of such audit or pretended audit, and the defendant from time to time has paid the plaintiffs the amounts agreed to be paid for the separate audit of the fire insurance business of the defendant in the city of IX. The plaintiffs have not performed their said agreement in the manner and to the extent stipulated during said period, but have negligently and willfully failed to examine and check in particular the cash account of the fire office of the defendant and have failed to verify the said cash and agency accounts, and have otherwise been negligent and careless in the performance of their duties under such agreement. In conse- quence of the negligence of the plaintiffs in and about the said audit or pretended audit, one J. A. S., who was the cashier of the fire office of the defendant during the said period, did, between said , 19 , and the day of , 19 , embezzle certain moneys of the defendant, amounting in the aggregate to the sum of I , and the said embezzle- ment was not discovered by the said plaintiffs as auditors, or by the defendant, until shortly prior to said day of , 19 . The said J. A. S., as cashier, between , 19 , and , 19 , embezzled the said moneys of the de- fendant by wrongfully abstracting from time to time and con- verting to his use, various sums of money paid to him, said S., as cashier of the defendant, and falsifying the entries of the books relating to the said business of the defendant, and in particular the cash books. Had the audit of the books of the defendant at the branch been performed in the manner and with the thoroughness and skill stipulated for in the agreement between the plaintiffs and the defendant above recited, the said J. A. S. could not have embezzled any of the said funds of the defendant, and any attempted embezzlement would have been discovered on the first occasion on which any money had been wrongfully taken by the said S., and the entire loss to the defendant, re- sulting from the said embezzlements and defalcations of S., would hg,ve been prevented, 148 Bradbury's Forms of Pleading Breach of Contract of Employment X. The said agreement between the plaintiffs and the defend- ant, for the audit of the books and accounts of the branch of the defendant, was entered into by the defendant for the purpose of preventing any embezzlement or wrongful ab- straction of the funds of the defendant by any of the employees or servants of the defendant at the said office, and it was repre- sented to the defendant by the plaintiffs, that the plaintiffs' services as auditors, would be effectual to discover promptly any embezzlement, and it was expressly stipulated that there should be a frequent checking by the plaintiffs of the cash ac- count of the branch of the defendant, and a verification of the items appearing thereon, and the defendant in employing the plaintiffs, expressly relied upon the said representations of the plaintiffs and upon the agreement of the plaintiffs to perform their work with thoroughness, skill and efficiency. XI. The losses of the defendant hereinbefore set forth, result- ing from the embezzlement^ and defalcations of said J. A. S., were entirely due to the negligence, want of skill and failure on the part of the plaintiffs to perform their agreement with the defendant in the manner stipulated. XII. The defendant has demanded of the plaintiffs payment of the amount of losses so sustained by the defendant, which the plaintiffs have refused to pay. Wherefore [demand for the dismissal of the complaint and money damages]. Form No. 164 Enjoining Discharged Employee From Engaging in Same Business and Thus Enforcing a Covenant in the Contract of Emplojrment ' I. That at all the times hereinafter mentioned the plaintiff was, and still is, a domestic corporation. II. That heretofore, to wit; on or about the day of ,19 , at the city of , the plaintiff entered into an agreement in writing with the defendant, a copy of which is 1 From Mutual Milk & C. Co. v. Heldt, 120 App, Div, 795; 105 Supp. 661; in which an injunction pendente lite was granted. Complaints 140 Breach of Contract of Employment annexed hereto, marked Exhibit "A," and made a part hereof. That in and by the said agreement the defendant agreed, among other things, that he would not for a period of months from the date of his leaving the employment of the plaintiff, either in his own behalf or in behalf of anyone else, solicit orders for milk or cream or serve milk or cream to any persons who had been cus- tomers of the plaintiff. III. That thereafter, and in pursuance of the said agreement, and on or about the said day of , 19 , the defendant entered the employment of the plaintiff and continued in such employment until on or about the day of , 19 ; that on or about the said last-mentioned date the defendant left the employment of the plaintiff. IV. That thereafter, and from on or about the said last-men- tioned date and up to the time of the commencement of this action, the defendant had continuously been, and still is, solicit- ing orders for milk and cream from, and serving milk and cream to, various persons who were customers of the plaintiff during the period of the defendant's said employment. V. That the covenant above mentioned, and contained in the said agreement, was a material and valuable part of the said agreement, and was inserted therein as, and was intended by the parties thereto to be, a protection to the plaintiff against the competition of the defendant for the period therein named after the defendants should leave the employment of the plaintiff, and against any interference on the part of the defendant with the customers of the plaintiff during that period, and that the defendant well knew such to be the purpose and object of said covenant; but that the defendant, maUciously, wrongfully, and with intent to injure and destroy the benefits belonging to the plaintiff under and by virtue of the said covenant, has served, and continues to serve, as above set forth, in his own behalf, or in behalf of someone else, milk and cream to customers belong- ing to the plaintiff, as aforesaid, and also to solicit orders for milk and cream from customers belonging to the plaintiff, as aforesaid. 150 Bradbury's Forms of Pleading Breach of Contract of Employment VI. That months have not elapsed since the de- fendant left the employment of the plaintiff as above set forth. VII. That the plaintiff does a large and extensive business in the sale of milk and cream, and that the sales thereof to its customers amount to $ per annum; and that its sales thereof to its customers from whom the defendant has solicited orders as aforesaid, and to whom the defendant has served milk and cream as aforesaid, amount to $ per annum; and that it is impossible to estimate the losses which would result to the plaintiff if the defendant continues to violate his said agree- ment in the particulars aforesaid; and that the plaintiff has already suffered, and continues to suffer, large damages by reason of the acts of the defendant above set forth. VIII. That it is wholly impossible for the plaintiff to detect all of the violations as aforesaid of his said agreement committed by the defendant, and the plaintiff is and will be unable to detect all such violations; and that unless the defendant be enjoined from continuing to violate his said agreement in the respects aforesaid the plaintiff will be wholly without redress, and will be deprived from any benefit whatever from the aforesaid covenant. IX. That the plaintiff has in all respects performed all of the covenants, terms and conditions in the said agreement assumed to be performed by it; that the defendant is unable to respond in damages for his aforesaid violations of his said agreement, and that the plaintiff is without adequate remedy at law in the premises. Wherefore, the plaintiff demands judgment against the de- fendant as follows : 1. Restraining and enjoining the defendant, his agents, servants and employees, and each and every person acting for or under him, from in any manner, for the term of months from the day of , 19 , whether in his own behalf, or in behalf of any other person, and whether in person or through the agency or instrumentality of another, soliciting orders for milk or cream from, or serving milk or cream Complaints 151 Breach of Contract of Employment to, any persons who were customers of the plaintiff between , 19 , and ,19 , or who, since , 19 , have been, or now are, or who, prior to , 19 , may become, customers of the plaintiff, or from interfering with the sale of milk or cream to such persons by the plaintiff, or from interfering with the trade relations that obtain between the plaintiff and such persons, or from establishing any trade rela- tions with such persons in competition or interference with the business of the plaintiff. 2. That the plaintiff recover the damages, to be ascertained upon the trial of this action, which it has already suffered by reason of the acts of the defendant as herein set forth, and also by reason of the defendant's continued acts in violation of its said agreement. 3. For such other and further rehef as to the court, in the premises, may seem just and proper. 4. For the costs and disbursements of this action. [Signature and ofpce address of attorney.] [Verification.] EXHIBIT "A." This Agreement made this day of > 19 > between H. H. of the city of , borough of , party of the first part, and the M. M. & C. Co. of the same place, party of the second part, Witnesseth: The party of the second part agrees to employ the party of the first part as driver and collector at the rate of $ per week, payable semimonthly, and will give him one week's notice in case his services are no longer required. The party of the first part agrees that he will perform his duties as driver and collector faithfully and honestly while in the employ of the party of the second part, and will give one week's notice in case he wishes to sever his connection with the party of the second part; and in case of his failure so to do, any loss that the party of the second part may sustain shall be de- ducted from the $ deposited as hereinafter referred to. 152 Bradbury's Forms of Pleading Breach of Contract of Employment The party of the first part further agrees, in consideration of this employment, that he will not, either in his own behalf or in the behalf of anyone else, solicit orders for, or serve milk or cream to, any of the customers belonging to the party of the second part, for the term of months from the date of his leaving the employ of the party of the second part. The party of the first part hereby deposits the sum of $ in cash with the party of the second part as a guarantee of good faith and honesty while in its employ, it being understood that such deposit shall draw interest at the rate of per cent per annum provided the said sum of $ shall be on deposit for a period of six months or longer; and that the said sum, with interest, in case it is entitled to interest, shall be repaid to the party of the first part upon his leaving the employ of the party of the second part and having his accounts satisfactorily audited and adjusted. It is also understood that the said deposit cannot be with- drawn after the party of the first part leaves the employ of the said party of the second part until his accounts are fully ex- amined and approved of by the party of the second part, and for this purpose the said party of the first part agrees to give such information and such facts as may be asked for a reasonable time after leaving such employ or being discharged therefrom, as the party of the second part may require in order to enable it to satisfactorily investigate the accounts of the party ■of the first part. In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written. (Sgd.) Form No. 165 Action for Amounts Due Employee Under Contract for Stipulated Amount Monthly and Percentage of Profits ^ I. That at the several times hereinafter mentioned, the de- ' From Keyes v. Flint, 69 App. Div. 141; 74 Supp. 483; in which the case came up on a motion for a bill of particular.s. It has not since been reported. Complaints 153 Breach of Contract of Employment fendant was and still is a domestic corporation duly incorpo- rated and existing under and by virtue of the laws of the State of and was at all the times hereinafter mentioned, and still is engaged in manufacturing and selling furniture and cabinet ware and putting up of interior household fittings and decorations. II. That on or about , 19 , the plaintiff, being at that time in the employ of the defendant, entered into a con- tract with the defendant, wherein and whereby the said plaintiff agreed to continue to manage the shipping department of the said defendant, and in return for plaintiff's services, the said defendant agreed to pay him therefor commencing as of , 19 , the sum of $ weekly in any event, and when- ever five per cent of the net p.rofiiS of the business of the defendant for any semia.niual period exceeded the total of tb.c amounts so paid to plaintiff in weekly installments during such semiannual period, a sum representing the difference between said five per cent of the net profits, and the total of the amounts paid to the plaintiff weekly was to be credited to the plaintiff on the books of the defendant, and plaintiff might forthwith withdraw said amount so credited, or at his option leave the same with the defendant at interest at per cent per annum, until such lime as he wished to withdraw it, and it was also agreed that the semiannual periods referred to, should end on and of each year and that the said net profits be calculated at the said times and credited to the plain- tiff as of the dates of and succeeding each re- spective period. III. That the plaintiff rendered services to the defendant, as manager of its shipping department, under the foregoing con- tract or agreement during the last six months of the year 19 , and during the years, 19 and 19 , and the plaintiff re- ceived as payment on account for his services under said con- tract as follows : For the last months of 19 , the weekly While, therefore, the complaint seems to be complete it has not been upon directly. 154 Bradbury's Forms of Pleading Breach of Contract of Employment guarantee of $ per week, amounting to $ , and in addition on , 19 , a credit on the books of the defendant of $ ; for the first months of 19 , the weekly guarantee of $ per week, amounting to $ , and plaintiff was informed by defendant that five per cent of the net profits for the said period of time did not exceed the amount so paid him; for the second months of 19 , the weekly guarantee of $ per week, amount- ing to $ , and plaintiff was again informed by defend- ant that five per cent of the net profits for the said period did not amount to more than said sum so paid him; for the first months of 19 the weekly guaranteed payment of $ . per week, amounting to S , and plaintiff was again in- formed by defendant that five per cent of the net profits for the said period did not amount to more than the sum so paid him; for the second months of 19 , the weekly guar- antee of $ per week, amounting to $ , and on , 19 , a credit on the books of defendant of $ IV. That the defendant represented to the plaintiff, and the plaintiff believed it to be true, that the total of the weekly pay- ments set forth above, during the several periods of time, to- gether with the amount credited to the plaintiff on and following each such period was five per cent of the net profits of defendant's business for such period, and plain- tiff's proportionate share thereof, and the defendant farther represented to the plaintiff, and plaintiff believed it to be true, that when no amount was credited to him for any period of time, that five per cent of the net profits of the defendant's business for such period of time did not exceed the total amount paid plaintiff in equal weekly installments during such period. V. That on or about the day of , 19 , the plaintiff and the defendant by a supplemental agreement, amended the contract set forth in paragraph II above, and the contract as amended contained the same provisions as the afore- said contract, except that the plaintiff was to receive there- after the sum of $ per week in any event, instead of Complaints 155 Breach of Contract of Employment the sum of $ per week, as in the aforesaid contract, and in all other respects said contract was to continue in full force and effect. VI. That the plaintiff rendered services to the defendant as manager of its shipping department, under the foregoing con- tract or agreement, as amended during the years 19 ,19 , 19 , 19 and 19 , and the plaintiff received payments on account for his services under said contract as follows : For the first six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and in addition on , 19 , a credit of $ on the books of the de- fendant; for the second six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and in addition on , 19 , a credit of $ on the books of the defendant; for the first six montlis of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and in addition on , , 19 , a credit of $ on the books of the defendant; for the sec- ond six months of $ a guaranteed weekly payment of $ per week, amounting to $ , and in addition on , 19 , a credit of $ on the books of the de- fendant; for the first six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and in addition on , 19 , a credit of $ on the books of the defendant; for the second six months of 19 the guar- anteed weekly payment of $ per week, amounting to $ , and in addition on , 19 , a credit of $ on the books of the defendant; for the first six months of 19 , a guaranteed weekly payment of I per week, amount- ing to $ , and plaintiff was informed by the defendant that five per cent of the net profits of the defendant's business for the said period of time did not exceed the said amount so paid him; for the second six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and the plaintiff was again informed by defendant that five per cent of the net profits of the business for the said period of time 156 Bradbury's Forms of Pleading Breach of Contract of Employment did not exceed the amount so paid him for the first six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and in addition on , 19 , a credit on the books of the defendant of $ ; for the sec- ond six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and in addition on ,19 , a credit on the books of the defendant of $ VII. That the defendant represented to the plaintiff, and the plaintiff believed it to be true, that the total of the weekly pay- ments set forth above during the several periods of time, to- gether with the amounts credited to the plaintiff on and following each such period was five per cent of the net profits of defendant's business, and plaintiff's proportionate share thereof, and the defendant further represented to the plaintiff, and plaintiff believed it to be true, when said amount was credited to him that five per cent of the net profits of the defendant's business for such period of time did not exceed the total amount paid plaintiff in equal weekly installments during such period. VIII. That on or about the day of , 19 , the plaintiff and the defendant by a second supplemental agree- ment, modified the amended contract set forth in paragraph V, above, and the said amended contract contained the same pro- visions as the aforesaid amended contract except that the plain- tiff was to receive seven and one-half per cent of the net profits instead of five per cent, as in the aforesaid amended contract, and in all other respects said amended contract was to continue in full force and effect. IX. That the plaintiff rendered services to the defendant as manager of its shipping department, under the foregoing con- tract or agreement during the years 19 ,19 ,19 ,19 , 19 , 19 and the first six months of 19 , and the plaintiff received payments on account for his services under said con' tract as follows : For tlio first six months of 19 the guaranteed weekly payment of $ per week, amounting to $ Complaints 157 Breach of Contract of Employment and plaintiff was informed by defendant that seven and one-half per cent of the net profits of the defendant's business during said period of time did not exceed the amount so paid; for the second six months of 19 , the guaranteed weekly pay- ment of $ per week, amounting to $ , and in addition on , 19 , a credit on the books of the defend- ant of $ ; for the first six months in 19 , the guaranteed weekly payment of $ per week, amounting to $ , and plaintiff was again informed by the defendant that seven and one-half per cent of the net profits for the said period of time did not exceed the sum so paid him; for the second six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and in addition on , 19 , a credit on the books of the defendant of $ ; for the first six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and plaintiff was informed by the defendant that seven and one-half per cent of the net profits for the said period of time did not exceed the amount so paid him; for the second six months of 19 , the guaranteed weeldy payment of $ per week, amounting to $ , and in addition on , 19, a credit on the books of the defendant of $ ; for the first six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and plaintiff was informed by the defendant that seven and one-half per cent of the net profits of the defendant did not exceed the amount so paid in; for the second six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and plaintiff was again informed by the defendant that seven and one-half per cent of the net profits did not exceed the amount so paid him; for the first six months of 19 , the guaranteed weekly payment of S per week, amounting to $ , and plaintiff was once more informed by the defendant that seven and one- half per cent of the net profits did not exceed the sum so paid him; for the second six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and 158 Bradbury's Forms of Pleading Breach of Contract of Employment plaintiff was informed by defendant that there was a profit, but his proportionate share thereof would not be credited to this account, to which action of the defendant plaintiff refused to consent; for the first six months of 19 , plaintiff received a guaranteed weekly payment of $ per week, amounting to $ , and plaintiff was informed by the defendant that seven and one-half per cent of the net profits of the defendant did not exceed the amount so paid him; for the second six months of 19 , the guaranteed weekly payment of $ per week, amounting to $ , and plaintiff was again informed that seven and one-half per cent of the net profits of the defendant did not exceed the sum so paid him; for the first six months of 19 , the guaranteed weekly payment of $ per week, . amounting to $ , but no credit on the aforesaid agree- ment. That as hereinbefore set forth the plaintiff received certain guaranteed weekly payments, and in addition plaintiff drew on account of the moneys credited to him on the books of the de- fendant as set forth above in paragraphs III, VI and IX, and accrued interest thereon, calculated according to the terms of the aforesaid contract, and the amendments thereto, about the sum of $ ; and the plaintiff also drew the sum of I , which said sum of money plaintiff was permitted by the defend- ant to draw on account of the proportionate share of the net profits of the defendant's business for the six months' period ending , 19 , due plaintiff, but not credited to him. XI. That the plaintiff has fully performed all the conditions of said contract and amendments thereto, to be by him kept and performed as set forth above, and has demanded an account from defendant of the net profits of the defendant during the said periods of time covered thereby, and payment of the amount due plaintiff as his proportionate share of the net profits there- under, but plaintiff has not received an account from the defend- ant and has not received payment of the amounts due him ex- cept as set forth in paragraphs III, VI, IX and X above, Complaints 159 Breach of Contract of Employment XII. Upon information and belief that during the semiannual periods intervening between , 19 , and , 19 , the defendant made large profits, and that plaintiff is entitled to a proportionate share thereof, but the plaintiff alleges that the amount of such profits and the amount of plaintiff's pro- portionate share thereof are not known to this plaintiff. XIII. Upon information and belief that there is now due and owing to plaintiff from defendant certain sums of money in pay- ment of plaintiff's proportionate share of the net profits of the business of the defendant under the contract, and the amend- ments thereto set forth above, but the amount due and owing to plaintiff is not known to him, because the defendant, its officers and agents, other than this plaintiff, have had sole and entire charge of the books of the defendant and of the entries made therein during all of the said periods of time covered by the contract and the amendments thereto, as set forth above, and have without consulting this plaintiff or advising with him or in any way obtaining his consent arbitrarily and fraudulently, and for the purpose of depriving plaintiff of money justly due him, stated and determined the net profits of defendant's busi- ness for some of the periods of time referred to above to be less than they really were, but the plaintiff does not know for which of the particular periods the amount of the net profits of the defendant have been stated and determined incorrectly, ex- cept that the net profits of the defendant as stated through its officers and agents for the semiannual periods intervening be- tween , 19 , and , 19 , are less than the actual net profits for such periods. XIV. That the account between plaintiff and defendant is a mutual account with entries on both sides, and is a lengthy and difficult one, extending over a long period of time, and the re- lationship to plaintiff on the part of the defendant was a fi- duciary one and one of trust, inasmuch as the defendant and its officers and agents other than plaintiff had sole and entire charge of its books and determined the net profits of its business during the different periods, and plaintiff did not have charge 160 Bradbury's Forms of Pleading Breach of Contract of Employment of said books and was not consulted in determining the net profits. XV. Plaintiff alleges upon information and belief that the methods adopted by the defendant in calculating its net profits are unusual, fraudulent and pernicious, and do not show the actual net profits of the defendant's business during the said periods of time and have resulted in great damage and loss to the plaintiff, and have been of advantage and profit to the de- fendant inasmuch as defendant has deprived plaintiff of cer- tain sums of money rightly and justly due plaintiff, and that plaintiff's proportionate share of the net profits of the defend- ant and the amount justly due plaintiff at the time of the com- mencement of this action amounted to at least $ Wherefore [demand for money judgment]. Complaints 161 Bills, Notes and Checks CHAPTER X BILLS, NOTES AND CHECKS PAGE I. Promissory Notes 162 II. Checks 171 III. Certificate of Deposit 175 IV. Bills of Exchange 176 V. Letters of Credit 182 VI. Nonnegotiable Order 185 FORMS Part I. Promissory Notes no. page 167. Payee against maker; statutory form 162 168. Payee against maker; common form 163 169. Made by partnership in partnership name; payee against makers .... 163 170. Indorsee against maker 164 171. Indorsee against maker; another form 165 172. Payable to bearer; action by holder 165 173. Complaint. Payable to bearer; action by holder 166 174. Holder against maker and payee as first indorser 166 175. Payee against surviving member of partnership 167 176. Action by surviving partner; note payable to firm 168 177. Payee against accommodation indorser 169 178. Several promissory notes, some of which are not due on their face, but all of which are due by the terms of a collateral agreement 169 179. Allegation of reasons for failure to present note because of inability to find the maker 170 180. Allegation that the indorser has waived demand and protest 171 Part II. Checks 183. Payee against maker 171 184. Check; holder against indorser 172 185. Payee against bank after acceptance by the bank 172 186. Against bank having certified a check; another form 173 187. Action by depositor against bank for wrongful refusal to pay check . . 1 74 Part III. Certificate of Deposit 188. Certificate of deposit 175 Part IV. Bills op Exchange 189. Bill of exchange; drawn on defendants by their direction; failure to accept 1 '" Vol. I— U 162 Bradbury's Forms of Pleading Bills, Notes and Checks NO. , PAGE 190. Payee against acceptor 177 191. Payee against acceptor; short form setting forth copy 178 192. Payee against drawer 178 193. Payee against drawer; short form setting forth copy cf bill 179 194. Indorsee against drawer and acceptor 179 195. Payee against acceptor for honor 180 196. Breach of contract to accept bill of exchange 181 197. Allegation of excuse of nonpresentation for acceptance 182 Part V. Letters of Credit 200. Letters of credit available by draft 182 Part VL Nonnegotiable Order 201. Order for payment of money from specific fund to become due on contract 185 I. Promissory Notes Form No. 167 Payee Against Maker; Statutory Form (Code Civ. Pro. § 634.)i Supreme Court, County. John Doe, Plaintiff, against Richard Roe, Defendant. J The plaintiff complaining of the defendant, alleges : I. On or about the day of , 19 , the de- fendant duly made his promissory note in writing and delivered the same to the plaintiff, which said promissory note was in words and figures as follows : [Insert copy of note.] II. That there is due to the plaintiff from the defendant on ^ This section provides: " Where a cause of action, defense, or counterclaim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and stale that there is due to him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect." Complaints 163 Bills, Notes and Checks said promissory note the sum of $ , with interest from the day of , 19 , which sum plaintiff claims herein. Wherefore [demand for money judgment]. Form No. 168 Payee Against Maker; Common Form I.. On the day of , 19 , the defendant duly made his promissory note in writing wherein and whereby he promised to pay to the order of the plaintiff the sum of $ at , in the city of , months from the date of said note and for a valuable consideration ^ he delivered ^ the same to the plaintiff, who is now the owner and holder thereof.* II. That upon the maturity of said note, the same was duly presented for payment at the place where the same was made payable by the terms thereof and demand ^ for payment duly made and no part thereof has been paid,^ Wherefore [demand for money judgment]. Form No. 169 Made by Partnership in Partnership Name ; ^ Payee Against Makers I. That the defendants, A. B. and C. D., are and were at all the times hereinafter mentioned, copartners trading under the firm name of A. B. & Co. 1 See Underbill v. Phillips, 10 Hun, 591. 2 See Ginsberg v. Von Seggern, 59 Aj>p. Div. 595; 69 Supp. 758; aff'd 172 N. Y. 662; in which it was held that an averment that a bill or note was made or drawn includes the idea of delivery. ^ An allegation of ownership must be unequivocal. Maccarone v. Hays, 85 App. Div. 41; 82 Supp. 1005. The burden is on the holder to show good title as a holder in due course. Benedict v. Kress, 97 App. Div. 65; 89 Supp. 607. * An allegation of demand is unnecessary in an action by the holder against the maker. Wells v. Simpscn, 29 Misc. 665; 61 Supp. 56. ^ For material allegations of a complaint on promissory note, see Wright v. Deering, 2 Misc. 296; 21 Supp. 929. ^ A note given in a partnership name is presumed to have been given in the partnership business. Richardson v, Erckens, 53 App, Div. 127; 65 Supp. 872; a£E'd 169 N. Y. 588. 16i Bradbury's Forms of Pleading Bills, Notes and Checks II. That on the day of , 19 , the defendants as such partners duly made their promissory note in writing wherein and whereby months from the date of said note, they promised to pay to the order of the plaintiff the sum of $ at , in the city of , and for a valuable consideration duly delivered the same to the plaintiff, and the plaintiff is still the owner and holder of said note. III. That at the maturity of said note demand for payment was duly made at the place where the same was made payable, by the terms thereof, and payment refused and no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 170 Indorsee Against Maker ^ I. Allegation that plaintiff is a corporation and defendants are copartners. II. That at the date thereof the defendants made, executed and delivered to B. H. their promissory note in writing, of which the following is a copy : $ . New York, , 19 . Three months after date we promise to pay to the order of B. H. dollars, at B'way, with interest. Value received. No. . Due . J. S. L. & Co. III. That the said B. H. indorsed ^ the same and sold and 1 From Mutual Loan Assn. v. Lesser, 183 N. Y. 553; aff'g 94 App. Div. 619; 88 Supp. 1110 (no opinion in any of the reports); in which judgment for the plaintiff was affirmed. ^ If there are two payees (not partners) named in negotiable paper the in- dorsement must be by both to give good title to the transferee. Allen v. Com Exchange Bk., 87 App. Div. 335; 84 N. Y. Supp. 1001; Willis v. Green, 5 Hill, 233; Foster v. Hill, 36 N. H. 526; Bennett v. McGaughy, 4 Miss. 192; Wood V. Wood, 16 N. J. L. 428; Smith v. Whitney, 9 Mass. 334; Ryhiner v. Feickert, 92 111. 305. The remark of Selden, J., in a concurring opin- ion in People v. Keyser, 28 N. Y. 226, at p. 234, that "Any one of several joint payees of a note, bond or other personal obligation, has a right to receive liayment of, and discharge such obligation," is disapproved and not followed ill Allen V, Com Exchange Bk., 87 App. Div. 335; 84 N. Y, Supp. 1001. Complaints 165 Bills, Notes and Checks delivered * the same so indorsed for value to the plaintiff, M.L. Association, and the plaintiff is now the owner and holder of the same, and said note is due and unpaid, and no part of the same has been paid. Wherefore [demand for money judgment]. Form No, 171 Indorsee Against Maker; Another Form I. That on the day of , 19 , the defendant duly made his promissory note in writing wherein and whereby on months after the date of said note the defendant promised to pay to the order of C. D., the sum of $ at in the city of , and duly delivered the same to the said C. D.; that the said C. D. thereafter and before the maturity of said note duly indorsed^ the same and delivered the same to the plaintiff who is now the owner and holder thereof.^ II. That demand for payment has been duly made upon said note and no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 172 Payable to Bearer; Action by Holder I. That on the day of , 19 , the defendant duly made his promissory note in writing wherein and whereby * A plaintiff may be required to make a complaint more definite and certain, so as to state whether a promissory note was transferred before or after ma- turity. McGehee v. Cooke, 55 Misc. 40; 105 Supp. 60. ^ If the note has been indorsed and transferred more than once, allege the several indorsements prior to the one to the plaintiff. As to allegation of in- dorsement by partnership, see Maccarone v. Hays, 85 App. Div. 41; 82 Supp. 1005. ' The maker of accommodation paper is liable to the one to whom the one for whose accommodation it was made regularly transfers it for value, al- though such holder has knowledge that it was accommodation paper. English V. Schlesinger, 55 Misc. 584; 105 Supp. 989; and even though such holder ac- cepts the paper in payment of an antecedent debt. Isaacs v. Cohen, 10 App. Div. 216; 41 Supp. 779; aff'd 161 N. Y. 663. 16G Bradbury's Forms of Pleading Bills, Notes and Checks mont!>T after date for value he promised to pay to the bearer of said notc the sum of $ , at , in the city of , and duly delivered said note to the plaintiff who is now the owner and holder thereof. [Or, duly delivered the same to C. D. and subscquerdly and before the maturity of said note the same loas duly delivered to the plaintiff for value and the plain- tiff is now the ovmer and holder thereof.] II. That demand for the payment of said note has been duly made and no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 173 Payable to Maker; Action by Holder On the day of , 19 , the defendant, A. B., duly made his certain promissory note in writing wherein and whereby months from said date he promised to pay to the order of himself the sum of dollars with interest; that on the day of , 19 , said defendant duly indorsed ' said note and delivered the same to this plaintiff for value and the plaintiff is the owner and holder thereof; that on the day of , 19 , at the place where said note was payable by the terms thereof the said note was duly pre- sented and demand for payment was then and there made, but no part thereof has been paid. Wherefore, etc. Form No. 174 Holder Against Maker and Payee as First Indorser ^ I. On the day of , 19 , the defendant, A. B,, duly made his promissory note in writing wherein and whereby for value he promised to pay to the order of C. D., ^ If a note is payable to the order of the maker an allegation of indorsement by him is essential. Simon v. Mintz, 51 Misc. 670; 101 Supp. 86. ^ The holder may sue the indorser without suing the maker. Singer ti. Abrams, 47 Misc. 360; 94 Supp. 7. Complaints 167 Bills, Notes and Checks months from the date of the said note, the sum of $ , at , in the city of , and duly delivered the same to the said CD. IL That before the maturity of said note, the said CD. duly indorsed the same and delivered said note to the plaintiff for a valuable consideration, and the plaintiff is now the owner and holder of said note. III. That at the maturity of said note the same was pre- sented for payment at the place where the said note by the terms thereof was made payable, and demand ^ for payment was duly made and was refused,^ and no part of said note has been paid. IV. That thereupon said note was duly protested for nonpay- ment, and notice ^ of said demand, nonpayment and protest was duly given to the defendant, CD., and demand was made upon said C D. for the payment of said note, and the defendant, C D., has refused and failed to pay the same. V. That the protest fees on said note amounted to the sum of I , no part of which has been paid. Wherefohe [prayer for money judgment]. Form No. 175 Payee Against Surviving Member of Partnership I. That at the time of the making and deUvery of the promis- sory note hereinafter described the defendant, A. B., and one C D. were copartners in business trading under the firm name of A. B. & Co^ 1 In an action against an indorser on a demand note the defense that the note was not presented for payment within a reasonable ume may be proved without pleading it in the answer. Commercial Nat. Bk. v. Zimmerman, 185 N. Y. 210. What is a reasonable time is a question for the jury. German- Am. Bk. V. Mills, 99 App. Div. 312; 91 Supp. 142. ^ An allegation that payment has been demanded and refused is sufficient, without a further allegation that no part of the note has been paid. Ahr v. Marx, 44 App. Div. 391; 60 Supp. 1091; afT'd 167 N. Y. 582. 3 A complaint against maker and indorser alleging presentment, demand, etc., " of all of which defendant had due notice " is insufficient against the indorser. Hammel v. Washburn, 49 App. Div. 119; 62 Supp. 1095. 16j Bradbury's Forms of Pleading Bills, Notes and Checks II. That on the day of ; 19 , the said firm of A. B. & Co. duly made its promissory note in writing wherein and whereby months from the date thereof the said firm promised to pay to the order of the plaintiff the sum of $ , at in the city of , and for a valuable consideration duly delivered said note to the plaintiff who is still the owner and holder thereof. III. That on the day of , 19 , the said C. D. died and the defendant A. B. is the sole surviving partner of the said partnership of A. B. & Co. IV. [Allege presentation for payment, demand and refiisal.] Wherefore [demand for money jvdgment]. Form No, 176 Action by Surviving Partner; Note Payable to Firm I. That at the time of the making and delivery of the promis- sory note by the defendant as hereinafter set forth, the plaintiff and one C. D. were copartners in business trading under the firm name of A. B. & Co. II. That on the day of , 19 , the defendant duly made his promissory note in writing wherein and whereby he promised to pay to the order of said firm of A. B. &, Co. com- posed as hereinbefore set forth days from the date of said note the sum of $ at , in the city of , and for a valuable consideration delivered the same to said firm. III. That on the day of , 19 , said C. D, died leaving the plaintiff the sole surviving partner of said A. B. &Co. IV. That at the maturity of said note the same was presented for payment at the place where the same was payable by the terms thereof and demand for payment was duly made and no part thereof has been paid, and the plaintiff as surviving partner is the owner and holder of said note. Wherefore [demand for money jvdgm£nt]. Complaints 169 Bills, Notes and Checks Form No. 177 Payee Against Accommodation Indorser ^ I. That on the day of , 19 , A. B. duly made his promissory note in writing wherein and whereby he promised to pay to the order of this plaintiff, months after date, the sum of $ , at , in the eity of II. That before the delivery of said note, the defendant, C. D., duly indorsed the same and thereafter said note, with said in- dorsement, was duly delivered by the said A. B. to the plaintiff, for value, and the plaintiff is still the owner and holder of said note. III. That when said note became due, it was duly presented for payment at the place where the same was payable by terms thereof and demand for payment was duly made, and payment was refused, whereupon said note was duly protested for non- payment and notice of said demand, refusal and protest was duly given to the defendant and demand for payment was made of said note, and no part of said note has been paid. Wherefore [demand for money judgment]. Form No. 178 Several Promissory Notes, Some of Which Are Not Due on Their Pace, But All of Which Are Due by the Terms of a Collateral Agreement ^ I. That on or about the day of , 19 , the defendant for value duly made five certain promissory notes 1 Under § 114 of the Negotiable Instruments Law (L. 1897, c. 612, as amended by L. 1898, c. 336) it is no longer necessary to plead a credit given to the maker of a note by reason of the indorsement thereon by a third person before delivery, to hold such indorser liable to the payee. Com v. Levy, 97 App. Div. 48; 89 Supp. 658; McMoran v. Lange, 25 App. Div. 1 1 ; 48 Supp. 1000. The rule laid down in Phelps v. Vischer, 50 N. Y. 69, has been abrogated by the Negotiable Instruments Law. Extension of time of payment is a valid consideration for an indorsement. Utica City Nat. Bk. v. Tallman, 63 App. Div. 480; 71 N. Y. Supp. 861; aff'd 172 N. Y. 642. Also for becoming a joint maker on an already overdue note. Traders' Nat. Bk. v. Parker, 130 N. Y. 415. ^ Adapted from Brown v. Southern Michigan R. Co., 6 Abb. Pr. 237. 170 Bradbury's Forms of Pleading Bills, Notes and Checks in writing and delivered the same to the plaintiff, and said several notes were in words and figures as follows: [Set forth copies of notes.] II. That at the same time that said promissory notes were so made and delivered the defendant duly executed a collateral agreement in writing wherein and whereby the defendant agreed that should he default in the payment of any of said notes when due that all the remaining notes then unpaid should, at the election of this plaintiff, become immediately due and payable, whether the same were due by this term or not. III. That the note first above mentioned, dated , 19 , for dollars, became due and payable on the day of , 19 , and on said day the same was duly presented to the defendant and payment thereof was duly demanded of the defendant, but the defendant failed and refused to pay the same and no part thereof has been paid. IV. That thereafter and on the day of , 19 , the plaintiff duly elected to have all of said notes hereinbefore described become immediately due, and on the day of , 19 , duly gave notice to the defendant of such elec- tion and duly demanded from the defendant payment of all of said notes, amounting in all to the sum of dollars; and there is now due to the plaintiff from the defendant said sum of dollars, with interest, etc., which the plaintiff claims; that the defendant failed and refused to pay the same and no part of any of said note has been paid, and the plaintiff is the owner and holder of all of said notes. Wherefore, etc. Form No. 179 Allegation of Reasons for Failure to Present Note Because of Inability to Find the Maker That no place for payment was mentioned in said note and at the maturity thereof, diligent effort was made to find the said CD., the maker of said note, for the purpose of presenting the eame to him and demanding payment thereof. That said efforts Complaints 171 Bills, Notes and Checks were unsuccessful and the said C. D., said maker, could not be found. That thereupon said note was duly protested for non- payment and due notice of said nonpayment and protest and of the failure to find the said CD. was given to the defendant. Form No. 180 Allegation That the Indorser Has Waived Demand and Protest That the said defendant, C. D., before the maturity of said note [after the maturity of said note] stated to the plaintiff that the said CD. waived the presentation of said note to the maker thereof and a demand of payment from said maker and also the protest of said note.^ [Or before word "stated " signed a written agreement wherein and whereby he waived the presentation to and demand of payment of the maker of said note and the pro- test thereof.] II. Checks Form No. 183 Payee Against Maker I. On the day of , 19 > t^ie defendant A. B. duly made and delivered to this plaintiff for value a check in words and figures as follows : No. . New York, , 19 . THE BANK. Pay to the order of C D. dollars. $ . A. B. II. That said check was duly indorsed by this plamtiff [the payee of the check] and was duly presented to said Bank for payment on the day of , 19 , and said Bank refused payment and no part of said sum of dollars has been paid. 1 An allegation that the indorser waived notice of dishonor is insufficient; the facts must be pleaded , showing the waiver. Congress Brewing Co. v. Habenicht, 83 App. Div. 141; 82 Supp. 481. 172 Bradbury's Forms of Pleading Bills, Notes and Checks in. That on the day of , 19 , notice ^ of the said presentation of said check and of the refusal of said Bank to pay the same was duly given to said A. B. [and demand was then and there made of said A. B. for said sum of dollars] and the defendant has failed and refused to pay the same or any part thereof, and the plaintiff is the owner and holder of said check. Wherefore, etc. Form No. 184 Check; Holder Against Indorser ^ I. That on the day of , 19 , the defendant, C. D., duly indorsed and delivered to the plaintiff, for value, a check dated the day of , 19 , drawn by A. B. on the Bank, directing said bank to pay to the order of the defendant, C. D., the sum of dollars; that the plain- tiff duly indorsed said check and on the day of , 19 , duly presented ^ the same to the said Bank, on which the said check was drawn, and payment was then and there demanded; that said Bank refused payment thereof; that thereupon said check was duly protested for non- payment and notice of such demand, refusal and protest was duly given to the defendant,^ and no part thereof has been paid, and the plaintiff is the owner and holder of said check. Wherefore, etc. Form No. 185 Payee- Against Bank After Acceptance by the Bank I. That on the day of , 19 , A. B. duly ^ Notice is necessary in such a case and must be pleaded. Ewald v. Faul- haber Stable Co., 55 Misc. 275; 105 Supp. 114. ^ If a payee of a check indorses it and gives it to one to whom he is indebted, said payee being known to such person, the maker is liable to the holder without proof that the indorsement is in the handwriting of the payee. Goetting v. Day, 87 Supp. 510. ^ In an action against an indorser of a check it must appear that the check was presented to the bank for payment. Zlotnick v. Greenfield, 90 Supp. 1086. * Sae note to Form No. 183. Complaints 173 Bills, Notes and Checks made and delivered to the plaintiff, for value, a check payable to the order of the plaintiff, in the following words and figures : No. New York, , 19 . THE BANK. Pay to the order of A. B. dollars. $ . CD. II. That thereafter and on or about the day of , 19 , the plaintiff duly presented said check to said Bank on which the same was drawn for acceptance and thereupon said Bank duly accepted said check and promised to pay the same. III. That thereafter the plaintiff duly indorsed said check and the same was duly presented to said Bank and payment thereof duly demanded ; that payment was refused and no part of said check has been paid and the plaintiff is the owner and holder of said check. Wherefore, etc. Form No. 186 Against Bank Having Certified a Check; Another Form I. That the defendant is a banking corporation duly organized and existing under and by virtue of the laws of the State of . [Or, that the defendant is a National Bank, duly organ- ized and existing under and by virtue of the laws of the United States] and conducts a banking business at No. street, in the city of II. That on the day of , 19 , at , A. B. duly made his check in writing bearing date on that day wherein and whereby he directed and ordered the defendant to pay to this plaintiff or order the sum of $ and the said A. B. duly delivered said check to this plaintiff for value. III. That on the day of , 19 , the defend- ant in writing at the request of this plaintiff duly accepted said check and certified the same. IV. That thereafter the said check was duly indorsed by the 174 Bradbury's Forms of Pleading Bills, Notes and Checks plaintiff and as so indorsed was duly presented to the defendant for payment and payment was refused and no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 187 Action by Depositor Against Bank for Wrongful Refusal to Pay Check I. That the plaintiff is a banking corporation duly organized under the laws of the State of New York [or of the United States] and conducts its business as such banking corporation at No. street, in the city of II. That at all the times hereinafter mentioned the plaintiff was a depositor in said defendant bank and the defendant agreed at all times to pay out the amount so deposited by the plaintiff in accordance with checks drawn by the plaintiff on the said bank when duly presented. III. That on the day of , 19 , this plaintiff drew a check in the sum of $ wherein and whereby he directed the defendant to pay to the order of A. B., said sum of $ , and delivered said check to said A. B. IV. That at the time of the delivery of said check to said A. B. this plaintiff had on deposit with the defendant a sum in excess of $ and the defendant was justly indebted to this plaintiff in said amount. V. On information and belief that on the day of , 19 , said check duly indorsed by the said A. B. was presented to the defendant bank for payment, and although the plaintiff at said time had on deposit with the defendant a sum largely in excess of the amount of said check, said defendant wrongfully refused to pay the same, whereupon said check was protested for dishonor and nonpayment and the said check was returned to this plaintiff who paid the same. VI. That said defendant bank at the time of refusing to pay said check, marked, or caused to be marked upon the face thereof in conspicuous characters, the letters "N. G.;" that said letters Complaints 175 Bills, Notes and Checks or characters when written upon the face of a check by a banker, mean "no good" and that the drawer thereof has not a sufficient sum on deposit to his credit to warrant tlie bank in the payment thereof and said letters and characters were so understood by the said A. B., the payee of said check, when the same was re- turned to him from said defendant bank. VII. That by reason of the premises the plaintiff has been damaged in the sum of $ [special damages should be specifically alleged]. Wherefore [demand for money judgment]. III. Certificate of Deposit Form No. 188 Certificate of Deposit Supreme Court, County. John Doe, Plaintiff, against Richard Roe, Defendant. The plaintiff complaining of the defendant, alleges: I. That the defendant is a banking corporation duly organized and existing under and by virtue of the laws of the State of New York [or of the United States] and conducts said banking business at No. street, in the city of II. That on the day of , 19 , the defendant duly made a certificate of deposit dated on that day wherein and whereby the defendant agreed to pay to the order of the plaintiff upon the return of said certificate of deposit, duly indorsed, the sum of $ , and thereupon for value received duly de- livered the said certificate of deposit to this plaintiff. III. That on the day of , 19 , the plaintiff duly indorsed said certificate of deposit and presented the same thus indorsed to the defendant for payment, and the plaintiff 176 Bradbury's Forms of Pleading Bills, Notes and Checks failed and refused to pay the same, and no part thereof has been paid and the plaintiff is still the owner and holder thereof. Wherefore [demand for money jiuigm£nt]. IV. Bills of Exchange Form No. 189 Bill of Exchange; Drawn on Defendants by Their Direction; Failure to Accept '' Supreme Court, County. "William Watson and Paul Pfleider, Plaintiffs, against John E. Chilberg and George H. Strout, Defendants. The plaintiffs complaining of the defendants, allege: I. That at all the times hereinafter mentioned, the plaintiffs were and still are copartners, doing business under the firm nameofW.W. &Co. II. That at all the times hereinafter mentioned, the defend- ants were and still are copartners, doing business under the firm name of C. & S. III. That on or about , 19 , one H. S. F., of , , held certain gold for the defendants, upon which he claimed a hen as against the de fendants, amounting to pounds sterling. IV. That on or about that date, the defendants requested the said F. to ship the said gold to them by express, subject to his said claim, which they agreed to pay upon delivery of the said gold. V. That the said F. dechned to accede to that request, and cabled to the defendant to remit the said pounds ster- ^ From Watson f. Chilberg, 192 N. Y. memo; aff'g without/opinion, 116 App. Div, 914 (no opinion). Complaints 177 Bills, Notes and Checks ling, and he would forthwith insure and forward the said gold by express. VI. That thereupon, and on or about , 19 , the de- fendants cabled to the said F. directions to discount his draft upon them against the shipment of the said gold as security. VII. That on or about , 19 , the said F., relying upon the said directions, drew his certain draft or bill of ex- change, dated on that day, whereby he directed the defendants, at the city of , to pay to the order of the plaintiffs, the sum of pounds sterling, on demand. VIII. That on or about , 19 , at , , the plaintiffs, upon the faith of the said written directions and promise of the defendants, discounted the said bill of exchange for the said F., who, at or about the same time, according to the said directions, delivered the said gold to the plaintiffs as se- curity for the said discount. IX. That on or about , 19 , the plaintiffs, at , , shipped the said gold to the defendants, at city, through the A. E. Co. X. That on , 19 , the plaintiffs duly caused the said bill of exchange to be presented to the defendants and de- manded payment thereof; but the defendants refused and still refuse to pay the same, although they duly received the gold shipped to them as aforesaid; and upon the refusal of the de- fendants to pay the said bill of exchange, it was duly protested for nonpayment. XI. That the value of the said pounds sterling, in United States currency, on , 19 , was $ XII. That the cost of protesting the said bill of exchange upon its nonpayment, was $ Wherefore [demand for money judgment]. Form No. 190 Payee Against Acceptor I. That on the day of , 19 , at , A. B. duly made his certain bill of exchange in writing dated on Vol. 1—12 178 Bradbury's Forms of Pleading Bills, Notes and Checks that day directed to the defendant, C. D., at , and thereby ordered the defendant to pay to the order of the plaintiff $ , days after said date [or three days after sight of said bill of exchange, or otherwise as the case may be], and duly delivered the same to this plaintiff for value received. II. That on the day of , 19 , at , the defendant, C. D., duly accepted ^ said bill. III. That demand for the payment of said bill has been duly made and no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 191 Payee Against Acceptor; Short Form, Setting Forth Copy I. That on the day of , 19 , at , the defendant duly accepted and delivered to the plaintiff the bill of exchange in words and figures as follows: [Set forth copy of bill and also of acceptance.] II. That there is now due to the plaintiff from the defendant on said bill of exchange the sum of $ , with interest from the day of , 19 . Wherefore [demand for money judgment]. Form No. 1Q2 Payee Against Drawer I. That on the day of , 19 , at , the defendant made and delivered to the plaintiff for value re- ceived, his bill of exchange in writing dated on that day, and directed to A. B. and thereby ordered said A. B. to pay to the order of this plaintiff the sum of $ , days after the date [or sight] of said bill. II. That on the day of , 19 , said bill of ^ One who receives and retains a draft drawn upon him and remarks, upon receiving it, that he will attend to it, accepts the draft within the meaning of the statute and is liable to the payee. Bell v. Pletscher, 32 Misc. 746; 65 N. Y. Supp. 669, Complaints 1 79 Bills, Notes and Checks exchange was duly presented to said A. B. for acceptance, but the said A. B. refused to accept or pay the same and duo notice of said presentation and refusal of A. B. to accept or pay said bill was given to the defendant. [// a foreign hill of exchange add, — and said bill was thereupon duly protested for nonacceptance.] III. That no part of the same has been paid. Wherefore [demand for money judgment]. Form No. 193 Payee Against Drawer; Short Form, Setting Forth Copy of Bill I. That on the day of , 19 , the defendant duly made and delivered to the plaintiff for value received, a bill of exchange in writing which was in words and figures as follows : [Insert copy of bill.] II. That on the day of , 19 , said bill of exchange was duly presented to A. B. therein named for accept- ance, but said A. B. refused to accept the same and said bill of exchange was thereupon duly protested for nonacceptance and notice of presentation, refusal to accept and protest was duly given to the defendant. III. That there is now due to the plaintiff on said bill of ex- change the sum of $ and interest from the day of , 19 , which sum the plaintiff claims. Wherefore [demand for money judgment]. Form No. 194 Indorser Against Drawer and Acceptor ' I. That on the day of , 19 , at , the defendant, A. B., duly made his bill of exchange bearing date on that day addressed to the defendant, C. D., and ordered him to pay days after sight to the order of E. F, $ 1 The above fonn may be adapted to an action by an indorsee against a former indorser by alleging rntice of demand, refusal of payment and protest as against such former indorser. If the action is against the maker for refusal of the drawee to accept, follow Forms Nos. 192 and 193. 180 Bkadbury's Forms of Pleading Bills, Notes and Checks and thereupon for value received, delivered said bill of exchange to said E. F. II. That on the day of ,19 , the said bill of exchange was duly presented to the said C. D. for acceptance and was duly accepted by him. III. That on or about the day of , 19 , and before it became due, said C. D. duly indorsed said bill of exchange and delivered the same to the plaintiff for value and the plaintiff is still the owner and holder thereof. IV. That on the day of > 19 , when said bill of exchange became due by the terms thereof, the same was presented to the said E. F., the acceptor, for payment, and pay- ment was thereupon demanded and refused, whereupon said bill of exchange was duly protested for nonpayment and notice of said demand, refusal and protest was given to the said A. B. V. That no part of said bill of exchange has been paid, and there is now due thereon the sum of $ , with interest from the day of , 19 . Wherefore [demand for money judgment]. Form No. 195 Payee Against Acceptor for Honor I. That on the day of , 19 , at , A. B. duly made and dehvered to the plaintiff his bill of exchange in writing dated on that day and directed to C. D., and'thereby ordered said C. D. to pay to the order of this plaintiff the sum of $ , days after sight of said bill, for value received. II. That on the day of , 19 , at , said bill was duly presented to said C. D. for acceptance, but said C. D. refused to accept the same and said bill has not been ac- cepted by said C. D., and due notice was thereupon given to the said A. B. that said bill had been duly presented to said C. D. and said C. D. had refused to accept the same. [// a foreign bill of exchange, add: and said bill was thereupon duly protested for nonacceptance.] Complaints 181 Bills, Notes and Checks III. That on the day of , 19 , at , the defendant duly accepted said bill for the honor of the said A.B. IV. That at the time said bill was payable by the terms thereof, the same was duly presented for payment to the said C. D., but the said C. D. failed and refused to pay the same and due notice of said presentation and nonpayment was given to the defendant E. F. and also to the said A. B. - [// a foreign bill of exchange, add: and it was thereupon duly protested for non- pajTnent and notice thereof was duly given to said A. B. and said E. F.] V. That no part of said bill has been paid. Whebefore [demand for money judgment]. Form No. 196 Breach of Oontract to Accept Bill of Exchange I. That on or about the day of , 19 , at , the defendant for value unconditionally promised in writing to accept certain drafts to the amount of $ to be drawn by the firm of A. B. & Co. as drawers, on him the de- fendant, as drawee. II. That in pursuance of said unconditional promise the said firm of A. B. & Co. at , on the day of , 19 , drew their certain draft or bill on the said defendant in words and figures following : [Se< forth copy of bill.] III. That the plaintiff relying upon the faith of the uncondi- tional promise of defendant to accept the said bill received the same for a valuable consideration and paid therefor the sum of $ and is now the owner and holder of said bill. IV. That the plaintiff caused the said bill to be duly presented to the defendant for acceptance and payment and demanded of defen3ant that he should accept and pay the same and that he declined and refused to accept or pay said bill [whereupon said bill was duly protested for nonacceptance], and notice of said demand for acceptance, nonacceptance and nonpayment was duly ^ven to the said firm of A. B. & Co. 182 Bradbury's Forms of Pleading Bills, Notes and Checks V. That said bill remains wholly unpaid and there is now due and owing thereon the sum of $ , with interest from the day of ) 19 , which plaintiff claims. Wherefore [demand for money judgment]. Form No. 1Q7 Allegation of Excuse of Nonpresentation for Acceptance That on or about the day of , 19 , diligent search and inquiry was made for said drawee at , the address given of said drawee on said bill of exchange, in order that the said bill might be presented to him for acceptance, but he could not be found and said bill of exchange was not accepted and due notice was thereupon given to the said A. B." that said CD. could not be found and that said bill remained unpaid. [Or, said bill was thereupon duly protested for nonacceptance and notice thereof was given to the said A. B.] [Or, That on or about the day of , 19 , and before said bill could be presented for acceptance in due course to the one to whom the same was directed, the defendant, A. B., the maker of said bill, countermanded the same and instructed and directed the said C. D. not to accept or pay the same, where- upon said bill was not presented for acceptance.] V. Letters of Credit Form No. 200 Letters of Credit Available by Draft ^ I. At all times hereinafter mentioned the plaintiff was, ever since has been, and still is, master of the Norwegian steamship ; and the defendants were, ever since have been, and still are, copartners, doing business as bankers in the 'city of , under the firm name or style of J. M. & Co., and in the city of under the firm name and style of M. & Co. II. On or about the day of , 19 , the de- ^ From Johnnessen v. Munroe, 84 Hun, 594; 9 App. Div. 402. Complaints 183 Bills, Notes and Checks fendants, for good and valuable consideration, duly issued and delivered to one C. B., in the city of , their certain letter of credit or advice, No. , upon the said banking house of M. & Co., of , in the following words and figures : No. . Office of J. M. & Co., Bankers, No. , Street, New York, . Messrs., M. & Co., Gentlemen : — We hereby open a credit with you in favor of J. A. J., S. S. for francs available in bills at days' date; on acceptance of any bill or bills drawn under this credit, you are to draw on C. B., at , days' date, payable at the current rate of exchange for first-class bankers' bills on on day of maturity. Commission as arranged. Bills under this credit to be drawn at any time prior to ,19 . Truly yours, J. M. & Co. The above may be availed of in sterling, if desired ; say pounds sterUng. III. On the day of , 19 , the said C. B. gave and delivered to the plaintiff in payment of the sum of pounds sterling on account of certain sums of money then due to the plaintiff as master of the said steamship from the said C. B., said letter of credit or advice drawn by the de- fendants upon the said M. & Co., of , as aforesaid, and the plaintiff having first been assured by statements and repre- sentations made to him or his representatives by the defendants that said letter of credit had been duly issued by them, and was available for the full amount thereof in the manner provided by the terms of the said letter of credit or advice, accepted the same as and for such payment by the said C. B. at the full face value thereof, and thereupon and on said last-mentioned day a notice in writing was sent to the defendants by the said C. B. that he 184 Bradbuby's Forms of Pleading Bills, Notes and Checks had delivered such letter of credit in the regular course of busi- ness to the plaintiff, who would avail himself thereof accord- ingly. IV. Thereafter, and on said day of , 19 , the plaintiff duly drew his bill of exchange or draft upon the said M. & Co., at days, for pounds British ster- ling, as authorized by such letter of credit or advice, and on said day of forwarded the same by mail to the owners of the said steamship for presentation for accept- ance. V. Thereafter, and on or about the day of , 19 , said bill of exchange or draft was duly presented for ac- ceptance at the banking house of the said M. & Co., at , and acceptance thereof was refused by them, whereupon said bill of exchange or draft was duly protested for nonaeceptance, of all which due notice was given to the defendants. VI. The plaintiff accepted the said letter of credit from the said C. B. for a valuable consideration, relying in good faith upon the name and credit of the defendants, and upon said state- ments and representations made by the defendants with respect to the said letter of credit or advice and the sufficiency, availa- bility and negotiability thereof. VII. No part of said credit of pounds or the said bill of exchange, or the draft drawn therefor, has been paid, although payment thereof has been duly demanded, and the plaintiff has suffered damage thereby in the said amount of pounds sterling, which in lawful currency of the United States, amounts to the sum of $ , together with the sum of francs centimes, the fees of protesting the said draft for nonaeceptance, which, in lawful currency of the United States of America, amounts to the sum of $ ; in all the sum of $ , with interest thereon from the day of , 19 , all of which is now due and owing to the plaintiff from the defendants. Wherefore [demand for money judgment]. Complaints 185 Bills, Notes and Checks VI. Nonnegotiable Order Form No. 201 Order tor Va.yva.ent of Money From Specific Fund to Become Due on Contract ^ I. Upon information and belief, that at all the times herein- after mentioned the defendant was and still is a corporation, organized and existing under the laws of the State of II. That at all the times hereinafter mentioned, R. T. and A. T. were engaged in business as copartners under the firm name and style of R. T. & Son. III. That on or about the day of , 19 , R. T. & Son made and delivered to plaintiff an order, of which the following is a copy. (Dated). New York City. Gentlemen : We hereby authorize and request you to pay to Mr. H. W., , , , the sum of $ , charging the same to my account on account of my contract as follows, for furnishing and erecting all fixtures in second and third floors of store , city, as per agreement under date of , 19 . Very truly yours, R. T. & Son. IV. Upon^ information and belief, that the defendant duly accepted said order and promised to pay said sum to plaintiff from the first money due R. T. & Son, on account of the said agreement existing between R. T. & Son and the defendant. ' V. Upon information and belief, that the payment of said $ was postponed and extended by the said R. T. & Son and the plaintiff herein to the second payment due R. T. & Son , 1 From Weniger v. Fourteenth Street Store, 191 N. Y. 423; in which the plaintiff succeeded. 186 Bradbury's Forms of Pleading Bills, Notes and Checks on account of the said agreement existing between R. T. & Son and the defendant, on or about , 19 . VI. Upon information and belief, that the said postponement and extension to said second payment, due and payable on or about ,19 , on account of the said contract between said R. T. & Son and defendant was accepted by the defendant. VII. Upon information and belief, that thereafter, to wit, on or about the day of > 19 ? the aforesaid sec- ond payment from the said store to the said R. T. & Son became due and payable and applicable to the payment of the said sum of $ due and owing to the plaintiff herein; and the said second payment, due and payable from the said store to the said R. T. & Son, on the day of , 19 , exceeds the sum of I VIII. Upon information and belief, that the defendant ap- propriated out of the said second payment due on or about , 19 , the sum of $ to the use of the plaintiff. IX. Upon information and belief, that thereafter and before the commencement of this action, the plaintiff duly demanded payment of the sum of $ from the defendant. X. Upon information and belief, that no part of the said sum of $ has been paid, and that by reason of the above the defendant became indebted to the plaintiff in the sum of $ and interest from the day of , 19 . Wherefore [demand for money judgment]. Complaints 187 Bonds CHAPTER XI BONDS 1 FORMS NO- PAGE 205. Cashier of bank; action by receiver 187 206. Bond to bank to secure discounts 190 207. Contribution between sureties on a bond given to the State to secure deposits in a bank 192 208. For payment of premiums on insurance policy 198 209. To secure proper use of gold furnished to a manufacturer of watch cases for the plaintiff 199 210. Registered bond; action by owner of bond transferred by forged in- dorsement 202 211. Action for deficiency on bond which was secured by mortgage on real property 204 212. Bond secured by mortgage; agreement to pay balance due in consid- eration for satisfaction of mortgage 207 213. Bond; performance of contract with municipal corporation to build waterworks; substantial performance of contract; immaterial modification 209 214. Bond to city to insure payment of percentage of income by corpora- tion enjoyed in business by cold storage for privilege of establish- ing plant in public market 217 215. Bond given on opening default judgment 218 Form No. 205 Cashier of Bank; Action by Receiver ^ [Title of Court and Action.] I. The complaint of the above-named plaintiff, Receiver of the N. B. of , shows that said N. B. of is a corporation or association for banking, duly organized under the ^ See also Official Bonds and Undertakings, post, p. 222; Indemnity, post, p. 443; Guaranty, post, p. 484. The common-law rule that an action on a bond under seal must be brought in the name of the obligee, without regard to ownership, still obtains in the State of New York, except where it has been changed by statute. Alexander V. Union Surety & Guaranty Co., 89 App. Div. 3; 85 Supp. 282. ^From Bostwick v. Van Voorhis, 91 N. Y. 353; in which a judgment in favor of the plaintiff was affirmed. 188 Bradbury's Forms of Pleading Bonds laws of the United States, and located in the village of , in the county of and State of , where it carried on the business of banking, as authorized by law, from the year 19 to , 19 > when a receiver was appointed as here- inafter expressed. II. That after the due organization of said banking a.ssocia- tion A. B., of said village of , made application for the appointment of cashier, and therewith presented his bond, signed, sealed and executed by himself, and W. A. B., C. A. V. V. and 0. V. V., by which they bound themselves, jointly and sever- ally, to said N. B. of , in the words, and figures following, to wit; BOND Know all men by these presents, that we, W. A. B., C. A. V. V. and 0. V. V., of the county of , and S. H., B. H., of the county of , , are held and firmly bound unto the N. B. of in the sum of $ , to be paid to the said N. B. of ; for which payment well and truly to be made we bind ourselves and our heirs, executors and adminis- trators, jointly and severally, firmly by these presents. Sealed this day of , in the year 19 . The condition of this obligation is such, that, whereas, the above bounden A. B. has been duly appointed cashier of the said N. B. of , now, if the said A. B. shall well, honestly and faithfully discharge the duties of such cashier, rendering at all times his undivided care and services to said bank, and shall obey the orders and directions of the president and directors of said bank lawfully given, and shall at all times account for and pay over all moneys which have come, now are, or hereafter may come, into his hands, belonging to said bank, and shall keep true and accurate books of all the affairs of the said bank, intrusted to him, then the above obligation to be void, or else to remain in full force and virtue. [Signed.] Sealed and delivered in presence of [Verification.] Complaints 189 Bonds And, thereupon, the said bond was accepted by said banking association, and the said A. B. entered upon his duties as cashier of said bank, to wit : on the day of , 19 , and continued to act as such cashier, as plaintiff believes, until the day of , 19 . III. That said A. B., during the time he continued to act as such cashier, did not honestly and faithfully discharge the duties of such cashier, and did not render at all times his individual care and services to said bank, and did not obey the orders and directions of the president and directors of said bank lawfully given, and did not at all times account for and pay over all moneys which came into his hands, belonging to said bank, and did not keep true and accurate books of all the affairs of the said bank intrusted to him. But, on the contrary thereof, the said A. B. paid out the moneys of said bank fraudulently, to various persons, without any sufficient vouchers or security therefor, and fraudulently per- mitted various persons to overdraw their accounts without any security, and fraudulently altered and falsified the accounts and books of said bank so as to conceal said fraudulent doings, and has refused to pay over to the president and directors of said bank large sums of money, to wit : $ and over, refusing to account for the same, to the damage of the said N. B. of of $ IV. And the said plaintiff further shows that heretofore, to wit : on the day of , 19 > he was duly appointed receiver of the said N. B. of , with power to collect and receive aU moneys due to said bank, and to close up its affairs. V. The complaint of the said plaintiff further shows to this court that on the day of ,19 , said C. A. V. V., one of the obligors in the bond heretofore set forth, died, leaving a last will and testament, in and by which he appointed S. L. V. V. as his executor. That on the day of 19 , said will was duly proved and admitted to probate in the office of the surrogate of the county of , and letters testamentary thereupon were thereafter duly issued and granted 190 Bradbury's Forms of Pleading Bonds to said defendant, S. L. V. V., by the surrogate of said county, and said S. L. V. V. thereupon duly qualified as such executor, and entered upon the discharge of his duties. \I. That heretofore the plaintiff herein, in pursuance of the statute in such case made and provided, offered to refer the said claim of said plaintiff against said defendant, to some suitable and proper person to hear and determine the same; but that said defendants refused to refer the same. Wherefore [demand for money judgment]. Form No. 206 Bond to Bank to Secure Discounts ^ I. That at the times hereinafter mentioned the plaintiff was a domestic corporation organized under the laws of the United States relating to banking and that it was engaged in the busi- ness of banking in its said corporate name at W. That during the same period of time the W. 0, Co. was a do- mestic corporation duly organized under the laws of the State of New York and was doing business at W. II. That upon the day of , 19 , for the pur- pose of securing the plaintiff for the indebtedness then and there- tofore owing to it by the said W. 0. Co. upon its own or its cus- tomers' paper; and for the purpose of securing payment to it of all indebtedness and liabiUty of every kind of the said W.- 0. Co. to it that should arise thereafter, including the corporate bonds hereinafter described; this defendant and A. C. R., M. L., C. C. R., F. W. H., F. B. and J. W. C. executed and acknowledged and delivered to this plaintiff a bond whereby the said parties did jointly and severally covenant and agree to and with this plaintiff that they and each of them would guarantee and warrant unto the plaintiff the payment at maturity of each and all of the checks, notes, drafts, bills of exchange and other obligations 1 From First Nat. Bk. v. Story, 53 Misc. 429; 103 Supp. 233; in which the plaintiff recovered. The piincifal point Utigated was whether a bond given for a subsequent year by the same parties and a recovery thereon prevented a recovery on the bond gi^•en in this case tor a prior year. Complaints 191 Bonds in writing of every name and kind, made, signed, drawn, accepted or indorsed by the said W. 0. Co., which the said bank then had or which it might thereafter have, hold, purchase or obtain within one year from the date thereof to an aggregate amount not ex- ceeding $15,000, and interest thereon; and further covenanting and agreeing that the said obligors, jointly and severally, would pay to the plaintiff upon demand each and every of the said ob- ligations in case of default of payment of the same at maturity. A copy of the said bond is hereto annexed and made a part of this complaint and marked Schedule "A." [This copy is set out in reported case.] III. This plaintiff further shows, that on or about the day of ) 19 ) the said W. 0. Co. made in writing and executed and delivered under its corporate seal and signed and attested by its president and treasurer, eighty of its corporate bonds of the denomination of $500 each, in and by which separate bond it promised to pay, for value received, to the bearer thereof, the sum of $500 on the 1st day of December, 1904, at the First National Bank of W., with interest at the rate of six per cent per annum payable semiannually at said bank on the 1st day of June and December in each and every year; that the said bonds were so issued and were sold and delivered by the said W. 0. Co. to various persons who purchased the same for a legal, proper and valuable consideration and that in or about the month of July in the year 1901, fifteen of said bonds of the denomination of $500 each and numbered respectively 3, 4, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22, were sold and delivered by the then owners of the same to this plaintiff who thereupon became the lawful owner and holder of the said bonds and has since continued to be such lawful owner and holder of the same; that no part of the said bonds has been paid and no part of the interest thereon has been paid to this plaintiff since December 1, 1901, but the whole amount of the said fifteen bonds and the interest thereon from the day of , 19 , is still due and owing from the said obligor to this plaintiff. This plaintiff further shows that the said bonds so issued by 192 Beadbuey's Fobms of Pleading Boads the said W. 0. Co., and which became the property of this plain- tiff in July, 1901, are a part of the obligations in writing which are referred to and which are covered by the said bond given by the defendant herein and others, a copy of which is annexed to the complaint herein. Wherefore [demand for money judgment]. Form No. 207 Oontribution Between Sureties on a Bond Given to the State to Secure Deposits in a Bank ^ I. That on or about the day of , 19 , an agreement was entered into by and between The F. N. B. of and the P. of the State of , wherein and whereby it was recited, among other things, that the Canal Board had designated the said bank to receive one-tenth of the de- posits of canal moneys collected at during the ensuing canal year, and wherein it was agreed that said bank should accept and receive the said deposits on certain terms and con- ditions therein specified, and should well and faithfully perform and fulfill everything in said terms and conditions contained; that a copy of said agreement is annexed thereto marked Ex- hibit "A," and the same is made a part of this complaint. II. That on the same date, and in consideration of the said agreement marked "A," C. T. C, G. C, F. E. C, Z. F., and the defendants, R. P. L., T. W. X., W. B. S. and J. C. B., executed and delivered unto the said P. of the State of a certain guaranty in writing, wherein they jointly and severally cove- nanted and agreed that said bank should well and faithfully do and perform all things contained in its said agreement on its part to be done, and should well and faithfully account for and pay over all moneys deposited with it or for which it should in any way become liable, in and by said contract, according to the terms and provisions thereof, and that said bank should ^ From Barnes v. Gushing, 168 N. Y. 642; in which a reversa' by the court below of a judgment in favor of the plaintiff entered upon the report of a referee, was held to be erroneous, Complaints 193 Bonds account for and pay over all moneys then on deposit in said bank, or due, or to become due, therefrom, to the said P. of the State of ; that a copy of said guaranty is annexed hereto, marked Exhibit "B," and the same is made a part of this complaint. III. That at the time the said guaranty in writing was exe- cuted and delivered, the said bank was indebted unto the said the P. of the State of in the sum of $ and interest thereon at the rate of four per cent per annum, the same being a balance of deposits of canal moneys made with said bank during the year 19 . IV. That during the year 19 , and after the execution and delivery of said agreement and guaranty, there were deposited with said bank in pursuance of such agreement, under the direc- tion of the auditor of the canal department, one-tenth of the tolls collected at ; said deposits amounting for the said several months of said year to the following sums respectively : For the month of $ Por the month of $ , etc. Said several sums amounting in the aggregate to the sum of $ V. That the total amount of said balance and deposits and interest thereon, less payments by the said bank, amounted on the day of , 19 > to the sum of $ , in which sum the said bank and the guarantors on the said guaranty were on said date indebted, under the said agreement and guar- g,nty, unto the said the P. of the State of VI. That on or after the date last named, the said the P. of the State of , by their said canal auditor and their treasurer, duly -demanded of the said F. N. B. of pay- ment of the said indebtedness and the whole of said bank's indebtedness to the said P., and have since demanded the pay- ment of the same, in pursuance of the said agreement, but that payment thereof was refused, and that the same has not been paid, nor has any part thereof; but that the same, together with interest thereon, has remained, until the payments made by Vol. 1—1.3 194 Bradbury's Forms of Pleading Bonds the said J. C. B. of to the said the P. of the State of , excepting in so far as the same has since been dimin- ished by payment to the receiver of the said bank as hereinafter alleged. VII. That the said the F. N. B. of was a national banking association, organized and incorporated on or about the day of j 19 > under and by virtue of the provisions of an act of Congress of the United States, entitled "An Act to Provide a National Currency, Secured by a Pledge of United States Stocks and to Provide for the Circulation and Redemption thereof," approved , 19 , and the acts amendatory thereof and supplemental thereto, under the name of the First National Bank of Buffalo, and that said banking association carried on the business of banking in the said city of down to and until the day of , 19 , when the said bank closed its doors, and then and there sus- pended and discontinued its business in banking and has not since resumed the same, but became and was, at the time named, insolvent, and thereafter, to wit : on the day of , 19 , a receiver was duly appointed thereof under and in pur- suance of an act of Congress entitled "An Act Authorizing the Appointment of Receivers of National Banks and for other pur- poses," approved , 19 , and the acts amendatory thereof, and thereafter the claim of the said the P. of the State of against the said the F. N. B. of , gtowing out of the facts above alleged, and duly verified and proved be- fore the said receiver, by the treasurer of the State of ; and the said banking association has no longer a corporate existence, the same having expired by virtue of the statute in the year 19 . ^'III. That thereafter an action was brought by the said The P. of the State of against the said J. C. B. and the said F. E. C, R. P. L. and J. H. V., in the Supreme Court, for the county of , to recover from them upon their said guar- anty the indebtedness aforesaid growing out of such deposits, find such proceedings were thereafter had therein, that on the Complaints 195 Bonds day of , 19 , a judgment was entered against the said J. C. B. for the sum of $ , which judgment with interest thereon, less such payments as have been made thereon by the receiver of said bank, was discharged by said J. C. B. by the payment to the treasurer of said the P. of the State of , on the day of » 19 7 oi the sum of $ , and on the day of , 19 , of the sum of $ , amounting in the aggregate to the sum of $ IX. That the said J. C. B. departed this Hfe on the day of ) 19 ) in t^e city of , leaving a last will and testament, wherein and whereby he appointed C. B. D. executor thereof, who thereafter, after proceedings had been duly taken for the probate of the said will duly qualified as such executor and to whom thereafter were duly issued letters testa- mentary ; that thereafter on or about the day of , 19 , the said C. B. D., as executor of the last will and testament of J. C. B., duly assigned to the plaintiff the cause or causes of action herein set forth. X. That J. H. V. departed this life on the day of ,19 , in the city of , county of , State of , leaving a last will and testament, wherein and whereby he appointed A. M. V., his wife, executrix thereof, who thereafter, after proceedings had been duly taken for the probate of the said will, duly qualified as such executrix, and to whom were thereafter duly issued letters testamentary; that the said V. left no estate whatever, but died wholly insolvent, and that his executrix is wholly unable out of the assets in her hands to re- spond to any claim against the estate of the said V. for contri- bution for the proportional part properly due from the estate of said V. XI. That said Z. F. departed -this life on the day of ,19 , in the city of , county of , State of , leaving a last will and testament, wherein and whereby he appointed N. W. F., his wife, executrix thereof, who thereafter, after proceedings had been duly taken for the probate 196 Bradbury's Forms of Pleading Bonds of the said will, duly qualified as such executrix and to whom were thereafter duly issued letters testamentary; that the said F. left no estate whatever, but died wholly insolvent, and that his executrix is wholly unable out of the assets in her hands to re- spond to any claim against the estate of the said F. for contribu- tion for the proportional part properly due from the estate of said F. XII. That the said F. E. C. departed this life on the day of , 19 , in the city of , county of , State of , leaving a last will and testament, wherein and whereby he appointed C. E. C, his wife, executrix thereof, who thereafter, after proceedings had been duly taken for the probate of the said will, duly qualified as such executrix, and to whom were thereafter duly issued letters testamentary; that the said C. left no estate whatever, but died wholly insolvent, and that his executrix is wholly unable out of the assets in her hands to respond to any claim against the estate of the said C. for contribution for the proportional part properly due from the estate of said C. XIII. That the said G. C. and C. T. C. departed this life on the day of 19 , and the day of , respectively, , in the city of , county of , State of ; that the said C. T. C. died intestate, and there- after, upon proceedings duly had in the surrogate's court of the county of , letters of administration upon the estate of the said C. were duly issued to F. S. C. and said J. C. B., who thereafter duly ciualified as administrators; that the said G. C. died leaving a last will and testament, wherein and whereby he appointed K. C, his wife, and C. T. C, his executors thereof, who thereafter, after proceedings had been duly taken for the probate of said will, duly qualified as such executors and to whom were thereafter duly issued letters testamentary. XIV. That the estates of said C. T. C. and G. C, deceased, duly responded to the said J. C. B. for their respective propor- tionate amounts of the claim so held by the said the P. of the State of against the F. N. B. of , and so paid Complaints ^ 197 Bonds to the former by the said J. C. B., and therefore no claim is herein made against the said estates, or either of them,' for contribution or otherwise. XV. That the defendant L. is insolvent and wholly unable to respond to any claim against him for contribution for his proportionate and ratable part of the sum so paid by the said J. C. B. and properly due from said L. XVI. That the plaintiff docs not know and is, therefore, unable to state whether the defendant, S., is able to respond to any claim against him for contribution for his proportionate and ratable part of the sum so paid by the said J. C. B. and properly due from said S. to him, but this plaintiff avers, on in- formation and belief, that said S. is not able to respond to his proportionate share thereof or to some part thereof. XVII. That the defendants L., S. and C, together with the said G. C, deceased, F. E. C, deceased, and J. H. V., deceased, were cosureties with the said J. C. B. in respect of the said claim so held by the said the P. of the State of against The F. N. B. of , and were all equally and jointly and sever- ally liable to the said the P. of the State of , for the payment of the same, and that the said C. is obliged in law and in equity to pay unto the plaintiff such sum as may be his ratable proportion of the amount so paid by the said J. C. B. in satis- faction of the said claim, computed upon the basis of the solvent sureties who are able to respond and who have responded for their proportionate contributory shares, or whose estates have so done, and excluding such sureties, or estates of sureties, as may now be found to be insolvent and unable to pay. Wherefore, the plaintiff demands judgment against the defendants as follows : I. He prays that the court shall order and decree that a refer- ence be duly made to a referee to be appointed by the court to inquire into the amount paid by said J. C. B. in satisfaction of the said claim, as well as into the solvency of the cosureties, L., S. and C, and their consequent capacity to contribute, as well as into the solvency of the estates of such cosureties as 198 Bradbury's Forms of Pleading Bonds may have died since the said claim arose, and into the capacity of silch estates to contribute. II. He prays that such sureties as may be shown by the ref- eree's report to be solvent may be adjudged and ordered to contribute their proportionate ratable shares of such debt so paid, and that the estates of such sureties as may since have died and which may be found to be solvent should be adjudged and ordered to contribute their respective ratable shares of the said debt. III. He prays that such further and other relief may be granted to him as may be just and proper in the premises. IV. He prays that he may be awarded the costs of this action. Form No. 208 Securing Payment of Premiums on Insurance Policy ^ I. That the defendant, for the purpose of securing the pay- ments as they might come due, from time to time, of the premi- ums of insurance on a policy of insurance issued on the appli- cation of one W. B., then of the city of , by the E. L. A. S. of the United States of America, for $ , payable at the death of the said W. B., to the plaintiff, to whom the said W. B. was and is indebted in the sum of $ and upwards, on or about the day of , 19 , made, executed and delivered to the plaintiff a bond bearing date on that day, scaled with his seal, whereby he bound himself in the penalty of $ , upon condition that the same should be void if the defendant should well and truly pay, or cause to be paid, unto the E. L. A. S. of the United States of America, their successors, substitutes or assigns, the just and full sum of the amount of any premium or premiums which might become due at any time or times thereafter upon the policy of insurance mentioned and described in the said bond, within the time re- quired or to be required by the rules of said society, and should 1 From Gerard v. Cowperthwait, 143 N. Y. 637; in which a judgment in favor of the plaintiff was affirmed. Complaints 199 Bonds the W. B. therein mentioned, comply fully with all the require- ments and conditions of the policy of insurance therein mentioned. II. And plaintiff further shows that the said defendant has failed to comply with the conditions of the said bond, by omitting to pay within the time required by the rules of the E. L. A. S. of the United States of America, being the society mentioned in said bond, the sum of $ , being the amount of the pre- mium which became due on the day of ? 19 , on the policy of insurance in said bond mentioned and described; that by reason of such failure to pay said premium the said policy of insurance lapsed and became void, to the damage of this plaintiff, in the sum of $ III. Plaintiff further shows, that before the commencement of this action payment of the said sum of $ was de- manded and refused, and there is now justly due the plaintiff upon the said bond the sum of S , with interest from the day of , 19 . Wherefore [demand for money judgment]. Form No. 209 To Secure Proper Use of Gold Furnished to a Manufacturer of Watch Cases for the PlaintiS '■ I. That at all the times hereinafter mentioned the defendant was, and is, a foreign corporation, organized and existing under and by virtue of the laws of the State of , as the plaintiff is informed and verily believes and has its place of business in the city of , in said State. II. That on or about the day of , 19 , in the city of , borough of , the plaintiff made and entere4 into an agreement in writing with the C. W. C. Co., a domestic corporation, whereby the latter for a consideration therein expressed, agreed to make gold watch cases of a certain weight, fineness and description for the plaintiff herein; that the plaintiff agreed therein to furnish bar s of pure gold and gold 1 From Keene v. Newark Watch Case M. Co., 112 App. Div. 7; 98 Supp. 68. 200 Bradbury's Forms of Pleading Bonds materials to the said company for the manufacture of watch cases to be made by the said the C. W. C. Co. as aforesaid; that the legal title to all the rold thus furnished by the said plaintiff should remain in him (the said plaintiff) from the time it left his hands in gross form until its return to the plaintiff in watch case form. That the factory of the said company was by the aforesaid agreement to be devoted wholly and solely to the manufacture of watch cases for the plaintiff. III. That the said the C. ^V. C. Co., by the terms of the agree- ment aforementioned, agreed to satisfactorily account at any and all reasonable times to the plaintiff herein for the gold fur- nished by him under the said agreement, and agreed to satisfy and make good to the said plaintiff any ol;ligation \\hicli miglit arise, during the existence of the said agreement, or at its ter- mination, because of any loss in gold in the handling and use of same in the carrying out of the said agreement, or at its ter- mination, because of any loss in gold in the handling and use of same in the carrying out of the said agreement. That the said agreement was to exist from the date of its execution aforesaid to the day of , 19 . IV. That in accordance with the terms of the said agreement the plaintiff furnished gold bars and materials to the C. W. C. Co. to the value of about $ , as the demands and needs for it arose, from on or about the day of , 19 » until on or about the day of , 19 , and re- ceived from the said company gold watch cases in return. That on or about the said last-named date, the plaintiff demanded an accounting of the gold received by the said the C. W. C. Co., and upon an inventory being made of the plaintiff's gold in the factory of the said company, a shortage was disclosed in the gold furnished as aforesaid by the plaintiff of the value of about $ . The plaintiff herein demanded that the said the C. W. C. Co. make good the loss of gold by delivering to him gold sufficient to balance the gold account, or give a cash equivalent therefor, with which demands the said company has not com- plied. That because of the failure of the said company to ac- Complaints 201 Bonds count for the gold received by it from the plaintiff there is a loss to the plaintiff of I , the value of the said gold lost as aforesaid. V. That immediately prior to the execution of the agreement in writing heretofore referred to within, the defendant company and the plaintiff herein entered into an agreement by which the said defendant company agreed to furnish the plaintiff herein with a bond to secure him against loss in his said agreement with the said the C. W. C. Co., should such loss arise in the use of the said gold as aforesaid. That in consideration of the de- fendant's promise, as aforesaid, the plaintiff agreed to purchase from the defendant all the gold materials to be placed in or about the watch cases to be manufactured as aforesaid, and to pay the said defendant company therefor. That on. or about the day of ; 19 , in the city of , borough of , the said defendant did execute and deliver to the plaintiff its bond in the penal sum of $ for the purpose stated herein, and the plaintiff purchased from the defendant the watch case materials, as agreed, to the value of about $ , for which the plaintiff paid the defendant. VI. That contemporaneously with the signing by the parties thereto of the agreement between the said the C. W. C. Co. and the plaintiff, and the execution and delivery to the plain- tiff of defendant's bond [the obligation and terms of which will more fuUy appear in the copy thereof hereunto annexed, and marked Exhibit "A"], the said defendant, to indemnify it against loss because of its obligation stated in said bond, accepted the assign- ment of a chattel mortgage upon the fixtures and chattels con- tained in the factory of the said the C. W. C. Co. VII. That the terms of the said bond hereunto annexed have not been complied with, and the obligation of same has not been met in that the principal named therein has not satisfied or made good to the plaintiff, the obligee named therein, the loss which arose to the plaintiff as aforesaid. That the defendant, the surety named therein, has been apprised of the said loss, and requested to pay the same, which the said defendant has failed to do or pay 202 Bradbury's Forms of Pleading Bonds any part thereof. That the plaintiff is now suffering a loss be- cause of the default of the surety upon its said bond in an amount as hereinafter named. That by the terms of the said bond, the said defendant company bound itself to pay upon the default of the said the C. W. C. Co. in its agreement as aforesaid for any loss in gold in excess of one-half of one per centum of the value of all the gold furnished as aforesaid, which being $ or thereabouts, and which being computed, the same shows as a result, the sum of $ , due and owing the plaintiff by the defendant. Wherefore [demand for money judgment]. Form No. 210 Registered Bond; Action by Owner of Bond Transferred by Forged Indorsement ^ I. That at all the times hereinafter mentioned said plaintiff was and it now is, a domestic corporation, duly organized and existing under and by virtue of the laws of the State of having been originally incorporated under the name and style of J. C. B. 0., which name was subsequently changed to the J. C. H. for C. by order of the Supreme Court of said State and the proceedings to secure such change of name were legalized, ratified and confirmed by Chapter 8 of Acts other than the general laws of the State of New York of 1896, and the charter of said corporation was amended, revised and confirmed by Chapter 483 of Acts other than general laws of the State of New York of 1896. II. That the defendant, C. and 0. R. Co., is a foreign corpora- tion. III. That at the times hereinafter mentioned, the firm of H. K. & Co., was, and it now is, a limited partnership, and that the defendant, R. G., was and now is the general partner thereof. IV. That before and until the time hereinafter mentioned the plaintiff was the owner and lawfully possessed of three certain * From Jennie Clarkson Home for Children v. Chesapeake & O. R. Co., 92 App. Div. 491; 87 Supp. 348; in which the plaintiff recovered. Complaints 203 Bonds bonds issued by the defendant, C. & 0. R. Co., and known as C. & 0, General 4^% Gold bonds, numbered respectively , and , of the par value of $ each due in the year 19 with the semiannual coupons thereto annexed, the ownership of which said bonds was registered on the books of the said defendant. C. & 0. R. Co., and by the terms of said bonds no transfer?? thereof were to be deemed valid unless made on the books of the defendant, C. & 0. R. Co., by the registered holder or by his attorney duly authorized and noted on the bonds. V. That thereafter and some time in the month of , 19 , or prior or subsequent thereto, the said bonds were taken from the safe deposit box in the city of , where they had been deposited by the plaintiff, by one G. W. L., or by some per- son to the plaintiff unknown, and were presented to the defend- ant, C. & 0. R. Co., and thereupon said defendant, C. & 0. R. Co., entered on its books an assignment and transfer of said bonds, and each and all of them to bearer, and noted such trans- fer and registration upon each of said bonds, whereby the same became payable to the bearer and transferable by dehvery; and said defendant, C. & 0. R. Co., returned the bonds so made payable to bearer to the said G. W. L., or other person by whom they were so presented to said defendant, C. & 0. R. Co.; all of which things were done without the knowledge or consent of the plaintiff and without authority therefor; and said assignment and transfer were not made by the plaintiff or by its attorney duly authorized and noted on the bonds or on any of them. VI. That thereafter said bonds, and each and all of them, so made payable to bearer without the authority and consent of the plaintiff, as aforesaid, with the unmatured coupons thereto attached, were presented to the said limited partnership firm of H. K. & Co. of which said limited partnership, the defendant, R. G., is the general partner, and without the knowledge and consent of the plaintiff, were sold and disposed of by said H. K. & Co., and before and at the time of the said sale of said bonds and coupons said R. G., as such general partner of the said limited partnership of H. K. & Co., has been and was advised 204 Bradbury's Forms of Pleading Bonds that said bonds and coupons were at the time of such unau- thorized transfer the property of and a part of the trust funds of the plaintiff. VII. That no part of the proceeds of said bonds and coupons has been returned to the plaintiff and that the defendants have not replaced to the plaintiff bonds and coupons of like kind and value as those so illegally disposed of, or paid to the plaintifl the market value of said bonds and coupons or any part thereof, although demand therefor was duly made upon the defendant, C. & 0. R. Co., prior to the commencement of this action. Wherefore, the plaintiff demands judgment that the defend- ants be required to replace to the plaintiff bonds and coupons of like kind and value as those so sold and disposed of; or, that the defendants be required to account to plaintiff for the value of said bonds and coupons; and that the plaintiff have such other and further relief as may be just and equitable, and also the costs of this action. Form No, 211 Action for Deficiency on Bond Which was Secured by Mortgage on Eeal Property ' I. That the defendants, N. M. and H. D. M., for the purpose of securing the payment to M. E. G. of the sum of $ , with interest thereon, on or about the day of , 19 , made, executed and delivered to the said M. E. G. theil- bond bearing date on that day, sealed with their seals, whereby they bound themselves, their executors, administrators and assigns in the sum of $ upon condition that the same should be void if the said defendants should pay to the said M. E. G. the said sum of $ on the day of , 19 i with interest thereon at the rate of six per cent per annum. That as collateral security for the payment of said indebted- ness the said N. M. and H. D. M. on the same day executed, duly acknowledged and delivered to the said M. E. G. a mortgage * From Randrup v. McBeth, 116 App. Div. 195; 101 Supp. 604; in which the plaintiff recovered. Complaints 205 Bonds whereby they granted and released to the said M. E. G. and her assigns forever certain premises situate in the town of , county, and State of , which premises are fully described in said mortgage. That said mortgage contained the same condition as the said bond and in case of default in the payment of the said sum of money the interest that might grow due thereon or any pait thereof, the said M. E. G. and her assigns were thereby empow- ered to sell the said premises according to law. That the said mortgage was duly recorded in the office of the register of the county of , on , 19 , in Liber of Mortgages, page II. That the said defendants, N. M. and H. D. M., failed to comply with the condition of the said bond and mortgage by omitting to pay the said sum of $ on , 19 , the date when the same became due and payable. III. That on or about , 19 , the said N. M. and H. D. M. conveyed the said premises, together with all their right, title and interest therein to one R. M. J., subject to the said mortgage. IV. That on or about the day of , 19 , the said M. E. G. commenced an action in the Supreme Court of the State of , in and for the county of , for the fore- closure of said mortgage, making as defendants therein the owners of said premises and persons in possession, viz. : R. W., J., his wife; R. M. J., S. R., F., his wife, and T. D. and B., his wife, and that the said defendants, N. M. and H. D. M., were not united as defendants in said action or made parties to said foreclosure. That thereafter such proceedings were duly had in said action to foreclose the said mortgage ; that on , 19 , judgment of foreclosure and sale therein was duly rendered and entered in the office of the clerk of the county of aforesaid by which judgment it appears that there was due on the said bond and mortgage the sum of $ , together with costs and allowances in said action of $ , amounting in all. to $ .. That subsequently the said premises were duly 206 Bradbury's Forms of Pleading Bonds sold under said decree of foreclosure and the referee's expenses of such sale therein amounted to $ , making together the total sum of $ V. That under and in pursuance of the said judgment of fore- closure and sale bearing date , 19 , the referee therein appointed, after having caused due notice of the sale of the said lands and premises to be given and pubhshed according to law, duly sold the said premises at public auction as directed by said judgment to the highest bidder for the sum of $ , that being the highest sum bidden therefor. VI. That after the said referee had deducted from the amount so bid his fees and expenses of such sale and paid to the attorney for the plaintiff the costs and allowances awarded to him by said judgment, there was a deficiency due to the plaintiff on the said bond and mortgage amounting to $ as appears by the report of sale of the said referee which was duly filed in the office of the clerk of the county of , which sum included interest on the amount due plaintiff at the date of said judgment to the date of said referee's report of sale amounting to $ VII- That no part of said deficiency has been paid by the said N. M. and H. D. M. VIII. That on or about the day of , 19 , the said plaintiff, M. E. G., duly executed, acknowledged and delivered to this plaintiff for valuable consideration an assign- ment in writing of all of her right, title and interest in the said bond and mortgage and judgment in said action, together with her claim against the said N. M. and H. D. M. for the deficiency upon the said bond and mortgage upon the foreclosure sale in said action; and this plaintiff is now the owner and holder of all the right, title and interest and demand of the said M. E. G. against the said N. M. and H. D. M. arising out of the said bond and mortgage, and the deficiency on the sale of the premises therein described in the judgment in said action. IX. That on the day of , 19 , an order was duly made on motion of this plaintiff by this court after due notice of the said N. M. and H. D. M. and after hearing then Complaints ^37 Bonds on the said motion granting leave to this plaintiff to bring this action against the said N. M. and H. D. M. upon their said bond to recover the amount of the said deficiency upon condition, however, that the said N. M. and H. D. M. should have the right and privilege to accept a deed of the said premises within three months from the date of said order, upon the payment by them to this plaintiff of the amount due on said bond with interest, costs and expenses as stated in the said judgment of foreclosure and sale, amounting in all to $ , as aforesaid, with in- terest. X. That thereafter said order was duly served upon the said N. M. and H. D. M. and a full covenant warranty deed of said premises in the form prescribed by law was duly and personally tendered to the said N. M. and H. D. M. before the commence- ment of this action. XI. That the said defendants rejected said deed and have failed and refused to comply with the terms of said order by omitting to pay to plaintiff the amount as aforesaid, due by them or any part thereof, and the time within which to comply with said order has expired. Wherefore [demand for money judgment]. Form No. 212 Bond Secured by Mortgage ; Agreement to Pay Balance Due as Consider- ation for Satisfaction of Mortgage ^ I. Upon information and belief, that the defendant herein, for the purpose of securing the payment to one S. I. A. of the sum of $ , with interest thereon, on or about the day of , 19 , executed and delivered to the said S. I. A. a bond bearing date on that day, sealed with his seal, whereby he bound himself, his heirs, executors and administrators, in the penalty of $ , and upon the cdndition thai the same should be void if the said defendant should pay to the said S.I. A., his executors, administrators or assigns, the sum of money 1 From Holmes v. Ely, 93 App. Div. 390; 87 Supp. 712; in which this com- plaint was sustained on demurrer. 208 Bradbury's Forms of Pleading Bonds first above mentioned on the day of > 19 , and interest thereon at the rate of per cent per annum. II. Upon information and belief, that as collateral security for the payment of the said indebtedness, the defendant, on the same day, duly executed, acknowledged and delivered to the said S. I. A. a mortgage, whereby he granted, bargained and sold to the said S. I. A. and his heirs and assigns all that certain lot, piece or parcel of land known and described as follows: [Insert description.] III. Upon information and belief, that thereafter the de- fendant requested the said S. I. A. to cancel the lien of said above mortgage and satisfy the same, so that the property before mentioned should be free and clear thereof; and thereupon the said S. I. A., upon the request of the said defendant, and upon the defendant's express promise to pay the said sum of $ , agreed to cancel the said mortgage, and upon the said date did execute a satisfaction piece thereof and delivered the same to the defendant. IV. Upon information and belief, that thereupon, and in or about the month of , 19 » the defendant did, pursuant to his promise to pay the said sum of $ in case the said mortgage was canceled, pay to the said S. I. A. the sum of $ , leaving a balance still due and owing to the said S. I. A. of $ ; and that thereafter, from time to time, the defendant paid to the said S. I. A. various sums aggregating $ , leaving a balance still due and owing to the said S. I. A. of $ , with interest from the day of ,19 , no part of which has been paid, though fre- quently demanded. V. Upon information and belief, that thereafter, and on or about the day of , 19 , all the right, title and interest of the said S. I. A. in and to the said sum of $ , with interest thereon as aforesaid, due and owing from the defendant to the said S. I. A. was given, transferred and set over unto S. I. A., J. A. and S. I. A., Jr., composing the firm of S. I. A. & Sons. Complaints 209 Bonds ■ VI. That thereafter, on or about the day of , 19 , all the right, title and interest of the said S. I. A., J. A. and S. I. A., Jr., composing the firm of S. I. A. & Sons, in and to the said sum of $ , with interest thereon as aforesaid, due and owing from the said defendant to the said S. I. A., J. A. and S. I. A., Jr., composing the firm of S. I. A. & Sons, was given, transferred and set over unto the plaintiff herein. VII. That the said S. I. A., J. A. and S. I. A., Jr., are co- partners, doing business under the firm name and style of S. I. A. & Sons. VIII. That by reason of the premises, there is now due and owing from the defendant to the plaintiff the said sum of $ , with interest from the said day of , 19 . Wherefore [demand for money judgment]. Form No. 213 Bond; Performance of Contract With Municipal Corporation to Build Waterworks; Substantial Performance of Contract; Immaterial Modification ^ I. That the plaintiff is a municipal corporation, duly organized and existing under the laws of the State of New York, and is situate in the county of , in said State. II. That the defendant, the A. I. Co., is an insurance corpora- tion organized under the laws of the State of and duly authorized by the laws of the State of to execute bonds for suretyship, and has its principal office for the transaction of its business in said State of at No. street, and was at all times hereinafter mentioned engaged in the business of furnishing surety bonds and acting as surety. III. That T. M. L. and F. L. L. are residents of the city of , in the State of , and the defendant, J. P. C. of , , is the duly and regularly appointed trustee 1 From City of Middletown v. jEtna Indemnity Co., 121 App. Div. 589; 106 Supp. 374. On a former appeal a judgment in favor of the plaintiff was reversed. 97 App. Div. 344; 90 Supp. 16. Vol. 1—14 210 Bradbury's Forms of Pleading Bonds in bankruptcy of the said T. M. L. and F. L. L., doing business as T. M. L. & Son, and is now acting as such trustee. IV. That the defendants, J. E. I. and G. H. I., claim a lien upon any and all moneys due upon said bond referred to herein for the sum of about $ . And the defendant, C. G. Co., a domestic corporation, claims a lien upon any and all moneys due upon said bond for the sum of about $ V. That heretofore and on or about the day of , 19 , the said T. M. L. & Son entered into a written contract with the plaintiff, through its board of water commis- sioners, to construct, furnish and lay certain cast iron pipe, and build a highway, an serating chamber, a dam and other work, and to furnish materials therefor for the said plaintiff. That before said contract was signed, it was agreed between the said T. M. L. & Son and plaintiff, that a provision in the proposals in said contract pertaining to a bond in the sum of $ , with sufficient sureties therein agreed to be furnished by said T. M. L. & Son conditioned for the good, faithful and complete performance of said contract on their part, etc., as therein set forth should be modified to the extent that the said T. M. L. & Son should execute such bond, with proper surety, in the sum of $ VI. That in pursuance of said contract of the said T. M. L. & Son, the said defendant, the A. I. Co. of , , for a good and valuable consideration, duly made, executed and delivered to plaintiff its bond in words and figures follow- ing: "Know all men by these presents, That we, T. M. L. and F. L. L., doing business as T. M. L. & Son, of , , as principals, and the A. I. Co. of , , a corpora- tion duly authorized by the laws of the State of to exe- cute bonds of suretyship and having an office at , , as surety, are held and firmly bound unto the city of , , in the sum of $ , lawful money of the United States of America, to be paid to the said city of , or its certain attorney, successors or assigns, for which Complaints 211 Bonds payment, well and truly to be made, we bind ourselves and our several and respective heirs, executors, administrators, succes- sors and assigns jointly and severally by these presents. "Sealed with our seals the day of , 19 . "Whereas, the above-bounden T. M. L. and F. L. L., doing business as T. M. L. & Son, by an instrument in writing under their hands and seals, bearing even date with these presents, have contracted with the said city of , to furnish ma- terials and perform all labor necessary to construct a storage reservoir, and highways if ordered, called for by this agreement, on the conditions and for the considerations in the annexed and preceding contract mentioned and contained, and according to the specifications contained in and annsxed to said contract and forming a part of the same. " Now, therefore, the condition of the above obligation is such, that if the said T. M. L. and F. L. L. shall well and truly, and in good, sufficient and workmanlike manner, perform the said con- tract, and each and every provision therein contained on their part to be done and performed, and complete the same in ac- cordance with the terms and conditions therein stipulated, and in each and every respect comply with the conditions therein contained, then this obligation to be void; otherwise to remain in full force and virtue. "T. M. L. "F. L. L. "The A. I. CO., etc." [Acknowledgment.] VII. That after the execution of said bond the said T. M. L. & Son commenced the execution of said contract hereinbefore referred to and partially furnished material therefor and con- tinued to perform said contract until about , 19 . VIII. That thereafter and on or about the day of , 19 , the said plaintiff desired to change the pipe line from an open cut to a tunnel and agreeing with said defendants, T. M. L. & Son, as to such change said contract was duly modified in that respect, and the price for laying and constructing said 212 Bradbury's Forms of Pleading Bonds pipe line through a tunnel was increased, to the satisfaction of the said T. M. L. & Son. IX. That the agreement made with T. M. L. & Son was in the language and figures following, save and except the signa- tures and acknowledgments, viz. : "This supplemental agreement made and entered into this day of , in the year 19 , by and between the city of , , acting by and through the board of water commissioners, parties of the first part, and T. M. L. and F. L. L., doing business as T. M. L. & Son, of , , parties of the second part, Witnesseth : "The parties to these presents, each in consideration of the undertakings, promises and agreements on the part of the other herein contained and of the sum of one dollar by each to the other paid, the receipt whereof is hereby acknowledged, do hereby covenant, undertake, promise and agree as follows: "The parties hereto hereby renew and repeat in every particu- lar, except as hereinafter modified, the contract heretofore en- tered into between the parties hereto for digging trench, laying cast iron pipe, &c., for the city of , county, , which contract is indorsed , 19 , and filed in the office of the board of water commissioners on the day of , 19 . "Said contract hereinbefore referred to is hereby modified as follows : "The item of deep trenching and refilhng between stations and of the inch pipe line is to be changed and modified, and instead of trenching and refilling, the same is to be tunneled to the size of feet in width and feet in height in the clear of timber and rock, for the above distance, and the parties of the second part shall re- ceive therefor the sum of $ per lineal foot. "The grade of the pipe line to be changed, making it approxi- mately feet lower than shown on letting profile, and such additional length as shall be found necessary by reason of change of depth, being from station to and from sta- CoMPLAlNfS 213 Bonds tion to approximately, shall be considered to be deep trenching and paid for at the price bid for that item. "Such brick work as may be necessary for openings or such other purposes as the engineer may deem necessary shall be done at the price bid for such item in the original contract. "The price paid per lineal foot for all tunneling is to include the cost of disposing or disposition of the material excavated at such place and in such manner as the engineer may direct and is also to include the cost of all necessary bailing and draining to keep the work free from water. "The contractor, at his own cost or expense, is to furnish and place all necessary timber for bracing or other uses in said work, and the said timber is to be left on .the place and become the property of the city. The timber to be of the size and kind directed by engineer in charge. "The whole of said work is to be done under the direction of the engineer of the board of water commissioners as referred to in said original contract. "The time for the completion of said contract is hereby ex- tended to , 19 . "The original contract hereinbefore referred to shall not be modified or changed in any other particular except as herein set forth." X. That prior to and at the time the said contract modifying the original contract made by T. M. L. & Son set forth in para- graph IX of this complaint, the defendant, the A. I. Co., was given a copy of said agreement of which the contents thereof is fully set forth in said paragraph IX of this complaint. XI. That prior to and at the time said agreement modifying the original contract was made between the said T. M. L. & Son and the city of , the said A. I. Co. made, executed and delivered to the city of its agreement in writing of which the following is a copy, save and except the signature and acknowledgment, viz.: "Whereas, T. M. L. and F. L. L., doing business as T. M. L. & Son, of , , on or about the day of 214 Bradbury's Forms of Pleading Bonds , 19 , entered into a certain contract with the city of , , by and tiirough its board of water com- missioners, and "Whereas, on the day of > 19 , the A. I. Co. of , , executed its certain bond whereby it bound itself unto the city of , , in the sum of $ upon the condition that the said T. M. L. and F. L. should well and truly, and in good, sufficient and workmanlike manner, perform the said contract and each and every provision therein contained on their part to be done and performed, and complete the same in accordance with the terms and conditions stipulated in said contract and the specifications therein referred to, and in each and every respect comply with the conditions therein contained, and "Whereas, the said T. M. L. and F. L., doing buiness as T. M. L. & Son, and the city of , through its said board of water commissioners, desire to modify said contract in certain particulars by changing what is referred to in said contract as deep cutting and in the place thereof constructing a tunnel through the hill, a copy of which contract modifying the original contract herein referred to is hereto attached, marked Exhibit 'A.' "Now, therefore, in consideration of one dollar paid to the said A. I. Co. of , , the receipt whereof is hereby acknowledged, it hereby consents to said modification of said contract and the extension of the time for the completion thereof referred to in the contract hereto attached, and the said bond of the said A. I. Co. herein referred to is hereby renewed in every respect. "And in case the said T. M. L. and F. L. L., doing business as T. M. L. & Son, shall fail to perform said contract in each and every particular, the said A. I. Co. will pay to the said city of , the said sum of $ , as referred to in its said bond dated , 19 ." XII. That attached to said agreement set forth at paragraph XI of this complaint was a copy in full of the supplemental con- Complaints 215 Bonds tract herein referred to in paragraph IX, made by said T. M. L. & Son with the defendant, the A. I. Co., and formed a part of said contract between said A. I. Co. and this plaintiff, and was referred to therein as being marked Exhibit "A." XIII. That by the terms of said agreement the said defendant, the A. I. Co., again agreed to and ratified the contract and bond heretofore made and the condition therein to the effect that in case of default of the said T. M. L. & Son to complete said con- tract according to the plans, specifications and contract, it would pay this plaintiff the sum of $ XIV. That on or about the day of ,, 19 , the said T. M. L. & Son, abandoned said contract and work and left the city of , State of , for parts unknown, and that plaintiff duly notified the defendant, the A. I. Co., in writing, of the said abandonment. XV. That thereafter and in the month of , 19 , plaintiff requested said defendant, the A. I. Co., to complete said contract of said T. M. L. & Son, and notify it that in case of its default so to do, that plaintiff would proceed ancl do the work to the best of its ability and hold the said, the A. I. Co., liable for all damages up to the sum of $ , as in said bond provided, but that said defendant, the A. I. Co., refused and still refuses to complete the same or any part thereof. XVI. That thereafter the plaintiff, through its board of water commissioners, proceeded to do said work under the supervision of a superintendent in the same manner as provided for by the said contract and specifications with the said T. M. L. & Son, and that plaintiff paid out therefor for work, labor and material the sum of $ over and above the prices contracted for the same work by the said contract of the said T. M. L, & Son, and still leaving the work contracted to be performed by the said T. M. L. & Son only partly completed. XVII. That the said work referred to in the XIV paragraph of the complaint, and the sum paid therefor by this plaintiff more than exhausted any and all sums that would have been due the said T. M. L. & Son, had they gone on and finished said work 2.6 Bradbury's Forms of Pleading Bonds according to their said contract and specifications and the fur- ther sum of $ , and yet the work agreed to be done in and according to said contract and specifications was still in an un- completed condition. XVIII. That thereafter and on or about the day of , 19 , the said plaintiff, through its board of water commissioners, duly let the balance of the work contracted for by T. M. L. & Son according to the said contract and specifica- tions and remaining uncompleted to H. C. D. and H. M., con- tractors, and agreed to pay said D. and M. the sum of $ , which this plaintiff is obligated to pay in addition to the said sum of $ , hereinbefore referred to, and even more than that sum, all by reason of the default and neglect of the said T. M. L. & Son to perform their said contract, making a total sum of over $ in excess of the contract price as con- tracted for by the said plaintiff with the said T. M. L. & Son, and which said sum this plaintiff has paid or is obligated to pay in excess of said contract price by the nonperformance of the said contract by said T. M. L. & Son, and for which the said defendant, the A. I. Co., is liable to this plaintiff by reason of said bond to the extent of $ , and interest. XIX. That on or about the day of , 19 > this plaintiff, through its attorney, duly demanded in writing of the defendant, the A. I. Co., the sum of $ , all of which the defendants or either of them, have refused and stiH refuse to pay, and there is now due and owing to this plaintiff upon said bond the full sum of $ , and interest thereon from the day of ,19 , besides the costs of this action. Wherefore, the plaintiff demands judgment against the said defendants, T. M. L., F. L. L. and the A. I. Co., for the sum of $ , and interest thereon from the day of , 19 , with costs, together with such other and further relief as to the court may seem just and equitable, and that the interest, if any, of the defendants, J. E. I., G. H. T. and the C. G. Co., in the premises be ascertained and determined and judgment rendered in accordance therewith. Complaints 217 Bonds Form No. 214 Bond to City to Insure Payment of Percentage of Income by Corpora- tion Engaged in Business of Cold Storage for Privilege of Establish- ing Plant in Public Market ^ I. That the plaintifi's arc and at all times hereinafter men- tioned were a municipal corporation organized and acting under their ancient charters and the laws of the State of New York. II. That the defendant, the N. Y. R. C. Co., is and at all the times hereinafter mentioned was a corporation organized and existing under the laws of the State of III. That on or about the day of , 19 ; the plaintiffs and the said defendant corporation duly entered into an agreement in writing whereby, for and in consideration of the agreements, provisions and undertakings therein contained to be performed, fulfilled and kept on the part of the said de- fendant corporation to introduce in the market, known as N. W. W. M., its refrigerating apparatus, for the purpose of supplying to the standholders in said market, at certain specified rates per cubic foot, cold air for preserving meats, etc., and to maintain the said apparatus in said market for such purpose for the period of years from the date of the said agreement, to which agreement, now on f:le in the office of the plaintiffs' comptroller, for its contents, the plaintiffs beg leave more particularly to refer. IV. That in and by the said agreement it was, among other things, provided that the said defendant corporation should pay to the plaintiff's, for the privileges set forth in the said agreement, on the days of , , and in each and every year, five per cent of the gross receipts during the quarter then last past from the standholders in said market, and the additional sum of S per annum, such additional sum to be paid in equal quarterly installments on the above dates in each and every year. V. That on or about the day of , 19 , the 1 From Mayor, etc., of N. Y. v. N. Y. Refrigerating Co., 146 N. Y. 210; in which a judgment in favor of the plaintiff was affirnjed. 218 Bradbury's Forms of Pleading Bonds defendants executed and delivered to the plaintiffs their joint and several bond in the sum of $ conditioned for the performance by the said defendant corporation of each and every provision in the said agreement contained on its part to be done and performed, to which bond now on file in the office of the plaintiffs' comptroller, the plaintiffs for the contents thereof beg leave more particularly to refer. VI. That the said defendant corporation has wholly neglected and refused to pay to these plaintiffs the following installments of the said annual sum of $ which under the terms of the said agreement became due and payable from the said de- fendant corporation to these plaintiffs, viz. : The installment or sum of $ which became due and payable , 19 . The installment or sum of $ which became due and payable , 19 . Wherefore [demand for money judgment], (Signed.) Form No. 215 Bond Griven on Opening Default Judgment ' First: For a first cause of action. I. That on or about , 19 , the defendant, together with P. A., P. A. and C. P., executed under their hands and seals and delivered to the plaintiff their certain bond or undertaking, whereby they, jointly and severally, bound themselves in the sum of $ , with the condition thereunder written that if the said P. and P. A. should pay to the plaintiff the full amount of any judgment which should be finally recovered against them in a certain action then pending in the city court of , wherein this plaintiff was the plaintiff and said P. and P. A. were the defendants, which action was designated Action No. 1, then the said undertaking should be void; otherwise to remain in full force. A copy of said undertaking is hereto annexed, marked Exhibit "A," and made a part of this complaint. ^ From Caponigrij;. Cooper, 70 App, Div. 124; 74 Supp. 1116. Complaints 219 Bonds II. That thereafter said action was duly tried in said city court and a verdict rendered in favor of the said defendants and against the plaintiff, and on > 19 > judgment in said action was duly entered in the office of the clerk of said city court in favor of the defendants therein and against the plaintiff, for the sum of $ ; that thereafter and on or about , 19 , the plaintiff duly appealed from the said judgment to the general term of the city court; and thereafter and on or about , 19 , the said judgment was duly affirmed by the said general term; and thereafter and on j 19 , judgment of affirmance was duly entered in the office of the clerk of said court; that thereafter and on or about , 19 , plaintiff duly appealed to the appellate term of the Supreme Court for the First Department from the said judgment of , 19 , and thereafter and on or about , 19 ,' the said appellate term duly affirmed the said judgment, and thereafter and on or about , 19 , upon the remittitur sent down from the said appellate term, an order was entered in the office of the clerk of said city court, making the judgment of said appellate term the judgment of the said court, and judgment in accordance therewith was on said day duly entered in the office of the clerk of said city court; that thereafter and on or about ,19 , on leave granted by said appellate term by order entered in the office of the clerk thereof, on , 19 , the plaintiff appealed from the determination of the said appellate term and from the said judgment of , 19 , to the appellate division of the Supreme Court for the First Department, and thereafter and on of about , 19 , the said appellate division by order entered in the office of the clerk thereof, reversed the determination of said appellate term and the judgment of , 19 , entered thereon and the judg- ment of , 19 , and the judgment of , 19 , and ordered a new trial, with costs of appeal in the several courts to the plaintiff to abide the event; and thereafter and on or about ,19 , on the remittitur sent down from the said appel- late division, an order was duly entered in the office of the clerk 220 Bradbury's I'^orms of pLEADiMS Bonds of the said city court, making the order and judgment of the said appellate division, the order and judgment of said court; that thereafter, by an order entered in the office of the clerk of said appellate division on , 19 , the said defendants were granted leave to appeal to the Court of Appeals of the State of , from the determination of said appellate division and from the said order and judgment entered thereon; and on or about , 19 , the said defendants duly served their notice of appeal to the said Court of Appeals, by which notice they stipulated that in case the determination and judgment appealed from should be affirmed, judgment absolute should be rendered against them for the relief demanded in the com- plaint; and thereafter and on or about , 19 , the said Court of Appeals duly affirmed the judgment and order of ,19 , of said appellate division and the order of , 19 , entered thereon and directed judgment absolute in favor of the plaintiff and against the defendants for the relief demanded in the complaint, with costs; and thereafter and on or about ,19 , on the remittitur sent down from the said Court of Appeals an order was duly entered in said city court, making the order and judgment of the said Court of Appeals the order and judgment of the said city court, and thereafter and on , 19 , judgment in accordance therewith was entered in the office of the clerk of said city court, in favor of the plaintiff and against the said P. and P. A. for the sum of $ III. That on , 19 , a transcript of said judgment was duly filed and said judgment was duly docketed in the office of the clerk of the county of , where the said P. and P. A. then resided, and on the said day execution against said P. and P. A. was duly ^issued to the sheriff of the county of , which said execution has been returned wholly un- satisfied. IV. That no notice of appeal from said judgment of , 19 , has been served by the defendants, and that the time to serve said notice of appeal has now expired, and that no part of said judgment has been paid, except the sum of $ Complaints 221 Bonds Second : For a second cause of action. I. That on or about , 19 , the defendant, together with P. A., P. A. and C. P., executed under their hands and seals, and delivered to the plaintiff their certain bond or undertaking, whereby they, jointly and severally, bound themselves in the sum of $ , with the condition thereunder written that if the said P. and P. A. should pay to the plaintiff the full amount of any judgment which should be finally recovered against them in a certain action then pending in the city court of ' , wherein this plaintiff was the plaintiff and said P. and P. A. were the defendants, which action was designated Action No. 11, then the said undertaking should be void; otherwise to remain in full force. A copy of said undertaking is hereto annexed, marked Exhibit "B," and made a part of this complaint. II. That on , 19 , said action was duly tried by said city court and a verdict rendered in favor of the plaintiff for relief demanded in the complaint, and final judgment was, on said day, duly entered in this action in the ofHce of the clerk of the city court of , in favor of the plaintiff and against said P. and P. A., /for the sum of $ III. That on , 19 , a transcript of said judgment was duly filed and said judgment was duly docketed in the office of the clerk of the county of , where the said P. and P. A. then resided, and on said day execution against said P. and P. A. was duly issued to the sheriff of the county of , which said execution has been returned wholly unsatisfied. IV. That no notice of appeal from said judgment has been served by the defendants, and that the time to take such appeal has expired, and that no part of said judgment has been paid. Wherefore [demand for money judgment]. 222 Bradbury's Forms of Pleading Official Bonds and Undertakings CHAPTER XII OFFICIAL BONDS AND UNDERTAKINGS ^ FORMS NO. PAGE 222. Bond of administrator 223 223. Against sureties on guardian's bond 233 224. Guardian; where accounting impossible 236 225. Common-law bond of receiver 238 226. Auctioneer's bond 241 227. Bond of receiver of taxes 244 228. Undertaking on appeal 251 229. Undertaking on appeal; foreclosure 253 230. Bond to prevent waste pending appeal in foreclosure 254 231. Undertaking on appeal from order 255 232. Undertaking on appeal from order to Court of Appeals 257 233. Undertaking on appeal to the Court of Appeals from order granting new trial, appellant stipulating for judgment absolute in case of affirmance 258 234. Undertaking on appeal to intermediate appellate court; reversal of judgment which is in turn reversed by the Court of Appeals 261 235. Successive bonds by same surety on different appeals 263 236. Sheriff's bond 265 237. Undertaking given for appearance of person in contempt 268 238. Costs of certiorari against city officers 269 239. Undertaking on arrest 271 240. Undertaking on attachment 273 241. Undertaking on injunction 274 242. Undertaking on replevin 275 243. Bond given by defendants, against whom injimction granted, to per- mit continuance of trespass pending appeal in action 276 * See also Bonds, ante, p. 187; Indemnity, post, p. 443; Guaranty, j)ost, p. 484. Complaints 223 Official Bonds and Undertakings V Form No. 222 Bond of AdministratOT ' Supreme Court, County. Maria L. Hood as executrix under the last will and testament of An- drew Hood, deceased, Plaintiff, against John N. HajTvood, Frederick H. Hood and David Moffatt, Defendants. The plaintiff complaining of the defendants alleges: 1. That on the day of , 19 , A. H., then being a resident of the county of , in the State of , departed this life, leaving a last will and testament in the words and figures following: " In the name of God, amen, I, A. H., of , , in the county of , at present temporarily residing at , in said county, being of sound and disposing mind, memory and understanding, do make, publish and declare this my last will and testament, as follows : " I. I direct that all my just debts and funeral expenses be paid by my executors, hereinafter named, as soon as conveniently can be done after my decease. " II. I give, devise and bequeath to my son A. my gold watch, to be given to him on his arriving at the age of years. " III. I give, devise and bequeath to my beloved wife, M. L., all my wearing apparel, furniture, plate, linen, pictures, house- hold groceries and provisions, and carriages, including the gas fixtures in my houses on avenue, but excepting and reserving the furniture, wagons and stock which was on the place * From Hood v. Hayward, 124 N. Y. 1; in which a judgment iji favor of the plaintiff was modified aiid affirmed, 224 Bradbury's Forms of Pleading Official Bonds and Undertakings at , county, when I purchased same, and which I desire to be sold with said place. To have and to'hold the same to her, her executors, administrators and assigns forever. " IV. Whereas, my life is insured in the E. and A. Life Insur- ance Company for the sum of $ . Now, I devise, order and direct that my executors, on collecting the amount of such in- surance, after my decease, pay over, and I devise and bequeath to my son, F. H., his heirs, executors and administrators, the one- half of the amount which may be realized and collected on such insurance, and that said executors invest the other half of such amount on bond and mortgage on real estate in the State of , and pay over the income and interest thereof to my granddaughter, L. L., as long as she lives, and at her death pay over and deliver the said one-half, and any securities in which the same shall be invested, to such person or persons as my said granddaughter shall by will devise, direct and appoint, or in default of any such will, then to her next of kin her surviving. " V. I also give, devise and bequeath to said L. L. the bond and mortgage which I now hold for $ , on a house and lot on street, in the city of , above mentioned. This income, and the income of my residuary estate, as hereinafter mentioned, being given my said wife for her own support and for the support, clothing and education of our children until they respectively attain the age of years. This bequest and the bequest hereinbefore contained being given to my said wife in lieu and in full of all dower or thirds in my estate. " VII. It is my wish that the real estate above mentioned, on the corner of and streets, be not sold by my executors, unless they deem it highly advantageous or necessary so to do. But if they shall deem it proper to sell the same, then the proceeds thereof shall be invested on bond and mortgage on real estate in this State, and the income and interest thereof to the amount of $ per year paid to my said wife, in the same manner as above provided as to the rent of said premises. " VIII. In case the net annual rent, income or interest of said premises, or of the securities in which the proceeds of the same Complaints 225 Official Bonds and Undertakings may be invested, if sold as aforesaid, shall (as I anticipate), dur- ing any or every year that may elapse until my youngest child attains the age of years, exceed the annual income at $ devised to my said wife as aforesaid, then and in that case I direct my said executors to reserve such excess or surplus and invest the same as they may see fit, and out of the same make up to my said wife the said annual income of $ during any year in which the said net rent, income or interest may fall below that sum; also, in case of destruction or other serious dam- age by fire, or any other cause, to the buildings on said premises, to use said excess or surplus (if necessary) in repairing or rebuild- ing the same, or making any important or necessary alterations therein; and when, and as soon as my youngest child shall attain the age of years, then I order and direct my said execu- tors to divide and distribute the said excess or surplus, or the portion thereof then remaining, to and among' the children of my said wife, M. L., and myself, and their descendants, in the same manner, shares and portions as next herein directed in the ninth clause of this my will, as to the balance of the proceeds of said real estate, and any excess or surplus accruing after that period, shall be divided in the same manner equally among the said children and their descendants.. " IX. As soon as conveniently can be done, after the decease of my said wife, I wish the said property sold (if not previously sold) and the proceeds thereof I give, devise and bequeath as follows : " $ to my son, F. H., if then living, and in case of his decease, to his right heirs and next of kin then surviving. " $ to my granddaughter, L. L., if then living, and in case of her decease, to her children or descendants (if any); if she shall leave none her surviving, then to my own right heirs and next of kin. " The balance I give, devise and bequeath to the children of my vafe, M. L., and myself, then surviving, and the descendants of any child or children deceased, the descendants of any child or children deceased to take the same part and portion his, her or their parent would have been entitled to if living. Vol. 1-15 228 Bradbury's Forms of Pleading Official Bonds and Undertakings "X.I give, devise and bequeath to my son, F. H., $ to be expended for a facsimile copy of my portrait by M. To my nieces, 1. 11. and J. K., and my sister-in-law, C. V. T., the sum of $ each, for the purchase of suitable mourning, etc. "XI. All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to my executors, hereinaf- ter named, in trust, to sell and dispose of said real estate, and col- lect, get in, and realize my personal estate, and after paying the incumbrances on my real estate on the corner of and streets, as hereinbefore directed, to divide the bal- ance into as many shares as I shall leave children of my wife, M. L., and myself surviving, and invest the same on bond and mortgage on real estate in the State of , and to pay the income and interest of each share to my said wife, if living, or the legal guardian of the child to whom the share belongs, if my said wife shall be deceased, until said child shall attain the age of years, to be used for the support, maintenance and education of such child, as hereinbefore provided in the sixth clause of this my will, and when, and as soon as each one of said children shall arrive at the age of years, tlien I devise, order and direct my said executors to pay over and deliver to him or her the share which shall have been set apart for him or her respectively, and all the accumulation and proceeds thcu-eof, and all securities in which the same shall have been invested, as aforesaid. " XII. I hereby nominate, constitute and appoint my beloved wife, M. L., my son, F. H., to be executors of this my will, and trustees under the same, giving and granting to my said execu- tors full power and authority to sell and dispose of, grant and convey, all my real estate, or, in their discretion, to lease the same, for and at such times and on such terms and in any manner they may deem best, and in case of the destruction and injury by fire of the buildings on the premises on the corner of and streets, to rebuild or repair the same, or erect such other buildings thereon as they shall deem advantageous, and I hereby nominate and appoint my said wife guardian of the per- Complaints 227 Official Bonds and Undertakings sons and estates of my children until they respectively attain the age of 21 years. " In witness whereof I have here- unto subscribed my name and affixed my seal, at the city of , this day of , 19 . "Signed, sealed, published and de- clared by the said testator, as and for his last will and testament, in presence of us, who, at his request, in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses. The words "sleigh, wagon, har- ness, horses, pony and chaise," on first page and the name "H." on fourth page, struck out before exe- cution." 2. That the said will was duly admitted to probate by the surrogate of county on the day of , 19 , whereof the right belonged, and letters testamentary thereon were afterwards and on or about the day of , 19 , issued by said surrogate to F. H. and M. L. H., the executor and executrix named in said will, who duly qualified as such executor and executrix. 3. That said F. H. was then and is now a nonresident of this State, and that previous to the issuing of said letters the said F. H. together with the defendant, J. N. H., and also one D. M., made and executed a certain bond or obligation in the words and figures following : "Know all men by these presents, that we F. H., of , in the State of , D. M., of the city of , county of and State of , and J. N. H., of the city and county of , are held and firmly bound unto the people of the State of in the sum of $ , to be paid to ^28 Bradbury's Forms of Pleading Official Bonds and Undertakings the said people; to which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, Jointly and severally, firmly by these presents. Sealed with our seals. Dated this day of , 19 . "Whereas, the above-bounden F. H. is named as an executor of the last will and testament of A. H., late of the town of , in the of and State of , deceased, which will has been duly admitted to probate by the surrogate of the county of "Now, therefore, the condition of this obligation is such that if the above-bounden F. H., who is a nonresident, residing at , in the State of , shall faithfully execute the trust reposed in him as such executor, and also obey all orders of the surrogate of the county of , touching the ad- ministration of the estate committed to him, then this obliga- tion to be void, else to remain in full force and virtue. "Sealed and delivered in the"| presence of . i "Words 'J. N. H.,' written in ' erasure three times." 4. That said bond, after being duly acknowledged, was thereupon filed in the office of the said surrogate, and letters testamentary were thereafter issued to said F. H., pursuant to statute in such case made and provided. 5. That said A. H. died, seized and possessed of a large real and personal estate, amounting in value, as plaintiff is informed and believes, to the sum of $ , or thereabouts. 6. And said plaintiff alleges that the condition of said bond in or about the month of , 19 , was broken, and that the penalty thereof became thereupon; due and payable accord- ing to the condition and tenor thereof. 7. That the said F. H. did not faithfully execute the trust reposed in him as such executor, and did not obey the orders of the surrogate of county touching the administration of the estate committed to him and said defendant H., in or about the month of » 19 , had actual notice thereof. Complaint's 229 Official Bonds and Undertakings 8. That the said F. H. since the day of , 19 , received the sum of $ and upwards of the assets of the said estate which has not been duly or properly adminis- tered by him, and which has in consequence thereof been lost to the estate. 9. The said plaintiff alleges, on information and belief, that in or about the month of , 19 , the said F. H. presented to the surrogate of county and filed with him an accolint of the proceedings of the executor and executrix of said estate, and a statement of their accounts ; that in and by said accounts, it appeared that the property of Jfche said estate then remaining, consisted principally of certain moneys, amounting to the sum of $ , or thereabouts, then invested upon bond and mortgage. 10. That thereafter, and on the day of , 19 , an order or decree was made by said surrogate, whereby it was ordered that the said executors should hold and invest, pursuant to the powers and directions contained in the said will, the sum of $ 11. That the said sum represented, principally, the amounts secured to be paid by the aforesaid bonds and mortgages; that the said bonds and mortgages, amounting in the aggregate to the sum of $ , were afterwards collected and realized by said F. H. 12. And plaintiff alleges and states, on information and belief, that said F. H. neglected and refused to comply with the aforesaid order or decree of said surrogate, and did not invest the moneys of said estate so received as therein directed, and as directed by said will; that upon collecting and realizing said as- sets, it became his duty, imposed upon him by said orders or decree and said will, to invest the same upon bond and mortgage, and keep the same invested upon bond and mortgage on property situate in this State, which he failed and neglected to do. 13. And the plaintiff further alleges that since the said day of , 19 ; large sums of money belonging to said estate have been misapplied by said H., and invested in 230 Bradbury's Forms of Pleading Official Bonds and Undertakings property not avithorizcd by law or said will; that large sums of money of .^-aid estate have been lost and wasted by said H. 14. ThaL ha or a::out the year 19 , without the knowledge or consent of this plaintiff, the said H. invested part of the assets of said estate, to wit : the sum of $ , in the purchase of certain real estate wituate in , , which was subject to a mortgage to secure the payment of the sum of 15. That some time in the year 19 the said premises were sold under foreclosure of said mortgage, and did not realize suffi- cient to pay said mortgage and interest, whereby and in conse- quence thereof, the mone}^s of said estate so invested therein as aforesaid were lost to said estate. 16. And the plaintiff further alleges, on information and belief, that in or about the month of , 19 , a certain proceeding was brought by B. H., one of the persons interested in said estate, in the surrogate's court of county, against; the said F. H. for a revocation of the letters testamentary issued to him by the surrogate of county as an executor under the will of A. H., deceased. That in and by the petition of said B. H. various acts of misconduct were alleged to have been com- mitted by said F. H., being substantially the same acts of mis- conduct above set forth. 17. That a citation was issued by said surrogate, requiring said F. H. to show cause on the day of • , 19 , at the surrogate's court, , county, why the let- ters testamentary theretofore issued to him by said surrogate, as executor of the said will, should not be revoked; that the said F. H. appeared upon the return of said citation, and filed his answer to said petition. 18. That thereafter, and after hearing the allegations and proofs of the respective parties, the said surrogate found and decided that the said F. H. had, since the day of , 19 , realized and collected certain assets and property of said estate, amounting to the sum of $ ; that since the said day of > 19 > large sums of money be- Complaints 231 Official Bonds and Undertakings longing to said estate had been misapplied by said F. H. in the purchase of real estate situate in the State of , contrary to the express provisions of the said will, to the amount of $ , which had, by reason thereof, been lost to said estate ; that since the day of , 19 , he had invested large sums of money of the estate in securities and property not authorized by law or the will of said deceased; that he had not duly or properly administered the said estate, and that large sums of money belonging to said estate had not been duly or properly administered by him; that he had not faithfully per- formed the duties of the trust committed to his care ; that large sums of money of said estate had been lost and wasted by him, and that in consequence of the acts aforesaid the said estate had suffered loss and damage in the sum of $ and upwards. 19. That the said surrogate thereupon made his order or decree, which bears date the day of , 19 , whereby it appears that the letters testamentary theretofore issued to the said F. H. by the surrogate of county, and bearing date the day of , 19 , were thereby Revoked. 20. That thereafter, and in the month of , 19 , the plaintiff herein presented a petition to the said surrogate of county, which, among other things, alleged the making of said last-mentioned decree; that she was the remaining execu- trix of said will; that said F. H. had, since the day of , 19 , received and collected certain assets of said es- tate, amounting to the sum of $ , or thereabouts, and praying, among other things, that said H. account for and pay over and deUver to the said petitioner all moneys and property of said estate, and that he be cited to show cause why he should not render and settle his account; that a citation was thereupon issued to said H. accordingly, and he appeared and filed his answer to said petition; that certain proceedings were duly had therein, and said H. filed and presented to said surrogate an account of his proceedings and his disposition of the assets of said estate; that thereafter the said surrogate made his certain 232 BKADfiURY's Forms of Pleading OfRcial Bonds and Undertakings order or decree, whereby it appears, among other things, that certain payments, charges and investments (including the said payment or investment of the sum of $ in the purchase of the premises in the city of above alleged) were dis- allowed by said surrogate, which charges amounted in all to the sum of $ , which sum the said H., by the decree aforesaid, was directed to pay to this plaintiff, which the said H. has failed and refused to do, after being duly demanded before the com- mencement of this action; that said H. is insolvent, as plaintiff is informed and believes. 21. And the plaintiff further shows that no successor has been appointed in the place and stead of said F. H., and that this plaintiff is now the remaining executor of the estate of A. H., deceased. 22. And the plaintiff further shows that by the aforesaid acts of misconduct done and committed by said H., the said estate has been seriously aggrieved and injured, and has suffered damage in consequence thereof in the sum of $ ; that plaintiff has been aggrieved by the acts of misconduct committed by said H. 23. And the plaintiff further shows that pursuant to the statute in such cases made and provided, the said surrogate of county, on the application of this plaintiff, made a cer- tain order or decree, bearing the date the day of , 19 , which was afterwards amended as of said . day of , 19 , by said surrogate, by order dated the day of , 19 , whereby he granted leave to this plaintiff to bring an action on the bond above mentioned, and which said orders were duly filed and entered in the office of said surrogate. 24. That this action is prosecuted by this plaintiff as the executrix of said will of A. H., deceased, as well as on her own behalf and on behalf of all persons interested, or claiming to be interested, in said estate, pursuant to the statute in such cases made and provided. 25. And the plaintiff further shows that D. M. named in Complaints 233 Official Bonds and Undertakings said bond has been released from any liability on said bond to the extent of one-half the penalty thereof, to wit: the sum of $ , saving and reserving, however, and excepting all cause or causes of action against the other parties thereto, and any and all liability thereunder. Wherefore [demand for money judgment]. Form No. 223 Against Sureties on Guardian's Bond ^ That on or about the day of j 19 , E. B. L., then a resident of in the county of and State of , was duly appointed by the surrogate of the said county of , general guardian of the person and property of this plaintiff who was then a minor of the age of years, residing at aforesaid. That before appointing said E. B. L. as such general guardian the said surrogate required that he execute a bond to the plain- tiff minor as aforesaid with sufficient sureties to be approved by said surrogate in the penalty of $ conditioned as by statute in such case is made and provided. That in pursuance of such requirement the said E. B. L. and the defendants G. L., P. F. and one R. S. made and duly executed a bond as so required by said surrogate and which bond is the words and figures following, to wit : "Know all men by these presents, that we, E. B. L., G. L., R. S. and P. F. of , county of in the State of , are held and firmly bound unto W. 0. D. of of the county of , a minor over the age of years, in the sum. of $ lawful money of the United States of America, to be paid to the said W. 0. D., or to his certain attor- ney, heirs, executors, administrators or assigns, to the which payment well and truly to be made we bind ourselves and each of us our and each of our heirs, executors and administrators, and each and every one of them jointly and severally firmly by these presents. Sealed with our seals and dated the day ^ From Douglass v. Ferris, 138 N. Y. 192; in which ths plaintiff recovered. 234 Bradbury's Forms of Pleading OiBcial Bonds and Undertakings of in the year 19 . The condition of this obligation is such that if the above bounden E. B. L. do and shall well and faithfully in all things discharge the duty of guardian to the above-named minor according to law and render a just and true account of all moneys and property received by him and of the application thereof and of such guardian all in respects to and before any court having cognizance thereof when thereunto required, then this obligation to be void otherwise to remain in full force and virtue." That the said bond was on the day of , 19 delivered to the surrogate of the county of and by him then and there duly approved and filed in his office, and the said E. B. L. was thereupon duly appointed general guardian of the person and property of this plaintiff as aforesaid and immediately entered upon the duties of his trust as such guardian. That this plaintiff arrived at the age of years on the day of , 19 . That the said E. B. L. after his appointment and during the minority of plaintiff, received in his hands as such guardian large sums of money and other property belonging to this plaintiff which he appropriated to his own use in violation of the trust so reposed in him as such guardian. That after the execution of the said bond and the- appointment aforesaid and after the plaintiff had become of full age, this plaintiff commenced an action in the Supreme Court of the State of , said court having cognizance thereof, requiring the said E. B. L., among other things, to account to this plaintiff for the money and property of this plaintiff received by said L. as guardian aforesaid. That such proceedings were had in such action that thereafter and on the day of , 19 , it was adjudged and decreed by said court that the said E. B. L. then had in his hands as such guardian the sum of $ belonging to this plaintiff, and such further proceedings were thereafter had in said action; that it was adjudged that this plaintiff recover judgment against the said E. B. L. as such guardian for said last-mentioned Complaints 235 Official Bonds and Undertakings sum and $ interest thereon with $ , costs of said action, amounting in all to the sum of $ , and for which Judgment was duly entered in said court and was duly docketed in the clerk's ofhce in the county of , and in county. That an appeal was taken by said guardian from said judg- ment and the same was in all things affirmed with $ costs. That subsequently and prior to the commencement of this action an execution on said judgment against the property of said E. B. L. was duly issued to the sheriff of the county of , in which county said L. resides, and has been returned wholly unsatisfied. And that the said E. B. L. has not paid the said sum of $ , or the said $ , or any part thereof as he was in duty bound to do, whereby an action has accrued to this plaintiff to have of and from the said makers of said bond, their executors and administrators jointly and sever- ally the sum of $ with interest from the day of , 19 , and the said $ and interest from , 19 . And plaintiff further alleges that on or about , 19 , an action was commenced by service of summons and complaint upon all of said makers of said bond except said E. B. L., and thereafter the said F. and S. answered, and said G. L. answered separately, and alleged that at the time of executing said bond she was a married woman and the wife of said guardian. And plaintiff alleges upon information and belief that she was at such time the wife of said guardian and was well known to the other sureties at time of executing said bond to have been the wife of said guardian. That thereafter the said action was dis- continued as to said G. L. because of such coverture and her answer claiming such coverture as defense, and the action was continued as to the said F. and S. who had answered separately, but said G. L. was not discharged of any liability on said bond if she ever was liable thereon to plaintiff or to the other sureties. That after the answer as aforesaid had been made by them and before trial the said R. S. died, to wit : On or about the 236 Bradbury's Forms of Pleading Official Bonds and Undertakings day of , 19 ; leaving a last will and testament whereof said defendant A. A. P. wag made executrix. That said will was duly probated in the surrogate's court of county, , and letters testamentary were duly issued to said executrix on or about , 19 , and ever since said date she has been duly qualified acting executrix of the said will and estate of said R. S., deceased. That said cause of action survived and the estate of said deceased is chargeable for the payment of said judgment. That on or about , 19 , the plaintiff duly made application to the Supreme Court to revive this action against the personal representatives of said deceased, and upon such application at special term held at Chambers of Hon. C. 0. T., justice in , on the day of , 19 , an order was duly made which was thereafter duly entered in the clerk's office of county, which order was in substance as follows: "The motion is granted. A supplemental summons to issue and be served upon the executrix of S.; plaintiff to have leave to serve an amended and supplemental complaint contain- ing proper allegations to show the liability of the said executrix upon the bond in suit to which any of the defendants may serve an answer." That thereafter the said executrix appealed from said order to the general term of this court, and said order was affirmed and judgment of affirmance was duly entered in said clerk's office in county on or about , 19 . Wherefore [demand for money judgment]. Form No. 224 Guardian; Where Accounting Impossible ^ I. That on or about ,19 , as a minor child and heir at law of her deceased mother, this plaintiff became entitled to ^ From Otto v. Van Riper, 164 N. Y. 536. Generally an action against the sureties or the bond of a general guardian can only be maintained after an accounting before the surrogate by which it appears that the guardian has received funds which he has failed to pay over. Rouse v. Payne, 120 App. Div. 667; 105 Supp. 549. Complaints 237 Official Bonds and Undertakings an estate and property, namely, the sum of $ . That J. H. S. was the father of this plaintiff, and upon the death of plaintiff's mother, was by the consideration of the surrogate's court of the city and county of , duly appointed as guardian of the person and estate of this plaintiff, and letters of such guardianship were issued to said J. H. S., and thereupon and on ,19 , J. H. S. received said $ II. Upon information and belief that afterward and on or about , 19 , said J. H. S., as principal, and the de- fendants, J. S. B. and C. V. R., as his sureties, made and executed to the plaintiff, and filed in the office of the surrogate of county, their certain bond to this plaintiff (named therein C.D.S.) for the sum of $ , whereby defendants did jointly and severally bind themselves to this plaintiff in the sum of $ , upon the following condition, namely: That if said J. H. S. should in all things faithfully discharge the trust reposed in him, as the guardian of the person and estate of this plaintiff, and obey all lawful directions of the surrogate of the city and county of , touching the said trust, and in all respects render a just and true account of all moneys and other property received by him (J. H. S.), and the application thereof , and of his guard- ianship, whenever he (J. H. S.) should be required to do so by a court of competent jurisdiction, then said obligation to be void, but if the said J. H. S. as the guardian of the person and estate of this plaintiff, should in any way fail to keep or perform any one or all of the said conditions, then said bond and undertaking to be in full force and effect. III. That the plaintiff attained her majority and became years of age on , 19 , and that the name of the plaintiff is now by marriage C. D. 0., and that her name before marriage was C. D. S. IV. Upon information and belief, that said sum of $ so received by J. H. S. was by him used in his business, and lost. That as an indemnity to the sureties upon his bond to this plain- tiff, and also as an indemnity upon certain other bonds signed by the defendants for J, H. S„ said J. H. S., on , , 19 , 238 Bradbury's Forms of Pleading Official Bonds and Undertakings made, executed and delivered his certain mortgage wherein he, J. H. S., and wife, granted, conveyed and mortgaged to the de- fendants, namely, J. S. B. and C. V. R., a certain tract or parcel of land, lying and being in the ward of the city of , and which mortgage was recorded in Liber 2126 of Mortgages, at page 15, in the office of the register of deeds of the city and county of V. Upon information and belief that afterward and on or about the day of , 19 , said J. H. S. sold the premises so mortgaged, and from the proceeds of such sale the sum of $ was by said J. H. S. and these defendants placed and deposited upon interest in the A. L. & T. Co., in the names of J. H. S., C. V. R. and J. S. B., in lieu of and instead of the security to the defendants as represented by said mortgage. That while said fund was so deposited with the A. L. & T. Co., said loan and trust company failed, and said funds were wholly lost. VI. Upon information and belief that afterward, said J. H. S. became wholly bankrupt and insolvent, and moved to the State of , where on or about the day of , 19 , he died intestate, leaving no estate or property, either in the State of , or the State of VII. Upon information and belief, that said J. H. S. died intestate in the State of , and left no estate or property of any kind or nature, and that no representative of "his said estate has been named or appointed in the State of , or within the State of , and that it is impossible for this plaintiff to obtain an account and judicial statement of accounts of said J. H. S. as such guardian. Wherefore [demand for money judgment]. Form No. 225 Common-Law Bond of Receiver ^ I. That heretofore, and at the city of , on or about 1 From Carl v. Mayer, 51 App. Div. 5; 64 Supp. 1077. Complaints 239 OfScial Bonds and Undertakings the day of , 19 , in a certain action then pend- ing in the court of common pleas for the city and county of , wherein the above-named plaintiff was plaintiff and one F. C. was the defendant, an order was duly made appointing the said F. C. the receiver of the copartnership assets of the firm of F. C. & Brother, upon said receiver making, executing and delivering a bond to the plaintiff in said action (plaintiff herein) in due form of law, with two sureties, in the sum of $ , for the faithful discharge of his duties as such receiver, and that he will render a just and true account of his proceedings unto said court or such other tribunal having competent jurisdiction whenever thereupon required, and the copy of which said order is hereto annexed, and which plaintiff makes a part of this, his complaint, in this action. II. That in pursuance to said order aforesaid, the said F. C. as principal, in conjunction with the above-named defendants as sureties, duly made their certain bond or obligation in writing, wherein and whereby the said sureties bound themselves, their heirs, executors and administrators, jointly and severally, to the plaintiff in said action (plaintiff herein) in the sum of $ , conditioned that if the said F. C. shall faithfully discharge the duties of his trust as such receiver and shall render a just and true account of his proceedings unto said court, or to such other tribunal having competent jurisdiction whenever thereunto required, then said obUgation to be void, otherwise to be in full force and effect, and which bond was duly approved and filed in the office of the clerk of said court of common pleas on the day of , 19 , and a copy of which said bond is hereto annexed, and which plaintiff makes a part of this his complaint in this action, the original bond on the trial of this action plaintiff will produce. III. That said F. C. after the approval and filing of said bond aforesaid, in his capacity as such receiver, took possession of all the copartnership assets of the then firm of F. C. & Brother, which said assets were then of the value of $ TV. That on or about the day of , 19 , the 240 Bradbury's Forms of Pleading OflBcial Bonds aad Undertakings said F. C, receiver and defendant in said action, departed this life at the city of , intestate and insolvent. V. That on the day of , 19 , letters of administration of all and singular the goods, chattels, credits and effects of said F. C, deceased, were duly granted by the surrogate's court of the county of to C. C. VI. That on or about the day of , 19 , an order was duly made in the then pending action of W. C. against F. C, which, among other things, directed the said action to be revived arid continued against said C. C. as the administrator of all and smgular the goods, chattels, credits and effects of F. C, late of the city of , deceased. VII. That thereafter said action was so revived and continued, and on or about the day of , 19 , a judgment and decree was duly made and entered in said action so revived and continued, which, among other things, adjudged and de- creed that the plaintiff herein was entitled, out of the copartner- ship assets of said firm of F. C. & Brother, to the sum of $ , besides the sum of $ , the costs, disbursements and allowance of said action; and further directed that the adminis- trator of the goods, chattels, credits, effects and property of said receiver, deceased, make and file, in form and manner required by law, an account of the proceedings of said F. C, deceased, as receiver of the copartnership assets of the firm of F. C. & Brother. VIII. That in pursuance to said judgment and decree 'the said C. C, as administrator of the goods, chattels, credits, effects and property of said F. C, deceased, did, on or about the day of , 19 , make and file, in the office of the clerk of the above-named court, an account of the proceedings of F. C, deceased, as receiver of the copartnership assets of the firm of F. C. & Brother, and which said account was duly confirmed by an order of this court made and entered in said action on the day of ) 19 , and to which said account, and the decree confirming said account, the plaintiff on the trial of this action begs leave to refer. IX. That from said account it appears that assets to the Complaints 241 Official Bonds and Undertakings amount and value of $ came into the hands of said F. C. as receiver, and that none of said assets came into the hands of said C. C. as the administrator of the estate of said F. C, deceased. X. That by an order, duly made and entered in the aforesaid action as revived and continued, C. H., of the city of , was duly appointed substituted receiver of all and singular the goods, chattels, credits and effects , of said copartnership firm of F. C. & Brother. XI. That said C. H. duly qualified as such receiver, and entered upon the discharge of his trust, and on or about the day of > 19 » duly rrade and filed his account as such substituted receiver, in the ofRce of the clerk of the above- named court, wherein and whereby it appears that no property or assets had come into the hands of such substituted receiver belonging to the firm of F. C. & Brother, and which said account was duly confirmed by an order and decree of this court, made and entered in said d,ction on the day of , 19 , and to which said account and the order and decree confirming the same, plaintiff, on the trial of this action, will produce in place of setting the same forth at length. And further, upon his information and belief, plaintiff avers : XII. That prior to the death of said F. C. all of the assets in the possession of said F. C, as receiver, belonging to and com- prising the copartnership assets of the firm of F. C. & Brother, were converted and misapplied by said F. C, as receiver, to his own use and benefit. Wherkfore [demand for money judgment]. ■ 1 Form No. 226 Auctioneer's Bond ' I. That at all the times hereinafter mentioned the defendant was and is a foreign corporation, organized and existing under 1 From Saul v. U. S. Fidelity & Guaranty Co., 71 App. Div. 77; 75 Supp. 615; in which the plaintiff recovered. Vol. 1-16 242 Bradbury's Forms or Pleading Official Bonds and Undertakings the laws of the State of , transacting its business of guaranteeing the faithfulness of persons holding positions of trust and the performance of contracts other than insurance policies and executing and guaranteeing bonds and undertakings re- quired or permitted in all actions or proceedings at law in the city of II. That on or about the day of , 19 , one S. M. G., made application to J. P. S., Esq., then and now the city clerk of the city of , for a license permitting the said S. M. G. to carry on the business and occupation of an auctioneer in the city of , pursuant to the statutes of this State in such case made and provided. III. That the said S. M. G. therewith presented his bond duly executed by himself as principal and the defendant, U. S. F. & G. Co., as surety in the penal sum of $ , in accordance with the statutes of this State in such cases made and provided, of which said bond a copy is hereto annexed and made a part hereof, and marked Exhibit "A." IV. That thereafter and upon the filing of the aforesaid bond in the aforesaid office, and the same having been duly accepted and approved by the said city clerk, a license was issued by him on the day of , 19 , to the said S. M. G., per- mitting the said G. to engage in and carry on the business and occupation of an auctioneer, for a period of one year from the said date. V. That thereafter upon the expiration of the said year, and on or about the day of , 19 , the said G. made application to the said city clerk for the continuation of the said license or a new license permitting him to carry on the said busi- ness and occupation of an auctioneer, and therewith presented Ms bond duly executed by himself as principal and the defendant as surety in the penal sum of $ , in accordance with the stat- utes of this State in such cases made and provided, of which said bond a copy is hereto annexed and made a part hereof, and marked Exhibit "B." VI. That pursuant to the said licenses and each of them the Complaints 2i3 Official Bonds and Undertakings said G. did enter into and carry on said business and occupation of an auctioneer at street, in the borough of , city of , and that on or about the day of , 19 , this plaintiff dealt with the said S. M. G. as such auc- tioneer, and consigned to him for sale at auction a large quantity of goods and merchandise of the value of $ VII. That thereafter and between the months of and , 19 , the said defendant sold at auction the said goods and merchandise so consigned for sale by this plaintiff, but during said times and ever since refused and neglected to turn over to this plaintiff or to account to him for part of the moneys arising from the said sales, to the am^ount of about $ and converted the same to his own use. VIII. That by reason of such neglect and refusal and conver- sion, the said G. clieated and defrauded this plaintiff, and did not well and truly carry on his said business or occupation of auc- tioneer, and did not in all thing? obey and conform to all the laws of the State of , and all ordinances and resolutions of the municipal assembly of the said the City of , now in force or hereafter to be adopted, relating especially to the busi- ness of auctioneer in the said the City of , according to the conditions of the said bonds. IX. That thereafter and prior to the day of , 19 , the plaintiff, pursuant to the statutes of this State in such cases made and provided, complained in writing of the fraud thus practiced upon him by the said auctioneer G. to the presi- dent of the municipal council of the city of , and that on the said day, pursuant to the said statute, the said president of the municipal council, due notice and opportunity of defense having been given, took the testimony of both parties, the plain- tiff herein and said G., under oath relating to the said charge of fraud contained in the said complaint; that both the plaintiff and said G. were present at the said hearing and were represented by counsel thereat; that the said president of the municipal council, after such hearing, pursuant to the authority vested in him by sec. 34 of the Greater New York Charter [Laws 1897, 244 Bradbury's Forms of Pleading Official Bonds and Undertakings chap. 387] found and determined that the said charges were in his opinion sustained, and revoked the license granted to said defendant auctioneer as hereinbefore set forth, and directed his bonds hereinbefore referred to and set forth, to be forfeited, and that an order to the foregoing effect signed by the said presi- dent was entered in the said office of the city clerk of the city of X. That in and by sec. 5 of chap. 682 of the Laws of 1897, it is provided as follows : "The sureties upon a bond as provided in sec. 1 hereof, shall be liable for breach of contract or of duty towards the person or persons, consigning goods for sale, as well as for the other acts, or omissions or matters now provided by law." XI. That the bonds hereinbefore set forth are the bonds re- ferred to in and contemplated by the said Laws of 1897, chap. 682, sec. 5. XII. That plaintiff has duly requested and demanded of the said S. M. G., that he account for said moneys to and pay the same to this plaintiff, but this the said G., has wholly neglected and refused to do. That the plaintiff gave due notice of all the aforesaid to the defendant, U. S. F. & G. Co., and thereupon demanded payment of them of the said sum of $ , but the said defendant has wholly refused and neglected so to pay the same, and the same has not, nor has any part thereof, been paid. Wherefore [demand for money judgment]. Form No. 227 Bond of Receiver of Taxes ^ I. That the plaintiff above named is and since the day of , 19 , has been a domestic municipal corpora- tion, incorporated under an act of the legislature of this State, entitled: "An act to incorporate the city of ," passed > From City of Mt. Vernon v. Kenlonj-O? App. Div, 191; 89 Supp. 817; in which the plaintiff recovered. Complaints 245 Official Bonds and Undertakings on or about the day of , 19 , and commonly- known as the charter of said city. II. That the defendant, the M. S. R. Co., is a domestic corpora- tion, incorporated under the laws of the State of III. That the defendant, the H. S. B., is a domestic corpora- tion incorporated under the laws of the State of IV. That since the day of , 19 , the defend- ant, J. H. B., has continuously been a resident, citizen and freeholder in and of said city; and that at the general city elec- tion in and for said city, held therein on the of , 19 , the said J. H. B. was elected to the office of receiver of taxes and assessments of and for said city for the term of years, commencing with the day of , 19 . v. That, on or about the day of , 19 , the said defendant J. H. B. took the oath prescribed in Article XII of the Constitution of this State, and filed the same with the city clerk of said city. VI. That, on or about the day of , 19 , the defendant J. H. B., as principal, and the said P. H. S., as surety, and the defendants, J. J. F., H. P., A. M. K. and P., S., also as sureties, made, executed and delivered to the plaintiff their bond in writing, under their respective and several hands and seals, whereby they bound themselves jointly and severally to the said city of , the plaintiff, in the penal sum of $ , which amount had previously been duly fixed by the common council of said city, with a condition that, if the said J. H. B., as said receiver of taxes and assessments in and for said city, should well and faithfully discharge the duties of his office and account for and pay over all moneys received by him as such receiver, then the obligation of such bond was to be void, other- wise in full force and virtue, the said sureties then being all resi- dents and freeholders within and df the said city. VII. That, thereafter and on or about the day of , 19 , the said bond was duly approved by the common council of said city and on the day of > 19 i duly filed with the city clerk of said city, and in his office. 246 Bradbury's Forms of Pleading Official Bonds and Undertakings VIII. That, at the time of his said election, to wit : the day of ,19 , the defendantJ.H.B. was the incumbent of said office of receiver of taxes and assessments in and for said city, having been duly elected thereto at the election held in said city, on the day of , 19 , for the term of years commencing on the day of, , 19 , and having duly qualified as such officer for said term, and being then in the active discharge of the duties thereof. IX. That, on the day of , 19 , the said de- fendant, J. H. B., having duly qualified as such receiver of taxes and assessments under his said first above-mentioned election for said term of years, commencing with the day of , 19 , entered upon the discharge of the duties of said office for said term and continued therein until the day of , 19 . X. That, at the general city election held in and for said city on the day of , 19 , the said defendant, J. H^ B., was duly re-elected to said office of receiver of taxes and assessments for the further term of years, commencing with the , day of , 19 , . but that he failed to quaUfy as such officer, for said further term of years, in that he failed to make or execute or in any manner give to the said city any bond or undertaking for said new or further term; and that, for want of such qualification, said B., as this plaintiff is informed and verily believes and therefore alleges, continued to hold his said term of said office, which term commenced on the day of , 19 , and to act as such receiver, under such term, until the day of , 19 , when his successor, having been duly elected and having duly qualified, assumed said office. XL Upon plaintiff's information and belief, that, when said bond was given and filed as aforesaid, the said principal and the said sureties thereto were respectively the owners in fee simple, seized and possessed of certain parcels of land [real property] which are enumerated and described in the several schedules hereto annexed, viz.: Complaints 247 Official Bonds and Undertakings Schedule "A," showing parcels of land belonging to the said defendant, J. H. B. Schedule "B," showing parcels of land belonging to the said defendant, A. M. K., etc. XII. Upon plaintiff's information and belief, that the said bond, by the giving, approval and fiUng thereof as aforesaid, became on the day of , 19 , a lien upon each of said parcels of land and real property, as security for the discharge by said J. H. B. of all the obligations of said bond, to the amount of the penalty thereof, viz. : $ , and has con- tinued to be and still is such lien; and that the said bond was and is in the words and figures following, viz. : "Know all Men by These Presents: That we, J. H. B. as principal and A. M. K., P. H. S., J. J. F., H. P. and P. S. as sureties are held and firmly bound unto the city of in the penal sum of $ , to be paid to the said city of , for which payment well and truly to be made we jointly and severally bind ourselves, our and each of our heirs, executors and administrators firmly by these presents. " Sealed with our seals, and dated the day of in the year 19 . "Whereas the above-bounden J. H. B. has lately been elected to the office of receiver of taxes and assessments of the city of ; "Now the condition of the above obligation is such, ' That if the said J. H. B. as receiver of taxes and assessments shall well and faithfully discharge the duties of his office and account for and pay over all moneys received by him as such receiver, then the above obligation to be void, else to remain in full force and v'rtae.' "Signed and sealed h the presence of W. J. M." [Signatures.] [Acknowledgment.] XIII. Upon plaintiff's information and belief, that between 248 Bradbury's Forms of Pleading Official Bonds and Undertakings the day of , 19 , and the day of , 19 , inclusive of both dates, the defendant, J. H. B., as such receiver, under and by virtue of certain warrants, which had been duly issued and delivered to him by the mayor, com- mon council and city clerk of said city, collected and received from various taxpayers and assessment payers of and in said city a large sum of money in and for certain taxes and assessments, which had been duly and legally levied and assessed therein, and which by said warrants he was commanded, authorized and directed, as such receiver, to collect and receive, all bein^ the property of said city; and that of said sum he, the said defendant, J. H. B., has hitherto wholly failed and neglected to pay over to the treasurer of said city or in any manner to said city a large sum, to wit: the sum of $ , in breach and violation of the allegations of said bond, it having been his duty by said charter to pay over the same to the treasurer of said city on or before the day of > 19 , and that the said de- fendant, J. H. B., on or about the day of , 19 , fraudulently, wrongfully and in breach of his duty as such re- ceiver and of the obligation of said bond, converted and appro- priated to his own use the said sum of % ; and that the said sum, with interest thereon at the rate of per cent from the day of > 19 , is now due from the defendant, J. H. B., to the plaintiff; no part of the same having been paid, although payment thereof has been demaftded by the plaintiff from the said defendant, J. H. B. XIV. Upon plaintiff's information and belief, that between the day of , 19 , and the day of , 19 , inclusive of both dates, the defendant, J. H. B., as such receiver, under and by virtue of certain warrants, which had been duly issued and delivered to him by the mayor, com- mon council and city clerk of said city, collected and received from various taxpayers and assessment payers of and in said city a large sum of money in and for certain taxes and assessments, which had been duly and legally levied and assessed therein, and which by said warrants he was commanded, authorized Complaints 249 Official Bonds and Undertakings and directed, as such receiver, to collect and receive, all being the property of said city; and that of said sum he, the said de- fendant, J. H. B., has hitherto wholly failed and neglected to pay over to the treasurer' of said city or in any manner to said city a large sum, to wit : the sum of $ , in breach and violation of the obligations of said bond, it having been his duty by said charter to pay over the same to the treasurer of said city on or before the day of , 19 ; and that the said de- fendant, J. H. B., on or about the day of , 19 , fraudulently, wrongfully, and in breach of his duty as such re- ceiver and of the obligations of said bond, converted and appro- priated to his own use the said sum of $ ; and that the said sum, with interest thereon at the rate of per cent from the day of , 19 , is now due from the defendant, J. H. B., to the plaintiff, no part of the same having been paid, although payment thereof has been demanded by the plaintiff from the said defendant, J. H. B. XV. That the said P. H. S., on or about the day of , 19 , died at the said city of , leaving a last will and testament, which was thereafter duly admitted to pro- bate by the surrogate of county, on or about the day of , 19 ; and that thereafter and on or about the day of j 19 , the above-named defendant, T. F. S., was, by the surrogate and surrogate's court of said county, duly appointed administrator, with the will annexed, of the goods, chattels and credits which were of the said P. H. S., deceased, and that thereupon, and on or about the said day of • , 19 , the said T. F. S. duly qualified as such administrator with the will annexed, and entered upon the dis- charge of his duties as such and is still engaged therein. XVI. That there is now due to the plaintiff and unpaid, of said taxes and assessments collected and received by said defendant, J. H. B., as such receiver as aforesaid, between and , 19 , inclusive of both dates, a large sum of money, viz. : the sum of $ ; the same being the aggregate of said two sums of $ and $ , and that thereof the sum 250 Bradbury's Forms of Pleading Official Bonds and Undertakings of $ , with interest thereon at per cent from the day of , 19 , is due upon said bond to the plaintiff from the defendants, J. H. B., A. M. K., J. J. F., H. P., P. S. and T. F. S., as administrator as aforesaid. XVII. That no other action has been had for the recovery of the said sum secured by the said bond, or any part thereof, or for tlie recovery of any sum on said bond. XVIII. Upon plaintiff's information and belief, that each and all of the defendants herein have or claim to have some interest in or lien upon the said parcels of land [real property], or some of them or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said bond and is subject and subordinate thereto. Wherefore, the plaintiff demands judgment as follows, viz. : 1 . That there is now due to the plaintiff, from the defendants, J. H. B., A. M. K., J. J. F., H. P., P. S. and T. F. S., as adminis- trator with the will annexed of the goods, chattels and credits which were of P. H. S., deceased, on said bond, the sum of $ , with interest thereon since the day of , 19 ; and that the said sum and interest is and since the day of ) 19 , has been a lien upon each of said parcels of real property. 2. That there is now due to the plaintiff, from the defendant, J. H. B., for taxes and assessments collected and received by him as such receiver between the day of ,' 19 , and the day of ; 19 , over and above the said sum of $ with interest as aforesaid, the further sum of $ , with interest upon $ thereof from the day of ) 19 , and upon $ thereof from the day of , 19 . III. That the defendants herein and all persons claiming under them, or any of them, subsequent to the commencement of this action, may be forever barred and foreclosed of all right, claim, lien and equity of redemption in the said parcels of land [real property]. IV. That the said parcels of land [real property] may be decreed Complaints 251 Official Bonds and Undertakings to be sold according to law; that the moneys arising from the sale may be brought into court; that the plaintiff may be paid the amount due on the said bond, to wit: the sum of $ , with interest thereon from the day of , 19 , to the time of such payment, and the costs of this action, and the expenses of said sale so far as the amount of such moneys prop- erly applicable thereto will pay the same; and that the de- fendants, J. li. B., A. M. K., J. J. F., H. P., P. S. and T. F. S., as administrator with the will annexed of the goods, chattels and credits which were of P. H. S., deceased, may be adjudged to pay any deficiency of said sum of $ , and interest, which may remain after applying all of said moneys so applicable thereto; and that the defendant, J. H. B., may be adjudged to pay also the further sum of $ , with interest upon $ , etc. Form No. 228 Undertaking on Appeal ^ I. That on the day of , 19 , in an action then pending in this court wherein the said J. F. C. was plaintiff and one E. S. B. was defendant, the said J. F. C. obtained a judgment against the said E. S. B. for the sum of $ , and for the recovery of the possession of certain premises known as No. , street in the city of ; the judg- ment roll in which action was duly filed in the office of the clerk of the city and county of on the date above mentioned. II. That thereafter the said E. S. B. duly appealed from said judgment to the general term of this court, and that for the pur- pose of staying execution upon the said judgment, an undertak- ing was duly executed by the defendants above named and filed in the aforesaid clerk's office, and a copy of said undertaking served upon the plaintiff herein; a copy of which undertaking is hereto annexed, marked Schedule "A," and is hereby made a part of this complaint. Said undertaking was thereafter duly allowed by one of the justices of this court. ' V'om Clason v. Kehoe, 49 App. Div. 631; 63 Supp. 300. 252 Bradbury's Forms of Pleading Official Bonds and Undertakings III. That thereafter said appeal was duly heard at the gen- eral term of this court where the said judgment was modified by deducting from plaintiff's recovery the sum of $ , and as so modified the said judgment was affirmed. Judg- ment accordingly was duly entered in the office of the clerk of the city and county of on the day of , 19 . IV. That from so much of said judgment of the general term of this court as modified the judgment mentioned in the first paragraph hereof, this plaintiff appealed to the Court of Appeals; that said appeal was duly heard in said Court of Appeals and said Court of Appeals thereupon duly rendered its judgment reversing so much of the judgment of the general term of this court as modified the judgment entered as set forth in the first paragraph, and affirmed said judgment as originally entered with costs at the general term and in the Court of Appeals. V. That said Court of Appeals thereupon remitted the said action to this court and by a judgment duly entered in this court on the day of , 19 , said judgment of the Court of Appeals was duly made the judgment of this court, and the plaintiff recovered of the defendant the sum of $ , costs awarded as aforesaid, which had been duly taxed at said sum as appears by the judgment roll, which was filed in the office of the clerk of the city and county of on the date last men- tioned. VI. That the value of the use and occupation of the premises recovered in this action, the possession of which has been re- tained by the said E. S. B. ever since the judgment mentioned in the first paragraph was recovered exceeds the sum of $ , for the period extending from the date of such recovery to the date of the aforesaid judgment of the Court of Appeals. VII. That no part of the judgment recovered as aforesaid and mentioned in the first paragraph hereof, nor of said costs, nor of the said value of the use and occupation of said premises has been paid to the plaintiff. Wherefore [demand for money iudgm,ent]. Complaints 253 Official Bonds and Undertakings Form No. 229 Undertaking on Appeal; Foreclosure ^ I. In an action then pending in this court wherein the plain- tiff was plaintiff and E. H. and others were defendants, judgment was rendered and entered on , 19 , granting a new trial and reversing a judgment dismissing the plaintiff's complaint, which had been rendered and entered on , 19 . II. The said E. H. feeling aggrieved thereby, on or about , 19 , duly appealed to the Court of Appeals from the order and judgment of reversal and gave a stipulation for judg- ment absolute in favor of the plaintiff in case the Court of Ap- peals affirmed the order and judgment of reversal. III. That thereafter the Court of Appeals duly rendered a judgment of affirmance of the order and judgment and ordered judgment absolute in favor of the plaintiff with costs, and the remittitur was duly filed in the clerk's office of this court and of the county of , and an order was duly made and entered making the judgment of the Court of Appeals the judgment of this court, and costs were duly taxed in favor of the plaintiff on the appeal at the sum of $ , and final judgment for said costs and for afliirmance of said judgment and for judgment absolute was duly entered and filed in said clerk's office on or about , 19 . IV. That on or about , 19 , the defendants herein executed and delivered and caused to be filed in said clerk's office an undertaking on appeal to the Court of Appeals in said action already referred to wherein and whereby the de- fendants, pursuant to statute in such case made and provided, jointly and severally undertook that E. H., the appellant to the Court of Appeals, would pay all costs which the Court of Appeals would award against her on said appeal, not exceeding $ ^ From Scheidt v. Epstein, 54 App. Div. 133; 66 Supp. 414; aff'd 170 N. Y. 583, 254 Bradbury's Forms of Pleading Official Bonds and Undertakings V. That no part of said sum of $ has been paid to the plaintiff and the same remains wholly unpaid. Wherefore [demand for money judgment]. Form No. 230 Bond to Prevent Waste Pending Appeal in Foreclosure ' I. The plaintiff complains of the defendants above named, and says that W. P. V. R., on the day of , 19 , recovered a judgment in the Supreme Court against W. W., for the recovery of the possession of acres of land in , county; that the defendants herein, for the purpose of staying proceedings under said judgment, pending an appeal to the general term of the Supreme Court, executed on the day of , 19 , a certain undertaking, a copy of which is hereto annexed, as a part of this complaint, and marked Exhibit "A." II. That subsequently, and long before the commencement of this action, the said judgment referred to in said undertaking was affirmed by the general term of this court. That the said W. W., named in said undertaking, was, at the date thereof and for a long time thereafter, in possession of the said property mentioned in said undertaking, and did during his said possession of the said property, notwithstanding said undertaking, commit great waste thereon to the value and extent of $ ; that is, by cutting and carrying off from said property a large amount of valuable timber, and converting the same to his own use, which timber was of the value of $ III. That the said W. W. used and occupied the said property from the time of the said appeal to the delivery of the possession thereof, and that said use and occupation of said property from the time of the appeal referred to in said undertaking, was rea- sonably worth the sum of $ IV. That the plaintiff is the assignee of the judgment referred to in said undertaking, and the owner of the same. Wherefore [demand for money jvdgment]. 1 From Church v. Simmons, 83 N. Y. 261. Complaints 255 Official Bonds and Undertakings Form No. 231 Undertaking on Appeal From Order i I. That at all the time hereinafter mentioned local Union No. 471 of the United Brotherhood of C. and J. of America was, and now is, an unincorporated association consisting of more than seven persons and having a constitution and by-laws, and a president, vice president, secretary and treasurer and that plain- tiff, E. P. M., was, at all the times hereinafter mentioned, the president of said association. II. That the defendant is a domestic corporation organized and existing under and by virtue of the laws of the State of New York, and engaged in the business among other things of furnish- ing bonds and undertakings. III. That a judgment was recovered by default against the above-named plaintiff and in favor of one C. J., in the municipal court of the city of , borough of , dis- trict, on the day of , 19 , for the sum of $ , damages and costs, and that a transcript of said judg- ment was filed and said judgment docketed in the office of the clerk of county on the day of , 19 , and an execution upon said judgment was issued out of this court to the sheriff of county on the day of ,19 . IV. That on the day of , 19 , the said sheriff of county levied on the funds of the plaintiff association in the Bank, in the borough of , county of , city and State of , for the amount of $ and paid the same, less his fees to G. G., Esq., the attorney for the said C. J. V. That on the day of , 19 , an order was made by this court and duly entered ordering and directing the said C. J. or her attorney, G. G., Esq., to make restitution of the ^ From Mossein v. Empire State Surety Co., 117 App. Div. 820; 102 Supp. 1013, 256 Beadbury's Forms of Pleading Official Bonds and Undertakings said sum of $ to the plaintiff herein, by depositing the said sum with the Bank, to the credit of the plaintiff association within five days after the service of a copy of the said order on the said C. J. and on her attorney. VI. That a copy of said order, duly certified by the clerk of county, in whose office the said order had been duly entered, was served on the said C. J., on the day of , 19 , and that on said day of , 19 , a copy of said order with notice of entry of same was duly served on G. G., Esq., the attorney for the said C. J. VII. That on the day of , 19 , the said C. J. appealed from the said order of the Supreme Court to the Appellate Division, Second Judicial Department, and that on such appeal the defendant executed an undertaking, a copy of which is hereto annexed and made a part of this complaint, by which it "undertook that the said appellant would pay all costs and damages which might be awarded against the appellant on said appeal, not exceeding $ , and also undertook that, if the order so appealed from, or any part thereof, was affirmed or the appeal dismissed, the said appellant would pay the sum directed to be paid by the said order, or the part thereof as to which saiid order should be affirmed. VIII. That afterwards and on the day of , 19 , the order mentioned and referred to in the said undertak- ing and in this complaint was wholly affirmed by the said Appel- late Division of the Supreme Court, and that on or about the day of ,19 , an order of the said Appellate Division, affirming the said order of , 19 , was duly filed with the clerk of county, and a copy of same with notice of entry thereof was served on G. G., Esq., the attorney for the said C. J., and that on the day of > 19 , a duly certified copy of said Appellate Division order was served on the said C. J. IX. That the plaintiff, relying upon said undertaking, did not, pending said appeal, issue any process or in any way proceed under said order made by Mr. Justice on the day Complaints 257 Official Bonds and Undertakings of J 19 , and wholly refrained from taking any steps to enforce the same. X. That more than five days have elapsed since the service of copies of the order of the said Appellate Division of the Supreme Court on the said C. J., and on her attorney, G. G., Esq., and that the said order of the Supreme Court, entered on the day of ) 19 , has not been complied with. XI. That no stay of said order of the Appellate Division of this court has been granted and no appeal therefrom has been taken, and that the said order is in full force and effect. XII. That more than ten days before the commencement of this action and on or about the day of , 19 , the plaintiff caused to be served upon the defendant a copy of the said order of the Appellate Division of this court affirming the said order of , 19 , with a written note of the entry of said order of the said Appellate Division, but that the defend- ant has not paid to the plaintiff association nor paid to the said Bank, to the credit of this plaintiff association, the sum directed to be paid by the said order, nor any part thereof, but has refused to do so, and the defendant is justly indebted to the plaintiff in the sum of $ , with interest from the day of ' , 19 , together with the sum of $ dis- bursements, for which amount together with the costs in this action the plaintiff demands judgment against the defendant. Form No. 232 Undertaking on Appeal From Order to Court of Appeals ^ I. That on or about the day of , 19 , an order of the Appellate Division of the Supreme Court, First Department, was entered on the motion of plaintiff above named, in the office of the clerk of the county of in a certain special proceeding at said time pending in the Supreme Court of the State of , county, entitled "In the matter of the application of the Board of Street Opening, ^ From Baxter v. I>ancaster, 58 App. Div. 380; 68 Supp. 1092. Vol. 1-17 258 Bradbury's Forms of Pleading Official Bonds and Undertakings etc., relative to acquiring title to avenue from street and avenue to avenue, in the city of ," affirming an order theretofore made in said proceed- ing at a special term of the Supreme Court bearing date the day of , 19 , and filed and entered in the office of the clerk of the county of on the day of , 19 . II. That on or about the day of , 19 , one B. S. appealed to the Court of Appeals from said order of the Appellate Division entered on , as aforesaid. III. That upon said appeal the defendants herein made and filed with the clerk of the county of , their written under- taking pursuant to sec. 1326 of the Code of Civil Procedure, of which undertaking. Exhibit "A" hereto annexed is a true copy, and plaintiff makes part hereof as if here set forth at length the said Exhibit "A." IV. That by an order of the Court of Appeals duly made on or about the day of , 19 , the said order appealed from was affirmed with costs, and the sum of $ was on or about the day of , 19 , duly awarded as costs and disbursements on said appeal to the Court of Appeals, in favor of the above-named plaintiff against the appellant on said appeal, B. S., and that no part of said sum has been paid. Wherefore [prayer for money judgment]. Form No. 233 Undertaking on Appeal to the Court of Appeals From Order Granting New Trial, Appellant Stipulating for Judgment Absolute in Case of Affirmance ^ I. That the defendant the American Surety Company of was, at the times hereinafter mentioned and now is, a domestic corporation organized and existing under and by virtue of the laws of the State of II. That heretofore and on or about the day of , 19 . judgment was rendered in the Supreme Court of the ' I'Yom Bennett v. American Surety Co., 73 App. Div. 468; 77 Supp. 207. Complaints 259 Official Bonds and Undertakings State of , in and for the county of , in an action therein pending wherein one G. G. was plaintiff, -and J. G. B., the plaintiff above named, was defendant, in favor of the said G. G. and against the said J. G. B. for the sum of $ , and which said judgment was docketed in the office of the clerk of the said county of on the day of , 19 , and that on or about the said day of , 19 , an order was made and entered in the said action and filed in the office of the said clerk of the county of , denying the motion of the said J. G. B. for a new trial of the said action and to set aside the verdict in said action rendered. III. That thereafter the plaintiff herein duly appealed from the said judgment and from the said order of the Appellate Divi- sion of the Supreme Court of the State of , in and for the Second Judicial Department, and such proceedings were thereupon duly had and taken on the said appeal; that thereafter and on or about the day of , 19 , an order was duly made and entered by the said Appellate Division, wherein and whereby it was ordered and adjudged that the said judgment and order so appealed from be and the same were thereby reversed and a new trial granted, costs to abide the event, and that thereafter and on or about the day of , 19 , an order was duly made and entered therein by the said Appellate Division, resettling and amending the said order of the said day of , 19 , by ordering and adjudging that the said judgment and order so appealed from were reversed and a new trial granted for errors of law only. IV. That thereafter and on or about the day of , 19 , the said G. G. appealed to the Court of Appeals from the said order of the day of , 19 , as amended by the said order of the day of , 19 , and said G. G., in and by his notice of appeal, stipulated that if the said order should be affirmed judgment absolute should be rendered against him. V. That upon the said appeal to the Court of Appeals, the defendant herein duly made and filed with the clerk of the.Su- 260 Bradbury's Forms of Pleading Official Bonds and Undertakings preme Court, in and for the said county of , its written undertaking in and by which it undertook, pursuant to the statute in such case made and provided, that the said G. G. would pay all costs and damages which might be awarded against him on the said appeal, not exceeding $ , as will more fully appear by a copy of said undertaking, which is hereunto annexed, jnarkcd Schedule "A," and thus made a part of this complaint. VI. That by an order of the said Court of Appeals, duly made on or about the day of ; 19 , the said order of the said Appellate Division so appealed from as aforesaid to that court, was affirmed and judgment absolute was ordered for the plaintiff herein on the said stipulation, with costs, and that thereafter an order was duly made and entered in the said Supreme Court, dated at special term on the day of , 19 , which order was thereafter and on the day of , 19 , duly filed in the office of the clerk of the said county of , in and by which said order it was ordered that the said judgment of the Court of Appeals be and the same was thereby made the judgment of the said Supreme Court, and that the said order so appealed from as aforesaid to the Court of Appeals be and the same was thereby affirmed, and that judg- ment absolute be and the same was thereby ordered for the plain- tiff herein against G. G., on the said stipulation, with costs to the plaintiff herein in all the courts, to be adjusted by the clerk of the county of VII. That thereafter and on the day of , 19 , judgment absolute was duly rendered in that action against said G. G. in favor of J. G. B., the said plaintiff herein, and it was in and by the said last-mentioned judgment adjudgf^d that the said J. G. B., the plaintiff herein, recover of the said G. G. the sum of $ , the amount of the costs so awarded and as adjusted by the clerk of the county of on said appeal, and that hereunto annexed, marked Schedule "B," is a copy of the said last-mentioned judgment, and thus made a part of this complaint, and that afterwards and on or about the day Complaints 261 Official Bonds and Undertakings of , 19 , an execution was duly issued upon the said judgment against the property of the said G. G. to the sheriff of the county of , in which county the said G. G. then resided, and which said execution has been returned wholly unsatisfied. VIII. That thereafter and on or about the day of ,19 , a notice and demand for payment of the said amount of the said judgment, namely, the aforesaid sum of $ , with interest thereon from the said day of , 19 , was duly served upon the said defendant, a copy of which said notice is hereunto annexed, marked Schedule "C," and thus made part of this complaint, but that the said defendant has neglected to pay the said sum or any part thereof. WHEr;r:roRE [demand for money judgment]. Form No. 234 Undertaking on Appeal to Intermediate Appellate Court; Reversal of Judgment Which is in Turn Reversed by the Court of Appeals ^ I. That the defendant is, and at the time of the events herein- after mentioned was, a corporation duly incorporated by and existing under the laws of the State of , and authorized by said laws to execute the undertaking hereinafter mentioned. II. That on or about the day of , 19 , this plaintiff recovered a judgment in the Supreme Court in this county against one C. F., for the sum of $ , damages and costs; the judgment roll whereupon was filed upon that day in the office of the county clerk of said county. III. That the said C. F. appealed from said judgment to the general term of the Supreme Court;, and after repeatedly offering undertakings to stay execution against him, pending such appeal, the sureties upon which were successively rejected by the court, offered the defendant as surety; and upon such appeal the said ^ From Fog Long v. American Surety Co., 146 N. Y. 251. The reversal in the Court of Appeals must be on the merits, however, to charge the sureties. Id. 262 Bradbury's Forms of Pleading Official Bonds and Undertakings defendant executed an undertaking, as required by law, by which it undertook that the said C. F. should pay all costs and damages which might be awarded against him on the said appeal, not exceeding $ , and also undertook that if the judgment so appealed from, or any part thereof, should be affirmed, or the appeal be dismissed, the said C. F. would pay the sum directed to be paid by the judgment, or the part thereof as to which the judgment should be affirmed; and the defendant, the A. S. Co. aforesaid, did thereupon deliver the said undertaking, and, by the execution and delivery of the said undertaking, the execution which the plaintiff would otherwise have issued, and upon which he could have obtained, as this plaintiff alleges, upon his infor- mation and belief, satisfaction of the said judgment was stayed and remained stayed. IV. And the plaintiff further alleges that thereafter an order was given, and a judgment entered, by the said general term upon the said appeal, reversing the first-named judgment obtained by the plaintiff against the said C. F. and ordering a new trial; and that from the said judgment of said general term this plaintiff did thereupon duly appeal unto the Court of Appeals; and that such proceedings were afterward had as that the said Court of Appeals did thereafter, on or about the day of , 19 , make an order and render a judgment reversing the said judgment of the general term, and affirming absolutely the first- named judgment, to wit: affirming the judgment in favor of this plaintiff against the said C. F., as above mentioned; and that, in pursuance thereof, judgment to the same effect, in conformity with the judgment aforesaid of the Court of Appeals, was, on the day of ) 19 , duly entered by the Supreme Court aforesaid. V. That more than ten da3's before the beginning of this ac- tion — that is to say, on the day of , 19 ,— this plaintiff caused to be served upon said C. F., attorneys, viz.: Messrs. H. & H., a written notice of the entry of said judgment of the Supreme Court, affirming in conformity with the aforesaid judgment of the Court of Appeals, the first-named judgment in Complaints 263 Official Bonds and Undertakings favor of this plaintiff against the said C. F., from which the said C. F. had appealed. VI. That, although thereafter hitherto requested, the said defendant has not paid the plaintiff the sum directed to be paid by the said judgment, nor any part thereof, but it is justly in- debted to the plaintiff therefor in the sum of $ , besides interest thereon from the day of , 19 , for which amount, together with the costs of this action, the plaintiff demands judgment against the defendant. Form No. 235 Successive Bonds by Same Surety on Difierent Appeals * In an action wherein S. D. was plaintiff, and H. E. D., im- pleaded with S. D., was defendant, the plaintiff recovered a judgment against the defendant which was in the nature of a judgment of foreclosure. The amount found due the plaintiff from the defendant upon April 9, 1883, was $8,870.08, together with the costs, which were taxed upon April 26, 1883, at §446.11. This judgment required the sale of a certain piece of property situated in the town of Montour, Schuyler county, and the application of the proceeds of said sale, after paying the ex- penses of the sale and the taxes and liens thereon, to the pay- ment of the sums found due the plaintiff, as aforesaid. For the deficiency the defendant was made liable by the judgment. The defendant, H. E. D., appealed to the general term of the Supreme Court from said judgment, and upon said appeal an undertaking was given, in the usual form upon such an appeal, signed by H. E. D., M. B. and B. S. S., upon the day of , 19 , by which undertaking the said S. and said B. jointly and severally undertook and agreed with the plaintiff ^ From Chester v. Broderick, 131 N. Y. 549. The above is a claim made against a decedent's estate which was referred by consent under the statute. The same sureties gave a bond of $7,000 on appeal to the general term, and one of $9,000 on appeal to the Court of Appeals. They paid the latter bond in full, but it was insufficient to satisfy the judgment with interest and the sureties were held liable on the first bond for the deficiency. 264 Bradbury's Forms of Pleading Official Bonds and Undertakings in said action, that if said judgment or decree appealed from was affirmed, that the said appellant H. E. D. would pay any deficiency ^^hich might occur upon the sale in discharging the sum to pay which the sale was directed, with interest, and all expenses chargeable upon the sale, and not exceeding the sum of $7,000. That the said undertaking was given pursuant to the statute for the purpose of staying the enforcement by the plaintiff of the judgment, which effect it by law had. That the said judg- ment was affirmed upon the appeal, with costs amounting upon February 9, 1885, to $121.58. That upon February 13, 1885, a copy of the order and judgment of affirmance and notice of entry were duly served upon defendant's attorney therein. That thereupon an appeal was taken to the Court of Appeals, wherein the judgment was affirmed, and upon January 25, 1888, the costs were taxed upon said appeal at $139.28. That upon January 27, 1888, a copy of said judgment, with notice of entry, was duly served upon Hon. J. McGuire, defendant's attorney therein. That upon December 28, 1888, the property was sold upon , the said judgment for the sum of $976. That of said amount received by the referee, the sum of $69.50 was paid for tax liens on said premises, pursuant to said judgment, and the sum of $97.50 was retained, being for the fees and disbursements upon said sale. The balance of said sum, to wit, $809, was paid to the plaintiff's attorney and was credited upon the said claims. That upon the appeal to the Court of Appeals, a bond was given to stay execution thereon in the penalty of $9,000. That the full penalty of said bond has been paid by the sureties therein, to wit, upon October 22, 1888, the sum of $25,00 was paid, and upon November 9, 1888, the sum of $6,862.27 was paid. That no further sums have been paid upon the said in- debtedness. That the referee, after the said sale, duly made his report of sale, which was filed in Schuyler county clerk's office upon January 21, 1889. That upon January 23, 1889, a true copy of said report of sale was duly served upon Hon. J. Complaints 265 Official Bonds and Undertakings McGuire, by leaving the same with Mr. E. C. Van Duzer at 218 E. Water street, the office address of the said Hon. J. Mc- Guire, the defendant's attorney in said action, as designated by him upon the papers heretofore served in the case, the said McGuire being absent from the said office. Summary: Amt. of original judgt $8,870.08 Interest from Apr. 9, 1883 Costs in original judgt 446.11 Interest from Apr. 26, 1883 Costs in general term 121.58 Interest from Feb. 9, 1885 Costs in Court of Appeals 139.28 Interest from Jan. 25, 1888 Against this should be credited: $2,500 as of 22d Oct., 1888. $6,862.27 as of 9th Nov., 1888. $809.00 as of 28th Dec, 1888. Leaving amount due $2,586.90 With interest from 28th Dec, 1888 B., G. & G., Atty's for Claimants, [Post Office Address.] Form No. 236 Sherifi's Bond (Code Civ. Pro. § 1881.) I. The complaint of the above-named plaintiff respectfully shows, that heretofore and on or about the day of 19 , the defendants, by their certain writing ob- ligatory, sealed with their seals and dated on the day last afore^ 266 Bradbury's Forms of Pleading Official Bonds and Undertakings said, acknowledged themselves to be held and firmly bound unto the people of the State of New York, in the sum of dollars, for which payment, well and truly to be made, the said defendants bound themselves, their heirs, executors and ad- ministrators firmly by the said writing obligatory. II. And the said plaintiff further shows, that the said writing obligatory was and is subject to a condition thereunder written, whereby after reciting' that "whereas, the above bounden, A. B., hath been elected to the office of sheriff of the county of , at a [general] election held therein on the day of [Novem- ber], 19 ," it is provided, that if the said A. B. should well and faithfully in all things perform and execute the office of sheriff of the said county of during his continuance in said office, by virtue of the said election, without fraud, deceit or oppression, then the said obligation to be void, or else to remain in full force. III. And the said plaintiff, for assigning a breach in the said writing obligatory, says, that heretofore, on the day of , 19 , the said plaintiff recovered a judgment in the court in his favor against C. D. for the sum of dollars, the judgment roll upon which judgment was filed, and said judgment was duly docketed in the said county of , on the day last aforesaid. IV. That an execution against the property of the said C. D. was duly issued upon said judgment, on the day of , 19 , and delivered to the said A. B. as such sheriff, by which he was directed to satisfy the said judgment and to collect the said sum of dollars, with interest thereupon from the day of , 19 , then actually due there- upon, out of the personal property of the said CD., and if sufficient personal property could not 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 thereafter; and to return said execution to the clerk of the county of within sixty days after the receipt thereof. Complaints 267 Official Bonds and Undertakings V. That by virtue of said execution the said A. B., who was, at the time of such dehvery thereof to him and from thence, until and at and after the day of the return thereof, sheriff of the said county of afterwards and before the said return day of said writ, to wit: on the day of , 19 , and within the said county of seized and took divers goods and chattels of said C. D. of great value, to wit: of the value of the moneys so directed to be levied and collected as aforesaid, and then and there levied the same thereout; but did not, nor has he paid the said amount of dollars so collected by him, nor any part thereof, to the said plaintiff [nor has he returned said writ as he was thereby commanded and required to do]. VI. [That on the day of , 19 , the plaintiff duly demanded of the said A. B. the amount so collected by him as such sheriff, but that the said A. B. did not pay the said amount (or allege that a demand cannot be made, with due dili- gence), and that satisfaction of the same or of any part thereof has not been received.'] VII. That on the day of , 19 , the plaintiff recovered a judgment in the court against the said A. B., as such sheriff, for the sum of dollars, for the damages which the said plaintiff had sustained by reason of the neglect of the said defendant, A. B., as such sheriff of the county of as aforesaid, in not paying over and rendering unto the said plaintiff the money so as aforesaid directed to be levied and collected as aforesaid by the said writ, and which had been levied and collected by him, the said A. B., as such sheriff as aforesaid [as for not returning the said writ according to the exigency thereof, as he was by the said writ commanded as aforesaid], and also for the sum of dollars for the costs and charges of the said plaintiff in the said last-mentioned suit, whereby the said plaintiff sustained further damages to the amount of the said last-mentioned costs and charges [or any ' It is not necessary to allege a demand, if a judgment has been recov- ered against the sheriff, or where the default does not consist in the non- payment of money. Code Civ. Pro. § 1891. 268 Bradbury's Forms of Pleading Official Bonds and Undertakings other cause of action may be substituted for that above set forth, as provided by sec. 1880, Code Civ. Pro.]. That leave has been granted to the plaintiff by an order of the Court, duly made at a [special] term thereof, held at, etc., on, etc., and entered in county clerk's office, on the day of > 19 , to maintain an action upon the said official bond of said A. B., as such sheriff, for the default of the said A. B. as aforesaid. Wherefore the plaintiff demands judgment against the said defendants for dollars and cents, with costs of this action. Form No. 237 Undertakins Given for Appearance of Person in Contempt (Code Civ. Pro. § 2289.) The complaint of the above-named plaintiff respectfully shows, that heretofore and on or about the day of , 19 , a warrant of attachment was issued out of the Court [or by A. 0., judge, etc.] in a proceeding taken pursuant to title third of chapter seventeenth of the Code of Civil Pro- cedure against C. D. for a contempt of court, directed to the sheriff of county, commanding him, etc. [state command of vxrit]. That by an indorsement upon said warrant the said court [etc.] authorized the giving of an undertaking by said C. *D. for his appearance to answer in the sum of dollars. That said CD. was arrested by the said sheriff pursuant to said warrant, and that thereupon the defendants executed an undertaking, pursuant to statute, a copy of which is hereto annexed, marked "A," and that said C. D. deUvered the said undertaking to said sheriff before tlio return day of said warrant, and thereupon the said sheriff discharged said C. D. from said arrest. And this plaintiff further says, that the said C. D. did not appear at the time when, and the place where, the said warrant was returnable, as aforesaid, to wit: at, etc., on, etc., and then Complaints 269 Official Bonds and Undertakings and there abide the direction of the said court [etc.], and that thereupon an order was duly made by said court [etc.], directing the said undertalcing to be prosecuted by and in the name of the plaintiff. And plaintiff further shows, that he has been damaged by the misconduct of the defendant to the extent of dollars, and that he has been put to costs and expenses in the proceed- ing in which said warrant was issued, amounting to the sum of dollars. Wherefore plaintiff prays judgment against the defendants for the sum of dollars, with the costs of this action. Form No. 238 Costs of Certiorari Against City Officers ^ I. That they are and were at all the times, hereinafter men- tioned, a municipal corporation, organized and existing under and by virtue of their ancient charters and the laws of the State of II. That at all the times hereinafter mentioned H. J. G. was mayor of the city of , W. H. C. was counsel to the corpo- ration of said city, and T. F. G. was the Commissioner of Public Works of said city, and that all of said persons were paid a salary for their services from the city treasury, and entered upon the discharge of their office since , 19 . That by sec. 66 of chap. 410 of the Laws of 1882, known as the City Consolidation Act, it is provided "that the mayor, corporation counsel and commissioner of public works shall appoint a proper person, together with such assistants as may be required to supervise the preparation and publication of the 'City Record,' and also that they shall fix the rates of compensation of said supervisor and his assistants." That on or about the day of , 19 , one J. C. H. was 1 From Mayor, etc., of N. Y. v. Bannan, 42 App. Div. 191; 58 Supp. 1031; in which this complaint was sustained on demurrer interposed on the ground of alleged defect of parties plaintiff and that the complaint did not state a cause of action. 270 Bradbury's Forms op Pleading Official Bonds and Undertakings duly appointed to the position of clerk of the "City Record" after having passed the examination pursuant to the rules and regulations governing the civil service. That subsequently, and on or about the day of , 19 , after charges had been preferred against said J. C. H., the said mayor, coun- sel to the corporation and Commissioner of Public Works passed a resolution discharging him from said position. III. That on or about the day of , 19 , a writ of certiorari was sued out of the Supreme Court on the ap- plication of said J. C. H. to review the determination of said officials composing said board of city record, and such proceed- ings were thereafter had in said proceeding, that on or about the day of > 19 , an order was made by the general term of the Supreme Court dismissing said writ of certiorari. IV. That on or about the day of , 19 , an appeal from said order of the general term was taken by said J. C. H. to the Court of Appeals of the State of , and that on such appeal the defendants herein executed an under- taking, as required by law, by which they jointly and severally undertook that the said appellant would pay all costs and damages, which might be awarded against him if such order should be affirmed or the said appeal be dismissed, together with all costs and damages which might be awarded against the appellant therein, not exceeding $ V. That subsequently said order of the general term so ap- pealed from as aforesaid, was affirmed with costs by the Court of Appeals, and on or about the day of , 19 , an order, on the remittitur sent down from the Court of Appeals and filed in the Supreme Court, was entered in the office of the clerk of the rity and county of whereby the judgment of the Court of Appeals in affirming said order appealed from, was made the order and judgment of the Supreme Court. VI. On or about the day of , 19 , judgment was duly entered in the office of the clerk of the city and county of against said J. C. H. and in favor of the respondents named in said writ of certiorari for the costs of said appeal, Complaints 271 Official Bonds and Undertakings which had been duly taxed and adjusted by the clerk of the city and county of at the sum of $ VII. That more than ten days prior to the commencement of this action, to wit: on or about the day of , 19 , a copy of the order on the remittitur from the Court of Appeals, affirming the order appealed from, with written notice of the entry of the same, was duly served upon J.- J., Esq., the attorney of the relator J. C. H., and on the day of , 19 , more than ten days prior to the commencement of this action, there was served upon said attorney for said relator a written notice of the entry of the said judgment affirming the said order so appealed from as aforesaid. VIII. That by sec. 56 of the City Consolidation Act it is provided as follows: "No officer or person who is paid a salary for his services from the city treasury and who entered upon his office, since May 28, 1880, or shall hereafter enter upon his office, shall receive to or for his own use any fees, costs, allowances, perquisites of office, commissions, percentage or moneys paid to him in his official capacity; but all fees, costs, allowances, perquisites, commissions, percentages and moneys so paid or received by any officer or person shall be the property of the city and shall be paid by him into the city treasury." And these plaintiffs allege that by virtue of this statute, the title to the costs awarded to H. J. G., mayor of the city of , W. H. C, counsel to the corporation, and T. F. G., commissioner of public works, in the certiorari proceeding hereinbefore re- ferred to, became vested in and are the property of these plaintiffs. IX. That no part of said costs have been paid, and the whole amount thereof is now justly due and owing to these plaintiffs. Wherefore [demand for Money judgment]. Form No. 239 Undertaking on Arrest ^ I. The plaintiff for a complaint in this action, shows the court 1 From Krause v. Rutherford, 178 N. Y. 584; aff'g 81 App. Div 341; 81 Supp. 465; aff'g 37 Misc. 382; 75 Supp. 773. 272 Bradbury's Forms of Pleading Official Bonds and Undertakings that he is a citizen of the State of and of the county of and that he resides in the town of in said county. That on or about the day of , 19 , the de- fendant, J. R., commenced an action against this plaintiff and others in the Supreme Court of the State of for an al- leged injury to personal property, and on that day» , 19 , procured an order of arrest from the county judge of county, against this plaintiff and directed to the sheriff of county, commanding him to arrest this plaintiff and hold him to bail in the sum of $ ; that on or about the day of , 19 , this plaintiff was arrested by the sheriff of county and placed in the county jail of county and there remained until on or about the day of , 19 , when he was discharged by the county judge of said county. And the plaintiff for a further statement and as a completion of the aforesaid statement and cause of action shows the court that the defendant, J. R., in order to obtain said order of arrest, executed and delivered to the court and this plaintiff a bond or undertaking in the words and figures following, to wit: [Here is set forth in full the undertaking on arrest.] [Signed.] And that the defendants, S. P. S. and R. S. W., signed said bond as security for said R., which undertaking provided that in case the court held that plaintiff in this action and defendant in the other, that if it was decided that this defendant, J. R., was not entitled to the order of arrest that the defendants in this action will pay all costs and damages and all damages which this plaintiff may sustain by reason of the arrest. And plaintiff shows the court who issued said order of arrest, vacated said order of arrest on the day of , 19 , and held and decided that this defendant, R., was not en- titled to said order of arrest and vacated the same. II. And plaintiff further shows the court that he was wrong- fully and unlawfully imprisoned and incarcerated under said Complaints 273 Official Bonds and Undertakings order of arrest in close confinement in the jail of county from , 19 , until ,19 , a period of about months; that by reason of said imprisonment and close confinement, he became sick and lost his health by reason thereof, and suffered in body and mind and injury to his character and reputation to the amount of $ , be- sides cost of this action. Wherefore [demand for money judgment]. Form No. 240 Undertaking on Attachment ^ I. That heretofore one J. E. K. commenced an action in the Supreme Court, county, against one L. B., to recover the sum of $ upon a written contract; that, in said action, said K. procured to be granted, upon his application, a warrant of attachment against the property of said L. B., a nonresident of this State; and that a levy \Yas duly made by the sheriff of the county of under said attachment, upon certain personal property of said L. B. in said county. II. That, in order to procure such ^yarrant, the said K. caused to be filed on or about the day of , 19 , an undertaking, executed and delivered by the above-named de- fendant, whereby said defendant undertook "that if the de- fendant [said L. B.] recover judgment in this [said] action, or if the warrant of attachment is vacated, the plaintiff [J. E. K.] will pay all costs which may be awarded to the [said] defendant, and all damages which the [said] defendant may sustain by rea- son of the said attachment, not exceeding the sum of $ ." III. That the said action of J. E. K. against L. B. came duly on for trial at a Trial Term, Part 2, of this court, and, on or about the of , 19 , the said L. B., defendant therein, recovered judgment in said action dismissing the com- plaint and for $ , costs and disbursements; and that the said K. duly paid the said costs. 1 From Tyng v. American Surety Co., 174 N. Y. 166. Vol. 1-18 27-4 Bradbury's Forms of Pleading Official Bonds and Undertakings IV. That the said L. B. sustained damage by reason of said attachment in more than the said sum of $ , in that she was compelled to employ counsel in said attachment suit, whose services therein were reasonably worth the sum of $ ; that the said sum of $ has been duly demanded from the aforesaid J. E. K. and also from the above-named defendant before the commencement of this action, and that payment of this sum has been refused, and no part of said $ has been paid. V. That, on or about the day of , 19 , and before the commencement of this action, the said L. B., for a valuable consideration, assigned all her rights under the afore- said undertaking, and her right to receive and recover the said sum of $ to this plaintiff, who was her counsel in the aforesaid action. Wherefore [demand for money judgment]. Form No. 241 Action on Undertaking on Injunction ^ I. That on the day of ; 19 , in aii action in which this plaintiff was the defendant and the defendant herein, A. B., was the plaintiff, an injunction order was made and issued out of the New York Supreme Court, and duly served upon this plaintiff, by virtue of which this plaintiff was re- strained and enjoined from [state matters prohibited}. II. That upon the issue of the said injunction in said action an undertaking was made by the said A. B., as principal, and the defendants, C. D. and E. F., as sureties, in which said C. D. and E. F. jointly and severally agreed as by the said undertak- ing [a copy of which is hereunto annexed marked Exhibit "A"] will more fully appear. III. That the said action so commenced by the said A. B. against this plaintiff, finally resulted in a judgment therein, that the said A. B. was not entitled to said injunction. And said final judgment was duly filed and entered in the office 1 See Code Civ. Pro. § 625. Complaints 275 Official Bonds and Undertakings of the clerk of the county of , on the day of , 19 ; and a copy of said judgment is hereunto annexed marked Exhibit "B" and made a pqrt hereof. IV. That thereafter and on the day of , 19 , a reference was duly ordered ^ to take proof of the damages sustained by this plaintiff by reason of said injunction and such proceedings were duly had thereon, that thereafter said referee duly reported that the plaintiff's damages, by reason of said injunction, amounted to the sum of $ ; said report was upon motion duly confirmed by an order of the Supreme Court, duly filed and entered in the office of the clerk in the county of on the day of , 19 , and now re- mains in full force and effect. V. That the plaintiff has duly demanded of said defendants the said sum of $ , and the defendants have failed and refused to pay the same, and no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 242 Undertaking on Replevin^ I. On information and belief, that heretofore, about , 19 , in an action to recover a chattel then duly brought in the city court of by A. M., plaintiff, against this plaintiff as defendant, the defendants in this action, pursuant to statute, executed and caused to be delivered to the sheriff of the county of an undertaking with a requisition to replevin a chattel, to recover which said action was brought, a copy of which undertaking is hereto annexed marked "A." Thereupon the sheriff approved said undertaking, and by virtue thereof and of the requisition in said action took the said chattel from this plaintiff and said chattel has never been returned to this plaintiff. ^ A reference to assess damages caused by an injunction should not be ordered until it is determined by final judgment in the action that the plain- tiff was not entitled to an injunction. Brown v. Utopia Land Co., No. 1, 118 App. Div. 190; 103 Supp. 53. ^ From Christiansen v, Mendham, 45 App. Div. 654; 95 Supp. 326. 276 Bradbury's Forms of Pleading Official Bonds and Undertakings II. That such proceedings were afterwards had in such action, that on or about , 19 , this plaintiff, the defendant in such action, duly recovered final judgment in such action against the plaintiff therein, a copy of which judgment is hereto annexed marked "B." III. That the judgment roll in said action and such final judg- ment were duly filed and docketed in said city court of , on or about , 19 , and a transcript of said judgment ' was duly filed and said judgment was duly docketed in the office of the clerk of the city and county of , on or about the same day. IV. That thereafter, on or about ,19 , an execu- tion upon said judgment was duly issued to the sheriff of the city and county of commanding him to collect the sum of $ costs, awarded by said judgment, out of the real or personal property of the plaintiff in said action and commanding him to deliver possession of the said chattel to the plaintiff herein unless the plaintiff in the action, in the city court of , before the delivery, pays to said sheriff the sum of money awarded to this plaintiff by said judgment, with interest and sheriff's fees; and in case the chattel cannot be found, within this county, then to satisfy that sum out of the property of the plaintiff in said action. V. That the sheriff of the city and county of before the commencement of this action returned said execution wholly unsatisfied and unexecuted, and said judgment remains wholly unsatisfied and unpaid. Wherefore [demand for money judgment]. Form No. 243 Bond Oiven by Defendants, Against Whom Injunction Granted, to Permit Oon inuance of Trespass Pending Appeal in Action ' I. That on , 19 , plaintiff recovered a judgment in the Supreme Court of against L. T., J. A. D. and E. T., Jr., which, among other things, enjoined them from floating or driv- iFrom De Camp v. BuUard, 1^9 N. Y. 450. Complaints 277 Official Bonds and Undertakings ing logs and timber down Safford creek and the north branch of Moose river, as said stream flowed over plaintiff's lands in towns 7 and 1, of B.'s tract, and that said streams over said lands were plaintiff's private property; and also enjoining de- fendants from flooding said streams over said lands, by means of dams on said streams above said lands, as will inore fully and at large appear in and by said judgment, duly entered in county clerk's office, and said judgment is made a part of this complaint as if here set out at length. II. That the defendants therein appealed from said judg- ment to the Appellate Division of the Supreme Court, and the said appeal was duly heard in the department, and at the term thereof, begun , 19 . Said judg- ment was unanimously affirmed with costs, and a judgment of affirmance was duly entered in county clerk's office on said decision or order , 19 . Said judgment of affirmance is referred to as if here set out at length and is made a part of this complaint. III. That after the entry of said judgment of affirmance, a motion was duly made by the defendants on said judgment, and was duly heard by said Appellate Division, , 19 , to suspend the said injunction for the benefit and advantage of said defendants, and after such hearing an order was made by said court, "that the said judgment [of affirmance] entered upon said remittitur of this court, be and the same is hereby va- cated and set aside and the remittitur of this court in the above- entitled action, now on file in the office of the clerk of county, the same having been filed on or about the day of , 19 , be and the same is hereby recalled, and the decision of this court which was filed ,19 , be and the same is hereby amended so as to provide that the judgment therein, as well as all proceedings upon the judgment appealed from, shall be suspended, until and including the day of , 19 , upon condition that the defendants make, execute and file within days from the entry of this or- der, an undertaking in the sum of $ with two sufficient 278 Bradbury's Forms op Pleading Official Bonds and Undertakings sureties, conditioned to indemnify the plaintiff against any and all loss or damage whatsoever sustained by the plaintiff from this date, to and including the day of , 19 , by reason of suspending said judgment; such undertaking to be approved of as to sufficiency of sureties, by a justice of the Supreme Court," as will more fully appear by said order and the papers upon which the same was made, and said order is made a part of this complaint. Said order was duly entered in county clerk's office , 19 . IV. That to have and obtain the benefit of said order, and to cause the same to be operative, the defendants in said judgment caused to be made, executed and filed on or before the day of , 19 , and to be approved by G. A. H., a justice of the Supreme Court, an undertaking in the sum of $ , signed by the defendants in this action, duly acknowledged and justified by them as required by law and the rules and practice of this court. A copy of which is hereto annexed, marked "A" and made a part of this complaint. V. That the defendants in said judgment, T. and D., thereupon immediately entered upon plaintiff's said premises in said towns 7 and 1, B.'s tract, and drove down Safford creek into the north branch of Moose river, and down said north branch as far as plaintiff's premises extended, a distance of from 25 to 30 miles, 2,500,000 feet of saw logs. That the use of said streams for such purpose was worth the sum of cents per 1,000 feet, or the sum of $ That such driving continued to and until , 19 . That plaintiff was obliged to and did employ men, during all the time of such driving, to protect plaintiff's property from additional injury, to take care of his rights, and to ascertain and report the acts of said T. and D. and their servants and agents in and about said driving, and such employment was at a cost of $ to plaintiff. That said sum of $ is the damages and loss sustained by plaintiff and which the defendants in this action have agreed to pay. That from until , 19 , plaintiff was totally Complaints 279 Official Bonds and Undertakings deprived of his said property, and said T. and D. had the ex- clusive use of the same. That said T. and D., defendants in said judgment, have not paid plaintiff an3rthing on account of said loss or damages. VI. That on , 19 , plaintiff duly entered again judg- ment of affirmance in county clerk's office of said original judgment. Reference is made to the same as if here set out and said judgment so entered is made a part of this com- plaint. Wherefohe [demand for money judgment]. 280 Bradbury's Forms of Pleading Negligence CHAPTER XIII NEGLIGENCE PAOE I. Steam Railroads 283 II. Street Railroads 306 III. Vessels 328 IV. Municipal Corporations 331 V. Master and Servant 363 VI. Physicians 393 VII. Attorneys 399 VIII. Miscellaneous 405 FORMS NO. PAGE Part I. Steam Railroads 245. Inadequately protected city street crossing 283 246. Person injured at crossing; train moving rapidly without giving warning 285 247. Sudden starting of train which plaintiff had boarded while it was in motion (286 248. Conductor assisting passenger to alight at station suddenly removing support ., 287 249. Defective spark arrester in locomotive; setting fire to woodland and fences 288 250. Defective railroad bridge causing train to fall 289 251. Dangerous condition of highway and crossing caused by construction of drain .*. . . 293 252. Rotten plank on trestle causing injury to employee of railroad by falling through the trestle to the tracks below 296 253. Shunting cars; employee killed; duty to furnish reasonably safe place for employee to work 299 254. Man killed by "kicking" car; insufficient rules 301 Part II. Street Railroads 260. AHghting from street car; sudden starting of car 306 261. Street car hitting fire patrol wagon injuring occupant 308 262. Infant struck by street car 309 263. Passenger about to enter one car struck by another 310 264. Plaintiff hit by car while crossing street 312 265. Bicycle rider hit by street car at crossing, causing death 313 266. Car running at high rate of speed on city street without sounding gong 315 Complaints 281 Negligence NO. PAGE 267. Street car running at rapid rate in thickly settled neighborhood; striking child in street 316 268. Plaintiff in ambulance struck by street car 319 269. Collision between coup6 and a street car 320 270. Collision between a street car and a wagon 321 271. Lineman injured because of rotten trolley pole 323 272. Fireman injured by striking against pole supporting trolley wire .... 324 Part III. Vessels 280. Collision between scow and steam tug 328 281. Injury to plaintiff from a collision between a tow and the abutments to a bridge 329 Paet IV. Municipal Corporations 285. Premature explosion of fireworks on city street 331 286. Projecting manhole cover in street 334 287. Dangerous pit in highway made by defendant; independent con- tractor of municipal corporation 336 288. Obstruction in street; injury to street car conductor 337 289. Dangerous street; steep decUvity at end of street improperly guarded 339 290. Allowing trucks to be left on streets 343 291. Defecti-^e sidewalk; delay in serving notice on municipality excused 345 292. Sidewalk in unsafe condition by reason of building operations 348 293. City held liable for damage caused by flooding due to unsafe condi- tion of water rips 294. Collision between carriage and street cleaning department wagon . . . 353 295. Liability of board of education for falling ceiling in schoolhouse 354 296. Damage to growing crops by flooding of lands by water discharged from the Erie Canal 356 297. Action against State in court of claims; plank dropped from bridge over canal while being repaired 357 Part V. Master and Servant 303. Employers' liability act ■ 360 304. Employee of independent contractor hurt owing to the improper lay- ing of a floor by another contractor on same building 363 305. Acid spilled on plaintiff; defective appliances in factory without knowledge on the part of plaintiff that they were defective 364 306. Employee of safe-moving corporation killed by reason of unsafe tool 366 307. Scalding by steam from exploding boiler 369 308. Emoloyee of defendant killed by escaping steam 272 309. Workman struck by falling object 374 310. Boy required to orerate dangerous machine in violation of contract. 375 311. Person killed by cTynamite used by alleged incompetent fellow servant 377 312. Plaintiff's hand caught in carding machine 379 282 Bradbury's Forms of Pleading Negligence NO. PAGE 313. Improper rope used in iron construction 381 314. Hand injured by being caught in cogs while cleaning carding ma- chine in cotton mill ^ 383 315. Death casued by superintendent carelessly connecting electric wires causing premature blastan tunnel 385 316. Infant injured by dangerous revolving shaft 390 Part VI. Physicians 322. Action against surgeon for malpractice; plaintiff an almshouse pa- tient 393 323. Against surgeons for malpractice 394 324. Against physician for alleged malpractice in treating patient 395 325. Malpractice of dentist; liability of department store; proprietor con- ducting dentistry department 396 Part VII. Attohneys 327. Attorney's advice that money be loaned on property already mort- gaged 399 328. Mistake of title company in drawing deed 401 Part VIII. Miscellaneous 330. Falling from elevator 405 331. Child in street on tricycle, killed by truck 407 332. Child hurt in street by wagon 408 333. Infant hurt in street by coup6 408 334. Driving team on street; injuring infant eleven years old. 410 335. Contact with overcharged electric wire 411 336. Boy playing on elevated railroad stairway hurt by live wire 413 337. Fall of building partially destroyed by fire 414 338. Walls of burned buildings belonging to several defendants falling in street; defendants sued jointly 418 339. Person injured by falling wall 420 340. Pedestrian killed by falling of defective iron column 422 341. Prospective tenant injured while examining unfinished building at landlord's invitation 423 342. Falling sign 425 343. Pedestrian injured owing to defective sidewalk 426 344. Leader discharging water on sidewalk so ice is formed 427 345. Boy hurt by unsafe rail slipping; object attraction to children 429 346. Person killed on toboggan slide, faultily constructed 431 347. Trees destroyed by escaping gas 434 348. PlaintiiT hit by truck being lowered from vessel 436 349. Negligent handling of property by common carrier 437 350. Exploding machinery in pulp mill 438 361, Injury by defective freight elevator also used by passengers 440 Complaints 283 Negligence I. Steam Railroads Form No. 245 Inadequately Protected City Street Crossing ^ Supreme Court, county. Sophia Oldenburg as administratrix of the goods and chattels that were of Charles Oldenburg, deceased. Plaintiff, against The New York Central & Hudson River Eailroad Company, Defendant. The plaintiff complaining of the defendant, alleges : I. That heretofore and during all the times hereinafter men- tioned, the defendant was, has continued to be, and still is a domestic corporation duly created, organized and existing and doing business under and by virtue of the laws of the State of New York and the owner and operator of a certain railroad known as the "N. Railroad," and was during all such time engaged in running locomotive engines and cars over the tracks of the same, and was also the lessee and manager of a certain railroad of the State of New York known as the "W. Railroad" and operated and managed the engines and tenders and rolling stock used in connection therewith. II. That the tracks of said railroad, known as the "N. Rail- road," so owned and operated, and over which locomotive en- gines and cars were being used and run by the defendant, passed through a portion of the city of , New York, and crossed street, a public highway in said city. III. That on or about the day of , 1 - , one C. 0. was lawfully and properly walking on said street in said city of and as said C. 0. reached the place where 1 From Oldenburgh v. N. Y. Central, etc., R. Co., 124 N. Y. 414; in which a judgment for the plaintiff was afSrmed. 284 Bradbury's Forms of Pleading Negligence the tracks of said "N. Railroad" cross said street, the defendant unlawfully, carelessly and negligently by their servants and agents caused a locomotive engine and tender attached thereto, which was being managed and operated by them, to negligently approach and then and there negligently and carelessly, without sufficient warning to pass rapidly in violation of the ordinances of said city of , over the tracks of said railroad, where the same cross street, which locomotive and tender did then and there, and with great force, strike and hurl said O. and threw him down and rolled and dragged him along said track under said locomotive engine and tender, crushing, man- gling and killing him, the said C. 0. IV. These plaintiffs further allege upon information and belief that said accident to and the death of said CO. were caused by the negligent and careless manner in which said en- gine and tender were run, and in which the railroad was at the times hereinbefore mentioned, constructed, equipped, maintained and operated by the defendant, in that safety gates were not properly erected and maintained at said crossing by said defend- ant, and in that. trains of cars were improperly and unlawfully allowed to stand and remain on said street crossing in such a manner as to obstruct the view of the said C. 0. and to prevent him from seeing the approach of the engine and tender which caused his death, and in that the defendant had and did im- properly and unlawfully at the time and place of said accident omit to properly guard the sidewalk of said street crossing. V. That said accident occurred to and said death was inflicted upon said C. 0. without any negligence or fault on his part, and solely by the negligence and fault of the defendant, its officers, agents, servants and employees. VI. This plaintiif further alleges that the said C. 0. left him surviving S. 0., his widow, and children, to wit [giving the children's names, sexes and ages]: being his widow and only next of kin. That said widow and children, excepting the two oldest girls, were dependent upon said C. 0. for their support, Complaints 285 Negligence and that said two oldest girls were partially so dependent upon said C. 0. for their support, care and maintenance, and have suffered pecuniary loss and other injuries by said death, to their damage of $ VII. [See Form No. 250, p. 289, allegation that the plaintijfs were appointed administrators.] Wherefore [prayer for money judgment]. [Signature and office address of attorney.] [Veri/xation.] Form No. 246 Person Injured at Crossing; Train Moving Rapidly Without Giving Warning * I. [Allegation that the defendant is and was a domestic corpora- tion operating a railroad. See Form No. 245, p. 283.] II. Plaintiff further alleges that she was at , N. Y., on or about the day of , 19 , and in the after- noon of said day approached the track of defendant's said rail- road, at said place, by a footway, which was generally used for such purpose, and was well known to defendant; that plaintiff so approached defendant's said track for the purpose of crossing the same and boarding a train of the New York Central Railroad to return to her home in the city of ; that in order to reach the station of the New York Central Railroad and enter the cars of said road at it was necessary for plaintiff to cross the track of defendant's road; that when plaintiff reached the crossing at defendant's tracks and was walking over the same, defendant negligently and carelessly caused one of its locomotives, with cars attached thereto, to approach and pass over said crossing at a high rate of speed, and negligently and carelessly omitted while said train was so approaching to give any warning or notice thereof, by a flagman or otherwise, or to take any measures whatsoever to guard against injuries to per- sons lawfully crossing said track at said place. 1 From Larkin v. N. Y. and Northern R. Co., 138 N. Y. 634 (no opinion); in which judgment for the plaintiff was affirmed. 286 Bradbury's Forms of Pleading Negligence III. That plaintiff was ignorant of the approach of said train, and by reason of defendant's said negligence said locomotive struck plaintiff and hurled her to the ground with great violence; that plaintiff was so severely injured thereby that it became necessary to amputate three of her toes, and she suffered great pain, and was prevented from going on with her usual employ- ment and was otherwise greatly injured. IV. That said injuries were occasioned solely by the negli- gence of the defendant, without any negligence or want of care whatsoever on the part of the plaintiff, and she has suffered damages therefrom in the sum of $ , payment of which has been demanded and refused. Wherefore [prayer for money judgment]. Form No. 247 Sudden Starting of Train Which Plaintiff had Boarded While it was Moving ^ I. That the defendant is a domestic corporation and is the owner and manager of a steam railroad, tracks and cars apper- taining thereto, known as the L. I. R. R. Co., and that defendant operates and conducts cars upon said railroad from and to vari- ous points, among other points from avenue, in the city of , to Park on Long Island. II. That on the day of , 19 , this plaintiff desirous of taking passage upon one of the defendant's trains for Park, went to the station provided by the defendant, known as the and street crossing station and waited for the train which the defendant's servants informed him was going to Park. III. That this plaintiff was a passenger of the defendant, stood upon its platform until said train was approaching and when said train arrived at said platform upon which this plain- ^ From Distler v. Long Island R. R. Co., 151 N. Y. 424; in which a judgment of dismissal was reversed. The plaintiff had boarded a moving train and after he reached the platform safely a sudden starting of the train had thrown him down and under the wheels of the car. A di^■ided court held that the questiop of contributory negligence should have been submitted to the jury. Complaints 287 Negligence tiff was standing the said train was slowed down or stopped and this plaintiff was invited to go upon said train. IV. That the defendant negligently and carelessly invited plaintiff to go upon said train and negligently and carelessly managed the same at the time plaintiff was invited to go aboard of said train, and as this plaintiff got aboard of said train and before he could reach the security of his seat or could get from the steps or platform of said train in which he wished to take a seat, the defendant negligently, carelessly and recklessly mo- tioned to the engineer in charge of the engine drawing said train to proceed, and that said engineer did negligently and carelessly start said train of cars which his locomotive was drawing with a sudden jerk, and did instantly increase the speed of said train. V. That this plaintiff by the jerk or jar was thrown from his footing on the platform of said car and in trying to save himself, and while he was holding on to the raihngs which he had seized, this plaintiff was dragged a considerable distance by the said train and was finally run over by the wheels of said train, and one of his legs was crushed so that it had to be amputated. VI. That said accident or injuries were caused this plaintiff solely by the negligence of the defendant, its agents and servants, and not through any want of care or negligence on the part of this plaintiff. VII. That by reason of said accident and the injuries there- from arising, this plaintiff had his leg crushed and that it became necessary to amputate the same, and this plaintiff is permanently and forever injured and prevented from earning his livelihood, to his damage $ Wherefore [prayer for money judgment]. Form No. 248 Oonductor Assisting Passenger to Alight at Station Suddenly Remov- ing Support 1 I. That at all the times hereinafter stated the defendant was 1 From Hanlon v. Central R. Co. of N. J., 187 N. Y. 73; in which a judgment in favor of the plaintiff was affirmed. 288 Bradbury's Forms of Pleadixg Negligence and is a railroad corporation, organized and existing under the laws of the State of , and has an office for the trans- action of business in the city of and State of II. That at the time hereinafter stated the defendant operated a steam railroad between and , in the State of , and was a common carrier of passengers between the said places. III. That on the day of , 19 , at State of , the defendant received the plaintiff upon one of its cars, and undertook to safely convey her as a passenger to , her destination, for hire paid by the plaintiff.. IV. That when the car in which plaintiff was a passenger arrived at said , the plaintiff passed out of said car to the platform thereof for the purpose of aUghting therefrom; that while the plaintiff was in the act of alighting therefrom, one of the servants of the defendant, in the course of his employment, took hold of plaintiff's arm to assist her in alighting; and that while she was in the act of so alighting said servant of the defendant, suddenly, negligently and without warning, removed his hand from plaintiff's arm and released his hold thereon, and by reason thereof plaintiff was, without negligence on her part, thrown violently to the landing platform or ground and was thereby seriously and permanently injured in her foot and leg, and was made sick, sore and disabled, and was for a long time confined to her bed and home, and put to expense for medical attendance, in all to her damage $ Wherefore [demand for money judgment]. Form No. 249 Defective Spark Arrester in Locomotive ; Setting Fire to Woodland and Fences ^ I. That the defendant is and was at the several times herein- after stated a corporation duly organized under and pursuant ^ From Brush v. Long Island R. Co., 158 N. Y. 742; aff'g, without opinion, 10 App. Div. 535; 42 Supp. 103; in which a judgment for the plaintiff was affirmed. Complaints 289 Negligence to the laws of this State, and at the times hereinafter mentioned was engaged in operating by steam a certain railroad. II. That at the several times hereinafter mentioned the plain- tiff was and now is seized and possessed of a certain farm near the depot of the defendant, through which the defendant's said railroad runs. III. Upon information and belief that on the day of ,19 , the said defendant so negligently and carelessly managed a fire which it intentionally kindled and maintained in a certain locomotive that it caused to pass over said railroad that the said fire came into and upon the said premises of the plaintiff and burned over some acres thereof, destroying the fences and growing trees thereon, to her damage $ For a second and further cause of action. I. Repeating the allegations contained in the first and second paragraphs above, alleges upon information and belief, that on or about the day of , 19 , the defendant again so negligently and carelessly managed a fire, intentionally kindled and maintained by it in one of its locomotives, that it caused to pass over its said railroad, through plaintiff's said farm, that such fire came into and upon the same and burned over some acres of plaintiff's woodland, destroying the fences and growing trees thereon, to her damage $ Wherefore [prayer for money jvdgment]. Form No. 250 Defective Railroad Bridge Causing Train to Fall ^ I. That plaintiff is a resident of county, New York, and is the administratrix of the goods, chattels and credits of F. A. B., deceased. That F. A. B., plaintiff's intestate, died a resident of the town of , county, New York, on or about the day of , 19 . That thereafter by a decree of the surrogate of said county of duly made on the day of , 19 , the plaintiff herein 1 From Bush v. Delaware, L. & W. R. Co., 166 N. Y. 210; in which'a judg- ment for the plaintiff was affirmed. Vol. 1-19 290 Bradbury's Forms of Pleading Negligence was appointed administratrix of the estate of said F. A. B., giving a bond as required by law, and entered upon the discharge of her duties as such administratrix and is now acting as such. II. That the defendant, the D. Raihoad Co., is a foreign cor- poration duly organized and incorporated under the laws of the State of and is now and has been for many years last past engaged in carrying on, operating, managing and conducting a steam railway from the village of in county to the city of , county. New York, for carrying passengers, baggage and freight and was so engaged at the times hereinafter mentioned. III. That defendant's railroad leading from to , passes through the town of , county. New York, and under a bridge or trestle commonly known and styled the C. Trestle, which is a bridge or trestle crossing over defendant's tracks upon a highway near road in said town. That the trestle mentioned is about miles south and east of the limits of the city of , and about rods east of what is known as the road upon a highway leading from the road across defendant's tracks upon this highway or trestle and connects with the road leading from , east to . At this point the tracks of the de- fendant are some odd feet below the roadbed of the bridge or trestle. That said bridge was constructed for the sole benefit of the defendant's company in order to save the company the extra expense of making excavation in order to make the usual crossing at this point or arching so as to continue highway on same plane. IV. Plaintiff alleges, upon information and belief, that at the time of the laying of defendant's tracks in their present position under the bridge or trestle mentioned above the defendant did so with the consent of the town of and under an agree- ment and contract made with the town of by and through the highway commissioners duly elected and acting as such for said town at that time whereby defendant's company agreed to construct and maintain a bridge or trestle over the Complaints 291 Negligence crossing of the highway at the place mentioned; also to construct the approaches to the bridge which were necessary to connect said bridge or trestle with the highway as a part thereof, together with all necessary abutnaents for the bridge pr trestle, and to properly maintain and keep the bridge or trestle, abutments and approaches in a safe and proper condition for use, which agree- ment was made with said town by and through its then duly elected and acting highway commissioners as one of the condi- tions under which said railroad was to be constructed by the defendant through said town at its present location and as one of the conditions under which defendant's company was allowed to make an excavation or cut at this particular location. V. Plaintiff further alleges that by an act of the legislature of the State of New York, duly passed and which took effect and became a law , 19 , under C. , sec. , of the laws of , and now in force, the defendant is at present and was upon the day of , 19 , re- quired to maintain and keep in repair the bridge or trestle, to- gether with the framework of the same and its abutments. VI. That upon the day of , 19 , F. A. B., plaintiff^s intestate, was passing over the bridge or trestle men- tioned upon a traction engine when the sleepers or stringers of the bridge gave way and the engine. went through the bridge or trestle upon the tracks of the defendant below, carrying with it plaintiff's intestate, and by reason of the fall plaintiff's intestate was crushed beneath the engine upon the tracks of the defendant in such a manner as to almost instantly cause his death. That the stringers or sleepers of the bridge mentioned were rotten and unsafe and there were not a sufficient number of them, and the plaintiff's intestate, F. A. B., met his death through the negligence and carelessness of the defendant's company in failing to properly maintain and repair the bridge or trestle at the point where the highway crossed its tracks in the road mentioned and to provide a sufficient number of suitable sleepers and stringers and a safe framework for the support of the bridge; that the framework of the bridge or trestle was in a rotten, decayed and 2^2 Bradbury's Forms of Pleading Negligence condemned condition and was unfit for bridge or trestle purposes and was not properly constructed, all of which, upon information and belief, plaintiff alleges, was then and had been brought to the knowledge of defendant's company, its officers and superin- tendent; that it was the duty of the defendant's company to maintain and keep the bridge and framework in repair and use due care and diligence in maintaining and repairing the same; the defendant's company owed a duty to plaintiff's intestate and others in providing a safe crossing at the point mentioned and to maintain and keep the same in perfect repair; that de- fendant's company did not exorcise due care and diligence in maintaining and constructing the bridge at the place mentioned and did not use due care and diligence in providing suitable and sufficient stringers and sleepers and providing sound timbers and a perfect framework and abutments to support the bridge in question, and by reason of the failure of the defendant's company to so maintain and construct said bridge, together with the failure of the defendant's company in furnishing and providing sound and sufficient timbers and suitable framework for the support of said bridge and its negligence and carelessness in not inspecting said bridge to know the condition in which it was in and in not inspecting the timbers and framework in order to obtain information as to its rotten, unsound and decayed condition and its improper construction, and by reason of the failure of the defendant to so inspect, repair and construct and put the bridge in a proper, safe and sound condition, together with its framework, sleepers, stringers and abutments the plain- tiff's intestate was killed. That said F. A. B. was killed without any fault or negligence upon his part while he was in the perform- ance of his duties and while crossing the bridge or trestle as he had a right to do, relying upon the bridge being in a safe and sound condition. VII. Plaintiff further alleges, upon information and belief, that after notice of the condition of the bridge and that the sleepers and stringers were unsound, decayed and unfit for bridge use had been brought to the servants, oflScers and super- Complaints 293 Negligence intendent of said defendant's company the defendant failed to properly repair and rebuild the bridge and negligently and care- lessly allowed it to remain in its condemned, unsuitable and decayed condition whereby and through the negligent and care- less acts of the defendant's company plaintiff's intestate was killed, all of which was in violation of the duty which the de- fendant owed to all travelers upon the highway in question and especially to said F. A. B. and in violation of the statute herein pleaded. VIII. That no action for damages has been brought against the defendant priqr to this action for the killing of said F. A. B. IX. That on or about the day of , 19 , the plaintiff in this action was duly married to the said F. A. B. and at the time of his death she was his wife and is now his widow. That intestate left him surviving besides the plaintiff, his widqw, children, ranging in age from years to years, of whom are girls, the oldest being years of age and the youngest being years old. X. That this plaintiff was dependent upon said F. A. B. for her support and maintenance, and. the children of the deceased and the plaintiff in this action, with the exception of the oldest and aged now years, were also dependent upon the deceased for their living, support and maintainance, and plain- tiff by reason of the death of her husband, F. A. B.,.has sustained damage in the sum of $ Wherefore [prayer for money judgment]. Form No. 251 Dangerous Condition of Highway and Crossing Caused by Construction of Drain > I. Plaintiff for his complaint herein alleges that he resides at , N. Y., and that the defendant is a domestic corporation duly incorporated under and by virtue of the laws of the State of , and that the R., W. & 0. R. is also a domestic corpora- 1 From Dana v. N. Y. Central, etc., R. Co., 187 N. Y. 519; in which the plaintiff recovered. 294 Bradbury's Forms op Pleading Negligence tion duly incorporated under and by virtue of the laws of the State of II. Plaintiff further alleges upon information and behef that at the time of the injuries to plaintiff hereinafter described, said R., W. & 0. R. Co. ^\as the owner of a railroad with roadbed, track and other appurtenances and appliances thereunto be- longin£-, one line of which extended from the city of , N. Y., to the city of , N. Y., and passed through the town of , county, N. Y. That the said R., W. & 0. R. Co., or the directors thereof, on the day of , 19 , entered into a contract or agreement in writing with the defendant relative to the use, management and control of the said R., W. & 0. R., including its franchises, tracks, roadbed, and all its appurtenances and appliances for a period of years, and thereby became, and was at the time of the injuries hereinafter described, chargeable with the burdens and duties undertaken and assumed by said R., W. & 0. R. Co. in the operation of said railroad, or such duties and burdens as were by law imposed upon such company corporate as continuing liabilities. III. Plaintiff further alleges that at the time of the construc- tion of said railroad and long prior thereto there was a public highway in the westerly part of the town of aforesaid, known as the "H" road, running in a generally north and south direction. IV. Plaintiff further alleges that heretofore, to wit: during the year of 19 , said railroad was constructed across and over said highway at a point al)out miles south of Lake and about feet from what is now known as the station of the defendant. That in so constructing its roadbed across said highway said railroad company used and appropriated said highway for its entire width, to wit: rods, and placed thereon its ties and tracks, and thereafter used the same in the operation of its road, and since the lease thereof by the defendant as above set forth, it, the said defend- ant, has used the said roadbed as constructed across and over said Complaints 295 Negligence highway in the running of its trains and in the operation and management of said railroad, and has continued to do so from the time of the leasing thereof up to and including the present time. V. Plaintiff further alleges that on or about , 19 , defendant caused a drain to be constructed under said highway at the place of intersection thereof with said railroad in such a manner as to endanger the safety of persons properly using said highways. That said drain was so constructed as to leave at its terminus an excavation, or hole, in the earth about feet in width and nearly feet in depth and at a distance of only about feet from the traveled portion of the high- way. That since the construction of said drain the said highway has been in a dangerous condition, rendering it unsafe and per- ilous for persons crossing said railway on said high\^ ay either by vehicle or on foot, and has been continuously dangerous and a nuisance, and as plaintiff is informed and verily believes such defective and unsafe condition of said highway has been brought to the attention of the defendant, its agents and managers by other persons who have been injured thereby, but that defendant has taken no steps to relieve such condition. VI. Plaintiff further alleges that, on , 19 , while lawfully traveling along the portion of said highway used by defendant as aforesaid, and through no fault of his own, he was suddenly precipitated into the excavation above described, thereby sustaining severe injuries to the right foot and otherwise painfully bruising other parts of his body. That the injuries to his foot thus received consisted in violently straining the arch of the foot, bruising and tearing the ligaments, muscles and tendons, lacerating and rupturing of blood vessels, and a severe injury to the nervous system of the body, from all of which plain- tiff was necessarily confined to his house for a period of weeks, during which time he was wholly incapacitated for en- gaging in his usual occupation which is that of a traveling sales- man. That as a result of said injury plaintiff has expended and will be compelled to expend a large sum of money for medical 296 Bradbury's Forms of Pleading Negligence attendance; and as plaintiff is informed and verily believes, said injury has deprived him of the natural use of his foot for a period of several years, if not permanently. VII. Plaintiff further alleges that said injuries were received wholly and entirely through the negligence of the defendant, its agents and servants, and that plaintiff by no acts or omission of his contributed in any way to the cause of the same. Wherefore [prayer for money judgment]. Form No. 252 Rotten Plank on Trestle Causing Injury to Employee of Railroad by Falling Through the Trestle to the Tracks Below ^ I. The plaintiff above named for a complaint against the above-named defendant, alleges that at all the times herein mentioned the defendant was and is a domestic corporation duly organized and existing under the laws of the State of New York, and was at all times herein mentioned, and still is, running and operating a railroad through the city of , New York. II. That prior to and including about , 19 , defend- ant had constructed, owned, maintained and operated in its yards in the city of , New York, and has, an appurtenant of its railroad, a coal trestle upon the top of which double tracks were laid and cars of coal run thereon, for the purpose of unloading coal therefrom into bins or receptacles built into said trestle as a part thereof and beneath said tracks and from which bins or receptacles the tenders of defendant's engines were filled ; that the defendant employed men upon said trestle whose duty it was to assist in unloading said cars, and to assist in filling the tenders of its engines from the said bins ; that the capacity of the said trestle tracks was about coal cars at one time, and many of defendant's engines coaled from said trestle. ^ From Wazenski v. N. Y. C, etc., R. Co., 180 N. Y. 466; in which a judg- ment for the defendant was reversed. CoMPLAINfS 207 Negligence III. Plaintiff further alleges that as a part of said trestle, defendant had constructed, owned, maintained and operated a "walk or platform on each side of said trestle and running the length thereof, and on the outside of said double tracks parallel with them and at about an even height therewith; that said plat- form or walk was protected on the outsides by a railing with a single bar, the top of which was about feet from the . bed of said walk; that the top of said trestle and the said platform or walk, was about feet from the ground; that defend- ant's tracks over which defendant's engines passed many times daily, were laid upon the ground on each side of said trestle, and in such close proximity thereto that a person falling from said trestle or walk would fall upon the tracks. IV. That one of the purposes of said platform or walk was to enable defendant's employees upon said trestle to pass from car to car, and to the bins beneath in the performance of their duty as aforesaid; that the defendant at all times knew the use to which said platform or walk was put, and as the owner and operator of said trestle and walk it was its duty to construct a proper and safe platform or walk which could be used by men in its employ upon said trestle with safety, and to keep the same in good and proper repair, and to construct proper and sound guard rails around said walk to prevent persons using the same from falling therefrom; that disregarding its duty in this respect at the times hereinafter mentioned, it had carelessly and neg- ligently maintained an improper and inadequate railing on the outside of said walk, and had carelessly, negligently and inade- quately guarded said walk,, and it had carelessly and negligently suffered the planks in the bed of said walk to become rotten and broken and filled with holes, and said walk to become dangerous, unsafe and unfit for use by its employees, and it carelessly and negligently failed to repair the same and to furnish a proper and safe place to work, for its employees upon said trestle. V. That the plaintiff, on or about , 19 , was in the employ of the said defendant, and was directed and required by it to go upon said trestle and walk for the purpose of unload- 298 Bradbury's Forms of Pleading Negligence ing coal from cars then thereupon, and that while so engaged on one of said cars he was directed and required by the defendant in the performance of his duty to assist in filling the tender of one of its engines as aforesaid, and while necessarily descending from said car for the purpose aforesaid, plaintiff necessarily stepped upon the said platform or walk upon the side of said trestle, and with which plaintiff was unfamiliar, and without any fault or negUgence on his part, but solely owing to said defective condition of said walk and the aforesaid negligence of the defendant, plaintiff's foot went through a hole therein in a defective, dangerous and rotten part of said platform or walk, and that as a result thereof, and the absence of sufficient gross rails upon the said walk, plaintiff was thrown backward from the said walk and under the railing aforesaid, onto the tracks of the defendant on the ground below, a distance of about feet. VI. That solely by reason of defendant's negligence as afore- said, and plaintiff's fall, the pelvis of this plaintiff was fractured, and his back, hips and legs were bruised and strained, which injuries were serious and permanent, and plaintiff's body was otherwise bruised and injured, from which injuries he became, and continues to be, sick, sore, maimed and disordered, and suffered, and still suffers, and ever will suffer, great pain and dis- tress; that plaintiff up to said , 19 , and for many years prior thereto, had been in sound physical condition and health, and had engaged continuously in heavy manual labor; that he was a competent street paver and in the summer earned and received $ per week at such work; that at the time of said accident he was earning and received $ per day from the defendant; that by reason of his injuries aforesaid he was wholly incapacitated and prevented from engaging in any labor whatsoever down to , 19 , and that he ever will be permanently and wholly incapacitated and prevented from again engaging in heavy manual labor; that by reason thereof plaintiff's earning capacity has greatly decreased; that plaintiff has necessarily incurred the sum of $ , in physicians' Complaints 299 Negligence bills as a result of said injury, and all to plaintiff's damage $ Wherefore [prayer for money judgment]. Form No. 253 Shunting Cars; Employee Killed; Duty to Furnish Reasonably Safe Place for Employee to Work ^ I. Allegation as to incorporation of defendant and of location of main line, etc. II. That one R. P. H., on the day of , 19 , at the time of the committing of the grievances hereinafter men- tioned, was in the employment of the defendant, as car repairer, and had worked in the defendant's repair shop in the village of , repairing one of its cars, which was upon the track running into and through said building, and extending from said building to another track in defendant's yard, and connected therewith by a switch. That at the time aforesaid the defendant, by its servants, coupled one of its engines and tender to a platform car, heavily loaded with scrap iron, drew it beyond the intersection of the track that ran into said repair shop, then uncoupled the platform car, reversed the engine and ran up said track leading into said shop, without ringing the bell or sounding the whistle of said engine, or giving any other notice of its approach, and when about feet from said shop, carelessly and negligently shunted or kicked said platform car with so much force tliat it could not be stopped by the brakeman thereon, but said car went crashing through the closed doors of said shop, and came in collision with the car under which said R. P. H. was at work for the defendant, repairing the same as aforesaid, and pushed said car upon and against said H. with so much force that he died on the day of , 19 , of the injuries thus sustained. ^ From Doing v. N. Y., Ontario & W. R. Co., 151 N. Y. 579; in wiiicli a judg- ment of nonsuit was re\ersed; it being held that the case should have been submitted to thf jiiiy. 300 BRAfiBtfRY's Forms of Pleading Negligence III. That it was the duty of the defendant to provide a safe and proper place for the said R. P. H. to perform his work for the defendant, and not to expose him to unnecessary or unrea- sonable risks ; but the said place, provided for him by defendant, was an unsafe and improper place, where he was exposed to great and needless danger, because of the careless and. negligent manner in which the defendant's cars were moved upon the track leading into said shop where the said H. was directed by the defendant to perform his labor, which danger could not be seen, guarded against or avoided by the brakeman employed in said shop. That it had been the custom of the defendant's servants for some time previous to the day of , 19 , to carelessly and negligently move the defendant's engines and cars upon the different tracks in said yard without giving any notice of their approach by the ringing, of bells or sounding of steam whistles, or in any other manner, and it had also been their cus- tom for some time previous to the day of > 19 , to carelessly and negligently shunt or kick said cars from one place to another in said yard, while uncoupled from the engine, by means of the momentum given them by said engine, thus losing all control over said cars except by application of the brakes thereon, of which careless and improper method of moving its cars the defendant had, or ought to have had, full knowledge. IV. That it was the defendant's duty, by its rules and instruc- tions to its servants, to forbid and prevent the movement of its cars in the manner aforesaid, and to discharge from its service any servant who might violate such rules and instructions; but in violation of its duty it owed to its employees while at work upon its tracks, and repairing cars thereon, to furnish them a safe and proper place in which to prosecute their work, the de- fendant neglected to make any rules, or to give any instructions to its servants, forbidding the movement of its cars in the man- ner aforesaid, but negligently allowed such servants to transfer its cars from one track to another, and from one place to another mt Complaints Negligence in said yard, by shunting or kicking said cars in the manner afore- said, thereby endangering the Uves of the defendant's employees,, and causing the death of said H. as aforesaid. V. That it was the duty of the defendant to exercise reason- able care and diligence in providing skillful and careful servants to manage and run its engines and trains. That the defendant did not exercise such care and diligence, but negligently employed a careless and unskillful engineer and brakeman to run, manage and control the engine and cars .attached thereto, which ran into the defendant's shop, and caused the death of said H. as afore- said. VI. That it was the duty of the defendant to supply its cars with proper and sufRcient brakes, but the brakes upon the car in question were insufficient, worn and defective, and could not be applied with sufficient force to arrest the progress of said car; in consequence of which, and of the improper momentum and dangerous speed given said car as hereinbefore stated, it broke through the closed doors of said shop and caused the death of said H. as aforesaid. VII. That said deceased left a widow and children, of the ages of , and , who were the only next of kin of said ; and each of whom were wholly dependent upon the said deceased for their support, and said children were also wholly dependent upon him for their nurture and education; and said widow and children have been otherwise injured by his death, to their damage $ VIII. [Allegation that plaintiff siies as administratrix.] Wherefore [prayer for money damages]. Form No. 254 Man Killed by " Kicking " Oar; Insufficient Rules ' I. The plaintiff complains of the defendant and shows to the court on information and belief that said defendant is a corpora- > From Dowd v. N. Y., O. & W. R, Co,, 170 N, Y. 469; in which judgment for the plaintiff was affiroi?d. 302 Bradbury's Forms of Pleading Negligence tion organized and doing business under the laws of the State of New York, and was such during the months of and , 19 , and had been for a long time prior thereto, and during all said times managed, operated and controlled a rail- road running from 0. City, N. Y., to W., and running to and through the station called S., county, N. Y., and was known by the same name of "N. Y., 0. & W. Ry. Co." II. That said defendant owned and ran cars and locomotive engines over said railroad, and was a common carrier of passen- gers and freight for hire between said city of , N. Y., and , and other places at all of the times herein men- tioned. III. That said defendant was also engaged in the business of repairing cars during all of the time aforesaid at diiferent places along the line of said railroad, and for that purpose had and maintained a sidetrack therefor at different points along said rail- road and especially so at station, aforesaid; that on or about the day of , 19 , M. D. was in the employ of said defendant as a mechanic and car repairer, and was then engaged in the performance of his duties as such and was repairing and at work upon one of defendant's cars, then being upon one of the sidetracks of defendant at , aforesaid, and he was so engaged at the time and place of his injury hereinafter mentioned, which said injury resulted in his death. IV. That on the day of , 19 , at or about o'clock in the afternoon of that day while said M. D. was engaged in the performance of his duties as aforesaid, and while he was at work at and upon said cars which were situated upon said sidetrack at , performing his said duties, through the negligence, and carelessness and wrongful acts of defendant and without fault, negligence and laches of said M. D., the said cars which were then standing on said sidetrack where the said M. D. was then so engaged very rapidly run to- gether and along said track by and while defendant was switch- ing a train of cars in and upon the sidetrack at a point alongside Complaints 303 Negligence of and near to the main track or roadbed of said defendant and nearly in front of what was known as and called the depot, and said M. D. was caught by the said cars and said cars or some of them run against, over and upon said M. D., and the said M. D., without any fault, negligence or laches on his part was thereby injured, mangled and crushed so that he died by reason thereof within a few days thereafter, and was killed thereby. That the death of the said M. D. was caused by the careless and wrongful acts, neglect and default of the said defendant in that said defendant at the point or place where said cars run against, over and upon said M. D. did at the time of his said in- jury and death negligently, carelessly, unskillfuUy and wrong- fully keep and maintain a railroad track along side of the main track and roadbed of said railroad at said station for the purpose of, and the same was used by said defendant for the purpose of repairing injured, broken and crippled cars; and in that defendant did then and there likewise use, keep and main- tain or more parallel tracks with said main and repair- ing track running near together, all of which tracks were wrong- fully, carelessly and negligently then kept, used and maintained by defendant for the purpose of running through and along said road and of switching cars upon and from the same, and which tracks were connected at either end with the main track of said road; and in that said tracks so kept and main- tained as and for the repair track on which crippled and disabled cars were run for the purpose of repairing as aforesaid, was lo- cated in the midst of and between the several tracks aforesaid, and both ends of which were opened into and connected by switches with said main tracks and all or nearly all of said side- tracks; and in that defendant likewise at the time of the injury of said M. D. aforesaid and for a long time prior thereto used said repairing tracks and all of said repair tracks aforesaid for the purpose of running cars through said station of and along said road, and upon and off of the said tracks and each of them at great speed and velocity, and used all of said trades 304 Bradbury's Forms of Pleading Negligence indiscriminately for said purposes and for the purpose of re- pairing cars thereon and switching cars, and kept many cars standing at different places thereon and near together and in such manner as to obstruct the view of said cars when being moved about and run on said tracks and each of them from the workmen and employees of defendant when engaged at work upon cars repairing the same ; and in that said repair track was at the time aforesaid improperly, negligently, carelessly and dangerously kept, maintained, constructed and located for the purpose for which the same was used by said defendant; and in that defendant then ran said cars upon and off of said tracks and each of them upon said repair track rapidly, carelessly, negligently, improperly and dangerously and thereby caused the death of said M. D. ; and in that said defendant did then neg- ligently and wrongfully omit to have or keep a proper watchman or other servant of defendant at or near said repair track of the car or cars thereon being repaired to warn employees of de- fendant then at work thereon of danger, the same being a dan- gerous point among said tracks and on said road; and in that the said defendant did negligently and wrongfully omit to have or keep a sufficient number of watchmen, trackmen or servants em- ployed in supervising, watching and operating said road, tracks and cars at the time and place aforesaid and in not keeping and maintaining suitable and proper signals and watchmen at the time and place aforesaid and at and about said repair tracks and cars thereon being repaired to notify and warn the employees of defendant there engaged of the approach of running cars and of danger, and also in that it was dangerous to run cars in and upon said track where cars were being repaired ; and in that the same should be done cautiously so as to make it safe and proper to work upon cars upon said repair track; and in that the said track and tracks so provided and used for repairing cars as afore- said were dangerous and in an unsafe and improper place for such use; and in that defendant did not provide a suitable or safe place or tracks on which to place broken, injured and crippled oars for repair. Complaints 305 Negligence And in that said defendant negligently, carelessly, unskillfuUy and wrongfully at the time of the injury to the said M. D. at the said station of , "kicked" or pushed a train of cars in and upon the repair track where the said M. D. was engaged as aforesaid without a locomotive attached thereto to control the said train, and it was the custom of defendant so to do, and by reason of said negligence and carelessness the said train of cars collided with the car upon which the said M. D. was engaged, and pushed it in or upon him and caused his death; and in that the said defendant negligently, carelessly, unskillfuUy, and wrongfully kept and maintained the said train of cars and the brakes thereon so that the same could not and did not work properly and efficiently, and the said train could not be stopped with the brakes, machinery and appliances therefor provided by said defendant for said train at said time, and by reason thereof the said M. D. was injured as aforesaid, which said injury caused his death; and in that the said defendant negligently, carelessly, unskillfuUy and wrongfully manned and equipped the said train that was "kicked" in and upon the track as afore- said, and manned and equipped the same with incompetent, inexperienced and unskillful trainmen, all of which was knbwn to the said defendant at the time thereof, and by reason of said negligent and wrongful acts of the said defendant the said M. D. was injured as aforesaid and killed thereby; and in that defendant negligently, carelessly and wrongfully omitted to make and promulgate rules for the guidance and direction of its cn;ployccs which were proper and sufficient for the protection of the men in its employ, and especially of the men engaged in the repairing of cars upon this repair track, but, on the contrary, made and promulgated rules that were insufficient and improper and by reason thereof the said M. D. was injured as aforesaid, and was killed thereby. V. That said M. D. left him surviving his widow, said M. A. D., who was entirely dependent upon the deceased for her support and maintenance, and one sister and two brothers ; that by reason of the death of said M. D., as aforesaid, said M, A. D, has. been Vol, 1-20 306 Bradbury's Forms of Pleading Negligence deprived of means of support and maintenance for which she was entirely dependent upon said M. D., and has been otherwise injured by his death in all to her damage of $ VI. That on the day of , 19 , and before the commencement of this action, said M. D. died intestate. VII. That on the day of , 19 , letters of administration upon the estate of said M. D., deceased, were duly issued and granted to this plaintiff by the surrogate of the county of 0., N. Y., appointing this plaintiff administratrix of all the goods, chattels and credits belonging to the said M. D.; and that this plaintiff thereupon duly qualified as such adminis- tratrix and entered upon the discharge of the duties of her office as such; and ever since has been and still is such administratrix. Wherefore [prayer for money judgment]. - II. Street Railroads Form No. 260 Alighting From Street Car; Sudden Starting of Oar ' Supreme Court, county. Michael Coleman, Plaintiff, against Interurban Street Railway Company, Defendant. The plaintiff complaining of the defendant, alleges : I. That at all the times hereinafter mentioned the defendant was and still is a domestic corporation organized and existing under and byvirtue of the laws of the State of New York. II. That at all of said times the defendant was in the control, management and operation of a certain surface railway loiown as the "East Belt Line," which ran its cars along South street ' From Coleman v. Interarban Street Railway Co., 187 N. Y. 520, aff'g, without opinion. 111 App. Div. 915; 96 Supp. 1120 (no opinion); which af- firmed a Judgment for $5,000 in favor of the plaintiff. Complaints 307 Negligence in the vicinity of street and street, Manhattan borough, New York City, and was a common carrier of passen- gers thereon for hire. III. That at all of said times the said street in the vicinity was a public street in said Manhattan borough. IV. That on or about the day of , 19 , the plaintiff was a passenger for hire on one of the defendant's said cars running north on said street. V. That while plaintiff was such passenger at the time and place aforesaid, he notified the driver of the car, who was the agent and servant of the defendant, of his, plaintiff's, desire to alight therefrom at or near a point between said street and street, and requested said driver to stop said car in order that he might so alight. VI. That the said driver thereupon and in compliance with plaintiff's request did slow down the speed at which said car had been traveling until the car came to almost a complete stop, and was moving only very slowly, if at all; that plaintiff there- upon began to alight therefrom; that as he was about to step from said car the said defendant, by its said driver, carelessly and negligently started said car forward with a sudden and vio- lent jerk or motion, and so carelessly or negligently managed and operated said car that the plaintiff was thrown forcibly and violently from said car to the street, and the wheel of said car passed over his leg. VII. That the plaintiff was entirely free from any fault or negligence in the premises. VIII. That by reason of the premises the plaintiff was crushed between the wheel of said car and the street pavement; he was made sick, sore, lame and disabled; he lost a quantity of blood; his head, body, arms and legs were cut, injured and bruised; his nervous system sustained a severe shock; he sustained a compound fracture of the bone of one of his legs above the knee, and it may become necessary to amputate said leg; he was and will be compelled to undergo surgical operations; he was and will be caused to suffer great pain; he was wholly incapacitated from 308 Bradbury's Forms of Pleading Negligence following his usual occupation from which he derived profit and support, and he will be incapacitated from performing any labor or services for considerable time to come; he was and will be confined to a hospital and to his house; he was permanently internally and otherwise injured and lamed; he was and will be put to expense in payment of physicians and for medical and surgical attendance, and for medicines, appliances, etc., in endeavoring to cure his injuries sustained as aforesaid; that the injuries so caused are of a permanent character, and plaintiff can never wholly recover therefrom, and has been injured and crippled thereby for life. IX. That by reason of the premises plaintiff has been damaged in the sum of $ Wherefore [prayer for money judgment]. [Signature and office address of attorney, and verification.] Form No. 261 J Street Oar Hitting Fire Patrol Wagon Injuring Occupant ^ I. Upon information and belief that the defendant is and was at all the times hereinafter mentioned a corporation duly OTganized and existing under and by virtue of the laws of the State of New York, and as such corporation was at all the times hereinafter mentioned engaged in the operating of cars by means of underground electricity, commonly known as the trolley system, in the borough of , city of , and more particularly on in said borough and city. II. That on the day of , 19 , at or about , just north of street, in the borough of , said city of , this plaintiff, who is a member of the Fire Insurance Patrol of said city, was lawfully driving an in- surance patrol wagon to a fire in the due performance of his duties as a member of said Fire Insurance Patrol, when one of the cars of the defendant running at a rapid and dangerous rate of speed and then at that time and place negligently and care- 1 From Duffghe v. Met. St. Ry. Co., 187 N. Y. 522; in which a judgment in favor of the plaintiff was affinned. Complaints 309 Negligence lessly managed, operated and controlled by said defendant, its agents and servants, collided with and hit one side of said insurance patrol wagon with great force and violence, and by reason thereof plaintiff was without any fault or neghgence on his part, but solely through the neghgence of the defendant, its agents and servants, violently and with great force thrown from said insurance patrol wagon to the ground, his body coming in violent contact with the pavement of the street at the place aforesaid, and the same causing him great personal injury, pain and suffering; in that his head was cut and bruised with three scalp wounds, he losing much blood from his ears and nose, his left side was badly lacerated, he suffered contusion of his back, two of his ribs were broken, and plaintiff was rendered sick, sore, lame and disabled. ' III. That plaintiff was put to expense for medical attendance and medicine, and was totally disabled and prevented from attending to his duties and business from at least the day of , 19 , until the day of , 19 , and has suffered, still suffers, and will in future suffer great in- convenience^ physical discomfort, pain and loss, said injuries being of a permanent nature, all to his great damage, by reason of the premises, in the sum of $ Wherefore [demand for money jitdgm^nt]. Form No. 262 Infant Struck ly Street Oar ^ I. That the plaintiff above named is an infant under the age of years. II. That by an order of this court, dated the day of , 19 , and duly filed in the office of the clerk of this court on said date, J. C. was duly appointed guardian ad litem of said infant for the purpose of prosecuting this action. III. On information and behef, that the defendant is a do- ^ From Costello v. 3d Ave. R. Co., 161 N. Y. 317; reargument denied, with- out opinion, 162 N. Y. 608; in which a judgment for the defendant was re- versed. 310 Bradbury's Forms of Pleading Negligence mestic corporation, duly organized and existing under the laws of the State of New York, owning and operating, at all the times hereinafter mentioned, a line of street surface cars upon avenue, in the city of New York. IV. On information and belief, that on the day of , 19 , plaintiff, while lawfully upon avenue, between and streets, in the city of New York, was, without negligence on his part, struck by one of the de- fendant's cars, propelled by cable traction, which was then managed and conducted by the defendant's servants, and under their control, and was then and there thrown down and knocked under the wheels of said car and run over, through the negli- gence and cai-elessness of the defendant, and by reason of the careless, reckless and negligent management and conduct of the defendant's servants in operating said car, whereby the plain- tiff was grievously cut, bruised and wounded; his left leg was crushed and broken, and his life put in jeopardy. That, by reason of the injuries so received, the plaintiff suffered for a long time, and now suffers great pain and illness; his left leg has had to be amputated, and he has been compelled to undergo surgical and medical treatment, and is otherwise permanently injured, to his damage in the sum of $ Wherefore [prayer for money judgment]. Form No. 263 Passenger About to Enter One Car Struck by Another ' I. That on or about the day of , 19 , 1. 1. S. died, a resident of the city and county of New York, as plaintiff is informed and beheves. II. That said I. I. S. died leaving a will by which plaintiff and N. E. S. were appointed executors thereof, and that said will was duly proved and admitted to probate in the surrogate's 1 From Stillings v. Metropolitan St. Ry. Co., 177 N. Y. 344; aff'g, 84 App. Div. 201; 82 Supp. 726; affirming a judgment in favor of the plaintiff. The principal point determined was that the alleged contributory negligence of the plaintiff's testator in crossing the street at the time he was struck, was properly left to the jury. Complaints 311 Negligence court of said county of New York, and on the day of , 19 , letters testamentary thereupon were duly issued and granted to plaintiff, as sole executor, by said court, said N. E. S. not qualifying as executrix thereof, and plaintiff thereupon duly qualified as such executor and entered upon the discharge of the duties of said office. III. Upon information and belief, that the defendant was at all times herein named and still is, a domestic corporation, organized and existing under the laws of the State of New York, and as such, was at the times herein named engaged in the transportation of passengers as a common carrier for hire, and as such common carrier was at said times herein named engaged in running and operating a surface railroad upon avenue, a pubhc highway, in the borough of in said city of New York. IV. Upon information and belief, that the said deceased, on or about the day of , 19 , at or near the corner of said avenue, and street in said city, signaled to a car of said defendants, which was being operated by said defendant upon said avenue, and used by said defend- ant to transport passengers as aforesaid, to stop and receive said deceased on board as a passenger for hire, and that such car did stop, and said defendant accepted said deceased as a passenger for hire, and was ready to receive into and on board said car, said deceased, as such passenger, and that while de- ceased was preparing to and was about to enter said car, the defendant so negligently and unskififully conducted itself in its operation and running of said railroad, that it carelessly and negfigently caused another one of its cars, which car defendant had carelessly and negligently allowed to become and remain out of repair, which it was at said time running and operatmg in said avenue, to strike, knock down, run over and kill said deceased, without fault or negligence on the part of said deceased. V. That said deceased left him surviving his widow and sons, as his next of kin. 312 Bhadbury's Forms of Pleading Negligence VI. That by reason of the foregoing premises, the plaintiff has been injured to his damage $ , which sum, with interest thereon from the day of > 19 , the plaintiff claims from the defendant. Wherefore [prayer for money judgment]. Form No. 264 Plaintiff Hit by Car While Orossiag Street ' I. That at all the times hereinafter mentioned, this infant plaintiff was and still is a resident of the borough of , county of , city and State of II. That heretofore and on or about the day of , 19 , by an order of this court, duly made and entered, M. S. was duly and regularly appointed the guardian ad litem of this infant plaintiff and duly authorized and directed to commence and prosecute the present action. III. Upon information and belief, that at all the times here- inafter mentioned, the defendant was and still is a domestic corporation, duly organized and existing under and by virtue of the laws of the State of New York, conducting, operating and controlling a street railroad upon and along avenue and other public thoroughfares in the borough and city aforesaid, and as such was and still is the owner or lessee of and used, operated and controlled the car hereinafter mentioned, together with the appurtenances thereto belonging. IV. That at the borough and city aforesaid, and on or about the day of , 19 , while this infant plaintiff was lawfully crossing avenue at or near avenue, both public thoroughfares, owing to the negligence and care- lessness on the part of the defendant, its agents, servants and employees, in the care, management, propulsion and control of one of its cars then running upon and along said avenue, that solely by reason thereof and without any fault on the part of said infant plaintiff, said defendant's car, suddenly and with- ' From Savage v. Brooklyn Heights R. Co., 187 N. Y. 565; in which a judg- ment m favor of the plaintiff was affirmed. Complaints 313 Negligence out warning, violently ran into and against him, passing over him, thereby causing the amputation of right, leg, and other- wise greatly injuring him, internally and extmially. -^ . »*. • V. That solely by reason thereof, this infant plaintiff hasTb'^en injured, bruised and wounded, so that he became sick, sore, lame and disabled; has suffered and will for a long time to come continue to suffer great bodily pain and mental anguish; his right leg has been amputated below the knee, his left leg seriously and permanently injured, his nervous system impaired and disordered, and that he has been otherwise greatly injured in- ternally and externally, all of which as plaintiff is informed and verily believes, are permanent, in all to his damage in the sum of $ Wherefore [demand for money judgment]. Form No. 265 Bicycle Rider Hit by Street Car at Crossing, Causing Death ' The plaintiff, as administrator of the goods, chattels and credits of S. A. B., deceased, by his attorneys, B. & B. and H. B. B., complains of the defendant and for a cause of action alleges: I. That at all times hereinafter mentioned, the said defend- ant was, and still is, a domestic corporation, organized and doing business under the laws of the State of , and owns and operates street cars in and through various streets in the city of , , especially on street in said city. II. That on or about the day of , 19 , while said S. A. B. was passing in and along avenue and over street at or near its intersection with the said avenue, on a bicycle, through the negligence of said defendant and its employees in failing to have its cars un- 1 From Brooks v. International Ry. Co., 187 N. Y. 574; in which judgment absolute was ordered in favor of the plaintiff upon an appeal by the defendant from a judgment of the court below ordering a new trial. 314 Bradbury's Forms of Pleading Negligence der proper control, and in failing to have it equipped with suit- able appliances for its proper control, and in failing to be on the lookout for persons crossing its tracks and in running its cars at a high rate of speed, in violation of the statutes of this State and charter and ordinances of the said city of , and otherwise being negUgent and careless in the management of its cars, the said defendant's car struck S. A. B. and said S. A. B. was thrown down and pushed and dragged a long dis- tance; and that by reason of said negligent acts and omissions on the part of said defendant, said S. A. B. received severe ex- ternal and internal injuries, from the effects of which injuries on or about the day of , 19 , she died. III. That heretofore and before the commencement of this action the said S. A. B., having died intestate, on the day of , 19 ) letters of administration upon the es- tate of the said S. A. B., deceased, v,'ere duly issued and granted to this plaintiff by the surrogate's court of the county of of the State of , appointing this plaintiff administrator of all the goods, chattels and credits which were of said de- ceased, and that this plaintiff thereupon duly qualified as such administrator and entered upon the discharge of the duties of his said office. I^^ That said S. A. B. left her surviving her said husband, J. F. B., L. M. B., M. F. B., H. E. B., her children, and that by reason of the death of the said S. A. B., caused as aforesaid, said heirs at law and next of kin of said S. A. B. have suffered damages in the sum of $ V. That by reason of said acts of negligence and omissions on the part of said company and the injuries received by said S. A. B., said plaintiff, said heirs at law and next of kin of the said S. A. B. have been obliged to incur large expenses for medi- cal services, medicines and nursing for the said S. A. B., and have incurred large funeral expenses for her. VI. That by reason of the premises the said defendant is indebted to the said plaintiff in the sum of $ Wherefore [demand for money judgment]. Complaints 315 Negligence Form No. 266 Oar Rumiing at High Rate of Speed on City Street Without Sounding Gong ^ I. That at all the times hereinafter mentioned, said defend- ant was and now is a domestic corporation, organized and ex- isting by and under the laws of the State of New York, and was and still is operating, managing and controlling a street rail- road, and running cars thereon along and over West BroadAwi}', one of the public streets and highways of the city of New York. II. That on or about the day of , 19 , while said plaintiff was lawfully upon said street known as West Broadway, the same being a public street and highway as afore- said, and while plaintiff was attempting to cross said West Broadway at or near street, in said city, said defendant, not regarding its duty in the premises, carelessly and neghgently ran its cars along and over said West Broadway at a 'high and unlawful and dangerous rate of speed, and failed to ring any bell or to sound any gong on said cars, and failed to give proper and timely signal or warning of the approach and passing of said cars along and over West Broadway aforesaid, and in consequence thereof, and without any fault or negligence on the part of plaintiff, he w^as violently knocked down and thrown to the ground by one of defendant's cars aforesaid, and was pushed along by and in front of said car for a considerable distance. III. That solely by reason of defendant's negligence, as afore- said, plaintiff was severely and seriously injured, bruised and wounded, and suffered and still suffers great physical and mental pain, and became sick, sore and disabled, and so remains, and, upon information and belief, is permanently injured, and has ever since been, and will be prevented from attending to his business, and has and will necessarily expend large sums of ' From Hoyt v. Metropolitan Street Railway Co., 175 N. Y. 502, aff'g, with- out opinion, a judgment in favor of the plaintiff, 73 App. Div. 249; 76 Supp. 832. 316 Bradbury's Forms of Pleading Negligence money in endeavoring to be cured of his injuries, to the plain- tiff's damage I Wherefore [demand for money jitdgm^nt]. Form No. 267 Street Car Running at Rapid Rate in Thickly Settled Neighborhood; Striking Child in Street ^ I. That the above-named defendant at all the times herein- after mentioned, was and still is a domestic street railroad corporation organized under the laws of the State of , and that during all the times herein mentioned it was and still is the owner of a system of street railroads in the city of , operated by electricity as a motive power, and that it was and still is the owner of all the cars operated on said system of rail- roads and of all the poles, trolleys, lines, wires and appliances of all kinds used in the operation of said cars, and was the em- ployer and in control of all the men employed in the operation of said railroads in the carrying of passengers, including the motormen, conductors and others engaged in the operation of said road, and that it was the owner and had charge of the car on said road referred to in this complaint, and which was in- volved in the accident hereinafter set forth. II. That among other streets in the city of over which the cars of this defendant were operated at the time of the accident in question is street, which is a street running in a northerly and southerly direction and a thickly populated and much frequented thoroughfare, and the defend- ant operated on this street a single track system with switches and turn-outs, its cars running north and south on said street. III. That the plaintiff herein is an infant years of age at the time of the accident complained of and was living with her parents, A. L. and wife, at No. , street, in the city of , N. Y., at the time of said accident. IV. That on or about the day of , 19 ; a-t * From Lapieduse r. Syracuse Rapid Transit R. Co., 187 N. Y. 561; in which a judgment in favor of the plaintiff was affirmed. Complaints 317 Negligence about o'clock in the afternoon, while the plaintiff was in the act of crossing street at its intersection with street and walking westerly in a diagonal direction on said street, a car operated by this defendant, which was moving southerly on said street on the defendant's railroad tracks, struck said plaintiff and threw her to the pavement, rolled her over, dragged her some distance, bixiised her quite badly, and one of the wheels of said car ran over her right arm and wrist crushing it so that it had to be amputated just above the wrist. V. That this defendant was guilty of carelessness and negli- gence which caused said accident in that it carelessly and neg- ligently ran or caused to be run said car on to and against ti;i ' plaintiff; that the plaintiff was in plain sight and in a place or evident danger upon the street for a sufficient length of time to enable the motorman in charge of said car to have stopped the same and avoided the accident. VI. That this defendant was guilty of carelessness and neg- ligence which caused said accident in that it ran and operate:! said car at a very high and dangerous rate of speed at the phce of said accident, which was in a thickly settled neighborhood in , where there were many people and children, and the motorman in charge of said car must have seen this plaintiff upon the street and crossing the same in the diagonal direction aforesaid, or would have seen her by the exercise of reasonable care, and by the exercise of due and reasonable care he could easily have stopped his car before he reached the plaintiff; but, on the other hand, while the plaintiff, who is a mere child hav- ing no judgment or discretion, was thus crossing said street and in plain view of the motorman and servants of this defendant upon said car, the car was carelessly and negligently permitted to approach said child at a high and dangerous rate of speed, and no attempt was made to stop it until it was too late to avoid said accident. VII. That the defendant was guilty of carelessness and neg- ligence which caused said accident in that it failed to sound 318 Bradbury's Forms of Pleading Negligence the gong or ring the bell or give warning of any kind of its ap- proaching the street crossing aforesaid; that the agents of the defendant did not use reasonable care or judgment to avoid the accident. That the gong on said car had been for a long time, prior to said accident, and was at the time of the accident, de- fective and not in working order and in such condition that it would not properly operate and give notice to pedestrians or persons upon the street of the approach of the car; of all of which defendant had due notice and failed to remedy the defective condition aforesaid, which caused or contributed to said acci- dent. VIII. That the defendant's cars, and especially this car in question, were provided with what is known as fenders, to avoid serious accidents to persons and animals which the car may strike; and plaintiff alleges that the defendant was guilty of carelessness and negligence which caused or contributed to said accident and the serious injuries which plaintiff received, in that the fender of the car in question was defective and did not operate properly, was entirely useless and unavailing so far as affording protection to plaintiff at the time in question, and that if the fender in question was in good working order and in proper condition then the plaintiff alleges that the motorman in charge of said car was incompetent and inexperienced and did not know how to operate said fender, and did not drop or lower it in time to be of any use to avoid said accident. IX. Plaintiff further alleges that the parents of plaintiff and the plaintiff herself, were entirely free from carelessness and neg- ligence which caused or contributed to said accident, but that the accident was caused wholly through the negligence of this defendant, its servants and employees. X. That by an order of Plon. W. S. A., justice of the court, made on the day of , 19 , and entered in the clerk's office of county, the said A. L. was ap- pointed guardian ad litem of said plaintiff and directed to ap- pear and prosecute in liehalf of said infant this action accord- ing to the statute in such case made and provided. Complaints 319 Negligence XI. That by reason of said accident, the plaintiff's right hand was amputated above the wrist and she was otherwise badly bruised and injured; that she has suffered much pain, and still suffers much pain and will continue to suffer the remainder of her life. That she has been permanently injured, crippled, de- formed and enfeebled, and she is disabled from earning her or- dinary livelihood by reason of the loss of said hand and she has been otherwise damaged, all in the sum of $ Wherefore [demand for money judgment]. Form No. 268 PlaintiS in Ambulance Struck by Street Car ' I. [Allegation that the defendant is and was a domestic corpo- ration, and allegation as to its ovming and operating a railroad.] II. That on the day of , 19 » plaintiff was seated in an ambulance drawn by one horse which was passing across avenue, the said public highway, and upon street aforesaid, a public highway, and at the same time a car belonging to the defendant in charge of its servants and drawn by cable power was proceeding along avenue, in a southerly direction, approaching a point where the same is crossed by street. That defendants and their servants were negligent and careless in the management, control and operation of the aforesaid cable car, and in consequence thereof, and without fault on the part of the plaintiff, the aforesaid cable car was thrown with great violence against the ambulance in which the plaintiff was seated and thereby the said ambulance was broken and the plaintiff was thrown from the same to the pavement of the street, striking upon his body and limbs, and thereby he sustained a severe concussion of his spine and a severe shock to his nervous system, and an injury to his back and side and right leg, whereby he was and will be rendered ill and prevented from following his professional employment which is that of a physician and was and will be prevented from ^ From Buys v. Third Avenue Railroad Company, 45 App. Div. 11; 61 Supp, J13; in which a judgment for the plaintiff was affirmed, 320 Bradbury's Forms of Pleading Negligence his earnings and put to expense in endeavoring to mitigate his injury, and was permanently injured to his damage in the sum of $ , for which sum he demands judgment against the defendants with costs. Form No. 269 Collision Between Coupg and a Street Oar ^ I. 'Jpon information and behef, that at all the times herein- after mentioned, the defendant was and now is a domestic cor- poration, and at all such times the defendant operated a street railway along avenue, from a point below street to a point above street, in the city of New York, and that the cars upon said railway were propelled by elec- tricity. II. Upon information and belief, that on the day of , 19 ) L. B. M., the son of plaintiff, was lawfully proceeding through street, from a point east of avenue to a point westerly thereof, and across the tracks of the said railway, riding upon the front or outside seat of a coup4 drawn by a single horse, when, without any fault or neglect on his part, but through the negligence of the defendant, its serv- ants and agents, in operating one of its cars upon the said railway, at or near said street, the said car struck the coup6 upon which the said L. B. M. was riding, as aforesaid, and also violently struck the said L. B. M., inflicting upon him physical injuries from the result of which he died on the day of , 19 . III. That at the times mentioned in the last preceding para- graph, the said L. B. M. was a minor, and resided with his father, the plaintiff herein, in the county of New York. IV. That the said L. B. M. left him surviving no widow, and the plaintiff herein, his father, is his only next of kin. V. That the said L. B. M., died intestate in the city and county 1 From Morris v. Metropolitan Street Railway Company, 63 App. Div. 78; 71 Supp. 321 ; aff'd without opinion, 170 N, Y, 592; in which a, v§idipt for th? plaiptiff W3.S upheld, Complaints 321 Negligence of New Y ork ; that on or about the day of , 19 , letters of administration upon the goods, chattels and credits of the estate of L. B. M., deceased, were duly issued and granted to the plaintiff by the surrogate of the said county of New York, appointing him administrator of all the goods, chattels and cred- its which were of said deceased, and that the plain tiff'thfereupon qualified and entered upon his duties as such administrator, and is now such administrator. VI. That by reason of the facts aforesaid, plaintiff has sus- tained damages in the sum of dollars. Wherefore [prayer for money judgment]. Form No. 270 Collision Between a Street Car and a Wagon ^ I. That before the commencement of this action and on or about the day of , 19 , letters of administration were duly issued and granted to the above-named plaintiff, H. S., by order of the surrogate's court of New York county, made on said day, whereby said plaintiff was duly appointed administratrix of the goods, chattels and credits of one M. S., deceased, who died in said county of New York, and was a resi- dent of said county at the time of his death. That thereupon plaintiff duly qualified and entered upon her duties as such ad- ministratrix and now is such administratrix. ' II. Upon information and belief, that at all the times herein- after mentioned, M. S. li. Co. was and now is a domestic corpora- tion, engaged in business in the city of New York as a carrier of passengers for hire, and maintaining and operating a street sur- face passenger railway in, upon and over avenue in the city of New York, in the vicinity of and streets in said city. > III. Upon information and belief, that at all the times herein- 1 From Sternfels v. Metropolitan Street Railway Co., 73 App. Div. 494; 77 Supp. 309;lS'cl without opinion, 174 N. Y. 512; in which a judgment ior the plaintiff was upheld. Vol. 1-21 322 Bradbury's Forms of Pleading Negligence after mentioned, H. E. B. Co. was and now is a domestic corpora- tion, engaged in the brewing business in the city of New York. IV. Upon information and belief, that on or about , 19 , two cars of the defendant M. S. R. Co., coupled or fastened together, were proceeding uptown in the vicinity of avenue and or streets, in the city of New York, and each of said cars was then and there in charge of the agents, servants and employees of said defendant. V. Upon information and belief, that at or about the same time on said day, and in or about the place mentioned in the fourth paragraph of this complaint, a brewery wagon of the defendant H. E. B. Co., drawn by horses, was in the manage- ment and control of the agents, servants and employees of the said defendant. VI. Upon information and belief, that on said , 19 , there occurred a collision between said brewery wagon of the defendant li. E. B. Co. and the said cars of defendant M. S. R. Co. VII. Upon information and belief, that on said day of , 19 , and at and prior to the time of the collision aforesaid, plaintiff's said intestate, M. S., was a passenger upon one of the said cars of the defendant M. S. R. Co. VIII. Upon information and belief, that in said collision plaintiff's said intestate, M. S., received severe bodily injuries from which he died on said day of , 19 . IX. Upon information and belief, that said collision, afore- mentioned, an 1 the aforementioned injuries and death resulting therefrom were caused solely by the carelessness and negligence of these defendants, and each of them, in improperly and negli- gently operating and driving their respective vehicles, and was not due in any manner to any negHgence on the part of plaintiff's said intestate. X. That said deceased left him surviving this plaintiff, H. S., his widow, and E. S., a daughter, and H. S., a son, his children and only next of kin, all of whom were dependent upon deceased for their support, nurture and education, and were otherwise injured by his death as aforesaid. Complaints 323 Negligence XI. That by reason of the premises, this plaintiff, as such ad- ministratrix, as aforesaid, has suffered damages in the sum of dollars. Wherefore [prayer for money judgment]. Form No. 271 Lineman Injured Because of Rotten Trolley Pole ^ I. Upon information and belief, that the defendant is a domes- tic street surface railroad corporation, and that as such corpora- tion, at the time hereinafter mentioned, it operated a street sur- face railroad upon avenue, in the borough of , city of New York; and along said avenue it had erected wooden poles, upon which it attached its wires and cables to conduct the power to operate its cars. II. That on or about the day of , 19 , the plaintiff was in the employment of the defendant; he was di- rected to go to the top of one of said poles, and cut a cable at- tached thereto; that while he was engaged in obeying said in- structions, the said pole broke and fell, precipitating the plaintiff to the ground and injuring him. III. That by reason of the premises the plaintiff sustained serious and lasting bodily injuries, and injuries to his limbs and nervous system, as well as internal injuries in consequence of which he has suffered, and will in future suffer, pain and distress, has been and will be put to expense for medical treatment and medicines ; and has been and will be in the future, disabled from attending to his vocation and earning a livelihood, and is, as he is informed, and verily believes, permanently injured, all to his damage to the sum of $ IV. That the accident and injuries aforesaid were caused solely by, and through the negligence of the defendant, in failing to provide the plaintiff a reasonably safe place at which to work, in failing to properly inspect the said pole, before putting the plaintiff to work thereon, in failing to inform the plaintiff of the ^ From Walsh v. The New York & Queens County Railroad Co., 80 App. Div. 316; in which a judgment awarding the plaintiff $3,000 was affirmed. 324 Bradbury's Forms of Pleading Negligence true condition said pole was in, in permitting tlie yaid ]>ole to become decayed, weak, insecure and dangerous; in ffiJHng to provide the plaintiff with proper appliances to enable him to safely perform his work, in failing to have a safe and proper method and rules for the doing of the work aforesaid. Wherefore [prayer for money judgment]. Form No. 272 Fireman Injured by Striking Against Pole Supporting Trolley,'Wire ' I. That plaintiff now is, and at all the times hereinafter men- tioned was, a resident of the city of , county of and State of , and a member of the fire department located and existing in said city of II. That the defendant, at all the times hereinafter men- tioned, was a corporation duly organized and existing under and pursuant to the laws of the State of , and the owner of and engaged in constructing, maintaining and operating a certain trolley street surface railroad, extending along a certain public street or highway, known as avenue in the city of , county of and State of , from street, in said city, on the north, to the city line on the south. III. That in constructing, maintaining and operating said street surface railroad, the defendant constructed and main- tained upon said avenue in said city of , a single track consisting of two rails laid approximately in the middle of said public street or highway, and defendant also con- structed, erected and maintained iron poles or posts used for the purpose of supporiing the overhead trolley and feed wires, which posts were placed at intervals on the curb line of both sides of the said public street or highway known as avenue in the city of IV. That said public street or highway known as avenue in said city of was, at all the times hereinafter mentioned, much traveled and used by the inhabitants of said ^From Lambert v. Westchester El. R. Co., 191 N. Y. 24S. CoMrLAINTS 325 Negligence city, and other persons, and that it was the duty of the said de- fendant to so construct its roadbed and erect the posts or poles which support its overhead trolley or feed wires and maintain same upon said public street or highway as not to interfere with the rights of persons lawfully using said public street or high- way or the approaches thereto, or to in any manner prevent the free and unobstructed passage of persons through, along or upon said public street or highway and approaches thereto, or to in any manner jeopardize or injure the life, limb or property of persons lawfully using said public street or highway or the passages thereto. V. That at all the times hereinafter mentioned, and for a long time prior thereto, there was situated on the westerly side of said highway known as avenue, commencing at the intersec- tion of the westerly side of a highway known as street, in said city of , and running thence northerly along the westerly side of said avenue for a distance of about feet, a brick building composed of three separate and distinct fire engine houses and occupied by three of the fire com- panies of the city of . That from the door of each of the said three engine houses, a driveway is extended across the westerly sidewalk of said avenue in front of said houses to the roadway of said avenue ; and that in passing from said houses in answering alarms of fire it was necessary for the apparatus of said fire companies to drive over and upon said driveway extending from said engine houses to the roadway of said avenue. That the northernmost house, or the one furthest removed from the northwesterly corner of said avenue and street, was at all the times hereinafter mentioned occupied and used as the headquarters of the fire patrol com- pany, one of the companies constituting the fire department of the city of ; and that it is the custom in said fire department for members of said department to ride upon the apparatus of said department in answering alarms of fire. \'II. That on or about the day of , 19 , 326 Bradbury's Forms of Pleading Negligence and for a long time prior thereto, on the westerly side of said highway known as avenue in said city of , at a point immediately adjoining and to the south of the driveway leading from the house of said fire patrol company to the road- way of said avenue, the defendant negligently and care- lessly permitted and caused a certain iron trolley pole or post, from which was strung certain trolley or feed wires, to be con- structed and erected upon the curb line of said highway in so improper and negligent a position as to project out upon and over the driveway leading from the house of said fire patrol company, across the sidewalk and to the roadway of said avenue, in such a manner as to form, then and there at that time, as well as for a long time prior thereto, and at that place, an obstruction and a danger to all persons or vehicles, who or which might be lawfully and properly traveling upon said highway upon said driveway leading from said patrol house to the roadway of said avenue; and that said pole was suffered and allowed by the defendant on or about the day of ) 19 , and for a long time prior thereto, to re- main and be in such improper, unsafe, unlawful and dangerous condition without proper protection or notice to travelers against said dangerous oljstructions; and that on said day of , 19 , and for a long time prior thereto, defendant had full knowledge and notice of the fact that the said pole or post was in such dangerous, unlawful, improper, unsafe And un- guarded pof-ition, and that it formed such obstructions as afore- said, but that said defendant after such notice of such dangerous, unsafe and unlawful position of said pole as aforesaid and after demand and request to remove said pole from such dangerous, unlawful, unsafe and unguarded position, refused to do so, and continued to maintain said pole or post at said place, with full knowledge that said pole or post was a continuous menace and danger to the life, limb and property of persons using said drive- way, and said public street or highway. VIII. That said plaintiff on or about the day of , 19 , while traveling upon said driveway leading from Complaints 327 Negligence the said fire patrol house across the sidewalk to the roadway of said public street or highway known as avenue, in a prudent and proper manner upon said fire patrol wagon, while engaged in answering an alarm of fire, which wagon was propelled by a team of well-trained, safe, gentle and reliable horses, driven by a competent and careful driver, accustomed to drive said team, and wholly unaware of any danger, was by means of the unsafe, dangerous and unguarded position of said post or pole, and without any fault or negligence upon the part of plaintiff, crushed between said pole and said fire patrol wagon, and pre- cipitated from said fire patrol wagon and violently thrown upon said highway by reason of the unsafe, dangerous, improper, unlawful and unguarded position and location of said post or pole; whereby plaintiff was severely injured and bruised upon and about his body, back, arms and legs, and suffered an oblique fracture of the middle one-third of the right thigh bone, there- upon causing a permanent shortening of the plaintiff's right leg, and in other respects greatly hurt, bruised and wounded, and thereupon rendered sick, sore, lame and disabled, and has ever since that time so remained and still so continues, thereupon rendering plaintiff unfit and unable to pursue his usual vocation, which he had regularly pursued prior to said injuries; by reason whereof, plaintiff was hindered and prevented from performing and transacting his necessary business affairs, and still continues, and plaintiff believes and alleges that he will be permanently injured by said accident to his damage $ IX. That said accident occurred without any negligence or fault on the part of the plaintiff, and solely by reason of the n{>gli- gence and fault of the defendant, its agents, servants and em- ployees. Wherefore [demand for money judgment]. 328 • Bradbury's Forms of Pleading Negligence III. Vessels Form No. 280 Collision Between Scow and Steam Tug ^ ' ■■ Supreme Court, county. The Rockland Lake irap Eock Company, Plaintiff, against The Lehigh Valley Railroad Company, Defendant. The plaintiff complaining of tue defendant, alleges : I. The plaintiff is and was at the times in this complaint men- tioned, a domestic corporation of the State of New York, duly organized, and the charterer of the scow "H." II. The defendant, the L. V. R. Co., is and was at the times herein mentioned, a foreign corporation, duly organized under the laws of the State of , owning and operating a steam vessel or tug, known as the " S." III. That on or about the day of , 19 ; at about o'clock in the afternoon, the scow "H,'' above named, was being towed on the waters of New York Bay from to the river, and while said scow was proceeding up the river in a proper manner, without any fault or neglect on the part of those in charge of the said scow, at a point' about off street. New York City, in or near the middle of the river, the tug "S," owned and operated by the defendant as aforesaid, having a car float in tow, was so carelessly and neg- ligently managed by the servants and agents of the defendant, ' From Rockland Lake Trap Rock Co. v, Lehigh Valley R. Co., 115 App. Div. 628; 101 Supp. 222; in which, because of an erroneous charge, a judg- ment in favor of the defendant was reversed. The opinion says, at p. 632: " ... it the plaintiff in this action, in hiring a seaworthy and competently manned steam tug to tow his scow, surrendered the navigation to the latter, under such circumstances that no active duty was left for him to perform, then he is entitled to recover, notwithstanding the concurrent negligence of the steam tug which was in charge of the tow." COMPLAIXTS 329 Negligence that the car float collided with the scow "H," striking the scow on the starboard corner and doing considerable damage to said scow. IV. That the fault and negligence on the part of the "S" and the agents and servants of the defendant navigating such tug consisted in: 1. That said tug changed her course to cross the bow of the plaintiff's scow when the tug was too near to make such change with safety. 2. That the tug "S " failed to give any signals or blow whistles indicating her purposed course. 3. That the tug "S" failed to stop and back when the danger was imminent. 4. That said tug after colliding with the plaintiff's boat pro- ceeded on her way, without ascertaining what damage she had done. 5. That the tug "S" was improperly navigated, and as the plaintiff is informed and believes, was in charge of an incompe- tent pilot and without a proper lookout. V. That by reason of such collision the plaintiff has sustained damage in the amount of $ Wherefore [prayer for money judgment]. [Signaiure and office address of attorney, and verification.] Form No. 281 Injury to PlaintifE From a Collision Between a Tow and the Abutments to a Bridge ^ I. That on or about the day of , 19 , the defendant owned and operated through his agents and servants the tug, "W. J. S." plying in and about the harbor of the city of New York, and on said day was by means of said tug thus oper- ated, engaged in towing barges, lighters, etc., through N. creek, and in doing so the said barge or lighter, or other boat in tow of said tug, collided with the bridge or abutment thereof at the point ^ From McGuire v. Moran, 76 App. Div. 325; 78 Supp. 422; in which a judg- ment for the defendant was reversed. tJ30 Bradbxtry's Forms of Pleading Negligence where avenue intersects said N. creek and in doing so destroyed and threw down the abutments and approaches of said bridge at said point. II. That this plaintiff was then and there lawfully standing in the highway on the approaches to said bridge at said point, and was by said collision thrown down on the abutments and founda- tions of said bridge and severely injured about the head, body and limbs externally and internally, put to great expense for medical and surgical attention, suffered great pain, loss of time and ability to labor, and otherwise was generally painfully and extensively injured, and, as he has been informed and verily believes, permanently and increasing in the future. III. That the said collision and the injuries resulting there- from, as above set forth, to this plaintiff, were due entirely to the negligence of the defendant, his agents and servants, in the careless and negligent way in which they navigated and towed said tug and barge, in running into said bridge and abutments, in not avoiding said collision and otherwise in the negligent, care- less and reckless conduct of said defendant, his agents and serv- ants on said boats, and in no wise due to any negligence on the part of this plaintiff. IV. That by reason of the premises this plaintiff has been dam- aged in the sum of $ , , for which he demands judgment, together with the costs and disbursements of this action. Complaints 331 Negligence IV. Municipal Corporations Form No. 285 Premature Explosion of Fireworks on City Street ' Supreme Court, county. Solomon Landau as administrator of the goods, chattels and credits that were of George Landau, deceased, Plaintiff, against The city of New York, Defendant. The plaintiff complaining of the defendant, alleges : L Upon information and behef that at all the times hereinafter mentioned the defendant was and still is a domestic municipal corporation, duly incorporated and organized under and pursu- ant to the laws of the State of New York, under its corporate name, style and title of The City of New York. II. Upon information and belief that one of the public streets and thoroughfares of the said defendant at all the times herein- after mentioned, and more particularly on or about the day of , 19 , and for a long time prior thereto was known and designated as avenue, a part of said avenue being bounded on the west by square and crossing and streets and other streets on the line of said avenue, in the borough of Manhattan, city of New York, said avenue having been for many years and still being used as a public street, and by the public generally, and for travel by pedestrians and others. III. Upon information and behef that at all the times here- inafter mentioned and more particularly on or about the 1 From Landau v. City of New York, 180 N. Y. 48; in which a judgment of nonsuit was reversed, the court holding that the case should have been sub- mitted to the jury. See the companion case of Menkel v. City of New York, which was reported in the N. Y. Law J., Jan. 29, 1908. S32 Bradbury*s Forms of Pleading Negligence day of , 19 , and prior thereto, it was the duty of the defendant to keep and maintain said avenue in a good, safe and passable condition and free from danger and peril to persons lawfully on said street. IV. Upon information and belief that on or about the evening of the day of , 19 , there was a display of fireworks consisting of rockets, bombs and other highly explosive and dangerous fireworks in the said pufelic street and thorough- fare east of square and between about and streets, in the borough of , city of New York. V. Upon information and belief that said display took place on said public streets and thoroughfare in the presence of and in close and dangerous proximity to large crowds of people who were witnessing said display and ignorant of the danger thereof. VI. Upon information and belief that said display so took place on said public street and thoroughfare in the presence of said crowd as aforesaid with due notice to and the permission and sanction of the said defendant. VII. Upon information and belief that said display so took place on said public street and thoroughfare in the presence of said crowd as aforesaid under the supervision of the said defend- ant. VIII. Upon information and beUef that said defendant know- ingly authorized and permitted said display as aforesaid. IX. Upon information and belief that said display rendered the said public street and thoroughfare unsafe and dangerous for the public lawfully thereon and that said use of said street was" unreasonable, unwarranted, unlawful and wrongfully ex- posed persons and property to injury, and that the same at all said times was a nuisance wrongfully and unlawfully so per- mitted and authorized. X. Upon information and belief that on said evening by rea- son of the said nuisance and the carelessness and negligence of the defendant in and about its supervision and of said display and handling of said crowd of people, and in failing to keep the Complaints 333 Negligence said crowd at a sufficient and safe distance from said display and to warn the said crowd of the dangers attending the said display, and its carelessness and negligence in so permitting and authoriz- ing said display, and in and about its charge, care, management and control of said public street and thoroughfare, the same being so rendered unsafe and dangerous as aforesaid by reason of said display as aforesaid, the defendant having had due notice thereof, the above-named G. L., who composed one of said crowd and who was lawfully on said public street and thoroughfare and ignorant of the danger attending said display, was t^cverely and permanently injured, wounded and bruised by the explosion of one of said bombs or other highly explosive and dangerous fireworks, so that by reason of the injuries then and there re- ceived by him the said G. L. was killed, said injuries causing his death, all without any fault, carelessness or negligence on the part of said G. L. XI. That said G. L. was eighteen years of age at the time of his death, and died intestate at the borough of , city of New York, on or about the day of , 19 , leaving him surviving as his next-of-kin S. L., the plaintiff, his father; M. L., his mother; and two brothers and two sisters, to wit: S. S. L., M. L., B. R. and L. L., all residing in the city of New York. XII. That by reason of the death of said G. L. in the manner aforesaid the plaintiff and said next of kin have sustained great pecuniary loss and have been compelled to expend moneys for the funeral expenses of said deceased and have been otherwise injured to the damage of the plaintiff and said next of kin in the sum of $ XIII. That before the commencement of this action and on or about the day of , 19 , letters of administra- tion upon the goods, chattels and credits of said G. L., deceased, were duly issued and granted to S. L., the plaintiff, by one of the surrogates of the county of New York [to whom such jurisdiction belonged] appointing the plaintiff administrator of the goods, chattels and credits which were of said r'oceased, and the plaintiff 334 Bradbury's Forms of Pleading Negligence thereupon duly qualified as such administrator and entered upon the discharge of the duties of his said office. XIV. That before the commencement of this action and on or about the day of , 19 , the plaintiff duly presented for adjustment to the comptroller of the defendant the claim hereinbefore set forth upon which this action is founded, and that more than thirty days have elapsed since the presenta- tion of said claim, and that said comptroller has wholly failed and refused to make any adjustment or payment thereof. XV. That before the comnicncement of this action and on or about the day of , 19 , notice was duly given and filed with the corporation counsel of the defendant [being the proper law officer] of the intention of the plaintiff to commence an action to recover for the injuries aforesaid, which said notice contained a true statement of the time and place at which said injuries were received. Wherefore [prayer for money jvdgment], [Signature and office address of attorney, and verification.] Form No. 286 Projecting Manhole Cover in Street ^ I. That the defendant is and at all the times herein stated was a domestic municipal corporation. II. That pursuant to the statutes in such case made and pro- vided, the plaintiff duly presented his claim against the defend- ant as hereinbefore described, and duly served a notice of said claim upon the comptroller of the city of New York, and de- manded payment of the same; that more than thirty days have elapsed since the claim aforesaid, upon which this action is founded, was presented to the comptroller of the city of New York for adjustment, and that the said comptroller has failed to make an adjustment or payment thereof for thirty days after ' From Schafer v. Mayor, etc., of N. Y., 154 N. Y. 466; in which a judgment dismissing the complaint was reversed and it was held that the question raised, while a close one, should have been submitted to the jury. Complaints 335 Negligence the said presentment; that a notice of intention to bring this action was duly served on the counsel to the corporation herein named, as required by the Laws of 1886, chap. 572. IIL That at all the times hereinafter mentioned, street, between and avenues, was and still is a public thoroughfare in the aforesaid city of New York, and that it is and was at all the times hereinafter mentioned, the duty of the defendant to keep and maintain the said thoroughfare in a safe and proper condition for the use and benefit of the public having occasion to use the same. IV. That on or about the day of , 19 , the defendant herein named wrongfully, negligently and care- lessly kept and maintained in the said street, near the southeasterly corner of avenue, at about feet from the intersection of avenue and street, and permitted to be retained in said street a manhole projecting above the level of the roadway to a height of inches or thereabouts; that on the said day of , 19 , the deceased F. S., while occupied in the lawful discharge of his duties, was driving a team of horses attached to a wagon of great size and weight, said wagon being laden with barrels of beer, through street in an easterly direction; that when the said F. S., deceased, passed through the said street at the point herein mentioned, one of the wheels of the said wagon struck an obstruction caused by the wrongful projection of the manhole aforesaid; that the force of the collision precipi- tated said F. S. from the wagon upon which he was seated, and caused him to fall into the street and under the wheels of the said wagon; that as a direct result of the injuries thereby sustained, said F. S. died on the said day of , 19 . V. That the injuries sustained by the said F. S. and his death were caused solely by the negligence and defective condition of the said street at the place and point aforesaid, and by the negligence of the defendant in permitting the said street, at said point or place, to remain in said unsafe, perilous and defective condition. 336 Bradbury's Forms of Pleading Negligence VI. That the said F. S. in no way or manner contributed to the negligence or negHgent acts which caused his death. VII. [Allegation that the deceased, F. S., died intestate and that plaintiff sues as administrator. See Form No. 285, paragraph XIII.] VIII. That this action is brought by the plaintiff herein for the benefit of the widow of the said F. S., deceased, and his next of kin, for the damages they have sustained owing to his death. That the deceased, F. S., left him surviving a widow and a son; that said widow and child are dependent upon him for sustenance and sustained great pecuniary injury by his death, to their dam- age in the amount of $ Wherefore [prayer for money judgment]. Form No. 287 Dangerous Pit in Highway Made by Defendant; Independent Contractor of Municipal Corporation ^ I. That on the day of , 19 , and for a con- siderable period prior thereto, the defendant F. was engaged in the construction of a sewer in avenue, in the city of , with the aid of certain servants employed by him and at the same time. II. And at said day and for a long time prior thereto, the said defendant had neghgently and carelessly permitted the curb- stone at the corner of street and avenue to remain at a perpendicular elevation above the sidewalk of about inches, an unreasonably long time, and while there water came and accumulated to a large extent, long prior to the day aforesaid. III. That said defendant, F. & B., in order to drain the said water, negligently, carelessly and without right, dug a pit in the said highway and thereby drained the same for their own 1 From Charlock v. Freel, 125 N. Y. 357; aff'g a judgment for the plaintiff; SO Hun, 395; 3 Supp. 226. As to when municipal corporation is liable for acts of independent con- tractor, see Goldschmid v. Mayor, etc., of N. Y., 14 App. Div. 135; 43 Supp. 449. Complaints 337 Negligence convenience, and immediately thereafter left the said pit in the highway for no purpose or reason whatever, carelessly, negli- gently and wrongfully uncovered, unprotected and unguarded, \yith no light to indicate or show the same, and in consequence of the matters aforesaid, while the plaintiff was carefully and law- fully passing over said highway after dark she was caused to step into said pit and trip over and fall upon said curb, and her elbow was dislocated and she sustained a severe shock to her nervous system. Wherefore [prayer for money judgment]. Form No. 283- Obstruction in Street; Injury to Street Car Conductor ^ I. That at all times herein mentioned the defendant was and now is a municipal corporation in the county of , duly organized, incorporated and existing under the laws of the State of New York, being burdened with the duty of at all limes main- taining its streets and highways in a condition reasonably safe for public travel. II. That on the day of , 19 , at or about o'clock in the very dark morning of that day, while the plaintiff was lawfully and of right traveling upon and using avenue, one of the public highways of the defendant, upon a trolley car of the Westchester Electric Railway Company then and there being lawfully and rightfully operated by such railway company upon such highway, he being then and there employed upon the said trolley car by the said railway company as and in the capacity of the conductor thereof, and while then and there actually and carefully engaged in the discharge of his duties as such conductor, standing upon the running board along the side of the said car, his body was suddenly and unexpectedly brought in contact and forcible collision with a dangerous obstruction which had been caused, created and authorized, and upon, and 1 From Nichols v. City of New Rochelle, 111 App. Div. 921; 96 Supp. 1138; where a judgment for the plaintiff was affirmed. See former report of the case, 105 App. Div. 77; 93 Supp. 796. Vol. 1-22 33S Bradbury's Forms of Pleading Negligence for several months immediately prior to, the said day of , 19 , carelessly and negligently permitted by the defendant to be and remain in the traveled part of the said avenue, in such dangerously close proximity to the track of the said railway company, as to cause such contact and collision; the said obstruction being and consisting of an extensive and very deep cut, excavation or trench, made for the purpose of constructing the public sewer in such highway, and the irreg- ular, extending and protruding plank and timber shoring of and above the sides of the said cut, trench or excavation, and having been at and for several months previous to, the time of the con- tact and collision aforesaid carelessly and negligently permitted by defendant to exist without guard, light, protection or super- vision, and without notice or warning of any kind of its presence or existence, of which presence or existence at or previous to the time of such collision plaintiff had no notice or knowledge. III. That by reason of said contact and collision the plaintiff was violently swept from the said car and forcibly hurled into the said trench, a depth of about feet, in consequence of which he sustained serious and severe internal and external wounds and injuries, his limbs and body were bruised and wrenched, his nose broken, and his head cut and bruised, by all which he was made sick, sore and lame, was confined in the hos- pital at for upwards of one week, suffered great pain, was wholly incapacitated from performing manual labor, and will be so incapacitated for some considerable future time, has undergone medical and surgical treatment, and is now under- going such treatment, for such injuries, and now suffers, and will be compelled to suffer in the future, great pain of body and mind. IV. That the said contact and collision of plaintiff's body with the said obstruction, and the said injuries resulting therefrom, as aforesaid, were caused and suffered solely by reason of the careless and negligent failure and omission of the defendant in its legal duty to keep the said avenue in a condition reasonably safe for travel, in that it caused, or carelessly and Complaints 339 Negligence negligently permitted the previous existence for several months of, the said obstruction in the said highway in such dangerously close proximity to the track of the said railway company, with- out properly guarding, lighting or indicating the same, or giving v>arning or notice of its existence, as to cause the said contact and collision of the plaintiff therevi ith, and were in no way caused or contributed to by any negligence on plaintiff's part. V. That by reason of the matters and things hereinbefore set forth the plaintiff has suffered and sustained damages in the sum of $ VI. That on the day of , 19 , the plaintiff duly presented to the common council of the defendant, in writ- ing, a claim against the defendant for the sum of $ , for the said injuries suffered by him on account of the negligence hereinbefore alleged, wherein he described the time, place, cause and extent of the injuries for which such claim was made, and gave the names of all persons present at the time when the injuries were sustained, so far as the same were known to him, and also the nature and extent of the said injuries for which such claim was made, which claim was verified by the oath of the plaintiff, who was the claimant therein named; that on the day of , 19 , such common council considered the said claim so presented by plaintiff, refused payment thereof, and thereupon referred it to the corporation counsel of the de- fendant for the purpose of resisting and contesting its enforce- ment. Wherefore [prayer for money judgment]. Form No. 289 Dangerous Street; Steep Declivity at End of Street Improperly Guarded ' I. That the defendant now is and was at the times hereinafter mentioned a domestic municipal corporation. II. Upon information and behef, that one of the public streets 1 From Corcoran v. City of New York, 188 N Y. 131, in which a judgment in favor cf the plaintiff was affirmed. 340 Bradbury's Forms of Pleading Negligence and thoroughfares of said defendant at all the times hereinafter mentioned and more particularly on or about the day of , 19 , and for a long time prior thereto, was known and designated as avenue, the southwesterly end of which terminates at a platform about feet above the tracks of the railroad now operated by the N. Y. C, etc., R. Co., which runs along the northerly bank of the Harlem river in the borough of the Bronx, in the city of New York aforesaid; and that said avenue had been for many years and still is used as a public street by the public generally and for travel by pedestrians and others. III. Upon information and belief, that for a number of years prior to some time in the year 19 , the southwesterly end or terminus of avenue aforesaid had been connected by an abutment of stone built upon a rocky bluff with a certain bridge known as Central Bridge, which connected at or near that point the present borough of the Bronx with the borough of Manhattan in the city of New York ; that some time in the year of 19 the city of New York, through its properly constituted authorities or agents, did detach the end of Central Bridge afore- said from the southwesterly end or terminus of avenue aforesaidj leaving at that point an abrupt precipice or declivity with a fall of about feet down upon the track of the railroad aforesaid ; and did place at said end or terminus of avenue aforesaid no adequate barrier or fence to" warn the public of this dangerous locality. IV. Upon information and belief, that thereafter this defend- ant did cause avenue aforesaid to be paved with brick to and beyond avenue down to the precipice or declivity at the end or terminus of avenue aforesaid, and did per- mit the company of New York City, a street railway corporation, to extend its tracks down to the end or terminus of avenue aforesaid, so that in all respects said avenue from avenue to its southwesterly end or terminus did thereafter, and especially upon the day of , 19 , have the appearance of a traveled thoroughfare, street, Complaints 341 Negligence avenue, or highway, in the borough of the Bronx, in the city of New York, aforesaid. V. Upon information and behef, that shortly after the said Central Bridge was removed from the southwesterly end or ter- minus of avenue aforesaid, and some time in or about the year of 19 , the city of New York did place across the said southwesterly end or terminus of avenue aforesaid a picket felice about feet inches in height, which the defendant continued to and did maintain down to and on the day of , 19 , and which, on said last- mentioned day, and for a long time prior thereto had become rotten, defective, broken down in places and was unpainted and weatherbeaten, so that the same could not readily and without great difficulty be seen at night by persons riding or driving in or upon avenue aforesaid, and also the said fence was not plainly visible or easily discernible at night by reason of the fact that said street, avenue and highway, to wit, avenue, was not properly or sufficiently lighted, or supplied with light, at the point, place or locality where the accident herein- after set forth occurred. VI. Upon information and belief, that on two different occa- sions prior to the day of , 19 , a horse and wagon and an automobile had gone through the fence aforesaid by reason of which the horse and wagon fell to the track of the railroad aforesaid, and the automobile after passing partially through the fence had been stopped on the brink of the precipice or declivity; of all of which this defendant had notice, but not- withstanding which the defendant thereafter failed and neglected to repair said fence properly or make same safe or to erect a safe barrier to protect the traveling public using said street or thor- oughfare from going over said precipice at the southwesterly end or terminus of avenue aforesaid down upon the track of the railroad aforesaid. VII. Upon information and belief, that during the entire period from the removal of the Central Bridge aforesaid from the southwesterly end or terminus of avenue aforesaid, 342 Bradbury's Forms of Pleading Negligence this defendant has been in possession of ample funds raised by taxation and assessment under the powers granted to it by the legislature of the State of New York to have constructed a safe barrier, or otherwise so plotted or laid out the said southwesterly end or terminus of avenue aforesaid so that it would not have appeared to be a continuing street or avenue or connecting with a bridge to the borough of Manhattan, in the city of New York; but that it, this defendant, negligently refrained and neg- lected so to do. YIII. Upon information and belief, that theretofore and on or about the day of , 19 , at about o'clock in the forenoon, M. C, this plaintiff's intestate, was riding in an automobile lawfully operated by one A. H. N., an ex- perienced chauffeur, in, upon, over or through said avenue, and while so riding in said automobile and proceeding in a southerly direction in the roadway of said avenue, the said automobile came in contact with, struck against and went through the fence aforesaid, and, with its occupants, con- sisting of persons, including plaintiff's intestate, fell down said declivity upon the ground below and the track of said railroad in front of a railroad train then and there proceeding or moving upon said track and so near the said automobile and to said M. C. and the other occupants thereof that collision there- with could not be avoided by said M. C, this plaintiff's intestate, A. H. N., the chauffeur, or the engineer in charge oflsaid train, as a result of which the plaintiff's intestate, said M. C, received many serious and fatal injuries by reason of which she then and there died. IX. That this plaintiff has necessarily paid out for funeral and burial expenses of said M. C. the sum of $ X. That plaintiff's intestate, M. C, was at the time of her de- mise as aforesaid a woman in good health and employed as a waitress in one of restaurants in the city of New York, from which she derived wages and perquisites amounting to in or about the sum of $ XI. That the accident aforesaid and the injuries sustained by Complaints 3 13 Negligence plaintiff's intestate resulting in her death as aforesaid were not caused or contributed to by any negligence on the part of said plaintiff's intestate, M. C, but were due entirely to the negligence of this defendant, its officials, employees or agents. XII. That, said M. C. left her surviving this plaintiff, her mother, who was entirely dependent upon her, M. C, plaintiff's intestate, for maintenance and support, this plaintiff being old and infirm and incapable of earning her own living. XIII. [Allegation that plaintiff sues as administratrix. See Form No. 265, paragraph III.] XIV. Upon information and belief, that heretofore and on or about the day of , 19 , and more than thirty days prior to the commencement of this action, the claim upon which this action is founded was presented to the comp- troller of the city of New York for adjustment, and said comp- troller has neglected and refused to make an adjustment or pay- ment thereof for thirty days after such presentment. That heretofore and on or about the day of ; 19 , and within six months after the cause of action set forth in the complaint herein occurred, notice of the intention to commence this action and of the time and place at which the injuries were received was duly filed with the corporation counsel of the city of New York. XV. That by reason of the death of said M. C, the daughter of this plaintiff, she [this plaintiff] has sustained damages in the sum of $ Whereforf; [prayer for money judgment]. Form No. 290 Allowing Trucks to Remain on Streets ' I. That the defendant was and still is a municipal corporation duly incorporated and existing as such by virtue of the laws of the State of New York. II. That one of the public streets or thoroughfares of the city of New York is known and designated as street, which 1 From Farley v. Mayor, Alderman, etc., of N. Y., 152 N. Y. 222. 344 Bradbury's Forms of Pleading Negligence for many years was and still is used as a public street and is used for travel by pedestrians and vehicles. III. Further, upon information and belief: That at all the times hereinafter mentioned it was and still is the duty of the defendant to keep and maintain said public street and the driveway thereof in a good, safe and passable condition and free from obstruction. IV. Further, upon information and belief. That the defendant, disregarding its duties in the premises, on or about the day of ) 19 , allowed the driveway of said street and thoroughfare, known and designated as street, between and streets, in said city, to be and remain in an unsafe and dangerous condition, and carelessly and negligently suffered and allowed an obstruction, consisting of a wagon or truck, to be and remain in the driveway of said street, near the premises known as street, between and streets, in said city. V. That on or about the day of , 19 , while the plaintiff was lawfully driving a vehicle in the driveway of said street, at the place aforesaid, through the aforesaid carelessness and negligence of the defendant, the said vehicle was driven against and came in collision with the said wagon or truck, thereby causing the plaintiff to fall down and violently strike the ground, severely injuring, wounding and bruising the plaintiff, without any fault, carelessness or negligence on his part. » VI. That by reason of the premises and the facts and matters aforesaid, the plaintiff sustained a fracture of his skull, cerebral concussion, meningitis, fracture of right collar bone, and severe wounds, bruises and contusions in and upon his body, was neces- sarily obliged to submit to medical and surgical treatment in endeavoring to be healed of said injuries, and to pay, lay out and expend moneys for the same, and for drugs, medicines and lini- ments in and about the same; became sick, lame and sore; is informed and verily believes that his injuries are of a lasting and permanent character, and that he was otherwise injured to his damage in the sum of $ Complaints 345 Negligence VII. That before the commencement of this action, and on the day of- , 19 , the plaintiff duly presented to the comptroller of the city of New York, a claim heretofore set forth upon which this action is founded, and that thirty days have elapsed since the presentation of said claim before the com- mencement of this action, but that said comptroller has wholly neglected and refused to make any adjustment or payment thereof. VIII. That before the commencement of this action, and on the day of , 19 , notice was duly given and filed with the counsel for the corporation of the city of New York [being the proper law officer of the defendant] of the intention of the plaintiff to commence an action for the injuries aforesaid, and that said notice contained a true statement of the time and place at which said injuries were received. Wherefore [prayer for money judgment]. Form No. 291 Defective Sidewalk; Delay in Serving Notice on Municipality Excused ^ I. That the defendant is, and at all times hereinafter men- tioned was, a municipal corporation organized and existing under the laws of the State of New York. II. That the street known as street in said city of , at or near the junction of street, at the time hereinafter mentioned, was a much traveled thoroughfare in the center of said city, and the sidewalks thereof were in constant use by citizens of said defendant and others, it being the duty of said city to maintain the said walks in good repair, so that all persons might travel over the same in safety. That on the day of , 19 , a certain sidewalk upon the side of street, in said city, directly opposite where street intersects said street, 1 From Walden v. City of Jamestown, 178 N. Y. 213; aff'g 79 App. Div. 433; 80 Supp. G5; wherein a judgment for the plaintiff was affirmed. The principal point discussed is the sufficiency of the notice served on the munici- pality. 34o Bradbury's Forms of Pleading Negligence and in front of the premises then occupied by L. J. P., was in a dangerous and unsafe condition and had been in such dangerous and unsafe condition for a long time prior thereto, said defendant having neglectfully and carelessly permitted said sidewalk to be and remain in said unsafe and dangerous condition; that many of the planks thereof were broken, so that deep and large holes were in said walk, and boards and planks thereof were old and decayed, and were not nailed, or in any manner fastened to the timbers across which they were laid; that many of the planks thereof were entirely removed from said walk into the gutter of the street; that the defendant failed to keep and maintain said walk in good repair, and neglectfully suffered it, and the planks of which it was composed, to become rotten and danger- ous to persons passing along it, of all of which the defendant had notice. III. That on or about the day of , 19 , at about the hour of o'clock, p. m., while the plaintiff was walking along said walk in a prudent and careful manner, she stepped into one of the holes in said walk, caught her foot on one of the planks thereof, and was precipitated violently forward, striking on her face; the said fall being due to the defective con- dition of said walk, as aforesaid, and was without negligence on the part of this plaintiff; and that the plaint' ff thereby sustained injuries to her left leg, knee and back, and severe internal in- juries, and severe injury to her nervous system, and was made sick, sore and lame, and greatly bruised and wounded, and in consequence thereof, has suffered, and still suffers, great pain, and has been for a greater part of the time since said accident, hindered and prevented from attending to her business and domestic affairs ; and has been put to great expense in trying to be cured of said injuries; and that the plaintiff verily believes said injuries to be permanent, and that by reason thereof, she has sustained damage to the amount of $ IV. The plaintiff further alleges that for some time after re- ceiving the injury aforesaid, and because of the shock to her nervous system, and the great pain from which she was suffering, Complaints 347 Negligence she was in a semiconscious condition, absolutely not being able to transact any business whatsoever, or to prepare to give in- formation sufficient for others to prepare a notice of said acci- dent, by reason of said fall; but that as soon as plaintiff had sufficiently recovered from her distressed mental and nervous condition, and as soon as it was physically and mentally possible for her to do so, and on the day of , 19 , at about o'clock, p. m., she caused a notice of said injury to be served upon the city clerk of the defendant, a copy of which notice is hereto attached marked Exhibit "A," and made a part of this complaint, said notice having been served about 72 hours after the said accident in which the plaintiff received the injuries, as hereinbefore alleged.* V. Upon information and belief that said city clerk received and filed said notice, and that reference thereto, and the subject thereof was duly spread on the minutes of the common council of the defendant, at a regular meeting thereof, held a few days after the services of said notice; that the said matter was brought up for discussion at said meeting, and that said notice ever since has been, and still is, retained by the defendant. VI. The plaintiff further alleges that thereafter, and on the day of , 19 , the plaintiff caused to be pre- sented to the common council of said defendant, a claim for the injuries received, as above alleged, said claim being in writing, and duly verified by the plaintiff, stating the time, place, cause, nature and extent of the alleged injury, so far as it was then prac- ticable to make the same; that said claim was presented within days from the time said injuries were sustained, and that more than months have elapsed since the presenta- tion thereof, as above stated, and that said defendant has neg- lected and refused to pay said claim, or any part thereof. Wherefore [prayer for money judgment]-. * By L. 1898, c. 231, § 2, it was required that this notice should be served within forty-eight hours after the accident. The Court of Appeals held that this notice was a sufficient compliance with the statute under the circum- stances of this case. Walden v. Jamestown, 178 N. Y. 213. 348 Bradbusy's Forms of Pleadins Negligence Form No. 292 Sidewalk in Unsafe Condition by Reason of Building Operations ' I. On or about the day of , 19 , and before the commencement of this action, said E. L. C. died intestate in the city, county and State of , and a resident of said county. That on or about the day of j 19 , letters of administration upon the estate of E. L. C, deceased, were duly issued and granted to plaintiff by one of the surrogates of the said county of appointing her administratrix of all the goods, chattels and credits which were of said deceased, and that plaintiff thereupon duly qualified and entered upon her duty as such administratrix. II. That the defendant, the city of , is, and at all times hereinafter mentioned was, a municipal corporation exist- ing under and by virtue of the laws of the State of New York and more particularly and under by virtue of chap. 378, Laws of 1897, and the acts amendatory and supplementary thereto. •III. Upon information and belief that the defendant, C. A. C, is, and at the times hereinafter mentioned was, a general build- ing contractor, and engaged at all times herein alleged in erect- ing or causing to be erected a building running north and west from the northwest corner formed by the intersection of avenue and street, in the borough of , city of IV. Upon information and belief that the defendants, J. G. M. and C. A. H., are, and at all times herein mentioned were, co- partners, doing business under the firm name and style of J. G. M. & Co., and carrying on a general building business, and as such were at all times herein alleged engaged in constructing the build- ing aforesaid, under a subcontract from the general contractor, C.A.C. V. That the street known as avenue, between street and street, in the borough of , city of , at all times herein mentioned was a much traveled 1 From Parks v. City of N. Y., 187 N. Y. 555; in which a judgment against the city of New York was affirmed. Complaints 349 Negligence and crowded thoroughfare, in the central part of the said city, and the sidewalks thereof were in constant use by citizens of said defendant, the city of N. Y., and others. VI. That the defendant, the city of N. Y., as such municipal corporation had charge of the streets and sidewalks laid out and existing in said city, and it was the duty of the said city to use reasonable care and diligence in the management, care and con- duct of said streets and sidewalks and of any alterations or change thereof and at all times keep the same in a safe condition for travelers thereon. VII. That at and for a long time prior to the day of , 19 , the defendant, the city of N. Y., wholly disre- garded its said duty and wholly failed to use reasonable care and diligence in the management and care and conduct of its side- walks, streets or highways and to keep the same in safe condition at the locality and at the times herein mentioned in this, to wit: said city of N. Y. negligently and carelessly permitted the side- walk to be removed; a deep and dangerous excavation to be dug immediately under and on the westerly side of said avenue, between and streets, and knowingly, negligently and carelessly further permitted under its direction the construction in place of the sidewalk removed an improper, unsafe, weak and dangerous temporary sidewalk or bridge im- properly constructed of improper and unsound material of in- sufficient strength for the ordinary traffic thereon, immediately over said deep and dangerous excavation; and with due notice and knowledge, negligently and wrongfully suffered the same to be and remain, for a long space of time, in said dangerous and unsafe condition and wholly failed to, in any manner, warn or notify the travelers thereon of said dangerous and unsafe con- dition of said temporary sidewalk, or bridge on said highway. VIII. Upon information and belief, that prior to the day of ,19 , the defendants, C. A. C, J. G.M. and C. A. H., negligently and carelessly removed the sidewalk between street and street, on the westerly side of avenue, in the borough of , city of ,\ and 350 Bradbury's Forms of Pleading Negligence dug a deep and dangerous excavation thereunder, and negligently and carelessly constructed and built immediately over said deep and dangerous excavation a faulty and unsafe temporary side- walk or bridge, imperfectly constructed of weak and defective material and timbers and of insufficient strength for travelers thereon and suffered the same to remain in said unsafe, careless, dangerous and faulty condition. IX. That on the day of , 19 , between the hours of o'clock and o'clock in the afternoon of that day, while the plaintiff's decedent was traveling or passing in and upon said public street and sidewalk or temporary side- walk, as, by law, he had a right to do, and without any negligence, carelessness or fault on his part, using all due care, and ignorant of its dangerous condition, he, said plaintiff decedent, was then and there precipitated into said deep excavation, by the collaps- ing of said temporary sidewalk, which collapsing of said tempo- rary sidewalk was due solely to the wrongful act, fault, negligence and carelessness of the defendants and each of them, by reason of said plaintiff's decedent being precipitated into said excava- tion, as aforesaid, he received great, serious and fatal bodily injuries resulting in his death. X. That the defendants and each of them would have been liable in damages in an action by and in favor of the deceased, the plaintiff intestate, for said wrongful acts, negligences, faults and wrongdoing causing the death of the deceased, had death not ensued. XL That said E. L. C, deceased, left him surviving, M. E. C, widow, and Z. Z. I. C, I. 0. C, L. C, children and next of kin. XII. That by the laws of the State of New York, the plaintiff, as personal representative of the deceased, has a cause of action for the death by the negligence of the defendants for the benefit of the next of kin of the deceased. XIII. By reason of the said wrongful acts, negligences, faults and wrongdoing of the defendants the plaintiff has been dam- aged in the sum of $ XIV. That notice of intention to commence this action, and Complaints 351 Negligence of the time and place at which the injuries resulting in the death of plaintiff's decedent, hereinbefore alleged, were received, was duly filed by the plaintiff with the counsel to the corporation, the defendant, the city of N. Y., within six months after the cause of action herein accrued, and before the commencement of this action, and that this action was commenced within one year after said cause of action accrued. XV. That on or about the day of , 19 , the plaintiff duly presented the claim on which this action is founded to the comptroller of said city of N. Y., in writing, for adjustment, and that thereafter he refused and neglected for more than thirty days before the commencement of this action to make an adjustment or payment thereof, although the same was duly demanded. Wherefore [demand for money judgment]. Form No. 293 Flooding Due to Unsafe Condition of Water Pipes ' I. That he is and at the times hereinafter stated was engaged in business in the city of New York as a wholesale confectioner, and his place of business is, and at the times hereinafter mentioned was, the subcellar, basement, store floor and upper floor of the premises known as No. , street, of which he was at such times the lessee and occupant, and as such was entitled to the free and unmolested use, occupation and possession thereof. II. That at the times aforesaid the city of New York was a municipal corporation duly organized under and by virtue of the laws of this State, and the owner of a system of water supply for the city of New York and was bound and required by law to maintain in safe and proper condition the said water supply system and all its appurtenances and appliances. III. That on the night of , 19 , at about the hour of o'clock, p. M., a water pipe at or near the northwest corner of and streets in the city of New York, ^'From Dunstan v. City of N. Y., 91 App. Div. 355; 86 Supp. 562; in which a judgment for the plaintiff was affinned. 352 Bradbury's Forms of Pleading Negligence being part of the said water supply system, broke, and large quan- tities of water flowed therefrom and accumulated in an excava- tion made by F. G., defendant, at the northwest corner of and streets, and thence flowed into the subcellar of the premises No. , street immediately adioining the said excavation, and thence flowed into the subcellar of the premises No. , street, occupied by this plaintiff, and filled the said subcellar of the premises occupied by this plaintiff to a height of over seven feet, whereby large quantities of chocolates and confections and other valuable merchandise belonging to plaintiff, then stored in said subcellar, were greatly damaged or destroyed, to the plaintiff's loss in the sum of dollars. IV. That the defendant, F. G., assumed the duty of properly bracing, supporting and maintaining the said water pipe under the terms of the permit granted by the said city of New York to make the excavation hereinbefore referred to, and that said T. J. R ., defendant, under the instruction and at the direction of said F. G. made the said excavation. That the said break and the damage resulting therefrom were due to the negligence of said F. G. and T. J. E . in failing to properly perform said work and to the neghgence of the said defendant, the city of New York, in wrongfully maintaining said water pipe in a dangerous and unsafe condition contrary to the duty imposed upon it by law and to the negligence of all the defendants in not taKing such precautions as were necessary to properly protect this plaintiff from any damages that might occur by reason of the breaking of said water pipe. V. And plaintiff further alleges that heretofore and on the day of , 19 , he duly presented in writing to the comptroller of the city of New York his claim upon which this action is founded for adjustment and that the said comptrol- ler has wholly neglected and refused to make an adjustment or payment thereof for thirty days after such presentment. Wherefore [demand for money judgment]. Complaints 353 Negligence Form No. 294 Collision Between Carriage and Street Cleaning Department Wagon ' I. That the defendant is a municipal corporation organized under and pursuant to the laws of the State of New York, and had, at the time hereinafter mentioned, full charge and control of the Street Cleaning Department of the city of New York, and all the men employed therein, and the horses, wagons, and all other vehicles necessary to carry on the business of said depart- ment. II. That on the day of , 19 , the plaintiff was riding along the pubhc streets of the city of New York, to wit, street, crossing avenue, in said city, Manhattan borough, in a wagon drawn by a horse, both the property of the plaintiff, said wagon being of the value of $ , and said horse of the value of $ III. That a servant of the defendant, to wit, an employee of the Street Cleaning Department, so carelessly and negligently drove and managed a horse and wagon which was in the charge, custody and control of the defendant, and in the pursuit of the business of the defendant, that by reason thereof he permitted the said horse to remain on the street without being guarded or tied, whereby said horse ran away, and said horse and wagon struck the plaintiff's wagon and overthrew and broke the same, cut the plaintiff's horse, injuring said horse severely on the leg and threw the plaintiff out of his wagon on to the ground, whereby the plaintiff was bruised and cut on the head, one cut requiring seven stitches and the other cut two stitches; plaintiff was also injured upon the left side, shoulders, neck and throat, and was for seA'eral weeks prevented from attending to his busi- ness, his wagon was entirely destroyed, and he was put to great expense in endeavoring to be healed of his own hurts and those of his horse. IV. That by reason of the premises aforesaid, the plaintiff, who is a veterinary surgeon, and as such surgeon has need of very 1 From Shaw v. City of New York, 83 App. Div. 212; 82 Supp. 44; in which judgment for the plaintiff was affirmed. Vol. 1—23 354 Bradbury's Forms of Pleading Negligence accurate hearing, has his hearing injured, to wit, partially deaf in the right ear, said deafness interfering seriously with the making of a livelihood for himself and family. V. That by reason of the premises aforesaid, eruptions break out on different pai'ts of the plaintiff's head, said eruption never having appeared until after aforesaid accident, the plaintiff's skin always being in a perfectly healthy condition until said acci- dent. VI. That the plaintiff on the day of , 19 , and before the commencement of this action, presented a claim in writing to the comptroller of the city of New York for the ad- justment of damages for the injuries above set forth, excepting the injuries as set forth in paragraphs IV and V, said injuries as set forth in paragraphs IV and V not being known to the plain- tiff at the time of the commencement of this action, or of the service of the notice of claim aforesaid, and said injuries not being known to this plaintiff as set forth in said paragraphs, until after more than twenty days had expired from the time the an- swer in the above action was served on this plaintiff. VII. That by reason of the premises aforesaid the plaintiff suffered great pain of body and anguish of mind, and will suffer for the balance of his life, and that he was obliged to be under the care of a doctor for some time, and was confined to his bed for a period of some time, all to his damage of I Wherefore [prayer for money judgmeni]. Form No. 295 Liability of Board of Education for Falling Ceiling in Schoolhouse ^ I. That the plaintiff is an infant of the age of j'carG and that by order of this court heretofore made and entered A. R. was duly appointed his guardian ad litem. II. That the defendant, the city of N. Y., is, and at all the times herein mentioned was, a municipal corporation, under the laws of the State of , under the said name and title; and the ^ From Wahrman v. Board of Education, 187 N. Y. 331; in which a judg- ment in favor of the plaintiff was affirmed. Complaints 355 Negligence defendant, the B. of E. of the city of N. Y., is, and at all said times was, a body corporate under the laws of said State, to wit, the Greater New York Charter, and was so incorporated and authorized to, and did, together with the city of N. Y. aforesaid, own and control certain real estate in said city, and the buildings and appliances thereon and therein, for the purposes of main- taining and conducting the work of education of the young, and particularly the property known as Public School No. in street. III. That on or about the day of , 19 , plaintiff was a scholar in attendance upon said school, and under defendants' directions was seated in a seat and room assigned to him, he being of tender years as aforesaid, and that then and there the ceiling of said room broke and fell upon him, and that a large portion or piece of said ceiling struck the plaintiff upon the top of the head, whereby his skull was fractured, in conse- quence of which the plaintiff suffered great pain, injury and damage to his head, body, mind and brain ; and that, as he is in- formed and believes, said injuries will prove permanent, and that both his reason and his bodily health will be lost or greatly im- pau'ed. IV. That said accident occurred without any negligence or carelessness on the part of plaintiff, his parents or guardians, but solely by reason of the negligence and carelessness of the defend- ants. V. That said defendants maintained said school building and the room and ceiling aforesaid as a public school, and there re- ceived and instructed many pupils, of which plaintiff was one, for a long j criod of time after the same was, and was well known to the defendants to be, in an unsafe, threatening and dangerous condition, and it was in said condition at the time of the accident above described. VI. That by reason of the premises this plaintiff has been damaged in the sum of $ VII. That heretofore due notice has been given as required by law of this accident, and of the claim arising thereunder, and of 356 Bradbury's Forms of Pleading Negligence the plaintiff's intention to bring action thereupon, to the said defendants through both the comptroller of said city and cor- poration counsel ; that more than days have elapsed since said notice and no adjustment or payment of said claim has been made. Wherefore [demand for money judgm^ent]. Form No. 296 Damage to Growing Crops by Flooding of Lands by Water Discharged From the Erie Canal ' This claimant for a claim against the defendant, the State of N. Y., alleges the following facts: I. That she was lessee and in occupation of the following farm at the time hereinafter set out, to wit: A certain farm located in the town of , county, N. Y., on the north side of the N. Y. C. & H. R. R. Co., fronting on the highway leading from , N. Y:, to the river and on the west side thereof, said farm containing among others, the several lots men- tioned and specifically set out in the bill of items hereto annexed and which forms part of this claim. II. That on or about the day of , 19 , and on or about the same date 19 , the defendant, by its agents, employees and superintendent, opened certain sluices and waste- gates in the canal into a certain small stream that flows along the south side of said premises and between them and the N. Y. C. & H. R. R., and down through the rear part, thereof . That said stream is at all times of the year abundantly deep enough and wide enough to carry off all water and not affect said lands injuriously. III. But that on said date above set out, said defendant by its said employees, etc., negligently, carelessly and improperly opened said gates and sluices to such an extent that said stream became and was overflowed and above its banks in such an un- usual manner and degree so that the waters then and there flow- ^ From Adkinson r. State of N. Y., 187 N. Y. 566; in which a judgment of the Court of Claims in favor of the plaintiff was affirmed. Complaints 357 Negligence ing therefrom, flowed onto said lands on the north side thereof near said railroad, and on all sides thereof, where it flows through said lands; said water remaining thereon for a long time and thereby damaged and ruined the products and materials growing and planted and then and there growing on said lands by this claimant, to wit: Timothy grass, corn, barley, cabbage, potatoes, wheat, etc., to her damage $ and more. That the fol- lowing is the bill of items of same and forms part of her claim: [Items damaged and valuation.] Therefore claimant asks judgment for $ , with in- terest from dates set out. Form No. 297 Action Against State in Court of Claims; Plank Dropped From Bridge Over Canal While Being Repaired ^ I. That the E. C. runs through the city of R., and there is a lift bridge over street, one of the public streets of said city, which canal and bridge are owned, operated and controlled by the State of New York, and that said bridge and the ap- proaches thereto are a part of the public highways of the city ofR. II. That the claimant is a resident of , county, N. Y., and is by occupation a stonecutter. That he is years of age. He was prior to the accident hereinafter mentioned, in good health and able to follow his avocation as a stonecutter and to earn thereat $ per day, and that he had regular and steady employment. III. That on the day of , 19 , the claimant was lawfully engaged in channeling the stone coping on the south bank of the canal in order to make room for a wider rail for the street car tracks approaching said lift bridge. That said bridge was hoisted and certain repairs were being made by the officers, agents and employees of the State, to wit, the replanking of said bridge was going on, by taking out the old plank and replacing ' From Spencer v. State of New York, 187 N. Y. 484; in which a judgment in favor of the plaintiff was affirmed. 358 Bradbury's Forms of Pleading Negligence same with new. That the officers, agents and servants of the State in charge of the work of repairing said bridge and in re- moving the plank taken therefrom, wrongfully and negligently dropped one of said planks, being about feet long inches wide and inches thick, from said bridge upon the claimant while he vras engaged in the work of channeling said coping, being a distance of about feet, and that said plank struck this claimant upon the back and shoulder, thereby causing him great bodily injury. That claimant received a severe bruise in the muscles of the back and shoulder, and a severe cut in the chin, and one of his teeth was broken and knocked out, and that he suffered great bodily pain and shock from such injury. That said injury was caused without fault on the part of the claimant, and wholly by the carelessness and negligence of the officers, agent, and employees of the State of New York. That by reason of said injury, claimant suffered damage in the sum of $ ; that he was unable to work for a long time, suf- fered great bodily pain and he incurred large expenses for medical treatment. That a bill of particulars is hereto annexed, and forms part hereof, marked Exhibit "A," showing in detail the damages suffered and sustained by claimant by reason of such injury. IV. That the claim of the plaintiff has never before been pre- sented to any department or officer of the State and that he has never assigned the same, and that no other persofi besides claimant, has any interest therein. For a second cause of action, claimant alleges: I. That the E. C. rims through the city of R., and there is a lift bridge over street, one of the public streets of said city, which canal and bridge are owned, operated and controlled by the State of New York, and that said bridge and the ap- proaches thereto, are a part of the public highways of the city ofR. II. That the claimant is a resident of , county, N. Y., and is by occupation a stonecutter. That he is years of age. He was prior to the accident hereinafter Complaints 359 Negligence mentioned, in good health and able to follow his avocation as a stonecutter and to earn thereat $ per day, and that he had regular and steady employment. III. That on the day of , 19 , the claimant was engaged in doing some work as a stonecutter on the coping on the south bank of the E. C, directly beneath the lift bridge which was raised. That he was engaged in such work about four o'clock in the afternoon. That one R. P. was the bridge tender in charge of said bridge, and that it was, among other things, the duty of said R. P. to guard and protect the people who were lawfully engaged in the streets of R. in and about said bridge. That at the time, the officers, agents and employees of the State were engaged in repairing said lift bridge, by re- moving the old plank and putting in new plank. That said R. P., prior to the accident hereinafter described, had seen this claimant engaged in channeling out the stone coping on the south side of the bridge, and knew that he was working there, and that said R. P., with such knowledge, went up on top of the bridge, and in aiding and assisting the employees of the State in removing the old plank, and under the supervision of the officers in charge of the work, picked up a plank about feet long, inches wide and inches thick, and dropped it from the top of the bridge, as it was lifted, so that it fell and struck the claimant in the back. That at the time of said accident said R. P. was also engaged in guarding and protectmg said bridge and the people lawfully engaged thereabouts, and that he neg- ligently and carelessly performed his duty as a bridge tender, and that said accident was caused by the negligence and miscon- duct of said R. P., and without fault on the part of the claimant. That the claimant received severe and grievous bodily injury by being struck by said plank; that he was knocked down; that the muscles of the shoulder and back were bruised and injured, that one tooth was knocked out, and he received a severe cut in the chin. That he was unable to work at his occupation for thirty- six days, and that he laid out and paid for medical attendance large sums of money, and that a bill of particulars, stating in 360 Bradbury's Forms of Pleading Negligence detail the damages sustained by the claimant, is hereto annexed and forms part hereof, marked Exhibit "A," and that by reason of such injury, the claimant has suffered damages in the sum of$ IV. That this claim has never before been presented to any department or officer of the State, and that it has never been assigned, and that no other person, besides claimant, has any interest therein. Wherefore [prayer for money judgment]. V. Master and Servant Form No. 303 Employers' Liability Act ^ Supreme Court, county. Norman C. Harris, Plaintiff, against Baltimore Machine Works, Defendant. The plaintiff complaining pf the defendant, alleges : I. On information and belief, that at all the times hereinafter ' From Harris v. Baltimore Machine and Elevator Co., 188 N. Y. 141; in which a judgment in favor of the plaintiff was affirmed. The chief point dis- cussed was the sufficiency of the complaint under L. 1902, c. 600 (Employers' Liability Act). The foregoing case arose under the State Employers' Liability Act. Con- gress recently passed an Employers' Liability Act to meet the decisions hold- ing the former act unconstitutional. The new act reads as follows: An act relating to the liability of common carriers by railroads to their em- ployees in certain cases. [Approved April 22, 1908.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is em'-byed by such carrier in such commerce, or, in case of the death of such employee, to his or Complaints 36 1 Negligence mentioned the defendant was, and now is, a foreign corporation organized and existing under the laws of the State of , and was and is engaged in the business of constructing elevators. II. That on or about the day of , 19 , at her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the ofBcers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. Sec. 2. That every common carrier by railroad in the Territories, the Dis- trict of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. Sec. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation of such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. Sec. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of such statute enacted for the safety of employees contributed to the injury or death of such employee. Sec. 5. That any contract, rule, regulation, or device whatsoever, the pur- pose or intent of which shall be to enable any common carrier to exempt itself from any Hability created by this act, shall to that extent be void: Provided, That in any action' brought against any such common carrier under or by vir- tue of any of the pj-ovisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indem- 362 Bradbury's Forms of Pleading Negligence Nos. and , street, in the borough of Manhattan, city and State of New York, the plaintiff, being then in the employ of the defendant, was directed by the said de- fendant to enter an elevator at said place which the defendant had constructed and then had under its supervision and control and to go by means of said elevator to the top of said building, that the plaintiff then and there did enter the said elevator, and the defendant then started the said elevator. III. That the said elevator had been and then was carelessly and negligently constructed by the said defendant in that the steel rope or cable by which the elevator car was suspended in the elevator shaft, had been and then was loosely, carelessly, negligently and improperly fastened to the top of the said car, and in that the safety appliances which are commonly used to check the fall of an elevator had not been attached thereto, all of which the defendant then and there well knew. IV. That by reason of the carelessness and negligence of the defendant in the construction of the said elevator as aforesaid, and by reason of the negligence of the defendant in directing the plaintiff to enter said car while it was in said condition as afore- said, and without fault or negligence on the part of the plaintiff, the said cable or cord became unfastened from the said elevator car after the plaintiff entered it as aforesaid and while it was moving upward in the elevator shaft and the said car fell to the bottom of said shaft while the plaintiff was inside of said car. nity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought. Sec. 6. That no action shall be maintained under this act unless com- menced within two years from the day the cause of action accrued. Sec. 7. That the term "common carrier" as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier. Sec. 8, That nothing in this act shall be held to limit the duty or liability of common carriers or to impair the rights of their employees under any other act or acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the act of Congress entitled " An act relating to lia- bility of common carriers in the District of Columbia and Territories, and to common carriers engaged in commerce between the States and between the States and foreign nations to their employees," approved June 11, 1906. Complaints 363 Negligence V. That by reason of the premises the plaintiff was bruised and cut and injured in the head, back, spine, hips, legs and feet, and suffered and still suffers great pain of body and mind, and has been and as he is informed and believes will be per- manently deprived of the full and natural use thereof, and has been and as he is informed and beheves will be permanently prevented from following his ordinary vocation, to his special damage in the sum of $ , and has been and as he is in- formed and believes will be obliged to expend large sums in the effort to cure himself, to his special damage in the sum of $ VI. That within 120 days after the occurrence of the said accident causing the said injury, and on or about the eighteenth day of March, 1903, due notice in writing of the time, place and cause of the said injury was given to the defendant, in the man- ner provided by and pursuant to chap. 600 of the Laws of 1902. Wheeefobe [prayer for money judgment]. Form No. 304 Employee of Independent Contractor Hurt Owing to the Improper Lay- ing of a Floor by Another Contractor on Same Building ' I. That the defendant is a domestic corporation. II. That heretofore and on or about the day of , 19 , the defendant duly made and entered into a contract with the A. C. Co., wherein and whereby the defendant agreed to lay a metal floor in a building of the said A. C. Co., at and about avenue and street, in the borough of , county of , city and State of New York, for a valuable consideration stated in the said contract, and that thereupon the said defendant duly entered upon the performance of the said work by its servants and employees and did lay the said metal floor in the said property. III. That the defendant laid the said metal floor improperly and defectively and was negligent and careless in the doing of the said work, so that solely by reason of the negligent, careless, * From Bill v. New York Expanded Metal Co., 60 App. Div. 470; 69 Supp. 989; in which a judgment in favor of the plaintiff was affirmed. 364 Bradbury's Forms of Pleading Negligence dangerous and improper construction and laying of the said metal floor, the same broke and gave way beneath the plaintiff who was then and there lawfully thereon, in the said building en- gaged in his employment, and thereby precipitated plaintiff a considerable distance from the said floor to the basement or cellap-of said building, inflicting severe and painful injuries upon his body, causing him great shock, pain and suffering and per- manently injuring his back and spine, and plaintiff was thereby prevented from attending to his business, and he sustained spe- cial damage in loss of earnings and earning capacity, and will hereafter suffer loss of earnings, was put to expense in endeavor- ing to effect his cure, and he has suffered and he will hereafter continue to suffer from the effects of said injuries, and he was otherwise and permanently injured. IV. That plaintiff's aforesaid injuries were occasioned solely by the negligence and carelessness of the defendant and its serv- ants and employees in making and laying the said metal floor in the dangerous, defective, improper, insecure and unsafe con- dition, and without any negligence on the part of plaintiff con- tributing thereto. V. That by reason of the matters aforesaid, plaintiff has sus- tained damages in the sum of $ , for which sum the plaintiff demands judgment against the defendant, together with the costs of this action. Form No. 305 Acid Spilled on Plaintiff ; Defective Appliances in Factory Without Knowledge on the Part of Plaintiff That They Were Defective ' I. On information and belief, that, at the times hereinafter mentioned, the above defendant was, and still is, a foreign cor- poration, to wit: a corporation organized under and existing by virtue of ,the laws of the State of II. That on or about the day of , 19 , this plaintiff was and had been for some years prior thereto, employed 1 From Welle v. Celluloid Co., 175 N. Y. 401; in which a judgment of dis- missal was reversed. Complaints 365 Negligence by the said defendant company at its factory in the city of in the State of . That on the said day of ; 19 , while this plaintiff was in the employment of the defendant, as aforesaid, at its factory aforesaid, engaged in and upon work and labor required by defendant of the plain- tiff to be performed, through the negligence and carelessness of the defendant, and through no neghgence or carelessness con- tributing thereto on the part of this plaintiff, a vessel containing acid was emptied upon the head, body and person of this plaintiff, scarring and crippling him for life, completely destroying plain- tiff's right eye, disfiguring and rendering repulsive plaintiff's face, depriving him of the full use of his arms, weakening and injuring him physically throughout, and rendering plaintiff a nervous and physical wreck. III. Plaintiff further alleges that the machinery and appliances used by the defendant in and about the necessary manipulation and handling of the vessel and the acid aforesaid were of unsafe construction, and that had the defendant used proper care, said machinery and appliances could have been made safe for the use of its workmen and for the use of its employees who were required to be near said vessel, acid and appliances, or who were required as was plaintiff, to assist in operating and handling the same. IV. plaintiff further alleges that by reason of the injuries aforesaid, caused as aforesaid, this plaintiff was rendered sick sore, lame, crippled and disordered in health, mind and body; was taken from defendant's factory to a public hospital where he was compelled to remain for upwards of weeks, the skin of plaintiff's body being burnt off by said acid, his body raw and inflamed, suffering from the most intense pain by reason thereof, during all said period being compelled to undergo re- peated surgical dressing and treatment, causing him still further pain and torture, and thereafter causing him to remain under surgical and medical treatment at his home for another period of upwards of weeks, all the while and to this day suffer- ing the most agonizing pain and distress, both of mind and body. V. Plaintiff further alleges on information and belief that the 366 Bradbury's Forms of Pleading Negligence injuries aforesaid are permanent in character, and that for the balance of his natural life he will continue to suffer pain and distress from said injuries, and that said injuries will result in shortening the period of this plaintiff's life. VI. Plaintiff further alleges that by reason of said injuries plaintiff has been compelled to employ the services of physicians in and about caring for said injuries, and that hereafter he will be further compelled to so employ the services of physicians, and that he has laid out and expended and will hereafter be com- pelled to lay out and expend various sums of money for medicines ointments and surgical appliances to relieve his pain and suffer- ings caused by said injuries. VII. Plaintiff further shows that he has a wife and family dependent upon him for support, that he is unable now to work for a living, that his whole life and future have been ruined and blasted by the negligence and carelessness of the defendant as aforesaid. Wherefore [prayer for money judgment]. Form No. 306 Employee of Safe Moving Corpoi-ation Killed by Reason of Unsafe Tool ^ I. [Statement of the plaintiff's appointment and qualification as executrix of J. M., and giving the names and ages of his next of kin.] II. That the defendant is a domestic corporation. III. That the defendant had in its employ, a person intrusted with and exercising superintendence, and whose sole or principal duty was that of superintendence in the defendant's business. IV. That on or about the day of , 19 , and for some time prior thereto, the said J. M., plaintiff's intestate, was an employee of the defendant as foreman of a truck. V. That on or about the date aforesaid and between the hours of and , p. M., the said J. M., plaintiff's intes- tate as such employee of the defendant was engaged in the de- 1 From Meehan v. Atlas Safe Moving, etc., Co., 185 N. Y. 586; in which a ■ judgment in favor of the plaintiff was affirmed. Complaints 367 Negligence fendant's business in moving a safe from the street into a building situated on the southwest corner of street and , borough of Manhattan, city of New York. VI. That the defendant furnished for the use of its foreman and its employees in the said business, jacks or skids and other necessary rigging used in its business of moving safes and ma- chinery. VII. That the defendant furnished for the use of its said fore- man and employees in its said business, a certain jack or skid of hickory timber about six feet long, more or less, and about six inches thick, more or less. VIII. That it was the duty of the defendant to furnish in its said business, a careful, competent and prudent person intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence over the defendant's business including its ways, w'orks and machinery and other equipment and apphances and the work of the defendant's employees in- cluding the work of plaintiff's intestate. IX. That it was the duty of the defendant and of the defend- ant's superintendent, whose sole or principal duty is that of superintendence in the defendant's business, to furnish its fore- men and employees, including plaintiff's intestate for use in its said business, proper, suitable and adequate safe ways, works and machinery and other equipment and apphances used in its said business; to provide proper and suitable materials, appli- ances and tools; to provide reasonable, practicable and sufficient rules and regulations for the government of its foreman and employees and for the inspection of its ways, works and machin- ery and other equipment and apphances; to provide adequate and proper inspection of its plant, ways, works, machinery and other equipments and appliances used in its said business; to see that a proper and reasonably safe method of work was chosen and followed; to see that each employee properly did the work assigned to him and to take reasonable precautions during the progress of the work to guard against accident. X. That the defendant and its superuitendent as aforesaid, 368 Bradbury's Forms of Pleading Negligence totally failed and negligently omitted to perform the said several duties as aforesaid, but on the contrary furnished to plaintiff's intestate, for use in its said business, a skid or jack of improper or unsuitable timber, because of its susceptibility to internal decay, dry-rot, check and loss of strength of fiber; and negligently failed .and omitted to provide adequate and sufficient rules for the inspection of its ways, works and machinery and other ma- terials and appliances used in its said business; and negligently failed and omitted to provide proper, adequate and sufficient inspection of its plant, ways, works, machinery, material and appliances and by reason of all the carelessness, neghgence and omission of the duty of the defendant aforesaid, at the time and place aforesaid, while plaintiff's intestate in the performance of his duty as aforesaid was using the aforesaid skid or jack so fur- nished as aforesaid, the same because of its unsafe, decayed, de- fective, rotten and unsuitable condition broke under the weight of the safe which was being held suspended in the air by means thereof and the said safe in falling struck, dislodged and carried away a platform or staging extending from one of the windows of the third floor of the building aforesaid and upon which staging plaintiff's intestate was standing in the discharge of his duty as an employee of the defendant, and by reason thereof plaintiff's intestate was caused to fall down and upon the stone pavement of the street and thereby sustained injuries resulting in his death the same day. XI. That the said accident occurred and the said injuries were sustained bj' the plaintiff's intestate without any fault or negligence on his part in any way contributing thereto, but were caused solely by reason of the fault and negligence of the defend- ant, its servants and agents as aforesaid. XII. That by reason of the premises the next of kin of the said J. M., by virtue of the statute of the State of New York, in such case made and provided, were injured to their damage in the sum of $ XIII. That on or about the day of , 19 , plaintiff gave notice to the defendant of the time, place and cause Complaints 369 Negligence of her intestate's injury and death in compliance with chap. 600 of the Laws of 1902, of the city of New York. Wherefore [demand for money relief}. Form No. 307 Scalding by Steam Fiom Exploding Boiler ^ I. That the above-named defendant is and was at all the times hereinafter mentioned a domestic business corporation, engaged in the manufacture and sale of beer and malt liquors and having its principal place of business at , N. Y. II. That on or about the day of » 19 , the above-named W. K. died intestate at , N. Y., from injuries occasioned as hereinafter set forth. That thereafter and on the day of , 19 , F. K., above named, was duly appointed administratrix of the goods, chattels and effects of the said W. K. by the surrogate of county. That she thereupon duly qualified as such administratrix and entered upon the discharge of her duties as such administratrix and has since acted and is now acting as such. III. That for many years prior to and on the day of , 19 , the defendant had continuously and did then own, maintain and operate a plant for the purpose of manufac- turing and preserving i eer on street, and streets in the city of , N. Y., the office of which plant is at No. , street in said city. That for the purpose of furnishing power to operate said plant the de- fendant at all of said times has owned and maintained and operated in the boiler house connected with said plant a battery of steam boilers. The steam generated by which is con- veyed into a large cylinder or steam header in said boiler room above said boilers and at the rear of the same. Which said cylin- der or steam header was about inches in diameter and about feet long. From which said cylinder or steam header, steam power and heat was conveyed to the different por- ' From Krueger v. Bartholomay Brewery Company, 182 N. Y. 544; in which judgment absolute was ordered in favor of the plaintiff. Vol, 1—24 370 Bradbury's Forms of Pleading Negligence tions of said plant. Such cylinder ©r steam header was con- structed in sections, said sections having threads at each end thereof and being screwed into joints designed for that purpose. IV. That said W. K. was on the day of , 19 , in the employ of the defendant as engineer in its ice plant, which is in a building separate and distinct from said boiler room and from the remainder of defendant's said plant. That during the forenoon of the day of , 19 , the said W. K. was directed by the defendant to enter said boiler house and room and to perform some work near said cylinder or steam header. That at such time and while engaged in such work, said steam header and the parts thereof suddenly and with great force and violence separated and exploded, filling said room and house with escaping steam and causing the said W. K. injuries which resulted in his death on the same day. V. The plaintiff upon information and belief further alleges: That said cylinder and steam header separated and exploded as above detailed and the said W. K. received the injuries con- sequent upon said separation and explosion by reason of the neg- ligence of the said defendant and its agents. That said cylinder and steam header and the parts thereof were when originally constructed formed of weak, defective and poor materials. That the sections thereof were not of sufficient length or diameter to properly and firmly connect the same and that the same were improperly and defectively connected, and the said cylinder when connected was not of sufficient size and strength for the purpose for which it was to be used. That when it was first put in use said cylinder and steam header was improperly connected with the boilers from which steam was discharged into the same, and with pipes by which steam was conveyed from the same, and that said cylinder and steam header was improperly connected with the boilers from which steam was discharged into the same, and with the pipes by which steam was conveyed from the same, and that said cylinder and steam header was improperly located with respect to said boilers and the pipes designed for carrying steam from the same to different parts of said plant. That by Complaints 371 Negligence retsjn of the facts aforesaid and by the use and wear of said cylinder and steam header incident to the same, the same and the parts thereof became and were on the day of , 19 , and for a long time prior thereto had been weak and defect- ive and wholly unsuitable and improper for the purposes for which they were used, all with the knowledge of defendant. That the defendant, though said cylinder and steam header had been in use for the purposes aforesaid for a long time in said boiler house, omitted to properly inspect the same. That had the defendant properly inspected said cylinder and steam header as it was its duty to do, the defects in the same would have been readily discovered and the separation and explosion of the same would have been prevented. That the defendant well knew that said cylinder and steam header, and the parts and connection thereof were improper and inadequate for the purposes for ^^hich they were to be utilized by the defendant, and that the same had been defectively and negligently constructed, connected and maintained and that the materials and parts for such a cylinder and steam header and which had become on the day of , 19 , weak, worn and defective, all of which facts were wholly unknown to the said W. K. That said cylinder and steam header separated and exploded and the said W. K. was injured, as aforesaid, solely through the negligence of the defendant, as above set forth and without any fault or negligence upon his part. That the said W. K. left him survi-\-ing a widow, F. K., and as heirs at law and next of kin two sons, W. K. and F. K. That by reason of the facts aforesaid this plaintiff has been damaged in the sum of $ Wherefore [prayer for money judgment]. 372 Bradbury's Forms of Pleading Negligence Form No. 308 Employee of Defendant Killed by Escaping Steam' I. That at all the times hereinafter mentioned the defendant was and is a corporation duly organized and existing under and by virtue of the laws of the State of New York, for the purpose, among other things, of manufacturing or producing, vending and supplying hot water and steam, hot air or other aeriform fluids for motive power, heating, cooking or other useful applications in the streets, public places and public and private buildings of the city of New York, and the manufacturing and laying of mains and pipes or conductors for conveying such hot water, hot air, steam or fluids through thestreets, avenues, lanes, alleys, squares and highways of said city for the purpose of supplying the same to the city and its inhabitants, and was at all of such times engaged in carrying on its said business. II. That on the day of , 19 , the said de- ceased was employed by the defendant as a day laborer, and as such was at work in and about the business of the defendant in an excavation or trench on the corner of and streets in the city of New York. The deceased was, with other servants of defendant, engaged in making a connection for six inch pipes or piping, which ran below the upper level of the street from through street to street, and underneath three incji pipes or piping. The deceased was ordered and directed by the foreman of the defendant in charge of the work then being by defendant per- formed, to stand in the trench through which said six inch and three inch piping aforesaid ran, and while so standing the said foreman turned on steam through the said three inch piping and the knee of the said three inch piping burst on the lower part, and deceased, who was working right underneath the said three inch piping, was severely scalded by the outpouring stream, 1 From Koehler v. N. Y. Steam Co., 183 N. Y. 1; in which judgment for the defendant was reversed. Complaints 373 Negligence receiving injuries from which he died on the day of ,19 . III. On information and belief that said injuries resulting in the death of deceased were occasionied by the negligence and carelessness of the defendant, (1) in employing deceased in a place which, on account of the dangerous character of the work carried on by defendant it should have foreseen would be a place of danger, against which danger it could have guarded in the exercise of reasonable care, by having steam turned through its piping and the piping thus tested before sending one of its employees to work in, at and about such piping, which precau- tion and care it failed and neglected to take, nor had it ever made or enforced safe, proper and suitable rules and regulations for the conduct of its business, in the guarding against such danger as aforesaid; or (2) in providing and using defective and insecure piping, and in not seeing that such piping used by it was proper or in proper repair, or by any or all of such causes aforesaid con- tributing. IV. That said injuries were occasioned without any fault or negligence on the part of deceased. V. That deceased left him surviving a widow, E. K., the plain- tiff, and five children, all of whom are under the age of twenty- one years, the oldest of whom was, at the time of the death of deceased, of the age of fifteen years, which said widow and chil- dren were entirely dependent on said deceased for their support, nurture and education, which they have lost by his death, and have been otherwise injured thereby to their damage in the sum of $ , which the plaintiff claims to recover by virtue of the statute of the State of New York, in such case made and provided. VI. That said deceased died intestate in the city of New York, in the county of New York, and was, immediately prior to his death, a resident of said county. That on or about the day of , 19 , letters of administration upon the estate of said deceased were duly issued and granted to plaintiff by the surrogate of said county of New York, appointing her ad- '374 Bradbury's Forms of Pleading Negligence ministratrix of all the goods, chattels and credits which were of said deceased, and that plaintiff duly qualified and entered upon her duties as such administratrix, and is now such administratrix. Wh?:;refore [prayer for money judgment]. Form No. 309 Workman Struck by Falling Object ^ I. That the plaintiff, A. M., on or about the day of , 19 , was duly appointed administratrix of the goods, chattels and credits of one J. M. II. That on and prior to the day of , 19 , the above defendants were engaged in business and carried the same on under the name of M. E. & Son. III. That said defendants were, on or about the said date, en- gaged in doing certain work in or about a structure in process of erection at the corner of and streets, in the city of New York. IV. That at said structure on the day of , 19 , there was in the employ of said defendants, one B. M., a servant. V. That in the afternoon of said day said servant of the de- fendants undertook to carry up a certain ladder a certain tube, commonly known as a mortar tube. VI. That at said time the said J. M. was lawfully and* prudently in or about the basement of said structure below said servant and ladder. VII. That thereupon said tube fell from the custody of said servant downward in the direction of said M. and did strike and did injure him. VIII. That said injury caused the death of said M. IX. That the fall of said tube was caused by and was the con- sequence of the negligence of the defendants' servants. X. That defendants and their servants well knew that said M. ^ From Monahan v. Eidlitz, 59 App. Div. 224; 69 Supp. 335; in which a judg- ment dismissing the complaint was reversed. Complaints 375 Negligence and others were at the time in the basement of said structure and in a position where objects, if allowed to fall, would injure them. XI. That said negligence of defendants and their servants, and the said injury caused thereby, caused the death of said M. XII. That said J. M. left a wife and children next of kin, who sustained pecuniary damages in the sum of $ by his death, the right to sue for which belongs to plaintiff. Wherefore [prayer for money judgment]. Form No. 310 Boy Required to Operate Dangerous Machine in Violation of Contract ^ I. Upon information and belief that the defendant is a do- mestic corporation. II. That on the day of , 19 , by an order duly made and entered S. C. was duly appointed guardian ad litem of G. G., Jr., the plaintiff herein, to commence and prose- cute this action for him. III. That on the day of , 19 , and for some time prior thereto, the defendant was in the business of making and selling machinery and tools and was the owner of the plant, machinery and other appliances in said trade in the building at the corner of and streets in the borough of Manhattan, city of New York, and was managing, running and conducting the said business at said premises, and the said plant, machinery and tools, among which was a certain conveyor used to carry tools from the stock room to any floor of said building desired, running in a wooden shaft, with swinging shelves hung from chains thereon (and that said conveyor was inherently dangerous and was an unsafe place to work and was not properly guarded or screened and that all these things were known to the defendant long prior to the day of ,19 ). IV. That the plaintiff, G. G., Jr., is an infant and was of the age of fifteen years on the day of , 19 . ^ From Gallenkamp v. Garvin Machine Co., 91 App. Div. 141; 86 Supp. 378; in which, after a dismissal of the complaint, a new trial was granted. The court said that the questions whether the machine was dangerous and whether the plaintiff was guilty of contributory negligence were for the jury. 376 Bradbury's Forms of Pleading Negligence V. That on or about the day of > 19 , the said G. G., Jr., and his father, G. G., Sr., entered into an agreement with the defendant wherein and whereby the said G. G., Jr., was to work for the defendant in the tool room and to become con- versant with the various tools for a period of three months and if found ready and competent was then to be apprenticed to the defendant to learn the trade of a machinist, upon a sliding scale of wages, and the defendant, on its part, agreed to employ the said G. G., Jr., as hereinbefore stated and agreed further that during the period of probation of three months, the said G. G., Jr., was not to be allowed to operate or assist in operating any machine of any kind whatsoever (and that he was to receive five cents an hour for the time he worked), and that at the same time the said contract was made the defendant was notified that the said G. G., Jr., was fifteen years of age at said time. VI. That on the day of , 19 , while the said G. G., Jr., was working in the tool room in pursuance of the agree- ment hereinbefore set forth, the defendant without instructing him as to the dangers and nature of the conveyor aforesaid, and knowing full well that the said G. G., Jr., had never before oper- ated any machine and was wholly unfamiliar with the said con- veyor, requested him to leave his proper employment and to operate the conveyor on the fourth floor of the said building, in violation of paragraph 81 of the Labor Law, being chap. 415 of the Laws of 1897 as amended by chap. 192 of the Laws of 1899, and in violation of the agreement hereinbefore mentioned in paragraph V of this complaint. VIL That while so employed on the said conveyor, without any negligence or fault on his part contributing thereto, the said defendant, its servants and agents, conducted themselves so carelessly, negUgently and unlawfully as hereinbefore alleged, that one of the swinging shelves of the said conveyor struck the head of the said G. G., Jr., causing a fracture of the base of the skull, a copious loss of blood and vitality, shock to the nervous system, severe pain and mental anguish and causing him to be confined to the St. Vincent's Hospital for a period of about six Complaints 377 Negligence weeks, subjecting him to medical treatment and being perma- nently injured as follows: Paralysis of the sixth, seventh and eighth cranial nerves on the right side and of the regions supplied by them, the ocular muscles and eyelid and the tympanum of the ear, impairing the eyesight and hearing, and also of the right side of the face, producing a distorted and repulsive appearance and interfering with comfort; an impairment of the mental faculties, an exag- gerated action of the nervous system, producing disturbances of various kinds wholly incapacitating him from doing any work and rendering him wholly useless, and that he will hereafter remain in such condition and continue to suffer severe physical pain and mental anguish and has in other respects suffered dam- ages in all in the sum of dollars. Wherefore [demand for money judgment]. Form No. 311 PerBon Killed by Dynamite TJsed by Alleged Incompetent Fellow Servant ' I. That, the defendant is a domestic corporation, organized under and pursuant to the laws of the State of New York, that its principal place of business is at the city of , county of and State, aforesaid, where it is engaged in the management and operation of a blast furnace and the manu- facture of pig iron. II. Plaintiff further alleges that on or about the day of , 19 ; at the said city of , the above J. C. was in the employ of the defendant as a common laborer, and that on the date aforesaid, he was called from his customary duties by the defendant's superintendent and directed by said superintendent to assist oneF. M., another employee of defendant, in preparing and handling a charge of dynamite in connection with the repairing of a portion of the defendant's said furnace, a chill, the machinery, fixtures and appliances connected there- ^ From O'Brien v. Buffalo Furnace Co., 183 N. Y. 317; in which a judgment for the defendant was reversed. 378 Bradbury's Forms of Pleading Negligence with, and that at the time of such direction the defendant's said superintendent assured the said J. C. that it would be perfectly safe for him to do as directed and that there was no danger what- ever in the place to which he was directed to go, and that the said J. C. thereupon obeyed such direction, and that while standing in the place to which he was directed to go, as aforesaid, and near where the said F. M. was engaged in handHng and preparing said charge of dynamite for use, as aforesaid, the dynamite pre- maturely exploded and inflicted such injuries upon the said J. C. that he afterwards and on or about the day of , 19 , died at the said city of , of which city he was at the time aforesaid a resident. III. The plaintiff further alleges, upon information and belief, that the said F. M. was not familiar with the use of dynamite, was ignorant of its composition and explosive power, had not been accustomed to the use of the same and was without experi- ence therewith, and that in employing the said F. M. and direct- ing him to use, prepare and handle the said charge of dynamite, as aforesaid, the defendant was guilty of gross negligence; that the said F. M. was an incompetent person to perform the work he was directed to do, and that the defendant carelessly and negligently exposed the said J. C. to danger in directing him to work with and assist the said F. M., and that the defendant care- lessly and negligently failed to furnish competent fellow servants to work with the said J. C, and that the defendant -carelessly and negligently omitted to notify the said J. C. of the danger to be apprehended from working with an incompetent fellow serv- ant, and carelessly and negligently failed to notify the said J. C. of the incompetency of the said F. M., and negligently and care- lessly failed to provide safe and proper materials and tools to accomplish the work that the said F. M. and the said J. C. were directed to perform, and carelessly and neghgently omitted to furnish safe and proper tamping bars to the said F. M. and J. C, and carelessly and negligently omitted to furnish to the said J. C. a safe and proper place in which to perform the duties required of him by the defendant, and carelessly and negligently exposed Complaints 379 Negligence the said J. C. to great and unnecessary danger, and that by and through the neghgence of the defendant, as aforesaid, and with- out any contributory negligence on the part of the said J. C. he met his death as aforesaid, leaving this plaintiff, his mother, his only heir at law and next of kin to her damage of $ IV. Tlio plaintiff further alleges that on or about the day of , 19 , by the surrogate's court of the county of , she was duly appointed administratrix of the goods, chattels and credits of the said , deceased, limited to the prosecution of this action, that thereafter she duly qualified as such administratrix and entered upon and is now performing her duties as such. Wherefore [prayer for money judgment]. Form No. 312 Action Against Receiver; Plaintiff's Hand Caught in Carding Machine ^ I. Said defendant is the receiver of the S. C. Company, a do- mestic corporation organized and existing under the laws of the State of New York and doing business at , N. Y. II. Said plaintiff is the guardian ad litem of said W. K., who is a minor of the age of seventeen years. III. Some time prior to the day of , 19 , said W. K. was employed by said receiver in the factory or mill of said S. C. Company located at , N. Y. Said W. K. was employed in said factory for the purpose of feeding some of the carding machines, located in said mill and operated at that time by said receiver and he had no control over or charge of said machines, his only business being to feed into said machines the stock which was carded by them. Said machines consisted of a number of rollers covered with teeth over which said stock run after it was fed into said machines. IV. Plaintiff alleges that it was the duty of the said defendant to provide said W. K. with a safe and proper place in which to perform his said duty; and to furnish safe, adequate and proper 1 From Keating u. Coon, 188 N. Y. 624; in which a judgment in favor of the plaintiff was affirmed. 380 Bradbury's Forms of Pleading Negligence tools and machinery to said W. K. with which to perform his said work; and that it was the duty of said defendant to properly equip said machinery as far as possible to prevent said machinery from catching said W. K.'s body or clothing and thereby causing him injury; and that it was the duty of said defendant to properly instruct said W. K. in the proper and safe method in which to perform the work for which he was engaged and to warn him of the dangers incident thereto and not patent to the observation of the ordinary observer. V. Said plaintiff alleges that said defendant failed to furnish said W. K. with a safe and proper place in which to perform his said duties; and failed to furnish safe, adequate and proper tools and machinery to said W. K. with which to perform his said work; and that he failed to properly equip said machinery with guards to prevent as far as possible said machinery from catch- ing said W. K.'s body or clothing and thereby causing him injury; and that he failed to properly instruct said W. K. in the proper and safe method in which to perform the work for which he was engaged and to warn him of the dangers incident thereto and not patent to the observation of the ordinary observer, but, on the contrary, furnished and requested said W. K. to operate a dan- gerous, unsafe, dilapidated and improper machine, to wit, one of said carding machines. VI. By reason of the failure of said defendant to perform his said duties as above set forth on the day of- , 19 , said W. K.'s left hand was caught in the machinery of one of said carding machines and his right hand and arm drawn into said machine and so caught, cut, bruised and mangled that it was necessary to amputate said arm near the shoulder. VII. Said plaintiff alleges that no negligence on the part of the said W. K. contributed in any way to said accident and said accident was due entirely to the negligence of said defendant as above set forth. VIII. Said plaintiff alleges that on or about the day of , 19 , within one hundred and twenty days after the happening of said accident, a notice such as is required by the Complaints 381 Negligence laws of the State of New York, properly subscribed by said W. K., was served upon said defendant. IX. By reason of said injuries said W. K. is permanently injured for life, having lost his right arm, and he has suffered great pain and injury and has been forced to expend large sums of money for the services of physicians and nurses, and care at the time he was injured and by reason thereof said K. has been damaged in the sum of $ Wherefore [prayer for money jitdgment]. Form No. 313 Improper Rope Used in Iron Construction ^ I. That at all the times hereinafter mentioned, the defendant was, and still is, a corporation organized under the laws of the State of , and that it has an office for the transaction of business in the city and county of New York in this State. II. That on or about the day of , 19 , and prior thereto, the said defendant was the contractor for the build- ing and construction of certain iron works on a certain building on the side of avenue between street and street, in the city of New York, and as such con- tractor had the full and exclusive charge, management and con- trol of all the works and operations in connection with such iron work on the said building. III. That on or about the day of , 19 , the plaintiff was employed by the defendant as an iron worker, and that it was part of his duties as such iron worker on said building, to assist in the moving of iron beams to be used in the construc- tion of said works, from one place to another on the said premises. IV. That for the purpose of moving such iron beams as above described, the defendant furnished to plaintiff and other employ- ees engaged in the said work, a certain two-wheel cart with a stationary rope attached to the tongue of such cart for the pur- > From Pluckham v. American Bridge Company, 186 N. Y. 561; aff'g.with- out opinion, 104 App. Div. 404; 93 Supp. 748; in which a judgment in favor o{ the plaintiff was affirniecj, 382 Bradbury's Forms of Pleading Negligence ji _ . — pose of tying and securing such iron beams to the said tongue and hold the tongue in position, and that it was the duty of the defendant to provide such carts with a sound, strong, secure and proper rope capable of carrying the heavy weight of such iron beams. V. That the defendant, not regarding its duty as aforesaid, carelessly and negligently failed to provide the said two-wheel cart furnished by it to the plaintiff for the purpose of the work above mentioned, with a sound, strong, secure and proper rope as aforesaid, but that it provided the said cart with a weak, insecure and improper rope. VI. That on or about the said day of , 19 , and while the plaintiff was engaged under the direction of the defendant's foreman in carrying such iron beams tied and fas- tened to the two-wheel cart as above mentioned, the said rope broke, whereby the iron beams became detached from the tongue of the said cart, and the said tongue lost its balance and made a violent revolution, throwing the plaintiff to the ground with great force. VII. That the said accident was caused by reason of defects in the rope as above mentioned ; that the said defects arose from or had not been discovered and remedied owing to the negligence of the defendant or of the person intrusted by the said defendant with inspecting and examining the appliances furnished to the said defendant's employees for the performance of thtir duties, and through no fault, default or neglect on the part of the plain- tiff. VIII. That by reason of the said defendant's negligence as aforesaid, the plaintiff was injured, bruised and wounded on the head, and that he became sick, sore and disabled to the plaintiff's damage in the sum of $ Wherefore [prayer for money judgment]. Complaints 383 Negligence Form No. 314 Hand Injured by Being Caught in Cogs While Cleaning Carding Machine in Cotton Mill > I. That plaintiff is an infant of the age of years and upwards, and resides in the city of , N. Y. That here- tofore and on or about , 19 , upon a petition duly made, a consent duly acknowledged and affidavit properly made, Hon. W. T. D., county judge of county, N. Y., duly made an order appointing J. F., above named, the guardian ad litem of this plaintiff in said above-entitled action. II. That the defendant is a domestic manufacturing stock corporation duly and legally organized and incorporated accord- ing to the statutes and laws of the State of New York, and has been such corporation for a number of years past. ' That on or about , 19 , and for a long time prior thereto the defendant operated a large establishment on street in said city of , for the manufacture of cotton goods. That in said manufacturing establishment a very large number of hands were employed. That this plaintiff was so employed there by said defendant on or about , 19 , and had been so employed there by defendant for a long time prior thereto. III. Plaintiff further alleges that heretofore and on or about , 19 , and before the commencement of this action and within and in less than one hundred and twenty days after , 19 , she served a notice in writing signed by her upon this defendant. That a copy of said notice is hereto annexed and made a part of this complaint. IV. That on , 19 , and for a long time prior thereto this plaintiff was employed in the carding room in mill No. 2 of said defendant's factory on street, aforesaid, and worked upon certain machines known as ' ' speeders . ' ' That plaintiff at all said time was by the defendant, its superintendent, officers and agents, permitted and directed to clean said machines while in ' From Fish v. Utica Steam & M. V. C. Mills, 187 N. Y. 571; in which a judgment in favor of the plaintiff was affirmed. 384 Bradbury's Forms of Pleading Negligence motion, and actually did clean said machines during all said time while the same were in motion by the permission and at the ex- press direction of the said defendants, its superintendent, officers and agents. That said speeder machines were and constituted part of the ways, works and machinery connected with and used in the busi- ness of said defendant, and became and were out of repair and defective in a great many ways. That said machines were known by defendant, its superintend- ent, officers and agents to be out of repair, defective, unsafe and dangerous to the lives and limbs of the employees who worked about and upon them and to the life and limbs of this plaintiff. That among the many defects in said speeder machines were a loose cap or cover upon one of them and which in dimension is about or inches square, and which cap and cover, when in place, inclosed, covered and protected certain large, powerful and dangerous cogs, gears and meshes which revolved and moved when said machine was in motion. That it became and was the duty of defendant to have and maintain said cap or cover in a way securely fastened or bolted down by screws or otherwise securely fastened by other mechanical con- trivance. That there was also set into said cap or cover, a certain screw projecting up from the top thereof, which was and constituted a defect therein, and which said screw was by defendant, its superintendent, officers and agents, negligently, carelessly, will- fully and wantonly, so put there, or was by said defendant, its superintendent, officers and agents, negligently, willfully and wantonly allowed to be and continue there. That said screw was at any time liable to become and on the occasion hereinafter mentioned on which plaintiff was injured, did become caught and entangled in the material hereinafter named, which was being used by plaintiff to clean said machines plaintiff is informed and believes. That when said hard waste became so entangled in said screw, it aided in removing said cap or cover frpm its location as plaintiff is informed and believes, Complaints 385 Negligence That it also became and was the duty of said defendant to see that there was no projection up from the top of said cap or cover which may be the cause of removing it from its place. But said defendant, disregarding its said duty and the duty it owed this plaintiff, negligently, willfully, wantonly and without any regard for the safety of its employees or the safety of this plaintiff, suffered and allowed said cap to be wholly unfastened, insecure, defective and dangerous. Said defendant also, knowingly and willfully, suffered, allowed and permitted said screw to project up from the top of said cap or cover, without any regard for the safety of this plaintiff, and in such manner, that the same was liable at any time to do her injury. That at said time it also became and was the duty of said de- fendant to furnish to its said employees, and to this plaintiff, proper and sufficient material to be used for the purpose of clean- ing said speeder machines, and material which was not so strong and hard to be broken, and to get free from, as to endanger the life, limbs and safety of its employees and of this plaintiff. But said defendant disregarding its said duty negligently, carelessly, willfully and wantonly and heedlessly furnished to this plaintiff certain material known as hard waste, and which is a strong rope-like substance or material. That said hard waste , is so strong and hard to be broken that when the same becomes entangled in machinery, it is difficult to free the same therefrom. That said hard waste was known by defendant, its superin- tendent, officers and agents, to be improper material to bo used for that purpose and to be dangerous and unsafe for those vv'ho used or attempted to use the same with which to clean said speeder machines, and especially so if said machines were cleaned therewith while the same were in motion. V. That on or about said day of , 19 , and while plaintiff was employed upon one of said speeder machines, as aforesaid, and while she was herself in the exercise of due care and diligence at the time and free from any negligence, careless- ness or want of care on her part and while she was cleaning said Vol. 1—25 386 Bradbury's Forms of Pleading Negligence speeder machine, when it was in motion with the permission and at the express direction of the defendant, its superintendent, officers and agents, and by using said hard waste furnished her by the defendant, as aforesaid, and which plaintiff at said time lield in her right hand, and which hard waste at said time covered and inclosed her hand, and while cleaning said machine in the vicinity of said cap or cover, aforesaid, the same fell off and the said hard waste enclosing plaintiff's right hand and plaintiff's said right hand were brought in contact with and caught in said uncovered, unguarded and unprotected cogs, gears and meshes then rapidly moving and plaintiff received such dreadful and terrible injuries that it became necessary to and her said right hand was actually amputated at the wrist. VI. That said injury to plaintiff was due wholly and entirely to the willful carelessness, recklessness, heedlessness, negligence and want of care of said defendant, its superintendent, officers and agents. That said injury was in no wise due to any negli- gence, carelessness or want of care on the part of this plaintiff. Wherefore [demand for money judgment]. Form No. 315 Death Caused by Superintendent Carelessly Connecting Electric Wires Causing Premature Blast in Tunnel ^ I. Upon information and belief, that the defendant is, and at the times hereinafter mentioned was, a corporation duly organ- ized and existing under and by virtue of the laws of the State of , and is and then was lawfully engaged in excavating a tunnel or tunnels under the bed of between the borough of and in the city of , for the use and passage of railroad cars, or trains of cars, running between said boroughs. II. Upon information and belief, that in the prosecution of said work of excavation, which involved the blasting and re- moval of large quantities of rock, as well as the digging out and 1 From McBride v. N. Y. Tunnel Co., 187 N. Y. 573; in which a judgment in favoi- of the plaintiff was affirmed. Complaints 387 Negligence removal of earth and other substances underlying the bed of said river, the defendant employed a large number of workmen, some of them known as drillers, to drill holes in the rock which was to be removed, preparatory to the charging of them with powder, dynamite or some other explosive by the ignition of which, through the application of electricity generated and conducted by electrical contrivances installed in said tunnels, such rock was to be broken up in convenient form for removal, and others of them to remove said rock after the blasts as well as to remove other debris and loose material which was accumulated in said tunnels, and to perform other services in connection with such work of excavation. That said workmen were divided into sep- arate bodies or gangs, each gang containing a number of each of said classes of workmen, who perform their respective duties under the superintendence and direction of other employees of the defendant who were known as rock foremen, and who had immediate charge of the work of excavation at the points in said tunnels where the same was being prosecuted. III. Upon information and belief, that at the same time the defendant also employed other persons known as blasters, to superintend the filling of said holes with said explosives when they were ready to be charged, to make necessary electrical con- nections and to fire or "shoot" the blasts when they had com- pleted the necessary preparations therefor, such blasters, as a separate class of workmen, being employed because of their experience and skill in the business and the fact that they held certificates of fitness for such work issued to them by the fire commissioner of the city of , all persons acting as blasters in the city of being required at the time in the complaint mentioned to undergo an examination as to their competency, and to have such certificates of fitness issued to them under regu- lations adopted by the municipal explosives commission of said city, pursuant to certain public ordinances of said city adopted by the board of aldermen thereof on , 19 , and ap- proved by its mayor on , 19 , under and by virtue of the authority conferred by sec. 2 of sec. 1620 of chap. 46(5 of 388 Bradbury's Forms of Pleading Negligence the Laws of 1901 of the State of New York, copies of which regu- lations and ordinances, so far as they relate to licenses for blasting and certificates of fitness, marked respectively Schedules "A," "B" and "C," are hereto annexed and made a part of this com- plaint. IV. Upon information and belief, that on the day of ,19 , in one of the said tunnels which was so being excavated, the defendant employed two gangs of men, one under the superintendence and direction of one G. R. as foreman, whose duty it was to prosecute the work of drilling in, and re- moving rock, earth and other debris from, the portion of the tun- nel known as "the heading," which was the smaller excavation at the top of the tunnel and which had reached a point some fifty or sixty feet in advance of the main tunnel, and the other gang, under the superintendence and direction of one L. T. M. as foreman, whose duty it was to prosecute the work in the main tunnel in the rear of "the heading," drilling and removing the rock and earth which formed the floor of "the heading" and which was known as "the bench." V. Upon information and belief, that upon the same day, one P. McB., a competent blaster to whom had been duly issued one of said certificates of fitness, was, and for some time theretofore had been, in the employ of the defendant as a blaster, and his duty was to superintend the preparation and firing of the blasts in said tunnels, both in "the heading" and upon ""the bench," upon notification by the respective foremen that the requisite holes therefor were drilled and ready to be charged with the explosives, such foremen having no certificates of fitness as blasters and no authority under the law to prepare or explode said blasts. VI. Upon information and belief, that on the said day of , 19 , while the said P. McB. was engaged in charging with an explosive certain holes which had been drilled in the rock in said "heading," to which duty he had been called by the said foreman R., and was connecting the said electrical appliances therewith, the said M., the foreman of the men whose Complaints 389 Negligence place of employment was on "the bench," but who for the time being had suspended work and sought places of safety pending the performance of his said duties by the said McB., in the exer- cise of his superintendence over his men and in order to get them to work again as speedily as possible on "the bench" in the fur- therance of the interest of the defendant, himself connected the firing wires with the electrical battery, and carelessly and negli- gently exploded the charge with which the said McB. had filled said holes preparatory to a blast, and thereby so injured the said P. McB. that he died in said tunnel within a few minutes there- after. VII. That the said P. McB. was years of age and in good health prior to said occurrences, and, as the plaintiff is in- formed and believes, was guilty of no negligence or want of care which caused or contributed to his said injury and death, but that such injury and death were caused solely by the negligence of a person in the service of the defendant intrusted with and exercising superintendence whose sole or principal duty was at the time of that superintendence, and who was acting as super- intendent with the authority or consent of the defendant, to wit, the said L.T.M. VIII. That the said P. McB. died intestate, leaving him sur- viving the plaintiff, his widow, and a daughter now aged about months, and on the day of , 19 , limited letters of administration upon the estate of the said P. McB., deceased, with power to prosecute the cause of action upon which this action is brought, were duly issued and granted to this plaintiff by one of the surrogates of the county of , in the State of , appointing her the administratrix, with such limitation, of the goods, chattels and credits which were of said deceased, and that this plaintiff thereupon duly qualified as such administratrix and entered upon the discharge of the duties of her said office. IX. That on the day of , 19 , the plaintiff, as such administratrix, pursuant to the statute in such case made and provided, caused a notice of the time, place and cause of the 390 Bradbury's Forms of Pleading Negligence said injury to the said P. McB., and of his death, to be given to the defendant, that such notice was in writing and recited the ap- pointment and quahfication of the plaintiff as administratrix as aforesaid, was signed by her as such administratrix and was served upon the defendant by the delivering of the same at the office or principal place of business of said corporation defendant, at No. , street, in the borough of , in the city of X. That by reason of the death of the said P. McB., who left him surviving a wife and child as aforesaid, the plaintiff as such administratrix as aforesaid, has suffered damage in the sum of $ Wherefore [demand for money judgment]. Form No. 316 Infant Injured by Hair Being Caught in Bangerous Revolving Shaft ' I, That the plaintiff is an infant of the age of years and resides with her parents in the township of , county of , State 01 , and during the times hereinafter mentioned and at the commencement of this action was and now is a resident and citizen of the said township of , county of , and State of , and during the said times was and now is a nonresident of the State of New York, and upon information and belief, that on the day of , 19 , an order was duly made and entered in the above-entitled court appointing the above-named A. M. B. the guardian ad litem of the plaintiff for the purpose of prosecuting this action. -II. That defendants were at all times hereinafter mentioned and now are copartners engaged in the business of manufactur- ing handkerchiefs at the borough of , county of and State of , and doing business at said place and at No. , street in the borough of Manhattan, city of New York, State of New York, under the firm name of H., A, ' From Lochs v. Herrmann, 185 N. Y. 560; aff'g, without opinion, 108 App. Div. 366; 95 Supp. 1141 (no opinions); in which judgment for the plaintiff was upheU. Complaints 3D1 Negligence & Co., and during all the times above mentioned were and now are residents and citizens of the city, county and State of New York. III. That the plaintiff was, on and prior to the day of ,19 , in the employment of the defendants above named, and performed labor and services in the factory of said defendants located at the place above named, which labor and services consisted, among other things, in operating a sewing machine in said factory; that said machine was propelled by a line of shafting operated by a steam engine and that said shaft- ing extended through and was connected with said machine by a belt which was run on a tight pulley operated by a pedal when it was desired to keep said machine in motion; that said shafting was located in an exposed and dangerous place and within close and dangerous proximity to any person required to operate said machine; that on or about the said date plaintiff was set to work by the defendants on said machine and upon which defendants had negligently failed to provide the usual proper and sa.e j uar s and appliances, and failed to warn plaintiff or to post a notice of said danger, as required by the statute of the State of in such cases made and provided, and upon a machine which was unsafe and dangerous, all of which was known to defendants and unknown to plaintiff, and in such a condition that a person of plaintiff's age and condition in attempting to operate the same would be likely to suffer injury. IV. That on said day and while plaintiff was engaged at work on said machine, and while the same was in the use and service of defendants, and not knowing the dangers of working upon the same, and not having been informed or warned thereof, her hair was caught in said exposed and dangerous revolving shaft which propelled said machine, and her scalp, together with the flesh of her face, was wrenched from her head, her arm was broken and her left shoulder dislocated and bruised, her eyesight per- manently impaired and other serious injuries inflicted, whereby she was severely bruised and wounded and sustained a serious and lasting nervous and physical shock, and thereby suffered 392 Bradbury's Forms of Pleading Negligence intense pain and distress, both physical and mental, and plaintiff has been and w ill be in the future disabled and prevented from pursuing her usual vocation from which she gained her liveli- hood, antl will, in consequence of the disfigured, mutilated and deformed condition of her face and head and the impairment of her health caused by said negligence of said defendants, be de- prived of the possibility of ever being married. That she was compelled to and did remain in her bed for many months, and was compelled to and did undergo several severe operations of grafting skin upon her face and head from other parts of her body, and as she is informed and verily believes, will be required to undergo many more operations of like character for said and other purposes, all resulting from said injuries, and was compelleJ to and did procure medicines and medical attendance and nurs- ing at great expense, and as she is informed and verily believes, will be for a long time compelled to procure such medicines and services at great expense, and that she will be permanently maimed, mutilated, disfigured and deformed, and that her health will be permanently impaired, all to her damage in the sum of $ V. That the accident aiid injuries to plaintiff were wholly caused by and through the negligence of the defendants in failing to provide the usual safe and proper guards and appliances over said dangerous shafting, and by allowing the same to remain in such defective and dangerous condition, all of which was known to defendants but which were unknown to plaintiff, and requiring the plaintiff to work on said machine while the same was in such unsafe and dangerous condition contrary to the statutes of the State of in such cases made and provided, and in failing to instruct or warn the plaintiff as to such dangerous condition of said machine; that said injuries were in no wise contributed to or caused by plaintiff's negligence, and plaintiff avers that she was not negligent in the premises. Wherefore [prayer for money judgment]. Complaints 393 Negligence. VI. Physicians Form No. 322 Action Against Surgeon for Malpractice; PlaintiS an Almshouse Patient ^ Supreme Court, county. Henry H. DuBois, Plaintiff, against William M. Decker, Defendant. The plaintiff complaining of the defendant, alleges : I. That on or about the day of , 19 , at the city of , N. Y., the plaintiff's foot and leg were bruised and injured by a locomotive wheel squeezing the same, and the plaintiff after such injury was immediately taken to the almshouse of the city of , New York, and the defendant, the city physician in and for the city, and employed by ihe said city of , and whose duty it was to care for such injury in a skillful, competent and workmanlike manner, was sent for to attend to the dressing and care of plaintiff's foot and leg, and did attend, but did not use proper care and skill in endeavoring to cure and heal the injury of the plaintiff; that the defendant conducted himself and treated such injury and bruises of plain- tiff in such an unskillful, unprofessional, careless and negligent manner that inflammation and gangrene set in said foot and leg, and afterward and about the month of , 19 , at differ- ent times, the defendant amputated portions of plaintiff's leg, doing the same in an unskillful, careless, negligent, unprofes- sional and unworkmanlike manner, and such amputation was made without the consent and against the will of the plaintiff. II. That by reason of the said defendant's negligence, careless- ness and unskillfulness, the plaintiff was made sick and sore and kept from attending to his business, and has been and still is dis- ^ From Dubois v. Decker, 130 N. Y. 325; in which judgment for the plaintiff was affinned. 394 Bradbury's Forms of pLEADme Negligence abled from attending to his business, all to the damage of plain- tiff of $ Wherefore [prayer for money jvdgment]. [Signature and office address of attorney, and verification.] Form No. 323 Against Surgeons for Malpractice ^ I. [Allegation that the plaintiff is an infant and sues by guardian ad litem. See Forms Nos. 33, 34 and 35, pp. 21, 22.] II. [Allegation that the defendants are and were physicians and surgeons. See Form No. 56, p. 33.] III. That on or about the day of » 19 , the plaintiff, H. W. L., suffered a fracture of the bones of his right arm near the wrist or at the wrist, and the defendants then and there representing themselves to be competent and skillful phy- sicians and surgeons as aforesaid, were employed for a compensa- tion, and undertook and agreed as such physicians and surgeons to reduce said fracture and to set and heal the said broken bones in the said plaintiff's arm and to properly and skillfully care for, cure and heal the same. IV. That the defendants so negligently and unskillfully con- ducted themselves in the premises and in attempting to reduce said fracture and to set said broken bones and heal said injured limb, that they improperly, unskillfully and negligently reduced said fracture and cared for said arm whereby inflamnjation and suppuration was caused and followed to and upon said arm and plaintiff's right hand, and the said hand placed and left in an improper position and too tightly bandaged and said arm and hand otherwise unskillfully treated and handled and adjusted, so that the same became -diseased and inflamed and stiffened and grown and drawn out of shape and permanently and seriously injured and crippled, all by reason of the unskillfulness and neg- ligence of the defendants, and to the plaintiff's great damage of $ Wherefore [prayer for money judgment]. ^ From Link v. Sheldon, 136 N. Y. 1 ; in which judgment for the plaintiff was affirmed. Complaints 395 Negligence Form No. 324 Against Physician for Alleged Malpractice in Treating Patient ' I. [Allegation that the defendant is and was a physician and surgeon. See Form No. 57, p. 34.] II. That in and during the year 19 plaintiff employed de- fendant as physician and surgeon to treat and care for the frac- tured, broken or displaced patella or kneepan and other injuries to one of plaintiff's legs caused by a kick from one of plaintiff's horses. The defendant undertook to and did treat and care for plaintiff's said injuries during said year, but did it so negligently and carelessly and with so much want of skill and failure to use due and proper skill and care and to give plaintiff proper and necessary attention and instruction in the matter that the frac- ture of plaintiff's patella and other injuries was never reduced or cured and plaintiff has practically lost the use of said leg by reason thereof and became and was made and is a cripple for life and unable to attend to or transact his ordinary business or scarcely any business, and caused great unnecessary loss of time, pain and suffering. III. Plaintiff further alleges that if defendant ever did reduce said fracture, displacement, or dislocation of said patella, he negligently failed to use or apply to plaintiff for his said injury the necessary and proper precaution, appliances and treatment to keep said patella in its place or to permit or cause the same to become united and in consequence of which and of defendant's carelessness and unskillfulness and improper treatment the frac- tured parts of said patella have become displaced and have never reunited, thereby causing the injury to the plaintiff hereinbefore specified to plaintiff's damage of $ Wherefore [prayer for money judgment]. ^ From Pike v. Honsinger, 155 N. Y. 201; in which a judgment for the de- fendant was reversed. 396 Bradbury's Forms of Pleading Negligence Form No. 325 Malpractice of Dentist; Liability of Department Store Proprietor Con- ducting Dentistry Department ' I. On information and belief defendant is a domestic corpora- tion organized and existing under the laws of the State of New York, and carrying on its business in the city of New York, and having under its control divers departments. II. That defendant in the course of the conduct of its said busi- ness and on the day of , 19 , did conduct and have under its control a certain department known as the dentis- try department, in which department defendant advertised and represented to the public at large that it carried on such depart- ment under the management of skillful operators, and used a form and method for painless dentistry together with all of the latest appliances therein. III. That defendant represented to the public at large and to this plaintiff, that its department was conducted and managed by most skillful operators and persons authorized to practice dentistry, and in accordance with and pursuant to such repre- sentations and advertisement and in reliance thereof, plaintiff engaged the services of defendant for the purpose of doing cer- tain necessary skillful professional labor in the treatment of her teeth, for which defendant made a charge, and for which plaintiff promised and agreed to and did pay in advance. IV. That, pursuant to the said representations so made by defendant and in reliance thereof, and relying upon the skillful- ness of the persons employed by the defendant and the persons under its care and control, plaintiff submitted to the treatment of her teeth by defendant, by its servants and persons under its control and supervision, and on or about the day of , 19 , and while plaintiff was under the care and treat- ment of defendant, as aforesaid, defendant carelessly, wrongfully and recklessly did treat and operate upon plaintiff's lower left wisdom tooth, and in and about the same, whereby and where- 1 From Hannon v. Siegel Cooper Co., 167 N. Y. 244; in which a judgment in favor of the plaintiff was affirmed. Complaints 397 Negligence from, and in consequence of such negligence, carelessness, reck- lessness and improper conduct and treatment of the same, the said tooth and the surrounding teeth, gum, jawbones and other bones and muscles in and about the mouth of plaintiff became diseased, affected, pained and injured, and an abscess .was formei in plaintiff's mouth, all of which caused plaintiff serious and excruciating mental and physical pain, and which continued for a period of about six weeks, and it became necessary for plaintiff to engage the services of skilled physicians and surgeons in order to heal and cure her of the injuries and pain she has sustained, by reason of the acts hereinbefore described, and in so doing she expended divers sums of money for medical aid and attendance. V. That, in addition to the aforesaid injuries and in conse- quence of defendant's said negligent and wrongful acts, as afore- said, plaintiff's jaws, organs and glands, and other bones and muscles, organs, glands, membranes and gums in and about her face and mouth became sore, diseased, wounded, swollen and injured, causing plaintiff intense physical pain and agony, as she was prevented from freely using her mouth or opening the same, and unable and prevented from taking and eating sohd food and unable to close her mouth, all of which continued for a period of about six weeks, and during all of which time plaintiff suffered intense mental and physical pain and agony and loss of sleep and other damage and injury. VI. That by reason of the said negligent and wrongful acts of the defendant as aforesaid, in the treatment of plaintiff's teeth, as aforesaid, plaintiff was compelled to and did submit to several operations in and about her face and mouth, and was compelled to have the services of a skilled physician and surgeon to with- draw the filling placed in plaintiff's said tooth by defendant pre- ceding its extraction, which was necessary and proper in order to prevent further injury to plaintiff. VII. That the defendant in the course of the said treatment of plaintiff, carelessly, recklessly, negligently and unskillfully used unclean, dangerous, poisonous and improper instruments, in and about the treatment of plaintiff's said teeth, and applied 393 Bradbury's Forms of Pleading Negligence the same to plaintiff in an improper, unlawful, unskillful and negligent manner, and did negligently, wrongfully, carelessly and improperly fill the said lower left wisdom tooth with unclean, improper and dangerous substance, all of which caused and brought about the condition of plaintiff hereinbefore specifically described. VIII. That the defendant had knowledge and notice of the unskillfulness of its agents and servants in the treatment in its said dentistry department prior to the day of , 19 , but was unknown to plaintiff. IX. That in consequence of the injuries so received plaintiff has been made sick and sore, maimed, injured, wounded and damaged, and was in consequence thereof confined to her home, suffering intense and severe pain and agony, and has been com- pelled to and did employ a physician and surgeon in her efforts to be cured and relieved of her said injuries, and did expend di- vers sums of money therefor, and has been and will be compelled to expend divers sums of money for drugs and medicines, and on information and belief that the said injuries are of a perma- nent character. X. That by reason of the premises and all the facts herein- before set forth plaintiff has been damaged in the sum of $ Wherefore [prayer for money judgment]. Complaints 399 Negligence VII. Attorneys Form No. 327 Attorney's Advice That Money be Loaned on Property Already Mortgaged ^ Supreme Court, county. Walter A. A. Gardner, as guardian of Arthur McKinney and Belle L. Mc- Kinney, Plaintiff, against William T. Wood, Defendant. The plaintiff, complaining of the defendant, alleges : I. [Allegation that the plaintiff sues as general giiardian. See Form No. 36, p. 22.] II. [Allegation that the defendant is sued as an attorney. See Form No. 58, p. 34.] III. That shortly prior to the day of , in the year 19 , the plaintiff as general guardian of the property of the said two infants, was entitled to receive as a portion of their interest in the estate of their deceased father, the sum of dollars. That at this time the defendant was acting, and for some time past had acted, as the legal adviser of the plaintiff in matters relating to the guardianship of the said two infants, and they stood to each other in the relation of client and attorney. IV. That shortly prior to the day of , 19 , application was made to the plaintiff to loan to E. H. B. and H. 0. B., her husband, of the city of , county of , and State of New Vork, the sum of dollars, to be secured by a mortgage upon property of said B. in the said city of . That plaintiff thereupon applied to the defendant, as his attorney, for advice as to whether such loan was a safe one, and * From Gardner v. Wood, 37 Misc. 93; 74 Supp. 750; in which, on demurrer this complaint was upheld. 400 Bradbury's Forms of Pleading Negligence one which it was proper and fitting for him as guardian as afore- said, to make out of the trust funds in his hands; that plaintiff was then and there advised by the defendant that he was per- sonally familiar with the said real estate at , and that the same offered ample security for the said loan, and the said loan was one that the said plaintiff could with propriety make with the said sum of dollars; that plaintiff, relying on the said representations and advice of the said plaintiff, there- upon agreed to make to the said B . the said loan, and instructed the defendant, who then had in his possession the said sum of dollars belonging to the plaintiff aforesaid, to invest said sum in the said loan, to be secured by a mortgage on the real estate as aforesaid. V. That the said loan was thereupon made to the said B. by the said defendant on behalf of the plaintiff, and a mortgage to secure said loan was executed by the said E. H. B. and H. 0. B., her husband. VI. That at the time of the making by this plaintiff of the said loan on the property cf the said B., there was, unknown to the plaintiff, then existing on said property a first mortgage for the amount of dollars, to which mortgage the mort- gage frr dollars given by the said B. to the plaintiff was subordinate. That the defendant, without observing the duty which he owed to the plaintiff in the premises, neglected to ascertain the existence of such first mortgage on the said real estate, or to inform the plaintiff of the existence of such first mortgage, or to inform the plaintiff that it was improper for him to loan trust funds upon the security of the said property, in- cumbered as it was by a first mortgage. That defendant negligently permitted the plaintiff to make the said loan of dollars upon the said real estate, ob- taining only a second mortgage thereon as security for such loan. VII. That plaintiff did not discover that the mortgage so re- ceived by him as security for said loan was in fact a second mort- gage until upwards of two years after such loan had been made, and that shortly after making such discovery proceedings were Complaints 401 Negligence instituted by the holder of the first mortgage to foreclose the same, -and as the result of such foreclosure proceedings the said property was sold, and failed to realize more than sufficient to pay the amount of the first mortgage and interest, and that by reason of such foreclosure the entire security for the loan so made by the plaintiff to the said B. was wiped out and extin- guished. VIII. That plaintiff received interest on the said second mort- gage until the day of , 19 , but has received no interest since then, and no payment on account of the princi- pal of said mortgage. IX. That by reason of the negligence of the said defendant in the premises, and of his failure to properly perform the duties which he owed to the plaintiff as his attorney, the plaintiff has sustained damages in the sum of dollars, with interest thereon from the day of , 19 . Wherefore [prayer for money judgment]. [Signature and office address of attorney, and v .rification.] Form No. 328 Mistake of Title Company in Drawing Deed ^ I. That the defendant is a domestic corporation, organized with a cash capital of $ for the purpose, among other things, of examining and guaranteeing titles to real estate for hire and for profit. That it has one of its principal places of business in the G. building, in the city of . That it has and always has had in its service a number of lawyers, and it does now and always has held itself out to the public to per- form, in addition to the formal examination and guarantee of titles toward persons employing it, the same duties and offices in matters of conveyancing that have heretofore usually been performed by lawyers, and it has very largely driven the legal ^ From Ehmer v. Title Guarantee & Trust Co., 156 N. Y. 10; in which a judg- ment in favor of the plaintiff was affirmed. It was held that the liabihty of a title company when acting as conveyancer was the same as that of an at- torney for mistakes whereby the party conveying was prejudiced. Vol. 1—26 402 Bradbury's Forms of Pleading Negligence profession, other than its employees, out of the business of con- veyancing in the city of , and itself occupied their place. II. That the plaintiff, in or about the day of 19 , had verbally agreed that one J. M. O'N. was to purchase from him a house and lot in the city of , known as No. , avenue, to be subject to a mortgage of $ , and to pay therefor $ in cash. III. That she was and was known by the defendant to be by reason of her ignorance absolutely unable to intelligently take charge in her own behalf, in any, the slightest measure, of the matter of the said purchase, and was and was known by the de- fendant to be in need to intrust the matter, from the making of the formal contract down to its consummation, absolutely and without reservation to someone else, and to act only under his guidance and direction. IV. That under the circumstances above alleged the plaintiff employed the defendant for hire to take charge of the whole matter of said purchase tor her, and to act therein for her at discretion and to guide and direct her through it to its consum- mation; and the defendant accepted the said employment. It sent one of its servants and agents to her house to draw a formal contract for such purchase, and said agent and servant asked this plaintiff where the property was located, and plaintiff in- formed him that it was on the east side of avenue, north of street, but that plaintiff did not know the distance from the corner; that it was the house in which there was on the ground floor a butcher's shop and a milk depot, and that plain- tiff could not any more precisely indicate the location of the property. Said agent and servant of the defendant then asked this plaintiff if it was next to the premises which one S. had bought from said O'N., the title to which the defendant had examined and guaranteed, and this plaintiff told him it was not next to S.'s house, but that there was one house between that and the house she had purchased. That shortly after said O'N. came in and said servant and agent of the defendant drew a for- mal contract of purchase and sale, which was under his super- Complaints 403 Negligence vision and direction signed by this plaintiff, and also by said O'N.; and plaintiff having already paid $ on account, then paid said O'N., under the supervision and direction of de- fendant's said agent and servant, the further sum of $ on account; that when in drawing the contract he came to de- scribe the property, he asked O'N. what was the distance from the corner of street, and negligently, without verifica- tion, took and relied upon what said O'N. told him, being per- fectly aware that this plaintiff did not know anything about it, and negligently drew the contract accordingly, describing by reference to its dimensions and distance from the corner. No. , avenue, that being the house and lot adjoin- ing that which they had examined and guaranteed the title of, for Mr. S., and not at all the house and lot which this plaintiff had purchased, which was No. , avenue, and was the second from the said house and lot of' S., and had in it the butcher's shop and milk depot above mentioned. That the plaintiff signed the contract in entire ignorance that the premises described in it were not the premises she had purchased. V. That the plaintiff having paid $ down, deposited in the defendant's hands $ , the unpaid balance of the purchase money, and although she was present when the con- tract was closed, everything was done on her behalf at his own discretion by an agent and servant of the defendant; that the defendant negligently accepted a deed from said O'N. of the premises No. , avenue, and paid him this plain- tiff's money, said $ , and sent the deed to the register's office for record. VI. That plaintiff thereupon went into possession of No. , avenue under said deed in entire ignorance that it did not convey No. , avenue, and sub- sequently discovered that the written contract had been on its face for the purchase of No. , avenue and that the deed had on its face Ukewise conveyed to her No. VII. Thereupon she brought an action against said O'N. for the reformation of the said deed, and the same was by a judg- 404 Bradbury's. Forms of Pleading Negligence ment of this court reformed so as to convey No. , avenue. VIII. That said premises, No. , avenue,, were at the time the plaintiff paid said O'N. the plaintiff's money and took the said deed as aforesaid, subject not only to a mortgage of $ , which she had agreed to take it subject to, but to a second mortgage on which there was due upwards of $ , which mortgage the defendant negligently omitted to inform the plaintiff of or to procure /to be canceled before paying the plaintiff's money and taking a deed to the plaintiff, as was its duty, though it had in its office a record of said mortgage and the same was also duly recorded in the office of the register of county. IX. That said second mortgage was afterward foreclosed and' the mortgaged premises sold for a sum which left no surplus and the plaintiff evicted therefrom. That said O'N. is insolvent and any claim against him is worthless. That by reason of the negli- gence ©f the defendant above alleged the plaintiff has suffered damage in the sum of $ ; that she has wholly lost the said property and the said sum of $ and the interest thereon' from the day the same was paid by the defendant to said O'N., and she has incurred large expense in the prosecution of the said action to reform the said deed. Wherefore [prayer for money judgment]. Complaints 405 Negligence VIII. Miscellaneous Form No. 330 Falling From Elevator > Supreme Court, county. — — — -^ Mary A. Gray, as administratrix of the estate of Bernard Gray, deceased. Plaintiff, against Siegel-Cooper Company, Defendant. The plaintiff, complaining of the defendant, alleges: I. That at all the times hereinafter mentioned the defendant was, and still is, a domestic corporation, duly organized and existing under and by virtue of the laws of the State of II. That at all of said times the defendant was in the posses- sion, management and control of the building or premises situ- ated on the east side of avenue, and extending from street to street, in the borough of , in the city of III. That on or about , 19 , and for a long time prior thereto, the defendant operated, in and in connection with its said premises, a certain elevator for the purpose of conveying merchandise, stock, materials, etc., from the lower floor of its said premises to the floors above, which elevator was situated in the rear of said premises, near to the street side thereof, and an entrance to which was near the said street. IV. That the said elevator, on said , and for a long time prior thereto, was used by persons having business with the defendant, such as the delivery of merchandise, stock, etc., to said defendant. ' From Gray v. Siegel Cooper Co., 187 N. Y. 376; in which a judgment in favor of the plaintiff was affirmed. 406 Bradbury's Forms op Pleading Negligence V. That on or about ,19 , B. G., the husband of this plaintiff, was in the employ of the firm of S. & S., dealers in meat. '\^. That on said day the said B. G. was sent by his said em- ployers to the premises of the defendant for the purpose of de- livering certain meat ordered by the said defendant from the said S. & S. VII. That, while delivering said meat, the said B. G. fell from the platform of said elevator to the bottom of the shaft thereof, receiving injuries from which he died almost instantly. VIII. That the said B. G. was caused to so fall owing solely to the dangerous, faulty, careless, reckless and negligent manner and condition in which the defendant maintained the said ele- vator and the shaft in which the same ran, and to the faulty, dangerous and defective manner and condition in which the said elevator and the said shaft were constructed and maintained, and the negligent, faulty, defective, dangerous and insecure manner in which the said elevator was left without guards, rail- ings, chains, inclosure or protection. IX. That the said B. G. was entirely free from any fault or negligence on said occasion. X. That the said B. G. died intestate at the place and time and in the manner aforesaid, and that on or about , 19 , the plaintiff was duly appointed by the surrogate of the county of the administratrix of the goods, chattels and credits of the said deceased, and that the plaintiff thereupon duly qualified as, and now is, such administratrix. XI. That the said B. G. left him surviving his widow, the plain- tiff, and next of kin as follows: K. G., a daughter, and J. G. and B. G., sons. XII. That the said widow and next of kin have been damaged by the death of said B. G. in the sum of $ Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification] Complaints 407 Negligence Form No. 331 Child, in Street on Tricycle, Killed by Truck ^ I. That the above-named G. D., deceased, was, at the time hereinafter mentioned, of the age of years; that he died on the day of , 19 , leaving him surviving the plaintiff herein, his father and sole next of kin; and on the day of , 19 , by an order of the surrogate of county, the plaintiff was duly appointed administrator of the goods, chattels and credits which were of the said G. D., deceased. II. Upon information and belief, that the defendant was at the time hereinafter mentioned, engaged in the livery and truck- ing business in the city of New York, and did trucking for the A. T. Co., a corporation doing business in said city; that on his trucks which he employed in that part of his business was the name of the said A. T. Co. That on the day of , 19 , the defendant had in his employ one J. C. ; that on the after- noon of said day, between and o'clock, his said employee was in charge of one of the defendant's trucks, engaged in the defendant's business, and drove along and upon avenue, between avenue and street, in the borough of , in said city of New York. III. Upon information and belief, that at the time aforesaid, while the above-named G. D., deceased, was upon the said avenue and street, he was knocked down and run over by the defendant's said horse and truck and received injuries which caused his death. IV. Upon information and belief, that the death of the said G. D. was caused solely by and through the negligence of the defendant's servant, then in charge of his said horse and truck. V. That by reason of the death of the said G. D., his said next of kin has sustained pecuniary injury in the sum of $ Wherefore [prayer for money judgment]. 1 From Dehmann v. Beck, 61 App. Div. 505; 70 Supp. 29; in which a judg- ment for the plaintiff was affirmed. 408 Bradbury's Forms of Pleading Negligence Form No. 332 Child Hurt in Street by Wagon ^ I. That he is an infant of the age of years. II. That on the day of , 19 , upon applica- tion duly made, 0. L. was duly appointed his guardian ad litem for the purposes of this action by an order of this court. III. That defendant is, and af the hereinafter mentioned times was, a corporation organized under the laws of the State of New York, and as such owned horses and wagons. IV. On information and belief that on or about the day of , 19 , said plaintiff was lawfully upon one of the public streets of the city of , to wit, street. V. On information and belief that at said time and place the defendant, through its agents and servants, was driving one of its horses attached to one of its wagons. VI. On information and belief that at said time and place the defendant so carelessly, recklessly and neghgently drove, man- aged and controlled its said horse and wagon as to drive the same upon and over said plaintiff without any fault or negligence on his part. VII. That by reason of said negligent acts plaintiff has been seriously injured, permanently disabled and incapacitated from ever earning a livelihood, as he is informed and believes, and made to suffer great agony, all to his damage $ . Wherefore [prayer for money judgment]. Form No. 333 Infant Hurt in Street by OoupS ^ I. Upon information and belief that by an order of Mr. Justice B., made and entered in the office of the county clerk of New York county, on the day of , 19 , D. M. T. was 1 From Oelerich v. N. Y. Condensed Milk Co., 127 N. Y. 680; in which a judg- ment in favor of the plaintiff was affirmed. ^ From Thomson v. Seaman, 67 App. Div. 58; 73 Supp. 488; in which a judgment for tlie defendant was reversed. Complaints 409 Negligence duly appointed guardian ad litem of D. M. T., an infant, the plaintiff in the above-entitled action, with authority to prosecute this action, and by the said order the plaintiff herein was per- mitted to prosecute this action as a poor person. II. Upon information and belief that avenue and street, at and about their intersection each with the other, in the borough of Manhattan, are and were at all the times hereinafter mentioned public highways. III. Upon information and belief, that at all the times herein- after mentioned, the defendants were copartners, carrying on a general livery business in the city of New York, borough of Manhattan. IV. Upon information and belief, that at all the tinjes herein- after mentioned, one D. A. was in the employ of the defendants, or one of them, as driver. V. Upon information or belief, that on or about the day of , 19 , at about the hour of o'clock in the afternoon, the said D. A. was driving a horse and carriage in the business of the defendants, or one of them, through avenue, at or about its intersection with street, in the said borough of Manhattan. VI. Upon information and belief, that on or about the (lay of , 19 , at about the hour of o'clock in the afternoon, D. M. T., Jr., the infant plaintiff, while lawfully crossing avenue, at or about its intersection with street, in the said borough of Manhattan, was knocked down and run over by a cab or carriage driven by the agents and servants of the defendants, or one of them, through their care- lessness and negligence, whereby said infant plaintiff sustained severe bodily injuries. VTT. That the said injuries were sustained by the said infant plain liff solely through the carelessness and negligence of the defendf.nts, their agents and servants, and through the defend- ants' -s iolation of the law and ordinances in such case made and provided, and^ not through any carelessness or negligence upon the part of the infant plaintiff. 4i.O Bradbury's Forms of Pleading Negligence VIII. That by reason of the premises the said infant plaintiff was rendered sick, sore, lame and disabled, and his injuries, he is informed and believes, are of a permanent character. IX. That hj reason of the premises the plaintiff has sustained damage in the sum of $ Wherefore [prayer for money judgment]. Form No. 334 Driving Team on Street; Injuring Infant Eleven Tears Old ^ I. That at all the times hereinafter mentioned or referred to the defendant was and still is doing business in the borough of , county and State of New York, under the name and style of R. & Brother. II. That on or about the day of , 19 , be- tween the hours of and o'clock in the afternoon, said U. P., plaintiff's intestate, then an infant of the age of eleven years, was lawfully in a public highway in the borough of , city, county and State of New York, which highway was and is known as street. III. That at the same time a wagon or vehicle drawn by two mules, owned and controlled by defendant, and under the care, custody and control of said defendant, his agent and servant, was passing along said street. IV. That the said defendant, his agent and servant, were care- less and negligent in the management and control of said vehicle and said mules and drove them in a careless manner and at a dangerous rate of speed, and in consequence thereof, and with- out negligence or fault on the part of plaintiff's intestate, said intestate was knocked to the ground by said animals and by said vehicle and the same passed over him, bruising and crushing his body and head and causing his instant death. V. That said U. P. died on or about said day of , 19 , intestate, a resident of the city, county and State of New York, and thereafter and on or about the ^ From Poyet v. Rohe, 187 N. Y. 550; in which a judgment in favor of the plaintiff was affirmed. Complaints 411 Negligence day of , 19 ) letters of administration upon his estate were issued to his father, his next of kin, said R. P., by the surro- gate of said county of New York, and that said R. P. duly quali- fied as administrator of the goods, chattels and credits of said deceased, which accrued to him or to his estate and is still acting as such. Wherefore [prayer for money judgment]. Form No. 335 Contact With Overcharged Electric Light Wire ^ I. That plaintiff resides in the city of , county of , and State of . That the defendant above named is a domestic business corporation duly incorporated under and pursuant to the laws of the State of New York, and has its principal office and place of business in the city of , county of , and State of II. That at all the times hereinafter mentioned, and for many years last past, the defendant has continuously been engaged in the business of furnishing electricity for illuminating and light- ing purposes to its various customers in the city of , ; and that in the furtherance of its said business of so furnishing electricity for said purposes aforesaid, defendant has erected, constructed and maintained, and still continues to so erect, construct and maintain its poles, wires, fixtures and other appliances upon the streets of said city, and in and upon the houses of its various customers in said city. III. That heretofore and on the day of , 19 , and for several years prior thereto, said defendant had a contract with one L. T. W., by the terms of which said contract defend- ant was to furnish and deliver, and the said li. T. W. was to pay for such electricity as might be necessary for his use for lighting purposes in and upon the premises occupied by him at No. 1 From Witmer v. Buffalo & Niagara Falls E. L. & P. Co., 187 N. Y. 572; in which a judgment in favor of the plaintiff was affirmed. 412 Bradbury's Forms of Pleading Negligence , avenue, in said city of , ; and that in the performance of said contract, aforesaid, upon its part, the said defendant has placed and was maintaining its wires, fixtures and other apphances in and upon the aforesaid premises of said L. T. W. IV. That by reason of the carelessness and negligence of said defendant in furnishing said electricity to said L. T, W., as afore- said, under said contract, and by reason of the careless, improper, imperfect and negligent condition of the poles, wires, fixtures and other appliances of said defendant used and maintained by it for the purposes of so furnishing such electricity for said lighting purposes as aforesaid to said L. T. W.; the electric light wires in and upon his said premises did on said day of 19 , become charged with a high, intense and deadly volume and current of electricity, far in excess of that necessary for light- ing purposes ; and that said L. T. W., while in the exercise of due care and precaution, and without any carelessness or negligence upon his part, came in contact with one of said electric light wires upon which said electricity was being delivered in his said prem- ises by the said defendant, for said lighting purposes aforesaid, and that he was instantly Icilled. V. That at the time of his said death as aforesaid the said L. T. W. was the husband of this plaintiff ; that he was years of age; that he was in good health and in the full possession of all his faculties ; that he left him surviving this plaintiff, his widow, and one child, E. W., who is a minor; that they were solely de- pendent upon him for their maintenance and support, and for the education of said child, and that they have been otherwise damaged and injured by his said death, aforesaid, in the sum of $ VI. That heretofore and on or about the day of ,19 , by an order of the surrogate court of county, plaintiff was duly appointed administratrix of the estate of said L. T. W., deceased, and that thereupon and on that day plaintiff duly qualified, and letters of administration upon the estate of said deceased were duly issued out of said surrogate's Complaints 413 Negligence court to plaintiff, who thereupon became, and still is, the admin- istratrix of the estate of said L. T. W., deceased. Wherefore [demand for money judgmeni]. Form No. 336 Boy Playing on Elevated Railroad Stairway Hurt by Live Wire ^ I. That the defendant is and was at all the times hereinafter mentioned, a domestic corporation. II. [Allegation that E. G. W. was appointed gitardian ad litem. See Forms Nos. 33, 34 and 35, pp. 21, 22.] III. That the defendant at the times hereinafter mentioned owned a certain electric wire attached to and suspended from the structure of the Brooklin Electric Railroad on Fifth avenue, at the intersection of St. Mark's avenue, in the borough of Brooklyn, city of New York. IV. That at the times hereinafter mentioned, the defendant operated and used said electric wire charged with electricity for the purpose of conducting and supplsdng electricity in its business. V. That said wire at said time and place was negligently con- structed and operated by the defendant in that it was within one foot of, and unlawfully and dangerously near, the platform and passageway of said elevated structure and was not suffi- ciently, properly nor carefully insulated nor covered nor pro- tected and was, therefore, dangerous to the hfe and limb of those upon said platform and passageway to said elevated structure. VI. That on the day of , 19 , while plaintiff was lawfully on the elevated platform and passageway of said elevated railroad, the said plaintiff came in contact with said electric wire, which was negligently and carelessly left hanging without sufficient and proper insulation, and negligently and carelessly placed near said structure whereby the plaintiff was severely burned, causing loss of thumb, first and second fingers of his right hand and burned on his right leg and foot, his whole iFrom 'Vyittleder v. Citizens' Electric Illuminating Co., 50 App. Div. 478; 64 Supp. 114; in which a judgment for the plaintiff was affirmed. 414 Bradbury's Forms of Pleading Negligence body shocked and permanently injured and was made sick and sore, and suffered great pain, and that said injuries were caused by no fault of the said plaintiff, to his damage in the sum of$ ' . Wherefore [prayer for money judgment]. Form No. 337 Fall of Building Partially Destroyed by Fire ^ I. [Allegation that the plaintiff sues by guardian ad litem as to which see Form No. 33, p. 21.] II. [Allegation that the defendant is a domestic corporation and owned land and the buildings thereon previously described, "on the northerly side of W. avenue, a public highway in the borough of , city of New York, about feet east of Place on the public highway in said borough and city."] III. Upon information and belief, that the defendant, the city of New York, is, and at all times hereinafter mentioned was, a domestic municipal corporation, charged by law with the duty of keeping the public highways, including W. avenue in the bor- ough of , city of New York, in a reasonably safe state for the passage of the public thereon, and also charged with the duty of removing dangerous or unsafe buildings or portions thereof in the city of New York, which are in danger of falling or col- lapsing and injuring persons who may be near the same. IV. On information and belief, that on or about the day of , 19 , the building which was erected upon the property belonging to the defendant, the B. L. L. Assn., and situated on the northerly side of W. avenue, east of place, in the borough of , city of New York, known as the B. L. L., was partially destroyed by fire, and the walls and other portions thereof which remained standing were thereby made dangerous, unsteady and unsafe and Ukely to fall. ^ From Haack v. Brooklyn Labor Lyceum Assn., 93 App. Div. 491; 87 Supp. 814; in which a judgment dismissing the complaint was reversed and it wae held thftt the cage should have been subriiitted to the jury. Complaints 415 Negligence V. Upon information and belief, that the said walls and other portions of the said building which were left so standing should have been at once torn down and removed as they were a menace and a danger to persons lawfully near the same, and the said walls and other portions of the said building so left stand- ing became and were a nuisance, and the defendant, the city of New York, should have required that the same be re- moved at once and if the owner failed so to do the said city of ew York should have caused the same to be removed immedi- ately. VI. Upon information and belief, that the said walls and other portions of the said buildings so left standing remained in a dangerous, unsteady and unsafe state and condition from the said day up to the day of , 19 . VII. Upon information and belief that upon the day of , 19 , and for a short time prior thereto, the defendant H. was and had been engaged in removing some por- tions of the said building and structure for the defendant, the B. L. L. Assn. VIII. Upon information and belief, that on the day of , 19 ,, the above-named plaintiff was lawfully upon the public highway and premises immediately adjoining the premises of the defendant, the B. L. L. Assn., hereinbefore re- ferred to, and while there the walls and other portions of the said building, or some parts thereof, fell upon the said plaintiff and in consequence thereof both of his legs were fractured, and his ankle and the bones of his foot were also fractured and his head and face were cut, bruised and injured and his eye was severely injured and he was injured internally, as plaintiff beUeves, and he received a severe shock and injury to his nerves, and nervous system, and his legs, arms and hands were cut, bruised and in- jured, and he suffered pain and will suffer in the future and has been permanently injured, disfigured, crippled and deformed, and his ability to work has been greatly lessened all to his dam- age in the sum of $ IX. Upon information and belief, that the foregoing accident 416 Bradbury's Forms of Pleading Negligence antl resulting injuries to the plaintiff were occasioned and brought about solely by reason of the negligence and carelessness and un- lawfulness of all the defendants in permitting and allowing the said walls and other portions of the building to be and remain in a dangerous and unsafe condition for a long, unusual and un- reasonable and unnecessary length of time, and in neglecting and failing to take any measures or to do anything to steady or sup- port the said walls or to prevent the same from falling, and in permitting and allowing the plaintiff or other persons to be and remain near the said walls and other portions of the said building without notifying them of the dangerous and unsafe condition thereof, and the said accident and resulting injuries were also occasioned by reason of the fact that all of the defendants per- mitted the said walls and other portions of the building to be- come and remain a nuisance, and to become and remain danger- ous and unsafe to persons lawfully near the same, and to remain in such conditions for a long and unreasonable and unnecessary length of time, and the said accident and resulting injuries were also occasioned by the negligence and carelessness of the defend- ant, the B. L. L.Assn., in neglecting and faihng to take proper and reasonable measures to quickly remove the said walls and other portions of the said building when defendant well knew that the same were dangerous and likely to fall, and in neglecting and failing to support or prop the said walls and other portions of the said building until the same were removed, so asHo prevent the same from falling; and the said defendant, the B. L. L. Assn., was further negligent and careless in permitting and allowing the said walls and other portions of the building to be and re- main in a dangerous and unsafe condition in violation of the law and of the ordinances and building rules and regulations of the city of New York, and in neglecting and failing to either remove the said walls and other portions of the said building or to at once make them safe as required by law, and in so doing the saitl defendaint was also guilty of an unlawful act and created and maintained a nuisance and the said accident and resulting in- juries were also occasioned and brought about by the negligence Complaints 417 Negligence and carelessness of the defendant H. in neglecting and failing to support and protect said walls and other portions of the build- ing while he was at work removing other portions thereof as he was required to do by his arrangements with the defendant, the B. L. L. Assn., and also by the negligent and careless manner in which the defendant H. was removing portions of the said walls and building and the said accident and resulting .injuries were also occasioned by the negligence and carelessness of the defendant, the city of New York, in permitting and allowing the said walls and other portions of the building to be and remain for a long period of time in a dangerous and unsafe condition, of which the said defendant had knowledge; and the said defend- ant was further negligent and careless in failing to require the owner of said building to have the said unsafe walls and other portions thereof safely removed or secured; and the said defend- ant was also . negligent and careless in neglecting and failing to have the said walls and other portions of the building which were dangerous and unsafe removed or rendered safe by props and supports upon the failure of the owner thereof to do so as required by law, well knowing that the same was dangerous and was likely to fall upon persons lawfully upon the highway or premises adjacent to the said building; and the said defendant was further also negligent and careless in failing to place any bar- riers around the said dangerous walls and other portions of the building and in failing to give any notice or warning of any kind of the danger of being near the same, and all of the defendants were negligent and careless in failing and neglecting to place barriers around the said walls and other portions of the building and to notify plaintiff and other persons lawfully near the same of the dangerous and unsafe condition thereof and the plaintiff himself was in no way negligent. X. [Allegation that plaintiff complied with the statutory require- ments as to notice to the comptroller and the corporation counsel of the city of New York. See Form No. 292, paragraphs XIV and XV.] Wherefore [demand for money judgment]. Vol. 1—27 418 Bradbury's Forms of Pleading Negligence Form No. 338 Walls of Burned Buildings Belonging to Several Defendants Falling in Street; Defendants Sued Jointly ^ I. That as the plaintiffs are informed and believe, the above- named defendant, the city of Syracuse, is, and at all the time and times hereinafter mentioned was, a municipal corporation, tluly organized and existing under and by virtue of the laws of the State of New York; and that among other things it is and was the duty of said defendant to keep and maintain the streets and sidewalks in said city in a good, safe and passable condition for public travel, and persons passing, walking or being thereon for any purpose, and free from all obstructions of every name and nature from and all danger arising from structures, walls or buildings adjacent thereto. II. That the street in said city known as and called street, has been and is much used and traveled by the citizens thereof and others, and is a public street of said city. III. That the defendants, P. L., S. P. P. and G. E., are sever- ally the owners of certain real estate and property which abuts upon the said street in said city and opposite and in front of which the accident hereinafter mentioned occurred, and were at all the times hereinafter mentioned, and it became and was their duty, and the duty of each of them, to prevent the said streets and the sidewalks thereupon, before mentioned, from be- ing obstructed or rendered dangerous or unsafe for public travel by anything upon their properties and lands situate or existing or adjacent thereto. IV. That the said defendants, disregarding and neglecting their duty as aforesaid, on the day of , 19 , and for a long time prior thereto, knowingly, neghgently and carelessly caused, suffered and allowed the said street at the part thereof called street, and particularly the sidewalk thereof at a point about midway between ^ From Simmons v. Everson, 124 N. Y. 319; in which a judgment in favor of the plaintiff was affirmed. A new trial had been granted in the court below as to the defendant city of Syracuse and the judgment affirmed in this case was not, therefore, against said city. Complaints 419 Negligence and streets, to become and remain in an ob- structed, unsafe and impassable condition for persons walking or passing thereon and public travel thereon to be rendered perilous and unsafe by reason of the fact that certain high walls which were formally the fronts and partition walls of a building and buildings which stood on the lands and premises aforesaid and belonged in different parts to said E. P. & L., and which said building and buildings had theretofore and on the day of , 19 , been consumed by fire, with the exception of said walls, and ever since said fire had been in a weak, unsafe, unsupported and highly dangerous condition, liable to fall a any time upon persons traveUng and being upon said street and sidewalk, had been neghgently and carelessly allowed so to stand and remain by the said owners and said city for a long time pre- vious to the accident hereinafter mentioned and after notice and knowledge of their unsafe condition. V. That on said day of , 19 , between the hours of and , p. m., the plaintiff's intestate, M. S., was on or passing along said street at the point aforesaid, and without any fault or negligence on his part and through the negligence of the defendants, the said walls fell toward the east, and into and upon the said street and sidewalk at that point, and in falling struck and fell upon the said M. S., bruising, crushing, mangling and otherwise injuring him, from the effects of which injuries he died within a few hours after the infliction thereof, to the great damage of these plaintiffs in the sum of $ and mterest thereon from the day of , 19 . VI. Plaintiffs further show that thereafter such proceedmgs were duly had before the surrogate of county, that on the day of , 19 , letters of administration were duly granted and issued to these plaintiffs upon the estate of said M. S.; that these plaintiffs upon the day last aforesaid duly qualified as the administratrix and administrator, respectively, of the goods, chattels and credits of the said M. S. and are now acting as such. 420 Bradbury's Forms of Pleading Negligence VII. The plaintiffs, as such administrator and administratrix, further allege that the said M. S. left him surviving his widow, the above-named plaintiff, J. S., and his children, L. M. S., aged two years, and G. M. S., aged four months, who were dependent on him for support, and who have been injured by his said death to the amount of $ and interest thereon from the day of , 19 . VIII. That on the day of , 19 , the claim for which this action is brought, with an abstract or statement of the facts out of which this cause of action arose, made accord- ing to the statute in such case made and provided, was duly pre- sented to and filed with the city clerk of the city of , and the same has not thereafter and up to the time of the com- mencement of this action,- been audited or paid, and the said city refuses and neglects to pay the same. Wherefore [prayer for money judgment]. Forin No. 339 Person Injured by Falling Wall * I. That he is an infant under the age of years and that by order of the county court made and entered in the office of the clerk of the county of on the day of ,19 , J. C. was duly appointed guardian ad litem of this plaintiff for the purposes of this action- II. Upon information and belief that the defendant is a foreign corporation incorporated under and pursuant to the laws of the State of III. Upon information and belief, that at all of the tiines herein mentioned, the defendant was and now is the owner of the lands, premises and buildings situate near street in the city of , New York, adjoining the lands and premises of the New York Central and Hudson Eiver Railroad Company, which 1 Carr v. American Glucose Co., 185 N. Y. 534; aff'g, without opinion, 108 App. Div. 358; 95 Supp. 1117 (no opinions); in which judgment for the plain- tiff was upheld. Complaints 421 Negligence lands owned by the defendant, as aforesaid, were formerly used by it in the manufacture of glucose. IV. That on said premises of the defendant, as aforesaid, and close to the lands and premises of the N. Y. C. & H. E. R. Co., the defendant maintained for a long time, previous to and at all of the times herein mentioned, a building, with high brick walls, which building and walls the defendant had for a long time previous to the day of , 19 , negligently per- mitted to remain in an unsafe and insecure and dangerous con- dition and in such a condition that the same were hkely to at any time fall, and in such an unsafe, insecure and dangerous condition as to constitute a nuisance, and to menace the safety of the pass- ers by upon premises of the defendant and on the lands of the N. Y. C. & H. R. R. Co., and that the defendant had been notified by the proper authorities in the city of , New York, a long time previous to the day of ; 19 > of the existence of said nuisance and the dangerous character of said building and its walls, and ordered to abate said nuisance and to take down said building and its walls, but that in violation of said order the defendant wrongfully and negligently omitted and refused to comply with said order to so alate said nuisance. V. That for a long time previous to the day of , 19 , the defendant and the N. Y. C. & H. R. R. Co. had permitted and invited this defendant and the passers-by and others to pass ove.r their said premises in close proximity to the walls of the said building. VI. That on the day of , 19 , while this plaintiff was passing over the lands and premises of the N. Y. C. & H. R. R. Co. in close proximity to and adjoining the said premise s of the defendant and the building thereon, through the negli- gence of the defendant, as aforesaid, the walls of said building fell, burying the plaintiff beneath the same, breaking and perma- nently injuring one of his legs and seriously bruising and wound- ing him in various other parts of his body, and thereby causing him much pain and suffering. VII. That said injuries were received by and through the 422 Bradbury's Forms of Pleading Negligence negligence of tlio defendant, as aforesaid, and through its main- tenance of said nuisance as aforesaid, and without any contribu- tory negligence on his part to his damage in the sum of $ Wherefore [demand for money judgment]. Form No. 340 Pedestrian Killed by Falling of Defective Iron Column ^ I. On information and belief that at all the times hereinafter mentioned the defendant, the M. R. Co., was, and still is, a do- mestic corporation. II. [Allegation, as to the incorporation of the defendant, the A. B. Co.] III. On information and belief that at all the times hereinafter stated the defendant, AV. H. McC, was doing business under the firm name of P. & McC. IV. That on or about the day of , 19 , L. B. S., then an inhabitant of the county of , died intestate, and thereafter on or about the day of , 19 , letters of administration upon his estate were duly issued to the plaintiff by the surrogate of the county of New York, and plaintiff duly qualified and is now acting as such administrator. V. On information and belief that on or about the day of , 19 , the defendants, their agents and servants, were constructing and erecting the iron work of a power house on the northerly side of street in the borough of Man- hattan, city of New York, between Avenue and the East River. VI. That said street between the said avenue and the East river is a public thoroughfare. VII. On information and belief that while said L. B. S. on said day of ' , 19 , was lawfully on the sidewalk of the southerly side of street, opposite said power house, as he had a right to be, and was walking along said thoroughfare, the defendants, their agents and servants, without any notice 1 From Scheider v. American Bridge Co., 78 App. Div. 163; 79 Supp. 634; in wiiicli judgment for tiie plaintiff was affirmed. Complaints 423 Negligence or warning to said L. B. S.. did wrongfully, unlawfully and negli- gently, and in reckless disregard of human life, carelessly, neg- ligently and unskillfuUy cause and permit an iron post or column or mass of iron to fall and be precipitated upon and across said street, and by reason thereof said post, column and mass of iron was hurled with terrific force and violence to the spot where said L. B. S. was, and said post or column struck said L. B. S. with such violence as to frightfully mangle his body and cause his death on the said day of , 19 . VIII. On information and belief that the death of said L. B. S. was caused solely through the carelessness, negligence and unlawful and wrongful acts of the defendants, their agents and servants, and without any fault or neglect on the part of said L. B. S., in any way contributing thereto. IX. That the said L. B. S. was unmarried and left him sur- viving his father, this plaintiff, his only next of kin. X. That by reason of the premises plaintiff has sustained damages and is entitled to recover the sum of $ from the defendants and each of them. Wherefore [demand for money judgment]. Form No. 341 Prospective Tenant Injured While Examining Unfinished Building at Landlord's Invitation ^ I. The defendant, U. S. M. & T. Co., is a domestic corporation. The defendants, G. & T., are partners in the real estate business. , II. The U. S. M. & T. Co., as trustee, at the time hereinafter mentioned, was and now is the owner of a building known as the L. apartment house, situated on the southeast corner of avenue and street, in the city of , which building is divided into separate apartments to be rented out as places of abode. III. For the purpose of securing tenants for these apartments and for the purpose of inducing persons to become tenants * From Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262; in which a judg- ment in favor of the plaintiff was affirmed. 424 Bradbury's Forms of Pleading Negligence. thereof, the U. S. M. & T. Co., as trustee, had heretofore and prior to the time hereinafter mentioned, constituted and ap- pointed as its agents the defendants, G. & T., and G. & T. had accepted such appointment. Both G. & T. and the trust com- pany held out to this plaintiff that G. & T. were the agents of the owner of the L. apartment house for the purpose afore- mentioned. IV. On or about the day of ; 19 , plaintiff, being desirous of engaging an apartment in the city of , and being induced by the defendants' representatives, applied at the office of defendants, G. & T., for information concerning the same. Plaintiff was then and there induced by the defend- ants, G. & T., to go to the L. apartment house and examine the apartments. Conducted by an employee of the defendants, G. & T., she went into the building. V. The L. apartment house was at this time, to the knowledge of the defendants, in an unsafe and dangerous condition, inas- much as certain of the floors and rooms therein were unfinished. But the. plaintiff was assured by the defendants, G. & T., that the building was safe, and that she would run no risk of injury or danger in entering in or passing through the same. Relying on these representations and assurances plaintiff allowed herself to be conducted therein by G. & T.'s employee. VI. While thus lawfully in the building at the invitation of the defendants, and as she was being conducted through ihe build- ing, the plaintiff, without fault or negligence on her part, and while exercising due care and solely owing to the negligence of the defendants, stepped into a hole or open space in the nature ' of a concealed trap in the floor, which could not be seen on ac- count of the darkness of the room, and fell to the story below. VII. Solely by reason of the defendants' negligence as afore- said, plaintiff was painfully and severely injured, bruised and wounded, and was compelled to undergo a serious surgical oper- ation and was confined to her room for several weeks, and she has endured great bodily pain and mental anguish and suffering, and in addition has necessarily expended large sums of money Complaints 42S Negligence in endeavoring to be cured of her injuries, all to her damage in the sum of $ Wherefore [demand for money judgment]. Form No. 342 Falling Sign ' I. Alleges on information and belief that defendant is a do- mestic corporation organized under the laws of the State of New York. II. On information and belief that on the day of , 19 , and for some time prior to said date, defendant maintained and had maintained upon the roof of premises, Nos. , street, in the borough of , city and State of New York, a large billboard or sign. III. That said billboard had been by defendant carelessly and negligently erected in a careless and unsafe manner, that defendant had carelessly and negligently failed to properly in- spect said billboard or sign; that defendant had carelessly and negligently permitted the said billboard to become unsafe and insecure, and that by reason of defendant's said negligence and carelessness said billboard or sign, on or about the day of , 19 , fell or was blown down. IV. That at the time when said billboard or sign of defendant was blown down, plaintiff was lawfully upon the premises where she resides, near by and adjacent to said premises upon which said billboard or sign was erected ; that a large piece or block of wood from said sign fell upon and against plaintiff, striking her upon her left arm and elbow; that plaintiff's left arm and elbow were thereby badly contused and wounded; that she received and suffered nervous shock; that she was caused to suffer great pain and anguish, and that as she is informed and verily believes she will continue to suffer great pain and anguish for a long period of time to come, all to her loss and damage in the sum of$ . ^ From San Filippo v. American Bill Posting Co., 188 N. Y. 514; in wliich a judgment in favor of the plaintiff was affirmed. 426 Bradbury's Forms of Pleading Negligence V. That the said accident was caused solely through the negli- gence of the defendant and that there was no negligence on the part of the plaintiff which contributed thereto. Wherefore [prayer for money judgment]. Form No. 343 Pedestrian Injured Owing' to Defective Sidewalk ^ I. That the plaintiff is now, and was at all the times herein- after mentioned, a resident of the county of II. Upon information and belief, that the defendant is a domestic corporation, duly organized and existing under the laws of the State of New York. III. Upon information and belief, that the defendant, at all the times hereinafter mentioned, was, and now is, the owner of certain premises on , near avenue, in , county, and that said defendant, at all of said times, occupied and used, and' still occupies and uses, said premises as a stable for its horses and wagons, and was at all of said times, and now is, in possession and control of said premises. IV. That on , 19 , there was a flagstone in the side- walk in front of said premises, owned, occupied and used by the defendant as aforesaid, considerably raised above the surface of the sidewalk and overlapping another flagstone in said side- walk in front of said premises ; and upon information i^nd belief, that said raised and overlapping condition of said flagstone had existed for a long time prior to said , 19 . V. That on said , 19 , and in the evening of said day,i this plaintiff was lawfully and properly walking along and upon said sidewalk on in , and while carefully and properly walking on sidewalk in front of said premises she stumbled against the said raised and overlapping flagstone and fell, and was thereby injured seriously and permanently, bruised and wounded, and suffered, and still suffers, great physical and 1 From Mullins v. Siegel Cooper Co., 95 App. Div. 234; 88 Supp. 737; aff'd 183 N. Y. 129; in which a judgment for the plaintifT was upheld. ho. Complaints 427 Negligence mental pain, and became, and still is, sick, sore and disabled by- reason of said injuries so received; the plaintiff has been, still is, and will be for a long time to come, prevented from attending to her business, and has thereby lost, and will continue to lose for some time to come, her earnings and wages, and has expended and incurred, and will necessarily incur and expend, large sums of money for medical service, attendance and nursing, and for drugs and medicine. VI. That said accident and the injuries resulting therefrom were solely due to and caused by the carelessness and negligence of the defendant, in that said defendant wrongfully, negligently, carelessly and knowingly allowed and permitted the said raised and overlapping condition of said flagstone in said sidewalk to exist for a long time prior to said accident, and failed to repair said raised and overlapping condition of said flagstone and to put and keep said sidewalk in a safe condition with an even surface, so as to avoid danger to pedestrians lawfully walking on said sidewalk, and failed to warn pedestrians on said sidewalk of said raised and overlapping condition of said flagstone, and the danger therefrom, by means of lights or otherwise, and failed to exercise due care and prudence in regard to the same, and that the plaintiff used due care and was without any fault or neglect on her part which contributed to said accident. VII. That said raised and overlapping condition of said flagstone was a source of great danger to pedestrians and consti- tuted and was a pubhc nuisance. VIII. That by reason of said injuries the plaintiff has been damaged in the sum of $ Wherefore [jyrayer for money judgment]. Form No. 344 Leader Discharging Water on Sidewalk so Ice Is Formed ^ I. That the defendant is and was, at the time hereinafter mentioned and prior thereto, a domestic corporation duly organ- ^ From Tremblay v. The Harmony Mills, 171 N. Y. 598; in which a judg- ment for the plaintiff was afRrmed. 428 Bradbury's Forms of Pleading Negligence ized under and by virtue of the laws of the State of New York, doing business in tlie city of , N. Y. II. That among one of the public streets of the city of is a public street in said city known as street. III. That said defendant was, at the time hereinafter men- tioned, and for a long time prior thereto, the owner of a block of buildings on the side of street, and that there is situated on said street, east of said block of buildings, a sidewalk used by the public for travel; that it is, and was at the time hereinafter mentioned and prior thereto, the duty of said defendant to keep said sidewalk on said street in a free, clear, safe, proper and fit condition for travel. IV. That the defendant has erected on one of said buildings, near the corner of and streets, a water pipe extending from the roof of said building to within a short dis- tance above said sidewalk; that there is, as a part of said water pipe and being a part and parcel thereof, a waterspout extending out over said sidewalk; that said water pipe and spout is used by the defendant, and was at the time hereinafter mentioned and prior thereto, for the purpose of conducting water off the roof and from the gutter of said building. V. That said defendant did, at the time hereinafter men- tioned and prior thereto, negligently, carelessly and unlawfully omit to erect a tunnel or raceway through or underneath said sidewalk to conduct the water off and from said side^valk that flowed through said water pipe and spout, and negligently omitted to exercise any care or use any means whatsoever to conduct said water from said sidewalk. VI. That said defendant did, at the time hereinafter men- tioned and for a long time prior thereto, negligently, carelessly and unlawfully suffer and permit ice to form, accumulate and remain on said sidewalk east of said building near said water- spout, in an unfit, dangerous, unsafe and improper condition, and did, at the time hereinafter mentioned and for a long time prior thereto, negligently and unlawfully suffer and permit water to flow from said building through said water pipe and Complaints 429 Negligence spout on said sidewalk and accumulate and fi-eeze thereon, thereby making large quantities of ice along and upon said side- walk, rendering it exceedingly dangerous, unsafe and hazardous for travel. VII. That plaintiff was on the day of , 19 , lawfully and carefully walking along and upon said sidewalk, upon said street east of said building near where said water pipe protrudes over said street, and while plaintiff was, as aforesaid, lawfully and carefully walking on said sidewalk near said point, without any fault or negligence on his part, but solely in consequence of the negligence of said defendant, he slipped on. said ice, which said defendant had negligently and carelessly permitted to accumulate and remain on said sidewalk as afore- said, and did fall with great force and violence down upon said sidewalk, whereby, and by reason thereof, his left leg was frac- tured above the ankle and was otherwise seriously injured, and he was injured about his body and limbs, and received a severe shock and was otherwise seriously injured and became sick, sore and lame in consequence thereof, and suffered great pain and still so continues to suffer, and has thereby been unable and will for a long time, as he verily believes, be unable to attend to his accustomed duties, to his damage I VIII. That said injuries were caused without any fault or negligence on the part of the plaintiff, but solely in consequence of the carelessness and negligence of the defendant. Wherefore [prayer for money judgment]. Form No. 345 Boy Hurt by Unsafe Rail Slipping; Object Attractive to Children * I. That P. R., plaintiff named, is an infant of the age of ten years or thereabouts. II. That on or about the day of , 10 , the above-named A. D. was duly appointed guardian adJitem of said infant for the purpose of bringing the above-ent i tled ac tion. 1 From Ramsey v. National Contracting Co., 49 App, Div. 11; 63 Supp. 286; in which a judgment for the plaintiff wa.s affirmed. 430 Bradbury's Forms of Pleading Negligence III. That the defendant is and at all the times herein men- tioned was a domestic corporation. IV. That said defendant at the times herein referred to had entered into a contract with the M. Street Railway Company, a domestic corporation, organized and existing under the laws of the State of New York for making certain changes in the surface street railroad, along avenue in the city of Newj York between street and street, and elsewhere, and the rails and roadbed thereof, and was at the times herein re- ferred to engaged in and about such work, and in moving mate- rials therefor from street to said avenue. V. That at, and a long time prior to, the day of , 19 , said defendant maintained, erected and caused to be placed and used and controlled a certain pile of iron and metal materials, rails and girders, on the side of said street, at and about the vicinity of No. , street, VI. That said materials were there placed without authority of law, and were a nuisance and dangerous and illegal obstruction to the travel on said street, and were negligently so piled as that they were likely to and would probably fall upon persons in the vicinity of the same. VII. That in said street and vicinity, a large number of chil- dren and others were at the times herein referred to, and a long time before, accustomed to travel and stand and play and use said street in other proper ways, all of which defendant had notice. VIII. That said pile of materials were and constituted an attraction to children, and in the usual course of events were likely to tempt children to approach the same and to stand and sit in and about and upon the same,, and children were naturally and instinctively drawn towards and approached the same in consequence thereof. IX. That on the day in question the above-named P. R. was lawfully in said street at about the point, referred to, and was passing by said pile of materials, and was prudently standing and sitting upon the same and in the vicinity thereof. That Complaints 431 Negligence servants of said defendant were at said times at work in and about said materials removing portions therefrom and handling and removing the supports and other portions. X. That said defendant committed a wrong in placing or causing said materials to be placed in said streets, negligently piled the same, negUgently caused them to be so piled, negli- gently omitted to make the pile of materials at said point safe, and negligently placed portions of said materials in such a man- ner as that they would be likely to fall on persons in the vicinity thereof, and negligently caused the said materials to fall. XL That said P. R. was at the times herein referred prudent and careful, and was exercising the discretion of and conducting himself as a child of his age of ordinary prudence should and would conduct himself. XII. That thereupon while said boy was in the situation de- scribed, said materials and portions thereof, because of defend- ant's negligence, fell upon him and caused him to fall, and one of his feet and legs was so injured as that it was necessary to ampu- tate the same, and otherwise permanently injured said child. XIII. That thereby P. R. was permanently injured; was and will be caused to suffer pain; was and will be permanently in- capacitated for work; was and will be put to expense hereafter in endeavoring to effect a cure of himself, and was and will be damaged in the sum of $ Wherefork [prayer for money judgment]. Form No. 346 Person Killed on Toboggan Slide, Faultily Constructed ^ I. The plaintiff in the above action complains of the defendant therein, and says that upon his information and belief that the defendant is a corporation duly organized under and by virtue of the laws of the State of New York, and having its chief place of business at , in the county of , carrying on business as an owner of land, hotels, places of amusement, and * From Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310; in which •judgment for the plaintiff was directed. 432 Bradbury's Forms of Pleading Negligence * other property, and was so engaged at the various times herein- after stated. And this plaintiff further says, upon his informa- tion and belief, that prior to the day of , 19 , said defendant erected in the village of a certain struc- ture known as a slide or toboggan sUde, which stood at a height of feet or thereabouts from the ground, and which was intended for persons to mount to the top and slide therefrom on toboggans or sledges, furnished for that purpose, into the waters of Lake Ontario ; that said slide was used for such purpose, and those wishing to use the same were admitted thereto upon pay- ment of the sum of cents. II. And this plaintiff further says upon information and be- lief that in the month of , 19 ; the said shde was so used for that purpose, and the defendant had furnished and rented it, so to be used, to one B., who paid the defendant for the use of the same, and allowed persons to enter and use the said slide upon payment of the sum of cents, and the said slide was constructed by the defendant and rented to the said B. to be used as such slide and toboggan slide, for hire, and was so placed by the defendant to be used by the public for such pur- poses, that the defendant might derive an income therefrom. III. And this plaintiff further says that the defendant was bound to construct and furnish the said slide so that the same might be reasonably safe for the use of those paying therefor, and desiring to avail themselves of the amuseiftent thus supplied. IV. That the said slide, from the use of the same by toboggans or sledges which ran into the water and were then drawn up to the summit or platform, was necessarily slippery, and persons us- ing the same might naturally slip upon the said platform; that in order to guard against such danger, the defendant was bound to construct said slide and the platform thereof with railings around the same that persons slipping might be protected from falling from the platform upon the ground feet there- under. V. And this plaintiff further says upon his information and Complaints 433 Negligence belief that the defendant did not construct and furnish the said slide as it was bound to do and in a manner to be reasonably safe for use; that it erected railings at the side, but the boards or pieces of lumber forming the same were placed at such a dis- tance from each other, and were so raised from the surface of the said slide and its platform, that one slipping thereon might slip under said railing and thus fall from the said platform, and that the construction of the said slide, platform and railing by the defendant was negligent and dangerous, and the same was furnished by the defendant, to be used by the public, constructed in a negligent and dangerous way. VI. And this plaintiff further says that on or about the day of , 19 , one T. B. paid the sum of cents for the use of the said toboggan slide, and for the purpose of using and riding on the sledges, there furnished, into the lake, in conformity with the purpose for which said toboggan slide was furnished by the defendant to the public; that in using the said sledge on the platform, without carelessness or negligence on his part, he slipped therepn, and by reason of the failure of the defendant to furnish proper railings or barriers around such slide or platform, he fell from the platform onto the ground and was killed; that such death was caused by the negligence of the defendant and by the improper and negligent construction of the said slide and the railings and barriers thereon erected by the defendant and furnished by it for the use of the public, and with- out fault or negligence on the part of said T. B. VII. And this defendant further says that the said T. B. at the time of his death, was an infant of the age of years, and that he left him surviving his father, the plaintiff, and next of kin, of said intestate, who sustained a pecuniary loss by the death of the said T. B. to the amount of $ VIII. That on the day of , 19 , this plaintiff was duly appointed by the surrogate court of county, as administrator of the goods, chattels and credits of the said T. B., deceased, for the purpose of bringing and prosecuting this action; that he duly qualified as such administrator and entered yoL, 1-28 434 Bradbury's Forms of Pleading Negligence upon the performance of his duties, and is still acting as such administrator. Wherefore [prayer for money judgment]. Form No. 347 Trees Destroyed by Escaping Gas ' I. Upon information and belief that during all the times here- inafter mentioned the defendant was and now is a foreign cor- poration duly organized under and by virtue of the laws of the State of Pennsylvania and engaged in the sale and deUvery of natural gas for fuel and illuminating purposes in the city of ,N. Y. II. The plaintiff further alleges that in that behalf and for the purpose of effecting the sale and delivery thereof the defend- ant thereupon constructed and laia pipes and mains along the several streets in the city of , N. Y. III. Plaintiff further alleges that on or about the day of , 19 , and previous to the injury and destruc- tion of the trees and property of the plaintiff as hereinafter set forth, said defendant by and through its agents and employees constructed, laid and operated and has ever since maintained and operated such pipes and mains for the distribution and de- livery of natural gas as aforesaid along street in the said city of , contiguous to and upon the lands a5.d premises of the plaintiff hereinafter described. IV. The plaintiff further alleges that during the time herein- after stated, before and during the time said gas hues and mains aforesaid were in operation, the plaintiff was and now is the owner in fee and in possession of the following lands and premises, to wit: [Description of property.] V. That upon said lands and premises was and now is the plaintiff's dwelling houses, and the said premises were used, * From Donahue v. Keystone Gas Co., 181 N. Y. 313; in which judgment for the plaintiff was affirmed, Complaints 435 Negligence occupied and owned by him as a home and place of residence; that immediately in front of his said dwelling house, and along the west side of street in the said city, there were gi'ow- ing upon said lands and premises four large maple and orna- mental shade trees of more than twenty-five years' growth properly set and on a line parallel with said street. VI. The plaintiff further alleges that before the time said trees were injured and destroyed as hereinafter set forth, said trees were thrifty and in a luxurious and prosperous condition, and were of great value for ornament and shade and greatly en- hanced the value of said premises for a home and dwelling place. VII. The plaintiff further alleges that said gas lines and mains aforesaid were so improvidently, carelessly and negligently laid, constructed, maintained and operated by the defendant that natural gas escaped therefrom in immense and unusual quanti- ties and to such an extent that the soil underneath and around said trees and upon the plaintiff's i)r('miscs became permeated with the said gas and as the result thereof the life of two of said trees was totally destroyed and two others became seriously affected, and that two of said trees are dead or nearly so and the growth of the others greatly retarded so that said trees are worthless and their usefulness and value almost wholly impaired as the result thereof to which the defendant had due and timely notice. VIII. The plaintiff further alleges upon information and belief that the defendant wrongfully and negligently permitted the said gas to escape from its said gas lines and mains as aforesaid and permeated the soil of plaintiff's lands and premises and as the result thereof the said trees were injured and destroyed by said gas on account of the defective, damaging and leaky con- dition of said gas lines and mains as aforesaid and the same was without any fault or negligence on the part of the plaintiff. iX. Wherefore [demand for money damages]. 436 Bradbury's Forms of Pleading Negligence Form No, 348 Plaintiff Hit by Truck Being Lowered From Vessel ' I. That upon information and belief, at the times hereinafter mentioned, the defendant above named was and still is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of New Jersey, and has an office in the borough of Manhattan, city and State of New York. II. That on or about the day of > 19 , while this plaintiff was lawfully standing on the dock or pier at , New Jersey, where he had a legal and lawful right to be, one of defendant's agents or employees, negligently, recklessly and improperly and without any warning to this plaintiff sud- denly lowered two certain trucks from a ship on to the dock where plaintiff was standing, as aforesaid, with such force and violence and in such a careless, negligent, unskillful and im- proper manner that by reason thereof same struck plaintiff's legs, feet, ankles and other parts of the body, ^severely and pain- fully injuring him. III. That said injuries to and of this plaintiff were caused solely through and by the negligence, carelessness, recklessness and improper conduct and manner on the part of the defendant, its agents, servants and employees, and through no fault on the part of the plaintiff contributing thereto. IV. That by reason of the premises, this plaintiff has been injured, bruised and wounded, so that he became sick, sore, lame and disabled and so remains; has been and will for a long time to come be obliged to expend considerable sums of money for medicines and medical attendance; has been and will for a long time to come be deprived of earning a livelihood for himself and ' From De Maio v. Standard Oil Co., 68 App. Div. 167; 74 Supp. 165; in which judgment for the plaintiff was affirmed. ^ Pleading specific injuries in actions for negligences precludes evidence of other injuries unless the complaint contains general allegations of other in- juries. Thus, where in a complaint the pleader enumerates certain injuries and there is added the further allegation of injuries to "other parts of her body" evidence may be admitted of injuries other than those particularly specified. Wulsh v. Richmond Light & R. Co., 124 App. Div. 533. Complaints 437 Negligence family as a longshoreman, by which he earns the sum of $ per day; has been and will for a long time to come be obliged to suffer great bodily pain and mental anguish, and as he is informed and verily beUeves, he has been permanently injured internally and externally, all to his damage in the sum of $ Wherefore [prayer for money judgment]. Form No. 349 Negligent Handling of Property by Truckman as Common Carrier ^ I. [Allegation that the plaintiff is a domestic corporation, and has its principal place of business in the city of New York.] II. On information and belief that said defendants, H. A. H., Jr., and W. P. H., are and at the times hereinafter mentioned were, partners doing business in the city of New York, under the firm name and style of H. Bros., as general truckmen and forwarding agents, being common carriers of goods for hire from one point to another in said city of New York and elsewhere. III. On information and belief that on or about the day of , 19 , said plaintiff delivered and intrusted to said defendants, and said defendants, as such truckmen [and common carriers] received from said plaintiff, at or near the depot of the Railroad Company, the foot of street, and the river. New York City, or thereabouts, certain goods, the property of said plaintiff, consisting of a planing ma- chine, in good condition, the same to be by said defendants safely carried from said place, where it was delivered to and received by them and delivered to said plaintiff and set up in position, in good condition in the shops of said plaintiff, at street, between and avenues. New York City, all of which said defendants undertook to do for the sum of $ , to be paid therefor to said defendants by said plaintiff when said machine was safely delivered to said plaintiff and set up in position as aforesaid. IV. That said machine was to be used as a part of the working ^ From Jackson Architectural Iron Wks. v. Hurlbut, 158 N. Y. 34; in which a judgment for the plaintiff was affirmed. 43J Bradbury's Forms of Pleading Negligence machinery and plant of said plaintiff, and, upon information and belief, that said defendants, at the times mentioned herein- before in paragraph marked "III" herein, knew this full well. V. That said defendants did not safely carry and deliver to said plaintiff and set up in position in its- said shops the said planing machine in the same or in as good condition as it was delivered to and received by said defendants, as aforesaid, but, on the contrary, that said defendants, or their agents and serv- ants, so carelessly and negligently conducted themselves and so misbehaved in regard to the said planing machine and in hand- ling and unloading the same, and in their calling as such truck- men and common carriers, that, on account of and owing to said carelessness, negligence and improper conduct of said de- fendants, or of their said agents or servants, the said plaintiff's machine was injured and the bed of said machine broken, to the damage of said plaintiff of $ , to wit : 1. Damage to machine [cost of properly repairing same and of transportation of necessary parts to have re- pairs made] 1945 2. Amount paid out by plaintiff, owing to loss of use of said machine, for work to fill orders, which was to be performed upon said machine, during the two months next following the date of injury to said machine, the period required to repair said ma- chine t . . . 307 3. Loss of profits upon work which plaintiff was com- pelled to refuse owing to the loss of the use of said machine during said two months 500 Wherefore [demand for money jvdgment]. Form No. 350 Exploding Machinery in Pulp Mill ^ I. The defendant is a domestic corporation. II. On the day of , 19 , and for some time ^ From Duval v. Racquette River Paper Co., 190 N. Y. 559; aff'g, without opinion, 117 App. Div. 913. Complaints 439 Negligence prior thereto, the defendant was and had been engaged in running a pulp and paper mill and in the manufacturing of wood pulp and paper, in the town of , , having a building con- taining large lines of machinery, which were operated mainly by steam and water power. III. A part of the machinery installed and operated was in what was known as a "pulp room"; a part of the machinery in said pulp room being digesters, used in reducing chip wood into pulp, by a cooking process. IV. On the second floor of said building and nearly directly above said pulp room, was a room known as a "chip room" with a large, chip or ground wood bin. That large quantities of chips or ground wood were transported and carried, into said room and chip bin, from another portion of said mill by means of a blow- pipe. V. On the day of , 19 , the plaintiff's dece- dent was in the employ of the defendant as a common laborer, and was at work in said chip room, attending said blowpipe; his principal duty being to regulate the flow of said chips into said chip bin. VI. On the said day of and for some time prior thereto, the digester known as number one in said pulp room was and had been out of repair and in a dangerous and un- safe condition, of all of which the defendant, its officers and agents had knowledge. VII. On the day of , 19 , the defendant, its officers and agents, well knowing the dangerous and unsafe con- dition of said digester, did wrongfully and unlawfully run, oper- ate and use the said digester, in such a negligent and careless manner, that the same exploded and broke and tore the floor of said chip room to pieces and caused and allowed the steam and acid from said digester, to be blown and forced into said chip room and thereby severely scalded, burned and injured the de- cedent, and caused his death, which occurred on the same day. VIII. The death of the decedent was caused and brought about by the negligence of the defendant, its officers and agents, 440 Beadbtjey's Poems of Pleading Negligence in failing to repair said digester and by continuing to run, oper- ate and use the same, and by its failure to furnish a safe place in which decedent could perform his labor. IX. Plaintiff's decedent was without fault or negligence on his part. X. The said A. D. was in good health, sober and industrious and was able to and did earn good wages and supported his family, in a proper manner, and at the time of his death was about years of age. He left surviving him his wife, C, and three children, J., aged eighteen years, A. A., aged twenty- two years, and L. B., aged twenty-six years, who by reason of his death have lost his services, support and companionship and have suffered damages in the sum of $ XI. On the day of , 19 , letters of adminis- tration upon the estate of said A. D., deceased, were duly issued to the plaintiff, by the surrogate of county, in proceed- ings duly had appointing the plaintiff administratrix of all the goods, chattels and credits which were of the deceased, and the plaintiff thereupon duly qualified as such administratrix and entered upon her duties and brings this action as such. XII. All the foregoing allegations, except those in paragraph XI, are made upon information and belief. Wheeefoee [demand for money judgment]. Form No. 351 Injury by Defective Freight Elevator Also Used by Passengers ' I. That at all the times hereinafter mentioned the defendant was the owner of a certain building, situated in the borough of in the city of , and known as in said borough. II. That at said times the said building consisted of a ground floor, level or about level with the sidewalk of said ave- nue, and four floors above said ground floor. III. That at said times the said defendant leased and rented ' From Bogendoerfer v. Jacobs, 97 App. Div. 355; 89 Supp. 1051; in which a judgment in favor of the defendant was reversed and a new trial ordered. Ik. Complaints 441 Negligence out to various and different tenants the different floors of said building. IV. That at said times the defendant, his agents and servants, retained the general control and management of the said build- ing and its appurtenances. V. That at said times there was in said building a freight ele- vator which had been placed there by the defendant for the use of defendant's various tenants, and persons carrying on business with them, in carrying goods, materials, etc., to and from the respective premises of said tenants. VI. That on or about , 19 , the plaintiff, who was then a carpenter by trade, at the request of one of the tenants of defendant in said building, was doing certain carpenter work therein and in the course of said work it was necessary for him to transport certain wood from the top floor of said building down to one of the lower floors therein. VII. That while placing said wood on said elevator at said top floor the said elevator suddenly and without warning of any kind fell and the plaintiff fell with it, from said top floor to the basement of said premises. VIII. That the said elevator so fell because of the unsafe, dangerous, defective, insecure and negligent condition thereof, and of the unsafe, insufficient, insecure, dangerous and defective condition of the contrivances, devices, appliances and machinery which controlled, regulated, checked and operated it, or should have controlled, regulated, checked and operated it; and also because of the absence from said elevator and its appurtenances of proper; suitable and sufficient guards, checks, clutches, ma- chinery, devices, appliances, etc., to check its descent and pre- vent it? so falling. IX. That the plaintiff was entirely free from any fault or neg- ligence in the premises. X. That by reason of the fall of said elevator the plaintiff was made sick, sore, lame and disabled; he was cut, injured and bruised; his left arm was torn off; one of his legs was broken in several places; his spine, ribs and back were seriously injured; 442 Bradbury's Forms of Pleading Negligence his arms, legs, body, face, head and hips were bruised, maimed, injured and disfigured; his nervous system sustained a severe shock; he was caused to suffer great pain, and he will so suffer for considerable time to come and, perhaps, forever; he has been and will be obliged to undergo surgical operations; he has been confined to an hospital and to his house since said , 19 , and will be so confined for a considerable time longer; he has been incapacitated forever from following his usual occupation from which he derived profit and support for himself and his family; he has been permanently, internally and otherwise injured, dis- figured, maimed, crippled and lamed; he has been and will be put to great expense in endeavoring to cure and lessen the effect of said injuries; that said injuries are of a permanent character and plaintiff can never wholly recover therefrom, but has been lamed and crippled thereby for the remainder of his life. XL That by reason of his said injuries plaintiff has been dam- aged in the sum of f Wherefore [demand for money judgment]. Complaints 443 Indemnity CHAPTER XIV INDEMNITY i FORMS. NO. PAGE 35t). Rent 443 356. Contractor against subcontractor 445 357. Sheriiif on taking property under execution with allegation of notice to defendant to defend principal action 448 358. Building contract 453 359. Dissolution of partnership; agreement by one partner to pay all part- nership debts 457 360. Surety against principal 459 361. Treasurer of savings bank; action against executor and trustee of one surety, other sureties being also dead, one leaving no estate and the estate of the other having been distributed 462 362. Damages paid by plaintiff by reason of injuries caused by defendant's negligence 467 363. Indemnity to municipal corporation for damages it has been com- pelled to pay because of injuries caused by street obstruction or defective sidewalk 470 364. Recovery by principal of fund deposited with surety as indemnity under bond for liquor tax certificate 472 365. Liquor tax certificate; recovery by surety company from undisclosed principal of amount paid on certificate issued in name of agent. 475 366. Discharge from Uability of one principal; consent thereto by one surety; infringement of patent 478 Form No. 355 Rent ^ Supreme Court, county. William G. Romaine, Plaintiff, against Clajd;an E. Sweet and Clinton W. Sweet, as executors under the last will and testament of James Orr, deceased, Defendants. J The plaintiff complaining of the defendants, alleges: 'See also Bonds, ante, p. 187; Official Bonds and Undertakings, ante, p. 220; Guaranty, post, p 484. . ^ From Romaine v. Sweet, 57 App. Div. 613; 68 Supp. 516; in which a judg- ment in favor of the plaintiff was affirmed. 444 Bradbiiry's Forms of Pleading Indemnity I. That the plaintiff is a resident of the city, county and State of , practicing his profession as an attorney at law, at , in said city. II. That for some time prior to the day of , 19 , plaintiff was the owner of a certain three story frame building known as the Commercial Hotel, situate' at , county of , and State of , with the appurten- ances and the furniture therein contained. III. That on the said day of , 19 , the plain- tiff leased said premises and the furniture therein contained unto F. S. M. and J. A. 0., Jr., for the term of one year, to com- mence on the day of , 19 , at a yearly rental of $ payable as follows, that is to say : Before the sign- ing of said lease $ , on the first day of j 19 , $' , on the day of , 19 , $ , aggregating in all as for said yearly rental, the sum of $ That a copy of said lease is hereunto annexed and marked Ex- hibit "A" on behalf of the plaintiff, and by this reference made part hereof. IV. That on the said day of , 19 , J. 0., the defendant herein, became surety under his hand and seal for the punctual payment of said rent and performance of the cove- nants in said agreement mentioned. That a copy of his agree- ment of suretyship is hereunto annexed, marked Exhibit "B" on the part of the plaintiff, and by this reference diade part hereof. V. That in and by the said agreement of suretyship, the said defendant did agree to fully satisfy the conditions of said agree- ment by paying unto the plaintiff herein, any arrears of rent that might be due by reason of the nonfulfillment of said agreement for rent hereinbefore set forth in Exhibit "A," and without requiring notice or proof of demand for same being made. VI. That iiflmediately thereafter, to wit, the said F. S. M. and J. A. 0., Jr., the tenants in said lease mentioned, did enter upon and take possession of said premises in pursuance of and Complaints 445 Indemnity by virtue of the said lease aforesaid, and did thereafter remain in possession thereof under said agreement. VII. That the said F. S. M. and J. A. O., Jr., have failed, refused and neglected to pay the said amount of said rent which fell due and became payable on the day of » 19 , amounting to $ , as fully appears and is set forth in said lease Exhibit "A" aforesaid. VIII. That thereafter plaintiff notified said surety, to wit, said defendant, of said refusal and neglect to pay said sum and did demand the payment thereof from said defendant, with which demand said defendant hath refused and still doth refuse to comply. IX. That the said defendant is indebted unto plaintiff in the sum of $ , with interest thereon from the day of , 19 . Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification^] [Exhibit "A" was the usual form of lease; Exhibit "B" read as follows] : In consideration of the letting of the premises above described, and for the sum of one dollar, I, J. 0., of the city of , county of and State of , do hereby become surety for the punctual payments of the rent, and performance of the covenants in the within agreement mentioned, to be paid and performed by the said F. S. M. and J. A. 0., Jr., parties of the second part aforesaid, as therein specified; and if any default shall, at any time be made therein, I do hereby promise and agree to pay unto the landlord in said agreement named, the said rent, or any arrears thereof that may be due, and fully satisfy the conditions of the said agreement, and all damages that may accrue by reason of the nonfulfillment thereof, without requiring notice or proof of demand being made. Given under my hand and seal, this day of , 19 . [Signed.] 446 Bradbury's Forms of Pleading Indemnity Form No. 356 Contractor Against Subcontractor ' For a first cause of action. I. The plaintiff is a corporation duly created by and existing under the laws of the State of , having an office for the transaction of business in the city of II. The defendants are residents of the city of , bor- ough of III. On or about the day of ,19, the plain- tiff made a contract with the B. and B. B. R. Co., whereby the plaintiff agreed to build the extension of the railroad from the south side of A. avenue to street, including the con- nection and intersection thereof with the elevated railroad of the County E. R. Co., and also the elevated approach to such extension commencing at the northerly face of the retaining wall between P. P. and avenue and connecting with said extension at avenue, and to build the foundations for the piers and supports and to erect and set all piers and to place the superstructure thereon. That on or about the day of , 19 , the de- fendant, S. L. K., made a subcontract with the plaintiff whereby he agreed to build the foundations for the said extension upon which the pillars of the elevated railroad were to stand, the per- formance of which work he transferred to the defendant, D. J. C, and the defendants, J. D. and R. R., his copartners, trading under the firm name of D. J. C. & Co., who actually did the work. IV. Upon information and belief that the defendants in build- ing the said foundation negligently piled and scattered, or al- lowed to be scattered, dirt and stones on the board walk which continued the sidewalk of the south side of street across the right of way of the B. and B. B. R. Co. so as to obstruct a large portion of the said public highway. V. Upon information and belief that on or about , 19 , in the evening, one K. J., who was crossing the right of 1 From Phoenix Bridge Co. v. Creem, 102 App. Div. 354; 92 Supp. 855; aff'd 185 N. y. 580; in which a judgment in favor of the plaintiff was affirmed. Complaints 447 Indemnity way of the B. and B. B. R. Co. on the board walk on the south side of street, stumbled on and was thrown down by the dirt and stones obstructing the said highway as aforesaid, which the defendants had for a considerable length of time neg- ligently left without any barrier or light or warning whatever, and was severely and permanently injured without any negli- gence on her part contributing thereto. VI. One B. J., the husband of the said K. J., subsequently brought a suit in the Supreme Court of , in county against the plaintiff to recover damages for loss of the services of his said wife and for expenses incurred by him on her behalf, and arising from her injuries, in which it was so pro- ceeded that on the day of , 19 , a judgment was entered against the plaintiff for the sum of $ , which has been satisfied by payment by plaintiff of $ The plaintiff gave timely notice to the defendants of the trial of the said action, and invited them to be present and to take part therein, and notified them that it would reclaim of them anything recovered against it. VII. The plaintiff is advised that the defendants are liable to repay to it the amount so recovered from it by the said B. J.., and avers that the defendants have neglected and refused so to do, to the damage of the plaintiff in the sum of $ , with lawful interest. For a second cause of action. VIII. The plaintiff repeats the allegations contained in the first cause of action herein as fully as if again set forth at large, and shows : That in and about the trial of the said action of B. J. against it, it laid out and expended for counsel fees, witness fees and necessary expenses of preparing and trying said cause the sum of $ , and that it was obliged to lay out said moneys, which were a reasonable expenditure for said purposes, by reason of the negligence of the defendants as hereinabove set forth, and their failure and refusal to take part in and conduct said trial, and discharge and satisfy the just damages of the said B. J. Wherefore [demand for money judgment]. 448 Bradbury's Forms of Pleading Indemnity Form No. 357 Sherifi on Taking Property Under Execution with Allegration of Notice to Defendant to Defend Principal Action ^ I. That from and including the day of , 19 , to and including the day of , 19 , this plaintiff was the sheriff of the county of II. Upon information and belief, that the defendant is at present and at all times hereinafter mentioned was a domestic corporation, formed and existing under the laws of this State, and transacting business as a surety company therein. III. That the above-named defendant on or about the day of , 19 , made, executed and delivered to this plain- tiff, as such sheriff as aforesaid, its certain bond or v,rriting obliga- tory, sealed with its seal, the date whereof was the day and year last aforesaid, wherein and whereby this defendant bound itself to this plaintiff, as sheriff of the county of , in the sum of $ , lawful money of the United States, to be paid to this plaintiff, or to his certain attorney or attorneys, executors, administrators or assigns, for which payment well and truly to be made, the above-named defendant bound itself and its suc- cessors, jointly and severally, firmly by the said bond or writing obligatory. That the said bond or writing obhgatory so as aforesaid made, executed and delivered, was subject to a certain condition therei i written, whereby after particularly reciting that one M. R. and one M. A. and various other persons therein set out, obtained judgments in the city court of the city of against one M. L. for sums aggregating $ , and that all of said judg- ments had theretofore been assigned to one F. A. K., which assignments had been docketed in the oflfice of the clerk of the county of , whereupon execution had been by said F. A. K., issued, directed and delivered to- this plaintiff as such sheriff, commanding him that of the goods and chattels of the said judg- ment debtor M. L., he should cause to be made the sum aforesaid, 1 From Dunn v. National Surety Co., 178 N. Y. 552; aff'g 80 App. Div. 605; 80 Supp. 744; in which the plaintiff recovered, Complaints 449 Indemnity and that certain personal property that appeared to belong to the paid judgment debtor against whom said execution had so been issued, was claimed or might be claimed by some other party or parties, it was agreed that the condition of said bond or writing obligatory was such, that if the said obligor on said bond, the defendant in this action, should well and truly save, keep and bear harmless and indemnify the plaintiff herein and all and every person or persons aiding and assisting him or them in the prem- ises of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, attachments, fines, special proceedings and executions, that should or might at any time arise, come, accrue or happen to be brought against him, them or any of them, for or by reason of the levying, taking or making sale under or by virtue of such execution of all or any personal property which he or they should or might judge to be- long to the said judgment debtor, or for or by reason of entering any ship or vessel, shop, store, building or other premises, for the taking of any such personal property, or for or by reason of the defense of any action or proceeding which may be so brought against him, them, or any of them, then the said obligation to be void, else to remain in full force and virtue. lY. That in pursuance of the request of the defendant in rer spect of said execution, under said indemnity^, this plaintiff levied upon certain personal property for the purpose of satisfy- ing in whole or in part said execution. V. This plaintiff, for assigning breach of the condition of said bond or writing obUgatory, says that the defendant has not well and truly saved, kept, borne harmless and indemnified this plain- tiff for and against such actions, judgnjents, costs, counsel fees and expenses which arose, came, accrued and happened against this plaintiff for the levying and making sale under and by virtue of said execution of said personal property, but therein has wholly made default and has failed in that respect to comply with the condition of said bond or writing obligatory. VI. This plaintiff, further assigning breach of the condition ■Qf said bond or writing obligatory, alleges that on or about the Vol. 1-29 450 Bradbury's Forms of Pleading Indemnity day of , 19 , by reason of the said levying upon and taking possession of said personal property, one L. L. commenced an action against this plaintiff, as sheriff as afore- said, in the. Supreme Court, county; that such proceedings were subsequently had in last said-mentioned action; that afterwards on or about the day of , 19 , the said court, at a trial term, part XII thereof, directed the jury to render a verdict in favor of said L. L., the plaintiff therein, and against this plaintiff herein, for the levying, taking and mak- ing sale of said personal property under said execution, and cer- tain other personal property hereinafter mentioned in the second cause of action herein for the sum of $ , which verdict was subsequently rendered by said jury, in accordance with the instructions of said court, and upon which verdict judgment was rendered against this plaintiff, as hereinafter set forth. For a second, separate and distinct cause of action this plain- tiff alleges : I. He reiterates and repeats the allegations made and con- tained in the paragraphs "I" and "II" of the plaintiff's first cause of action set out herein. II. That the above-named defendant on or about the day of , 19 , made, executed and delivered to this plain- tiff, as such sheriff as aforesaid, its certain bond or writing obliga- tory, sealed with its seal, the date whereof was the day and year last aforesaid, wherein and whereby it bound itself to this plain- tiff, as sheriff of the county of , in the sum of $ , lawful money of the United States, to be paid to this plaintiff, or to his certain attorney or attorneys, executors, administrators or assigns, for which payment well and truly to be made it bound itself and its successors, jointly and severally, firmly by the said bond or writing obligatory. That said bond or writing obligatory so as aforesaid made, executed and delivered, was subject to a certain condition therein written, whereby, after particularly reciting that one M. R. and one M. A. and several other persons therein set out, obtained judgments in the city court of the city of against one te Complaints 451 Indemnity J, L., for various sums of money aggregating $ , and all of which judgments had theretofore been assigned to one F. A. K., and which assignments were docketed in the ofhce of the clerk of the county of , whereupon execution had been, by said F. A. K., issued, directed and delivered to this plaintiff, as such sheriff, commanding him that of the goods and chattels of said judgment debtor J. L., he should cause to be made the sum aforesaid, and that certain personal property that appeared to belong to the said judgment debtor, against whom said execution had been so issued, was claimed or might be claimed by some other party or parties, it was agreed and the condition of said bond or writing obligatory was such, that if the said obligor on the bond, the defendant above named, should well and truly save, keep and bear harmless, and indemnify the plaintiff herein and his successor or successors, and all and every person and per- sons aiding and assisting him or them in the premises of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, attachments, fines, special proceedings and executions, that should or might at any time arise, come, accrue or happen to be brought against him, them or any of them, for or by reason of the levying, taking, or making sale under or by virtue of such execution of all or of any of such personal property which he or they should or might judge to belong to the said judgment debtor, or for or by reason of enter- ing any ship or vessel, shop, store, building or other premises, for the taking of any such personal property, or for or by- reason of the defense of any action or proceeding which might be so brought against him, them or any of them, then said obligation to be void, else to remain in full force and virtue. III. That in pursuance of the request of the defendant in respect of said execution under said indemnity, this plaintiff levied upon certain personal property, for the purpose of satis- fying in full or in part said execution. IV. This plaintiff, for assigning breach of the condition of said bond or writing obligatory, says, that the defendant has not well and truly saved, kept, borne harmless and indemnified this said 452 Bradbury's Forms of Pleading Indemnity plaintiff for and against such actions, judgments, costs, counsel fees and expenses which arose, came, accrued and happened against him for the levying and making sale under and by virtue of said execution of said personal property, but therein has wholly made default and has failed in that respect to comply with the condition of the said bond or writing obligatory. V. This plaintiff further assigning breach of the condition of said bond oi- writing obligatory, alleges, that on or about the day of , 19 , by reason of the said levying upon and taking possession of said personal property, one L. L. commenced an action against this plaintiff, as sheriff as aforesaid, in the Supreme Court, county, which action has been hereinbefore referred to in the sixth paragraph of the plaintiff's first cause of action herein; that such proceedings were subsequently had in said last-mentioned action, that after- wards and on or about the day of , 19 , the said court, at a trial term, part XII thereof, directed the jury to render a verdict in favor of the said L. L., the plaintiff herein, and against this plaintiff herein, for the levying, taking and mak- ing sale of said personal property under said execution, and certain other personal property hereinbefore mentioned in the first cause of action herein for the sum of $ , which ver- dict was subsequently rendered by the said jury, in accordance with the instructions of said court, and upon which verdict judgment was rendered against this plaintiff, as hSreinafter set forth. • VI. That on the day of , 19 , in the afore- said action of L. L. against this plaintiff, as sheriff of the county of , for the levying, taking and making sale of the afore- said personal property under the authority of the executions is- sued to this plaintiff, as such sheriff,. against the property of M. L. and J. L., as aforesaid, judgment was duly rendered in favor of said L. L. and against this plaintiff, for the sum of $ damages and costs. VII. This plaintiff further alleges, that the costs, counsel fees and expenses to this plaintiff which arose, came, accrued and Complaints 453 Indemnity happened against him in defending the aforesaid action of L. L. against the plaintiff, as aforesaid, amounted to the sum of I VIII. This plaintiff further alleges, that shortly after the be- ginning of the aforesaid action of L. L. against this plaintiff, and on or about the day of , 19 , the de- fendant herein was duly informed by the plaintiff herein of the commencement of said action and offered said defendant an opportunity to associate itself with the defense thereof and to intervene therein in any manner agreed upon to be for the best interests of the plaintiff and defendant herein; and that on or about the day of , 19 , and before the trial of said action of L. L. against this plaintiff, this plaintiff again requested the defendant herein to assist in the preparation of the defense of said action, as well as to offer to this defendant an opportunity to associate itself with this plaintiff's counsel upon the trial of said action. And that although this defendant well knew from the beginning of said action until the trial thereof of the nature of the action, the claim or claims upon which it was based, and that in case of the plaintiff's success therein this plaintiff would seek recovery against this defendant upon the two bonds hereinbefore mentioned, this defendant neglected and refused to do anything whatsoever toward either the prepa- ration of the defense, or the trial of the action, or in any wise to take any cognizance thereof subsequent to the joinder of .the issue therein. IX. This plaintiff alleges, that he had heretofore demanded the payment of said sum of $ of this defendant, but that no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 358 Building Contract ^ I. That on or about the day of , 19 , this * From Burr v. Union Surety & Indem. Co., 107 App. Div. 315; 95 Supp. 114; in which a judgment in favor of the defendant was reversed. 454 Bradbury's Forms of Pleading Indemnity plaintiff was the owner and in possession of all that certain plot, piece or parcel of land [insert description of properly]. ni. That upon the said premises above described the erection and construction of certain buildings had been commenced, which buildings at the date aforesaid were unfinished and in- complete. IV. That at the date aforesaid the said premises were subject to four certain mortgages, then liens upon the said premises held by the W. T. Co., as trustee, upon which mortgages there had been at that time advanced the sum of $ , which sum was then due and payable thereon, with interest from the day of , 19 . That the said premises were at that time also subject to four certain mortgages, one made by F. N. S. and I. L. S., his wife, to S. H. C, to secure the payment of the sum of $ and interest and covering a portion of the said premises, which mortgage was dated on the day of , 19 , and was recorded in the county register's office in sec. 11, Block 3384, Liber 43 of Mortgages, page 326, on the day of , 19 ; and another of said mortgages made by the said F. N. S. and I. L. S., his wife, to the said S. H. C, to secure the payment of the sum of $ and interest, and covering a portion of the said premises, which mortgage was dated on the day of , 19 , and recorded in the said register's office in sec. 11, Block 3384, Liber 43 of Mortgages, page 323, on the day of , 19 ; and another of said mortgages made by said F. N. S. and L L. S., his wife, to S. H. C, to secure the payment of the sum of $ and interest, and covering a portion of the said premises, which mort- gage was dated on the day of , 19 , and re- corded in the said register's office in sec. 11, Block 3384, Liber 43 of Mortgages, page 324, on the day of , 19 ; and another of said mortgages made by said F. N. S. and I. L. S., his wife, to said S. H. C, to secure the payment of the sum of $ and interest, and covering a portion of the said prem- ises, which mortgage was dated on the day of , Complaints 455 Indemnity 19 , and recorded in the said register's office in sec. 11, Block 3384, Liber 43 of Mortgages, page 328, on the day of ,19 . V. That the said mortgages lastly hereinbefore recited had, prior to the said day of , 19 , and on or about the day of , 19 , been duly assigned by the said S. H. C. to the above-named plaintiff, by four several assign- ments, each dated on the day of , 19 , which assignments were recorded in Liber 46 of Mortgages, page 418, in sec. 11, Block 3384; and in Liber 46 of Mortgages, page 417, in same section and block; and in Liber 46 of Mortgages, page 419, in same section and block; and in Liber 46 of Mortgages, page 416, in same section and block, all on or about the day of , 19 ; there had been advanced upon the said mort- gages the sum of $ , which amount was then due and payable thereon, with interest from the said day of , 19 . VL That on or about the said day of , 19 , , this plaintiff sold and conveyed the said premises to one E. E., by his deed dated on the day of , 19 , in which deed his wife, E. A. D. B., joined, and which deed was recorded in the said county register's office in Liber 31 of Con- veyances, page 351, on the day of , 19 , and which deed conveyed the said premises subject to the mortgages above specified, upon which there had been advanced the sum of$ VII. That at the time of the said conveyance, the said E. E. made and entered into an agreement with this plaintiff to complete the erection and construction of the four buildin'^s then in process of construction, and made, executed and de- livered to this plaintiff a written agreement respecting the same, a copy of which agreement is hereto annexed and marked Exhibit "A." VIII. That in order to induce this plaintiff to sell and convey the said premises to the said E. E. and to enter into the said contract with him, the above-named defendant made, executed 153 Bradbury's Forms of Pleading Indemnity and delivered its written agreement, a copy of which is hereto annexed and marlced Exhibit "B." IX. That thereafter the said E. E. entered into the possession and occupation of the said premises under the deed above speci- fied, but thereafter t'lo said E. E. failed to comply with the terms and conditions of the said agreement, and neglected to diligently and without unrcasonabb delay complete the erection and con- struction of the buildings upon the said premises. X. That thereafter this plaintiff elected to terminate the said agreement, and this plaintiff and the \V. T. Co. as trustee, the holder of four of the mortgages hereinbefore specified, elected to deem the said mortgages to be immediately due and payable, and thereafter the said W. T. Co. as trustee, on or about the day of , 19 , began four certain actions in the Supreme Court of the State of , in and for county, for the foreclosure of the ^aid mortgages so held by them as aforesaid, and such proceedings were thereafter had therein; that on or about the day of , 19 , a judgment of foreclosure and sale was duly entered in each of said actions, and on or about the day of , 19 , the premises above described were duly sold under and in pursuance of the said judgments and did not sell for sufficient to pay the amount due upon the said mortgages held by the said W. T. Co. as trustee, the plaintiff in said actions. XI. That if the said E. E. had completed and performed his said agreement and had finished and completed the erection and construction of the buildings upon the said premises as he had agreed to do, that the said premises would have been worth more than sufficient to pay the entire amount then due and subse- quently to be advanced upon the said mortgages held by the W, T. Co. as trustee, and also the mortgages held by this plain- tiff. XII. That by reason of the matters and things hereinbefore set forth, the mortgages held by this plaintiff upon the said premises were cut off, and the liens thereof destroyed, and became and are of no value, and the said F. N. S., the maker of the notes Complaints 457 Indemnity to secure the payment of which the said mortgages held by this plaintiff were given, is wholly insolvent and irresporisible. XIII. That this plaintiff has complied with all the terms and conditions of the said building loan agreement and the contract made and entered into by the defendant herein, upon his part to be kept and performed. XIV. That by reason of the matters and things hereinbefore set forth, this plaintiff has sustained loss and damage in the sum of $ , with interest thereon from the day of , 19 , for which loss the above-named defendant is justly liable. Wherefore [demand for money jvdgment]. Form No. 359 Dissolution of Partnership; Agreement by One Partner to Pay All Part- nership Debts ^ I. That on or about the day of .■ , 19 , at the city of , the plaintiff and the defendant, together with one I. E. H., entered into an agreement in writing, under their respective hands and seals, and which instrument bears date the said day of , 19 , whereby a copart- nership which had existed between the plaintiff and defendant and said I. E. H. was dissolved, and in and by which the defend- ant assumed the payment of all and singular the debts and obli- gations of every kind owing by their said late firm, and agreed to save and keep harmless the plaintiff and said H. therefrom. II. That thereafter and on or about the day of ,19 , the said I. E. H. died at the borough of , in the city of ■ III. That at the time of the entry into the agreement afore- said the said copartnership was indebted to J. E. L. and T. L., of , , composing the firm of L. Bros., in the sum of $ , with interest thereon from , 19 . IV. That ori or about the day of , 19 , the 1 From Robinson v. Vaughan, 49 App. Div. 170; 63 Supp. 197; in which a judgment in favor of the plaintiff was affirmed. 455 Bradbury's Forms of PLEADI^fG Indemnity said J. E. L. and T. L. commenced an action in the Supreme Court of the State of for the county of , to re- cover from the plaintiff and defendant the indebtedness due- them, the said L. Bros., as aforesaid. V. That thereupon the plaintiff duly notified the defendant of the commencement of said action, and requested the defend- ant to take charge of the defense of the same, and to save and to keep the plaintiff harmless from any liability arising upon said claim. VI. That the defendant neglected and refused to defend said action on behalf of the plaintiff, and plaintiff was thereafter, and because of such refusal and neglect on the part of the de- fendant, compelled to employ counsel to defend the plaintiff against said claim. VII. That plaintiff, by reason thereof, was called upon to and did lay out and expend money and incur liability in the defense of the said action to the amount and of the reasonable value of $ VIII. That thereafter such proceedings were had in said ac- tion, so brought as aforesaid by said L. Bros, against the plain- tiff and defendant, that, on or about the day of , 19 , judgment was recovered by said J. E. L. and T. L. against the plaintiff and the defendant, and on that day docketed in the office of the clerk of the county of , for the sum of $ , damages and costs. IX. That thereafter said judgment was duly docketed by the said J. E. L. and T. L. in the office of the clerk of the county of and an execution thereon issued to the sheriff of the county of for the collection of the same. X. That upon said execution was indorsed a direction which plaintiff avers, upon information and belief, was given by the orders of the defendant; that said execution be levied solely and only upon property belonging to this plaintiff, and that the amount of said execution be realized upon and from the property of the plaintiff and said judgment enforced solely and only against the plaintiff. Complaints 459 Indemnity XI. That thereupon the said sheriff duly levied upon the property of the plaintiff, and on the day of 19 , the plaintiff was compelled to pay and did pay to said sheriff in satisfaction of said judgment and interest and for the fees of said sheriff and said auctioneer the sum of $ That said sum, together with the moneys mentioned in the seventh paragraph hereof, amount in the aggregate to the sum of $ XII. That before the commencement of this action plaintiff duly demanded of the defendant payment of said sum of $ , with interest as aforesaid, but the defendant has neglected and refused, and still neglects and refuses to pay the same. Wherefore [demand for money judgment]. Form No. 360 Siirety Against Principal ^ I. That the defendant, N. S. C, is a corporation duly organized under the laws of the State of II. That on the day of j 19 , the defendant, F. S., recovered a judgment in the Supreme Court, county of , against this plaintiff, and the defendants, T. G. S. and S. W. A., for the sum of $ , on a complaint for mali- cious prosecution, it being an action founded in tort. That thereafter, the defendant, S. W. A., perfected an appeal from said judgment, to the Appellate Division of the Fourth Department of the Supreme Court, and for the purpose of stay- ing execution on said judgment and staying proceedings pending said appeal, the defendant. A., filed an undertaking in due form, as required by sees. 1326 and 1327 of the Code, which undertaking was executed by the defendant, the N. S. Co., in accordance with sees. 811 and 1334 of the Code as security thereto. That on the day of , 19 , said appeal was upon due notice to the attorneys for the defendant. A., dismissed, and said judgment affirmed, and on the day of , 1 From Kolb v. Nat. Surety Co., 176 N. Y. 233. 460 Bradbury's Forms of Pleading Indemnity 19 , the said F. S. caused a judgment to be duly entered in county clerk's office, dismissing said appeal. III. Afterwards and on or about the day of , 19 , the said defendant, F. S., commenced an action in the Supreme Court against the defendant, the N. S. Co., alleging that said judgment remained wholly unpaid, and such proceed- ings were had in that action that it was tried before a jury on the day of , 19 , and a verdict rendered for the plaintiff in that action for $ . Judgment was duly entered on that verdict on the day of > 19 , for $ , damages, and $ , costs. IV. That the undertaking executed as aforesaid, by the de- fendant, S. W. A., and the N. S. Co., severally undertakes that the defendant, S. W. A., will pay all cdsts and damages which may be awarded against him on such appeal, and if the judgment appealed from by said A. or any part thereof be affirmed or if said appeal is dismissed, "the appellant, S. W. A., will pay the sum recovered, or directed to be paid upon the judgment, or the part thereof as to which it shall be affirmed," which under- taking bears date , 19 . That this plaintiff, who was an innocent defendant in the action for malicious prosecution, and had been roped into the case by the defendant. A., on the day of , 19 , entered into a contract with the said F. S., for good and valuable considerations, by which the defendant, F. S., agreed not to prosecute this plaintiff for a sum exceeding $ , in the first action above described, and in and by the terms of said contract this plaintiff was not to pay anything until the final determination of the action and the collection out of said A. or his sureties of all for which they or either of them had become liable. V. That afterwards and on the day of , 19 , the defendant, the N. S. Co., paid to the said defendant, F. S., the full amount of his said judgment against that company. VI. That on the day of ,19 , the defendant, the N. S. Co., made a motion at special term, in the said action IPW' Complaints 461 Indemnity against that comgany, to compel the said F. S. to assign his said judgment against tlie plaintiff, and the defendants, T. S. ami S. W. A., on the payment of that judgment to said F. S., and on that day an order was made requiring the said F. S. to assign said judgment to the defendant, the N. S. Co., and on or about, that day the said assignment was made. That this plaintiff had no notice of the application for such order, and did not in any manner appear on the motion therefor, and is not in any way bound thcrcljy. And this plaintiff states on information and belief, that the defendants, T. G. S. and S. W. A., were not given notice of that motion. VII. On , 19 , the defendant, the N. S. Co., as pre- tended assignee of said judgment, issued an execution to the sheriff of county, the defendant, T. W., directing him to collect from this plaintiff the sum of $ , and from S. W. A. nothing, he having already paid $ , and from T. G. S. $ , with interest from , 19 , in addi- tion to fees and poundage. That the defendant, T. W. F., is the sheriff of county, and holds that execution in his official capacity as such sheriff. VIII. The plaintiff alleges on information and belief, that since Ibc assignment of said judgment to the defendant, by F. S. as aforesaid, the defendant, the N. S. Co., has settled with the de- fendant, S. W. A., and received from him $ . That plain- till is not informed as to what acquittances or discharges or re- leases the defendant corporation gave to S. W. A., but he avers that the said A. has paid in Wl the judgment in the action and that whatever sum A. paid said defendant is in legal effect a discharge of said judgments. IX. By reason of the premises, the plaintiff avers that the said judgments hereinbefore mentioned against the plaintiff, S. W. A. and T. G. S.. have been extinguished, satisfied and paid, and that the execution aforesaid issued to the sheriff of the county of , as aforesaid, is irregular and void as against the plaintiff and as against T. G. S., and should be discharged, and discharged of record by the defendant, F. S., and the de- 462 Bradbury's Forms of Pleading Indemnity fendant, the N. S. Co., without any further payment, and held for naught. X. That this plaintiff is perfectly good and responsible for the amount of said execution and a good deal more, and to permit the said execution to remain in the hands of the sheriff will work great and irreparable injury to him, and compel him to pay a sum of money for which he is not legally liable. Wherefore [demand for money judgment]. Form No. 361 Treasurer of Savings Bank; Action Against Executor and Trustee of One Surety, Other Sureties Being Also Dead, One Leaving No Estate and the Estate of the Other Having Been Distributed ' I. That the U. C. S. I., the plaintiff in this action, is a corpora- vkn duly incorporated and organized under the laws of the State of as a S. B., having been originally incorporated by chap. 152 of the laws of 1851~of said State, entitled, "An Act to incorv> orate the U. C. S. I.," and by divers subsequent enact- ments of the legislature of the State of , has become and is subject to the general laws of said State relating to S. I., to all of which laws and to all amendments to the original act of incorporai,icn reference is hereby made. That said aistitution is located and carries on business in the city of , in the county of and State of , which was th^ village of prior to the incorporation of said city in , and has continuously carried on business as a S. B. from .'hi time of its organization until the present time. II. That on the day of , 19 , at the regular annual meeting oi ihe board of trustees of the plaintiff, the de- fendant, M. T. T., w^as duly appointed the assistant treasurer of the plaintiff, the treasurer for the plaintiff being at that time one J. E. 0., and tha*; the office of such assistant treasurer was created and the said T, appointed to the position of assistant treasurer to assist the treasurer in the charge of the moneys, ^ From Ulster County Sv\T-'gs Institution v. Young, 161 N. Y. 23. Complaints 463 Indemnity securities, books and business of the plaintiff and to safely and truly handle, keep and manage the same. That the said M. T. T. duly accepted said office of assistant treasurer and entered upon the performance of its trusts and duties, and continued thereafter to hold said office and to act in the same performance of his trusts and duties, and to receive the salaries and emoluments thereof, until on or about the day of , 19 , when he was discharged by the plaintiff for unfaithfulness and malversation in office. That the said T., as such assistant treasurer, was allowed and paid an annual salary of $ or thereabouts. That by the by-laws of the plaintiff duly adopted and in force the treasurer and assistant treasurer had charge of the moneys, securities, books and accounts of the plaintiff, and it was the duty of the defendant T. as such assistant treasurer faithfully to manage and keep the same and account therefor whenever required, to the plaintiff. That by resolution of the board of trustees of the plaintiff the said M. T. T. as such assistant treasurer was required to execute and dehver to the plaintiff a bond with good and sufficient sure- ties in the penal sum of $ , conditioned, among other things, for the faithful performance of his trust. III. That pursuant to the requirements of the board of trus- tees of the plaintiff the said M. T. T., on or about the day of , 19 , together with L. N. H., J. K. and T. C, as sureties, duly executed under their seals and delivered to plaintiff a bond which was accepted and approved by the plain- tiff in the words and figures following,- to wit : Know All Men by These Presents, that we, M. T. T., L. N. H., J. K. and T. C, are held and firmly bound unto the U. C. S. I. in the sum of $ , lawful money of the United States of America, to be paid to the said the U. C. S. I., its successors or assigns, for which payment well and truly to be made we bind ourselves and our respective heirs, executors, administrators and assigns, jointly and severally firmly by these presents. Scaled with our seals and dated the day of , 19 . 464 Bradbury's Forms of Pleading Indemnity Whereas the above-named M. T. T. has been chosen and appointed assistant treasurer of the said the U. C. S. I. and will l)y virtue of his office handle divers sums of money, and securities belonging to the institution. Now, therefore, the condition of the preceding obligation is such, that if the above-bounden M. T. T., his executors or administrators, shall at the expiration of his said office or at any time on request to him or them make or give unto the said institution or its agent or attorney a just, full and true account of all such money or securities or other property as may have come in his hands, charge or possession as such assistant treasurer as aforesaid, and shall and do pay and deliver over to his successor in office, or any other person duly authorized to receive the same, all such sums of money, securities or other property as may appear to be due and owing by him to said institution; and if the said M. T. T. shall well and truly, honestly and faithfully, in all things, serve the said institution in the capacity of assistant treasurer as aforesaid, during his con- tinuance in office, then the above obligation to be void, other- wise to remain in full force and virtue. It being understood that this bond is to be binding for all the time the said M. T. T. shall hold the said office of assistant treasurer even though he holds under successive appointment, but nothing herein shall prevent the sureties terminating their liability by giving at least two weeks' written notice of an intention so to do. Sealed and delivered [Signed.] in presence of [Signed.] That the plaintiff has ever since held and still holds the said bond and the same is in full force and effect. That the said M. T. T. during the whole time he was assistant treasurer as aforesaid, to wit: from , 19 , to , 19 , when he ceased to be said assistant treasurer, held said office and exercised the trusts thereof under and on the faith of said bond and subject to the penalties and habilities provided for thereby. IV. That the said M. T. T. did not well and truly, honestly Complaints 465 Indemnity and faithfully in all things serve the said institution, the plaintiff, in the capacity of assistant treasurer aforesaid during his con- tinuance in said office, but without the knowledge or consent of the plaintiff was guilty of frequent and repeated dishonesty and malversation in his said office during nearly the whole time that he held the same ; and as the plaintiff alleges on information and beUef did in nearly each and every year he was such assistant treasurer, abstract, purloin and convert to his own use sundry and divers large sums of money, the property of the plaintiff, and securities, also the property of the plaintiff, and suffered and permitted and connived with other persons to take and con- vert to their own uses large sums of money of plaintiff and did also with dishonest intent oinit and neglect to charge against or collect from divers other persons large sums of money which he improperly and unlawfully permitted such other persons to draw out or take from such plaintiff and did with like dishonest intent draw out of and take from said plaintiff other large sums of money for himself and his family and relations, largely over- drawing his account for the purpose, he being irresponsible and his account worthless, and for the purpose of concealing his said abstractions and dishonest taking and paying out of moneys and to deceive the plaintiff, did alter, falsify ajid untruly keep the books and accounts of the plaintiff and make or cause to be made innumerable false entries and statements therein and with like dishonest intent of concealing his frauds and thefts and unlawful payments of money, did make or cause to be made, false reports for said plaintiff, required by law to be made to the bank depart- ment of the State, understating by $ the liabilities of the plaintiff to its depositors. That the moneys and securities dishonestly abstracted, converted, misapplied and misappro- priated by said M. T. T. as such assistant treasurer amounted, as plaintiff alleges on information and belief, to at least $ , and at least said sum appears to be in his hands and due from him to the plaintiff, and that none of said acts came to the knowl- edge of the plaintiff until on or about , 19 . That J. B. was, on or about the day of ,19 , Vol. 1—30 466 Bradbury's Forms of Pleading Indemnity duly chosen and appointed the successor in office of said M. T. T, as such assistant treasurer and that the plaintiff and the said J. B. as such successor in office have severally requested and demanded from the said M. T. T. to make or give to the plaintiff a just and true account of all such sum or sums of money, se- curities or other property as have come into his hands, charge or possession as such assistant treasurer and as appears to be due and owing by him to plaintiff and to pay over and deliver over the same to his successor in office or the plaintiff, and that he refuses to do so to the great damage of the plaintiff. V. That the said L. N. H., one of the sureties on said bond, departed this life on or about the day of , 19 , intestate, and that hip estate was many years ago ad- ministered upon and distributed. That the said J. K., another of said sureties, also departed this life on or about the day of > 19 , and as the plaintiff is informed and believes, left no estate. That the said T. C, the other surety, departed this life on or about the day of , 19 > leaving his last will and testament, which was duly admitted to probate by the surro- gate of county on the day of , 19 , that being the county in which he resided at the time of his decease, and the defendant, E. Y., was duly appointed the ex- ecutor and trustee of said last will and testament, and still is such executor and trustee, and he holds in his hands as such executor ample property to meet the obligation of said bond. VI. That the plaintiff has also duly demanded of the defend- ant E. Y., as the executor and trustee of the last will and testa- ment of said T. C, deceased, an accounting for the moneys and property of the plaintiff that appear to be in the hands of the said M. T. T. as aforesaid, payment to the plaintiff of the sum specified in said bond, to wit: $ , and that he refused and still refuses to render such accounting or to pay any part of said moneys. VII. That by reason of the facts hereinbefore set forth an action has accrued to the plaintiff upon the bond hereinbefore Complaints 467 Indemnity set forth for the recovery of the said sum of $ , with in- terest thereon from the day of , 19 . VIII. That upon application duly made by the plaintiff to the Supreme Court of this State upon due notice to the attorney general, an order has been duly made by said court and entered in the county clerk's office, granting leave to the plain- tiff to bring an action upon the official bond of the said M. T. T. as such assistant treasurer of the plaintiff hereinbefore set forth for the recovery from said T. and his sureties of the moneys and property of the plaintiff not accounted for and misappropriated and withheld by the said T. in breach of the terms and condi- tions of said bond and of his duties as such assistant treasurer. Wherefore [demand for money judgment]. Form No. 362 Damages Paid by Flaintifi by Reason of Injuries Caused by Defendant's Negligence ^ I. That at the times hereinafter mentioned, the plaintiff Was and is now a foreign corporation, organized and existing under and by virtue of the laws of II. Upon information and belief, that at the times hereinafter mentioned, the defendant was and now is a foreign corporation, organized under the laws of the Kingdom of Spain, and doing business and having property in the city of III. That on or about the day of , 19 , the defendant by its agents in the city of , J. M. M. and J. R. E., then doing business as such agents under the firm name of M. & E., entered into an agreement in writing with the plain- tiff by the terms of which the said defendant, through its said agents, leased the premises commonly known as Pier Number , in the city of , from the plaintiff, at the fixed weekly sum or rental of $ , the said lease to begin on the day of , 19 > and to continue until the opening of navigation on the river in the following year, ' From Oceanic Steam Nav. Co. v. Compafila Transatldntica Espafiola, 134 N. y. 461; in which a judgment in favor of the defendaijt was reversed, 468 Bradbury's Forms of Pleading Indemnity of which opening of navigation the plaintiff was to give the de- fendant one week's notice. IV. That the defendant by its said agents went into possession and occupation of the said premises under the terms of said lease and was in exclusive possession and occupation thereof on the day of , 19 , when the injuries to J. C. here- inafter mentioned, were incurred. V. That on or about said day ,of , 19 , one J. C. was lawfully on said premises known as pier , river, in pursuit of his employment as hoister, and while employed in the said capacity, one of the doors of the house or shed built over said pier fell upon him, by reason of the careless- ness and negligence of the defendant, its agents, servants and employees, in. failing and omitting to have said door properly secured, and without any fault or negligence of the said C, and that by reason of the said careless and negligent management by defendants, their agents, servants or employees, of the said door, said C.'s right leg was broken, and he became sore and dis- abled thereby, and was prevented from pursuing his vocation and earning his livelihood. VI. That when the plaintiff surrendered to the defendant the possession of the said pier, in pursuance of the lease or agreement hereinbefore mentioned, the said door was properly and safely secured. VII. That on or about the day of , 19 , the said J. C. commenced an action against the 0. S. N. Co., the plaintiff herein, in the Circuit Court of the United States, for the district of , to recover damages for said injuries. That an answer was interposed to said action by said 0. S. N. Co., and that the action came on for trial before the Hon. H. H. W. and a jury, on the day of , 19 , and that said J. C. recovered a judgment against the defendant, the plaintiff herein, for the sum of $ damages and costs, which judgment was duly entered in the office of the clerk of the Circuit Court of the United States, for the sdd district of , on the day of , 19 ; that the said Complaints 469 Indemnity defendant duly moved on the exceptions taken at the trial, for a new trial, but said motion was denied, and on the day of ,19 ,thesaidO.S.N. Co. was compelled to pay, and did pay to said J. C, the whole amount of the said judgment, with the interest accrued thereon to said date, being in all the sum of $ , and that in addition to said sum so paid said 0. S. N. Co. did expend the sum of $ , for necessary dis- bursements and counsel fees incurred in and about defending said action. VIII. That the defendant, the C. T. E., by its said agents, M. & E., had actual notice and knowledge of said action brought by said C. against the 0. S. N. Co., and that one of its said agents, to wit, J. M. M., testified as a witness on behalf of the defendant in said action. That the C. T. E., by its said agents, knew, or ought to have known, that the damages claimed in the said action against the 0. S. N. Co. were caused by the wrongful and negligent acts of the said C. T. E., or of its agents, servants or employees, while in possession of said premises, and that said defendant was liable over to the 0. S. N. Co. for any sum re- covered in said action, and that it was the right of said C. T. E. to intervene in said action and assume the defense thereof. That the said C. T. E. did not intervene therein, and has not paid to the 0. S. N. Co. any part of the amount so as aforesaid paid on said judgment, or in the defense of said action. IX. That previous to the commencement of this action, pay- ment of the damages awarded by the verdict of the jury in said action, as well as of the amounts hereinbefore stated as paid for counsel fees and disbursements, with interest from the time of their respective payments, was duly demanded from the defend- ant, and that no part thereof has been paid. Wherefore [demand for money judgment]. 470 Beadbury's Forms of Pleading Indemnity Form No. 363 Indemnity to Mvmicipal Corporation for Damages It Has Been Oom- pelled to Pay Because of Injuries Caused by Street Obstruction or Defective Sidewalk ' I. That the plaintiff is a municipal corporation of the State of , organized and incorporated under chap. 268 of the Laws of 1866 and the several acts of the legislature of said State amendatory thereof and supplementary thereto, and at the times hereinafter stated was possessed of all the powers, rights and privileges and subject to all the duties, obligations and lia- bilities by said acts and by the laws of the land conferred and imposed. II. That the defendant is and was at the times hereinafter stated a banking corporation duly incorporated under the laws of the United States and located and doing business at , , and authorized to purchase, hold and convey real es- tate as should be necessary for its accommodation in the trans- action of its business. III. That in the year the defendant was the owner of a plot of ground situate on the [insert description] of the village of , and during the summer and autumn of that year de- fendant caused to be erected thereon a brick banking building for its accommodation in the transaction of its business, that said street was and is one of the public streets of said village, that in the course of the erection of said building and in carrying out and completing the plans thereof the defendant caused an excavation to be made in street along said lot and in that part of said street occupied by the sidewalk thereon to the depth of feet and to the width of feet from the street line of said lot; that it was the duty of said defendant to cause said excavation to be covered and guarded and to have suitable barriers and warnings to prevent passers- by on said street from falling therein; that the defendant neg- lected and failed to perform such duty and such excav ation was 1 From Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; in which the plaintiff recovered. Complaints 471 Indemnity wrongfully and negligently suffered and permitted to be and re- main uncovered and without any proper or suitable guards, barriers or warnings to prevent passers-by or over said street from falling therein, so that on the evening of , 19 , one H. M. H. while exercising reasonable care and prudence in walk- ing along said street fell into this excavation and thereby re- ceived great bodily injury and was made and has been ever since and still remains sore, sick and disabled and has ever since suf- fered great pain and has been put to great expense in trying to be cured of such injuries. IV. That on or about , 19 , said H. M. H. com- menced an action against said village of in the Supreme Court of the State of to recover damages for such in- juries, that an answer was interposed to such action by said vil- lage, that the action came on for trial and was tried in county before Hon. F. J. B. and a jury on , 19 , and that said H. M. H. recovered a judgment therein of $ , damages and costs, which judgment was duly entered in the office of the clerk of county on , 19 . That an ap- peal was duly taken from said judgment to the general term of the Second Judicial District and such judgment was by said general term affirmed and judgment for $ , costs on such affirmance, duly entered in the office of the clerk of the county of on , 19 . That an appeal from said judgment was thereupon taken to the Court of Appeals of the State of and such judgment was by said Court of Appeals duly affirmed and judgment of affirmance and for $ , costs, duly entered in the office of the clerk of the county of on , 19 , in favor of such respondent and against said appellant. That on , 19 , said village of was forced to pay and did pay to said H. M. H. or her attorney the whole amount of said several judgments with the interest ac- crued thereon to said date, being the sum of $ , and that in addition to said sum so paid said village had on and prior to that date expended the sum of $ for its necessary dis- bursements in the defense of said action. 472 Beadbury's Forms of Pleading Indemnity V. That the defendant in this action, its president, cashier and board of directors had actual notice and knowledge of such action against the village of from its commencement to its final termination, that they knew or should have known that the damages therein claimed were caused by the wrongful and negligent acts of the agents of the defendant engaged in erecting said building and that the defendant was liable over to said vil- lage for any sum recovered therein and that it was the right of said defendant to intervene in said action and assume the de- fense thereof; that the defendant did not intervene therein and has not paid to said village any part of the amounts so as afore- said paid on said judgments or in the defense of said action and that thereby a cause of action has accrued in favor of said village, the plaintiif herein, and against the defendant for the amounts so as aforesaid paid by said village on account of said action. That previous to the commencement of this action payment of the damages awarded by the verdict of the jury in said action, as well as of the several amounts hereinbefore stated as paid, with interest from the time of their respective payments, was duly demanded from the defendants but refused and no part thereof has been paid. Wherefore [demand for money jugdment]. Form No. 364 Recovery by Principal of Fund Deposited With Surety as Indemnity Under Bond for Liquor Tax Certificate^ I. That at all the times hereinafter mentioned, this plaintiff was and still is a resident of the city of II. That at all the times hereinafter mentioned, this defend- ant was and still is a domestic corporation, organized and trans- acting business under the laws of the State of III. That heretofore and on or about the day of , 19 , the plaintiff and the defendant herein entered 1 From Shea v. Fidelity and Casualty Co., 83 App. Div. 305; 82 Supp. 39; in which this complaint was sustained on demurrer. Complaints 473 Indemnity into an agreement in writing, a copy of which is hereto annexed and marked "A." IV. That thereafter, for the purpose of enabUng the plaintiff herein to obtain a liquor tax certificate authorizing the plaintiff to traffic in liquors at , in the borough of , city of , a bond in all respects in compliance with the law was executed by the plaintiff herein as principal and the defendant herein as surety, in the sum of $ , as in said agreement marked '"A" is set forth, and in accordance with the statute in such ease made and provided. V. That the plaintiff herein paid to the defendant the compen- sation required by it to be paid for executing said bond as said surety. VI. That prior to or at about the time that the said defendant herein executed said bond as surety, as in said agreement marked "A" described, the plaintiff herein, in accordance with the terms of said agreement, deposited with the defendant, the F. & C. Co. of , the sum of $ VII. That the said bond given by the plaintiff herein and ex- ecuted by the defendant herein as surety, was a bond 'to the people of the State of , in the penal sum of $ , conditioned that if the liquor tax certificate thereafter applied for be granted, the plaintiff herein would not, while in the busi- ness for which said liquor tax certificate was given, carry on, suffer or permit any gambling to be done in the place designated by the tax certificate in which the traffic of liquors is to be carried on, or in any yard, booth, garden or any other place appurtenant thereto or connected therewith, or suffer or permit such premises to become disorderly, and would not violate any of the pro- visions of the liquor tax law, and that all fines and penalties which might accrue during the time the certificate applied for was held, and any judgment or judgments recovered therefor, would be paid, together with all costs taxed or allowances. VIII. That thereafter such proceedings were had that a liquor tax certificate was duly issued to the plaintiff herein, to expire on the day of , 19 , and that from on or about 474 Bradbury's Forms of Pleading Indemnity the day of , 19 , to the day of 19 , the plaintiff herein did, under the provisions of said liquor tax certificate, conduct the business of trafficking in liquors at the premises , in the borough of , city of IX. That during the time that the plaintiff herein did so traffic in liquors at said premises , in the borough of , city of , and while the business for which said liquor tax certificate was given was carried on, the plaintiff did not suffer or permit any gambling to be done in the place designated by the tax certificate in which the traffic in liquors was to be carried on, or in any yard, booth, garden or any other place appurtenant thereto or connected therewith, or suffer or permit such premises to become disorderly, and did not violate any of the provisions of the liquor tax law, and that no fines and penalties accrued against this plaintiff during the time the certificate applied for was held, and no judgment or judgments for any fines or penalties were recovered, nor any costs taxed or allowed. X. That the plaintiff has in all respects complied with the laws of the State of governing the traffic of liquors in the State of , and the provisions of said bond and liquor tax certificate. XL That there are not at present undetermined, in any court of record or not of record, or before any referee, any civil or crim- inal actions or proceedings arising out of, affecting or in any way relating to the business of trafficking in liquors carried on by the plaintiff herein at said premises , in the borough of , city of , during the term of said liquor tax certificate. XII. That the plaintiff herein has in all respects complied with the terms and provisions of the said agreement of the day of , 19 , and duly performed all the con- ditions on his part to be performed as therein required, and has made due demand upon the defendant herein for the return of said sum of $ , and that the defendant has refused and still refuses to return said sum of money. Wherefobe [demand for money judgment]. Complaints 475 Indemnity Form No. 365 Liquor Tax Certificate; Recovery by Surety Company From Undis- closed Principal of Amount Paid on Bond Given When Liquor Tax Certificate Issued in Name of Agent ^ I. That the plaintiff is a foreign corporation organized under and by virtue of the laws of the State of , and duly- authorized by law to issue surety bonds, and to do business in the State of , and is and was at the times hereinafter mentioned engaged in the business of issuing surety bonds in the State of II. That the defendant is a domestic corporation, organized under and by virtue of the laws of the State of , and is and was, at the times hereinafter mentioned, engaged in the business of manufacturing and selling beer, ales, etc., having its principal office and place of business at , III. That on or about the day of , 19 , the plaintiff, as surety, executed a bond to the people of the State of in the penal sum of $ . The condition of this bond was, that if a liquor tax certificate, which one J. M. K. had applied for, for the purpose of engaging in the business of traffick- ing in liquors at , East, in the city of , , was given unto J. M. K., the said principal, that he would not suffer or permit any gambling upon the licensed premises, and that he would not permit or suffer the same to become disorderly, and that he would not violate any of the provisions of the liquor tax law. A copy of this said bond is attached to this complaint and marked Exhibit "A," and hereby made a part hereof. That at or about the same time a liquor tax certificate was duly and properly transferred to the said J. M. K., authorizing him to engage in the traffic of liquors at the premises known as , East. Although the said J. M. K. was mentioned in the said bond as principal, and although the said liquor tax certificate was. upon its face, transferred or issued to him, author- 1 From City Trust S. D. & S. Co. v. American Brewing Co., 182 N. Y. 285. This appeal arose on an assessment of damages after judgment absolute had been ordered in favor of the plaintiff by the Court of Appeals. 476 Bradbury's Forms of Pleading Indemnity izing him to engage in the business of trafficking in liquors at the premises known as , East, in the city of , , he was only the agent and employee of the defendant, the A. B. Co., which was the real principal upon the said bond, and the owner of the said liquor tax certificate. The plaintiff alleges, upon information and belief, that at the said time, and at the time the said bond was violated, the A. B. Co. were doing business in that saloon and using the name of said K. for that purpose, and took out the said liquor tax certi- ficate in his name, but for its own use and benefit, and was the real principal. And said K. in all that business was merely its employee, and agent, which fact was undisclosed to the plaintiff and was concealed from it by the defendant and said K., at the time the plaintiff executed said surety bond as above stated. That as soon as the plaintiff discovered that the defendant was the principal, and the real party in interest instead of K., it demanded of the defendant that it assume the defense of the ac- tion hereinafter referred to and offered to give it control of said litigation, which demand and offer were refused. That at the time the said bond was made, and the liquor tax certificate trans- ferred to the said K., and during all the times hereinafter men- tioned, the said defendant, the A. B. Co., owned the lease of the store , East, where the liquor business was conducted, and owned all the stock of goods therein. It owned all the fix- tures, and employed the said J. M. K., at the weekly 'wage of $12 per week, to manage this said saloon for it. It paid all the expenses of running the said place, furnished the beer to the said saloon, paid for the transfer of the license to said K., and paid this defendant to become surety upon the said bond, and, when- ever the receipts of the business carried on were not sufficient 'to pay the expenses, the B. Co., furnished whatever money was needed for that purpose. That in the said premises a nickel-in-the-slot machine was maintained, the receipts of which machine went to the said de- fendant, the A. B. Co., and which machine was kept upon said premises by the direction and with the knowledge of the defend- Complaints 477 Indemnity ant. That on or about the day of , 19 , H. L., the State Commissioner of Excise of the State of , commenced an action against J. M. K. and the City Trust, Safe Deposit & Surety Co., of , to recover the penal sum of the said bond, on the ground that there had been a breach of the condition of the bond, and that the said K. had maintained and suffered to be maintained upon the said Ucensed premises a nickel-in-the-slot machine, which was a gambling device upon which people did game and play for money by chance. That the said K. put in an answer in said action through W. & H., attorneys and counselors of this court, who were at that time the attorneys for the defendant, the A. B. Co., and retained by it to defend said action for K. That this plaintiff put in an answer through J. V. V. & Sons, its attorneys. That the said action was tried, and the said attorneys of the defendant, W. & H., appeared for said K. and defended the action for him entirely without expense to the said K. The jury brought in a verdict in favor of the plaintiff and against these said defendants in the sum of $ . That thereafter, a motion was made for a new trial, which was denied, and this plaintiff thereupon appealed to the Appellate Division of the Supreme Court from the said order. The said judgment was affirmed on appeal, and thereupon judgment was entered against this plaintiff for the sum of $ , costs and dam- ages, in the office of the clerk of the county of , on or about the day of , 19 . That on or about the day of , 19 , this plain- tiff notified defendant that it would look to it for the payment of any judgment which it might be compelled to pay in this action, and for the costs and expenses of the defense of this litigation, and of the appeals. Thereafter, this plaintiff took an appeal from the said judgment, to the Court of Appeals. The said appeal was argued and the judgment appealed from was affirmed by the Court of Appeals, and judgment was entered against this plain- tiff for the sum of $ costs, in the office of the clerk of the county of on or fibout the day of , 19 . 478 Bradbury's Forms of Pleading Indemnity This plaintiff paid, on the day of , 19 , the sum of $ , the amount of the judgments, with interest, in satisfaction of these two said judgments. It has paid the sum of $ , expenses and costs of defending this htigation, and of preparing for, and arguing its said appeals. Wherefore [demand for money judgment]. Form No. 366 Discharge From Liability of One Principal; Consent Thereto by One Surety; Infringement of Patent ^ I. That prior to the day of , 19 , there was a certain suit pending in the Circuit Court of the United States for the southern district of , wherein the said W. W. E. was complainant and one J. W. H., W. L. M. and P. H. were defendants, which suit was brought to restrain the infringement of certain letters patent of the United States for an improvement in preparation of pease, being for certain goods, to wit, as an article of manufacture, cooked and flattened pease, and to re- cover the defendant's profits and said complainant's damages by reason of such infringement, and that in said suit prior to said last-mentioned date an order was made temporarily enjoining the said defendants therein from the said manufacture and sale of said goods, and requiring them to show cause why the said injunction should not be continued; That on the return of the said order to show cause, a further order was entered in' the said suit directing that the injunction contained in the said order to show cause be continued, that a preliminary injunction issue against the said defendants therein, restraining the said manu- facture unless the said defendants, "within five days of the serv- ice of a copy of said order, execute, acknowledge and file with the clerk of the said United States Circuit Court their bond or undertaking, with two sufficient sureties, to be approved by a judge of the court, for the sum of $ , conditioned for the payment of whatever might be ultimately recovered by ^ From Everett v. Mitchell, 23 App. Div. 332; 48 Supp. 303; in which thie complaint was sustained on demurrer, Complaints 479 Indemaity them for such goods thereafter manufactured or sold by the said defendants therein, calculating for the purpose of said security upon the basis of the royalty mentioned in a certain license there- tofore granted to the defendant, P. H., which had been referred to in the affidavits on said motion, to wit, the sum of five [5] cents, for each bushel of sixty pounds of said goods so manufactured. That in compliance with the requirements of said order as afore- said, the said defendant herein, G. H. B. M. and C. F. N., together with said J. W. H., W. L. M. and P. H., duly executed and filed with the clerk of said Circuit Court in his office in the post office building, in the said city of , their certain joint and several bond or undertaking, a copy of which is hereto annexed, marked "A," and hereby made a part of this complaint. The condition of said bond or obligation in the sum of $ was such that if the above-named J. W. H., W. L. M. and P. H. should in said suit then pending in said United States Circuit Coui;t, pay to the complainant therein, this plaintiff, whatever sum of money might ultimately be recovered therein for said goods thereafter manufactured or sold by said defendant or any of them in said suit in said United States Circuit Court, calculated on a basis of a royalty of five [5| cents for each bushel of sixty pounds of said goods so manufactured, then such bond or obli- gation to be void, otherwise to remain in full force, as by said bond or obligation, reference being thereunto had, will more fully and at large appear. II. That thereafter proceedings were duly had in said suit in the United States Circuit Court, and the complainant therein, the plaintiff herein, ultimately recovered therein against the said J. W. H. and W. L. M., jointly and as copartners under the firm name of H. & M., judgment for the sum of $ as damages because of their said infringing manufacture and sale of said goods, of which goods not less than 13,017 bushels of sixty pounds each had been so manufactured or sold by the said H. & M. as such copartners subsequently to the said day of , 19 , and the said complainant in said suit in said United States court did likewise recover therein against the said 480 Bradbury's Forms of Pleading Indemnity J . W. H., individually, a further judgment for the sum of $ as damages because of his said infringement, manufacture and sale of said goods, of which not less than 37,310 bushels of sixty pounds each have been so manufactured or sold by the said J. W. H., subsequently to the said day of ■ , 19 . III. That prior to the recovery of the said judgments, sub- sequently to the giving of the said undertaking as aforesaid, an agreement in writing, dated the day of » 19 , was duly entered into and executed by and between the said W. L. M., W. W. E. and J. H., Jr., solicitor for complainant in the said suit in the United States court, and the above-named defendant, G. H. B. M., wherein and whereby it was in substance agreed that the said W. L. M. should, in various payments as therein described, pay to the said complainant, W. W. E., the sum of I on or before the day of » 19 , to be accepted by said W. W. E. in full liquidation and discharge of all claims which he had against the said M. in said action over and above the amount of $ secured by the said bond or undertaking, and that the said bond was to remain in full force and effect the same as though the last-mentioned agreement had not been made as to any and all liability individually or otherwise as to the defendant, J. W. H., which at the time of the said last-mentioned agreement, or thereafter, might arise or accrue in the above-entitled suit in the United States court, all of which will more fully and at large appear by reference to the said agreement, ready at all times to be produced in court, and a copy of which is hereto annexed marked "B," and made a part of this complaint. IV. That after the execution of the said last-mentioned agree- ment the said W. L. M. paid to the said W. W. E. the said sum of $ and thereby became discharged from all further lia- bility under the said judgment, and the said defendant herein, G. H. B. M., became likewise discharged of all liability upon his said undertaking as to any goods manufactured by the said W. L. M. Tliat subsequently to the execution of the said undertaking Complaints 481 Indemnity by the said defendant, G. H. B. M., as aforesaid, the said J. W. H. individually manufactured or sold not less than 37,310 bushels of sixty pounds each of the aforesaid goods so manufactured, but that neither the said J. W. H., the said W. L. M. or the afore- said P. H. have paid to the said W. W. E. any sum whatever on account of the said judgments or on account of the said goods, excepting that the said W. L. M. has paid to the said W. L. E. the aforesaid sum of $ upon the conditions and terms of the agreement "B" aforesaid. That no settlement what- soever by said E. of his said claim has been made, and payment of the sum of $ pursuant to the terms of the said under- taking has been duly demanded from the said G. H. B. M., who refused and still refuses to pay any part thereof. Wherefore [demand for money judgment]. "A." Know All Men by These Presents, That we, J. W. H., W. L. M., P. H., G. H. B. M. and C. F. N., all of the city of , in the county and State of , are held and firmly bound unto W. W. E. of the city of , in the State of , in the sum of $ , lawful money of the United States, to be paid to the said W. W. E., his executors, administrators or as- signs, for which payment well and truly to be made we hereby jointly and severally bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, dated the day of , 19 . The condition of the above obligation is such that if the above- bounden J. W. H., W. L. M. and P. H. shall in a certain suit now pending in the Circuit Court of the United States for the southern district of , wherein the said W. W. E. is complainant and the said J. W. H., W. L. M. and P. H. are defendants, pay to the said complainant whatever sum may be ultimately re- covered by him therein ifor goods hereafter manufactured or sold by said defendants, or any of them, calculated on the basis of a royalty of five cents for each bushel of sixty pounds of said goods Vol. 1—31 4S2 Bradbury's Forms of Pleading Indemnity SO manufactured, then the above obligation shall be void; other- wise to remain in full force. [Signed.] "B." It is stipulated and agreed by the undersigned, J. H., Jr., as solicitor for W. W. E., the plaintiff above named, and the said W. W. E., W. L. M., one of the above-named defendants, and G. H. B. M. and C. F. N., as follows : Whereas, it appears that the above-named defendants, J. W. H. and W. L. M., are, as copartners, indebted to the plaintiff in a sum not less than $ , and probably considerably in excess thereof, on the causes of action herein, and said M. wishes to avoid further litigation, and to come to terms for his own per- sonal and individual liabilities herein; and now, on consideration of the execution of this agreement, and the sum of one dollar each to the other in hand paid, the receipt whereof is hereby acknowledged. It is agreed as follows : That on payment of the sum of I in cash by the said W. L. M. to the complainant W. W. E., or his counsel and attorney, as follows, at the office of J. H., Jr., No. , street, : $ in cash on the execution hereof, the receipt of which is hereby acknowl- edged, and the sum of $ on or before * , 19 , and the balance of $ on or before the day of , 19 , complainant W. W. E. will accept the said sum in full Uquidation and discharge of all claims which he has against the said M. in this action over and above the amount of $ secured by the bond or undertaking hereinbefore given herein by G. H. B. M. and C. F. N., as bondsmen, as by reference to the said bond will more fully appear; the said bond to remain in full force and effect the same as though this agreement had not been made, as to any and all liability, individually or otherwise, of the defendant, J. W. H., which has and may hereafter arise or accrue in the above-entitled action, and upon a settlement Complaints 483 Indemnity satisfactory to said E. of his said claim said E. hereby agrees upon such settlement to release and discharge said bondsmen. It is further agreed by and between the parties hereto that in the event of the said M. failing to carry out any of the terms of this agreement and failing to pay the sums of money above mentioned and at the times set forth, the said bond shall remain in full force and effect as if this agreement had not been made. [Signed.] 481 Bradbury's Forms of Pleading Guaranty CHAPTER XV GUARANTY FORMS NO. PAGE 371. Payment of rent 484 372. Payment of royalties on patent 486 373. Payment of note 487 374. Agreement by dealer in commercial paper to collect note without cost to plaintiff 489 375. Performance of contract with singer 492 376. That agent of insurance company would pay over moneys collected 495 377. Underwriter's agreement with trust company for construction of hotel 497 378. Pj,ymeiit of dividends on stock of corporation 505 379. Mortgage given to secure note; foreclosure of mortgages with demand for deficiency judgment against guarantor 508 380. Payment of bond secured by mortgage; action against guarantor to recover deficiency after foreclosure of mortgage 515 381. Failure of guarantor to defend against principal debtor when offered opportunity so to do 519 382. Sale of machinery; purchaser becomes insolvent so no action is brought against him 520 383. Conditional guaranty 522 384. Loan of money 535 385. Purchase of merchandise 536 386. To see that seller is paid * 537 Form No. 371 Payment of Rent ^ Supreme Court, county. John II. Wood, Plaintiff, against James W. Husted, Defendant. The plaintiff complaining of the defendant, alleges: ' From Wood !). Husted, 83 App. Div. 174; 82 Supp. 631; in which this com- plaint was sustained on demurrer. Complaints 485 Guaranty I. That the plaintiff is a resident of the city, county and State of , and that the defendant is a resident of the county of and State of II. That on or about the day of , 19 , one J. C. M. by agreement in writing with this plaintiff hired of the plaintiff, and the plaintiff leased to the said J. C. M., all the cer- tain tract or parcel of land [insert description], at the yearly rent or sum of $ , to be paid in equal monthly payments in advance. III. That the defendant, J. W. H., in consideration of the aforesaid letting and of one dollar paid by the plaintiff, as security for the payment of the said rent, then and there subscribed and delivered to the plaintiff an agreement in writing of which the following is a true copy, to wit : "In consideration of the letting of the premises within men- tioned to the within named J. C. M., and the sum of one dollar to be paid to the said party of the first part, I do hereby cove- nant and agree to and with the said party of the first part above named, and his legal representatives, that if default shall at any time be made by the said J. C. M. in the payment of the rent and the performance of the covenants contained in the within lease on his part to be paid and performed that I will well and truly pay the said rent or any arrears thereof that may remain due to the said party of the first part and also all damagcjg that may arise in consequence of the nonperformance of said covenants or either of them without requiring notice of any such default from said party of the first part. " Witness "my hand and seal this day of in the year 19 . " [Signed.] " IV. That the said J. C. M. has not paid the sum of rent which was due for said rent from , 19 , to , 19 , inclusive, and which amounts according to the provisions of the said lease at the date thereof to the sum of $ V. That by reason of the premises as aforesaid there hath accrued to the plaintiff against the defendant a cause of action 486 Bradbury's Forms of Pleading Guaranty to recover the said sum of I , and that the defendant has not paid the sum or any part thereof, all of which sum is now due and owing to the plaintiff from the defendant herein. Wherefork {demand for money judgment]. [Signature and office address of attorney and verification.] Form No. 372 Payment of Royalties on Patent ^ I. That on or about , 19 , the S. E. C. Co., a corpora- tion organized and existing under the laws of the State of , made and entered into a contract. Exhibit "A," hereto annexed and made a part of this complaint, in the city of with H. C. II. That the defendant guaranteed the payment of the weekly royalties therein mentioned by the agreement marked Exhibit "B," made a part of this complaint, and covenanted and agreed to pay the same if not paid by said company. III. That under said contract there became due to said H. C, or his assigns, on the day of , 19 , for royalty guaranteed by this defendant, the sum of $ IV. That before this suit was brought said royalty mentioned in said contract was duly assigned by assignment in writing under seal by H. C. to this plaintiff. V. Tha^plaintiff has demanded of defendant the payment of said weekly royalty guaranteed by him and defendant has neg- lected to pay the same. VI That plaintiff has demanded the payment of said royalty of said S. E. C. Co. which neglected to pay the s&,me, and she has notified the defendant of such failure and neglect to pay the same. VII. That said H. C. has performed all of the conditions under said contract on his part to be performed. Wherefore [demand for money judgment]. ^ From Creamer v. Mitchell, 162 N. Y. 477; in which the plaintiff succeeded. Complaints 487 Guaranty- Form No. 373 Payment of Note ^ I. Upon information and belief that the G. F. Co. of , one of the defendants herein, is a foreign corporation, duly incorporated under and by virtue of the laws of the State of II. Upon information and belief that on or about the day of , 19 , in the city of , one G. W. G. made and delivered to W. J. H. his certain promissory note in writing, dated , , , 19 , whereby he promised to pay to the order of W. J. H., four months after date, $ ,attheS. N. B., , , for value received, a copy of which note is hereto annexed, marked Exhibit "A," referred to herein and made a part of this complaint. III. Upon information and belief and subsequent to the mak- ing and delivery of said note by the said G. W. G. to the said W. J. H., herein and before maturity thereof, the said G. F. Co. of , on or about the day of j 19 , for a valuable consideration and [for the purpose of giving credit to the said note and for the purpose of guaranteeing and assuring the payment thereof to the holder thereof] made, executed and delivered to W. J. H. its written guarantee of payment, wherein and whereby it certified that there had been deposited with it, the said G. F. Co. of , satisfactory collateral of $ , and that a payment of $ without interest to the holder thereof, by W. J. H., in four months from ,19 , at the S. N. B. of , was thereby guaranteed by the defendant, the said G. F. Co. of , , a copy of which guaran- tee of payment is hereto annexed, marked Exhibit "B," referred to herein, and made a part of this complaint. IV. Upon information and belief that subsequent thereto and before the maturity thereof the said note, together with the said written guarantee of payment of the said G. F. Co. of ^ From Herrick v. Guarantors' Finance Co., 58 App. Div. 30; 68 Supp. 660; in which a judgment in favor of the plaintiff was affirmed. 488 BradbuSy's PoUMg of Pleading Guaranty were for good and valuable consideration transferred and de- livered to J. H. H. and E. B. C, who were then and are still copartners doing business at street, in the city of , under the firm name and style of J. H. H. & Co. V. Upon information and belief that said J. H. H. and E. B. C, as J. H. H. & Co. as aforesaid, relying on the faith and credit of the said note, by the written guarantee of payment as afore- said by the said G. F. Co. of , the defendant herein, were induced to and did buy for good and valuable consideration, as aforesaid, the said promissory note and written guarantee of the G. F. Co. of before maturity and thereby became the holders and owners thereof before maturity for good and valuable consideration. VI. Upon information and behei that at maturity thereof the said promissory note was duly presented for payment at the S. N. B. of the city of and payment thereof was refused, whereupon same was duly protested for nonpayment and notice of protest was duly made and given to the maker, G. W. G., and the indorser, W. J. H., and also to the G. F. Co. of VII. Upon information and belief that at maturity of said note and of the guarantee of payment by the G. F. Co. of , payment thereof was also duly demanded of the G. F. Co. of and' payment thereof was refused. VIII. That thereafter the said note, together with the said written guarantee of payment of the said G. F. Co. of" , were for value transferred and delivered to the plaintiff herein who is still the holder and owner thereof. IX. That the said note and written guarantee as aforesaid remain unpaid and there is still due and owing to the plaintiff from the defendant, the G. F. Co. of , , on account thereof, the sum of $ , with interest thereon from , 19 , together with the sum of $ paid on account of protest fees besides the costs of this action. Wherefore [de7nand for money judgment]. Complaints 48^ Guaranty Form No. 374 Agreement by Dealer in Commercial Paper to Collect Note Without Cost to Plaintiff ^ I. That he resides in the city of , county of and State of II. That on or about the day of , 19 , A. J. D., J. W. C, G. W., J. D. M., T. H. M., M. B. A., R. T. H., M. G., J. W. W., N. C. S. 0. and H. Co. made and gave their promissory note, dated on said day at the city of in the State of , for the payment of $ , bearing inter- est at the rate of eight (8) per centum per annum, payable six months after date, to wit, the day of , 19 . III. That by subdivision one [1] of sec. one [1] of chap, one hundred and ninety-seven [197] of the laws of the State of Massachusetts, enacted November 19, 1881, to take effect Feb- ruary 1, 1882, and entitled, "An Act for Consolidating and Arrang- ing the General Statutes of the Commonwealth," it is provided as follows: That actions of contract founded upon contracts or liabilities not under seal, express or implied, except such actions as are brought upon judgments or decrees of courts of record of some other State of the United States, shall be commenced within six [6] years next after the cause of action accrues and not afterwards; that by sec. seven [7] of the same chapter and same act it is provided that personal actions on contracts not limited by the preceding sections of said chapter of said act, or by any other law of the commnowealth, shall be brought within twenty [20] years after the cause of action accrues; that by sec. eleven [11] of the same chapter and same act it is provided that if at the time when a cause of action mentioned in the same said chapter accrues against a person he is out of the common- wnalth. the action may be commenced within the time limited 1 From Phillips v. Lindley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N. y. 606; in which the plaintiff succeeded. At the trial the complaint was amended to conform with the proof so as to allege, "That the defendant simul- taneously with the execution and delivery of said note for good and valuable consideration, agreed in writing to collect the amount of said note when the same became due." [See paragraph IV of the complaint.] 490 Bradbury's Forms of Pleading Guaranty therefor after he comes into the commonwealth, and if after a cause of action has accrued the person against whom it has ac- crued is absent from and resides out of the commonwealth, the time of his absence shall not be taken as part of the time limited for the commencement of the action, provided that no action shall be brought by any person whose cause of action has been barred by the laws of any State, Territory or country while he has resided therein; that the defendant was out of and absent from said State and resided elsewhere when this action accrued and that this cause of action has not been barred by the laws of any State, Territory or country while the plaintiff has therein resided; that by sec. three [3] of chap, seventy-seven [77] of the same act it is provided that it shall be lawful to pay, re- serve or contract for any rate of interest, provided the agree- ment therefor is in writing. That the aforesaid law was ever since its said passage and now is in full force and effect in said State. IV. That the defendant simultaneously with the execution and delivery of said note for good and valuable considerations guaranteed in a writing signed by himself the ultimate payment of the sum named therein, together with said interest and all law- ful charges, or so much thereof as should be due and owing. V. That on or about the day of , 19 , and just before the maturity of said note, the defendant, acting for and in behalf of the makers of said note, and also acting in his own behalf as guarantor, requested in a writing signed by him- self, and dated at the city of , in the State of , a renewal of the same the said note, and thereafter, and on or about the day of , 19 , and pursuant to and upon said request a renewal thereof was accepted and granted at the same rate of interest and for a period of ninety [90] days from the day of , 19 , and said acceptance was made in the city of , in the State of VI. That by sees. 4979 and 4980 of the laws of the State of Ohio, passed the eleventh day of March, 1853, and entitled: "An Act to Establish a Code of Civil Procedure," it is provided Complaints 491 Guaranty that an action upon a specialty, or an agreement, contract or promise in writing may be brought at any time within fifteen [15] years after the cause of action accrues. That by sec. one [1] at page 91 of vol. 66 of the Laws of Ohio, passed the fourth day of May, 1869, and entitled : "An Act to amend an act fixing the rate of interest," it is provided that the parties to a promissory note or other instrument in writing for the forbearance or payment of money at any future time may stipulate therein for the payment of interest upon the amount thereof at any rate* not exceeding eight [8] per centum per annum; that the aforesaid laws were ever since their said passage and now are in full force and effect -in said State. VII. That the said A. J. D., J. W. C, G. W., J. D. M., T. H. M., M. B. A., R. T. H., M. G., J. W. W., N. C. S. 0. & H. Co. did not pay said note as renewed at maturity thereof, and that pay- ment thereof by said makers was by plaintiff requested and by them refused, that the plaintiff thereafter demanded payment from the defendant of said note, with interest, and payment thereof was by the defendant refused and neglected; that there- after and during the year of 19 , the plaintiff by his attorney commenced an action on said note as renewed in the Court of Common Pleas in and for the county of , State of , a court of competent jurisdiction, against said A. J. D., J. W. C, G. W., J. D. M., T. H. M., M. B. A., R. T. H., M. G., J. W. W., N. C. S. 0. and H. Co., and on or about the day of , 19 . , a judgment was duly given in said court in said action in favor of the plaintiff and against said A. J. D., J. W. C, G. W., J. D. M., T. H. M., M. B. A., R. T. H., M. G., J. W. W., N. C. S. 0. and H. Co. for the sum of $ , to- gether with costs and increased costs for the sum of $ VIII. That by sec. two [2] at page 91 of vol. 66 of the laws of the State of Ohio, passed the fourth day of May, 1869, and entitled: "An Act to amend an act fixing the rate of interest," it is provided that the rate of interest to be computed upon all judgments, decrees or orders shall be at the rate fixed in the in- strument upon which the same were rendered; that the afore- 492 Bradbury's Forms of Pleading Guaranty said law was ever since its said passage and now is in full force and effect in said State. IX. That on or about the day of > 19 , plaintiff by his attorney caused an execution upon said judg- ment to be issued and delivered to the sheriffs of , and counties, State of , where the said A. J. D., J. W. C, G. W., J. D. M., T. H. M., M. B. A., R. T. H., M. G., J. W. W., N. C. S. 0. and H. Co., then were supposed to have property, and that plaintiff used due diligence in every lawful way to recover said sum from said A. J. D., J. W. C, G. W., J. D. M., T. H. M., M. B. A., R. T. H., M. G., J. W. W., N. C. S. 0. and H. Co., but without avail, and said judgment remains unsatisfied and unpaid, of all which the defendant has had due notice. X. That payment of said judgment, with costs and interest thereon, has been duly demanded of defendant, and that he has paid no part of same. XI. That by reason of the premises the defendant is indebted to the plaintiff in the sum of $ , with interest thereon at the rate of eight per cent [8%] per annum from the day of , 19 , no part of which has been paid, although payment thereof has been demanded. Wherefore [demand for money judgmsnl]. Form No. 375 PeTformance of Contract With Singer ^ I. That on or about the day of , 19 , the plaintiff and one R. E. J. entered into a written contract, and the defendant, in consideration of the plaintiff entering into said contract with the said R. E. J., guaranteed the performance of said contract on the part of the said J. to be performed. A copy of the said contract and guarantee is marked Exhibit "A," and is annexed hereto and made a part hereof, as if fully set forth herein. 1 From De Reszke v. Duss, 99 App. Div. 353; 91 Supp. 221; in which this complaint was sustained on demurrer. Complaints 493 Guaranty II. On information and belief, that plaintiff was always willing, ready and able to perform all parts of said contract by him to be performed. III. On information and belief, that the said R. E. J. failed to perform his part of said contract, Exhibit "A," in that on or about ,19 , he did not deposit in the Bank of New Amsterdam, in the city of , the sum of $ to the credit of the plaintiff, pursuant to the provisions of said contract contained in paragraph nine thereof; nor did he, on or about the day of , 19 , or at any other time-, deposit any sum whatever in said bank, or any other bank, pur- suant to said contract. Exhibit "A." IV. On information and belief, that prior to the day of ) 19 , the said R. E. J. repudiated the said contract. Exhibit "A," and notified the plaintiff that he did not intend to' perform the said contract, and that he had abandoned and in- tended to abandon the tour mentioned in said contract, and the said R. E. J. did thereafter actually abandon the tour mentioned in said contract and did not pay the plaintiff any sum of money, which he agreed to pay, as provided for in paragraphs first, second and third of said contract; nor did the said R. E. J. per- form or attempt to perform any of the other provisions of the said contract by him agreed to be performed. V. That after the said R. E. J. had notified the plaintiff that he did not intend to perform the said contract, and after the said R. E. J. had abandoned the said contract as aforesaid, the plain- tiff demanded of the defendant that the said defendant pay the plaintiff the damages which the plaintiff had sustained by reason of the aforesaid breach of contract on the part of the said R. E. J., but the defendant refused and has failed to pay the same. Wherefore [demand for money judgment]. Exhibit "A." Memorandum of Agreement, entered into this day of , 19 , between R. E. J., manager ojf the D. M. 0. 494 Bradbury's Forms of Pleading Guaranty of the city, county and State of , party of the first part, and Mr. E. D. R,, of the same place, party of the second part. Whereas, the party of the first part has arranged a concert tour of the D. M. 0., to begin on or about , 19 , and to extend |for a period of at least five weeks, or until or , and whereas the party of the first part is desirous of engaging the services of the party of the second part as a soloist for the said tour; Now, Therefore, in consideration of the sum of one dollar by each of the parties to the other in hand paid, the receipt whereof is hereby acknowledged, and of the covenants and con- ditions herein contained, the parties to these presents do cove- nant and agree with each other as follows : I. The party of the first part engaged the services of the party of the second part as soloist for the concert tour of the D. M. 0. to begin on or about , 19 , for a period of five weeks from the opening of said tour, or until or The party of the first part shall pay unto the party of the second part, the sum of $ for his services as such soloist, at each concert at which he shall sing, it being understood that the said party of the second part shall appear and sing in four [4] or more concerts in each week of the period of his services. II. The party of the first part shall pay all railroad charges and fares for the transportation, during the said concert tour of the party of the second part and also of his secretary and valet, and the said party of the first part further covenants that he will furnish to the party of the second part proper accommodations in the private car of Mr. D., should such a car be used on s^id tour. III. It is agreed that the aforesaid sum of $ is pay- able to the party of the second part at the termination of each concert in which he shall appear and sing. IV. The party of the second part agrees to hold himself in readiness to give his services as soloist during the period herein- before mentioned, and to appear and sing in the requisite num- Complaints 495 Guaranty ber of concerts, as herein set forth, and, further, to accept the compensation and terms herein provided. V. The party of the second part agrees that at each concert in which he appears, as aforesaid, he shall render two numbers on the programme. VI. [Canceled.] VII. All of the hotel expenses and expenses other than those hereinbefore specified, incurred by the party of the second part, shall be borne and paid for by the party of the second part. VIII. In consideration of the premises and of the engagement of the services of the party of the second part herein, the said party of the second part herewith covenants and agrees that upon the termination of the tour, he will appear and sing at one con- cert without any charge to the party of the first part of any kind whatsoever, time and place to be designated by the party of the first part. IX. It is further agreed and understood that on or- about , 19 , the party of the first part will deposit in the Bank of New Amsterdam in the city of ' , the sum of $ to the credit of the party of the second part, which is to be held in trust by the said bank and to be paid over to the party of the second part by the said bank for the five final concerts in which the party of the second part will sing under this contract, but in the event that the party of the second part fails to fulfill his part of this agreement, the said $ is to revert back to the party of the first part. In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written. [Signed.] Form No. 376 That Agent of Insurance Company Would Pay Over Moneys Collected ^ I. The plaintiff, the T. I. Co., is, and was at all the times here- inafter mentioned, a foreign corporation created by and under ^From Travelers' Ins. Co. v. Stiles, 82 App. Div. 441; 81 Supp. 664; in which judgment was rendered in favor of the plaintiff upon a submission of a controversy. 496 Bradbury's Forms of Pleading Guaranty the laws of the State of , and is, and was during all said times, engaged in the business of life, accident, health and casu- alty insurance, and is, and was at all times aforesaid, duly au- thorized to transact said business in the State of II. That on or about the day of , 19 , an agreement was entered into between the plaintiff and one J. B. P. whereby, in consideration of certain promises and agreements made by said J. B. P. in his written application therefor, the said P. was appointed agent for the plaintiff for the city of in the State of , and vicinity. The agreement under which the said P. was thus appointed was prepared by the T. I. Co. and is made a part of this agreed statement of facts and is hereto annexed and marked Exhibit "A." III. At the same time, and on or about the day of ,19 , M. D. S. and R. E. P., defendants herein, did, in accordance with the terms of the aforesaid agreement [Exhibit "A"], the terms of which were known to and understood by them, make, execute and deliver to the plaintiff herein the bond which is hereto annexed and made a part of this statement of facts and marked Exhibit "B." The said bond was prepared by the plaintiif herein. IV. Thereupon, the said J. B. P. became the agent of the plain- tiff in and for the city of and vicinity, and at his own expense rented and maintained a suitable office in a business building in the central part of the said city of , which he continued thus to maintain until his relations with the com- pany ceased. V. That on or about the day of , 19 , said J. B. P., at the request of the plaintiff, signed and delivered to the plaintiff a written stipulation, a copy of which is hereto an- nexed and marked Exhibit "C" and made a part of this state- ment of facts, the terms whereof were not communicated to M. D. S. or R. E. P., who were unacquainted with its terms and had no notice of its existence until demand was made upon them in the month of , 19 , for payment of the indebtedness of the said J. B, P. hereinafter referred to, and that after the Complaints 497 Guaranty day of , 19 , the guaranty of $ per month was in fact withdrawn. VI. That thereafter, and during the time that he continued to act as the agent for the plaintiff as aioresaid, the said J. B. P. did not pay over to the plaintiff, and never has paid over to it, all moneys received, or held on its account, but did collect and receive in the course of his employment as the plaintiff's agent, and on its account, over and above his commissions as agreed, the sum of $ , which sum, although duly demanded of him, he failed to render up and pay to the plaintiff herein, and which sum is still due and owing to this plaintiff. That prior to the day of , 19 , the plaintiff duly notified these defendants of the said default on the part of the said P., and made due demand upon them for the payment of said sum, and that the said sum has not been paid by the defendants. VII. The plaintiff .contends that it is entitled to collect and receive from these defendants the aforesaid sum of $ , with interest thereon from the day of j 19 , under the terms of the aforesaid bond hereto annexed and marked Exhibit "B," and the defendants on their part contend that they should not be required to pay said sum to this plaintiff inasmuch as the default on the part of the said P. to meet his obligations under his agreement with plaintiff occurred after the plaintiff's monthly guaranty of $ per month to the said P. had been withdrawn pursuant to the stipulation hereto annexed and marked Exhibit "C," which said controversy upon the fore- going agreed facts is hereby submitted to this court for its de- termination. Wherefore [demand for money judgment]. Form No. 377 Underwriter's Agreement With Trust Company for Construction of Hotel 1 I. That K. T. Co., the plaintiff above named, is a domrstic ^ From KJiickerbocker Trust Co. v. Garden, 113 App. Div. 825; 99 Supp. 620; in which this complaint was sustained on demurrer. Vol, 1—32 498 Bradbury's Forms of Pleading Guaranty corporation duly authorized to loan money on real and personal securities. II. That on or before the day of , 19 , the defendant entered into a certain agreement, bearing date the day of , 19 , as amended by a supplemental agreement dated , 19 , with the plaintiff and the B. C. Co., a corporation organized under the laws of this State, and certain other persons or corporations who were therein designated as underwriters. Copies of said agreement and supplemental agreement [except as to the signatures of subscribers other than this defendant] are hereunto annexed, marked Schedule "A" and Schedule " B," and hereby made a part thereof. III. That agreements, counterparts of said Schedules "A" and "B," whereunder the bonds therein described to the amount of $ were underwritten by underwriters who were ac- cepted by this plaintiff, were duly delivered to plaintiff prior to the making of the loan in said agreement provided for. IV. That on or about the day of , 19 , and from time to time thereafter, the plaintiff loaned and advanced upon the securities and guaranties in said agreements provided for, to the said B. C. Co., various sums, amounting in the aggre- gate to the sum of $ , payable, with interest at six per centum per annum, on the day of , 19 . That the said loan was evidenced and further secured by the several promissory notes of the said B. C. Co., duly made and delivered to the plaintiff at or about the respective dates on which the aforesaid sums, aggregating $ , were respec- tively advanced; said notes and interest all being payable on the day of , 19 . V. That the aforesaid loan of I to the B. C. Co. was seventy-five per cent of the amount agreed to be paid by all the underwriters under the aforesaid agreements, and that there had been deposited with the plaintiff, at or prior to the times such advances were made, the certain contracts assigned in blank, which in said supplemental agreements. Schedule "B," are de- scribed, and also the bonds by said agreements, Schedule "A," Complaints 499 Guaranty described and underwritten [or interim bonds representing the same] to the amount of $ , par value for each $ so advanced. VI. That in and by said agreement Schedule "A," as amended by its said supplemental agreement, Schedule "B," the defend- ant, in consideration of the making of the aforesaid loan by the plaintiff to said B. C. Co., agreed to purchase and take from said B. C. Co. its 4^% twenty-year consolidated mortgage gold bonds in said agreements described at the price of seventy-five per cent of their par value and accrued interest, to the amount set opposite his signature to said agreements, and guaranteed to the plaintiff the repayment of his pro rata proportion of the principal of said advances made by plaintiff to said B. C. Co., with interest thereon at the rate aforesaid. VII. That the amount, par value, of said bonds set opposite the defendant's signature to said agreement. Schedule "A," and which the defendant specified that he agreed to take and pay for, was $ , and the amount of cash set opposite the defendant's signature to said agreement, S&hedule "A," and which the defendant specified that he agreed to pay, was -S VIII. That, pursuant to the terms of said agreement. Schedule "A," this plaintiff reduced the amount of bonds which by the said agreement was specified that said defendant would take and pay for, from his said subscribed amount of $ , to the amount of $ , and reduced the amount of cash which said agreement specified that defendant would pay from his said subscribed sum of $ to the sum of % IX. That the 'pro rata proportion of the principal of said loan to said B. C. Co., the repayment of which was guaranteed by the defendant as aforesaid, amounts to % of principal, upon payment of which, with interest as hereinafter set forth, de- fendant is entitled to receive $ par value of said bonds; but defendant has made no payments whatever on account of the bonds that he is entitled to receive under said agreements nor on account of his said guaranty. X. That the plaintiff now holds, subject to the terms and con- 500 Bradbury's Forms of Pleading Guaranty ditions of defendant's said agreements, $ , par value of the aforesaid ^% twenty-year consolidated mortgage gold bonds, which plaintiff hereby offers to deliver to the defendant upon receiving from him full payment of defendant's said guar- anty. XI. That pursuant to the terms of the aforesaid agreements, the said B. C. Co. exercised its right thereunder to renew the aforesaid loan for a period of one year at the same rate of inter- est, and the plaintiff thereupon extended said loan to the day of , 19 . XII. That, pursuant to the terms of the aforesaid agreements, the plaintiff from time to time detached and collected the cou- pons on the bonds held by it, to wit : the coupons payable , 19 , and , 19 , and applied all interest so collected upon the interest due or to grow due upon the said loan, interest on said loan being thereby and by other cash payments made by said B. C. Co. paid to and including the day of , 19 . XIII. That on or about the day of , 19 , the repayment of the said loan with the balance of interest due thereon, was duly demanded of the said B. C. Co. by this plaintiff, but neither said loan and interest nor any part thereof was then nor has since been paid by said B. C. Co. XIV. That by reason of the matters aforesaid, there became and is now due to this plaintiff from this defendant the sum of $ , with interest from the day of , 19 , and the same has not been paid, nor any part thereof, although duly demanded. Wherefore [demand for money judgment]. Schedule "A." This Agreement, made this tenth day of November, 1902, between the Brunswick Construction Company, a corporation of the State of New York [hereinafter called the "Company"], a trust company to be. nominated by the company, which shall become a party hereto by executing this agreement [hereinafter Complaints 501 Guaranty called the "Trust Company"], and the several subscribers hereto [hereinafter called the "Underwriters"]. Whereas, the company proposes to acquire certain property in the block fronting on Fifth avenue, between Twenty-sixth and Twenty-seventh streets, in the city of New York, and to construct thereon a hotel, and to authorize an issue of $7,500,000 4J% twenty-year gold bonds secured by a consolidated mortgage constituting a lien upon the said property, subsequent only to a first mortgage of $4,000,000, for the retirement of which provi- sion shall be made by reserving $4,500,000 of said consolidated mortgage bonds, and it is desired to secure underwritings for at least $2,000,000 of the remaining $3,000,000 of said consoli- dated mortgage bonds and to secure a loan from the trust com- pany, all as herein provided : Now, Therefore, This Agreement Witnesseth, that the underwriters, in consideration of the premises and of the sum of one dollar to each of them paid, the receipt of which is hereby acknowledged, hereby severally but not jointly agree with the company to take and pay for, as hereinafter provided, the amount of said consolidated mortgage bonds, set opposite their respective signatures hereto, or such reduced amount as shall be allotted to them as herein provided, at the price of 75% of their par value, together with accrued interest, upon the following terms and conditions : l.This agreement shall become binding when the amount of at least $2,000,000 of such bonds shall have been underwritten hereunder by accepted underwriters, and when the trust com- pany shall have agreed to make the loan herein provided for. 2. The trust company, by the execution of this agreement, ^agrees to advance to the company the amount agreed to be paid by the underwriters as above provided, or such part thereof as shall be called for from time to time by the company, for one year from the date of the first advance, with interest at 6% and a commission to be paid by the company of such amount as shall be agreed upon between the company and the trust company, the company to have the right to renew said loan for a further 502 Beadbdry's Forms of Pleading Guaranty period of one year at the same rate of interest without further commission. Such advances shall be made in such amounts as are called for by the company, provided that the bonds under- written [or interim bonds representing the same] to the amount of 11,000 for each $750 so advanced, shall be deposited with the trust company at or prior to the time such advances are made, and the underwriters hereby authorize and direct the company, when and as such bonds are issued by it, to make delivery thereof to the trust company, to be held and disposed of by it as herein provided, and the company hereby agrees to make such delivery. 3. The underwriters hereby severally but not jointly guarantee to the trust company the repayment of a jyro rata proportion of the principal of said advances with interest at the rate aforesaid, but payments to the trust company on account of such respective guarantees shall be applied upon the respective subscription hereunder, it being expressly understood and agreed that in no event shall any underwriter be called upon to pay any sum in excess of the amount set opposite his signature hereto, with in- terest, or in case his underwriting shall be reduced, the amount of his accepted underwriting, with interest. 4. The company shall have the right at any time or from time to time, prior to the maturity of such loan, to sell the bonds so deposited, or any part thereof, and the trust company shall de- liver such bonds, or any part thereof, to or upon the order of the company, upon receipt of the amount certified, in writing, by the president [or vice president] and treasurer of the company to be the net purchase price of the bonds so delivered, which amount shall in no case be less than 75% of the par of the bonds so delivered, with accrued interest. 5. The proceeds of all sales of bonds received by the trust com- pany when and so often as such proceeds shall amount to 125,000, shall be credited upon the said loan, and the amount of each such credit shall be applied pro rata toward the reduction of the under- writers' several guarantees. Any surplus remaining after the full payment of such loan, with interest, shall be paid over to the company by the trust company. Complaints 503 Guaranty 6. The trust company may from time to time detach and col- lect the coupons on the bonds held by it, applying all interest so collected upon the interest due or to grow due upon the said loan. 7. Any underwriter who, at the maturity of said loan, shall make full payment of his guarantees hereunder, shall be entitled to receive from the trust company a pro rata proportion of the bonds delivered to it remaining unsold. 8. In case any underwriter shall make default in the payment of the amount guaranteed by him, or any part thereof, the trust company may, without notice and in such manner as it may determine, either at broker's board or public or private sale, sell the bonds to which such underwriter would be entitled in case he makes full payment, applying the net proceeds to the pay- ment of the guarantee of such defaulting underwriter, and ac- counting to such underwriter for the surplus, if any. Upon any such sale, the trust company may become the purchaser of such bonds and hold the same thereafter, not as pledgee, but in its own right and absolutely. In case of any deficiency after such sale, the underwriter, for whose account such sale may have been made, promises to pay to the trust company the amount of such deficiency forthwith, with legal interest. 9. This agreement is made and is to be performed in the State of New York. It may be signed in any number of counterparts with the same effect as if the signatures hereto were upon one instrument, and shall bind and benefit the respective successors, administrators, executors and assigns of the parties hereto. 10. It is agreed that the recitals herein are made by the com- pany and the underwriters, and that the trust company is not to be responsible therefor or for any informality in or invalidity of said bonds or mortgage, and that no underwriter is to be re- leased from his guarantee because of any such informality or invalidity. 11. It is agreed that the trust company may reject any under- writefs or reduce his underwri tings, and that this agreement shall be binding upon the underwriters for the amount of their 504 Bradbury's Forms of Pleading Guaranty several accepted underwritings, provided, however, that the accepted underwritings shall aggregate at least $2,000,000. In Witness Whereof, the company and the trust company- have executed this agreement, and the underwriters have here- unto subscribed their names, and set opposite their signature hereto the amount underwritten by them respectively. Schedule "B." This Agreement, made this first day of December, 1902, between the Brunswiclc Construction Company, a corporation of the State of New York [hereinafter called the "Company"], a trust company to be nominated by the company, which shall become a party hereto by executing this agreement [hereinafter called the "Trust Company"], and the several subscribers hereto [hereinafter called the "Underwriters"]. Whereas, the underwriting agreement to which the parties herein were also parties, dated the tenth day of November, 1902, did not provide for an advance to be made by the trust company on the underwriting therein provided for, before the bonds therein underwritten should be delivered. Now, Therefore, it is mutually agreed that said underwrit- ing agreement shall be amended by the insertion therein at the end of art. 2 thereof, the following provision: It is agreed, however, that the trust company may, prior to the delivery to it of such bonds, advance to the company not more than $600,000, provided that the company shall deposit with the trust company contracts assigned in blank, for the sale of said property [being approximately 197 fe^et 6 inches on the easterly side of Fifth avenue, and 130 feet on Twenty-sixth and Twenty-seventh streets], on which contract there shall have been paid at least the amount so advanced by ,the trust com- pany; such contracts are to be held as collateral security for such advance until the bonds are delivered, as above provided; and all the powers of sale and purchase in case of default provided in art. 8 hereof, with relation to said bonds, shall apply as well to said contracts of sale. Complaints 505 Guaranty Except as above modified, all the provisions of said agreement are hereby ratified and continued in force. In Witness Whereof, the company, the trust company and the underwriters have executed this agreement the day and the year above written. Form No. 378 Payment of Dividends on Stock of Corporation ^ Superior Court of the city of New York. Jacob Lorillard, Plaintiff, against William B. Clyde [and others named] Defendants. The plaintiff, by his attorney, A. B., complainmg of the de- fendants, respectfully shows to the court : I. That for some time prior to the making of the agreement hereafter mentioned, the plaintiff and defendants were respec- tively engaged in the business of transporting freight between the cities of and , in competition with each other. II. That on or about ,19 , at the city of , the plaintiff made and entered into a certain agreement, in writ- ing, with said defendants, J. S. H., G. W. C. and T. C, imder the name and form of W. P. C. & Co., a copy of which is annexed and made part of this complaint as Exhibit "A. " III. That the plaintiff thereby agreed to consolidate his said business with that of said defendants, and for that purpose to ^ From Lorillard v. Clyde, 122 N. Y. 42 ; in which a judgment in favor of the plaintiff was aflBrmed. The plaintiff had already brought previous ac- tions for default in payment of dividends for prior years. The defendants pleaded that the prior judgments were res adjudicata. The same defense had been interposed in the former actions after the first one and was over- ruled. It was held that such former ruling was binding on the question of res adjitdkata. 506 Bradbury's Forms op Pleading Guaranty join with them in the formation of a corporation to be called the Co., with a capital of dollars, one-half of which should be subscribed and paid for by the plaintiff and one-half by defendants; and plaintiff thereby agreed to transfer his busi- ness therein mentioned to the said corporation, and give de- fendants the management and control of said corporation and business and pay a commission therefor; and the plaintiff thereby further agreed that he would not be associated in any company owning a steam water line between said and , or in opposition to the several lines of W. P. C. & Co. therein named, for a period of seven years from , 19 , when said agreement was to go and did go into effect. IV. That in consideration thereof and in order to induce this plaintiff to enter into said agreement, the said defendants, J. S. H., G. W. C. and T. C, under the firm name of W. P. C. & Co., on their part guaranteed and agreed to pay to this plaintiff in each and every year of the term of seven years succeeding said day of , 19 , dividends of not less than seven per cent upon the par value of the stock of said corporation, amounting to the sum of dollars, to be subscribed and paid for by this plaintiff as aforesaid. V. That in pursuance of said agreement said corporation was duly organized under the laws of the State of , by the name of The Co., on or about ,19 , with a capital stock of dollars. VI. That in further pursuance of said agreement the plain- tiff subscribed, paid for, and has ever since owned and held shares of the stock of said company, of the par value of dollars each, amounting in all to the sum of dollars; transferred his business and said steamers mentioned in said agreement to said company, and in all respects fully per- formed said agreement on his part; and the defendants have since had and exercised management of said corporation and business. VII. That no dividend upon the stock of said company has ever been declared or paid by said company, and the defendants have had due notice thereof. Complaints 507 Guaranty VIII. That the dividends or sums guaranteed and agreed to be paid by said agreement for the year from ,19 , to , 19 , have not been paid,' nor any part thereof, al- though the payment thereof was duly demanded before the com- mencement of this action, and the defendants are, and each of them is, now justly indebted to the plaintiff therein in the sum of dollars, with interest thereon from , 19 . Wherefore, the plaintiff demands judgment against the de- fendants for the sum of dollars, with'^ interest from the day of , 19 , together with the costs of this action. A. B., Plaintiff's Attorney, No. , Street, Borough of , New York City. ' The foregoing case is frequently cited as authority for the rule that where a contract provides for the payment of money in installments, the failure to pay an installment when due may not be regarded as a total breach; but the contract to t.hat extent is severable and an action will lie for the installment due and the judgment will not bar a future action for the other installments. This rule is modified, however, to the extent that one action is a bar to another action as to all installments which were actually due when the first action was brought, as was held in the case in the text. And it is held quite generally, that where several actions are begun at different times to recover successive installments that all the actions pending and undetermined at the time a motion is made may be consolidated into one action. See 116 App. Div. 421; 101 Supp. 832. 50S Bradbury's Forms of Pleading Guaranty Form No. 379 Mortgrage Given to Secure Note; Foreclosure of Mortgage With De- mand for Deficiency Judgment Against Guarantor ^ I. Upon information and belief, that the defendant, T. J. H., for the purpose of securing the payment to C. M. B., E. L. R. and L. M. N., of the sum of $ , on the day of , 19 , executed and dehvered to said C. M. B., E. L. R. and L. M. N., a bond bearing date on that day, sealed with his seal, whereby the said T. J. H., did bind himself, his heirs, ex- ecutors and administrators in the penalty of the sum of $ upon condition that the same should be void if the said T. J. H., his heirs, executors and administrators, should pay to the said C. M. B., E. L. R. and L. M. N., their executors, administrators or assigns, the said sum of money first above mentioned, as fol- lows : The said principal sum of $ on the day of , 19 , and the interest on said principal sum at the rate of six per cent per annum, to be paid semiannually on the day of the months of and in each and every year until said principal sum should be fully paid, the said defendant, T. J. H., being given the privilege on any interest day during'Raid term, to pay the sum of $ on the princi- pal sum aforesaid, provided a notice in writing of thirty days was given said C. M. B., E. L. R. and L. M. N., of his intention to do so ; and, as collateral security for the payment of said indebted- ness, the said T. J. H., on the same day executed, duly .acknowl- edged and delivered to the said C. M. B., E. L. R. and L. M. N., a mortgage, whereby he granted, bargained and sold to the said C. M. B., E. L, R. and L. M. N. the following described premises with the appurtenances thereto, that is to say : [Insert description of properly], the aforesaid mortgage being given to secure a part of the purchase money in said deed mentioned. The mortgage containing the same condition as the bond and the said bond and mortgage also containing the further condition that should any default be made in the payment of the said interest or of any 1 From Alger v. Alger, 83 App. Div. 168; 82 Supp. 523; in which a judgment in favor of the plaintiff was affirmed. Complaints 509 Guaranty part thereof, on any daj)- whereon the same is made pay- able, or should any tax or assessment be hereafter imposed upon the premises above described and become due or paya- ble and should the said interest remain unpaid and in arrears for the space of thirty days or such tax or assessment remain unpaid and in arrear for ninety days, then, and from thence- forth, after the lapse of either one of said periods, the afore- said principal sum, with all arrearage of interest thereon, shall, at the option of the said C. M. B., E. L. R. and L. M. N., their executors, administrators or assigns, become and be due and payable immediately thereafter, although the period above limited for the payment thereof may not then have expired, and that then the said C. M. B., E. L. R. and L. M. N., their 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 there- upon, that the surplus, if any there should be, to be returned to the mortgagor, his heirs, executors, administrators or as- signs. II. That the said L. M. N. and E. L. R., by an instrument in writing dated the day of j 19 , for a good and valuable consideration duly granted, bargained, sold, transferred, assigned and set over to the said C. M. B. all of their interest or the interest of either of them in and to the aforesaid mortgage together with the accompanying bond aforesaid, which assign- ment was recorded in the register's office of the county of Kings, in Liber 1647 of Mortgages, page 228, on the day of ,19 . III. That the said C. M. B. by an instrument in writing dated the day of , 19 , for a good and valuable con- sideration duly granted, bargained, sold, transferred, assigned and set over to W. G. A., guardian for S. C. A., all of her interest in and to the aforesaid mortgage, together with the accompany- ing bond aforesaid, which assignment was recorded in the regis- 510 Bradbury's Forms of Pleading Guaranty ter's office of the county of , in Liber 2229 of Mortgages, at page 278, on the day of , 19 . IV. That the said W. G. A., guardian for S. C. A., by an instru- ment in writing dated the day of , 19 , for a good and valuable consideration duly granted, bargained, sold, transferred, assigned and set over to the said S. C. A. all of his interest in and to the aforesaid mortgage, together with the ac- companying bond aforesaid, which assignment was recorded in the register's office in the county of , in Liber 4, at page 460 of Mortgages, in sec. 8, Block 2406, on the day of ,19 . That the said S. C. A., the plaintiff herein, then became and now is the sole owner and holder of said mortgage with the accom- panying bond aforesaid. V. That the said W. G. A., as guardian of S. C. A., plaintiff herein, and the said T. J. H., on the day of , 19 , made and entered into an agreement in writing whereby the payment of the principal sum of the said bond and mortgage should be extended to the day of , 19 , at the rate of five per cent per annum, payable semiannually on the day of and in every yeai' until the principal sum secured to be paid was fully paid. VI. That the said defendants have failed to comply with the conditions of the said bond and mortgage by omitting to pay the sum of $ , the principal sum above mentioned, which by the terms of said bond and mortgage, and the agreement ex- tending the time of payment aforesaid, became due and payable on the day of , 19 , and there is now justly due the plaintiff upon the said bond and mortgage the sum of $ , together with the interest thereon from the of day of , 19 , at the rate of five per cent per annum. For a second cause of action against defendants, plaintiff shows, upon information and belief. I. That the defendant, T. J. H., for the purpose of indemnify- ing and securing and holding harmless the defendant, H. C. A., by reason of any and all loss on account of the obligation of said Complaints 511 Guaranty defendant J H. C. A., as indorser upon the promissory note of said defendant, T. J. H., dated on the day of , 19 , for the sum of $ , on or about the day of , 19 , executed and delivered to said H. C. A., a bond bearing date on that day, sealed with his seal, whereby the said T. J. H. did bind himself, his heirs, executors and administra- tors in the penalty of $ , upon condition the same should be void if the said T. J. H., his heirs, executors or administrators should pay or cause to be paid unto the owner and holder of the certain promissory note of the said T. J. H., dated on the day of , 19 , aforesaid, or to his executors, ad- ministrators or assigns, the full sum of $ when the note aforesaid should become due and payable, so as to save harmless the said H. C. A. from any and all liability under said note as indorser thereon, and as collateral security for holding harmless and indemnifying the said H. C. A., by reason of his obligation as indorser upon the promissory note of the said T. J. H. afore- said, the said defendant, T. J. H., and L. A. H., his wife, on the same day, executed, duly acknowledged and delivered to the said H. C. A. a mortgage whereby they granted, bargained and sold to the said H. C. A., the following described premises, with the appurtenances thereto, that is to say: [Insert description of property.] The mortgage containing the same condition as the said bond, and the bond and mortgage further containing the condition that if the said H. C. A. should thereafter pay the amount of said note, then the said H. C. A., or his legal repre- sentatives, 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 mortgagor, L. A. H., her heirs, executors, administrators or assigns. II. That the said defendant, H. C. A., by an instrument in writing, dated the day of ; 19 , for and in consideration of the sum of $ , duly bargained, sold, 512 Bradbuhy's Forms of Pleading Guaranty- transferred, assigned and set over all of his interests in and to the bond and mortgage last aforesaid to W. G. A., as guardian for S. C. A., the plaintiff, which assignment was recorded in the register's office of the county of , in Liber 2234 of Mort- gages, at page 47, on the day of , 19 . III. That the defendant, H. C. A., by and in the assignment of said bond and mortgage covenanted and agreed that the bond and mortgage thereby transferred and assigned to W. G. A., as guardian for S. ,C. A., aforesaid, should be a prior lien to a cer- tain other mortgage for the sum of $ made by the de- fendant, T. J. H., to said H. C. A., dated , 19 , and recorded in the register's office of the county of , in Liber 1657 of Mortgages, at page 257, on the day of ,19 . IV. That the said W. G. A., as guardian for S. C. A., the plain- tiff herein, by an instrument in writing dated the day of , 19 , for a good and valuable consideration, duly bargained, sold, transferred, assigned and set over to said plain- tiff, S. C. A., all of his interest in and to the aforesaid bond and mortgage, which assignment was recorded in the register's office of the county of , in Liber 4, at page 460 of Mortgages, sec. 8, Block 2406, and that the said plaintiff, S. C. A., then be- came and now is the lawful owner and holder of said bond and mortgage. V. That the defendant, H. C. A., on the *day of , 19 , being the same day on which the aforesaid bond and mortgage was assigned by said H. C. A. to W. G. A., as guardian aforesaid, in consideration of $ , the receipt of which was thereby acknowledged, did guarantee, in writing, the payment upon said bond and mortgage of the sum of $ of the principal sum, together with the accrued interest thereon, within six years from the date of said instrument. VI. That the said W. G. A., as guardian for S. C. A., plaintiff herein, and the said T. J. H., on the day of , 19 , made and entered into an agreement whereby the pay- ment of the sum of $ upon the principal sum of the bond Complaints 513 Guaranty and mortgage last aforesaid was extended to. the day of ,19 , at the rate of five per cent per annum; and it was further acknowledged and agreed by and between. the par- ties to said instrument that the principal sum then due on the bond and mortgage set forth in the first cause of action herein was the sum of $ , with interest thereon from , , 19 ; and on the bond and mortgage last above mentioned and set forth in the second cause of action herein the sum of $ , with interest from , 19 , according tq the terms and conditions of said bond and mortgage. ... VII. That the said defendants have failed to comply with the conditions of said bond and mortgage, or the guaranty of the payment thereof, by omitting to pay the sum of $. , together with the interest thereon at the rate of five percent per annum from the day of , 19 . VIII. That the said defendants have further failed to comply with the conditions contained in the bond and mortgage set forth in the first cause of action herein, and, also, in the bond and mortgage set forth in the second cause of action herein, by omit- ting to pay the water rates assessed against the aforesaid prem- ises for the years 19 and 19 , amounting to the sum of $ , and the taxes assessed for the year 19 , amounting to the sum of $ , and the taxes assessed for the year 19 , amount- ing to the sum of $ , all of which assessments, taxes and liens became due and payable more than ninety days prior to the commencement of this action. IX. That no other action has been brought, to the knowledge or beUef of said plaintiff, to recover any part of. the mortgage debts set forth in the first and second causes of action herein. X. That the said L. A. H., wife of the defendant, T. J. H., died in the city of , on the day of ; 19 j leaving her surviving her said husband, T. J. H., and the follow- ing heirs at law and next of kin, children of the said L. A. H. and T. J. H., L. B. H., now aged years, and H. T., now aged ■ years,- and H. A., now aged years, who are defendants in this action. And the plaintiff further shows Vol. 1—33 514 Bradbury's Forms of Pleading Guaranty that no proceedings have been taken in surrogate's court for the purpose of obtaining a settlement of the estate of the said L. A. H. and that no person has been appointed or is acting as the ad- ministrator or executor of said deceased. XI. That the said defendants, T. J. H., L. B. H., H. A. H., H. C. A. and F. D. B. have, or claim to have, some interest in or hen upon the said mortgaged premises or some part thereof, which interest or Hen, if any, has accrued subsequently and is subject to the lien of the said bonds and mortgages set forth in the first and second causes of action herein. The plaintiff therefore demands judgment: I. That the defendants, and all persons claiming under them subsequent to the commencement of this action, may be barred and foreclosed of all right, claim, hen and equity of redemption in said mortgaged premises. II. That the said premises, or so much thereof as may be suffi- cient to raise the amount due the plaintiff for principal, interest and costs, and which may be sold separately without material injury to the parties interested, may be decreed to be sold accord- ing to law. III. That out of the moneys arising from the sale thereof, the plaintiff may be paid the amount due on the said bonds and mortgages set forth in the first and second causes of action herein, with interest to the time of such payment and the costs and ex- penses of this action, so far as the amount of such mqneys prop- erly applicable thereto will pay the same. IV. That the defendant, T. J. H., may be adjudged to pay any deficiency which may remain after applying all of said mon- eys so applicable thereto. V. That the defendant, H. C. A., by reason of his Written guar- anty hereinbefore set forth in the second cause of action alleged in this complaint, may be adjudged to pay any deficiency which may remain on account of the bond and mortgage set forth in the second cause of action aforesaid, to the sum of $ , with interest thereon from and after the day of , 19 , at the rate of five per cent per annum, after applying so Complaints 515 Guaranty much of the moneys received from the sale of the premises afore- said as may be appUcable to the payment of the moneys secured to be paid by reason of the said first bond and mortgage, as set forth in the first cause of action herein. VI. That the plaintiff may have such other and further order or relief, or both, in the premises as shall be just and equitable. Form No. 380 Payment of Bond Secured by Mortgage; Action Against Guarantor to Recover Deficiency After Foreclosure of Mortgage ^ I. That on or about the day of , 19 , G. M. executed and delivered to H. S., since deceased, and W. S., the plaintiff herein, as trustees under the last will and testament of C. H. S., deceased, a bond bearing date on that day, sealed with his seal, whereby he bound himself, his heirs, executors and administrators, in the penalty of $ , upon condition that the same should be void if the said G. M., his heirs, executors or administrators should pay to the said H. S. and W. S., as trustees as aforesaid, their successors or assigns, the sum of $ , on the day of ; 19 , and interest thereon at the rate of per cent per annum, as more fully appears in the said bond, which is in the words and figures following : "Know All Men by These Presents, That I, G. M., of the city, county and State of New York, am held and firmly bound unto H. S. and W. S., as trustees under the last will and testa- ment of C. H. S., deceased, in the penal sum of $ , gold coin of the United States of America, to be paid to the said H. S. & AY. S., as trustees as aforesaid, their successors or assigns; for which payment well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. "Sealed with my seal, dated the day of , 19 . "The condition of the above obligation is such, that if the above bounden G. M., his heirs, executors or administrators, ' From Shioman v. Niles, 177 N. Y. 527; aff'g, without opinion, 75 App. Div. 451; 7S Supp. 440; in which a judgment in favor of the plaintiff was affirmed. 516 Bradbury's Forms of Pleading Guaranty- shall well and truly pay, or cause to be paid, unto the above- named H. S. and W. S., as trustees as aforesaid, their successors or assigns, the just and full sum of $ in gold coin as aforesaid, at the city of New York, on the day of , 19 , and the interest thereon in like gold coin to be com- puted from the date hereof at the rate of per cent per annum, and to be paid semiannually at said city of New York, on the day of , and the day of in each and every year in the meantime and until said principal sum shall be fully paid, discharged and satisfied, without any fraud or other delay, then the above obligation to be void, other- wise to remain in full force and virtue. "And it is hereby expressly agreed, that the whole of said principal sum shall become due at the option of the said H. S. and W. S. after default in the payment of interest for days, or after default in the payment of any tax or assessment which may be levied or imposed upon the premises described in the mortgage accompanying this bond for days after notice and demand. "And it is also agreed, that the said party of the first part will keep the buildings on the said premises described in the said mortgage insured against loss by fire for the benefit of the mort- gagees therein. "The word 'penal' interlined and the words 'executors, ad- ministrators ' stricken out twice on first page before execution. "G. M. [Seal] " In the presence of R.T. P." [Acknowledgment.] And as, collateral security for the payment of said indebted- ness, the said G. M., on the same day executed, acknowledged and delivered to the said H. S. and W. S., as trustees under the last will and testament of C. H. S., deceased, a mortgage whereby he granted, bargained and sold to the said H. S. and W. S., trustees as aforesaid, two certain lots, pieces or parcels of land in the city, county and State of New York, fully described in said mortgage. Complaints 517 Guaranty II. That on or about the day of , 19 , the defendant, N. N., entered into an agreement in writing with the plaintiff herein and H. S., since deceased, as trustees as aforesaid, under his hand and seal of that day, which agreement was an- nexed to the bond hereinafter set forth and was a guaranty thereof in the words and figures following : "In consideration of the sum of $ to me in hand paid and other good and valuable consideration to me moving, I do hereby guarantee the payment to the obligees therein named of the within bond and the mortgage therein referred to according - to terms thereof. "In witness whereof, I hereunto set my hand and seal this day of , 19 . "N. N. [Seal.] "Witness, E. C. G." "State of New York, ) ^^ . City and county of New York, f " "On this day of , 19 , a. d., before me per- sonally came N. N. to me known to be the individual described in and who executed the within instrument, and he acknowl- edged to me that he executed the same. "E. C. G., "Notary Public, "N. Y. Co." III. That the principal secured by the bond and mortgage referred to in the said agreement became due and payable on or about the day of , 19 , and that on or about the day of , 19 , the plaintiff and said H. S., trustees as aforesaid, commenced an action in the Supreme Court, county of New York, foi' the foreclosure of said mortgage, the principal sum thereof with interest not having been paid, and such proceedings were thereupon had, that on the day of , 19 , a decree or judgment in the said action was duly made by the said court for the foreclosure of the said mortgage and the sale of the mortgaged premises, and which 518 Bradbury's Forms of Pleading Guaranty contained the provisions that if the proceeds of such sale should be insufficient to pay the amount reported by the referee in said action to be due to the plaintiffs therein, with interest and costs, the amount of such deficiency should be specified in the report of sale therein. IV. That pursuant to said decree or judgment, the premises were duly sold on or about the day of , 19 , by A. H. v., the referee appointed by the said decree for that purpose, at the price or sum of $ V. That upon said sale there occurred a deficiency of $ , as appears by the report of sale of referee bearing date the day of , 19 , and duly filed in the office of the clerk of the Supreme Court, New York county, on the day of , 19 , and that no part thereof has ever been paid. That on or before the day of , 19 , due notice of filing of said referee's report of sale was served on N. N., defendant in person, and on the attorneys for all of the defend- ants who appeared in said action ; that no exceptions to said re- port have been filed; that on or about the day of , 19 , said report became absolutely and was in all things affirmed. VI. That on or about the day of , 19 , said H. S. departed this life leaving him surviving the plaintiff herein, W. S., as sole surviving trustee under the last will and testament of C. H. S., deceased. VII. That before the commencement of this action the plain- tiff herein demanded of the defendant payment of the amount of sucli deficiency above set forth, but that |;he defendant re- fused to pay the same and has ever since neglected and refused to pay the same, and there remains due and unpaid to the plaintiff the said sum of $ , with interest thereon from the date of said report, to wit, the day of , 19 . VII. That leave has been granted to the plaintiff to bring, maintain and continue this action by an order duly made herein bearing date the day of 19 , and entered in t, Complaints 519 Guaranty the office of the clerk of this court, county of New York, oh the day of , 19 . Wherefore [demand for money judgment]. Form No. 381 Failure of Guarantor to Defend Against Principal Debtor When Offered Opportunity so to Do ^ I. That the plaintiffs are and at all the times hereinafter men- tioned were copartners in business in the State of , under the firm name and style of B. & S. II. That between the day of , 19 , and the day of , 19 , both dates inclusive, plain- tiffs under their said firm name sold and delivered to one W. L., who was transacting business in the city of , goods, wares and merchandise, consisting of milk, cream, butter and pot cheese, well and reasonably worth the sum of $ , and at that agreed price. A bill of the particulars of said goods is hereto attached. III. The said goods, wares and merchandise were so sold and delivered to the said W. L. pursuant to a contract therefor, en- tered into, on or about the day of , 19 , and on or about the said day of , 19 , the defend- ant, I. M. C, in consideration of the delivery of said milk, etc., by the plaintiffs to the said W. L. and for value received, guaranteed in writing the collection of the amounts to become due on said contract. IV. The said W. L. omitted and refused to pay for the said goods, wares and merchandise, or any part thereof, and there- after and subsequent to the day of , 19 , an action was duly commenced by the plaintiffs against the said W. L., in the New York Supreme Court for the county of for the collection of the said sum of money, being for the said goods so sold and delivered, and the collection of which was as aforesaid guaranteed by the defendant, and the said W. L. ap- * From Blanding v. Cohen, 101 App. Div. 442; 92 Supp. 93; aff' d, 184 N. Y. 638; in which the plaintiff recovered. 520 Bkadbory's Forms of Pleading Guaranty peared and answered the complaint in said action, and such pro- ceedings were had therein, that after a trial of the issues duly had, and on or about the day of , 19 , a judg- ment was duly entered in said action against the said W. L. for the sum of $ , the amount of verdict found by the jury, and for the further sum of $ , costs, as taxed, amounting in all to the sun; of $ V. That the defendant, I. M. C, had due notice of the pen- dency of said action, and was notified to appear and participate in the defense thereof, if any defense there were, and that he was in fact present at the trial thereof. VI.' After the recovery of the judgment aforesaid, an execu- tion in due form of law was duly issued out of the New York Supreme Court to the sheriff of the county of , in which county the said defendant, W. L., then resided and still resides, directing him to levy and collect the amount of the said judg- ment, and said execution has been by the said sheriff duly re- turned wholly unsatisfied, and said judgment remains wholly unpaid and no payment has been made on account of said goods, wares and merchandise or of the costs thereof. Wherefore [demand for money jvdgment]. Form No. 382 Sale of Machinery; Purchaser Becomes Insolvent so no Action Is Brought Against Him ' I. That during all the times hereinafter mentioned he was doing business in the State of under the name of W. S. & Co. That on or about , 19 , the plaintiff entered into a contract with the W. T. Co. of , , a corpora- tion owning and publishing a newspaper known as "The Times," by the terms of which said plaintiff promised and agreed to manufacture and deliver to the said W. T. Co. two printing presses, delivery of one to be within two months and of the other within three months, for which the said W. T. Co. promised and ^ From Scott v. Conn, 75 App. Div. 561; 78 Supp. 274; in which a demurrer to the reply was overruled. The complaint was not questioned. Complaints 521 Guaranty agreed to pay the plaintiff the sum of $ , to be paid $ cash on delivery, $ in notes to run three years, and the balance by the delivery to the plaintiff of a Potter press owned by the said W. T. Co. II. That said plaintiff manufactured said presses and was ready and willing to deliver the same in accordance with the terms of said contract, but that the said W. T. Co. refused to receive said presses or carry out any part of said contract, to the damage of the plaintiff $ III. That at the time of the making of said contract the de- fendant, C. G. C, was the president of said corporation and the owner of the majority of the capital stock of the said corporation, and as an inducement to the making of said contract, said defend- ant promised and agreed with said plaintiff, that in the event of the sale of the said newspaper, he would indemnify the said plain- tiff from any loss he might sustain by reason of the failure of the said W. T. Corporation to perform their said contract. IV. That on or about the time for the dehvery of the said presses under the said contract, the said defendant and the said T. Co., without the knowledge or consent of the plaintiff, sold the said newspaper and received therefor a large sum of monpy, and although often requested, refused, and still refuses, to in- demnify the plaintiff from the loss he sustained by reason of the breach of said contract. V. That during the times hereinbefore mentioned and at the time of the failure to fulfill its said contract for the purchase of said presses, the said W. T. Co. was insolvent, and it had no property out of which plaintiff could have recovered his said damages. That plaintiff duly demanded of the said W. T. Co. the fulfillment and performance of its said contract and that said defendant had notice of such demand and refusal. Wherefore [demand for money judgment]. 622 BrAdSury's Forms of Pleading Guaranty Form No. 383 Conditional Guaranty ' I. That the defendants, G. G. D. and J. H. M., at the several times hereinafter mentioned, were copartners in business, under the firm name of D. & M., and as such copartners had their place of business in , county, in the State of II. That on or about the day of , 19 , the said M. J. S., in his lifetime, paid to the said defendants, D. and M., as such copartners, the sum of $ III. That in consideration of such payment the said defend- ants, D. and M., agreed to sell and assign to him, the said M. J. S., a certain promissory note made by T. D. H., dated at , , , 19 , for the sum of $ , payable to the order of A. C. W., five years after date, for value received, at the G. N. B., , , with interest at the rate of seven per cent per annum, payable semiannually, together with a mortgage or trust deed to secure the payment of said note, bearing even date therewith, made by said H. to E. H., trustee, upon four lots of land situate [describe], and to guarantee the collection and payment of said note and mortgage, as herein- after stated. IV. That the said D. and M., at the same time, in considera- tion of said payment of $ , executed and delivered to said M. J. S. a written assignment of said note and mortgage or trust deed and an agreement and guarantee relative to 'the col- lection of said note and mortgage and for the payment of said note and mortgage in the words and figures following: "This contract witnesseth, that the undersigned have this day sold to M. J. S. the following described loan, viz.: One certain note signed by T. D. H. for $ , dated , 19 , payable to the order of A. C. W. five years after date, with seven per cent interest from date, and secured by trust deed of same date with said note to E. H., trustee, upon lots [describe lots], executed by T. D. H. That in consideration of said sale the un- ' From Jackson v. Swart, 182 N. Y. 373; in which a judgment in favor of the defendant was reversed. Complaints 523 Guaranty dersigned guarantee the collection in full of said note, with seven per cent interest on same, upon the following conditions ; "I. In case of a default in the payment of said note or interest due on same, or a failure to comply with the requirements named in the trust deed securing said note, the holder of said note shall, at the request of the undersigned, at once forward said note and trust deed for collection. "IL Said trust deed shall be foreclosed in the usual course provided by law and the land sold. In case there is no bid sufficient to cover the debt and costs, the land described in the trust deed may, at the option of the undersigned, be bid in, in the name of the holder of this note. "III. In case the land is so purchased, the undersigned hereby bind themselves to take full charge of said land and sell same within two years after the above-described note matures, and in case said land does not sell for a sufficient amount to pay the debt in full, to make good and pay any deficiency." [Signed.] V. That the said note, at the time of such sale and delivery, had been indorsed without recourse by the said A. C. W. VI. A statement of the said amount paid by said M. J. S. as the pu' chase price of said note and trust deed or mortgage was omitted from the said assignment and guaranty by the mutual mistake of the said parties. VII. That the legal rate of interest by the laws of the State of at the time of the making and delivery of the said note and mortgage was any sum agreed upon by the parties not ex- ceedino; twelve per cent. VIII. That the principal of the said note became due and pay- able on the day of , 19 , together with interest from the day of , 19 > a* the rate of seven per cent per annum, no part of which has been paid by the maker of said note or by the defendants or by any other person or per- sons, and that there is now im arrear and due and payable on said note the sum of $ , principal, with interest from the day of , 19 . 524 Bradbury's Forms of Pleading Guaranty IX. That the said note has been presented by the plaintiffs at the said G. N. B. in , and the payment thereof de- manded and not paid. That neither the said T. D. H. nor any of the defendants in this action ever had any funds at said G. N. B. to pay said note or interest, or any part thereof. X. That the plaintiffs have notified the defendants, D. and M., and the M. and H. I. Co., respectively, of the nonpayment of said note, and demanded payment of the same from them, which payment they have declined to make. XI. That the defendants, D. and M., have respectively neg- lected and declined to request the plaintiffs, as holders of the said notft and mortgage, to forward the same for collection pur- suant to said guaranty. That they have been requested by the plaintiffs to give such directions, and have neglected and de- clined to give any directions in relation thereto. XII. That the said M. and H. I. Co. have neglected and de- clined to request the plaintiffs to forward said note and mort- gage for collection, pursuant to said guaranty, although requested so to do. XIII. That said T. D. H., at the time of the execution and delivery of said mortgage, did not own the said premises em- braced in the said mortgage and had not acquired the title thereto. XIV. That since the execution and delivery of the said note and mortgage the said premises described therein were duly assessed in said county, under the laws of the State of , and duly taxed for the years and in the sums following, that is to say: In the sum of $ , for the year 19 , etc.; and that, pursuant to the laws of the State of , said premises have been duly sold for the said taxes for the year 19 , which were not paid and were allowed to remain in arrear, and that the said premises have been conveyed, pursuant to such sale and the statutes of the State of , to one N. F. F., as- signee of the purchaser, at such sale, which conveyance was made on or about the day of , 19 » by M. W. L., as county clerk of the said county of , whereby the Complaints 525 Guaranty title to the said premises has been transferred to the said F., pursuant to the statutes of said State of XV. That the said defendants, D. and M., have committed a breach of their said guaranty and agreement made with the said M. J. S., by neglecting and refusing to request the plaintiffs, as his administrators, to forward the said note and mortgage for collection, pursuant to the said guaranty; by neglecting and refusing to pay the amount of the principal and interest, or any part thereof, which has become due and payable upon said note and mortgage, and by failing to keep and observe the said guar- anty, on their part, according to the true intent and meaning thereof. That the said D. and M. are now indebted to the plaintiffs, as such administrators, on account of the premises, in the sum of $ , with interest from ,19 , at the rate of seven per cent per annum, pursuant to the statutes of , and tlic terms of said guaranty, no part of which has been paid. XVI. That the defendants, the M. and H. I. Co., have com- mitted a breach of said guaranty by neglecting and refusing to request the plaintiffs to forward the said note and mortgage for collection, pursuant to the said guaranty, by neglecting and re- fusing to pay the amount of the principal and interest, or any part thereof, which had become due and payable upon said note and mortgage, and by failing to keep and observe the said guar- anty, according to the true intent and ineaning thereof. XVII. That, after the sale and assignment by the said de- fendants, D. and M., to the said M. J. S., and on or about the day of , 19 , said M. J. S. departed this life at the town of , in county, in this State, where he resided, intestate, and that afterwards, and on or about the day of , 19 , letters of administration of the goods, chattels and credits of the said deceased were duly issued to the plaintiffs in this action by the surrogate of the said county of. , which trust was duly accepted by the plaintiffs, and they duly qualified as such administrators, and ever since have 526 Bradbury's Forms of Pleading Guaranty * been, and now are, duly constituted administrators of the goods, chattels and credits of said deceased. XVIII. That no part of the principal or interest due upon said note, as hereinabove mentioned, has been paid to the plain- tiffs, as such administrators, by any of the defendants in this action, or any other person or persons whomsoever, and that the said sum of $ , with interest from , 19 , remains due and payable upon said note and mortgage to the said plaintiffs, as such administrators. Second cause of action. XIX. That on or about the or of , 19 , said M. J. S. paid to the said defendants, D. and M., as such copartners, as aforesaid, the sum of $ XX. That, in consideration of such payment, the said defend- ants, D. and M., as such copartners, agree to sell and assign to him a certain promissory note and mortgage or trust deed made to secure the payment of the same, and to guarantee the collection of said note and mortgage as hereinafter stated, to wit, a promis- sory note made by E. D. H. and M. M. H., dated at , , , 19 , for the sum of $ , payable five years after date to the order of A. C. W., and the trust deed or mortgage to secure the payment of said note, bearing even date therewith, made by said E. D. H. and M. M. H. to E. H., trustee, upon a certain piece of land situated in county. State of , to wit [insert location of land]; which trust deed or mortgage was recorded in the office of the register of deeds in said county on the day of , 19 , in Book N of Mortgages, page 218. XXI. That said D. and M., as copartners as aforesaid, at the same time, in consideration of said pajonent of $ , ex- ecuted and delivered to the said M. J. S. a written assignment of said note and mortgage or trust deed, and an agreement and guaranty relative to the collection and payment of said note and mortgage in the words and figures following: "This contract witnesseth, that the undersigned have this day sold to M. J. S. the following described loan, viz.: One certain Complaints 527 Guaranty note, signed by E. D. H. for $ , dated , 19 , payable to the order of A. C. W. five years after date, with seven per cent interest from date, and secured by trust deed of same date, with said note to E. H., trustee, upon the section 23, town- ship 29, range 21, in county, , executed by E. D. H. That, in consideration of said sale, the undersigned guarantee the collection in full of said note, with seven per cent interest on same, upon the following conditions : "1. In case of a default in the payment of said note, or interest due on same, or a failure to comply with the requirements named in the trust deed securing said note, the holder of said note shall, at the request of the undersigned, at once forward said note and trust deed for collection. "2. Said trust deed shall be foreclosed in the usual course pro- vided by law and the land sold. In case there is no bid suffi- cient to cover the debt and costs, the land described in the trust deed may, at the option of the undersigned, be bid in in the name of the holder of this note. "3. In case the land is so purchased the undersigned hereby bind themselves to take full charge of said land, and sell same within two years after the above-described note matures, and in case said land does not sell for a sufficient amount to pay the debt in full, to make good and pay any deficiency. [Signed.] XXII. That the said defendants, D. and M., at the time of the said payment of $ to them, and the making by them of said agreement, and as a part of the conditions of the said sale, executed and delivered to the said M. J. S. a guarantee in writing, whereby, for value received, they agreed to furnish to the said M. J. S., J. B. and W. B. M. guaranty for the said E. D. H. mortgage for $ assigned by them to said M. J. S. XXIII. That a statement of the said amount paid by said M. J. S. to said D. and M. for said note and mortgage or trust deed was omitted from said assignment and guaranty by the mutual mistake of the said parties. That the land described in the said trust deed, as hereinbefore mentioned, was erroneously 528 Bradbury's Forms of Pleading Guaranty described in the said assignment and guaranty as located in section , instead of section , township , south, range ; that said error occurred in the said assign- ment and guaranty through the mutual mistake of the said de- fendants, D. and M., and the said M. J. S. XXIV. That the said note of $ , at the time of said assignment and guaranty, had been indorsed by the said A. C. W., the payee thereof, without recourse. XXV. That the said defendants, D. and M., have neglected and omitted to furnish to the said M. J. S. in his lifetime, or to the plaintiffs in this action since his death, the guaranty of the said J. B. and W. B. M. for the said E. D. H. mortgage of $ , although requested so to do. XXVI. That the legal rate of interest by the laws of the State of , where the said note and mortgage were made, executed and delivered, at the time of their execution, was any sum agreed upon by the parties not exceeding twelve per- cent. XXVII. That the principal of the said note became due and payable on the day of , 19 , with interest from the day of , 19 , at the rate of seven per cent per annum, no part of which principal or interest has been paid by the maker of said note or by the defendants in this action, or by any other person or persons whomsoever, and that there is now due and in arrear on said note the said sum of $ , principal, with interest from the day of , 19 . XXVIII. That the said note has been presented by the plain- tiffs at the said G. N. B., at , and payment thereof de- manded, but the same has not been paid. XXIX. That said E. D. H., or M. M. H., or any of the de- fendants in this action, never had any funds at said G. N. B. to pay said note and interest, or any part thereof. XXX. That the plaintiffs have notified the defendants, D. and M., and also the M. and. H. I. Co., of the nonpayment of said note, and have demanded payment of the same from them Complaints 529 Guaranty respectively, which payment they have respectively omitted and neglected to make. XXXI. That the defendants, D. and M., have respectively neglected and declined to request the plaintiffs, as holders of the said note and mortgage, to forward the same for collection pursuant to said guaranty. That they have been requested by the plaintiffs to give said directions and have neglected and de- clined to give any directions in relation thereto. XXXII. That the said M. and H. I. Co. have neglected and declined to request the plaintiffs to forward the said note and mortgage for collection, pursuant to said guaranty, although requested so to do. XXXIII. That neither the said E. D. H. nor M. M. H., at the time of the execution and delivery of the said mortgage, were seized and possessed of the title of the said mortgaged premises. XXXIV. That since the execution and delivery of the said mortgage, said premises described therein have been duly as- sessed in said county under the laws of the State of , and duly taxed for the years and in the sums following —that is to say : In the sum of $ for the year 19 , etc. ; and that pursuant to the laws of the State of the said premises have been duly sold for said taxes for the year 19 , which were not paid and were allowed to remain in arrear. That the said sale was made on or about the day of ,19 , in due course at the regular sale which began on the first Tuesday of , 19 , and that said premises have been duly conveyed pursuant to such sale and the statutes of , to E. O. E., the assignee of the certificate of sale, by a deed duly executed by the county clerk of said county of , bearing date , 19 , which deed was recorded in the register's office of the said county of on the day of , 19 , in Book 21, page 165. XXXV. That the said defendants, D. and M., have com- mitted a breach of their said guaranties by neglecting and omit- ting to furnish to the said M. J. S., or the plaintiffs in this action, the guaranty of said J. B. and W. B. M. for the said E. D. H. Vol. 1-31 530 Bradbury's Forms of Pleading Guaranty mortgage of $ , although requested so to do, and by neglecting and refusing to request the plaintiffs in this action, as administrators of the said deceased, to forward said note and mortgage for collection, pursuant to the said guaranty, herein- above set out at length, and by neglecting and refusing to pay the amount of the principal which has become due and payable upon said note and mortgage, and by failing to keep and observe the said guaranties on their part, according to the true inteiit and meaning thereof. XXXVI. That the said defendants, D. and M., are now in- debted to the plaintiff on account of the. said note and mortgage and guaranties in the sum of $ , with interest from the day of , 19 , no part of which has been paid. XXXVII. That the said defendants, the M. and H. I. Co., committed a breach of said guaranty by neglecting and omitting to request the plaintiffs to forward the said note and mortgage for collection pursuant to said guaranty; by neglecting and re- fusing to pay the amount of the principal and interest due on the said note and mortgage, and by failing to keep and observe the said guaranties on their part, according to the true intent and meaning thereof. XXXVIII. That, as hereinbefore stated, after the execution of the said guaranties and assignments, the said M. J. S. departed this life, and that the plaintiffs have been duly appointed by the surrogate of county the administrators o£ his goods, chattels and credits, which appointment they have accepted and are such administrators. Third cause of action. XXXIX. That, on or about the day of ,19 , the said M. J. S. paid to the said defendants, D. and M., as such copartners, the sum of $ XL. That, in consideration of such payment, said defendants, D. and M., as such copartners, agreed to sell and assign to him a certain promissory note and the mortgage or trust deed to secure the payment of the same, and to guarantee the collection and payment, as hereinafter stated, to wit, the promissory note Complaints 531 Guaranty made by D. C. H., at , , dated , 19 , for the sum of $ , payable to the order of A. C. W. at the G. N. B., , five years after date, with interest at the rate of seven per cent, payable semiannually; and the said mort- gage or trust deed to secure the payment of the same, bearing even date with said note, made by D. C. H. to E. H., trustee, upon a certain piece of land situate in [insert location of land], which trust deed or mortgage was recorded in the office of the register of deeds in county on the day of ,19 , in Book 18 of Mortgages, page 155. XLI. That said D. and M., at the same time, and in considera- tion of said payment of $ , executed and delivered to the said M. J. S. a written assignment of the said note and mort- gage or trust deed, and an agreement and guaranty relating to the collection and payment of said note and mortgage and in- terest, in the words and figures following : "The M. and H. I. Co., "[City], [State], , 19 . "This Contract Witnesseth, That the undersigned have this day sold to M. J. S. the following described loan, viz.: One certain note signed by D. C. H. [single] for $ , dated , 19 , payable to the order of A. C. W. five years after date, with seven per cent interest from date, and secured by trust deed of same date with said note to E. H., trustee, upon the [insert location], executed by D. C. H. That in consideration of said sale the undersigned guarantee the collection in full of said note, with seven per cent interest on same, upon the follow- ing conditions : " 1. In case of a default in the payment of said note, or interest on same, or a failure to comply with the requirements named in the trust deed securing said note, the holder of said note shall, at the request of the undersigned, at once forward said note and trust deed for collection. "2. Said trust deed shall be foreclosed in the usual course provided by law and the land sold. In case there is no bid suffi- cient to co^'er the debt and costs, the land described in the trust 532 Bradbury's Forms of Pleading Guaranty deed may, at the option of the undersigned, be bid in in the name of the holder of this note. "3. In case the land is so purchased the undersigned hereby bind themselves to take full charge of said land and sell same within two years after the above-described note matures, and in case said land does not sell for a sufficient amount to pay the debt in full, to make good and pay any deficiency. "4. We further guarantee the payment of the interest as it matures on the principal sum of said loan, until the said principal is paid." [Signed.] XLII. That the said note, at the time of the said sale and assignment, had been indorsed by the said A. C. W., the payee thereof, without recourse. XLIII. That a statement of the said amount paid by the said M. J. S. to said D. and M. for said note and trust deed was omitted from said assignment and guaranty by the mutual mis- take of the said parties. XLIV. That the legal rate of interest, according to the laws of the State of , where the said note and mortgage were made and deUvered, at the time of said making and delivery was, as hereinbefore stated, any sum agreed upon by the parties, not exceeding twelve per cent. XLV. That the principal of the said note became due and payable on the day of , 19 , together with in- terest thereon from the day of > 19 , at the rate of seven per cent per annum, no part of which principal or interest has been paid by the maker of said note, or by the said defendants in this action, or by any other persons or person, and that there is now due and payable upon said note, and in arrear, the said sum of $ , with interest at seven per cent from the day of , 19 . XVLI. That the said note has been presented by the plaintiff at the said G. N. B., and payment thereof demanded, and the same was not paid. XLVII. That the said D. C, H., or any of the defendants in CoMPLAlNfS 533 Guaranty this action, never had any funds at said G. N. B. to pay said note or interest, or any part thereof. XLVIII. That the plaintiffs have notified the defendants, D. and M., and the M. and H. I. Co., of the nonpayment of said note, and have demanded payment of the same from them respectively, which payment they have neglected and omitted to make. XLIX. That the defendants, D. and M., have respectively neglected and declined to request the plaintiffs, as holders of the said note and mortgage, to forward the same for collection, pursuant to said guaranty. That they have been requested by the plaintiffs to give such directions, and have neglected and declined to give any directions in relation thereto. L. That the said defendants, the M. and H. I. Co., have neg- lected and declined to request the plaintiffs to forward said note and mortgage for collection, pursuant to said guaranty, although requested so to do. LI. That the said D. C. H., at the time of the execution and delivery of the said note and mortgage, was not seized or pos- sessed of the title of the said mortgaged premises. LII. That since the execution and delivery of the said mort- gage the said premises described therein have been duly assessed in the said county of , under the laws of the State of , and duly taxed for the years, and in the sums follow- ing, that is to say: In the sum of S for the year 19 , etc., and that pursuant to the laws of the State of the said premises were duly sold for the said taxes for the year 19 , which were not paid and were allowed to remain in arrear. That the said sale was made on the day of , 19 . That the said premises have been duly conveyed, pursuant to the said sale, and the statutes of , to C. W. F. by deed duly executed by the county clerk of the said county of , bearing date the day of , 19 , which deed was duly recorded in the office of the register of deeds for county on the day of , 19 , at three o'clock P. M., in Book 67, page 95. 634 Bradbury's Forms op Pleading Guaranty LIII. That said defendants, D. and M., have committed a breach of their said guaranty by neglecting and refusing to re- quest the plaintiffs in this action to forward the said note and mortgage for collection, pursuant to the said guaranty, and by neglecting and refusing to pay the amount of the principal or interest which has become due and payable upon said note and mortgage, or trust deed, or any part thereof, and by failing to keep and observe the said guaranty on their part, according to the true intent and meaning thereof. LIV. That the said defendants, D. and M., are now indebted to the plaintiffs, on account of said note and mortgage and guar- anty, in the sum of $ , with interest from the day of , no part of which has been paid. LV. That the said the M. and H. I. Co. committed a breach of said guaranty by neglecting and omitting to request the plain- tiffs to forward the said note and mortgage for collection, pur- suant to the said guaranty, by neglecting and refusing to pay the amount of the principal and interest due on said note and mortgage, or any part thereof, and by failing to keep and ob- serve the said guaranty, on their part, according to the true intent and meaning thereof. LVI. That, as hereinbefore stated, said M. J. S., after the execution of the said assignment and guaranty of said note and mortgage to him, departed this life in , county, where he resided, and that the plaintiffs in this action have been duly appointed by the surrogate of county the admin- istrators of the goods, chattels and credits of said deceased, have accepted such appointment and qualified as such administrators, and are now acting as such. Wherefore, plaintiffs demand judgment that the said several guaranties be corrected by inserting in them, respectively, a statement of the amount paid by the plaintiffs' intestate for each of them, and that the said guaranty, dated , 19 , mentioned in the second cause of action, be corrected, by in- serting therein, in the place of the erroneous description now contained therein, the correct description of the premises de- Complaints 535 Guaranty scribed in said trust deed, namely [insert description]; and that the plaintiffs recover of the said defendants the sum of $ , with interest on $ thereof, at the rate of seven per cent per annum, from the day of , 19 ; with in- terest on $ thereof, at the same rate, from the day of ; 19 ; and with interest on $ thereof, at the same rate, from the day of > 19 ; and that the plaintiffs have such other and further relief as may be agreeable to equity and good conscience, with costs. Form No. 384 Loan of Money^ I. That at all the times hereinafter mentioned the plaintiff was and is now a commission merchant doing business at No. , street, in the borough of , city of II. That at all the times hereinafter mentioned L. K. and M. C. K. were engaged in the business of manufacturing silk ribbons under the firm name or style of E. R. Co. in the county of , State of III. That the defendant, F. E. S., on or abqut the day of , 19 , executed under seal and delivered to plaintiff for a valuable consideration his certain contract of guaranty which is hereto annexed marked Exhibit "A," and which forms a part of this complaint, wherein and whereby the said defendant, F. E. S., promised and agreed to pay to plaintiff any liability or indebtedness up to the amount of $ , which may be due and owing to plaintiff by said L. K. and M. C. K., trading as E. R. Co. IV. That the plaintiff at divers times, to wit, from , 19 , to , 19 , advanced divers sums of money, to wit, the sum of S , to the said L. K. and M. C. K., trading as E. R. Co., at their special instance and request. * From Sturmdorf v. Saunders, 190 N. Y. 555; aff'g, without opinion, 117 App. Div. 762; 102 Supp. 1042; in which a judgment in favor of the plaintiff was affirmed. 536 Bradbury's Forms of Pleading — ■ ■; . — . Guaranty V. That the said sum of $ , advanced to the said K. and K., trading as E. R. Co., by the plaintiff as aforesaid, was due and owing to the plaintiff at the time of the execution and delivery by the said defendant, S., of his said contract of guar- anty to the plaintiff herein. VI. That there is now due and owing to plaintiff from the said L. K. and M. C. K., trading as E. R. Co., by reason of the aforesaid advances of money, the sum of $ , no part of which sum has been paid, although duly demanded, nor has the said L. K. and M. C. K. or either of them elected to pay the afore- said indebtedness in silk ribbons pursuant to the terms of the said contract or guaranty, although duly demanded. VII. That pursuant to the terms of said contract of guaranty the plaintiff has demanded from defendant, F. E. S., the payment of the said sum of $ , due to plaintiff from the said L. K. and M. C. K., trading as E. R. Co., as aforesaid, but the defend- ant, S., has refused to pay plaintiff the said sum of $ , and there is now due and owing to plaintiff by defendant, F. E. S., the sum of $ , no part of which has been paid. VIII. That the defendants, T. C. S. and W. R. S., are residents of the borough of , county of , State of , that they have an interest in plaintiff's claim against the defend- ant, F. E. S., by reason of a certain assignment of a part of said claim against said S. made to them by the plaintiff herein, and on information and belief said S. has knowledge of said assignment; that before bringing this action plaintiff requested said defend- ants, T. C. S. and W. R. S., to join as coplaintiffs in this action, but they refused so to do and for that reason they are made defendants herein and no personal claim is made against either thesaidT.C.S.orW.R.S. Wherefore [demand for money judgment]. Form No. 385 Purchase of Merchandise ^ I. That at all the times hereinafter mentioned they were and ^ From Schinasi v. Lane, 191 N. Y. (memo.) ; in -which the plaintiff succeeded. Complaints 537 Guaranty now are copartners in business under the firm name and style of "S.B." II. That on or about the day of , 19 , the defendant duly entered into an agreement in writing with the plaintiffs herein, in and by which he guaranteed the payment of any bills that the R . C. & T. D., Association of might con- tract with the plaintiffs from said date until ,19 , to the extent of $ III. That plaintiffs thereafter, in pursuance of said agreement, duly sold and delivered to the said R. C. & T. D., Association of , goods, v.ares and merchandise between about the day of , 19 , and the day of , 19 , at agreed prices, and amounting in the aggregate to the sum of $ IV. That the said R. C. & T. D., Association of is entitled to a credit and for payments heretofore made upon the above-mentioned purchases of $ , leaving a balance due and owing thereon to said plaintiffs of $ , with interest, no part of which has been paid,, although payment thereof has been duly demanded. V. That plaintiffs duly notified the said defendant from time to time of the amount of purchases made by the R. C. & T. D., Association of and duly demanded from said defendant prior to the commencement of this action the payment of said sum of $ , but that the defendant has wholly neglected and refused to pay said, sum. Wherefore [demand for money judgment]. Form No, 386 To See That Seller Is Paid ^ I. That at all the times hereinafter mentioned the plaintiff was and now is a foreign corporation duly created, organized 1 From Helios-Upton Co. v. Thomas, 96 App. Div. 401; 89 Supp. 222; aff'd, 184 N. Y. 385; in which f he plaintiff recovered. The judge's charge in this case so clearly states the law as to guaranty that it is reproduced in this note as follows: Leventeit, J. Gentlemen of the Jury: This action is on a guarantee. 538 Bradbury's Forms of Pleading Guaranty and existing under and by virtue of the laws of the State of New Jersey, and duly authorized to carry on business in the State of New York. II. That at all the times hereinafter mentioned the defendants The issues are few and well defined. The plaintiff was a corporation engaged in the manufacture of storage batteries. In the year 1901 the General Carriage Company was a corporation engaged in the business of letting automobiles, for which it required such batteries as the plaintiff was making. The defend- ants, Orlando F. Thomas and Edwin M. Post, were copartners under the name of Thomas & Post at the time of the transaction in controversy, and one of them, Mr. Thomas, was the treasurer of the General Carriage Company. Through him, some time in February, 1901, that company negotiated with the plaintiff for the purchase of five batteries, but the plaintiff claiming to be ignorant of the financial standing of the General Carriage Company declined to accept its order unless the defendants would bind themselves to be answer- able for the purchase price of the batteries in the event of the default of the General Carriage Company and the defendants, having agreed to do so, plain- tiff accepted an order from the General Carriage Company for the delivery to it, in the city of New York, of five No. 3 storage batteries at $498 each, payment to be made in sixty days after the date of shipment from Chicago, provided the batteries proved at the expiration of that time to be in good operative condition, and it was also agreed that the title of the batteries, imtii they were paid for, should remain in the plaintiff. Thereafter, and early in March, the plaintiff shipped to the General Carriage Company five No. 3 storage batteries, and so as to secure a written acknowledgment from the defendants of their guarantee the plaintiff, on March 2, 1901, wrote them as follows: "Messrs. Thomas & Post, 71 Broadway, New York City, Gentlemen: In accordance with our understanding with you we have shipped the General Carriage Company five of our No. 3 storage batteries. These batteries are our property, and are to remain so until paid for; it being understood that you agree that we shall be paid for these five batteries at the rate of $498 each, delivered in New York, sixty days from date of shipment, providing the bat- teries are at that time in good operative condition. Kindly confirm this understanding to 197 Water street, New York. Yours truly, Helios-Upton Company — King Upton." The defendants replied, on March 6, 1901, as fol- lows: "Helios-Upton Company, 197 Water street, New York City. Gentle- men: We are in receipt of your favor of March 2nd, regarding purchase of five No. 3 storage batteries, and your understanding is the same as ours. Yours truly, Thomas & Post." As you will observe, the plaintiff did not become entitled to payment for the batteries until the expiration of sixty days after shipment, and then only provided that at that time the batteries were in good operative condition. If they were in such condition then, of course, the de- fense based on the contrary condition necessarily fails. That they were not in such good operative condition is insisted upon by the defendants; and if they were not in such good operative condition and the plaintiff was at fault Complaints 539 Guaranty were and now are copartners carrying on and engaged in business in the State of New York under the firm name of T. & P. III. That on or about the day of , 19 , the and the bad condition of the batteries was due to any act of omission or com- mission on the part of the plaintiff, was due to inferior or defective manufac- ture or construction, then the p'.aintiff cannot press any claim for payment against the General Carriage Company, or against the defendants. The plain- tiff, however, declares that the batteries were properly made; that they were, as one witness stated, in first class condition when they left the factory of the plaintiff in Chicago, and that with ordinary care, use and handling would have continued for sixty days, and much longer, to be in good operative condition. The plaintiff contends that the batteries were misused and abused by the General Carriage Company, that they were overworked and overcharged, and that for that reason alone they were not in the warranted condition at the end of the sixty days. The defendants, on the other hand, contend that the bad condition of the batteries was due to unskillful and improper manu- facture for which plaintiff was alone responsible, and charges that when the batteries were delivered they were in such poor condition that notwithstanding careful use they were not at the end of sixty days in good operative condition; they ascribe that faulty condition entirely to the plaintiff. Here, then, is presented one of the issues of fact upon which the rights of the parties depend. If the batteries, were not, at the end of the sixty days after shipment in good operative condition and that condition was not due to carelessness and improper use and treatment of them by the General Car- riage Company, plaintiff cannot succeed in the action. If after reviewing all the evidence bearing upon the question you conclude that the batteries were not in the warranted condition and that the fault was in the manufacture or you are unable to say whether the bad condition arose from imperfect manu- facture by the plaintiff or from improper use of the batteries by the General Carriage Company, you will return a verdict for the defendants. Even if you conclude that at the designated time the batteries were in good operative condition, or, if in bad condition, that such bad condition was in no wise chargeable against the plaintiff, but was due to improper use by the Gen- eral Carriage Company, the plaintiff would still not be entitled to a verdict unless you determine in its favor another issue which is here presented, namely: The defendants claim that the plaintiff, at the instance of the General Carriage Company, abrogated and modified certain conditions of the contract of sale and extended the General Carriage Company's time of payment to October 1, 1901. If that is so, if the plaintiff agreed to modify the contract of purchase, if it consented to the substitution of another contract in its stead, or to the modification of its terms or to the extension of the General Carriage Company's time for payment beyond the sixty days after shipment, plaintiff thereby absolved and released the defendants from all obligation under their guarantee and your verdict should then be in their favor. Apply the evidence pro and con upon that subject, and, if you reach the 540 BRADBtjRY's Forms of Pleading Guaranty defendant, 0. F. T., requested the plaintiff to sell to the G. C. C, a corporation organized and existing under the laws of the State of New Jersey, of which he was an officer, five sets of forty cell No. 3 batteries at $498 each, to be delivered in New York, the said batteries to be paid for sixty days from date of shipment, provided the batteries were at that time in good operative con- dition, title to the said batteries to remain in the plaintiff until the said batteries were paid for. IV. That on or about the day of , 19 , in order to induce the plaintiff to sell to the said G. C. Co. said five sets of batteries upon the terms and conditions aforesaid, the defendants, E. R. T., 0. F. T. and E. M. P., jointly and severally guaranteed and promised in writing to be answerable to the plain- tiff for the payment by the said G. C. Co. of the agreed price of said batteries sixty days from the date of the shipment of said batteries to New York, provided the batteries were at that time in good operative condition. V. That this plaintiff afterwards and on or about the day of 5 19 , and on the faith of said guarantee, sold and delivered to the said G. C. Co. at its request, five sets of forty cell No. 3 batteries on the terms and conditions set out in para- graph III of this complaint. VI. That sixty days have elapsed since the date of shipment of said batteries to New York, and that said batteries were in good operative condition at the expiration of said sixty days, but that the same have not been paid for by the said G. C. Co. conclusion that there was such an interference by the plaintiff with the original contract itself, though the bad condition of the batteries was attributed to the acts of the General Carriage Company, you will return a verdict for the de- fendants. But if you find that there was no interference by the plaintiff with the orig- inal contract, but that it remained unchanged and intact in all its terms and provisions, and if you further find that the batteries were at the end of sixty days after shipment in good operative condition, or if you find that they were not in such condition at that time, but that the plaintiff was in no wise respon- sible for their actual condition, then your verdict will be in favor of the plain- tiff in the sum of $2,851.05. That sum is composed of $2,490, principal, and $361.05, interest. Complaints 541 Guaranty and that this plaintiff has demanded the return of the said bat- teries or payment of the sum of $2,490, the agreed purchase price of said batteries, from the said G. C. Co., but said G. C. Co. has not returned the said batteries or paid the plaintiff the agreed pur- chase price or any part thereof; and that there is now due and owing to this plaintiff from the said G. C. Co. the sum of $2,490, the agreed price of said batteries, and that the said sum of $2,490 or no part thereof has been paid to this plaintiff by the said G. C. Co., of all of which due notice was given to the defendants. VII. That the said sum of $2,490 or no part thereof has been paid to the plaintiff by the defendants. VIII .' That the said G. C. Co. is insolvent and is in the hands of one of these defendants, to wit, O. F. T., as receiver, duly appointed by this court, and that a judgment against said com- pany wo\i\d be of no value, which these defendants well know. IX. That demand has been duly made upon 0. F. T., as re- ceiver, as aforesaid, for the payment of said sum of $2,490, but the said sum or no part thereof has been paid to the plaintiff by said receiver. X. Upon information and behef, plaintiff alleges that neither the said G. C. Co., nor the said receiver is able to deliver said goods, because they are not in their possession. Wherefohe [demand for money judgment]. 542 Bradbury's Forms of Pleading Money Lent CHAPTER XVI MONEY LENT FORMS NO. PjVQj; 388. Money loaned 542 389. Money loaned by plaintiff's intestate 543 390. Foreign statute of limitations; money lent 544 Form No. 388 Supreme Court, Money Loaned ^ county. St. James Company, Plaintiff, against The Security Trust and Life Insur- ance Company, Defendant. The plaintiff complaining of the defendant, alleges : I. That this plaintiff is and at all the times herein mentioned was a domestic corporation. II. That the defendant is and at all the times herein men- tioned was a foreign corporation organized under the laws of the State of III. That heretofore and on or about the day of , 19 , this plaintiff loaned to the defendant at its special instance and request, the sum of $ , which sum the defendant agreed to pay upon demand to the plaintiff, with interest at six per cent. That although duly demanded, no part of said sum has been paid, and there is now due to the plaintiff ^ From St. James Company v. Security Trust & Life Ins. Co., 178 N. Y. 560; aff'g, without opinion, 82 App. Div. 242; 81 Supp. 739; in which a judg- ment for the plaintiff was affirmed. Complaints 543 Money Lent on account of said loan, the sum of $ , with interest thereon from the day of , 19 . Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification.] Form No. 389 Money Loaned by PlaintifE's Intestate ^ I. Upon information and behef, that heretofore, and at the city of New York, and on or about the day of , 19 , and at the special instance and request of the above-named defendant, S. C. D., now deceased, loaned and advanced to said defendant and said defendant borrowed from said S. C. D., de- ceased, the sum of $ , and that thereafter and about the day of , 19 , both as an acknowledgment and evidence of said loan, made and entered into a memorandum in writing wherein and whereby she agreed and promised to repay on demand to said S. C. D., said sum of $ , with interest at the rate of per cent thereon, until such repayment. II. Upon information and belief that no part of said sum of $ , or any interest thereon as provided by said memo- randum or agreement, was heretofore at any time paid by this defendant to said S. C. D., during his lifetime. IV. That thereafter and on the day of , 19 > said S. C. D. died intestate at the city of New York, and that on or about the day of , 19 , letters of adminis- tration upon the estate of said S. C. D., deceased, were duly issued and granted to this plaintiff, by one of the surrogates of the county of New York, appointing this plaintiff administrator of all the goods, chattels and credits which were of said S. C. D., deceased, and of which said loan is a part, and that this plaintiff thereupon duly qualified as sudh administrator, and entered upon the discharge of his duties of his said office. V. That heretofore and before the commencement of this 1 From Dimon v. Keery, 54 App. Div. 318; 66 Supp. 817; in which a judg- ment for the plaintiff was affirmed. 544 Bradbury's Forms of Pleading Money Lent action, and on or about the day of > 19 , the payment of the said sum of $ , with interest, as aforesaid, was duly demanded of this defendant and refused, and no part thereof has been paid, and the whole thereof remains due and owing. Wherefore [demand for money judgment]. Form No. 390 Foreign Statute of Limitations; Money Lent ^ I. That heretofore the plaintiff and the defendant were resi- dents of the city of in the empire of Russia where the plaintiff resided until the day of , 19 . II. That the plaintiff thereafter removed from the said city of to the said city of on the day of , 19 , and arrived in the city of in the State of New York, on the day of , 19 , and has resided in the city of , State of New York, ever since. III. That the defendant thereafter moved from the said city of to the city of in the empire of Russia, and that after his removal to the city of in the empire of Russia, he emigrated to the State of New York, in the United States, on or about the day of > 19 , and that the defendant had not been a resident of the State of New York prior to that time, and that ever since that time the defendant has been a resident of the State of New York. IV. That in the empire of Russia, no presumption of payment arises, and no action need be commenced within ten years after the cause of action accrued upon a contract, obligation or lia- bility, expressed or implied, that is to say, at any time within sixteen years after the cause of action hereinafter mentioned arose, could an action have been brought in the empire of Russia upon the cause of action hereinafter stated, without being af- fected by the statute of limitations. ' From Frindel v. Sohaikewitz, 16 App. Div. 143; 45 Supp. 104; in which a judgment for the plaintiff was affirmed. Upon the first trial the defendant prevailed, but this judgment was reversed and a new trial ordered. 1 App. Div. 214; 37 Supp. 172. Complaints 545 Money Lent V. That the plaintiff, at the time and at the places hereinafter mentioned in the bill of particulars hereto attached, and which is made a part of this complaint, lent to the defendant, the sums of money hereinafter stated in said bill of particulars, and re- .spectively set forth and shown on the same lines with the re- spective dates and places where the said money was loaned to the defendant by the plaintiff, all of which sums were respec- tively loaned to the defendant by the plaintiff, on condition that they should be repaid on demand, with interest, together with the amount of the loans made by plaintiff to defendant prior to the loaning of such sums. VI. That in the month of , 19 > the defendant ac- knowledged in writing his, the defendant's, debt to the plaintiff, heretofore, as above mentioned, being the aggregate of moneys loaned by the plaintiff to the defendant up to that date, and promised to pay the same, asking for additional loans, and also promised to repay such loans by plaintiff to defendant made in the past, and those to be made by plaintiff to the defendant. VII. That the total amount of money loaned to the defendant by the plaintiff in Russia is roubles and kopeks, which is equal to the amount of $ in American money, and the amount loaned by plaintiff to defendant in is $ , and that the defendant promised to repay the plain- tiff in American money. VIII. That the legal interest in Russia is at the rate of per cent per annum. IX. That prior to this action, the plaintiff duly demanded from the defendant payment of said sums of money, and the aggregate thereof with interest, but no part thereof has been paid. Wherefore [demand for money judgment]. Vol. 1^35 516 Bradbury's Forms of Pleading Money Had and Received CHAPTER XVII MONEY HAD AND RECEIVED 1 FORMS NO. PAGE 395. Paid under mistake of fact 546 397. Mistake in identity of property purchased; recovery of purchase price paid 550 398. Money paid under mistake; forged county note '. 553 399. Contract requiring buyer to pay duties; action to recover duties re- funded by government 555 400. Money received by attorney and agent from life insurance for account of the plaintiff 558 401. Recovery of sum paid by insurance company to assignee for life pol- icy, whose debt for which the assignment was made had already been paid 559 402. Money paid for specific purpose applied to other indebtedness 560 Form No. 395 Paid Under Mistake of Fact ^ Supreme Court, county. Nathaniel T. Bacon, Plaintiff, against Ignatius R. Grossman, Defendant. The plaintiff complaining of the defendant, alleges: 1 An action for money had and received is one depending upon general principles of equity for the maintenance of plaintiff's claim to the money, and the defendant can be liable no further then the money he has received and as against the claim for such money may put in evidence anything which shows or tends to show that the plaintiff is not entitled in equity to the whole of his demand or any part of it. New England Water Works v. Farmers' Loan and Trust Company, 54 App. Div. 309; 66 Supp. 811; Sabinson v. Herter, 30 Misc. 439; 62 Supp. 433. Money paid in consideration of immoral sexual intercourse cannot be recovered. Piatt v. Elias, 186 N. Y. 374. A demand is usually a prerequisite to an action for money had and received. Munger v. Albany City Nat. Bk., 85 N. Y. 580. ^ From Bacon v. Grossmann, 71 App. Div. 574; 76 Supp. 188; where a judg- ment dismissing the complaint was reversed and a new trial ordered. The plaintiff eventually recovered. See 90 App. Div. 204; 86 Supp. 66. Complaints 54? Money Had and Received I. That heretofore, to wit, on November , 19 , the defendant was the owner of 310 shares of the preferred stock of the N. E. G. Co., a corporation duly organized and created under and by virtue of the laws of the State of Minnesota. II. That heretofore, and while said defendant was the owner of said 310 shares of stock, to wit, on November , 19 , said defendant made, executed and delivered to and with the G. E. Co., a corporation duly organized and created under and by virtue of the laws of the State of New York, a certain agree- ment bearing date the said day of , 19 , of which said agreement, and of the agreement therein referred to and thereto attached, a true and correct copy is hereto annexed, marked Exhibit "A," and is hereby made a part of this com- plaint. That the agreement dated the day of , 19 , so set forth as part of said Exhibit "A," was executed and delivered by each of said corporations, namely, the G. E. Co., and the said N. G. E. Co., to wit : on the day of , 19 . III. That thereafter, to wit, on the day of , 19 , said defendant duly assigned, transferred and set over the said 310 shares of stock of said N. G. E. Co. [which shares were then represented by certificates Nos. 11, 12 and 13 for 100 shares each, and by certificate No. 14 for ten shares, all issued in the name of said defendant by said N. G. E. Co.] by indorsing a transfer in blank on each of said certificates to L. H. & Co. of Boston, Mass., a partnership then consisting of H. L., G. C. L., H. L. H., C. F., J. J. and G. M. L., and at said time delivered said certificates so indorsed to said L. H. & Co., and at the same time and as part of the said transaction, said defendant by A. H., his agent and attorney thereunto, duly authorized, made, ex- ecuted and delivered to said L. H. & Co., a certain memorandum of agreement in words and figures following, to wit : "Memorandum that L. H. & Co., having this day transferred to I. R. G. 200 preferred shares G. E. Co., and received from him 310 preferred shares N. G. E. Co., subject as to these 310 preferred shares of an agreement with the J. E. A. Co., dated 548 Bradbury's Forms of Pleading Money Had and Received , 19 , concerning such preferred shares and such transfers having been made upon the terms that this agreement should be executed. It is agreed in consideration thereof, that the said transfer and receipt shall be a full satisfaction and discharge of any and all claims and demands which said I. R. G. may have against said L. H. & Co., or any of them on account of any transaction between them, relating to the purchase or sale of any shares of either of said companies or any other transac- tion that has been had between them up to this day. And the said I. E . G. shall upon request execute a release of all such claims an(,l demands under his own hand and seal. "Dated, , 19 . "I.E. G. "ByA.H." Which agreement was, thereafter, to wit, on , 19 > ratified and confirmed by the defendant. That, thereafter, to wit, on , 19 , the said L. H. & Co.j transferred 110 of said shares of N. G. E. Co., preferred stock, namely, those represented by certificates Nos. 12 and 14 afore- said, to this plaintiff by indorsements and delivery of said cer- tificates. IV. That thereafter, to wit: on the , 19 , the said G. E. Co., not knowing or having notice of said transfers of said 310 shares of stock or any of them, caused to be sent to said de- fendant a letter in words and figures following, to wit : [Letter head of G. E. Co. and date.] "I. E.G., Esq., "New York City. "Dear Sir:— " I hand you herewith check for $3,100 covering the guaranteed payments of $10 per share on 310 shares of the preferred capital stockof the N.G.E. Co., as per agreement, dated ,19 ." That said C. N. M., who signed the letter, was then a clerk of the Boston office of the said G. E. Co. That inclosed in the said letter, the said G. E. Co. sent said defendant a certain check of said G. E, Co., drawn to the order of the defendant for $3,100, Complaints 549 V Money Had and Received and also a certain form of release, and form of cash voucher as stated in said letter of which said form of release, a true and correct copy is hereto annexed, marked Exhibit "B," and hereby made a part of this complaint; and of which said cash voucher, a true and correct copy is hereto annexed, marked Exhibit "C," and is hereby made a part of this complaint. That said I. R. G. took the said check and caused the same to be pre- sented for payment and obtained payment thereof; and took and received the said sum of $3,100, to wit, on . That said defendants so took and received said sum of $3,100 for the use of said L. H. Co., and this plaintiff and thereupon, to wit, on J 19 , converted the sum to his own use. That said defendant concealed from said L. H. & Co., payment of said sum to him by said G. E. Co., and wholly neglected and refused to execute and deliver to said G. E. Co., either the said release, Exhibit "B," or the said cash voucher, Exhibit "C," aforesaid. V. That thereafter and without any knowledge or notice of said payment of $3,100, to wit, on , 19 , said L. H. B. Co. duly assigned, transferred and set over unto this plaintiff the remaining 200 of said 310 shares of stock so represented by said certificates numbered , , , and transferred and delivered said certificates to this plaintiff. That thereafter, to wit: on , 19 , this plaintiff caused the said 310 shares of stock of said N. G. E. Co., to be transferred on the books of that company to this plaintiff, and surrendered said certificates numbered , and , to the company for cancellation, which thereupon issued to the plaintiff, its certain certificate number , for said 310 shares. VI. That neither this plaintiff nor said L. H. & Co., nor any of them, knew or had any notice of the payment of said sum of $3,100 to said defendant as aforesaid until after the day of , 19 . VII. That thereafter, to wit, on , 19 , the said H. L., G. C. L., H. L. H., C. F., J. J. and G. M. L., partners as 550 Bradbury's Forms op Pleading Money Had and Received such L. H. & Co., duly assigned, transferred and set over unto this plaintiff for a valuable consideration in and by their right, title and interest in and to the said sum of $3,100, so received by said defendant from said G. E. Co., and of their claim to have and recover the same to the defendant. VIII. That heretofore, to wit, on the day of , 19 , plaintiff demanded of said G. payment of the said sum of $3,100, which was refused, and that neither said sum of $3,100 or any part thereof has ever been paid over to said L. H. & Co., or to this plaintiff, and defendant still retains the sum of all thereof, and there is now due this plaintiff from the said defend- ant the sum of $3,100, and interest thereon since the day of , 19 . Wherefore [demand }or money judgment]. [Signature and ofjice address of attorney, and verification.] Form No. 397 Mistake in Identity of Property Purchased; Recovery of Purchase Price Paidi I. That plaintiffs are copartners, doing business in the city of under the firm name and style of De W. & C. II. Upon information and belief that the defendants C. T. H. and W. T. M. are copartners doing business under the firm name and style of C. T. H. & Co., in the city of III. That defendants had and received the sum of $ , belonging to these plaintiffs, which was paid by plaintiffs to the defendants on or about , 19 , under mistake of fact on the part of these plaintiffs, and the facts as to which pay- ment are more fully set out hereinafter. IV. That on or about , 19 , the firm of A. C. W. & Co., as brokers, acting on behalf of the defendants in the city of , offered to sell to the plaintiffs a carload of 100 bar- rels of apple waste at $ per 100 pounds; that said brokers then and there tendered to plaintiffs what they repre- sented to be a sample of said carload, and represented that said carload was like sample; that, in fact, by error of said brokers 1 From De Wolff v. Howe, 112 App. Div. 104; 98 Supp. 262. Complaints 551 Money Had and Received and of these defendants the sample so exhibited and tendered to plaintiffs was a sample of another and different carload of apple waste other than the one the said brokers were authorized to sell to plaintiffs. V. That plaintiffs, in reliance on said sample shown them and said representations, agreed to purchase said carload as per sample, and on , 19 > paid to the defendants, constitut- ing the firm of C. T. H. & Co., the agreed price of $ and received a delivery order for the goods supposed to have been sold as aforesaid. VI. That in fact the carload called for by said order, delivery of which was tendered to plaintiffs, was unlike the sample shown plaintiffs, and greatly inferior in quality and value to the sample shown plaintiffs, and the said sample had been accidentally taken, without the knowledge of plaintiffs, from another and different car than contained the carload defendants intended to sell and tendered to plaintiffs. VII. That said facts and the variance between the sample and the carload tendered, were discovered by plaintiffs on , 19 , upon examining the said goods, at the railroad station depot on that date, and plaintiffs promptly advised de- fendants of said variance, and tendered the goods back to defendants, but defendants refused to refund said payment or any portion thereof, and declined and neglected to make delivery as per sample. VIII. That on or about , 19 , before discovery of said variance between sample and the carload tendered, defend- ants paid to plaintiffs $ , short weight on said carload, as per weight master's certificate thereof. IX. That on or about , 19 , said carload of apple waste, tendered as aforesaid, was sold at public auction in the city of , for the account of whom it may concern, after due and reasonable notice to plaintiffs and defendants for the sum of $ , and said sum was the market value thereof, during all the times herein mentioned, and defendants are en- titled to be credited with such sum. 552 Bradbury's Forms of Pleading Money Had and Received X. Upon information and belief that in all the matters and during all the times herein mentioned the defendants, constitut- ing the firm of C. T. H. & Co., were the agents of defendant, H. A. G., who was their undisclosed principal. For a second cause of action. I. Plaintiffs repeat as part hereof all the allegations contained in paragraphs first and second. II. Plaintiffs further allege that on or about , 19 , the firm of A. C. W. & Co., brokers, acting on behalf of defend- ants, in the city of , offered to sell to the plaintiffs a carload of 100 barrels of apple waste at $ per 100 pounds ; that said brokers then and there tendered to plaintiffs what they represented to be a sample of said carload, and represented that said carload was like sample; and plaintiffs thereupon contracted with the defendants that they would purchase said carload of apple waste as per sample at said price of $ per 100 pounds, and plaintiffs, on , 19 , paid to the defendants, constituting the firm of C. T. H. & Co., the agreed price of $ , and received a delivery order for the goods, supposed to have been sold to them as aforesaid. III. That, in fact, the carload called for by said dehvery order, delivery of which alone was tendered to plaintiffs, was unlike the sample shown plaintiffs, and greatly inferior in quality and value to the sample shown plaintiffs; that said fact and said variances between the sample and the carload were discovered by plaintiffs on , 19 , upon examining said goods at the railroad station depot on that date, and plaintiffs promptly advised defendants of said variance and notified defendants that they rejected said attempted delivery; that defendants re- fused to make delivery of goods to plaintiffs pursuant to said contract and sample, and after demand on the part of plaintiffs refused to refund said sum of $ , or any part thereof. IV. Plaintiffs reiterate as part hereof all the allegations of paragraphs eighth, ninth and tenth of this complaint. Wherefore [demand for money judgment]. Complaints 553 Money Had and Received Form No. 398 Money Paid Under Mistake; Forged County Note ^ For a first cause of action. I. The plaintiffs at all the times herein mentioned were co- partners in business in the city of , under the firm name of C. H. & Co. II. The defendant at all the times herein mentioned was and now is a municipal corporation, organized and existing under the laws of the State of III. On information and belief, that on or about , 19 , at the city of , in the State of , the de- fendant had and received the sum of $ , the money of the plaintiffs, to the use of plaintiffs. The facts and circumstances under which defendant had and received said money were as follows, viz. : On or about , 19 , one C. S. W. presented to the plaintiffs a certain paper writing purporting to be the obliga- tion of the defendant executed by H. A., its treasurer, under authority of its board of supervisors, promising to pay to the plaintiffs $ , with interest, on ; 19 , and the said W. represented to the plaintiffs that the said paper writing had been executed by the proper authorities of the defendant for the purpose of obtaining a loan from plaintiffs, and that defend- ant desired the proceeds of said loan to be placed to its credit with the county bank at in the State of , and thereupon the plaintiffs believing said paper writing to be genuine and relying upon said representations, agreed to loan and advance thereon to the defendant the sum of $ , and in accordance with the instructions of said W., drew a check for said sum of $ upon the N. U. Bank of City, payable to the county bank to the credit of the defend- ant and forwarded the said check or draft to the county bank, by whom it was duly received, and thereafter and on or about , 19 , the said sum of $ , the money of 1 From Hathaway v. County of Delaware, 185 N. Y. 368. 554 Bradbuey's Forms of Pleading Money Had and Received plaintiffs, was collected upon said check or draft by the county bank and paid or credited to defendant, so that defendant had and received the same, knowing it to be the money of the plaintiffs. The said paper writing upon which plaintiffs assumed to loan and advance to the defendant the said sum of $ , as plaintiffs have since discovered and are now informed and believe, was not a genuine instrument, but was false, forged, fictitious and has been repudiated by defendant as not binding or obligatory upon it, by reason whereof the said sum of $ , the money of plaintiffs thus had and received by defendant, was had and received by it to the use of plaintiffs as aforesaid. IV. Before the commencement of this action, plaintiffs de- manded payment from defendant of said money of plaintiffs so had and received by defendant, but no part thereof has been paid. For a second cause of action. V. The plaintiffs at all the times herein mentioned were co- partners in business in the city of , vmder the firm name of C. H. & Co. VI. The defendant at all the times herein mentioned was and now is a municipal corporation, organized and existing under the laws of the State of VII. On information and belief, that on or about , 19 , at the city of , the defendant had and received the sum of $ , the money of the plaintiffs, to the use of plaintiffs. The facts and circumstances under which defendant had and received said money were as follows, viz. : On or about , 19 , one C. S. W. presented to the plaintiffs a certain paper writing purporting to be the obligation of the defendant executed by H. A., its treasurer, under au- thority of its board of supervisors and promising to pay to the plaintiffs $ , with interest, on , 19 > and the said W. represented to the plaintiffs that the said paper writing had been executed by the proper authorities of the defendant for the purpose of obtaining a loan from the plaintiffs, and plaintiffs Complaints 555 Money Had and Received believing the said paper writing to be genuine and relying upon said representations, agreed to loan and advance thereon to the defendant the sum of $ , and thereupon drew and de- livered to the treasurer of the defendant, the check of the plain- tiffs for the sum of $ upon the N. Bank of Commerce of , which said check was collected by the defendant and the proceeds thereof, to wit, the sum of $ , the money of the plaintiffs, was on or about , 19 , had and received by the defendant as aforesaid with knowledge that it was the money of plaintiffs. The said paper writing upon which plaintiffs assumed to loan and advance to the defendant the said sum of $ , as plaintiffs have since discovered and are now informed and believe, was not a genuine instrument, but was false, forged, fictitious and worthless, and has been repu- diated by defendant as not binding or obligatory upon it, by reason whereof the said sum of $ , the money of the plain- tiffs thus had and received by defendant, was had and received by it to the use of plaintiffs as aforesaid. VIII. Before the commencement of this action plaintiffs demanded payment from the defendant of said money of plain- tiffs so had and received by defendant, but no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 399 Contract Requiring Buyer to Pay Duties ; Action to Recover Duties Re- funded by Government ^ I. That at all times hereinafter mentioned the plaintiff was and now is a resident of the city and county of New York. II. That all times hereinafter mentioned, up to and includ- ing the day of , 19 , E. F., G. F. and L. F. were copartners in the city of New York under the style and firm name of E. & G. F. & Co. III. Upon information and belief that on or about the 1 From Friend v. Rosenwald, 124 App. Div. 226; 109 Supp. 701; in which 4 judgment in favor of the defendant was reversed. ^56 Bradbury's Forms of Pleading Money Had and Received day of , 19 , E. R., I. R., H. R. and S. R., the de- fendant above named, were copartners in the city of New York, under the style and firm name of E. R. & Bro., and that before the commencement of this action the aforesaid E. R., I. R. and H. died, leaving the defendant above named as surviving mem- ber of the said firm. IV. Upon information and belief that on or about the day of , 19 , the said firm of E. R. & Bro., sold and deUvered to the said firm of E. & G. F. 31 bales of Sumatra to- bacco, weighing 5,140 pounds net. V. Upon information and belief that the said tobacco was purchased upon the agreement that in addition to the price of the said tobacco the customs duties thereon for the importation thereof into the United States were to be paid by the said firm of E. & G. F. & Co., and that the said firm of E. & G. F. & Co. were to give to the firm of E. R. & Bro. the money necessary to pay the said customs duties, and that the said firm of E. R. & Bro. was to turn over to the government of the United States of America the said money for such customs duties on the said tobacco, and that the said firm of E. R. & Bro. should endeavor to have the said customs duties assessed at the lawful amount, and that in case the appraisal of the said customs duties should be excessive, the said firm of E. R. & Bro. should protest against the levying thereof and take such proceedings as shall be neces- sary for the recovery from the United States of Ameri(Sa of the amount of such excess customs duties. That in the event that said excess customs duties were refunded to the firm of E. R. & Bro., then the amount of such customs duties so refunded to the said firm of E. R. & Bro., was to be returned to the said firm of E. & G. F. & Co. VI. Upon information and beUef that relying upon the afore- said agreement, the said firm of E. & G. F. & Co. paid to the said firm of E. R. & Bro. the price of the said tobacco and in addition thereto gave as customs duties thereon to the said firm of E. R. & Bro. the sum of forty-six cents per pound. VII. Upon information and belief that thereafter the said Complaints 557 Money Had and Received firm of E. R. & Bro. turned over the said forty-six cents per pound as customs duties on the said tobacco to the government of the United States of America. VIII. Upon information and beUef that the said firm of E. R. & Bro. filed such protest and took such action that on or about the first day of January, 1900, the said firm of E. R. & Bro. recovered from the government of the United States of America on account of excess customs duties levied by the said govern- ment on the aforesaid tobacco, the sum of $736.31, which sum has been duly refunded to S. R. and H. R. as the then surviving members of the firm of E. R. & Bro. IX. That the said firm of E. & G. F. & Co., on or about the day of , 19 , for a valuable consideration, transferred, set over and assigned all claims due or to become due against the said firm of E. R. & Bro. to S. F., the plaintiff herein. X. That the plaintiff had demanded payment of the said sum of the defendant to her, but that the said defendant has refused to pay the same or any part thereof to the plaintiff and remains indebted to the plaintiff in the sum of $731.36, with interest thereon from the day of , 19 . XL For a second and further cause of action herein against the defendant, the plaintiff repeats the allegations of paragraphs first, second, third, fifth and ninth of the first cause of action herein set forth and further alleges upon information and belief that on or about the fourteenth day of July, 1890, the said firm of E. R. & Bro. sold to and thereafter deUvered to, the said firm of E. & G. F. & Co. 53 bales of Sumatra tobacco weighing 9,036 pounds net. XII. Upon information and belief that relying upon the afore- said agreement, the said firm of E. & G. F. & Co. paid to the said firm of E. R. & Bro. the price of the said tobacco and in addition thereto gave as customs duties thereon to the said firm of E. R. & Bro. the sum of fifty-nine cents per pound. XIII. Upon information and belief that thereafter the said firm of E. R. & Bro. turned over the said fifty-nine cents oer 558 Bradbury's Forms of Pleading Money Had and Received pound as customs duties on the said tobacco to the government of the United States of America. XIV. Upon information and belief that the said firm of E. R. & Bro. filed such protest and took such action that on or about the day of , 19 , the said firm of E. R. & Bro. recovered from the government of the United States of America on account of excess customs duties levied by the said govern- ment on the aforesaid tobacco the sum of $2,819.23, which sum has been duly refunded to S. R. and H. R. as the then surviving members of the firm of E. R. & Bro. XV. That the plaintiff has demanded payment of the said sum of the defendant to her, but that the said defendant has refused to pay the same or any part thereof to the plaintiff and remains indebted to the plaintiff in the sum of $2,819.23, with interest thereon from the day of , 19 . XVI. For a third and further cause of action against the de- fendant herein the plaintiff repeats the allegations of paragraphs first, second, third and ninth of the first cause of action herein set forth and further alleges upon information and belief that on or about the first day of January, 1900, at the city of New York, H. R. and the defendant above named as surviving mem- bers of the firm of E. R. & Bro. received to the use of the plaintiff moneys belonging to her in the sum of $3,555.54, which sum, although demanded from the defendant by the plaintiff, the defendant has refused and failed to pay the same or* any part thereof to the plaintiff herein. Wherefore [demand for money judgment]. Form No. 400 Money Received by Attorney and Agent From Life Insurance for Ac- count of the Plaintiff ^ I. That the plaintiff is now and was at all of the times herein- after mentioned a resident of the village of , county of and State of II. Upon information and belief, that the defendant above 1 From Reed v. Hayward, 82 App. Div. 416; 81 Supp. 608. Complaints 559 Money Had and Received named is and now was at all of the times hereinafter mentioned an attorney and counsellor at law with office at the borough of , county and State of III. That this defendant in the year 19 , acted as the counsel and agent for the plaintiff in and about certain actions and pro- ceedings brought by this plaintiff to recover certain sums of money then due and owing from certain life insurance companies or associations to this plaintiff. IV. That while acting as such counsel and agent the defendant received, between the day of , 19 , and the day of , 19 , from the M. B. L. Association and from the B. S. B. Association divers sums of money for the plaintiff, amounting in the aggregate to the sum of $ That the defendant has returned to this plaintiff the moneys so received by him as aforesaid from said companies the sum of I , leaving a balance of $ in defendant's hands belonging to this plaintiff. V. That prior to the commencement of this action the plaintiff duly demanded from the defendant the delivery of said sum of $ to him, but that the defendant has neglected and re- fused to deliver the same to this plaintiff and has wrongfully and unlawfully converted the same to his own use, to the plaintiff's^ damage of $ VI. That no part of said sum of $ has been paid and that there is now due and owing from the defendant to this plain- tiff, said sum of $ , with interest thereon from the day of , 19 . Wherefore [demand for money judgment]. Form No. 401 Recovery of Sum Paid by Insurance Company to Assignee of Life Policy, Whose Debt for Which the Assignment Was Made Had Already Been Paid ^ I. That J. S. died in the county of , , intes- tate, on , 19 . 1 P>om Sharp v. Rose, 139 N. Y. 652. 560 Beadbuey's Foems of Pleading Money Had and Received II. That on > 19 , letters of administration on the goods, chattels and credits which were of said J. S., deceased, were duly granted to the plaintiff herein by the surrogate of the said county of , to whom jurisdiction in that behalf belonged. III. That said plaintiff has ever since been and now is duly qualified and acting administratrix of the goods, chattels and credits which were of said J. S., deceased. IV. That on or about , 19 , the defendant above named received and collected to and for the use and benefit of the said plaintiff from the M. L. I. Company of , the sum of $ , which said sum the defendant retains, and, though demanded, refuses to pay. , Wherefoee [demand for money judgment]. , Form No. 402 Money Paid for Specific Purpose Applied to Other Indebtedness ^ I. That the plaintiff is a national banking association, duly organized under the laws of the Congress of the United States, and located and doing business at , county, II. That the defendant is a domestic corporation duly organ- ized under the laws of the State of , and located and doing business at within said State. III. That on or about the day of , in the year 19 , the plaintiff was the owner of a contract for the build- ing of a state road near the city of , in the county of and State of , under an assignment from one G. A. R. of all his right and interest therein, and was engaged in completing said road according to the contract. That it became necessary to build said road for said bank to purchase a quantity of crushed stone, and that said bank did, on or about the day of , 19 , purchase and procure to be issued a draft for the sum of $ , payable to the said G. A. R., and de- 2 From Vilas Nat. Bk. v. Rockland Lake Trap Rock Co., 191 N. Y. (menio<). Complaints 561 Money Had and Received livered the same to him, to use the same as its agent in the pur- chase of stone from the defendant to be delivered to the plaintiff's order at the docks in That the said G. A. R., on or about this date, made a contract with the defendant for the said V. N. B., under and by which the defendant promised and agreed to deliver to the V. N. B., at the wharves in the city of , about yards of crushed stone of a certain size and quality, and of the value of $ , the delivery of the same to be immediate, and there- upon the said R., acting for the said V. N. B. of , in- dorsed said check and transferred the same to the said defendant in payment for stone so purchased, and the said defendant did thereafter present the same for payment for stone so purchased, and the said defendant did thereafter present the same for pay- ment, and obtained pajmicnt of the sum of $ thereon. That said defendent failed to deliver said stone to said plaintiff as aforesaid, to the damage of the plaintiff in the sum of $ That plaintiff is informed and believes that the defendant wrongfully applied said $ upon a note of said G. A. R., payable to it, which said note had not at said time matured. That the defendant had full knowledge that the said money was money of the V. N. B. of , and did not belong to the said G. A. R. That immediately thereafter the plaintiff demanded the return of the said $ or the fulfillment of the terms of the con- tract to dehver stone as aforesaid, which the defendant wholly failed to do. Wherefore [demand for money judgment\. Vol. 1^38 562 Bradbury's Forms of Pleading Account Stated CHAPTER XVIII ACCOUNT STATED FORMS NO. PAGE 412. Services as salesiran S62 413. Work, labor and services payable in bonds 564 414. Purchase and sale of stocks by broker 564 415. Purchase of stock; another form 566 416. Dissolution of partnership 567 417. Account stated by officer of corporation in books thereof as against himself; action by receiver of corporation 668 Form No. 412 Services as Salesman ' Supreme Court, county. Henry L. Herbert, Plaintiff, against Maurice R. Hellbut, Defendant. The plaintiff complaining of the defendant, alleges: I. That at all the times hereinafter mentioned the plaintiff was engaged in the buying and sellmg and delivery of coal at wholesale and retail in the city of , under the name and styleofH.L.H.&Co. II. That heretofore, and on or about , 19 , the plaintiff, under the name of H. L. H. & Co., entered into a con- tract in writing with defendant, by which defendant agreed to sell coal for the plaintiff exclusively for a period of one year, which was to begin as of the date of , 19 , a copy of ' From Herbert v. Hellbut, 119 App. Div. 426; 104 Supp. 699; in which it was held that the defendant was not entitled to a copy of the account set forth in the fifth paragraph of the complaint. Complaints 563 Account Stated which is hereto annexed, marked "A,'' and made a part of this complaint. III. That defendant under said agreement, Exhibit "A," entered into the employment of this plaintiff, and continued in said employment during the year 19 , and thereafter the plain- tiff and defendant by an agreement in writing signed by plaintiff and defendant, agreed to and did renew said agreement, Ex- hibit "A," for a further term of one year from , 19 , upon the same terms and conditions in all respects, and said defendant did continue in said plaintiff's employment under the said agreement, until , 19 . IV. That during said period, the defendant from time to time drew as he desired divers sums of money, on account of com- missions earned, and to be earned and to be received by him under said agreement. V. That on or about , 19 , the plaintiff and defend- ant had a settlement of all and every of their transactions aris- ing out of their business relations, as well as under said agree- ment. Exhibit "A," up to , 19 , and a dispute then and there arose as to the balance then due from said defendant to this plaintiff, and the accounts of each of said parties were then and there stated, whereby in settlement of said account it was then and there agreed by and between this plaintiff and defendant that there was due and owing from said defendant to this plaintiff on that day the sum of $ , which said defendant then and there promised and agreed to pay. VI. That on , 19 , defendant left this plaintiff's employ. VII. That between , 19 , and , 19 , the sales made and contracted to be made by the defendant amounted to the sum of $ . That one-third of the net profits upon said sales during that period under said agreement of employment aforesaid during said period amounted to $ . That during said period, said defendant drew mon- eys from time to time as he desired, and during said period drew the sum of $ , leaving a balance due and owing 564 Bradbury's Forms of Pleading Account Stated this plaintiff from defendant on the day of , 19 , amounting to $ , no part of which has been paid. Wherefore [demand for money judgm£nt]. [Signature and office address of attorney, and verification.] Form No. 413 Work, Labor and Services Payable in Bonds ^ I. That prior to the day of , 19 , one C. G. did render and perform certain work, labor and services for and on account and for the benefit of the defendant herein, and that on or about the said day of > 19 j an account was stated and had between the said C. G. and this defendant, and, upon said statement and accounting, there was found to be due and owing by the defendant to this plaintiff the sum of $ , which sum the defendant then and there promised and agreed to pay to the plaintiff in bonds of the H. and N. R. Co., which said bonds were alleged by the said defendant to be of the value of the said sum of $ II. That the said defendant did promise and agree to deliver the said bonds to the said C. G., but has neglected and refuses so to do. III. That before the commencement of this action the said C. G. duly assigned, transferred and made over to this plaintiff his said claim and demand against the defendant herein to this claim. Wherefore [demand for money judgment]. Form No. 414 Purchase and Sale of Stocks by Broker " I. That heretofore and prior to and on the day of , 19 , the plaintiff together with J. R. N., W. S. B. and B. M. K. were copartners, engaged in the business of bankers and brokers in the city of under the firm name and style of N. F. & Co. ' From Gerdinit v. Funk, 169 N. Y. 572; in which the plaintiff recovered. - From Frothingham v. Satterlee, 70 App. Div. 613; 75 Supp. 21; in which a judgment in favor of the plaintiff was afRrmed. Complaints 565 Account Stated II. That thereafter and prior to the month of , 19 , said W. S. B. and B. M. K. retired from such firm and said J. R. N. and the plaintiff acquired and succeeded to all their interest in said firm and continued to conduct said business under said firm name until on or about the day of , 19 , when the said N. died and the plaintiff is now the sole surviving partner of said firm. III. That prior to the day of , 19 , the de- fendant employed the firm of N., F. & Co. to buy and sell certain stocks and bonds for him and at his risk upon commission, and promised and agreed to pay said firm all sums advanced by the firm in the purchase thereof and also all commissions for the pur- chase and sale thereof. That the said firm did purchase and sell such stocks and bonds for the defendant, and on or about said day of , 19 , the account between said firm and the defendant was duly stated, and it was agreed that the defendant was indebted to the said firm on the day of ; 19 , in the sum of $ , which sum the de- fendant agreed to pay to said firm. ■ IV. That thereafter, from the day of > 19 , to the day of > 19 , the said firm continued to act as brokers under said employment for the defendant, and after the death of said N. this plaintiff continued to act as broker for the defendant^ and at his request bought and sold for the defendant at various times various stocks and bonds of all which purchases and sales the defendant was duly notified and made advances for him in the purchases of said stocks and bonds and earned commissions upon the said purchases and sales, which advances and commissions amounted in the aggregate on the day of , 19 , to the sum of $ , over and above all sums received from the defendant, and said de- fendant was on the day of , 19 , and is now indebted to the plaintiff on account of such purchases and sales in the sum of $ Wherefore [demand for money judgment]. 566 Bradbury's Forms of Pleading Account Stated Form No. 415 Sale of Stock; Another Form ^ I. That at all the times hereinafter mentioned the plaintiffs were and still are copartners in the city of as bankers and brokers, under the firm name and style of D., G. & Co. II. That at various times during the years 19 and 19 , plaintiffs were employed by defendant, as brokers, to make purchases and sales of stock and securities for the account of and at the risk of defendant on commission. III. That at various times during the period aforesaid these plaintiffs purchased and sold for the defendant under said em- ployment, at his request and for his account and risk, various stocks and securities, of which purchases and sales defendant was duly notified. IV. That in making such purchases and sales as aforesaid plaintiffs, at like risk, advanced large sums of money which with their commissions and other expenses incurred therein amounted in the aggregate, on the day of , 19 , to the sum of $ over and above all sums received from defend- ant or on his account. V. That from time to time during their said employment these plaintiffs made and rendered to the defendant accurate state- ments of the transactions between the defendant and these plaintiffs, which statements showed the whole amount paid, laid out and expended by plaintiffs for the defendant at his request and for his benefit, together with the amount of purchases and sales made by plaintiffs for his account with the commissions thereon and other charges and expenses made and incurred therein as well as all moneys received from the defendant or for which he was entitled to credit, which statement was received by the defendant and retained by him without objection being made thereto or any item thereof. VI. That on or about the day of ,19 , a 1 From Donald v. Gardner, 44 App. Div. 235; 60 Supp. 668. Complaints 567 Account Stated full, just and true account was made and stated between the defendant and these plaintiffs which showed a balance of $ due to these plaintiffs from defendant, over and above all sums received from defendant and for which he was entitled to credit, which said account was delivered to and received and accepted by defendant and by him retained without objection being made thereto or to any item thereof. VII. That by reason of the premises the defendant is indebted to these plaintiffs in the sum of $ , together with interest thereon from , 19 . VIII. That defendant has utterly neglected and refused to pay these plaintiffs, although frequently and duly requested so to do, the said sum of $ or any part thereof. Wherefore [demand for money jvdgment]. Form No. 416 Dissolution of Partnership ^ I. That heretofore and down to the month of , 19 , he was a member of the firm of H., H. & W., which firm con- sisted of this plaintiff, A. A. H. and M. J. W., and which firm was engaged in business at the city of , in the purchase, sale and handling of brick, and on information and belief that this defendant.is a domestic corporation. II. That prior to , 19 , the said firm of H., H. & W. handled brick for and for account of this defendant, and had other business relations with this defendant. III. That in the month of , 19 , the said firm of II., H. & W. was dissolved, and that at about the time of such dissolution the mutual accounts of said firm of H., H. & W. and this defendant were settled, stated and adjusted. IV. That upon such statement and settlement of the mutual accounts of the said late firm and of this defendant, there was shown a balance due from this defendant to the said firm of $ ; that a portion of this $ was agreed to be 1 From Hall f. \. Y. Brick & Paving Co., 95 App. Div. 371; 88 Supp. 582. j68 Bradbury's Forms of Pleading Account Stated immediately due the said late firm, and the remainder thereof it was agreed would be due said late firm upon the payment to this defendant of certain accounts. And this defendant promised to pay the said entire sum of $ upon payment of such accounts. V. Upon information and belief, the accounts aforesaid have been paid to this defendant. VI. That upon the dissolution of the said firm of H., H. & W. this plaintiff was made liquidating partner of the said late firm, with full power to collect and dispose of the assets of the said firm. That this plaintiff immediately upon being so appointed hqui- dating partner duly notified this defendant thereof, and that.; plaintiff has ever since continued to be and now is the liquidating partner of the said late firm, and has since , 19 , had every right to collect all the assets of and accounts due the said late firm. VII. That prior hereto and since the happening of the events upon which, under the aforesaid settlement of > 19 ; the aforesaid sum of $ became due to the said late firm, this plaintiff, as liquidating partner thereof, has demanded of this defendant payment of the said sum, but that no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 417 Account Stated by OiBcer of Corporation in Books Thereof as Agrainst Himself; Action by Receiver of Corporation ^ I. That at the times hereinafter referred to, the M. & H. Piano Co. was and still is a domestic corporation. II. That in a proceeding for the dissolution of said corporation in this court, the plaintiff in this action was duly appoirited tem- porary receiver of said corporation by an order made and entered on the day of , 19 , and thereafter by an order made and entered the day of , 19 , the plain- 1 From Spellman v. Muehlfeld, 166 N. Y. 245; in which the plaintifif re- covered. Complaints 669 Account Stated tiff was duty vested with all the powers and authority of a per- manent receiver, with respect to the said corporation, its property and assets, and that plaintiff has duly qualified and entered upon the performance of his duties as such receiver. III. That on the day of , 19 j at the city of , an account was stated between the said M. & H. Piano Co. and the defendant, and upon such statement a balance of $ was found to be due from the defendant to said company. IV. That no part of said sum has been paid. Wherefore [demand for money judgment]. 570 Bradbury's Forms of Pleading Subscription Papers CHAPTER XIX SUBSCRIPTION PAPERS FORMS NO. PAGE 421. To build a church. 570 422. In form of promissory note, for college purposes 571 Form No. 421 To Build a Church > Supreme Court, county. The Presbyterian Society of Knoxboro, Plaintiff, against Jacob Beach, Defendant. The plaintiff complaining of defendant, alleges: I. That the defendant is indebted unto the plaintiff in the sum of $ , with interest since the day of ,19 . II. That said indebtedness arose under the following circum- stances, to wit: Plaintiff, in the spring of the year 19 , being desirous of raising money for the purpose of erecting a church edifice in the village of , county of , and State of , for the use and occupation of the plaintiff, applied to defendant, and defendant then and there agreed with plain- tiff that if plaintiff would erect and build such a Presbyterian church edifice in said village of , that he, defendant, would pay to the plaintiff, for the purpose aforesaid, the sum of of $ III. And plaintiff further shows, that in consideration of said agreement, so made by said J. B., and relying upon the same, 1 From Presbyterian Society v. Beach, 74 N. Y. 72; in which the plaintiff recovered. Complaints 571 Subscription Papers the said plaintiff did erect and build said Presbyterian church edifice in said village of for the uses and purposes afore- said, and the plaintiff duly performed all the conditions on his part. IV. That previous to the erection of said church edifice said defendant, J. B., aflSxed his own proper signature to a subscrip- tion paper, and thereby agreed to pay plaintiff the sum of $ for the purpose of erecting and building said church edifice as aforesaid. V. That said defendant did not pay said sum of money or any part thereof, although often requested so to do, and the same remains unpaid and due and owing to plaintiff. Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification.] Form No. 422 In Form of Proimssory Note, for College Purposes ' I. The plaintiff complains of the defendant, and shows that said plaintiff is a corporation duly organized under and by virtue of the laws of the State of , to promote the cause of edu- cation, religion and morality, having its principal oflSce in the town of , in the county of IT. The plaintiff further shows that heretofore, and on or about the day of , 19 , the defendant duly made his promissory note or writing, of which the following is a copy: -$ Park, , , 19 "In consideration of founding a college at , county, , I promise to pay to the treasurer of College, or order, at the office of said college, the sum of $ on or before the day of , 19 , with interest annually at five per cent, for the purpose of endowing said College; and in case I shall die previous to that date, then this note shall become due and payable in one year from my decease." 1 FronTlcTuka College v. Ray, 167 N. Y. 96; in which the plaintiff recovered. 572 Bradbury's Forms of Pleading Subscription Papers III. That said note was duly delivered to the treasurer of said college, and thereby became, and ever since has been, and now is, the property of said College; that the treasurer of said College duly placed his name upon the back of said note or instrument, for the purpose of vesting the title absolutely in said College; that the said note or instrument in writing is now due and payable and remains wholly unpaid, except that the defendant paid the interest thereon for one year, on ,19 . IV. That the said plaintiff has complied with the terms of said note or writing, and duly founded, established and maintained a college at Park, , Wherefore [demand for money judgment]. Complaints 573 Landlord and Tenant CHAPTER XX LANDLORD AND TENANT FORMS NO. PAGE 425. Against assignee of lease 574 426. Rent; balance due after preiflises relet by landlord as agent of tenant under terms of lease 575 427. New lease by holding over 576 428. Action against assignee who has renewed by holding over 577 429. Renewal of lease by holding over of subtenant under lease prohibit- ing subletting 579 430. Action to recover damages by reason of breach of covenant to pay rent after removal of tenant by summary proceedings 584 431. Revival of covenant by holding over, which revival survives re-entry by the landlord imder summary proceedings 586 432. Action against tenant on covenant to pay taxes 588 433. Covenants to pay taxes and keep in repair as covenants running with the land 590 434. Tenant's covenant to pay taxes; liability for taxes assessed but not payable until after expiration of tenancy 594 435. Subrogation action by mortgagee of lease to recover ground rent and paid by him from assignee of lease 599 436. Action against tenant by landlord for cost of repairs which the ten- ant agreed to but failed to make 602 437. Action by landlord against tenant for cost of repairs made by land- lord which the tenant had covenanted to make 604 438. Damages caused to tenant by landlord renting building known to be imsafe and untenantable 606 439. Action against the landlord for damages caused by leak in water pipe 614 440. Tenant injured by falling clothes pole used by all tenants 616 441. Action against landlord for nuisance when property in possession of tenant 617 442. Action by lessee against landlord for damages caused to property of sublessee by landlord in making repairs after a fire when sub- lessee has received judgment against the lessee 620 443. Tenant against landlord; tenant's wife too ill to be moved although lease expired; death of wife alleged to have been caused by tear- ing down building 625 444. Independent collateral parol agreement in favor of tenant as to occu- pancy of other portions of the building; damages for breach 626 445. Sublessee against lessee for damages caused by hole in roof left by contractor of landlord who had agreed to make repairs ..,,..,,.. 629 574 Bradbury's Forms of Pleading Landlord and Tenant NO. PAGE 446. Action bv successor in interest of lessee to recover value of building from successor in interest of lessor under lease which provided that tenant should have right to remove building at termination of tenancy 632 Form No. 425 Against Assignee of Lease ^ Supreme Court, county: Sarah Meade [and others named], as executors under the last will and testament of John J. Studwell, deceased, Plaintiffs, against William J. Madden, Defendant. The plaintiff complaining of the defendant, alleges : I. That on or about the day of , 19 , by a lease in ^vriting, then made between plaintiffs and one T. P. M., plaintiffs leased to said T. P. M., the store, including the cellar under same, on the premises known as number , street, corner of avenue, in the borough of , city of , from the day of , 19 , for the term of years, then next ensuing, for the yearly rent of $ , for year ending , 19 , and $ for each succeeding year, papable monthly, which rent, said T. P. M. did thereby for himself and his assigns covenant to pay to the plaintiffs accordingly. II. That by virtue thereof, said T. P. M. on or about the day of , 19 , entered upon the demised premises. III. That thereafter, and during said term, to wit, on or about the day of , 19 , said T. P. M. assigned all his interest in said lease and the unexpired term to the defendant, ^ From Meade v. Madden, 85 App. Div. 10; 82 Supp. 900; in which a judg- ment in fg,vor of the plaintiff was affirmed. Complaints 575 Landlord and Tenant who thereupon entered upon the demised premises, and con- tinued in possession thereof, until , 19 . IV. That on the day of ^ , the sum of $ , rent for the twenty days in , at the rate of $ a month, and for the months of and , at the rate of $ , was due to the plaintiffs from the defendant, but no part thereof has been paid. Wherefoke [demand for money judgment]. [Signature and office address of attorney, and verification.] Form No. 426 Rent; Balance Due After Premises Relet by Landlord as Agent of Tenant Under Terms of Lease ^ I. That on or about the day of , 19 , the plaintiff leased to the defendant, and the defendant rented from the plaintiff, a certain furnished apartment in the dwelling house. No. , street, in the borough of Manhattan, in the city of New York, for the term of one year from the day of , 19 , to the day of , 19 , at the yearly rental of $ , payable in equal monthly in- stallments in advance on the first day of each month in said term. II. That thereafter pursuant to such lease, the said defendant entered into possession and occupation of said premises, but failed and neglected to pay the said installments falling due on the first days of , , , ; 19 , and the day of , 19 , amounting in all to the sum of $ III. That on or about the day of , 19 , the defendant left, quitted and ceased to occupy and abandoned the said premises, and refused to pay rent therefor, although the same was duly demanded. IV. That thereupon the plaintiff after due notice to the de- fendant, and with his consent entered and took possession of the premises, as the agent of, and for the purpose of reletting the said 1 From Rhein v. Rowe, 110 App. Div. 892; 96 Supp. 1143; in which a judg- ment for the plaii^tiff was Eiffirmed, 576 Bradbury's Forms of Pleading Landlord and Tenant premises for the defendant and not otherwise. That plaintiff has made diligent effort to relet the said premises at the best price obtainable for the benefit of the defendant, but has been unable so to do, except for a part of the months of and , 19 . And that the total amount received therefor was $ V. That although payment thereof has been duly demanded, no part of said sum of $ has been paid, except the said sum of $ , received as aforesaid; and that the sum of $ , with interest, is now due and owing by the defendant to the plaintiff on account thereof. Wherefore [demand for money damages]. Form No. 427 New Lease by Holding Over The plaintiff complains of the defendant and alleges that on the day of , 19 , at , in the county of , by a certain instrument in writing the plain- tiff did demise and lease unto the defendant, and the defendant did hire of plaintiff a certain messuage or storehouse, tenement and premises with the appurtenances particularly described in said lease, a copy of which is hereto annexed and made a part hereof, for $ per year, for one year, with the privilege of renting another year, on the same terms that said, defendant did rent, and stay in and occupy said premises another year, and has continued to occupy said premises under said lease from year to year from the time he went into the possession thereof, under and by virtue of said lease until the present time and continues to occupy the same thereunder without payment of the quarterly rent of S on the days of , , and in each year as agreed and provided in said lease, and as defendant is lawfully and justly bound to pay for and during the whole term he had thus occupied said premises as aforesaid ; that the plaintiff has fully and faithfully performed 1 From Willis v, McKinnon, 178 N. Y. 451. Complaints 577 Landlord and Tenant the said agreement and its covenants on his part, and that the said defendant has not kept or performed the said agreement on his part either express or impUed, and that before the commence- ment of this action there was due and in arrears from the said defendant to this plaintiff the sum of $ for the rent afore- said; that said store building was purchased by this plaintiff and H. J. T. in partnership and as copartners; that they were copartners in the mercantile business and doing business therein as such copartners under the firm name of T. & W. until the death of H. J. T. who died at on or about , 19 , and left this plaintiff in the lawful possession of said rented premises as the sole surviving partner; that this plaintiff continued to occupy said premises and to rent the same until the renting thereof to this defendant as aforesaid and under and by virtue of said lease. Wherefore [demand for money judgment]. Form No. 428 Action Against Assignee Who Has Renewed by Holding Over ' The plaintiff complains of the defendant, and alleges upon information and belief, that the defendant is a corporation, created and organized under the laws of the State of , having its principal office and place of business in the city of , in said county of Plaintiff further alleges that the plaintiff is, and at all the times hereinafter mentioned was, the owner of the premises, situated in the city of , in said county of , known by the street number as No. , street, the same being a building erected and intended for stores. Plaintiff further alleges, that on or about the day of , 19 , the plaintiff demised and leased by an instru- ment in writing, dated that day, the north store on said premises to one J. J. S., for and during the term of one year from said day of , 19 , said term to end on the day of , 19 , at the weekly rent of $ a week, 1 From Probst v. Rochester Steam Laundry Co., 171 N. Y. 584. Vox,. I— C7 573 Bradbury's Forms of Pleading Landlord and Tenant to be paid each week in advance. Said tenant was also to pay, in addition to said weekly rent, $ weekly in advance for the use of the water, the exact amount to be adjusted at the end of each quarter when meter bills became due, by the quantity of water used; the amount of $ per month was to be de- ducted from the water bill to be paid by.the plaintiff. It was also provided in said lease that the party of the second part, said S., might have the option of renewing said lease for two more years on the same conditions contained in the lease, provided he gave the plaintiff written notice of such intention three months before the expiration of the year, which written lease was duly signed and executed by the plaintiff and said J. J. S. Plaintiff further alleges, that upon the execution and de- livery of said lease, and on or about the date thereof, to wit: said day of , 19 , said S. entered in possession of said demised premises under said lease, and continued in possession of the premises until he assigned and transferred said lease and delivered possession of the premises to the defendant as hereinafter alleged. Plaintiff further alleges, upon information and belief, that on or about the day of , 19 , said S., for a valu- able consideration, duly assigned and transferred said lease and all of his interest thereunder, including the said option for the renewal of said lease therein contained, to the defendant, who thereupon entered into possession under said lease and con- tinued to occupy said premises, as the assignee of said tenant, down to the expiration of the lease on the day of , 19 , with the consent of this plaintiff, who accepted the defendant as the assignee and successor of said S., as his, plain- tiff's, tenant under said lease, said defendant paying the weekly rent therefor in advance to this plaintiff, as required by the terms of the lease; that the defendant upon the expiration of the de- mised premises covered by said lease, to wit : on the day of , 19 , did not vacate or surrender possession of said premises, nor remove therefrpm, but continued in possession of Complaints 579 Landlord and Tenant the same with the consent of the plaintiff, paying rent therefor down to and including the day of > 19 , and plaintiff alleges, upon information and belief, that the defendant still retains control and possession of said premises, and plaintiff alleges that at the time of the expiration of said lease, to wit: , 19 , said defendant elected to and did exercise the option contained in the lease to renew the same for two years longer; that the plaintiff consented thereto and waived the three months' notice of such intention as provided in the lease, and that thereupon said lease was renewed and extended as to the defendant for a further term of two years from the day of , 19 , at the same rent as provided in said lease for the original term of, one year, which said renewal term will ex- pire on the day of , 19 . Plaintiff further alleges that the defendant has not paid any rent since the day of , 19 , and that the de- fendant is indebted to the plaintiff for seventy-eight weeks' rent of said premises, from and including the day of , 19 , to , 19 , at $ a week, making a total amount of rent due and payable from the defendant to the plain- tiif to the time of the commencement of this action to be $ , no part of which has been paid. That after said rent became due plaintiff demanded payment of the same from the defendant, which was refused, and there was due and owing to the plaintiff at the time of the commencement of this action from the defendant the said sum of $ , with interest from ,19 . Wherefore [demand for money judgment]. Form No. 429 Renewal of Lease by Holding Over of Subtenant Under Lease Prohibiting Subletting ' For a first cause of action. I. That at all the times herein mentioned the defendant was and now is a domestic corporation. » From Sullivan v. Ringler, 59 App. Div. 184; 69 Supp. 38; aff'd 171 N. Y. 693. 580 Bradbury's Forms of Pleading Landlord and Tenant II. That on or about the month of , 19 , by an agree- ment in writing bearing date , 19 , duly executed by the respective parties thereto, one J. J. W. let and rented to the defendant, and the defendant hired and took from said J. J. W. all that certain house and lot of land known by the street num- ber , avenue, in the city and county of , for the term of five years from the day of , 19 , at the yearly rent or sum of $ , which the defendant promised and agreed to pay to the said J. J. W. or his legal repre- sentatives in equal monthly installments of $ on the day of each and every month during said term; and said defendant also promised and agreed to pay all rent or charge which was or might be assessed or imposed according to law upon the said premises for Croton water, when due, in each year during the term, and if the same was not so paid, the same should be added to the month's rent due, and be collectible as rent; a true copy of which agreement is hereto annexed, marked "A," and forms part of this complaint. III. That the said defendant entered into possession and occu- pation of said premises pursuant to the said agreement. IV. That the said J. J. W. departed this life on the day of , 19 ) seized of said premises, being at the time of his death a resident of , county, in the State of , . That said J. J. W. left a last will and testament, duly executed by him, bearing date the day 6i , 19 , and a codicil thereto, duly executed by him, bearing date the day of , 19 , in and by which will and codicil he nominated and appointed the plaintiffs as trustees thereof, and devised the premises in question to the said trustees in trust, to let and rent the same and collect the income therefrom and pay said income to his wife, E. W., during her natural life. That the said last will and testament and codicil were duly proved before and admitted to probate by the surrogate of the said county of , in the State of , which surro- gate had jurisdiction thereof, on the twentieth day of February, 1895, and that the plaintiffs are now the trustees thereunder. Complaints 581 Landlord and Tenant V. That pursuant to an order bearing date ,19 , of the surrogate's court of the county of , that being the county in which the said demised premises are situated, an ex- emplified copy of said will and codicil, and of the judgment, decree, or order admitting the same to probate, and of the proofs thereof, were filed and recorded in the ofRce of the surrogate of the said county of on the day of , 19 . VI. That on and after the day of , 19 , the defendant continued and remained in possession and occupation of said premises, whereby it elected to continue its said tenancy for another year commencing on the day of , 19 , upon the same terms and at the same rent and payable as in and by said agreement marked "A" was provided for and agreed to. VII. That in the month of , 19 , the plaintiffs com- menced an action in this court against the defendant to recover rent for the said premises for the month of > 19 , and in the complaint therein the allegations hereof, set forth above were duly alleged; that the defendant was duly served with the summons in said action and appeared by its attorneys and inter- posed an answer to said complaint. That the issues thus raised therein were duly tried in this court, and judgment was rendered in favor of the plaintiffs against the defendant as prayed in said complaint. That judgment was therein entered and the judg- ment roll filed in the office of the clerk of the county of on the day of , 19 , and said judgment re- mains in full force. VIII. That the defendant has not paid the rent for said prem- ises for the months of , and , 19 , amounting in the aggregate to the sum of $450, and that the same is now due and owing.from the defendant to the plaintiffs. For a second cause of action. I. That at all the times herein mentioned the defendant was and now is a domestic corporation. II. That in or about the month of , 19 , by an agree- ment in writing bearing date , 19 , duly executed by 582 Bradbury's Forms of Pleading Landlord and Tenant the respective parties thereto, one J. J. W. let and rented to the defendant, and the defendant hired and took from said J. J. W. all that certain house and lot of land known by the street num- ber , avenue, in the city and county of , for the term of five years from the day of > 19 , at the yearly rent or sum of $ , which the defendant promised and agreed to pay to the said J. J. W. or his legal repre- sentatives in equal monthly installments of $150 on the first day of each and every month during said term, and said defendant also promised and agreed that it would at all times during the said term and at its own cost and expense keep the said build- ing and premises and all appurtenances thereto clean and in good order and repair, an 1 make and do all repairs thereto, and would promptly comply with all rules and requirements of the board of health, police, and fire departments, and all other mu- nicipal authorities of the city of ; a true copy of which agreement is hereto annexed, marked "A," and forms part of this complaint. III. That the said defendant entered into possession and occu- pation of said premises pursuant to the said agreement. IV. That the said J. J. W. departed this life on the day of , 19 , seized of said premises, being at the time of his death a resident of county, in the State of . That said J. J. W. left a last will and testament, duly executed by him, bearing date the day of , 19 , and a codicil thereto, duly executed by him, bearing date the day of , 19 , in and by which will and codicil he nominated and appointed the plaintiffs as trustees thereof, and devised the premises in question to the said trustees in trust, to let and rent the same, and collect the income there- from, and pay said income to his wife, E. W., during her natural life. That the said last will and testament and codicil were duly proved before and admitted to probate by the surrogate of the said county of , in the State of , which surrogate had jurisdiction thereof, on the day of , 19 > and that the plaintiffs are now the trustees thereunder. Complaints 583 Landlord and Tenant V. That pursuant to an order bearing date , 19 , of the surrogate's court of the county of , that being the county in which the said demised premises are situated, an ex- emplified copy of said will and codicil, and of the judgment, decree or order admitting the same to probate, and of the proofs thereof, were filed and recorded in the office of the surrogate of the said county of on the day of , 19 . VI. That on and after the day of , 19 , the defendant continued and remained in possession and occupa- tion of said premises, whereby it elected to continue its said ten- ancy for another year commencing on the day of , 19 , upon the same terms and at the same rent and pay- able as in and by said agreement marked "A" was provided for and agreed to. VII. That in the month of , 19 , the plaintiffs com- menced an action in this court against the defendant to recover rent for the said premises for the month of , 19 > and in the complaint therein the allegations of this second cause of action above set forth w-ere duly alleged; that the defendant was duly served with the summons in said action and appeared by its attorneys and interposed an answer to said complaint. That the issues thus raised therein were duly tried in this court and judgment was rendered in favor of the plaintiffs against the de- fendant as prayed in said complaint. That judgment was therein entered and the judgment roll filed in the office of the clerk of the county of on the day of , 19 , and said judgment remains in full force. VIII. That on and after the day of 19 . the defendant continued and remained in possession and occupation of said premises, whereby it elected to continue its said tenancy for another year commencing on the day of , 19 , upon the same terms and at the same rent and payable as in and by said agreement marked "A" was provided for and agreed to. IX. That the defendant has not paid the rent for said premises for the month of , 19 , amounting to the sum of $150, 584 Bradbury's Forms of Pleading Landlord and Tenant and that the same is now due and owing from the defendant to the plaintiffs. Wherefore [demand for money iudgm£nt]. Form No. 430 4ctiQn to Recover Damages by Reason of Breach of Covenant to Pay . Rent After Removal of Tenant by Summary Proceedings ^ ■ I,. That at all the times hereinafter mentioned the defendants wer^j and they still are, partners, doing business in the borough of , in the city of New York, under the firm name and style of "E." II. That heretofore and on or about the day of ,19 , at the said city of New York, the plaintiff and. the defendants entered into a written indenture of lease, wherein and whereby plaintiff rented to the defendants the mezzanine floor in the second story of the premises known as the "S. Build- ings," at No. , street, in the borough of , city of New York, for a term of years commencing on the day of , 19 , and ending on the day of , 19 , and the defendants agreed to pay rent therefor at the yearly rate of $ a year from the day of ,19 , to the day of , 19 , and $ a year for the remainder of said term, and which said rent defendants covenanted and agreed to pay in equal monthly installments in advance punctually on the day of each and every month and every year during_said term. III. That in and by said lease defendants further covenanted and agreed that if they, the lessees, therein, should violate any of the covenants and conditions in said lease contained, or if the premises thereby leased or any part of said premises should become vacant during the said term of said lease, it should be at the option of the plaintiff, the lessor therein, to declare said in- denture void and to regain immediate possession of said premises in the same manner as for nonpayment of rent, or to take such 1 From Slater v. Von Chorus, 120 App. Div. 16; 104 Supp. 996; in which this complaint was sustained on demurrer by a divided court. Complaints 685 Landlord and Tenant other proceedings to recover possession as the said lessor might elect, and that the said lessees should be liable also for danaages. IV. That thereafter the said defendants entered and occupied said premises under said lease. V. That the defendants, contrary to their said covenants, neglected and refused to pay the rent of said premises for the months of , 19 , and ,19- , when the same became due; and that for that cause the plaintiff, on or about the day of , 19 , instituted summary proceed- ings in the municipal court of the city of New York, borough of , district, against the said defendants, in which said proceedings a precept was duly issued and served upon the defendants, whereupon and in obedience to said precept the defendants vacated said premises. VI. That defendants defaulted in the said proceedings and neglected, upon the return day of said precept and as in said pre- cept required, to show cause why the possession of said premises should not be delivered to the petitioner, whereupon, and on or about the day of , 19 , a warrant was duly issued in the said proceedings, and plaintiff duly recovered and took possession of said premises in accordance with the' terms and conditions of said lease. VII. That by reason of the defendants' breach of their said lease and of the said covenants thereof, plaintiff was unable after dihgent effort to rent said premises for the months of , 19 , and of , 19 , and plaintiff suffered the loss of rent for said months of , 19. , and of , 19 , to his damage in the sum of $ , with interest on $ , a part thereof from the day of , 19 , and on $ , the balance thereof from the day of , 19 , payment whereof has been duly demanded and' re- fused. Wherefore [demand for money jvdgment]. 586 Bradbury's Forms op Pleading Landlord and Tenant Form No. 431 Revival of Covenant by Holding Over, Which Revival Survives Re- entry by the Landlord Under Summary Proceedings ^ For a first cause of action. I. That on or about the day of , in the year 19 , the plaintiff, being the owner of the premises known as No. , street, in the borough of , city of , leased by a certain instrument in writing, dated , 19 , the entire first loft above the store floor in said premises to the defendants for the term of one year from the day of , 19 , for the yearly rent or sum of $ , payable in equal monthly payments in advance on the day of each and every month of said term, and that said defendants agreed thereby to pay said rent as aforesaid, and entered into possession and occupation of said premises pursuant to said lease and occupied the same during the whole of said year. II. That after the day of , 19 , and during the whole of said month of , and after the day of , 19 , and during a portion of the said month, said defendants continued and remained in the possession and occu- pation of said premises, whereby they elected to continue their said tenancy for another year, commencing on the day of , 19 , upon the same terms, covenants and condi- tions and at the same rent, and payable as in and by said lease, was provided for and agreed to. III. That the defendants have not paid the rent for the months of and , 19 , amounting to $ , or any part thereof; that payment of such sum has been demanded of the defendants and has been refused. For a second cause of action. IV. The plaintiff repeats and realleges' the allegations con- tained in the first and second paragraphs of this complaint, as if the same were herein set forth at length. > From Baylies v. Ingram, 84 App. Div. 360; 82 Supp. 891. Complaints 587 Landlord and Tenant V. That among the other covenants contained in said lease was the following : " And the said lessee hereby agrees to pay the said yearly rent as above stipulated, without any deduction, fraud or delay; it being understood that in case of nonpayment of the rent at the times and in the manner above provided, or if default shall be made in any covenants or agreements herein contained, the said lessor and the lessor's legal representatives shall have the right to enter the said premises, either by process of law or otherwise, and to relet said premises as agent of the said lessee and to re- ceive the rent therefor, applying the same to the payment of the rent due by these presents and holding the lessee and the lessee's legal representatives liable for any deficiency for any damage that may be caused by or through such entry or reletting." VI. That thereafter and during the month of , 19 , the said plaintiff caused the said defendants to be dispossessed in accordance with the statute, for nonpayment of the rent of the said premises for the month of , 19 , and said plain- tiff thereupon re-entered upon the said premises and sought to lease the same on behalf of the said defendants as in said original lease provided, but plaintiff was wholly unable to obtain a tenant for the said loft for any portion of the said year which elapsed after the said defendants were dispossessed, as aforesaid, and until the day of , 19 . VII. "That by reason of the premises, the plaintiff lost the rent for the first loft of the premises No. , street, for the entire period of time between the day of , 19 , and the day of , 19 , to the damage of the plaintiff $ ; that payment of such rent has been demanded of the defendants and has been refused. Wherefore [demand for money jvdgment]. 688 Bradbuey's Forms op Pleading Landlord and Tenant Form No. 432 Action Against Tenant on Covenant to Pay Taxes ^ I. The plaintiffs were at all the times hereinafter mentioned executrix and executor of and trustees under the last will and testament of J. G., deceased. II. On information and belief, that at the like times the de- fendants were copartners, carrying on the business of electricians in the borough of , in the city of , under the firm name of E. & A. III. That on or about the day of , 19 , by a lease in writing then made between the plaintiffs and the de- fendants under their hands and seals, the plaintiffs leased to the defendants for a term of years from the day of , 19 , at a yearly rental of the sum of $ , all the entire premises and buildings with the appurtenances, known and designated as and by the numbers of , and , avenue, in what is now the borough of , in the said city of . And the defendants in pursuance of said lease entered into possession of said demised premises. IV. That by an instrument in writing dated the day of ) 19 , signed and sealed by the said plaintiffs and defendants, the said lease was extended for an additional term of years from the day of > 19 , sub- ject to the same covenants, terms and conditions contained in said lease, save that the yearly rental should be the sum of $ instead of the sum of $ reserved in said lease, and the defendants continued and are now in possession of said premises. V. That the said lease contained a covenant on the part of the defendants, of which the following is a copy : "And said parties hereto of the second part [the defendants above named] further covenant, promise and agree, on and after " From Gridley v. Einbigler, 98 App. Div. 160; 90 Supp. 721; aff'd 182 N. Y. 566; in which the plaintiff recovered. The covenant on which the plaintiff sued is set forth in full in the report of the opinion of the Appellate Division. k Complaints 589 Landlord and Tenant the day of , 19 , and for and during the full term of this lease, to pay all water taxes which may be levied or imposed on said premises, whether general or special, and all increase in any other taxes above the present tax based upon an assessed valuation over and above the assessed valuation of said property for the year 19 , to wit, $ for each house and lot or $ for the three." VI. That while the defendants were in possession of the said demised premises as aforesaid, the said premises were duly assessed on the assessment roll of 19 , for the said borough of in the said city of at a valuation of $ and that on or about the or day of of said year, the taxes of the said year for the said borough of were duly confirmed and the tax rate for the said year fixed at $ per annum and the said demised premises thereby became subject to a tax in the sum of $ , which said tax became on the day of , in said year 19 , a lien on said demised premises. VII. That under and by virtue of the said covenant the sum of I out of the said tax sum of $ was payable by the said defendants as their proportion of the same and that the said sum of f has in violation of their said covenant been left wholly due and unpaid by the defendants. VIII. That on or about the day of , 19 , and before the commencement of this action, the plaintiffs were compelled to pay and did pay the sum of $ with $ of interest amounting in the whole to $ , in settlement of said proportion of said taxes, no part of which sum had been repaid by the defendants to the plaintiffs. IX. That on or about the day of , 19 , and before the commencement of this action, the plaintiffs duly noti- fied the defendants of said payment so made by them and de- manded payment from the defendants of the said sum of $ and that defendants refused to pay the same or any part thereof. . Wherefore [demand for mmey judgment]. 590 Beadbuby's Forms of Pleading Landlord and Tenant Form No. 433 Covenants to Pay Taxes and Keep in Repair as Covenants Running With the Land ^ For a first cause of action. I. That on the day of , 19 , and for some time prior thereto, one C. B. W. S., was the owner in fee of four certain lots of ground with the buildings thereon erected, situ- ated in the city of , and now in the borough of thereof, and known as street, and avenue, in said city of II. That on the day of , 19 , there was duly executed, acknowledged and delivered between the said C. B. W. S., as such owner and the defendant, 0. L. J., as tenant, a certain lease of the said premises, to wit, street, and avenue, in the city of , a copy of which lease is hereto annexed, marked Exhibit "A," and made a part hereof as herein specifically set forth. III. That subsequent to the execution of the said lease re- ferred to herein as Exhibit "A," and made between the said S. and the said defendant, 0. L. J., and on the day of , 19 , the said C. B. W. S. and H. K., his wife, by an instrument in writing, duly conveyed all his right, title and interest in and to the said premises street, and avenue, city, being the premises hereinbefore referred to in paragraph II of this complaint, and in Exhibit "A," to one A. S., subject, however, to the lease then existing and duly made, executed and delivered, of the premises in question, and made between the said S., as landlord, and the said defendant, J., as tenant, and that by subsequent and mesne conveyances through the said A. S., duly made and executed, the plaintiffs herein became, were, and still are the owners of the said premises in question, and took the same subject to the lease of the said S., to the defendant, 0. L. J., and to all the conditions and pro- visions thereof, and which lease is more particularly referred to ^ From Lehmaier v. Jones, 100 App. Div. 495; 91 Supp. 687; in which a judg- ment in favor of the deffendant was reversed. Complaints 591 Landlord and Tenant in paragraph II of this complaint, and that the said defendant, 0. L. J., duly attorned to these plaintiffs as the landlords of the said premises and paid rent therefor up to the time hereinafter complained of. IV. That by the terms and provisions of the said lease herein- before referred to in paragraph II and marked Exhibit "A," hereto annexed and made a part hereof, the said defendant agreed to pay for the premises in question the yearly rent or sum of $ , to be paid in six annual installments of $ each on the first days of , , , , , and , in each and every year during said term, and that on the day of > 19 , there became due and owing from the defendant to the plaintiffs the last annual installment of $ for rent for the months of and , 19 , and that plaintiffs herein have demanded the said rent from the defendant, but that the de- fendant has failed, neglected and refused to pay the same, or any part thereof, and that the whole amount of $ , with interest thereon from ,19 , is now wholly unpaid, and is owing and due to the plaintiffs from defendant. For a second cause of action. V. Plaintiffs reiterate and make part of this cause of action as if herein specifically set forth, those parts, portions or allega- tions in this complaint contained and set forth in the first cause of action thereof as paragraphs I, II, III and IV. VI. That by the terms and provisions of the said lease herein- before referred to in paragraph II of the first cause of action, and marked Exhibit " A, " hereto annexed and made part hereof, the said defendant agreed, in addition to the yearly rent or charge of $ , to pay the regular annual rent or charge, which is or may be assessed or imposed according to law upon the said premises for the Croton water, on or before the day of in each year during the term, and that the defendant violating his agreement has failed, neglected and refused so to do, and that there was left unpaid by this defendant the Croton water charge, which was duly assessed and imposed upon the 592 Bradbury's Forms of Pleading . .. Landlord and Tenant said premises for the years 19 ,19 , and 19 , amounting to the sum of $ , and which plaintiff herein were compelled to and did pay to the city of , on the day of , 19 , and that by reason thereof there is now due and owing from the defendant to the plaintiffs the sum of $ , with interest thereon from the day of > 19 , no part of which has been paid, although payment thereof has been duly demanded by plaintiffs from defendant. For a third cause of action. VII. Plaintiffs reiterate and make part hereof and of this cause of action as if herein specifically set forth, those parts, portions or allegations in this complaint contained and set forth in the first cause of action thereof as paragraphs I, II, III and IV. VIII. That by the terms and provisions of the lease herein- before referred to in paragraph II of the first cause of action and marked Exhibit "A," hereto annexed and made part hereof, the said defendant, 0. L. J., agreed in addition to the other things therein contained, to pay all taxes imposed upon said premises during said term within three months after they shall become due and payable, and plaintiffs allege that thei taxes imposed upon the said premises for the year 19 , amounting to $ , were left unpaid by the defendant and that months have expired since they became due and payable, and that the defendant herein, in violation of his said agreement, has failed, neglected and refused to pay the same, and that these plaintiffs on the day of , 19 , were compelled to and did pay the same, together with the penalty and interest on the same, amounting to $ , and that this defendant has failed, neglected and refused to pay the same, or any part thereof, to these plaintiffs, although demand therefor has been made, and that there is now due and owing from the defendant to the plaintiffs the sum of $ , with interest thereon from the day of , 19 . For a fourth cause of action. IX. Plaintiffs reiterate and make part hereof and of this cause of action as if herein specifically set forth those parts, portions Complaints 593 Landlord and Tenant or allegations in this complaint contained and set forth in the first cause of action hereof as paragraphs I, II, III and IV. X. That by the terms and provisions of the said lease herein- before referred to in paragraph II of the first cause of action, and marked Exhibit "A," hereto annexed and made part herein, the said defendant, 0. L. J., covenanted and agreed, in addition to the other things therein mentioned, to keep the said premises in good repair at his own expense, during said term, and further agreed that at the expiration thereof he would quit and surrender the said .premises in as good state and condition as reasonable use and wear thereof would permit, and plaintiffs allege that the defendant in violation of his said covenants, agreement and lease, did not keep the said premises in repair, and did not sur- render the said premises at the expiration of his said term, and which term expired on , 19 , in a good state of condi- tion, and that the condition in which plaintiffs surrendered the same was not such as the reasonable wear ' or use thereof per- mitted, in that the halls, walls, ceilings and floors of the said buildings, and principally those of the whole of the building, avenue, city, were destroyed, torn, defaced, fifthy, unclean, foul, the woodwork cut, defaced, demolished, and parts of the frames of the windows of the store destroyed, shutters missing throughout the building, and the place left in a filthy, unclean and unsanitary condition; that there are holes in the walls, doors, ceilings, floors and sidewalk covers; that the premises were left full of ashes scattered over the floor, and rub- bish scattered over the whole house, and each and every part thereof, and that plaintiffs will be compelled in order to let the premises, to place it in repair, and plaintiffs allege that by reason of the improper, bad and filthy condition of the premises, and particularly of avenue, city, and so left and permitted to be by the defendant, his agents, or servants, and ^ In action by landlord for failure of tenant to repair it must be shown that the condition of the building requiring repairs was not caused by or- dinary wear and tear. Hawkins v. Ringler & Co., 47 App. Div. 262 ; 62 Supp. 56. Vol. 1-38 594 Bradbury's Forms of Pleading Landlord and Tenant by reason of the failure of the defendant to comply with the pro- visions of his lease, as in paragraph mentioned, plaintiffs will be put to great expense in placing the buildings in habitable or tenantable condition, all to his damage in the sum of $ Wherefore [demand for money judgment]. Form No. 434 Tenant's Covenant to Pay Taxes; Liability for Taxes Assessed But Not Payable Until After Expiration of Tenancy ^ I. That the above-named parties are of full age. II. The above-named plaintiff is seized in fee simple of real estate in the borough of of the city and State of , of which the following is a description, viz. : [Insert description.] III. That by indenture of lease dated the day of , 19 , and recorded in said register's office in Liber 1703 of Conveyances at page 433 on the day of , 19 , made between B. M., as committee of the person and es- tate of C. V. C. M., party of the first part, and J. H. D. and J. H. C. P., parties of the second part, the party of the first part in consideration of the rents and covenants thereinafter reserved and contained on the part of the parties of the second part, granted and demised to them the said lots, to have and to hold the same to them, their executors, administrators and assigns, from the day of , 19 , for a term of years thence thereafter ensuing and fully to be complete and ended, yielding and paying therefor unto the party of the first part, his successors or assigns, rent of $ yearly and every year during the said term in four equal quarter-yearly payments; and in and by the said indenture the parties of the second part did, for themselves, their executors, administrators and assigns, covenant and agree to and with the party of the first part, his successors or assigns, that they should and would at their own 1 From Ogden v. Getty, 100 App. Div. 430; 90 Supp. 664; in which a judg- ment in favor of the plaintiff was entered on a submission of a controversy. This stipulation as to the facts with slight changes in the verbiage would of course be sufficient as a complaint. Complaints 595 Landlord and Tenant proper costs and charges, bear, pay and discharge all such taxes as should, during the said term, be laid, levied, assessed or im- posed on or grow due or payable out of or for or by reason of the demised premises or any part thereof by virtue of any present or future law or ordinance of the corporation of the city of IV. That during the term under the said indenture, the said party of the first part thereto and the said C. V. C. M., deceased; and by a final judgment of the Supreme Court of the State of , county of , dated the day of , 19 , rendered in an action for partition of the real estate whereof she, the said C. V. C. M., died seized, wherein C. de R. M. and another were plaintiffs and M. C. 0. and others were defendants, the said lots were assigned and set off to the said M. C. 0.; and upon her decease also during said term, seized of the same and leaving a last will and testaijient proved before a surrogate of the said county of on the day of , 19 , whereby all her real estate was devised to her three children in equal shares, title to the said lots and passed to her son the said F. L. 0., plaintiff herein, and her two daugh- ters, M. V. C. 0. and M. M. 0., who made and interchanged cer- tain deeds in pq,rtition of her said estate, by one of which deeds, dated the day of , 19 , and recorded in the register's ofhce of the county of , in Block Series (Con- veyances), sec. 3, Liber 39, page 318, on the day of , 19 , said lots were granted and assigned to said F. L. 0., the plaintiff herein, who thence thereafter has held and owned the same in severalty. V. That during the term under the said indenture of lease, the said parties of tb.c second part thereto, by instrument of assignment, dated the day of , 19 , and re- corded in said register's office of the county of in Liber 1970 of Conveyances at page 32, transferred the same to S. T.; and by a similar instrument dated the day of , 19 , and recorded in said register's office in the county of in Block Series (Conveyances), sec. 3, Liber 61, page 276, on the day of , 19 , the said T, trans- 596 Bkadbury's Fobms of Pleading Landlord and Tenant ferred the same to the said H. G., the defendant herein, who thence thereafter for the period of the unexpired residue of the term thereunder, viz., until the 'day of , 19 , possessed the said lots and paid therefor the said rent to the said F. L. 0. and paid the taxes due upon said lots for each and every year during his said term up to and including the taxes for the year 19 . VI. That the taxes for the year 19 upon said lots amount in the aggregate to the sum of $ , which said sum has not nor has any part thereof been paid by either of the parties to this action or by any other person whomsoever. VII. The taxes on said lots for the year 19 , arose from the tax proceedings duly conducted under and pursuant to the pro- visions of the Charter in such case made and provided. VIII. That in said proceedings each of said lots was included at a valuation of $ in an assessment by deputy tax commissioners commenced on the Tuesday of , 19 , and completed before the Monday of , 19 , under the direction of its board of taxes and assessments, and thereafter and until the day of , 19 , books called the annual record of the assessed valuation of said property, wherein said assessment had been entered in detail, were open for public inspection, examination and correction, pursuant to due advertisement of the fact by the said board. No application was made for correction in said valuation of either of the said lots and the same so remained therefor against the said H. G. on said day of , in the said books when the same were closed to enable said board to prepare assessment rolls of the said property for delivery to the board of aldermen of the said city; and to the said rolls when completed were annexed certificates of the said board of taxes and assess- ments as to the correctness thereof, in accordance with the en- tries in the said books, and the same thus certified were delivered to the said board of aldermen on the Monday of , 19 , at its meeting at noon of that day for the purpose of re- ceiving the same and performing other duties in respect thereto ifc» CoMPLAliSTta 507 Landlord and Tenant and prescribed by said charter; and on the day of ,19 , to which date said meeting was adjourned, the said board passed an ordinance providing that said rolls of the estates, real and personal, subject to taxation of and within the city of for the year 19 , be thereby ratified and con- firmed, and that the aggregate amount of the assessed valuation of said estates for such year be thereby ratified and fixed at the sum of $ , and also providing that upon the valuation included in said sum for the portion of said estates of and within said borough of [other than personal estates of such corporations, joint-stock companies or associations, as are by law, exempt from taxation thereon for state purposes] the rate of tax be fixed at per cent as a rate which with other rates thereby also fixed upon valuations included in said sum for the portions of said estates of and within each other borough of the* said city respectively, was necessary to the gross amount to be raised by taxation for the said year as also provided by the said ordinance. The said ordinance was adopted by the affirma- tive vote of or more than of all the members elected to the said board and upon being presented duly certified to the mayor of the said city, he within ten days after receiving it and on the day of , 19 , approved the same and thereupon the president of said board of aldermen in its name and as its act, caused to be properly estimated and com- puted, the said tax, and the same to be properly set down or extended in a of last column of the said rolls opposite the several sums set down therein for the valuation of said prop- erty, viz., the respective sums in dollars and cents to be paid as a tax thereon, rejecting the fractions of a cent, and also caused the unpaid water rates of each preceding year to be entered thereon or in the said books, and the sum so set down or extended in said column opposite each said sum of $ , was the sum of I , which taken together for both of said lots amount in the aggregate to the sum of $ , as aforesaid. IX. That thereafter and on or before the day of , 19 , said board caused said rolls when completed or a 598 Bradbury's Forms of Pleading Landlord and Tenant fair copy thereof to be delivered to the receiver of taxes of the said city with the proper warrant or warrants annexed, signed by its president and countersigned by the clerk of the said city, directing and requiring the said receiver of taxes to collect from the several persons therein named, the several sums mentioned in the said column and to pay the same from time to time when so collected to the chamberlain of the said city; and the said receiver of taxes upon receiving said rolls and warrants caused the same to be delivered at and filed in his office and by due advertisement for at least days, of the same having been delivered so to him and that all taxes thereon should be due and payable at his office on the Monday of , 19 , which day would be the day of , 19 . And that such taxes could not be paid on or before said day of , 19 , nor could a bill therefor be obtained before said day of , 19 . X. That at the expiration of the term of said lease, viz., on the day of , 19 , the said H. G., defendant herein, surrendered up the possession of said premises unto the said F. L. 0., plaintiff herein, and the said F. L. 0., plaintiff herein, did on said day accept from the said H. G., defendant herein, the possession of the said premises and has ever since retained the same. XI. That since the said Monday of , 19 , and before the submission of this controversy, the plaintiff has demanded that the defendant herein pay the said sum of $ , as and for the said taxes on said lots for the year 19 , but the said defendant has failed and refused to pay the same and claims that under the provisions, terms and conditions of said lease he is not liable therefor, nor is he required to pay the same, but that said taxes should be paid by the plaintiff herein. XII. That it is claimed by the said F. L, 0., plaintiff herein, that within the meaning of the said indenture of lease, the said taxes had been laid, levied, assessed or imposed on or grew due and payable out of or for or by reason of said demised premises at or before the said date in , 19 , when the said Complaints 599 Landlord and Tenant warrants for the collection thereof were received by the said re- ceiver of taxes and that the said H. G., the defendant herein, has to bear, pay and discharge the same. And it is claimed by the said H. G., the defendant herein, that within the meaning of the said indenture of lease, the said taxes had not been laid, levied, assessed or imposed or grown due and payable out of or for or by reason of said demised premises at or before the said date in , 19 , when the said warrants for the collection thereof were received by the said receiver of taxes and that he, the said H. G., defendant herein, should not be required to bear, pay and discharge the same. Plaintiff demands judgment that within the meaning of the said indenture, the said taxes had been laid, levied, assessed or imposed or grown due and payable out of or for or by reason of said demised premises at or before said date in > 19 , when the said warrants for the collection thereof were received by the said receiver of taxes and that he have judgment against the said H. G., defendant herein, for the sum of $ , the amount of said taxes, together with interest thereon. Defendant demands judgment that within the meaning of the said indenture of lease, the said taxes had not been laid, levied, assessed or imposed or grown due and payable out of or for or by reason of said demised premises, at or before the said date in , 19 , when the said warrants for the collection thereof were received by the said receiver of taxes and that he be not required to pay and discharge the same and that the claim of said F. L. 0., plaintiff herein, be dismissed upon the merits. Form No. 435 Subrogation; Action by Mortgagee of Lease to Recover Oround Rent and Taxes Paid by Him From Assignee of Lease ^ I. That the defendant, M. W., for the purpose of securing the payment to the plaintiff, C. W. D., of the sum of $ , with interest thereon, on or about the day of > 19 , executed and delivered to said plaintiff, C. W. D., a bond bearing 1 From Dunlap v, James, 174 N. Y. 411. 600 Bradbuby's Forms of Pleading Landlord and Tenant date on that day, sealed with her seal, whereby she bound her- self, her heirs, executors and administrators, in the penalty of $ , upon condition that the same should be void if the said defendant should pay to said plaintiff, C. W. D., the sum of money first above mentioned. II. And it was expressly agreed that the whole of said principal sum should become due at the option of said mortgagee if de- fault should be made in the payment of the ground rent on the days and at the times whereon the same should become payable reserved in the lease referred to in the hereinafter stated mort- gage, as in said mortgage set forth. III. That as collateral security for the payment of the said indebtedness, the said defendant, M. W., on the same day, executed, duly acknowledged and delivered to the said plaintiff, C. W. D., a mortgage whereby she granted, bargained and sold to the said plaintiff, C. W. D., the following described premises, with the appurtenances thereto, that is to say : [Insert description.] Together with all and singular the edifices, buildings, rights, members, privileges and appurtenances thereunto belonging or in anywise appertaining; and also, all the estate, right, title, interest, term of years yet to come and unexpired, property, possession, claim and demand whatsoever, as well in law as in equity, of the said party of the first part in said mortgage, of, in and to the said demised premises, and every part and parcel thereof, with the appurtenances; and also, the said indeilture of lease, and the renewal therein provided for, and every clause, article and condition therein expressed and contained. IV. That the said mortgage was duly recorded in the office of the register of the county of on the day of ,19 , in sec. 1, Liber 54 of Mortgages, page 443. That the ground rent upon the lease referred to in the aforesaid mort- gage, which became due and payable on the day of , 19 , has not been paid. That the same was due and payable, on said day of , 19 , and plaintiff has elected and now elects to deem the whole principal sum of the aforesaid bond and mortgage to be immediately due and pay- Complaints 601 Landlord and Tenant able, and there is now justly due to the plaintiff upon said bond and mortgage the principal sum of $ ' , together with interest thereon from the day of , 19 . That on or about said day of ,' 19 , said defendant, M. W., executed an agreement with the plaintiff, C. W. D., in language as follows : "Whereas M. W. has executed a bond of even date herewith, conditioned for the payment to C. W. D. of the sum of $ and interest and secured by a mortgage, of even date herewith, covering leasehold premises No. ; street, in the borough of , city of , and " Whereas it is intended that an amount sufficient to meet the amounts that shall grow due for the ground rent, interest and installments on said mortgage, taxes, water rates and insurance shall be accumulated from the rents of said premises. "Now this indenture witnesseth that I on each and every month, during the continuance of said mortgage, from the rents of said premises, shall be deposited with W., W. & S., attorneys and counsellors-at-law. No. , street. City, who agree to retain said amounts and deposit them in a trust company for the purposes aforesaid and to allow the trust company's rate of interest, to wit, per cent, while they remain on deposit as aforesaid, and said M. W. hereby agrees to pay, each and every month, until the aforesaid mort- gage is paid in full, to said W., W. & S., from said rents, said amount of $ "In Witness Whereof the said M. W. has hereunto set her hand and seal the day of ,19 ." [Signed.] V. That the defendant, F. T. J., is the present owner of the aforesaid leasehold premises and had full knowledge of said agreement and has continued to make payments under the terms thereof of I per month down to and including the month of , 19 . That payments due under said agreement for the months of „ , and , 19 , remain unpaid, except that $ has been paid on account thereof, 6C2 Bradbury's Forms of Pleading Landlord and Tenant although the defendant, F. T. J., as plaintiff is informed and believes, has received the rents of said premises for said months of , and , and has applied them to his own use. VI. That no other action has been had for the recovery of the said sum secured by the said bond and mortgage, or any part thereof. VII. That each and all of the defendants herein have or claim to have some interest in, or lien upon, the said mortgaged prem- ises or some part thereof, which interest or lien, if any, has ac- crued subsequently to the lien of the said mortgage, and is sub- ject and subordinate thereto. Wherefore, the plaintiff demands judgment, that the defend- ants herein, and all persons claiming under them or any or either of them, subsequent to the commencement of this action, may be forever barred and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises; that the said premises may be decreed to be sold according to law; that the moneys arising from the sale may be brought into court; and that 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 of this action, and the expenses of said sale so far as the amount of such moneys properly applicable thereto will pay the same; and that the defendant, F. T. J., pay to the plain- tiff any deficiency to an amount not exceeding $ , and that the defendant, M. W. , may be adjudged to pay any deficiency which may remain after appl}dng all of said moneys so appli- cable thereto; and that the plaintiff may have such further or other relief, or both, in the premises, as shall be just and equi- table. Form No. 436 Action Against Tenant by Landlord tor Cost of Repairs Which the Ten- ant Agreed to But Failed to Make ^ For a first cause of action. I. That on or about the day of , 19 , by 1 From Appleton v. Marx, 191 N. Y. 81. r- Complaints 603 Landlord and Tenant lease in writing then made between the plaintiffs, as trustees under the last will and testament of J. E. C, deceased, and the defendant under their hands and seals, the plaintiffs, as such trustees, leased to the defendant for the term of years from the day of , 19 ; at the yearly rent of I , payable in equal monthly payments of $ each on the day of each and every month during said term, in advance, the premises situated at the northwesterly corner of and streets in the city of and known as No. II. That thereafter the said defendant entered into possession of the said demised premises under and pursuant to the terms of the said lease on or about the day of , 19 ; and continued to use, occupy and enjoy the said premises down to the day of , 19 . III. That the said defendant has failed and refused to pay the sum of $ , a part of the monthly installment of $ which became due and payable pursuant to the terms of said lease on the day of , 19 , although the payment of the said rent has been fully demanded. And for a second and separate cause of action, the plaintiffs allege : I. That in and by a certain lease in writing bearing date 19 , made between them as trustees under the last will and testament of J. E. C, deceased, and the defendant, in and by which they, as trustees, leased to the defendant the premises known as No. street in the city of for the term of years from , 19 , it was, among other things, covenanted and agreed by the plaintiffs that as soon as it could conveniently be done after the commencement of the said term, they would paint the hallways of the said building, and put the basement water-closets in repair, and make such further repairs as said defendant might desire; but the whole amount to be expended by the plaintiffs for such hall painting, repairs to basement water-closets and further repairs desired by the de- fendant should not exceed $ ; and the said defendant 604 Bradbury's Forms of Pleading Landlord and Tenant covenanted and agreed that except as above provided, he would make all repairs inside and outside of the said building, which might be needful to the demised premises during his term, in- cluding repairs to all plumbing work and pipes, and would keep the demised premises in good order and repair during said term at his own expense and would comply with all the requirements of the board of health, superintendent of buildings, municipal authorities, and police and fire departments of the city of II. And the said defendant further covenanted that at the expiration of the paid term, he would quit and surrender the said premises in as good state and condition as reasonable use and wear thereof would permit, damages by the elements excepted, III. That the plaintiffs duly kept and fulfilled all the cove- nants and agreements on their part to be performed, and that the defendant entered into possession of the said premises, but has failed to keep the said premises in good repair, and to observe and keep his covenants as aforesaid, and has failed to quit and surrender the said demised premises in as good state and condi- tion as reasonable use and wear thereof would permit, damages by the elements excepted, but, on the contrary, allowed the said premises to fall into and remain in a condition of dilapidation and disrepair and quitted and vacated the same while in such condition and without any attempt at repair, and that by reason of defendant's breach of said covenants and of his neglect to keep said premises in good repair, plaintiffs have been injured and damaged in the sum of $ Wherefore [demand for money judgmen,t\. Form No. 437 Action by Landlord Against Tenant for Cost of Repairs Made by Land- lord Which the Tenant Covenanted to Make ^ I. The plaintiff alleges on information and belief that at the times hereinafter mentioned, the defendant was and now is a domestic corporation. 1 From Markham d. Da^'id Stevenson Brewing Co., 104 App. Div. 420; 93 Supp. 684; in which a judgment in favor of the defendant was reversed. Complaints 605 Landlord and Tenant II. That heretofore the plaintiff by an indenture of lease made between him and the defendant, bearing date , 19 , demised and leased to the defendant certain premises therein mentioned, a copy of which lease is hereto annexed and made a part of this complaint and marked "A." III. That the said defendant at the time of the execution by it of the aforesaid lease was then in possession of the premises therein described under a prior lease, which by its terms ex- pired , 19 , and thereafter defendant continued in possession under the lease dated , 19 , marked "A." IV. That during the term of said lease and while defendant was in possession of the premises therein described said defendant in violation of its covenants and agreements in said lease contained, by its neglect suffered the house therein mentioned to deteriorate and become dilapidated and broken down and which remained in that condition until the plaintiff restored the same in good condition as hereinafter mentioned. V. That on or about the day of , 19 , one of the municipal departments of the city of , namely, the department of buildings, notified the plaintiff and defendant that the said house in said lease referred to was unsafe and dangerous, and duly required that the same be made safe and secure by properly bracing and shoring rear wall at line of second and third story floor beams and removing all bulged and defec- tive portions of said wall and rebuild the same straight and plumb, and also to shore up floor beams of second and third story and take down southerly wall at rear of building to about feet west of entrance door to bottom of foundation and rebuild same according to law, also by shoring up all floor beams and fore and aft partitions and by replacing all rotted or defec- tive floor beams with others of sound material; also new posts in cellar underneath girders on proper foundations and in accord- ance with the law, all of which was caused by the neglect of the defendant as aforesaid. That the plaintiff thereupon both orally and in writing notified the defendant to comply with its covenants and agreements and 606 Bradbury's Forms of Pleading Landlord and Tenant to obey the rules and orders of the said building department aforesaid. VI. That said defendant neglected, failed and refused to keep and perform its agreement and covenants as thereto required by said lease, and notice from this plaintiff, and the plaintiff was thereupon and thereby compelled to and did expend the sum of $ in and about complsdng with and doing the work and furnishing the materials required by the department of buildings as above set forth in making said house safe and secure in the manner required thereby. Wherefore [demand for money judgment]. Form No. 438 Damae^es Caused to Tenant by Landlord Reatini: Building Known to be Unsafe and Untenantable ^ I. That at the times hereinafter mentioned the plaintiffs were, and still are, copartners in business under the firm name and style of the U. C. Co. II. That on the day of > 19 » and for a long time prior to said date, the defendant was the owner of a certain plot of ground, with a large building thereon, having a frontage of 109 feet and upwards on street, and 120 feet and up- wards on street, in the borough of and city of , which premises were situated on the northwesterly comer of and streets, pubhc highways in the said borough of . That the building upon said premises was built of brick and consisted of a cellar or basement and sub- cellar, built below the level of the sidewalk, and eight floors or stories above the level of the sidewalk, which said building was about 109 feet on street in front and about 120 feet on street on the other side, being substantially or nearly the same dimensions on the other side and in the rear. III. That on or about the day of , 19 , the ^ From Steefel v. Rothschild, 179 N. Y. 273; in which a judgment in favor of the defendant was reversed. Complaints 607 Landlord and Tenant said defendant entered into a written agreement with the plain- tiffs, whereby the said defendant leased to the plaintiffs and let and rented to them the double store on the northwest corner of and streets and the store adjoining the same, being known together as Nos. , and , street, and also a space on the floor or story above the stores, including and containing 1000 square feet of the said floor adjacent to and approached by the stairway leading from the said store floor to the floors above the store to be occupied and used as a store for the sale of clothing, gents' furnishing goods, hats and kindred articles; which said lease was recorded in the register's office in county, in Liber 8, page 440, of Con- veyances, sec. 1, Block 150, , 19 . That a copy of said lease is hereto annexed, marked "A," and made a part of this complaint. IV. That under and in pursuance of said lease, on or about the day of , 19 ) the plaintiffs entered into, took possession of, and occupied the said stores and premises for the purposes of the said business, clothing, gents' furnishing goods, hats and kindred articles; that said plaintiffs expended large sums of money in and about fitting up the said premises with valuable fixtures, show cases, shelving, mirrors and other appli- ances, and for the purposes of carrying on the business in the said premises, and with special reference to the conduct of the business at the said place, the said plaintiffs purchased a large and valuable stock of clothing, gents' furnishing goods, hats and kindred articles, which were adapted for the carr3dng on and con- duct of the business aforesaid at the place and in the premises mentioned in the said lease, which said stock, fixtures, appliances and utensils would be of much less value and of much less availa- bility for use or sale in any other premises or at any other place. V. That at the time of the leasing of the said premises by the defendant to the plaintiffs it was well understood and contem- plated by the defendant and the plaintiffs that the premises so let and rented would be used for the business aforesaid, and that the plaintiffs intended to expend said large sums of money 608 Bradbury's Forms of Pleading Landlord and Tenant in and about fitting up the said premises with fixtures and appli- ances and stocking the same with a large quantity of valuable goods for the purpose of carrying on the said business in the said premises, and making expenditures for advertising said business, and that the said outlay would be greatly imperiled and much of it would be lost provided the said plaintiffs were not permitted to conduct and carry on the said business in the premises afore- said for the term specified in their lease and during the exten- sions thereof for which the said lease provided. VI. That at the time that the defendant leased the premises aforesaid to the plaintiffs he [the said defendant] retained posses- sion and control of the lower part of the said building beneath the stores which were let and rented to the plaintiffs, which lower part of the building consisted of the cellar or basement and sub- cellar aforesaid, including the foundations and piers upon which the weight of the said building rested, which were necessary to be kept and maintained in a proper and safe state as a support for the said store let and rented to the plaintiffs and the upper part of the said building. And the said defendant kept and re- tained in his own possession and control the portion of the store floor of the said building which was not let and rented to the plaintiffs as aforesaid, which was a substantial portion of the said store floor, and also the other seven stories or floors of the said building above the store floor thereof, excepting, however, there- from the 1,000 square feet of the surface of the floor above the store which had been let and rented as aforesaid under the lease to the plaintiffs hereinbefore specified. And under and by virtue of the fact that the defendant leased the premises aforesaid to the plaintiffs and retained in his possession and under his con- trol the other portions of the building not let and rented to the plaintiffs, the said defendant became and was under an obliga- tion to the plaintiffs to keep and maintain the parts of the build- ing not let and rented to the plaintiffs in such secure, firm, stable and proper condition that the premises let and rented to the plaintiffs might not be endangered, rendered insecur4 or unten- antable or unfit for occupancy or unfit for the purposes of the CoMPLAIlsiTS 609 Landlord and Tenant business for which the same had been let and rented by the de- fendant to the plaintiffs. VII. That on or about the day of , 19 > at the time that the said premises were leased by the defendant to the plaintiffs, the parts of the building not let and rented to the plaintiffs, but kept and maintained in the possession and under the control of the defendant and unknown to plaintiffs, were in an insecure, unsafe and dangerous condition, liable and likely to give way, subside or fall down, and to destroy the building to- such extent and in such manner that the premises let and rented by the defendant to the plaintiffs would be destroyed and ren- dered entirely unfit for human occupancy; and by reason of the fact that the parts of the building not let and rented to the plain- tiffs were in such improper and dangerous condition, the part of the building let and rented to the plaintiffs was so much in dan- ger that it was unsafe and improper and highly dangerous for human beings to remain in the said premises let and rented to the plaintiffs and the goods and property which the plaintiffs were about to and afterwards did place in said premises would be Hable and likely to be destroyed by the collapse of the build- ing caused by the giving way of its supports beneath the said stores, and the falling down of its walls and floors above the said stores. That these facts were well known to the defendant, and could with reasonable diligence have been learned by him, and were unknown to the plaintiffs, and could not with reason- able diligence on their part have become known to them. VIII. That the parts of the said building not let and rented to the plaintiffs Avere improperly, carelessly and negligently de- signed and constructed and were liable and likely to cause the collapse of the building at the time the portions of the same were leased by the defendant to the plaintiffs, all of which were well known to the defendant, and might with reasonable diligence on his part have become known to him, and were unknown to the plaintiffs, and could not with reasonable diligence on their part have become known to them. IX. That after the day of , 19 , the parts of Vol. 1—39 610 Bradbury's Forms of Pleading Landlord and Tenant the building not let and rented to the plaintiffs, and the founda- tions of the said building and the walls thereof were negligently and carelessly caused, permitted and allowed by the said de- fendant to become and be in a cracked, decayed and dangerous condition, out of repair, weak and utterly inadequate to the proper and safe support and maintenance of the building, and of the parts thereof which had been let and rented to the plain- tiffs as aforesaid; and by reason of the neglect of the defendant ■ to put and keep the said parts of the building which were not let and rented to the plaintiffs in such condition as to properly maintain the parts which were let to the plaintiffs, the parts of the building which were let to the plaintiffs became untenant- able,-'uninhabitable and unsafe for human occupation, because of the great hability which existed of the collapse and fall of the entire structure, because of the neghgence and carelessness of the defendant in failing to keep and maintain the parts of the structure under his control in a reasonably safe and proper state so as to permit the enjoyment by the plaintiffs of the parts of the building so let and rented to them. X. That on or about the day of , 19 [al- though unknown to plaintiffs], the said defendant had full and ample notice and means of knowledge that the condition of the parts of the said building not let and rented to the plaintiffs were such as to endanger the entire building and render the same likely to collapse and fall, so that at that time the portion of the building rented to the plaintiffs was in danger and unfit for hu- man occupation, as for the safe deposit of the stock of goods and fixtures aforesaid. That notwithstanding the said notice which the said defendant had, or could have had, with reasonable dili- gence on his part, he failed and neglected to put and keep the said premises in a proper state of repair, and took no measures for their safety. XI. That in consequence of the carelessness and negligence of the said defendant as aforesaid, the authorities of the city of and borough of entered upon and took posses- sion of the said premises for the purpose of securing public safety, Complaints 611 Landlord and Tenant and barred and inclosed the front thereof in such manner as to prevent the pubHc from passing by the same or entering the said building, and placed large structures upon the street opposite the said building for the purpose of bracing the same, and pre- venting the said building from falling to the ground, and police were stationed in front of the said building to prevent the people from passing near the same, and to prevent them from entering the building, including the parts thereof occupied by the plain- tiffs. That the said plaintiffs were notified by the public au- thorities that the building was liable to collapse and warned of the danger thereof, which danger actually existed by reason of the negligence, carelessness and improper conduct of the de- fendant as aforesaid. XII. That on or about the day of , 19 , the authorities of the city of and the borough of gave notice to the defendant and commenced an action against the said defendant, together with the plaintiffs, to compel the defendant to secure or tear down the said building, and to de- clare the walls and foundation of said building unsafe and dan- gerous to the public, and for other relief. That defendant ap- peared in the said action, and the issues therein were tried before a justice of the Supreme Court, Hon. M. H. H., and thereafter on the day of , 19 , judgment was rendered in that action declarmg the said building unsafe and dangerous, and the same was in imminent danger of collapse and of falling down, and commanding the commissioner of buildings of the borough of to forthwith take down and remove the four upper stories of the said building, and to take down and remove the brick walls on and streets, from the roof down to and including the concrete foundation, and thereafter, in pur- suance of the judgment aforesaid, the authorities of the city of entered upon the said premises by and with the advice and consent of the defendant, and defendant proceeded to and did take down the entire structure, and did remove the same from the said lot of ground down to, the foundations of the said build- ing, and thereby the premises let and rented to the plaintiffs were 612 Bradbury's Forms of Pleading Landlord and Tenant entirely destroyed; all of which happened by reason of the negli- gence and carelessness of the defendant hereinbefore set forth in failing to properly keep and maintain the parts of the building under his control in such reasonably safe condition as to support and maintain and preserve the portions of the structure which had been let and rented to the plaintiffs aforesaid, and all of which happened without any fault or negligence or misconduct on the part of the plaintiffs. XIII. That the plaintiffs performed all the covenants and re- quirements of said lease on their part, including the payment of the rent to the defendant for the month of , 19 , on the day of said month, in advance. XIV. That by reason of the negligence, wrong and misconduct of the defendant hereinbefore set forth and by reason of the insecurity of the building arising therefrom and the great lia- bility that the said structure should collapse and fall down be- cause of the defendant's negligence as aforesaid, the plaintiffs in or about the early part of the month of > 19 ; were evicted from the said portion of the premises which had been let and rented to them by the defendant and cojnpelled to leave same and to remove therefrom their goods, fixtures, utensils and implements, and by the said defendant's misconduct they were forced and compelled to leave the said premises and thereby their business, which they had theretofore carried on in the said premises let and rented to them, was broken up and destroyed and they lost the value of their lease of the said premises, and they lost the value of the business which they were then conduct- ing in the said premises, and returned large quantities of mer- chandise purchased for said business, and which had already been delivered to and received by the plaintiff^, and were pre- vented from gaining profits thereby in the future during the re- mainder of the term of their lease which was yet to ensue, and during the term of the extensions thereof to which they were entitled under the said lease, and thereby they were prevented from the opportunity of disposing of and selling their stock of goods in the usual course of their business in the said premises, Complaints 613 Landlord and Tenant and they were compelled to remove said stock of goods from the said stores and to cancel orders already placed for future deliveries and were unable to procure other premises where the said stock of goods could have been advantageously sold, al- though they used due diligence to obtain such other premises and carry on and continue the business so as to dispose of the said stock of goods at retail and in a manner in which the said business had been conducted in the premises let and rented to the plaintiffs by the defendant. And by reason of the negligence and improper conduct of the defendant by which the said plain- tiffs were compelled to leave the said premises and by which their business was broken up and destroyed, they were forced and compelled, in order to save themselves from greater loss, to dispose of the said stock of goods and to sell the same in bulk as it was impossible to find any place in which the said stock of goods could have been disposed of advantageously at retail and in a manner in which the said business had been carried on in the demised premises and in the manner which had been con- templated by the plaintiffs and defendant at the time the said lease was entered into. And by reason of the fact that the plain- tiffs were compelled to dispose of the said stock of goods in bulk they were unable to realize the value thereof, but were compelled, to save themselves from greater loss, to dispose of the same at very much less than the retail price and very much less than the cost value thereof, and in addition to the said losses the said plaintiffs lost large sums of money which they had laid out neces- sarily and properly in and about advertising the said business in any attempt to establish the same, and they lost the sums which they had been compelled to expend in and about provid- ing fixtures, utensils and implements for the carrying on of the business in the said demised premises, and they were put to great expense in and about endeavoring to save their goods and prop- erty from the dangers arising from the insecurity of the building and its liability to collapse, and in removing their goods and fixtures to other premises to which the said goods might be re- moved for their immediate security. And the said plaintiffs were 614 Bradbury's Forms of Pleading Landlord and Tenant put to great trouble and expense and lost their own time in and about endeavoring to save themselves and their said goods and to minimize the losses which they might be compelled to sustain by reason of having been evicted from the said premises and forced to leave the same on account of the negligence and care- lessness of the defendant and his misconduct aforesaid, by means of all of which matters plaintiffs were injured and damaged, without any fault or negligence on their part, in the sum of $ , for which sum the plaintiffs demand judgment against the defendant, with costs. Form No. 439 Action Against the Landlord for Damages Caused by Leak in Water Pipe 1 I. That the plaintiff is a domestic corporation duly incorpo- rated and doing business under the laws of the State of and having its principal office and place for the transaction of business at , county, II. That the defendant is a domestic corporation duly incor- porated and doing business under the laws of the State of III. That at all the times herein mentioned or- referred to, the defendant was and still is the owner, lessor and had control of the building and premises known as the "M. R. B.," situate at Nos. , street and Nos. , street, in the borough of , city, county and State of , separate portions or floors of which building, consti- tuting separate offices or business apartments, were rented to various tenants for business purposes; that the defendant re- served to itself and exercised possession and control of all hall- ways, passageways, corridors, lobbies, elevators, stairways and roof of said building, including the possession, management and control of all water pipes, pumps, boilers and tanks, and all appliances used in connection therewith, employed to provide and ^ From Lewis Co. u. Metropolitan Realty Co., 112 App. Div. 385; 98 Supp. 391; aff'd 189 N. Y. 534; in which the plaintiff recovered. Complaints 615 Landlord and Tenant furnish water to the several tenants of said building and for other purposes. IV. That on or about the , and days of , 19 , A. H. L. and R. E. B., as copartners, doing business under the firm name and style of E. C. L. Co., were tenants in said M. R. B., under a lease from the defendant, and as such tenants were lawfully in possession and occupying the apartments and rooms in said building on the floor thereof, and were using the same in their business of mak- ing and binding books, and the work pertaining thereto, for various persons and corporations as their customers; which business consisted in arranging, pressing, fastening, binding together and covering, for its customers, pamphlets, sheets, pages and other printed matter, printing the covers and title- pages thereof, and binding and making the same into complete and finished books and book-forms and all the work and business in connection therewith; which pamphlets and other printed matter were the property of said customers and were left with said A. H. L. and R. E. B. to be so bound and made into com- plete books. V. That on or about the , , or days of , 19 , or immediately preceding, the defendant, through its employees, servants and agents, undertook and attempted to repair and clean a certain tank or receptacle for water, erected under the roof and above the or top floor of said building on the street end thereof, and carelessly and negligently repaired and cleaned said tank and the connect- ing pipes thereto, and carelessly and negligently left the same in an improper, insecure, unprotected and unsafe condition, and improperly, imperfectly and negligently applied the cover to said tank; and negligently and wrongfully permitted and caused the water to flow over and from the same, so that on account of said negligence and misconduct on the part of the de- fendant, its employees, servants and agents, the said tank when filled with water overflowed, and the water leaked down and flooded the floors below and the rooms and floor so occupied by 616 Bradbury's Forms op Pleading Landlord and Tenant said A. H. L. and R. E. B., as aforesaid; and flooded with water, damaged, injured, utterly ruined and destroyed certain books, stock, stationery, machinery, paper, plates, pamphlets, cards and other property belonging to the said A. H. L. and R. E. B., doing business as aforesaid, and to certain of their customers, to wit: 0. H. K., B. & Co. [and others named] to the extent of, and amounting to, $ VI. That thereafter and before the commencement of this action said A. H. L. and R. E. B., as such copartners, and the said 0. H. K., B. & Co., V. W. and the F. P. Co. severally, duly transferred and assigned, by written assignment thereof, their several respective causes of action, claims and demands against the defendant, growing out of said negligent acts of the defend- ant, its employees, servants and agents, to the plaintiff, who then became and is now the true and lawful owner thereof. VII. That said overflow and injury occurred, and said damage was sustained, without any fault or negligence on the part of said A. H. L. and R. E. B., as such copartners, or the 0. H. K., B. & Co. [and others named], neither nor any of whom possessed any control over or right of access to such water tank, or the pipes and appliances connected therewith. Wherefore [demand for money judgment]. Form No. 440 Tenant Injured by Palling Olothespole Used by AH Tenants * I. That heretofore and on or about the day of , 19 , the defendant above named was the owner of the premises known as street, in the borough of , city of , and was in possession thereof, and that she had rented a portion thereof to the daughter of this plaintiff, one B. L., wife of F. L. II. That the said F. L. was her tenant of a portion of the said premises on the said day of , 19 . That she had reserved the stairways, halls, yards and particularly the 1 From Hanselman v. Broad, 113 App. Div. 447; 99 Supp. 404; in which the plaintiff recovered. Complaints 617 Landlord and Tenant clothespole of the said premises under her own control, manage- ment, supervision and repair. III. That on said day this plaintiff was lawfully in the said premises in the apartments of her said daughter, when a large clothespole erected in the yard and maintained therein by the defendant fell down, in and upon the premises, striking this plaintiff and grievously, painfully and severely bruising, wound- ing and contusing her about the head, body and limbs, externally and internally, putting her to great expense for medical and surgical attendance, confining her to her bed for a long while, preventing her from pursuing her daily occupation, and otherwise grievously, painfully and severely injuring her, all, as she is in- formed and beUeves, permanently. IV. That all of said injuries were due entirely to the careless- ness and neghgence of the said defendant in maintaining the said clothespole in a defective and dangerous condition, liable to fall, in erecting the same improperly, and in permitting the same to become decayed and weak, and otherwise through the negligence of the defendant, and in no wise due to any negligence on the part of the plaintiff. V. That by reason of the premises this plaintiff has been damaged in the sum of $ , for which sum she demands judgment herein, together with the costs and disbursements of this action. Form No. 441 Action Against Landlord for Nuisance When Property in Possession of Tenant i I. That at the times hereinafter mentioned the defendant was and now is the owner of the property and building situate on the southwest corner of avenue and street in the borough of , city of , known as "S" and also known as No. II. That for some considerable time before and up to and at or about the time the plaintiff suffered the injury hereinafter 1 From Uggla v. Brokaw, 117 App. Div. 586; 102 Supp. 857. 618 Bradbury's Forms of Pleading Landlord and Tenant mentioned there were erected and standing on the roof of the said building divers structures. III. That the said structures so erected and standing on the roof of the said building as aforesaid were constructed of brick and mortar, and up to the time the plaintiff received his injuries as aforesaid were covered over and inclosed by roofs of metal and glass. IV. That the said structures erected on the roof of the said building aforesaid were negligently, carelessly, dangerously and improperly made and constructed, in that the roofs thereof were improperly and in an unworkmanhke manner and insecurely fastened to the said structures, and in that the bricks of the said structures were improperly and insecurely laid with a poor and inferior quality of cement or mortar, so that the said roofs and bricks of the said structures were in an unstable and dangerous condition and liable to be blown off the roof of the said building into the roadway of the said avenue, by storms of wind and rain, and to fall upon persons passing over and along the said roadway of the said avenue in front of the said building. V. That on divers occasions before the date on which the plain- tiff suffered the said injuries hereinafter mentioned, the attention of the defendant had been repeatedly called to the dangerous condition of the said structures and to their faulty construction, and to the danger of the bricks and roofs thereof falling upon passers-by on avenue in front of the said building, but the defendant negligently and carelessly neglected and refused to alter or repair the said structures or to properly secure the same, and the roofs thereof, to the said structures, and the said defendant, well knowing the premises, neghgently and carelessly permitted and allowed the said structures and the roofs thereof, to be and remain in an improper, insecure and unsafe condition. VI. That on the day of , 19 , while the plaintiff was lawfully on the roadway of the said avenue in front of the said premises and was driving by the said building of the said defendant in the course of his employment as a coach- man, through the carelessness and negligence of the defendant Complaints 619 Landlord and Tenant in allowing and permitting the said structures so erected on the roof of the building as aforesaid, to be and remain in said im- proper, unsafe and insecure condition as aforesaid, and in allow- ing and permitting the roofs thereof to remain improperly fas- tened to the said structures after he had been notified of the dangerous condition of the said structures and the roofs thereof, as aforesaid, and without any fault or negligence on the part of the plaintiff, the roofs of the said structures, or one of them, and divers bricks, mortar and other building materials used in the construction of the said structures, or one of them, during a storm of wind and rain, were blown from the roof of the said building down to and upon the roadway of the said avenue in front of the said building, and upon the plaintiff, so that the plaintiff was struck on the head, shoulder, back, arm and leg by a portion of the roof of one of the said structures and by the bricks, mortar and other building materials used in the construc- tion of the said structures or of one of them. VII. That in being struck upon the head, shoulder, back, arm and leg by the said roof, brick, mortar and other building mate- rials as aforesaid, or some of them, which were blown from the roof of the said building as aforesaid, the plaintiff received dangerous and permanent injuries and was made sick, sore, deaf arid lame, and that his skull was fractured, so that a large por- tion of his said skull had to be removed,. and he was otherwise injured, bruised and wounded, all of which caused him great pain and suffering and made him ill, and caused him to be con- fined to the hospital and to his room for a long period of time, and he was, by the said injuries so received by him as aforesaid, incapacitated from carrying on his usual occupation, and his said injuries are, as he has been informed and verily believes, and will remain, permanent, and that he has necessarily expended, and will hereafter be required necessarily to expend large sums of money in endeavoring to be cured of his said injuries or to be relieved from pain and suffering, all to the plaintiff's damage of $ Wherefore [demand for money judgment]. 620 Bradbury's Forms op Pleading Landlord and Tenant Form No. 442 Action by Lessee Against Landlord for Damages Caused to Property of Sublessee by Landlord in Making Repairs After a Fire When Sublessee Has Received Judgment Against the Lessee ^ I. Upon information and belief, that on or about the day of , 19 ) the defendants were, have ever since been and now are, the owners of certain property known as No. , street, in the city and county of , and that they were in possession and in control of said property. II. That heretofore, on or about the day of , 19 , the defendants made a certain lease of said property to the plaintiffs herein, which said lease is hereby annexed, marked Exhibit "A" and made a part of this paragraph, and that there- upon and thereafter the plaintiff took possession of the said prop- erty under the said lease, and then became and have ever since been and now are tenants of the said property thereunder, and that the plaintiffs complied with all the terms, covenants, con- ditions and agreements thereof on their part to be performed. III. That on or about the day of , 19 , with the knowledge and written consent of the defendants, plaintiffs entered into an agreement with A. W., R. L. B. and A. G., copartners doing business under the firm name and style of M. M., a true copy of which said agreement is hereto marked Exhibit " B " and made a part of this paragraph. IV. That in pursuance of the said agreement the said A. W., R. L. B., and A. G. took possession of the said premises, and complied with all the terms, covenants and conditions of the said agreement on their part to be performed. V. That thereafter and on or about the day of , 19 , the said A. W., one of the parties to the agreement referred to in the third paragraph of this complaint, duly sold, assigned and transferred and set over unto R. L. B., A. G. and G. M. his entire interest in and to the business conducted 1 From Prescott v. Le Conte, 178 N. Y. 585; aff'g without opinion, 83 App. Div. 482; 82 Supp. 411. The lessee requested the landlord to defend the suit brought by the sublessee, but the landlord refused and denied Hability. See Form No. 445 for complaint in action by sublessee against lessee. Complaints 621 Landlord and Tenant under the fii-m name and style of M. M., as well as in and to the said agreement referred to in the third paragraph of this com- plaint, as well as in and to every cause and thing arising out of the said business and the said agreement whatsoever, and that thereafter the said R. L. B., A. G. and G. M. formed a copartner- ship agreement by and among themselves to continue the said business of the M. M., by and under the same name, at the same place and in the same manner as the same was conducted hereto- fore. VI. That the plaintiffs herein had notice and knowledge thereof, and agreed that the said R. L. B., A. G. and G. M. con- tinue under the said lease referred to in the third paragraph of this complaint and that thereafter the said R. L. B., A. G. and G. M. continued and now are in possession of the said premises under and by virtue of the said lease or agreement referred to in the third paragraph of this complaint, and continued to comply with the terms, covenants, conditions and agreements on their part. VII. That on or about the day of , 19 , without any fault or negligence on the part of the plaintiff or the said R. L. B., A. G. and G. M., or any of their employees, a fire took place on the top floor and on the roof of the said premises whereby the roof in the rear of the building of the said premises became destroyed. VIII. That the plaintiffs herein and the said R. L. B., A. G. and G. M. immediately notified the defendants of the dangerous condition of the said premises by reason of the total destruction of the roof, and thereupon the defendants promised and agreed to repair the said roof and to put the same in a safe and secure condition without any delay. IX. That relying upon the promise and agreement to repair the said roof, these plaintiffs and the said R. L. B., A. G. and G. M., remained in and on the said premises under and by virtue of the said written agreements referred to in the second and third paragraphs of this complaint, and continued to pay the rent for the same. 622 Bradbury's Forms of Pleading Landlord and Tenant X. That after the day of , 19 , the defend- ants attempted to make the repairs to the roof, and that the making of the said repairs was in progress on or about the day of , 19 , and that the defendants unreasonably delayed the repairs to the said roof, and did the work of repairing in a negligent and unskillful manner, and that on or about the day of , 19 , the defendants attempted to temporarily cover the uncompleted roof on the said premises, but that they did the work so carelessly, negligently and im- properly that the roof was left in an exposed and open condition, permitted rain to readily run or flow through the said temporary covering down and upon the floors or lofts of the said premises below the roof. That the defendants did not use proper mate- rials in making the temporary covering. That after having tem- porarily repaired the roof as aforesaid, the defendants at or about noon on the day of , 19 , negligently left the premises in an open and exposed condition as above set forth and went away from the premises, not returning until the day of , following. XI. That on or about the day of , 19 , and on or about the day of , 19 , without any fault or negligence on the part of the plaintiffs, or any of their employees, but owing to the unsafe and dangerous condition of the roof of the said premises and the gross carelessness and negli- gence of the said defendants in making the repairs of said roof and their failure to put the roof in a safe and secure condition as they agreed to do, the entire building of the said premises was flooded with water, and besides the building, considerable of the goods, wares and merchandise, consisting of the groceries, the property of the said R. L. B., A. G. and G. M. in the said building was damaged by water to the extent of $ by reason of the careless, neghgent and dangerous condition of the said roof. XII. That during the entire period, to wit, from on or about the day of » 19 , to on or about , the day of ? 19 , both days inclusive, the said Complaints 623 Landlord and Tenant defendants, their agents, servants and employees, had due and repeated notice of the damaged condition of the said roof in the said premises by reason of the fire and destruction thereof, and throughout the said entire period the said defendants promised and agreed to repair the same and put the same in a safe, secure and complete condition without delay, all of which was not per- formed. XIII. That the damage which occurred to the said premises of the said R. L. B., A. G. and G. M., and to the goods, wares and merchandise, the property of the said R. L. B., A. G. and G. M., was by reason of the carelessness, negligence and misconduct of the defendants, their agents, servants and employees, and with- out any fault, carelessness and negligence on the part of the plain- tiffs, their agents, servants and employees, or the said R. L. B., A. G. and G. M., their agents, servants and employees. XIV. That thereafter on or about , 19 , said R. L. B., A. G. and G. M. began suit in the Supreme Court of the State of , county of , against the plaintiffs herein bythe service of a summons and complaint upon the plaintiffs herein, for the damage to their goods, wares and merchandise mentioned in paragraph XI herein. XV. That thereafter on or about the day of , 19 , and many times thereafter, the plaintiffs herein notified the defendants that an action had been begun against them for the damage caused as hereinbefore set forth, and of the progress of the action, including the reference, the trial and the appeal, and afforded the defendants an opportunity to come in and defend the action, and that the defendants at all times neglected and refused to defend the said action, and at all times denied any liability for any of the damage mentioned herein. XVI. That thereafter the said action brought against the plaintiffs herein was tried and the said R. L. B., A. G. and G. M. recovered judgment on the day of » 19 , in the said action against the plaintiffs herein, for the sum of $ , damages and costs, and thereafter the plaintiffs herein appealed from the said judgment to the Appellate Division of 624 Bradbury's Forms of Pleading Landlord and Tenant the Supreme Court, First Department, and that the judgment obtained as herein set forth, was affirmed with costs, and that a judgment for costs on appeal was on the day of , 19 , entered in the office of the clerk of the county of for $ XVII. That thereafter the plaintiffs made a motion for re- argument and a rehearing of the said appeal, and for leave to go to the Court of Appeals, which said apphcation was denied, and that thereafter on , 19 , the plaintiffs paid to R. L. B., A. G. and G. M., the amount of both judgments, with interest thereon, and costs and disbursements of all proceedings, includ- ing the motion for rehearing and reargument, amounting in all to $ XVIII. That it was necessary for the plaintiffs to employ, and plaintiffs did employ an attorney and counsellor at law to defend the said action, to prosecute the appeal in the Appellate Divi- sion, and to make a motion for reargument and rehearing of the appeal, and also to employ, and plaintiffs did employ coun- sel to assist in making the motion for rehearing and reargument of the appeal. That the said attorney and counsellor at law as such, did render services in defending the said action, prosecut- ing the said appeal and making the motion for rehearing and reargument of the appeal of the reasonable value of $ , which the plaintiffs paid therefor, and that the said counsel employed to assist in making the motion for rehearing and reargument of the appeal, did render services upon said motion of the reasonable value of $ which the plaintiffs paid therefor; that in the preparation and for the hearing of the said appeal and motion for rehearing and reargument, it was neces- sary to and the plaintiffs did cause to be printed a case on appeal, a brief in appeal > and a brief on the motion for reargument; that the reasonable value of the materials furnished and services rendered for printing the said case and briefs was $ , which the plaintiffs paid therefor; that all of the sums mentioned in this paragraph were paid on or before , 19 . Wherefore [demand for money judgment]. Complaints 625 Landlord and Tenant Form No. 443 Tenant Against Landlord; Tenant's Wife too 111 to be Moved Although Lease Expired; Death of Wife Alleged to Have Been Caused by Tearing Down Building > I. That on or about the day of , 19 , he was duly appointed by the surrogate of the county of administrator of the goods, chattels and credits of F. P., de- ceased, and that said letters of administration have not since been revoked. II. That at all the times hereinafter mentioned the defendants were the owners of the lot of land with the buildings thereon erected, known as No. , street in the city of III. That on or about , 19 , the plaintiff and his wife, F. P., moved into apartments in said premises and became tenants of the defendants in said premises. That the said F. P., during all the times mentioned in this complaint was danger- ously sick, suffering from heart disease and other diseases, and was confined to her bed in said premises, and was in a deUcate condition and that said dangerous sickness and delicate condi- tion of the said F. P. were known to the said defendants. That on or about the day of , 19 , said defendants without the consent of your plaintiffs or the said F. P. negligently and unlawfully by their agents and servants began to tear down the house in which said F. P. and your plaintiff resided; that said defendants were notified of the dangerous condition of the said F. P. and were notified and cognizant that said F. P. could not be removed from said premises, but notwithstanding these facts and while the said F. P. and your plaintiff continued to reside in the said premises aforesaid the defendants continued to tear down said house and premises aforesaid and that said F. P. was thereby made sick and rendered ill in consequence of the negli- gence and unlawful acts of the defendants in tearing down said premises. That from the effects of said negligent and unlawful " From Preiser v. Wielandt, 48 App. Div. 569; 62 Supp. 890, YOL, 1-40 626 Bbadbury's Forms of Pleading Landlord and Tenant acts on the part of the defendant, the said F. P. on or about , 19 , died. V. That the death of said F. P. was caused solely through the fault, negligence and carelessness of the defendants, their agents, servants and employees, without contributory negligence on the part of the said F. P., or your plaintiff. VI. That said F. P. left her surviving your plaintiff [her hus- band] and a child, J. P., of the age of years, who by reason of the premises have sustained damage in the sum of $ . Wherefore [demand for money jitdgm,ent]. Form No. 444 Independent Collateral Parol Agreement in Favor of Tenant as to Occupancy of Other Portions of the Building; Damages for Breach ' I. That at all times hereinafter mentioned, the plaintiffs were and still are copartners under the firm name and style of S. and S., and as such copartners were and still are the proprietors of the N. Y. F. Co., and engaged in the manufacture of ostrich feathers. II. That at all of said times the defendants' testator, B. L., deceased, was the owner of the premises, known as No. , in the city of III. That on or about the day of > 19 , the defendants' said testator, B. L., entered into an oral agfeement with the plaintiffs whereby said B. L. covenanted, agreed and undertook with the plaintiffs, in consideration that if the plaintiffs would take and accept a lease from him of a certain portion of said premises No. , street in the city of ,upon the terms and conditions hereinafter mentioned, that the tenancy of a certain firm of H. & Co., certain lessees of said B. L., then occupying a loft in said building, would be terminated by said B. L., on the day of , 19 , at which time said B. L. represented to the plaintiffs that the tenancy of said H. & ^ From Steams v. Lichtenstein, 48 App. Div. 498; 62 Supp. 949; in which this complaint was sustained on demurrer, Complaints 627 Landlord and Tenant Co. expired, and he agreed that after said first day of , 19 , said tenants should no longer occupy any portion of said building or be tenants therein, either directly or indirectly. IV. That the plaintiffs had declined to accept said lease with- out said understanding and agreement on the part of said B. L., for the reason that, as stated by plaintiffs to said B. L., and as he well knew and agreed, the fact of said H. & Co, being tenants of said building after the day of , 19 , would debar the plaintiffs from obtaining good or adequate fire insur- ance on their stock of merchandise, of the value of between $ and $ , to be carried by them in their business of manufacturing ostrich feathers, to be conducted by them in said premises, and that in the event of a fire occurring in said premises, the plaintiffs would thereby sustain irreparable loss by reason of the plaintiffs' inabilitj'^ to obtain indemnity in the manner aforesaid against the loss of said stock of merchandise. V. That thereafter and on the day of , 19 , the plaintiffs, relying upon said 6. L.'s aforesaid agreement, and in further consideration of the reiteration by said B. L. of the aforesaid agreement, took and accepted a lease of the said fourth and fifth lofts of said premises No. , street in the city of , for the term of years, to commence on the day of , 19 , at the yearly rent or sum of $ , payable in equal monthly payments in advance. VI. That thereafter and on or about the day of , 19 , the plaintiffs duly entered into the possession of the said fourth and fifth lofts in said premises, under said lease, and otherwise fully carried out the terms of said agreement aforesaid, on their part to be performed. VII. That the said B. L., defendants' testator, entirely failed and neglected to carry out the terms of the said agreement afore- said, on his part to be performed. VIII. That the aforesaid tenants H. & Co., did not ter- minate their tenancy of said building, or any part thereof, on said day of , 19 , and the said B. L. did not cause or require their tenancy of said building to cease and 628 Bradbury's Forms of Pleading Landlord and Tenant terminate at said time, and said B. L., in violation of his aforesaid agreement, permitted the said H. & Co. to occupy a loft in said premises, and remain tenants in said building until the day of , 19 . IX. That by reason of the violation by said B. L. of his said agreement, and the continued occupancy by said "H. & Co." of a loft in said building No. , in the city of , after the day of > 19 , the plaintiffs were, after re- peated and continuous efforts on their part, unable to suflR- ciently cover by insurance their stock of merchandise, carried by them in the said premises aforesaid, or to obtain good or adequate fire insurance on said stock of merchandise, all of which was well known, and continued to be well known to said B. L. X. That the plaintiff repeatedly from time to time and prior to the occurrence of the fire hereinafter mentioned, called the attention of said B. L. to the violation of his said agreement, and to the plaintiffs' inability to obtain suflScient fire insurance on their stock by reason thereof, and to the risk plaintiffs were running thereby; and said B. L. knowing such to be a fact, re- peatedly promised and agreed with the plaintiffs from time to time, that he [said B. L.] would carry out his said agreement, and cause and require said " H & Co." to vacate the loft occupied by them in said premises. XI. That the plaintiffs carried a stock of merchandise in their said lofts in said premises amounting to the sum of $ . XII. That the said B. L. knew the value of said stock carried by plaintiffs in said premises. XIII. That the plaintiffs, notwithstanding their efforts afore- said, were unable to obtain fire insurance on said merchandise to a greater amount than $ , although they were desirous of obtaining further insurance, and made the efforts hereinbefore mentioned, to obtain insurance on said stock of merchandise to the value and amount thereof, that is, to the amount of $ XIV. That thereafter, and on the day of , 19 , the aforesaid premises and building, known as No. , street in the city of , and all the plaintiffs' stock Complaints 629 Landlord and Tenant of merchandise of the value of $ , was entirely destroyed and consumed by fire, without fault or negligence on the part of the plaintiffs. XV. That by reason of the premises, and the said B. L. in vio- lation of his said agreements, and the resulting inability of the plaintiffs to obtain adequate insurance thereby, the plaintiffs have sustained loss and damage in the amount of their uninsured stock, in the sum of $ , a bill of particulars of which has been heretofore served on the attorneys for said testator. XVI. Upon information and belief, that on the day of , 19 , the defendants' testator, said B. L., died leav- ing a last will and testament by which he appointed the defend- ants above named his executors; that said will was duly ad- mitted to probate on the day of » 19 , by the surrogate of the county of , and letters testamentary thereon duly issued to said executors on the day of , 19 . XVII. That thereafter and on the daiy 6f , 19 , an order was duly entered in the office of the clerk of this court, continuing this action in the name of these plaintiffs, and against M. L., S. L. and A. L., the defendants above named, as executors of said B. L., deceased, as substituted defendants in the place and stead of said B, L., deceased, and directing the service on said deceased defendant's attorneys of a supplemental summons and complaint herein, and without prejudice to the proceedings already had herein. Wherefore [demand for money judgment.] Form No, 445 Sublessee Against Lessee for Damages Caused by Hole in Roof Left by Contractor of Landlord Wbo Had Agreed to Make Repairs ^ I. That on or about the day of , 19 , the defendants entered into an agreement with A. W., R. L. B. and ^ From Blumenthal v. Prescott, 70 App, Div. 560; 75 Supp. 710; in which a judgment in favor of the plaintiff was affirmed. See Form No. 442 for com- plaint in action by this lessee against the landlord for damages and costs he was compelled to pay in defending this action, 630 Bradbury's Forms of Pleading Landlord and Tenant A. G., copartners doing business under the firm name and style of M. M., a true copy of which agreement is hereto annexed, to which these plaintiffs beg leave to refer and make the same a part hereof. II. That pursuant to the said agreement the said A. W., R. L. B. and A. G. took possession of the premises and complied with all the terms, covenants and conditions and agreement thereof on their part to be performed. III. That thereafter and on or about the day of , 19 , the said A. W., one of the parties to the agree- ment referred to in the first paragraph of this complaint, duly sold, assigned and transferred and set over unto the plaintiffs herein his entire interest in and to the business conducted under the firm name and style of the M. M., as well as in and to the said agreement referred to in the first paragraph of the plain- tiffs' complaint, as well as in and to every cause and thing aris- ing out of the said business and the said agreement whatsoever, and that thereafter the plaintiffs' herein formed a copartnership agreement by and among themselves to continue the said busi- ness of the M. M. by and under the said name, at the same place and in the same manner as the same was conducted heretofore. IV. That the defendants herein had notice and knowledge thereof, and agreed that the plaintiffs herein continue under the said lease referred to in the first paragraph of the plaintiffs' com- plaint, and that thereafter the plaintiffs herein contiAued in possession of the said premises under and by virtue of the said lease or agreement referred to in the first paragraph of the plain- tiffs' complaint and continued to comply with the terms, cove- nants, conditions and agreements on their part. V. That on or about the day of , 19 , with- out any fault or negligence on the part of the plaintiffs, or any of their employees, a fire took place on the top floor and on the roof of the said premises whereby the roof in the rear of the build- ing of the said premises became destroyed. VI. That the plaintiffs herein immediately thereafter notified the defendants of the dangerous condition of the said premises Complaints 631 Landlord and Tenant by reason of the total destruction of the roof, and thereupon the defendants promised and agreed to repair the said roof and to put the same in a safe and secure condition without any delay. VII. That relying upon the promise and agreement to rer pair the said roof, these plaintiffs remained in and on the said premises under and by virtue of the said written agreement re- ferred to in the first paragraph of the plaintiffs' complaint, and continued to pay the rent for the same. - VIII. That on or about , the day of , 19 , and on or about the day of , 19 , with- out any fault or negligence on the part of the plaintiffs, or any of their employees, but owing to the said unsafe and dangerous condition of the roof of the said premises and the gross careless- ness and negligence of the said defendants in omitting to repair the said roof and put the same in a safe and secure condition as they agreed to do, the entire building of the said premises was flooded with water, and, besides the building, considerable of the goods, wares and merchandise, consisting of the groceries, the property of the plaintiffs in the said building, were so de- stroyed by reason of the careless, negligent and dangerous con- dition of the said roof as to become unmarketable, and wholly and absolutely worthless. IX. That during the entire period, to wit: from on or about the day of , 19 ; to on or about , the day of , 19 , both days inclusive, the said de- fendants, their agents, servants and employees, had due and re- peated notice of the damaged condition of the said roof in the said premises by reason of the fire and destruction thereof, and throughout the said entire period the said defendants promised and agreed to repair the same and put the same in a safe, secure and complete condition without delay, all of which was not performed. X. That the damage which occurred to the said premises of the plaintiffs herein and to the goods, wares and merchandise, the property of the plaintiffs, was by reason of the carelessness, negligence and misconduct of the defendants, their agents, 632 Bradbury's Forms of Pleading Landlord and Tenant servants and employees, and without any fault, carelessness and negligence on the part of the plaintiffs, their agents, servants and employees. XI. That the damage incurred by the plaintiffs by reason thereof amounts to the sum of $ Wherefore [demand for money judgment]. Form No. 446 Action by Successor in Interest of Lessee to Recover Value of Building From Successor in Interest of Lessor Under Lease Which Provided That Tenant Should Have Right to Remove Building at Termina- tion of Tenancy * I. That on or about ,19 , C. C. and J. F. C, his wife, and J. C. and J. C, his wife, for a good and valuable considera- tion, executed and delivered to one T. J. D., a certain lease or instrument in writing, dated on that day, in the words and figures following, to wit : " This indenture made this day of , in the year 19 , between C. C. and J. F., his wife, J. C. and J. C, of the city of , of the first part, and T. J. D. of the same city, of the second part. Witnesseth, that the said party of the first part for and in con- sideration of the covenants and agreements hereinafter contained on the part of the said party of the second part, and also in con- sideration of the sum of $ to them in hand paid "by the said party of the second part, the receipt whereof is hereby con- fessed and acknowledged, have demised, let and leased and by these presents do demise, let and lease unto the said party of the second part and to his executors, administrators and assigns for and during the term hereinafter mentioned, all that certain piece or parcel of land lying in the said city of , and in the ward of said city and bounded as follows : [description of property] and to have and to hold the portion so excepted to the said party of the second part, his executors, administrators ^ From SchoEllkopf v. Coatsworth, 166 N. Y. 77; in which this complaint was sustained on demurrer. Complaints 633 Landlord and Tenant and assigns from the day of , in the year 19 , for and during the full end and term of years, thence next ensuing, fully to be completed and ended, yielding and pay- ing therefor and for the whole demise aforesaid, yearly and every year as follows, during said term to the said party of the first part as rent for said premises [Dates and amounts of rents 'pay- able]: Provided always, nevertheless, and it is the true intent and meaning of these presents and of the parties hereunto that if it shall happen that any part of the said rent hereby reserved, be behind or unpaid for the space of days next after the day on which the same shall fall due as aforesaid, that then and from thenceforth it shall and may be lawful for the said party of the first part, their heirs, executors, administrators or assigns into or on the said demised premises or any part thereof in the name of the whole to enter and the same premises to have, again repossess and enjoy as in their first and former estate or estates, and the said party of the second part, his executors, administra- tors or assigns and every other the occupiers and possessors of the said demised premises or any part thereof from thence utterly to eipel, remove and put out; anjrthing in these presents con- tained to the contrary thereof in anywise notwithstanding. " And the said party of the second part hereby covenants and agrees to and with the said party of the first part that he will pay the rent aboA'^e reserved at the times and in the manner above specified for the payment thereof, and also that he will pay, satisfy and discharge all taxes and assessments, ordinary and extraordinary, which may be imposed or assessed on said premises or any part thereof during the said term and also all taxes which may be imposed or levied or assessed on said party of the first ■part by reason of said premises or by reason of their being the owners thereof. "And the said party of the second part further covenants and agrees to and with the said party of the first part that he will within years from the day of , 19 , at his own proper cost and expense, erect good substantial brick buildings suitable for commercial and business purposes on all 634 Bradbury's Forms of Pleading Landlord and Tenant of said demised premises covering the premises liereby demised, or covering them as nearly as is practicable for business purposes with such buildings as aforesaid. " And the party of the first part covenant and agree to and with the party of the second part, his executors, administrators and assigns that at the expiration of the term above created un- less they give the notice hereinafter provided for, for the purpose of renewing and continuing this lease [upon said party of the second part having kept and performed all these covenants and agreements herein contained on his part], they will pay the said party of the second part, his executors, administrators or assigns the value of the said buildings that may then be standing upon said demised premises with the vaults and sidewalks that shall have been constructed on said premises as the said value thereof shall then be. Such value to be ascertained in the way herein- after provided. " And it is mutually provided and agreed that such value of said buildings, vaults and sidewalks shall be ascertained by three disinterested men of approved integrity one of whom shall be chosen by each party hereto and the third man to be selected and chosen by the two men so to be selected by the parties. "And the said parties of the first part further covenant and agree to and with the party of the second part, his executors, administrators and assigns, that in case they do not give the party of the second part, his executors, administrators or assigns, at least six months notice in writing before the day of ,19 , of their election to take possession of the said demised premises at the expiration of this lease and pay for said buildings, vaults and sidewalks at such appraised value, that then and in that event they will renew and continue this present demise and lease, and such omission to give said notice shall be deemed and taken to be a renewal and continuance of this de- mise and lease for years from the said day of , 19 , upon the same terms and conditions herein- before expressed, except that the rent for said renewed and con- tinued term shall be $ per annum, payable in the same Complaints 635 Landlord and Tenant way as the last years' rents above provided for. And they also covenant and agree as aforesaid that so often as they shall fail to give said months' notice before the termi- nation of such renewed term they will renew the said demise and lease and such failure shall be deemed a renewal thereof for years from the termination thereof on the same terms and conditions us the said first renewal and continuance. " And the party of the sccontl part covenants with the party of the fii'st i^art that in case of the renewal and continuance of this lease and demise as aforesaid, he will accept and continue the same on the terms aforesaid, and will pay the said parties of the first part, their executors, administrators or assigns, the rents hereinbefore mentioned on such continuance and renewal of $ per annum for each year of such renewal and con- tinuance and pay ell taxes and assessments assessed as aforesaid during such renewal and continuance so long as and until such renewals and continuances shall end. " And it is mutually agreed between the parties aforesaid for themselves, their executors and administrators, that in case H. B. P. or his grantees shall establish judicially a claim which he al- leges he has as owner of adjacent premises to have the portion of said demised premises, being that portion thereof lying [insert description of property], remain open and unoccupied, then and in that case the above demise of that portion of said premises and all the covenants so far as they relate to such portion is to cease, and one-fifth of the amount of each pay- ment of rent above provided for is to be deducted; said one- fifth of each payment being agreed upon as the proper appor- tionment of the rent under such circumstances for said piece so lying east of such line. And in case said P. or his grantees commence judicial proceedings to establish such right against the party of the second part, the said parties of the first part hereby covenant that they will pay the said party of the second part all costs and expenses he may be put to in defending him- self against such parties. " And the said party of the first part hereby covenant with the 636 Bradbury's Forms of Pleading Landlord and Tenant party of the second part, his executors, administrators and as- signs, that the said party of the second part, his executors, ad- ministrators and assigns, paying the rent and performing all and singular the covenants and agreements in these presents con- tained, on his part to be performed and kept, shall and may lawfully, peaceably and quietly have, hold, enjoy and occupy the said demised premises with the buildings thereon to be erected for and during the said term aforesaid hereinbefore granted without any lawful let, suit, trouble, eviction, molesta- tion, expulsion or interruption of or by them the said party of the first part, their heirs or assigns, or by any other person whomsoever lawfully claiming or to claim by, from or under them or either of them, or by or with any of their consent, privity or procurement, but this covenant is not to be deemed to extend to protect the party of the second part against the said claim of the said H. B. P. in case the same shall be judicially established to that part of said premises above mentioned as being claimed by him as aforesaid. And it is mutually understood and agreed by and between the parties aforesaid that the first above cove- nant to pay taxes and assessments extends to and includes the taxes and assessments that may be assessed and imposed or levied on all of said property from to streets, from and after the day of , 19 , whether the party of the second part ha3 possession thereof from that time or not. " In witness whereof these parties to these presents hereunto interchangeably set their hands and seals the day and year first above written." [Signed.] II. That at the time of the making of said lease, C. C. and J. C. were the owners in fee and the possessors of said premises, and of the whole thereof. That under and pursuant to the terms of said lease and relying 'upon the provisions and covenants therein contained, said T. J. D. did enter into the possession of said premises, and did within the time mentioned and provided in said lease, and relying upon said provisions and covenants, Complaints 637 Landlord and Tenant build and erect on all said premises at his own proper cost and expense, good substantial brick buildings, suitable for commercial and business purposes, covering said premises as nearly as prac- ticable for business purposes with such buildings, according to the terms of such lease. That said buildings, with vaults and sidewalks incident and appertaining thereto, and duly con- structed by said D. and his executors and assigns, remained on said premises at all times until the possession thereof was taken by the said defendants as hereinafter set forth, and said build- ings, sidewalks and vaults now remain thereon, and were at all times mentioned in this complaint, and now are in use for com- mercial and business purposes. III. That thereafter and from time to time prior to j 19 , and beginning on or about , 19 , certain deeds, instru- ments in writing, grants, mesne conveyances, assignments and transfers were duly made and delivered by and between the parties thereto named, and certain actions were duly instituted and maintained and judgments therein duly obtained and cer- tain orders were duly made, and certain proceedings were in- stituted and duly had and taken, and decrees therein obtained, in and by which successively the said lease and leasehold right theretofore held and acquired by said T. J. D., and all the claims demands and interests of said D., in and to said premises, and the buildings, vaults and sidewalks thereon, and all the claims, demands, rights and covenants originally existing in favor of said D. under said lease were duly assigned, granted, conveyed, transferred and set over from and by said D., his grantees, their grantees, successors and assigns ultimately to these plaintiffs, L. S. and A. S.; and that these plaintiffs through and by virtue of said sundry deeds and instruments in writing, grants, mesne conveyances, actions, judgments, orders, assignments, proceed- ings and transfers, thus duly made, executed and delivered, be- came and were prior to and on or about the day of , 19 , the owners and possessors of all the leasehold interests and rights, titles, claims, demands and covenants what- soever originally existing in favor of said T. J. D. under said lease, 638 Bradbury's Forms of Pleading Landlord and Tenant and all his right title, and interest in and to said premises and the buildings, vaults and sidewalks thereon. IX. And these plaintiffs further allege that they were such owners and holders thereof at the time the notice hereinafter men- tioned was served upon them, and at the time the defendants elected to terminate said lease, and also at the time the defend- ants took possession of said premises, all of which is hereinafter fully set forth, and are solely entitled to receive pay for the build- ings, vaults and sidewalks on said premises. V. And these plaintiffs further allege that the said lessors, C. C. and J. C, did not, nor did their executors or assigns hereinafter mentioned, give the six months' notice in writing before , 19 , of their election to take possession of said demised premises at that time, and pay for said buildings, sidewalks and vaults as mentioned in said lease, nor did they give any notice whatso- ever terminating said lease on , 19 , nor was any notice given at any time bj'^ them or by any of their successors or assigns of their election to take possession of said premises, or to terminate said lease until the notice hereinafter specifically mentioned, and fully set forth, was given to these plaintiffs by the said defendants. That by reason thereof the said lease and all its terms, conditions and covenants, including the covenant to pay for said buildings, vaults and sidewalks upon taking posses- sion of said premises, continued to remain in full force and effect, nor did the term of said lease cease to run at any time prior to the time specified in the said notice hereinafter set forth. '\'I. And these plaintiffs further allege on information and beUef that the said T. J. D. and his assigns and grantees, and their successors and assigns under said lease and leasehold interests, down to and including these plaintiffs, each during his leasehold term respectively as hereinbefore set forth, did remain in posses- sion of said premises and of the whole thereof, since the making of said lease, and since the erection of said buildings by said T. J. D., under and pursuant to the terms of said lease, and they did respectively ]iay all rents and taxes, assessments and other charges whatsoever required to be paid by said lessee, his sue- Complaints 639 Landlord and Tenant cessors and assigns, by the terms of said lease, and have fully complied with, kept and performed all the terms, provisions and covenants of said lease by said lessee and his assigns and gran- tees down to and including these plaintiffs to be by them or any of them complied with, kept or performed. That neither H. B. P., mentioned in said lease, nor his grantees, representatives or assigns, ever established the claim mentioned in said lease to have any portion of said premises remain open and unoccupied. VII. That said J. C, mentioned in said lease, died on or about , 19 , intestate, leaving his widow, J. C, and certain children of him and his said widow surviving as his sole heirs at law, among said children being the defendant, A. T. C; and that said widow and also said children of said J. C, except A. T. C, did thereafter die intestate, leaving said A. T. C. as their sole heir, and he did thereupon become the owner of all the right, title and interest of said J. C. in and to said premises; and for a number of years prior to , 19 , said A. T. C. had by reason thereof become and has ever since remained and now is the owner of an undivided one-half of the premises subject to the terms and conditions of said lease, and the covenants therein contained, and charged therewith. yill. That J. T. C, the wife of C. C, died long prior hereto, and that said C. C. died on or about , 19 , leaving a last will and testament dated , 19 , which was duly admitted to probate in the surrogate's court of county, in and by the terms of which will he did give and devise all his undivided interest in said premises to his daughter, F. A. C. That thereafter and on or about , 19 , said F. A. C. died leaving a last will and testament which was duly admitted to probate in the surrogate's court of county, on or about , 19 , in and by the terms of which she gave, willed and devised all her right, title and interest in said premises to the defendants, T. M. C. and H. M. J. That by reason thereof and since , 19 , said T. M. C. and H. M. J. had become and they have since re- mained and now are the owners of the interest in said premises theretofore held and owned by said C. C. at the time of his de- 640 Bradbtjby's Forms of Pleading Landlord and Tenant cease, each the owner of an undivided one-fourth thereof, subject to the terms and conditions of said lease, and the covenants therein contained and charged therewith. IX. That the aforesaid defendants received and acquired all the right, title and interest in said premises from said lessors with- out consideration, and with full knowledge of the said lease and its terms, conditions and covenants, and full notice thereof. X. And these plaintiffs further allege that the said defendants from the time of their ownership as aforesaid, and for a period of several years prior to , 19 , did collect and receive the rents reserved in and by the terms of said lease as the same accrued from time to time from these plaintiffs, who did duly pay to said defendants the said rents and did duly pay the taxes and assessments levied on said premises as required by the terms of said lease, and did also in all other respects carry out the terms and conditions of said lease, or instrument in writing, on their part to be performed. XI. And these plaintiffs further allege that on or about the day of ) 19 , and while these plaintiffs were in possession, as aforesaid, under the terms of said lease, the said defendants did serve upon these plaintiffs a notice in writ- ing which was in words and figures following : "ToL.S. andA.S. "Sirs: " You will take notice that we as owners of premises,[descnp- tion of property], and more particularly described in a certain lease bearing date , 19 , executed by C. C. and J. F., his wife, J. C. aiid J. C. of the city of , , of the first part, and T. J. D. of the same place of residence of the second part, and recorded in the county clerk's office in Liber 106 of Deeds at page 136, , 19 , hereby elect to take possession of the said demised premises pursuant to the pro- visions of said lease on the day of > 19 , and hereby notify you that said lease shall terminate on that day. " Dated," [Signed.] Complaints 641 Landlord and Tenant XII. That under and pursuant to the terms of said notice and of the terms and covenants of said lease, including the covenant to pay for said buildings, sidewalks and vaults upon the demised premises, the said defendants took possession of said premises, and the whole thereof, together with the said buildings, side- walks and vaults. And said defendants did on or about , 19 , evict these plaintiffs therefrom, and said defendants have since been and now are in the possession and occupation of said premises. XIII. That the defendants and each of them to this action deny any personal liability on their part to pay for said buildings, vaults and sidewalks, although they have taken possession thereof, and evicted these plaintiffs from such possession as hereinbefore set forth, and they and each of them refuse to pay for the same, or for the value thereof to the great loss and damage of these plain- tiffs. XIV. And these plaintiffs allege that the value of said buildings, vaults and sidewalks on the day of , 19 , and •also on , 19 , at the time the defendants evicted these plaintiffs therefrom, was about the sum of $ . That unless such sum, to wit, the value of said buildings, vaults and sidewalks, is made a charge and hen upon said premises and the whole thereof, there is grave danger that these plaintiffs may suffer irreparable injury and loss. That there is no other property of .1. C. and C. C. on hand left by them, nor is there any in the hands of any of their administrators or executors, that may be applied upon the claim of the plaintiffs, to wit, in payment of the value of said buildings, vaults and sidewalks, other than the premises upon which the said buildings, vaults and sidewalks stand. Thp.t said premises are more specifically described as follows : [Insert description of property.] XV. That prior to the commencement of this action these plaintiffs did duly select a disinterested man of approved integrity on their part, to take part in the appraisal of said- buildings, sidewalks and vaults, and did request said defendants to select an Vol. 1-41 642 Bradbury's Forms of Pleading Landlord and Tenant appraiser on their part, to the end that the man so chosen might choose a third disinterested man, said three men so chosen to ascertain and appraise the value of said buildings, sidewalks and vaults. That these defendants and each of them have unreasona- bly neglected and refused to join these plaintiffs in procuring an appraisal of the value of said buildings, vaults and sidewalks to be made, and they have unreasonably neglected and refused to choose a man to make such appraisal although repeatedly re- quested so to do, and now neglect and refuse so to choose an appraiser, and they have also neglected and refused to pay for said buildings, sidewalks and vaults, and do now neglect and refuse to pay for the same, or for any part thereof. That these plaintiffs have in all ways conformed to the terms of said lease on their part and have fully kept and performed all things by them required to be done. XVI. And these plaintiffs further show that no proceedings have been had at law or otherwise, and no other action has been brought to the knowledge or belief of said plaintiffs to recover said sum claimed to be due these plaintiffs by reasons aforesaid, or to recover the value of said buildings, vaults and sidewalks, or any part thereof. Wherefore these plaintiffs demand judgment : I. Ascertaining and determining the value of the said side- walks, vaults and buildings so built upon said premises by T. J. D., his successors and assigns, at the time the said defendants took possession thereof and evicted these plaintiffs as aforesaid. II. Charging the value of said buildings, vaults and sidewalks so to be determined upon the said premises of the defendants and the whole thereof, and decreeing and adjudicating the same to be an equitable lien thereon, and that the said lien be fore- closed and that every person whose lien, claim, conveyance or incumbrance is- subsequent or is subsequently recorded may be barred and foreclosed of all right, claim, lien and equity of re- demption in and to said premises and the whole thereof. That the said jji-emises. or so much thereof as maybe sufficient to raise the amount found to be due to the plaintiffs for principal, in- Complaints 643 Landlord and Tenant terest and costs, may be decreed to be sold according to law; that out of all the moneys arising from the sale thereof the plaintiffs may be paid the amount due them, with interest to the time of such payment, and the costs and expenses of this action, so far as the amount of such proceeds properly applicable thereto will pay the same; that the officers making such sale be directed to pay out of the proceeds of sale all taxes and assessments which are liens on the property sold, and that the defendants, A. T. C, H. M. J. and T. M. C, may be adjudged to pay any deficiency which may remain after appl)dng all of said moneys so applic- able thereto. III. That if for any reason the amount due these plaintiffs as aforesaid cannot be held a charge and lien upon said lands, that then and in that event these plaintiffs recover of said de- fendants and each of them, their damages sustained by reason of the facts set forth in said amended complaint, in such amount as shall be determined by the court, together with the costs of this action. IV. That the plaintiffs may have such other or further relief, judgment or order, or both, in the premises as shall be just and equitable. 644 Beadbury's Forms of Pleading Insurance CHAPTER XXI INSURANCE I. Life 645 II. Accident 655 III. Benefit Associations 670 IV. Fire 677 V. Marine 696 VI. Title 744 VII. Miscellaneous 747 FORMS Part I. Life NO. PAGE 452. Action by widow. Beneficiary named in policy 645 453. Action by beneficiary; another form 646 454. Action by executor 647 455. Policy assigned after being issued to insured 649 456. Waiver of delay in payment of first premium 651 457. Waiver of delay in payment of premium 652 458. Attempted termination of policy because of intemperance of insured 654 Part II. Accident 461. Ruptured blood vessel caused by slipping on icy sidewalk 655 462. Accident. Bartender injured in scuffle following attempt to eject an unruly customer 657 463. Injuries of which there is no visible mark on the body 658 464. Shook causing injury to heart finally resulting in death 661 465. Loss of leg finally resulting in death. Construction of policy. ...... 662 Part III. Benefit Associations ' 469. Benefit certificate; action by beneficiary 670 470. Beneficiary order action by administratrix 671 471. Fraternal order; benefit certificate 673 Part IV. Fire 474. Fire insurance policy 677 475. Action by assignee of principal mortgagor joining agent of mortgagee as defendant 679 476. Delivery of policy without payment of premium 681 477. Action by assignee for creditors ; agent's consent to transfer of interest 683 478. Action to reform contract as to person insured and to recover for loss 688 479. Reformation of pohcy, as to description of property, after loss, coupled with demand for money judgment on policy 690 480. Binding shp 693 483. Vessel capsized and totally lost 696 Complaints 645 Insurance Part V. Marine NO- PAGE 484. Vessel stranded and sunk 698 485. Valued policy 7OO 486. Valued policy; insurable interest of one who had control of property as agent or consignee 702 487. Carriers' insurable interest 703 488. Canal boat; insurance to close of season; canal opened after being closed and boat resumed voyage 707 489. Cargo of canal boat partially rescued under " no abandonment " policy 712 490. Loss of cattle carried between decks 715 491. After abandonment to insurer 721 492. Fire policy; vessel lost but time of loss uncertain 723 493. Canal boat cargo; vessel injured by grounding when tide went out . . . 725 494. Slacking of lime in hold of canal boat; boat sunk to extinguish fire; loss by fire 727 495.' Reinsurance ■ 728 496. Lloyd's policy; reformation of contract and action on policy as re- formed 737 497. Insurance against barratry of master 743 Part VI. Title 498. Title insurance. Tax assessment confirmed before date of policy but after insured took possession .- : 744 Part VII. Miscellaneous 499. Violation of contract with agent 747 500. Injunction by company to restrain use of agency books by a trans- feree thereof 749 I. Life Form No. 452 Action by Widow. Beneficiary Named in Policy ^ Supreme Court, county. Martha Becker, Plaintiff, against Metropolitan Life Insurance Company, Defendant. The plaintiff complaining of the defendant, alleges : ^ From Becker v. Metropolitan Life Ins. Co., 188 N. Y. 620; hi which a judg- ment in favor of the plaintiff was affirmed. 646 Bradbury's Forms of Pleading Insurance I. That the defendant is, and at all of the times hereinafter mentioned was, a domestic corporation, duly incorporated, organized and existing under and by virtue of the laws of the State of New York. II. That on or about the day of , 19 , this defendant entered into a contract with one G. W. B., the late husband of the plaintiff, wherein and whereby, for a valuable consideration, the defendant agreed to pay to this plaintiff the sum of $ , upon the receipt by it of the proofs of the death of said G. W. B., a copy of which contract is hereto annexed and made a part hereof, and marked Exhibit "A," to which reference is hereby made for further particularity in regard to the same. III. That the plaintiff at the time of the making of the said contract [Exhibit "A"] was the wife of, and now is the widow of, the said G. W. B., and this plaintiff is the beneficiary and payee named in the said contract. IV. That on or about the day of , 19 , the said G. W. B. died, and proofs of his death were duly received and accepted by said defendant as required by said contract and pohcy, and that the said G. W. B. and this plaintiff have per- formed all of the conditions and obligations required of them or either of them, in and by the said contract and pohcy. V. That the sum of $ , is now due and payable to the plaintiff from the defendant, and that payment of the same has been duly demanded, and that the said defendant refuses to pay the said sum of $ , or any part thereof. Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification]. Form No. 453 Action by Beneficiary; Another Form ^ I. That during all the times herein mentioned, the defendant was and now is a domestic corporation, organized and existing under and by virtue of the laws of the State of New York, and 1 From Seidenspinner v. Metropolitan Life Ins. Co., 181 N. Y. 518; in which a judgment in favor of the plaintiff was affirmed. Complaints 647 Insurance engaged in the business of insuring lives at the city of New York, and throughout the State of New York and elsewhere. II. That heretofore and on the day of , 19 , the said defendant in consideration of the premium of dollars on that day paid to the defendant by one G. S., and in consideration of the agreement of the said G. S. to pay annually to the defendant the sum of dollars, on or before the day of in each year, did issue to the said G. S. its policy in writing, whereby it did agree upon the death of the said G. S. to pay to the legal representatives of the insured, the sum of dollars, upon proofs of death of the said G. S. bemg received by the defendant at its office in the city of New York. III. That thereafter and on or about the day of , 19 , said defendant did designate this plaintiff as the beneficiary under the said policy, and did agree to make the said plaintiff the beneficiary under said policy, and to pay to her according to the terms of the said policy, the sum of dollars upon the death of the said G. S. IV. That the said G. S. died at the city of , New York, on the day of , 19 , and that thereafter due proofs of death of the said G. S., made in the form, to the extent and upon the blanks required by the sixth condition of the policy, were duly served upon the defendant and received by the defend- ant at its home office. V. That the sum of dollars is now due and payable to the defendant from the plaintiff, and that the said defendant refuses to pay the said sum ot any part thereof. Wherefore [demand for money judgment]. Form No. 454 Action by Executor ' I. Upon their information and belief they allege that the de- ' From Bradshaw v. Mutual Life Ins. Co., 187 N. Y. 347; in which a judg- ment in favor of the defendant was reversed. The point litigated on the trial was as to the effect of changing the beneficiary from the name of the wife to that of the estate of the husband after the wife's death. 648 Bradbury's Forms of Pleading Insurance fendant is a domestic corporation, organized and existing under the laws of the State of New York, and as such having full power and authority to issue the policy of insurance hereinafter referred to. II. And the plaintiffs further allege that R. C. B., late of the city of , N. Y., died at said last-mentioned city of , 19 , leaving a last will and testament, which was soon thereafter duly admitted to probate, in and by which said last will and testament he did nominate and appoint these plaintiffs executors thereof , and, on the probate of said last will and testa- ment, and long prior to the commencement of this action, letters testamentary thereon were dulj'^ issued to these plaintiffs by the surrogate of county, that being the county in which the said R. C. B. lived at the time of his death. III. And the plaintiffs further allege, upon their said informa- tion and belief, that heretofore, and on or about the day of , 19 , the defendant, by its policy of insurance. No. , duly issued by it and delivered to the said R. C. B. insured the life of the said R. C. B. in the sum of $ , on the payment of the premiums therein mentioned and referred to. The said $ by the terms of said policy was made payable to C. J. B., wife of the said R. C. B. That thereupon the premiums required by said policy were duly and annually paid, as required by its provisions, up to the time of the death of the said R. C. B. as hereinbefore stated. That about the ' day of , 19 , the said C. J. B. departed this life without issue her surviving, leaving the said R. C. B., her husband, and a mother and three sisters and a brother her only heirs-at-law and next of kin. IV. And the plaintiffs further allege, upon their said informa- tion and belief, that thereupon the said R. C. B. made application to have the terms of said policy changed and the amount thereof made payable to him or to his estate; and that thereupon, and about the day of j 19 , such action was taken that the said sum of $ was made payable to the estate of the said R. C. B. on his death. And the plaintiffs further allege, Complaints 649 Insurance upon their said information and belief, that, on or about the day of , 19 , the said R. C. B. was notified by the defendant that the said poUcy had been changed; that the amount thereof, to wit, the sum of $ , together with all lawful additions and dividends belonging thereto, was made payable to his estate on his death. That, from that time, he, the said R. C. B., continued to pay the premiums as they became due and payable on said policy by the terms thereof; and that, at the time of the death of the said R. C. B., as hereinbefore stated, there were additions belonging to said policy to the amount of $ , and a post-mortem dividend amounting to $ . That immediately on the death of the said R. C. B., due notice was given to the defendant of the fact of his death, and immediately thereafter due proofs of death were made by the plaintiffs and furnished to the defendant, to the satisfaction of the defendant and as required by said pohcy, which said proofs of death were made about the day of , 19 ; that the said R. C. B. and these plaintiffs have complied with all the terms and conditions of the said policy, and, as the plaintiffs are informed and believe, the defendant became liable to pay thereon the sum of $ , to these plaintiffs, on or about the. day of , 19 , no part of which has been paid or in any manner satisfied. Wherefore [demand for money judgment]. Form No. 455 PoUcy Assigned After Being Issued to Insured ^ I. That the defendant is, and at all the times hereinafter men- tioned was, a corporation duly organized under and by virtue of the laws of the State of II. That on or about the day of , 19 , in consideration of the sum of $ , duly paid the defendant, the said defendant by its duly authorized officers and agents 1 From Peck v. Washington L. Ins. Co., 91 App. Div. 597; 87 Supp. 210; aff'd 181 N. Y. 585; in which the plaintiff recovered. 650 Bradbury's Forms of Pleading Insurance made its certain policy of insurance numbered , being a contract of insurance in writing, insuring the life of W. R. P., and duly delivered the same to the said W. R. P. III. That in and by the said policy or contract of insurance, the said defendant, in consideration of the said sum of $ , and of the payment of a like sum on or before the day of , , and in every year there- after until the death of the insured, did insure the hfe of W. R. P., of , in the county of , State of , in the amount of $ , and the said company did promise and agree to pay the amount of the said insurance to the insured's executors, administrators or assigns, subject to the right of the insured to change the beneficiaries, upon receipt at the home office of the defendant company of proofs of the death during the continuance of the poHcy of the said W. R. P. IV. That the sum required in and by said poUcy to be paid on the day of , 19 , was duly paid to the said defendant company, and that thereafter and on or about the day of , 19 , the said W. R. P. died, and that at the time of his said death all of the sums required to be paid in and by the said policy of insurance had been duly paid, and that the death of the said W. R. P. occurred during the continu- ance of the said policy. V. That thereafter and on or about the day of , 19 , proofs of the death of the said W. R. P. were duly delivered to the said defendant at its home office in the city of , in all respects as required by the terms and conditions named in the said policy or contract of insurance, and that upon the receipt of said proofs of death there became due and payable from the defendant upon account of said policy or contract of insurance, the said sum of $ VI. That on the day of ,19 , the said W.R. P. duly assigned, transferred and set over all his right, title and interest in the said policy of insurance to this plaintiff, and that thereafter a duplicate of the said assignment was delivered to the defendant company and accepted by it. That there is now Complaints 651 Insurance justly due, owing and unpaid to the plaintiff from the defendant the sum of $ , with interest thereon from the day of , 19 . Wherefore [demand for money jvdgment]. Form No. 456 Waiver of Delay in Payment of First Premitun ^ I. That the defendant now is, and at the times hereinafter mentioned was, a corporation duly organized and incorporated under and pursuant to the laws of the State of , doing a general insurance business; and that said defendant was so in- corporated prior to the times hereinafter mentioned, and is an insurance corporation doing business within the State of , and still continues to be such corporation. II. That heretofore one L. W. G. was the lawful husband of this plaintiff; and that for several years prior to his death this plaintiff and said L. W. G. cohabited together as man and wife, they having been lawfully married. III. That heretofore and on the day of , 19 , the defendant issued and delivered a certain policy of insurance to said L. W. G., which pohcy was numbered , in and by which policy of insurance the defendant covenanted and agreed to pay to this plaintiff, M. E. G., who is the beneficiary therein named, for and in consideration of the payment of the premium of $ annually, upon the death of the said L. W. G., the sum of $ , and that said premium of $ was duly paid to said company at said time, and thereupon said company covenanted and agreed by a contract in writing by virtue of such poHcy, which was numbered as here- inbefore mentioned, to pay to this plaintiff upon the death of the said L. W. G., the sum of $ , upon proof of death of the insured, and that in and by said policy it was covenanted and agreed that the said L. W. G. should pay the premium of S annually, and that all the premiums that were due under said ~> From Genung v. Metropolitan Life Ins. Co., 60 App. Div. 424; 69 Supp. 1041; in which a judgment in favor of the plaintiff was affirmed. 652 Bradbury's Forms of Pleading Insurance policy were duly paid at the death of the said L. W. G., as here- inbefore mentioned. IV. That on the day of , 19 , said L. W. G. died, and that immediately thereafter this plaintiff duly caused due and satisfactory proofs of death of the said L. W. G., duly verified, to be duly made, and a statement of the claimant and proof of death duly filled out upon a copy of blanks, which were issued and furnished by the company, and also a statement of the attending physician, and that all the questions were therein properly answered and duly verified, and said plaintiff caused the same, that is, such statements and proofs of death, to be duly delivered to the defendant. V. That the said defendant denies its liability and refuses to pay such policy of insurance. VI. That in and by said policy the said defendant covenanted and agreed to pay the said sum of $ to this plaintiff upon the death of said L. W. G., but which it has failed to do. VII. That there is now due upon said policy to this plaintiff the sum of $ , and interest thereon from the day of , 19 , no part of which has been paid or satisfied. Wherefore [demand for money judgment]. Form No. 457 Waiver of Delay in Payment of Premium ^ I. On information and belief that the defendant is a corpora- tion duly organized and existing under and by virtue of the laws of the State of II. That the plaintiff is a resident and citizen of the county of and State of III. That on or about the day of , 19 , at the city of , , the defendant, by its president 1 From Cross v. Security, L. & T. Ins. Co., 58 App. Div. 602; 69 Supp. 189; aff'd 171 N. Y. 671. The company ga\e a check in payment of the policy, but subsequently stopped payment on the check. The question litigated, however, was the effect of the waiver of the payment on time of the premium, although the action in form was on the check. ^. Complaints 653 Insurance and treasurer, duly made to the plaintiff its check in writing dated on that day, directed to the T. N. B., a bank in said city of , and thereby required the said T. N. B. to pay to the plaintiff or order the sum of $ for value received, and thereafter and on or about , 19 , the said defendant, for value received and prior to , 19 , duly delivered said check to the plaintiff. IV. That a copy of said check is as follows : "The S.T. and L.I. Co. "No. " 19 "TheT.N.B. "Pay to the order of S. C, $ , in payment of claim under Policy "Countersigned byR. E. P., "President. "E. S. B., "Treasurer." This check duly bore upon it a United States documentary revenue stamp for the sum of two cents. V. That the said check was duly indorsed by the plaintiff and, so indorsed, was duly presented to the said "The T. N. B.," the said drawee, for payment on or before , 19 , but pay- ment was refused by said bank on the ground that said defend- ant had, subsequently to the drawing of said check, directed said bank not to pay the same, and plaintiff alleges upon infor- mation and belief that said defendant had so directed said bank; that on or about said day of , .19 , said check was duly protested, of all of which due notice was given to the defendant. VI. That no part of said check has been paid. Wherefore [demand for money judgment]. 654 Bradbury's Forms of Pleading Insurance Form No. 458 Attempted Termination of Policy Because of Intemperance of Insured ^ I. The plaintiff for her amended complaint complains of the defendant and alleges, on information and belief, that the defend- ant is a domestic corporation; that on the day of ,19 , it issued its policy of insurance No. A, whereby, in consideration of $ then paid, and $ to be paid every months thereafter diu-ing the jife of the insured, it insured the life of C. J. in the sum of % , and agreed to pay said sum to this plaintiff, who is the wife of the insured, upon his death, and upon receipt and approval at its office of proofs thereof furnished within days there- after, upon forms and in the manner prescribed by said company. II. And she alleges that from the date of said policy, until and including , 19 , the sum of $ was paid every months to this defendant, through its agent, upon said premium; that the defendant has refused to receive further pay- ments thereon, though tendered, upon the ground that the said policy was canceled; that upon , 19 , the insured died; that about , 19 , this plaintiff furnished to the defendant proofs of the said death upon the forms and in the manner prescribed by the said company at said time, which had been approved by the said company; that this plaintiff has per- formed all the conditions of said contract by her to be performed; that the same is due and unpaid, and the defendant refuses to pay the same, or any part thereof. Wherefore [demand for money jvdgment]. ' From .Janneck v. Metropolitan L. Ins. Co., 162 N. Y. 574; in which the plaintiff recovered. Complaints 655 Insurance II. Accident' Form No. 461 Ruptured Blood Vessel Caused by Slipping on Icy Sidewalk ^ Supreme Court, county. H. Allen Wagener, Plaintiff, against The Fidelity and Casualty Company, Defendant. I The plaintiff by A. B., his attorney, complaining of the de- fendant, alleges: I. That defendant was, at the time hereinafter mentioned, and now is, a corporation organized under and in pursuance of the laws of the State of New York, and has its principal office in the city of New York. II. That on or about the day of , 19 , by its policy of insurance, duly signed by its president and secretary, and countersigned by one N. S. D., its special agent, and in con- sideration of the warranties contained in the application there- for, and of the sum of $ , the said defendant did thereby insure G. F. W., of the village of P. Y., in said county, for a period of one year, beginning at noon of the day the said policy was dated, to wit, , 19 ; and thereby and therein the said defendant did promise, in the event of bodily injuries result- ' " Giving notice of the accident and furnishing proofs of the extent of the injury, within the time specified in the contract are conditions precedent to a right to indemnity under the policy; and it is incumbent on the plaintiff to allege and prove compliance in this regard if he expects to recover on the theory of performance, or to allege and prove facts showing absolute denial of liability or other waiver or estoppel, or sufficient excuse to authorize a recovery notwithstanding his noncompliance. This is a general rule of plead- ing, and we see no reason for not applying it, to the extent here considered, in actions on insurance policies as well as in other cases." Meech v. National Accident Soc, 50 App. Div. 144, 148; 63 Supp. 1008. ^ From Wagener v. Fidelity & Casualty Co., 188 N. Y. 640; in which a judg- ment in favor of the plaintiff was affirmed. 656 Bra.dbury's Forms of Pleading J. '. Insurance ing in the death of the said G. F. W., through external, violent and accidental means, to pay the sum of $ , to plaintiff, brother and business partner of the said G. F. W. III. That on the day of , 19 , the said de- fendant, by its duly authorized officers and agents, upon the payment to it by G.' F. W. of the sum of % , issued to the said G. F. W., its renewal receipt in the following words and figures ; "Received from G. F. W. the sum of % , continu- ing in force pohcy No. [that being the number of the policy issued to the said G. F. W. of date , 19 ], for twelve months from the day of > 19 , to the day of , 19 , at noon, standard time, provided that the statements and warranties in the original contract are true at this date, and that nothing has occurred or exists at this date to render the hazard greater or different from that shown in the said contract." IV. That on or about the day of , 19 , and while said policy was in full force and effect, said G. F. W. re- ceived a bodily injury through external, violent and accidental mpans, to wit, a ruptured blood vessel, filling his abdomen with blood, caused by slipping upon a sidewalk covered with ice; and while attempting to save himself from falling, strained himself so violently that said injury caused the death of the said G. F. W. within days thereafter, and on the day of ,19 . V. That by the terms and conditions of said policy it is pro- vided that in case of the death of the said G. F. W. the sum of $ , the amount secured thereby, should be paid to this plaititiff. VI. That the said G. F. W. and this plaintiff each performed all the conditions on their part, and plaintiff, more than- sixty days before the commencement of this action, to wit, on or about the day of , 19 , gave to the defendant due notice and proof of debt of the said G. F. W., as aforesaid, and the said defendant has neglected and refused to pay to this plaintiff, "the amount of the said policy, and there Complaints 657 Insurance is now due and owing to this plaintiff upon said policy the sum of $ Wherefore [demand for money judgment]. Form No. 462 Bartender Injured in Scufile Following Attempt to Eject an Unruly Customer ^ The complaint of the plaintiff respectfully shows to the court on information and belief : I. That the plaintiff is a resident of and doing business in the town of Wallkill, Orange county, N. Y., and that the defendant is an insurance corporation organized under the laws of the State of New York and carrying on a general accident insurance busi- ness within said State. II. That on or about the day of ,19 , the defend- ant issued to the plaintiff its policy of insurance, covering any accident which might occur to the plaintiff while engaged in any employment in the class in which he was insured, which said policy provided that if the plaintiff did suffer any accident as aforesaid, then, by the terms of said policy, the defendant promised and agreed to indemnify the plaintiff in the sum of dollars per week during the continuance of said accident. III. That on or about the day of , 19 , while said policy was still in force, the plaintiff while in the usual performance of his duties, in the class in which he was in- sured by the defendant, slipped and fell on an icy walk, suifer- 1 From Coles v. New York Casualty Co., 87 App. Div. 41; 83 Supp. 1063. On this appeal a judgment dismissing the complaint was reversed and a new trial ordered. On the second trial a judgment was rendered for the plaintiff, which was affirmed, 106 App. Div. 611; 94 Supp. 1141; and a motion for per- mission to appeal to the Court of Appeals was denied. 107 App. Div. 626; 95 Supp. 1122. On the second trial, however, the complaint was amended by adding an allegation that the policy was in force at the time of the injury complained of was incurred, and also an allegation that the conditions of the policy had been complied with by the plaintiff. The proof to sustain the action was that the plaintiff, a bartender, was injured while putting out of the barroom persons who were causing a disturbance therein. The case was tried in a justice's court. Vol. I— 4ii 658 Bradbury's Forms of Pleading Insurance ing thereby, and which said fall caused a grievous and painful injury to the wrist of the plaintiff, which said injury wholly in- capacitated the plaintiff from engaging in the usual perform- ance of his duties for the space of weeks, and that according to the terms of said pohcy of accident insurance, the plaintiff is entitled to the sum of dollars per week during the continuance of the total disability caused by said acci- dent, in all the sum of dollars, no part of which has been paid. IV. That the plaintiff has duly notified and presented to the defendant his claim for indemnity by reason of the accident as aforesaid, within the time prescribed in said policy of insurance, but has not presented final proof of loss as required by said policy for the reason that the defendant, by its subsequent acts, has waived the requirement of said policy of insurance in reference to the final proof of loss ; that the plaintiff has complied with all the conditions of said policy pertaining to him. Wherefore [demand for money jicdgment]. Form No. 463 Injuries of Which There is no Visible Mark on the Body ' I. That at all the times hereinafter mentioned the defendant, above named, was and still is a foreign insurance corporation organized and existing under and by virtue of the laws of and engaged in doing business in the State of as an accident insurance company, being duly thereunto authorized by the provisions of the statute of said State in such case made and provided. That the head office of said defendant for the at all such times was and still is in the city of in the State of II. That heretofore and on or about the day of ,19 , in consideration of $ , to it in hand paid, the defendant above named issued its certain policy of insurance in writing, No. , to J. B. C, residing in , county ' From Root v. London Guarantee & Accident Co., 92 App. Div. 578; 86 Supp. 1056; aff'd 180 N. Y. 527; in which the plajntjff recovered. Complaints 659 Insurance of and State of , wherein and whereby, for a good and valuable consideration to it in hand paid, it insured the said J. B. C. against bodily injuries sustained wholly and ex- clusively through external violence occasioned accidentally by visible means, in the sum of $ , to be paid to the estate of the said J. B. C. in case of death by accident, under the pro- visions of said policy; such payments to be made within days after the injuries causing death as aforesaid. That there- after and on or about the day of ; 19 > and prior to the expiration of the said policy so issued as aforesaid, in consideration of the payment to it, the said defendant, of the further sum of $ , said defendant, by an instrument in writing executed on its behalf and duly countersigned by a duly authorized representative of the company, for the said valuable consideration to it in hand paid, in terms continued in force the said policy for months from the day of , 19 , to the day of , 19 , at noon, subject to all the agreements and conditions of the aforesaid policy. That the above-named plaintiff hereby refers to the said orginal policy and renewal and continuance thereof above set forth, now in the possession of the defendant, for a more full, complete and accu- rate description of the terms and conditions thereof. III. That heretofore and on or about the day of , 19 , the said J. B. C. accidentally died at the city of , in the county of and State aforesaid, and that his death directly resulted from bodily injuries sustained wholly and exclusively through external violence occasioned accidentally by visible means, and that his death resulted from such mjuries independently of all other causes. IV. That the said J. B. C. departed this life as aforesaid, intes- tate, and that thereafter such proceedings were duly taken in the surrogate's court of the county of , said court being the court having jurisdiction of the premises. That thereafter and on or about the day of ,19 , a decree was duly made by the surrogate of the county of , appointing M. J, R. administrator of the personal estate of J. B, C. as afore- 660 Bradbury's Forms of Pleading Insurance said, and that thereupon the said administrator, the plaintiff above named, having duly taken the oath of ofl&ce and executed a bond as required by said decree, was granted letters of admin- istration of the goods, chattels and credits of the said J. B. C. aforesaid with full power and authority to administer and dis- pose of the personal estate of said deceased, as required by law, and that the said M. J. R., having thereupon qualified as such, has at all times since that time, been acting as such administrator of the estate of the J. B. C, deceased. V. That immediate notice of the said death of the said J. B. C. was given the defendant herein at the city of in the State of , pursuant to the terms of said policy, and that thereafter, within months from the time of the death of the said J. B. C, written notice containing the full name of the assured with full particulars of the accident, was immediately given by the general manager of the branch of said defendant in the city of aforesaid, and that affirmativ€ proof of death was furnished to the defendant within months from the time of the death of the said J. B. C. in all re- spects in accordance with the terms and conditions of the said policy. VI. That the plaintiff herein has duly complied with and per- formed all the conditions of the said policy, on his part to be per- formed under the terms of said pohcy, and, although more than days have elapsed since the injuries causing 'the death of the said J. B. C. that occurred as aforesaid, the defendant has failed to pay the said sum of $ , or any part thereof, although the said sum was and now is wholly due and payable, and although it has been thereunto duly requested. Wherefore [demand for money judgment]. Complaints 661 Insurance Form No. 464 Shock Causing Injury to Heart Finally Resulting in Death ^ I. That the above-named defendants are an association, duly organized under and by virtue of the laws of the State of , and were such association on the day of , 19 , and for some time previous thereto; and that said associa- tion was organized for the purpose of insuring persons against injury, disablement or death resulting from traveling or general accidents, and were at the times aforesaid and are now doing business in this State as such association, having their principal place of business in the city of , county of , II. That on or about the day of , 19 , said defendant association, for and in consideration of the membership fee of four dollars duly paid to said association by one J. L. T., and of other agreements therein contained, duly made, issued and delivered to said J. L. T., their certain certificate of member- ship, or policy of insurance, in said association, in writing, a copy whereof is hereto annexed as a part of this complaint; and said association thereby insured the said J. L. T. against casualties and injury from accident in various sums of money, according to the diiferent Icinds of injury he might sustain; and in case of the death of said J. L. T., caused by accident, the sum of $ was, by the terms of said certificate of membership, or policy of insurance, to be paid by the said association to E. A. T., the said plaintiff, as by a reference to said copy of certificate, or policy, hereto annexed, will more fully and at large appear. III. That this plaintiff was, at the time said certificate, or policy, was issued, and until his death, hereinafter mentioned, the wife of the said J. L. T., and as such wife had a valuable interest in the life of the said J. L. T. IV. That on or about the day of , 19 , at 1 From Thurber v. Commercial Travelers' Mut. Aco. Assn., 51 App. Div. 608; 64 Supp. 174; in which a judgment in favor of the defendant was reversed. On the first trial the plaintiff recovered, but the judgment was reversed and a new trial ordered. 32 App. Div. 636. 662 BftADBUBY's Forms of Pleading Insurance the city of , and State of , the said J. L. T. died, from the effects and as the result of a bodily injury which he received on or about the day of , 19 , and which was caused solely by external, violent and accidental means, within the meaning and intent of said certificate of mem- bership or policy of insurance, and not from any cause or disease in the said certificate or policy excepted. V. That the said J. L. T. and this plaintiff have each duly per- formed and fulfilled all the conditions and provisions in said certificate or policy contained, and plaintiff duly and timely notified the defendants of the death of the said J. L. T., and on or about the day of , 19 , and at different times thereafter within the time agreed in said certificate, or policy, she furnished the defendants with due proof of the cause of his said death. VI. That plaintiff duly demanded of the said defendants pay- ment of the said sum of $ , according to the terms of said certificate or policy, but that no part thereof has been paid, and the said sum is now due and owing thereon from the de- fendants to the plaintiff. Wherefore [demand for money jvdgmeni]. Form No. 465 Loss of Leg Finally Resulting in Death. Construction of Policy * The following question in difference existing between the parties above named, which might be the subject of an action, arising out of the statement of facts given below, is hereby agreed upon by and between said parties for submission, and it is hereby submitted, to' the Appellate Division of the Supreme Court for the fourth department, to wit : I. That at all of the times hereinafter referred to, the C. T. M. A. A. of America was and still is a domestic corporation organized ^ From Marshall v. Commercial Travelers' Mut. Ace. Assn., 170 N. Y. 434; in which a judgment in favor of the defendant was reversed and judgment ordered for the plaintiff. The case arose on a submission of a controversy on an agreed statement of facts reproduced above. Complaints 663 Insurance and existing under and pursuant to the laws and statutes of the State of , to witj Chap. 267, Laws of 1875, having its principal office for the transaction of business at the city of in the State of That the articles of incorporation of said association provide that "the particular business and object of such association are to be the collection and accumulation of a fund to be held and used for the mutual benefit and protection of its members [or their beneficiaries], who shall have sustained, while members of the association, bodily injury, whether fatal or disabling, effected through or by external, violent and accidental means, and under such conditions, provisions, hmitations and exceptions as may be established imder the constitution, rules and by-laws of the association." II. That on or about the day of , 19 , the C. T. M. A. A. of America, executed and delivered to J. H. L., a certain insurance certificate or policy, in the form and manner following, to wit : " The C. T. M. A. A. of America by this certificate of member- ship, " Witnesseth, that in consideration of the representations made to it in the apphcation for this certificate, which apphcation is made a part of this contract, and the sum of two dollars, as a membership fee, and two dollars as the first assessment, the re- ceipt whereof is hereby acknowledged, and of such future pay- ments as may be required under the provisions of the by-laws of the same association, "Does hereby constitute J. H. L. of , county of , State of , by profession a commercial traveler, a member of the said association in accordance with its articles and incorporations and by-laws. " And said association does hereby agree and promise to pay at its ofiice in , State of , to his sister, H. E. L., her executors, administrators or assigns, the sum represented by the payment of two dollars by each member of said association, as provided by the by-laws, which sum, however, is in no event 664 Bradbury's Forms of Pleading Insurance to exceed the sum of $ , said payment to be made within days after satisfactory proof shall have been duly filed with its secretary, that the said J. H. L. at any time during the continuance of this membership, shall have sustained bodily injuries effected through external, violent or accidental means, within the intent and meaning of this contract, and the conditions hereto annexed, and such injuries alone shall have occasioned death within days from the happening thereof, or if the said J. H. L. shall sustain bodily injuries by means aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prose- cution of his usual avocation, then within days after the filing of satisfactory proof of such injuries he shall receive a sum not exceeding $ per week, for loss of time, for such a period of continuous disability as shall immediately follow the accident and injuries aforesaid, not, however, exceeding twenty-six consecutive weeks, in accordance with the provisions of the by-laws of the said association, from the time of the hap- pening of such accident. " Provided always, that this certificate has been issued and accepted, subject to all the provisions, conditions, limitations and exceptions herein contained or referred to and of the by-laws of the association, which are referred to and made a part of this contract, and upon the express agreement that the statements and representations contained in the application for this certifi- cate, upon the faith of which it has been issued, are warranted to be correct and true, and if this certificate shall have been ob- tained through fraud, misrepresentations or concealment, or if any attempt shall be made by false representations or sup- pression of any material fact, on the part of any party herein named, to obtain any sum of money under this certificate, then the same shall be utterly null and void, and this certificate is issued and accepted subject to the following express CONDITIONS : "I. That the member herein named shall pay, or cause to be Complaints 665 Insurance paid, all assessments and dues that may be levied on him, in accordance with the by-laws of the association, on or before the date they shall become due and payable. "II. That the benefits under this certificate shall not extend to hernia, or any bodily injury, of which there shall be no external or visible sign, nor to any bodily injury happening directly or indirectly in consequence of any disease, nor to any death or disability which may have been caused wholly or in part by bodily infirmities or disease, existing prior to, or subsequent to the date of this certificate, nor to any case except where the injury is the approximate and sole cause of the death or dis- ability, or when the injury may have happened while the mem- ber was, or in consequence of his having been, under the influence of intoxicating drinks, or to any death or personal injury, unless the claimant under this certificate shall establish by direct and positive proof that the death or bodily injury was caused by external, violent and accidental means, and was not the result of design on the part of the member. "III. That all sums which may be paid by way of indemnity, by virtue of this certificate, shall be accounted in diminution of the principal sum to be paid in case of subsequent death resulting from the same injury. " IV. In the event of the member changing his avocation, pro- fession or occupation to any other more hazardous than that of commercial traveler, he shall at once notify the secretary of said association. "V. In the event of any accident or injury for which any claim shall be made under this certificate, or in case of death resulting therefrom, immediate notice shall be given in writing, addressed to the secretary at , , stating the full name arid address' of the member, number of certificate, occupation, and name and address of the attending physician, with full particu- lars of the accident or injury, and failure to give such notice shall invalidate all claim under this certificate; and unless direct and affirmative proof of the death or duration of total disability shall be furnished the association within seven months from the 666 Bradbury's Forms of Pleading Insurance happening of such accident, as per forms of proof furnished and questions prepared on same by the board of directors of the association, then all claims under this certificate shall be waived and forfeited to the association. "VI. No claim shall be payable under this certificate unless any medical adviser of the association shall be allowed to ex- amine the person of the member, in respect to any alleged injury or cause of death, then and so often as may be necessary or rea- sonably required on behalf of the association. " VII. No assignment of any claim under this certificate shall be valid unless made in writing, and unless a copy of such assign- ment shall be given to the association, within thirty days after its execution, and any claim under this certificate made by any assignee shall be subject to proof of interest. " VIII. A printed or written notice, mailed to the last known post office address of the member, as recorded on the books of the association, shall be deemed a legal and sufficient notice for any payment that may be required. "IX. No agent or other person is authorized to collect an assessment or dues on account of this certificate, nor to alter or change any condition of this certificate or waive any forfeitures. "X. To keep this certificate in full force all assessments and dues must be paid within thirty days of the date of the notice from the secretary calling therefor. "In witness whereof, the C. T. M. A. A. of America, at its office, in the city of , , has hereunto affixed its corporate seal, and has by its president or vice president and secretary, signed and dehvered this contract, this day of , 19 ." [Signed.] IMPORTANT NOTICE " The board of directors have been obliged — in the interest of the association — to notify all members, in the event of an acci- dent, that unless they give immediate notice to the secretary, stating briefly the nature and cause of the accident, in order to Complaints 667 Insurance allow our association surgeon an opportunity of seeing and ex- amining the injured person, as soon after the accident as possible, they will not recognize any claim sent to the association for in- demnity on account of any accident they may receive. A. B., Secretary "H.D. P., President, " I. 0. R., Chairman, Board of Directors." [Indorsed.] NOTICE "In case of any personal injury sustained by the member, or change of occupation, immediate notice must be given to the association in writing, to the office in , . Keep the association informed of any change of address." III. That said certificate or policy contract was in existence and held by said J. H. L. on the day of , 19 ; and that all of the terms and conditions of said contract had been fully complied with by the said J. H. L., and that said con- tract was in full force and effect on said day; that the sum repre- sented by the payment of two dollars by each member of the association, as provided by its by-laws, at the time of the death of said J. H. L., would be at least $ IV. That the provisions of the constitution and by-laws of the C. T. M. A. A. of America material to the controversy hereby submitted, are as follows: "2. Any member of this association, who, during his member- ship, sustains by accident the loss of an arm or leg, or is injured by an accident, which injury shall result in the loss of an arm or leg, shall be entitled to, and shall receive as an indemnity for such loss, a sum equal to one-half the amount collected from an assessment as for one death, which sum shall not exceed $ ; any member of this association, who, during his membership, sustains by accident the loss of both arms, or both legs, or one arm and one leg, or is injured by an accident, which injury shall result in the loss of both arms or legs, or one arm and one leg, shall be entitled to, and shall receive as an indemnity 668 Bradbury's Forms of Pleading Insurance for loss, a sum equal to the amount collected from an assessment as for one death, which sum shall not exceed I , provided such loss occur within three calendar months after the accident which caused it; and provided further, that the word 'loss' as used in this section, is hereby construed to mean actual ampu- tation." V. That on the day of , 19 , while said policy or certificate of insurance was in full force and effect, J. H. L. sustained an injury to his left leg, caused by a collision with the curbstone of a street, in the city of , , the result of which was that both bones of the leg were broken, re- sulting in a compound fracture, the bones protruding through the flesh. That he was taken to S. J.'s Hospital, in the city of , and that it became necessary to perform an operation for the amputation of the leg. VI. That the leg of the said J. H. L. was amputated at the hospital above named on the day of , 19 . VII. That the said J. H. L. died from the result of said injury on the day of , 19 , leaving H. E. L., his sister, him surviving. VIII. That on the day of , 19 , B. M. and H. E. L. were appointed executors of the last will and testament of J. H. L., by the surrogate of county; that they have duly qualified as such executors, and are now acting as such. IX. That pursuant to the certificate or policy of insurance, notice was duly given and all proofs therein required to be made, and notice to be given, were duly made, and given to the C. T. M. A. A. of America. X. That no payment has been made on account of the injury to said J. H. L., or on account of his death, by the C. T. M. A. A. of America. XI. That the foregoing statement contains all the material facts relating to the controversy between the parties hereto, and the same is to be filed in the office of the clerk of the county of XII. That an actual controversy exists at the time of this sub- Complaints 669 Insurance mission between the said parties, upon the point or question hereby presented for decision. It is hereby stipulated by and between the parties to this con- troversy that the question hereby submitted shall be decided without costs to either party as against the other, and that, in case judgment shall be rendered in any amount in favor of B. M. and H. E. L., as executors of the last will and testament of J. H. L. and H. E. L., individually, and against the C. T. M. A. A. of America, such judgment shall not include interest upon the claim or claims hereby submitted. It is claimed on behalf of B. M. and H. E. L., the executors of the estate of J. H. L., that the C. T. M. A. A. of America is liable to pay to the estate of said J. H. L. the sum of $ , by reason of said accident, the same resulting in the loss of a leg; and they hereby demand judgment against the said corporation for the sum of $ for the loss of a leg; or in case that said corporation is not liable for said amount, it is claimed that it is hable to pay to the estate of the said J. H. L. the sum of $ , for total disability, being the sum of $ per week from the time that said J. H. L. was injured, on the day of , 19 , until the day of his death, , 19 ; and judgment is demanded therefor against the said corporation. It is not claimed on behalf of the said B. M. and H. E. L. that the C. T. M. A. A. of America is liable to the estate of the said J. H. L. in any event for a death benefit. It is claimed on behalf of the C. T. M. A. A. of America that said corporation is not liable to pay the sum of $ , or any sum whatsoever, for the loss of the leg of the said J. H. L., for the reason that said loss did not occur within three calendar months after the accident which caused it; and as to the claim hereby submitted therefor the said C. T. M. A. A. demands judg ment dismissing the same.' It is admitted on behalf of the C. T. M. A. A. of America that, under the terms of the certificate or policy of insurance, said corporation is liable to pay to the estate of the said J. H. L. the sum of $ , said sum being for total disability from the 670 Bradbury's Forms of Pleading Insurance time of the accident, ,19 , to the time of death, ,19 , at the rate of $ per week; and said corpora- tion hereby offers to allow Judgment for the sum of $ , without interest or costs, to be rendered against it herein, for such total disability during said period. Dated , 19 . [Signed.] [Acknowledgment.] III. Benefit Associations Form No. 469 Benefit Certificate ; Action by Beneficiary ' Supreme Court, county. Margaret Robinson, Plaintiff, against Supreme Commandery United Order of the Golden Cross of the World, Defendant. The plaintiff, by her attorney, A. B., complaining of the de- fendant, alleges : I. That the defendant at all the times hereinafter mentioned was and now is a foreign corporation duly organized and existing under the laws of the State of II. That prior to the day of , 19 , one W. S. R. was duly elected and admitted a member of N. A. C, U. 0. of the G. C, located in , , and that thereafter the defendant made, executed and delivered to the said R. a certificate in writing, a copy of which is annexed hereto and made a part hereof and marked Exhibit "A," and that upon the delivery of the said certificate to the said R. the same was immediately accepted in writing by said R. ' From Robinson v. Supreme Commandery, United Order Golden Cross, 177 N. Y. 564; aff'g, witliout opinion, 77 App. Div, 215; 79 Supp. 13; ip vhioh the plaintiff recover^. Complaints 671 Insurance III. That said R. during his lifetime fully complied with all the provisions and conditions in said certificate on his part to be performed. IV. That on or about the day of » 19 , said W. S. R. died, and, at the time of his death, was in good standing in the defendant order. V. That thereafter the plaintiff duly performed all the condi- tions of said certificate on her part to be performed, and duly gave to the defendant due notice and proof of the death of said W. S. R., as aforesaid. VI. That the J. C. B. F. reached the sum of $ at the assessment called in pa3Tiient of said certificate, or would have reached said sum if said assessment had been called. VII. That said certificate had not been surrendered by said member, nor another certificate issued at his request, in accord- ance with the laws of the defendant order; that the said W. S. R. had not been suspended, disconnected or expelled from said defendant order; that by reason of the premises this plaintiff became entitled to receive from the defendant on the death of the said W. S. R., the sum of $ VIII. That payment of said sum has been duly demanded of the defendant, but that said defendant has not paid the same. Wherefore [demand for money jitdgment]. [Signature and office address of attorney and verification.] Form No. 470 Beneficiary Order. Action by Administratrix ' I. That heretofore and on or about the day of ,19 , at the city of , county of and State of New York, said plaintiff was duly and legally appointed by the surrogate's court of said county, adniinistratrix of the personal estate of E. S., late of the village of , in the province of , Dominion of Canada, and that she has duly ' From McCarthy v. Supreme Court of the Ind. Order of Foresters, 187 ^. Y. 565; in wh|ch a judgment in favor of the plaintiff was aflarmed. 672 Bradbury's Forms of Pleading Insurance qualified as such administratrix and has ever since been and still is acting as such. II. That said defendant is a foreign corporation, or fraternal beneficiary order, duly organized and existing, as said plaintiff has been informed and believes, under and pursuant to the laws of the province of , Dominion of Canada, and that said defendant has been duly admitted by the insurance department of this State, pursuant to the statute in such case made and provided, to transact business in said State, and that, for the year and upwards last past, said defendant has been and is now transacting business in said State. III. And said plaintiff further alleges, upon information and belief, that said E. S. died at said village of , province of , on or about the day of > 19 > intes- tate, leaving no widow and only two minor children; that prior to the said death of said S., and on or about the day of , 19 , said defendant, for a good and valuable consider- ation by it received, duly entered into a contract, or instrument in writing, • bearing date on or about said day with said S., wherein and whereby, among other things, it — said defend- ant — promised ami agreed to pay to the widow, or other bene- ficiary on said contract designated, or to the personal represen- tative of sairl deceased, on due and satisfactory proof of his death, an "Endowment benefit of $ ," less any and all sums which might have been previously paid as in said- contract particularly stated ; and that it was expressly provided and agreed in and by said contract that, at the date of any claim accruing, said deceased should be a member in good standing in said fraternal order, and not disqualified according to the constitu- tions, laws, rules or regulations prescribed from time to time by the Supreme Court of the Independent Order of Foresters; that said deceased fully complied, in all respects, with the require- ments of said contract and was a member in good standing in said order at the time of his decease as aforesaid, and that noth- ing had ever been received by said deceased from said defendant at the time of his death on account of said contract, or any of its Complaints 673 Insurance provisions; that the beneficiary designated on said contract was the wife of said deceased, who died some considerable time pre- vious to the death of said deceased, and that no other beneficiary was ever named on said contract, which was in the custody and possession of said plaintiff, at her place of residence in said city of , at the time of her application for letters of adminis- tration of the estate of said deceased and at the time of the issuing of letters testamentary to her by said surrogate's court of county as aforesaid. IV. Said plaintiff further alleges that she has caused due and satisfactory proof of the death of said E. S. to be presented to said defendant and has duly requested that she be paid the sum of money provided to be paid by said contract to her as the per- sonal representative of said deceased, but that said defendant has hitherto refused, and still refuses, to pay the same or any part thereof, although payment thereof should have been made long prior to the day of , 19 . Wherefore [demand for money judgment]. Form No. 471 Fraternal Order; Benefit Certificate ^ I. That at all the times hereinafter mentioned the Grand Lodge of the A. 0. of U. W. of the State of New York was, and now is, a domestic corporation, organized under the laws of the State of New York. II. That on information and belief, one E. D. F., on the day of , 19 ( was duly initiated as a member of the A. C. L. of the A. 0. U. W., No. , having been duly elected and admitted as a beneficiary member of the order. III. That on information and belief, a beneficiary certificate was issued to the said E. D. F. by the G. L. of the A. 0. U. W. of the State of New York, of which the following is a copy : "No. . $ "The G. L. of the A. 0. U. W. of the State of New York. 1 From Ayres v. Order of United Workmen, 188 N. Y. 280; in which a judg- ment in favor of the plaintiff was affirmed. Vol. 1-43 674 Bradbury's Forms of Pleading Insurance This certificate issued by the authority of the G. L. of the A. 0. of U. W. of the State of New York, witnesseth : — That brother E. D. F., a master workman degree member of the A. C, L., No. , of said order, located at Albany, in the State of New York, is entitled to all the rights and privileges of membership in the A. 0. of U. W., and to participate in the beneficiary fund of the order to the amount of $ , which sum shall at his death be paid to A. E. F., his wife. This certificate is issued upon the express condition that said E. D. F. shall in every particular, while a member of the said order, comply with all the laws, rules and requirements thereof. " In witness whereof the Grand Lodge of the Ancient Order of United Workmen of the State of New York has caused this to be signed by its grand master workman and grand recorder, and a seal thereof to be attached, this day of , 19 . "Attest, "N. J. H., Grand Recorder. " J. B. B., Grand Master Workman. " We, the undersigned, M. W. and R. in A. C. L., No. , do hereby countersign and attach the seal of this lodge hereto rendering the certificate valid and in full force, this day of , 19 . "Attest, "A. B., Recorder, "C. D., Master Workman." This certificate being sealed with the seal of the order and executed in due form. IV. That on information and belief previous to the delivery of said certificate to said E. D. F., according to the rules and regu- lations of the defendant, plaintiff paid the amount of moneys and assessments required thereon and performed all the condi- tions that said defendant required. V. The plaintiff shows that the said E. D. F., during his life- time, on and after making the delivery of said certificate as afore- said, fully complied with all the requirements of the constitu- tion, laws and regulations in every particular, while a member Complaints 675 Insurance of the said order; that the said E. D. F. departed this hfe at , county, New York, on or about the day of ) 19 ; that at the death of the said E. D. F. said certificate was, and still is, in full force and effect; that said E. D. F. has never been suspended or expelled from the said order, and the said certificate has never been surrendered, canceled, vacated, forfeited or lapsed; that the said E. D. F. paid all dues and assessments thereunder to the date of his death. VI. That, on information and belief that on or about the day of , 19 , a clearance card was granted by the A. Lodge, No. and deposited in Lodge, No. of the city of , New York, and the said E. D. F. thereafter became a member of said Lodge at , New York. VIL Upon information and belief that thereafter and on or about the day of , 19 , a clearance card was granted by the Lodge, No. of the said A. 0. U. W., of , New York, and deposited in the L. C. Lodge, No. , at , New York, and the said E. D. F.- became a member of the said L. C. Lodge, No. , at , New York. VIII. That thereafter and during the month of , 19 , A. E. F., the wife of E. D. F., and beneficiary named in said certificate of the G. L. of the A. 0. U. W., died, and thereafter and during the months of ' and , 19 , upon what particular day or days, plaintiff is unable to state, said E. D. F. filled out the blank form on said beneficiary's certificate, directing the payment of the beneficiary fund due at his death to one W. H. A., his cousin. That said certificate was duly returned as prescribed by rule of said order, and a new certificate bearing the same number issued and dated the day of , 19 , by which certificate $ was directed to be paid at his death to the said W. H. A., the plaintiff herein; that said certificate was duly countersigned by the recorder and master workman of the L. C. Lodge, No. , and the seal of said lodge attached, where- 676 Bradbury's Forms of Pleading Insurance upon the said certificate was delivered to the said E. D. F., who retained possession of the same until his death. IX. That thereafter and on or about the day of , 19 , the said E. D. F. made an application for a half cash payment option, as provided by the laws of the said Grand Lodge, and defined as "Option No. ."As the basis of further payments to the beneficiary and interest fund, that said application was duly filled out and returned to the Grand Lodge with the beneficiary's certificate; that at the time said certificate was returned, with the following indorsement thereon : "This certificate is indorsed subject to half cash payments to the beneficiary fund, and the amount payable at the death as stated in this certificate is hereby indorsed reduced to an amount equal to the sum remaining in accordance with the pro- visions of the half cash payment option, as defined in option No. 1, and the application therefor of the member herein named, dated the day of , 19 . The acceptance of this indorsed certificate is a voluntary act upon his part and the same is given at his request. [Signed] "P. M. T., "Grand Master Workman. "Seal • Attest, "A. C. H., "Grand Recorder." X. That by reason of the premises, the plaintiff became en- titled to receive from the defendant upon the death of the said E. D. F., the sum of $ , less the share of assessments of the said decedent paid by the Grand Lodge since the day of , 19 . XL Plaintiff further shows that due notice and proof of the death of the said E. D. F. has been given to the defendant; that on or about the day of , 19 , the said de- fendant, by A. C. PL, its grand recorder, stated that the proofs in the case of the death of the said E. D. F. were submitted to the finance committee and they had refused to paythe same. That more than days have elapsed since the presentation of such death claim, and no further action has been taken by the Complaints 677 Insurance Grand Lodge, or any part of the same thereof; that said defend- ant has refused or neglected to pay any part of the amount due on said beneficiary certificate. Wherefore, the plaintiff demands judgment against the de- fendant for the sum of $ , less the amount of assessments paid by the Grand Lodge according to the plan in option No. 1, with interest thereon from the date of presentation of the said death claim, together with the costs of this action. IV. Fire» Form No. 474 Fire Insurance Policy ^ Supreme Court, county. The National Wall Paper Company, Plaintiff, against The Associated Manufacturers' Mu- tual Fire Insurance Corporation, Defendant. The plaintiff, by its attorneys, A. B. & C, complaining of the defendant, alleges : I. That the plaintiff is a domestic corporation. ^ A waiver of a condition precedent in a fire policy must be pleaded; an allegation that the plaintiff has duly performed is insufficient. Williams v. Fire Assn. of Phila., 119 App. Div. 573; 104 Supp. 100. Thus held as to a short limitation contained in the policy. ^ From National Wall Paper Co. v. Associated Mfg. Mut. Fire Ins. Cor., 60 App. Div. 222; 70 Supp. 124; in which exceptions ordered to be heard in tlie first instance at the Appellate Division, upon a dismissal of the complaint, were sustained and a new trial ordered. Upon the second trial the plaintiff recovered and the judgment was affirmed without opinion, 73 App. Div. 627; and the last judgment was affirmed, 175 N. Y. 226. The only point seriously litigated was the time within which the proofs of loss were submitted to the defendant. The fire lasted three days, and the court held that the words in the policy requiring proofs of loss to be submitted " within sixty days after the fire " meant within sixty days after the fire had ceased to bum, not sixty days from the time it commenced. 678 Bradbury's Forms of Pleading Insurance II. That the defendant is, and at all the times hereinafter mentioned, was a foreign insurance corporation duly organized and existing under and by virtue of the laws of the State of , and duly licensed under the laws of the State of New York to transact the business of fire insurance therein. III. That on or about the twelfth day of November, 1897, at the city of New York, in consideration of the payment by the plaintiff to the defendant of the premium of $25.00, the defendant by its agent duly authorized thereto, made its policy of insurance in writing, a copy of which is hereunto annexed as a part of the complaint and marked Exhibit 'Ik," and thereby insured the said firm of N. W. P. Co. against loss or damage by fire to the amount of dollars, upon the follovi'ing described prop- erty, to wit: on store and office furniture, fixtures and fittings, gas, annunciating and electric fixtures, lamps, show cases, type- writer, iron safes, pictures and their frames [at not exceeding cost], printed books, sample trunks, wearing apparel, the prop- erty of the assured or their employees, store and office tools, implements, utensils and appliances, stationery and supplies, also signs and awnings, while contained in or on the brick building situate No. 815 Penn avenue, Pittsburg, Pa. IV. That at the time of making said insurance and from then until the fire hereinafter mentioned, the plaintiff had an interest in the said property insured as an owner thereof to an amount exceeding the amount of said insurance. Y. That on or about the eighteenth day of February, 1898, at 12:40 p. M., said property was totally destroyed by fire which did not happen by neglect, fault or act of plaintiff. VI. That the plaintiff duly fulfilled all the conditions of said insurance and within sixty days after the fire, to wit, on or about the twentieth day of April, 1898, before twelve o'clock m. at said city of New York, borough of Brooklyn, gave defendant due notice and proof of the fire and loss aforesaid and duly de- manded payment of the said sum of dollars, and more than sixty days have elapsed since such due notice and proof of loss were received by defendant. Complaints 679 Insurance VII. That no part of said sum has been paid and the said sum is now due thereon from defendant to plaintiff. Wherefore, the plaintiff demands judgment against defendant for the sum of dollars, with interest from the twentieth day of June, 1898, and costs of this action. Form No. 475 Action by Assignee of Principal (Mortgagor). Joining Agent of Mort- gagee as Defendant ^ I. That the plaintiff above named at all the times hereinafter mentioned resided and still resides in the city and State of New York. II. On information and belief, that the defendant, the G. F. & L. A. Co., at the times hereinafter mentioned was and now is a foreign corporation duly organized under and in pursuance to the laws of the Kingdom of Great Britain and was at the time of the commencement of this action doing business in the State of New York and had its principal office in this State, in the bor- ough of Manhattan and city of New York. III. On information and belief that at all times hereinafter mentioned the Owl's H6ad Hotel Co. was a corporation duly organized under the laws of New York and having its principal office in the said borough of Manhattan and was the owner of all the property hereinafter mentioned and described. IV. On information and belief, that the defendant, the G. F. & L. A. Co., by policy issued and delivered to the said 0. H. H. Co., in consideration of the sum of $ to the defendant paid by said 0. H. H. Co., insured said hotel company against loss or damage by fire, to the amount of $ on its property, as follows: $ on the buildings of the Owl's Head Hotel, and $ on ordinary contents of same, including billiard and pool tables and their appurtenances, household furniture, > From Lewis v. Guardian Fire & Life Assur. Co., 181 N. Y. 392. The mort- gagor was a resident of the State. The mortgagee was a nonresident, the company was a foreign corporation and the contract was made without the State. The action was held to be maintainable in the courts of this State. 680 Bradbury's Forms of Pleading* Insurance carpets, oil cloths, linen, beds, bedding, wearing apparel, china, glass and earthenware, plate, plated-ware, clocks, watches, jewelry, trinkets and ornaments, printed books, pictures and engravings, stoves, cooking utensils, stores and hquors, all situated at , during the term from the day of ,19 , at noon, to the day of , 19 , at noon, and in and by said policy the said defendant, G. F. & L. A. Co. promised and agreed to pay any such loss or damage as might be sustained as hereinafter described, at the expiration of days after due notice, ascertainment, estimate and satis- factory proof of such loss had been received by it in accordance with the terms of the said policy. V. On information and belief that on or about the day of , 19 , and while the said policy was in full force and effect, the property therein and hereinbefore described was totally destroyed by fire. That said fire did not occur from any one of the causes excepted in the said policy. VI. On information and belief that the true and actual value of the said property so insured as aforesaid, at the time of its said destruction, was at least the sum of $ VII. On information and belief that at the times of the loss aforesaid, there was upon said property other insurance, which, with the insurance provided for by, and set forth in, the said policy sued on herein, aggregated the sum of $ and no more. VIII. On information and belief that the Owl's Head Hotel Co. and the plaintiff before the commencement of this action performed all of the conditions of the said policy on its and his part to be performed. That more than days expired before the commencement of this action, since the receipt by the defendant, G. F. & L. A. Co., of due notice, ascertainment, estimate and satisfactory proof of the loss aforesaid, in accord- ance with the terms and conditions of the said policy. IX. That after the loss aforesaid and befire the commence- ment of this action the Owl's Head Hotel Co., for a valuable con- sideration, duly assigned said policy and all its right and interest Complaints 681 Insurance therein to this plaintiff, who is now the lawful owner and holder thereof. X. That the defendant, G. F. & L. A. Co., although demand therefor was duly made prior to the commencement of this action, has refused to pay the said sum of % , and the said sum of $ is now due and owing from said defendant to the plaintiff, with interest thereon from the day of , 19 . XL That under and by the terms of the said policy, the loss, if any, was made payable to J. G. F., as agent for a mortgagee having a mortgage on said property as his interest might appear. That, as the plaintiff is informed and believes, before the com- mencement of this action the said J. G. F. refused to join with the plaintiff in this action and in consequence thereof the plain- tiff has made said J. G. F. a defendant herein. Wherefore, the plaintiff asks judgment against the defend- ant, G. F. & L. A. Co. [Limited], of , , for the , sum of $ , with interest from the day of 19 , together with the costs and disbursements of this action. Form No. 476 Delivery of Policy Without Payment of Premium ^ I. That at and during all the times hereinafter mentioned the plaintiffs were, and still are, copartners in business, under the firm name and style of. J. H. & Co., doing business in the city of IL That at and during all times hereinafter mentioned the defendants were, and still are, a corporation duly created by and under the laws of the State of , and doing business in said State and the State of , as an insurance company. IIL That on or about the day of , 19 , the said defendants, in consideration of the payment of the sum of $ , premium thereof, made, executed and delivered to the said plaintiffs under their said firm n ame, a certain policy of 1 From Healy v. Ins. Co. of Penn., 50 App. Div. 327; 63 Supp. 1055; in which a judgment in favor of the plaintiff was affirmed. 682 Bradbury's Forms of Pleading Insurance insurance of said defendants in writing, a copy of which is an- nexed as a part of this complaint and marked Exhibit "A," wherein and whereby the said defendants undertook and agreed to and did insure the said plaintiffs against loss or damage by fire, to the amount of $ on their stock of matresses manu- factured, unmanufactured and in process of manufacture, and on materials and supplies for making the same and other mer- chandise, hazardous and extra-hazardous, their own or held by them in trust or on commission, or sold, but not delivered, all while contained in the brick building, situate No. , street, and building adjoining and communicating therewith, in the city of IV. That said policy was for the term of from the day of , 19 , at noon, to the day of ,19 , at noon, upon and subject to certain terms and conditions contained in said pohcy of insurance, as by said policy will fully appear. V. That at the time of the making and delivery of said policy of insurance, and thenceforward to the time of the occurrence of a fire and loss and damage thereby, to and upon said property as hereinafter stated, plaintiffs had an interest in the said property mentioned in said policy of insurance as the owners thereof, to an amount exceeding the said insurance thereon, in and by said policy of insurance of said defendants, and exceeding the whole amount of insurance upon said property, it having been "provided in and by said poUcy of insurance that other insurance was per- mitted without notice until required. VI. That upon the day of ,19 , a fire oc- curred in and upon said premises mentioned in said policy of insurance, whereby certain portions of the said property men- tioned and insured, in and by said policy of insurance, were dam- aged and in great part destroyed, to the amount in value of the sum of $ , which said fire did not happen by or from any of the means or causes excepted in said policy of insurance, and by said damage and destruction of said property covered by said policy of insurance these plaintiffs sustained a loss of $ Complaints 683 Insurance VII. That forthwith after the happening of said fire and loss said plaintiffs gave due notice thereof to said defendants, and as soon thereafter as possible delivered to the said defendants a particular account of such loss in due form and as required by said policy of insurance, and made and furnished to said defend- ants due proofs of said loss according to the terms and conditions of said policy of insurance within days after said fire and more than days before the commencement of this action, and these plaintiffs duly performed and complied with all the conditions of the said policy of insurance on their part. VIII. That the amount or proportion due and payable by said defendants under their said policy of insurance for and on account of said loss so sustained by said plaintiffs, as aforesaid, is $ , and although thereto duly requested said defendants have not paid the said sum of $ , or any part thereof. Wherefoke [demand for money judgment]. Form No. 477 Action by Assignee for Creditors; Agent's Consent to Transfer of Interest ^ I. That this plaintiff is the duly qualified and acting assignee for the benefit of creditors of W. G. N. II. That on or about the day of ' , 19 , W. G. N., by an instrument in writing, duly signed, sealed, ac- knowledged and delivered and filed in the office of the clerk of county, for a valuable consideration, duly sold, as- signed, transferred and set over unto plaintiff, L. N. N., all his property both real and personal of every description belonging to said assignor, including the property hereinafter set forth, excepting property exempt by law from levy and sale under execution, in trust, nevertheless, but with full power and au- thority to take possession and to sell and convert the same into money; also to collect all debts and demands so assigned as might be collectible, and out of the proceeds of such sales, to pay the 1 From Northam v. International Ins. Co., 45 App. Div. 177; 61 Supp. 45; aff'd on opinion below, 165 N. Y. 666. 684 Bradbury's Forms of Pleading Insurance creditors of said W. G. N., as therein mentioned, the overplus, if any there should be, to be returned to the said W. G. N., which assignment and the record thereof is here referred to and made to form a part of this complaint. That this plaintiff duly consented to said assignment, accepted the trust, gave the bond required by law in such cases, and is the duly qualified and acting assignee for the benefit of creditors of W. G. N., and as such is the owner and holder of the cause of action hereinafter set forth. III. Plaintiff further alleges upon information and belief, that defendant is a domestic corporation, duly created under the laws of the State of and carrying on the business of fire insurance in the State of , and that on or about the day of , 19 , at , , de- fendant, by its authorized agent, and in consideration of the sum of $ , premium to it paid, duly issued and delivered to W. G. N., its policy of insurance. No. , whereby it cove- nanted and agreed to insure said W. G. N. for the term of from the said day of , 19 , at noon, said .policy to expire on the day of ,19 , at noon, against all direct loss or damage by fire, except as provided in said policy, which exceptions and all reservations, conditions, stipulations and provisions in said policy contained, are hereby^ referred to and made to form a part of this complaint in an amount not exceeding $ on the following described property, while located and contained as described therein, and not elsewhere — I on two-story shingle and composition roof, frame building and additions thereto attached, including foundation, piping, plumbing ajid other fixtures and appur- tenances, while occupied only as a summer boarding house, and situate on Island, in town of , county, , and plaintiff alleges further that said policy contained the following words: "Other concurrent insurance permitted — held on contract loss, if any, payable as interest may appear." Also $ on household and kitchen furniture, useful and ornamental beds, bedding, linen and wearing apparel of self and Complaints 685 Insurance family, printed books, pictures and paintings and other frames [not exceeding cost], silver ware and plated ware, china and glass ware, mirrors, printed music, musical instruments, sewing machine, watches and Jewelry in use, family stores and all articles generally used in housekeeping, bar fixtures and such articles used in connection with hotel, all while contained in the two- story shingle and composition roof frame building and additions, occupied as a summer boarding house, situate on Island, in the town of , county, , and the said policy also contained the following words in connection there- with,^ — "Other concurrent insurance permitted." IV. Plaintiff further alleges that on or about said day of , 19 , the said W. G. N. duly itaade a general assignment for the benefit of his creditors to this plaintiff, of which assignment the defendant had due notice, and as plaintiff is informed and believes, duly consented thereto and continued its said poUcy of insurance in full force and effect for the benefit of this plaintiff as such assignee; who duly paid the premium therefor and thereon after giving such notice to the said defendant as aforesaid. V. The plaintiff further alleges upon information and belief that thereafter and on or about the day of , 19 , at about o'clock p. m., and while said policy of insurance was in full force and effect, a fire occurred in said build- ing containing said household furniture, useful and ornamental beds, and all the property hereinbefore mentioned, and being the house and building so insured by defendant, which extended to and entirely consumed the whole of said building so covered by the said policy of insurance, and destroyed the said building and all of its said contents hereinbefore mentioned, except about $ worth of the household furniture, glassware and dishes, picture frames, etc., which were saved. VI. Plaintiff further alleges upon information and belief that at and from the time of issuing said policy, up to and at the time of makin'T raid assignment, said W. G. N. wa^ the sole and un- conditional owner of said property and continued to be the owner 686 Bradbury's Forms of Pleading Insurance thereof up to the time of the said fire, subject to the rights of this plaintiff by virtue of said assignment. VII. Plaintiff further alleges on information and belief that said property which was destroyed by fire passed to this plaintiff as such assignee for the benefit of creditors, and was so held by him at the time of said fire and was of the value of about $ , and the amount of loss or damage sustained on said building and other property by said fire was that sum; that said fire did not originate by any act, design, or procurement, or in conse- quence of any fraud or evil practice done or suffered by said W. G. N., as plaintiff is informed and believes, and plaintiff further alleges that said fire did not originate by any act, design or pro- curement on the part of this plaintiff or in consequence of any fraud or evil practice done or suffered by him. VIII. Plaintiff further alleges on information and belief that at the time the fire occurred he had not given the bond required by law as such assignee, but had accepted the trust and was engaged in making an inventory of the property of the assignor preparatory to giving the bond required by law, and that there- after he did give the bond aforesaid and is the regularly qualified and acting assignee. IX. Plaintiff further alleges that he duly notified the com- pany of said assignment and of such change of title and the con- templated change as there was in the property, and paid defend- ant the premium on the said policy, and defendant stated to and gave the plaintiff to understand that it was all right, and that it would be all right, and that he would see that the insurance was all right, or that in substance, and waived the condition in the policy which in substance declares the policy to be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by insured in fee simple; or if any change other than by death of an insured take place in the interest, title or posses- sion of the subject of insurance, whether by legal process or judg- ment or by voluntary act of insured or otherwise, and plaintiff further alleges upon information and belief that the said defend- Complaints 687 Insurance ant was duly informed b^ said W. G. N. prior to issuing of said policy, that the building that was the subject of insurance was situated on land not owned in fee simple by the insured, and that the said defendant waived the said condition in the policy with reference thereto, and further alleges on information and beUef that the defendant well knew that the assured did not own the land in fee simple on which said building was situated at the time said policy was issued, and has ever since had full knowl- edge thereof, and knew just what the situation was at the time of issuing said policy of insurance and ever since that time. X. Plaintiff further alleges upon information and belief that after said fu-e he, and also the said W. G. N., gave immediate notice of the loss thereby in writing to this defendant, and within days after the fire rendered a statement to defendant, signed and sworn to by each of them, stating the knowledge and belief of insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of loss thereon, all incum- brances thereon, all other insurance, whether valid or covering said property, and a copy of all the descriptions and schedules in all policies, any changes in the title, use, occupation, location, possession or exposure of property since the issuing of said policy, and for what purpose the building in said pohcy described and the several parts thereof were occupied at the time of the fire as required by said pohcy, and in every way the insured and this plaintiff and each of them have fully complied with all the terms and provisions of said policy to be performed by them or either of them, as plaintiff is mformed and believes. That more than days have elapsed since the insured rendered said sworn statement or proof of loss to defendant, and the amount of said policy became due and owing from de- fendant to plaintiff on the day of , 19 . XI. Plaintiff further alleges on information and belief that by reason of all the facts above stated and by the terms of said policy of insurance, the defendant is indebted to this plaintiff 688 Bradbury's Forms of Pleading Insurance in the sum of $ , together with interest thereon from ,19 . Wherefore [demand for money judgment]. Form No. 478 Action to Reform Contract as to Person Insured and to Recover for Loss^ I. Upon information and belief, that the defendant, the S. P. F. & M. I. Co., is a foreign fire and marine insurance company, duly incorporated under the laws of the State of , and that it has a general office for the transaction of general fire in- surance business in the city and State of , that the plaintiff and the defendant, J. M., are residents of the State of II. That the defendant, J. M., is the J. M. named in the policy of insurance hereinafter referred to as the payee therein, and who may claim to have some interest in said poHcy of insurance. III. The plaintiff further alleges that on or about the day of , 19 , the defendant, the S. P. F. & M. I. Co., in consideration of the sum of $ , premium duly paid, duly agreed to issue, execute and deliver to the plaintiff herein, a poUcy of insurance numbered , and which is hereby re- ferred to as a part of this complaint, on property named in said policy located in the village of , county, , owned by the plaintiff, which said policy was to be in full force and effect from the day of , 19 , to the day of , 19 , at noon of that day, whereby among other things the said policy provided, that in case the two-story shingle roof frame dwelling therein referred to, which bii'ding the defendant, the S. P. F. & M. I. Co., thereby duly insured, should be destroyed by fire before the expiration of said pohcy, the defendant would, in consideration of the premium above mentioned, pay to the plaintiff the actual cash value of said house or dwelfing, not exceeding, however, the sum of $ 1 From McCoubray v. St. Paul Fire & Marine Ins. Co., 169 N. Y. 590; aff'g, without opinion, 50 App. Div. 416; 64 Supp. 112; in which the plaintiff re- covered. Complaints 689 Insurance IV. That said policy had not expired, but was in full force and effect on the day of , 19 , and that on the said day of , 19 , the said building was totally destroyed by fire, and the actual cash value thereof exceeded the sum of $ V. The plaintiff further alleges that she gave the defendant, the S. P. F. & M. I. Co., due and immediate notice of her loss by said fire, as required by the terms and conditions of said policy of insurance, as aforesaid. And she further avers, upon information and belief, that she did in all respects duly perform all the conditions and requirements of said policy of insurance, for her to do and perform, except the service of sworn and written proofs of loss, which service of said proofs of loss was duly waived by the defendant, and the plaintiff further avers that after due notice of said loss had been given the defendant, the S. P. F. & M. I. Co., and after the moneys due her under said policy became due and payable, and after a demand having been duly made therefor, absolutely refused to pay the plaintiff the said sum of $ , mentioned in said policy, all to the plaintiff's damage. VI. That at the time of the issuance of said policy and at the present time the defendant, J. M., is the owner and, holder of a mortgage upon the said insured property upon which there is now due $ , principal, with interest thereon from the day of , 19 . VII. The plaintiff further alleges that the agreement between the plaintiff and the defendant, the S. P. F. & M. I. Co., was, that a policy should be issued in her name upon the property described therein, in pursuance of the said agreement. That by the mutual mistake of the plaintiff and the defendant, the S. P. F. & M. I. Co., in failing to express the real and true intent of the said parties as entered into by the terms and conditions of said agreement, to wit, "that the said plaintiff should be insured against loss by fire, on the said property described in said policy." The said policy when made out and delivered through said mutual mistake as aforesaid, contained the words, "J. M.," as indicating the name of the person whose property was therein Vol. 1—44 690 Bradbury's Forms of Pleading Insurance insured, whereas it should have contained the name of the plaintiff, " M. A. M.," as the party whose property was insured. Wherefore, the plaintiff demands judgment: I. That the said policy of insurance hereinbefore referred to, be reformed, so that the name of "M. A. M." be inserted therein, as the beneficiary or payee therein, instead of "J. M.," in that the said policy may conform to the agreement and understanding between the said parties, at the time it was entered into. II. And as so reformed, the plaintiff, "M. A. M.," may recover the sum of $ , the amount due her, by reason of her loss under said policy, with interest on said $ from the day of , 19 , together with her costs and dis- bursements of this action. III. That the said defendant, J. M., first be paid out of the moneys recovered in this action, the amount found to be due upon his said bond and mortgage, as his interest may appear, and that the judgment entered herein may make due provision for said payment to the said J. M. Form No. 479 Reformation of Policy, as to Description of Property, after Loss, Coupled with Demand for Money Judgment on Policy ^ I. That the defendant, the Saratoga & W. F. Ins. Co., is a domestic corporation, duly created and organized under the laws of the State of New York, and as such corporation is, and at all times hereinafter mentioned was, engaged in a general fire insurance business. II. Thau on the day of , 19 , this plaintiff was the owner of a certain shingle roof frame building, which had been built for and was occupied t.s a meat market in the town of , county. New York, on the side of avenue. III. That on or about the day of , 19 , 1 From Mead v. Saratoga and Washington Fire Ins. Co., 179 N. Y. 537; aff'g, without opinion, 81 App. Div. 282; 80 Supp. 885; where a judgment in favor of the plaintiff was affirrrjed, Complaints 691 Insurance this plaintiff entered into a contract with the defendant whereby in consideration of the sum of $ , paid by plaintiff to defendant, the said defendant agreed to and with plaintiff to insure the aforesaid building, used as a meat market, in an amount of $ , for the term of years, from the day of , 19 . IV. That at the time the aforesaid agreement was made the defendant, and its agent who made the agreement on behalf of the defendant, knew that the building to be insured was not a dwelling, but was a meat market; and it was understood and agreed that it should be insured as such. V. That on the said day of , 19 , in pursu- ance of said agreement, the defendant issued its policy of insur- ance. No. , in which policy it attached a slip as follows : "$300 on a two-story shingle roof frame building, with ad- joining and communicating additions, including foundation, water pipes and all fixtures and appurtenances attached thereto, while occupied as a dwelling." That the words, "while occupied as a dwelling," were printed on said slip, which contained considerable other printed matter, and was not observed by this plaintiff until after the fii-e herein- after stated, and the said words, "while occupied as a dwelling," were not inserted m said policy in accordance with the agi-eement between plaintiff and defendant, but were inserted by mistake on the part of both plaintiff and defendant, or, if not by mistake oh the part of the defendant, then the said defendant through its officers and agents, intending to cheat and defraud this plain- tiff, caused the said words to be inserted in said policy; and m that case the words were placed in said policy through the fraud of defendant and accepted and permitted to remain through the mistake of plaintiff. VI. That on the day of , 19 , the said build- ing so insured as aforesaid was totally destroyed by fire. VII. That the plaintiff's loss thereby amounted to more than the said sum of $ VIII. That immediately after the said fire plaintiff gave de- 692 Bradbury's Forms of Pleading Insurance fendant notice of said loss, and on or about the day of ,19 , he furnished the defendant with proof of his said loss, and interest, and has otherwise duly performed all the conditions of said policy and agreement on his part. IX. That more than days have elapsed since plaintiff furnished defendant with proof of loss and no part of said loss has been paid. For a second and separate cause of action plaintiff alleges : I. That the defendant, the S. and W. F. Ins. Co., is a domestic corporation duly created and organized under the laws of the State of New York, and as such corporation is, and at all the times hereinafter mentioned was, engaged in a general fire in- surance business. II. That on the day of , 19 , in considera- tion, by the payment by the plaintiff of the sum of $ to the defendant, the said defendant, by its agents duly authorized thereto, made its policy of insurance in writing whereby it in- sured the plaintiff against loss and damage by fire to the market, situated in the town of , N. Y., for the term of years from the day of , 19 ; that at the time said policy of insurance was issued, and at the time the building was destroyed by fire, the same was occupied as a meat market, which fact the defendant, its ofl&cers and agents, had full knowl- edge before and at the time said policy was issued though the said company caused to be inserted in said policy that ths said build- ing was insured while occupied as a dwelling; yet, nevertheless, the said building was not, when said policy was issued, occu- pied as a dwelling and was not intended to be so occupied, which facts were at that time well known to defendant, its officers, agents and servants, and the said company waived any right it might have had to insist upon a forfeiture of the policy by reason of its not being occupied as a dwelling. III. That at the time said policy was issued and at the time of the fire the plaintiff was the owner in fee of the building, and the lands upon which the same was located, and the said build- ing was at the time of the lire worth much more than $ Complaints 693 Insurance IV. That on the day of , 19 , when the fire occurred, the aforesaid pohcy issued by defendant was in full force and effect, the aforesaid building was totally destroyed by fire on the said, day of , 19 , without fault on the part of plaintiff. V. That the plaintiff duly fulfilled all the conditions of said insurance on his part, and before the commencement of this ac- tion and within days after the fire, to wit, on the day of , 19 , plaintiff rendered a sworn statement to defendant stating the knowledge and beUef of the insured as to the time and origin of the fire, the interest of the insured and all others in the property, the cash value thereof, and all' other facts required by said policy to be stated. VI. That plaintiff has demanded pasnnent of the aforesaid sum of $ , but no part of the same has been paid, and there is now due thereon the sum of % , with interest thereon. Wherefore plaintiff demands judgment against the defendant that the policy of insurance described in the first cause of action herein may be reformed and corrected by striking therefrom the words "while occupied as a dwelling," and inserting in the place thereof the words "while occupied as a meat market;" and that the plaintiff may have judgment against defendant for $ . , with interest thereon, or if the said policy cannot be reformed and corrected that then the defendant be held to have waived the provision therein contained "while occupied as a dwelling," and that plaintiff have judgment for $ , with interest thereon from the day of > 19 , besides costs, together with such other or further judgment or decree as to the court shall seem just. Form No. 480 Binding Slip ^ I. That the plaintiffs, at the time hereinafter mentioned, were 1 From Karelsen v. Sun Fire Office, 122 N. Y. 545; in which the plaintiff recovered. See, however, Underwood v, Greenwich Ins. Co., 161 N. Y. 413, 694 Bradbury's Forms of Pleading Insurance copartners, doing business under the name of the S. S. S. Co., and that, at the same time, the defendants were a foreign cor- poration duly created by and under the laws of Great Britain, and having an office for the transaction of business in the city of II. That on or before the day of , 19 , the plaintiff apphed to the defendants, at their office, for insurance against loss or damage by fire upon a certain stock of merchandise and machinery and appurtenances, the property of the plaintiffs, consisting of materials raw, wrought and in process, as manufacturers of knit goods, and on supplies and materials, and on knitting and other machines, appurtenances used in the manufacture of hosiery, while contained in the brick building situate [insert location]. And the defendants, on said day, agreed to become the insurer to plaintiffs on the said stock, machinery and appurtenances for months from said day of , 19 , for $ [$ on knitting and other machines, and on machinery and appurte- nances used in the manufacture of hosiery, and $ on stock raw, wrought and in process, on manufactures of knit goods, and on supplies and materials while contained in said brick building as aforesaid], at a premium of $ , and that the said defendants would execute and deliver to the plain- tiff a pohcy of insurance in the usual form of policies issued by them, the said defendants, for the said sum of $ ' , for the term of from the said day. III. That the plaintiffs then and there agreed to pay to the defendants at the time of the delivery of said policy the said premium, to wit, the sum of $ IV. That it was then and there agreed between said plaintiffs and said defendants that the said insurance should be binding on the part of the said defendants for the term of one year from the said day of , 19 , and the said defendants, then and there, in consideration of the premises, promised and agreed to and with the plaintiffs to execute and deliver to them, in a reasonable and convenient time, a pohcy in the usual form Complaints 695 Insurance of their policies, insuring the.said stock of goods and machinery in the sum of $ , as aforesaid, against loss and damage by fire, the insurance to commence on said day of , 19 , and to continue for the term of from said date. V. That the defendants, by a policy of insurance issued in their usual form, among other things do promise and agree to make good unto the insured all such immediate loss or damage, not exceeding in amount the sum insured, as shall happen by fire to the property insured, within the time for which the in- surance is made, the loss or damage to be estimated according to the actual cash value of the property at the time the loss shall happen; the loss to be paid within days after notice and proof thereof made by the insured and received at the defend- ants' office in conformity to the conditions aimexed to the policy. And by one of the conditions usually annexed to such policy, it is provided that all persons insured by the defendants, and sus- taining loss or damage by fire, are forthwith to give notice thereof to the company, and as soon after as possible to deliver in a particular account of such loss or damage, signed with their own hands and verified by their oath or affirmation ; and shall also declare on oath whether any and what other insurance has been made on the same property; what was the whole value of the subject insured; what was their interest therein, and [among other things] in what general manner the building insured, or containing the subject insured, and the several parts thereof, were occupied at the time of the loss, and when and how the fire originated so far as they know or believe; and by another con- dition it is stipulated, on the part of the defendants, that pay- ment of the loss shall be made within days after the loss shall have been ascertained and proved and the proof received at the office of the company. VI. That after the insurance so made, and after the promise to execute and deliver a policy in conformity thereto, and within the said months for which plaintiff was so insured, to wit, on the day of , 19 , about o'clock in the afternoon, a fire occurred by which the said stock of mer- 696 Bradbury's Forms of Pleading Insurance chandise, machinery and appurtenances in the said building mentioned and intended to be so insured, was damaged and destroyed, and that the plaintiffs thereby sustained loss and damage to a large amount, to wit, to the amount of $ , and to more than all the insurance effected on said property. VII. That plaintiffs du y fulfilled all the conditions of said agreement and insurance on their part, and more than days before the commencement of this action, to wit, on or about the day of , 19 , at the office of the defendants in the city of , gave to the defendants due notice and proof of the loss as aforesaid, and duly demanded payment of said sum of $ VIII. That no part of the said sum has been paid, and the whole amount thereof and interest is still due, owing and unpaid frorn defendants to plaintiffs. Wherefore [demand for money judgment]. V. Marine Form No. 483 Vessel Capsized and Totally Lost ' Supreme Court, county. Edward V. Thebaud, A. B. and C. D., Plaintiffs, against The Great Western Insurance Com- pany, Defendant. The plaintiffs complaining of the defendant, allege : I. That the plaintiffs are, and at the times hereinafter men- tioned were, copartners in the city of , transacting business under the firm name and style of T. B. 1 From Thebaud v. Great Western Ins. Co., 155 N. Y. 516; aff'g 84 Hun, 1; 31 Supp. 1084; in which the plaintiff recovered. The defense was that the vessel was unseaworthy and that there had been a deviation from the voyage specified in the policy. Complaints 697 Insurance That at the same time the defendant was and is a corporation organized under the laws of the State of , as a marine insurance company, authorized to insure on vessels and cargoes and other maritime risks, and having its principal office and place of business in the city of II. That on the day of > 19 , the said de- fendant, in consideration of the premium of $ to be paid, issued and delivered to the plaintiffs by their firm name, T. B., a pohcy of insurance, a copy of which is hereunto annexed as a part of this complaint, and marked "A," and thereby insured the said plaintiffs on account of whom it might concern, in case of loss to be paid to them, the sum of $ upon the body, tackle, apparel and other furniture of the steamboat D. H., said steamboat being valued in said policy at the sum of $ , against the perils of the sea and other perils in said policy men- tioned, during the voyage at and from the port of to the port of , , with liberty for the said vessel, in her voyage, to proceed and sail to, touch and stay at any port or place if thereunto obliged by stress of weather or any other unavoidable accident, without prejudice to said insurance. That at the time the said insurance was applied for, the plain- tiffs exhibited to the defendant the specifications upon which the said vessel was constructed, and the defendant fully inves- tigated the risk through its agents and marine surveyors who examined the vessel, and when the plaintiffs' application for insurance was considered by the defendant, and at the time the said policy was issued, the defendant was fully informed and well knew the particular manner in which the said vessel was constructed, and that she was a river steamboat, constructed with special reference to her use in river navigation; and the pre- mium which the defendant charged and received for the said policy was largely in excess of the usual and ordinary rate of premiums for ocean going vessels, and the amount thereof was fixed with particular reference to the character and construction of said vessel, and the voyage she was about to undertake. III. That at the time of the issuing of the said policy the 698 Beadbury's Forms of Pleading Insurance plaintiffs were the agents of P. V., of , in , who was the person for whose account and concern said poUcy and insurance were effected, and who continued to be such owner up to and until the time of the loss hereinafter mentioned, and that said policy was made payable to plaintiffs, for the reason also that as such agents they had made large advances to such owner, and had thereby an equitable lien upon said steamboat. IV. That on or about the day of , 19 , said steamboat departed from the port of upon said voyage, and in the usual and ordinary course for a vessel of the character and description above stated, being then staunch, strong and in every respect seaworthy, with competent officers and crew. That thereafter, having been obliged by stress of weather to touch at various ports, said steamboat while proceeding on her said voyage, and being off , near the coast of , on the night of the of , 19 , was capsized and totally lost by and through perils of the sea. V. That the plaintiffs duly fulfilled all the conditions in the said policy of insurance on their part; and that more than days before the commencement of this action, to wit, on the day of , 19 , at the office of the company, in the city of , they gave to the defendant due notice and proofs of loss and interest as aforesaid, and duly demanded payment of the said sum of $ That no part of said sum has been paid, and that there is now due from the defendant to the plaintiffs thereon the sum of $ , with interest thereon from the day of , 19 . Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification.] Form No. 484 Vessel Stranded and Sunk ^ I. At all the times hereinafter mentioned plaintiff was, and 1 From Starbuck v. Phonix Ins. Co., 19 App. Div. 139; 45 Supp. 995; in which the plaintiff recovered. Complaints 699 Insurance still is, a resident and citizen of the State of ; and the defendant, during the same period, was and still is a marine in- surance company duly organized under, incorporated by and existing pursuant to the laws of the State of ; and the P. C. S. Co., during the same period, was and still is a corpora- tion duly organized under, incorporated by and existing pursuant to the laws of the State of II. Heretofore, to wit, on or about ,19 , at the city of , for a good and valuable consideration then and there duly received by defendant, defendant duly made, executed and delivered to the P. C. S. Co. its certain instrument in writing, usually called a policj' of insurance, bearing date , 19 , wherein and whereby defendant did cause to be insured the P. C. S. Co., for whom it might concern, in case of loss to be paid to said P. C. S. Co., or order, to the amount of $ , for the period of from the day of , 19 , at noon, the steamship Q. of the P., the propertj' of said P. C. S. Co., which said ship, etc., for so much as concerns the assured, by agreement between the assured and assurer in said policy were in and by the terms of said policy valued at $ , and in and by which said policy the defendant did state that it had been paid the consideration for said insurance by the assured or their assigns at and after the rate of per cent, to wit, $ III. Annexed hereto marked Exhibit "A," is a copy of said policy of insurance which plaintiff asks to have here read and taken a.s part of this complaint as if herein written out at length. IV. At the time of the making and delivery of said poHcy of insurance and the effecting of said insurance and ever since the P. C. S. Co. was and still is the owner of said steamship, the Q. of the P. V. At the time of the making and delivery of said policy of insurance and at the commencement of said risk under said policy of insurance, and upon the day of , 19 , at the inception of the voyage begun on said last-named day, said steamship Q. of the P. was seaworthy. 700 Bradbury's Forms of Pleading Insurance VI. On , 19 ) said steamship sailed upon a voyage from with a general cargo, bound for , , and way ports, and upon the following day, in the Ocean and while prosecuting her said voyage, said steamship and her said cargo became and were by the force of the winds and the waters and the perils of the seas, stranded, wrecked and partially lost and sustained and suffered losses and damages to the amount of $ , within the perils insured against, whereby the defendant became and is obligated to pay $ thereof. ^ VII. That the P. C. S. Co. duly fulfilled on its part all the con- ditions of said policy of insurance, and on or about , 19 , due proof of said loss and damage, viz., $ , and of the interest of the P. C. S. Co. therein, was given to the defendant, and payment pursuant to the terms of said policy was duly de- manded; but no part thereof has been paid. VIII. Afterwards, and on the day of , 19 , the P. C. S. Co. for a good and valuable consideration duly as- signed and transferred to plaintiff all and every its claim and demands against the defendant under and by reason of said policy of insurance. ^ Wherefore [demand for money judgment]. Form No. 485 Valued Policy ^ I. Said defendants at all times hereinafter mentioned were and now are a foreign corporation duly created by and existing under the laws of the State of , and duly authorized to make the contract of insurance hereinafter referred to. II. On or about the day of , 19 , for a valuable consideration, to wit, in consideration of the premium of $ then paid to said defendants by this plaintiff, the said defendants made and delivered to this plaintiff their policy * From Voisin v. Providence Washington Ins. Co., 51 App. Div. 553; 65 Supp. 333. Complaints 701 Insurance of insurance, in writing, wherein and whereby they, the said defendants, insured this plaintiff in the sum of $ , loss payable to this plaintiff, on merchandise lost or not lost, at and from to , on board the bark L. E. C, for a voyage from to , against the adventures and perils of the seas, fire, barratry of the masters and of the mariners and all other sea perils and misfortunes, which have or shall come to the damage of the said cargo and freight, or any part thereof to which insurers are liable by the wills and customs of insurance in , while at or on the way from aforesaid to III. This plaintiff further alleges, on information and belief, that prior to the departure of said bark from , aforesaid, on said voyage, and at the time covered by said insurance, there was shipped by and laden on said bark, lawful goods and merchandise of the value of about $ , and that said goods and merchandise were in and by said policy, by consent of this plaintiff and said defendants, valued at said sum last mentioned. IV. When at said bark had on board said goods and merchandise, valued as aforesaid, and that on or about the day of , 19 , said bark sailed from said port of on the said voyage described in the said policy, and before the termination of said voyage, and during the period of time insured against, said goods and merchandise were, by the perils of the sea and the risks insured against, totally lost to this plaintiff, wrecked and abandoned. V. This plaintiff further alleges that at the time of the com- mencement of the risk and thereafter, until the said loss, he was the owner of said goods and merchandise and interested therein to an amount exceeding the said sum of $ VI. This plaintiff has duly fulfilled all the conditions of said policy of insurance on his part, and more than days before the commencement of this action, to wit, on the day of , 19 , at the city of aforesaid, he duly gave to the said defendants due proof of the loss aforesaid, and statement of his interest in said risk mentioned, and duly de- 702 Bradbury's Forms of Pleading Insurance manded, and has since duly demanded, of said defendants, pay- ment of said sum of $ VII. That no part of said sum of $ has been paid, and that said defendants have refused to pay the same or any part thereof, and that there is now due from said defendants to this plaintiff, in the premises, the sum of $ , with interest thereon from the day of , 19 . Wherefore [demand for money judgment]. Form No. 486 Insurable Interest of One Who Has Control of Property as Agent or Consignee; Military Goods Insured Against Capture, etc.^ I. That at all the times herein mentioned, the defendants were, and they still continue to be, a marine insurance company, as such duly incorporated by and existing under the laws of the State of II. That heretofore, to wit, on or about , 19 , for a good and valuable consideration, then and there duly received by the defendants, they duly made, executed and delivered their certain instrument in writing, usually called a policy of insurance, bearing date , 19 , wherein and whereby they did cause to be insured this plaintiff, on account of whom it might concern, in case of loss, to be paid to him, to the amount of $ , on a voyage at and from to , upon a cargo of military goods laden, or to be laden, on board the schooner "S. T. K.," which said cargo of military goods was in and by the said policy valued at $ ; in and by which said policy the defendants did state that they had been paid the consideration for the said insurance, at and after the rate of two and one-half per cent, to wit, $ That in and by the said policy it was further witnessed as follows : "Free of claim for damages, but liable for a total loss of a part, if amounting to five per cent. ^ From Sturm v. Atlantic Mutual Ins. Co., 63 N. Y. 77; in which the plaintiff recovered. Complaints 703 Insurance "Touching the adventures and perils which the said A. M. I. Co., is contented to bear and takes upon itself in this voyage, they are of the seas, men-of-war, fires, enemies, pirates, rovers, thieves, jettisons, letters of marque and countermarque, reprisals, takings at sea, arrests, restraints and detainments of all kings, princes or people of what nation, condition or quality soever, barratry of the master and mariners, and all other perils, losses and mis- fortunes, that have or shall come to the hurt, detriment or dam- age of the said goods and merchandises, or any part thereof. "And in case of loss, such loss to be paid in days after proof of loss, and proof of interest in the said ." III. And the plaintiff further shows, that on or about 19 , the said vessel, with the said cargo of military goods laden on board, left the port of upon the said voyage, and that on or about ,19 , in the Gulf of , and while in the prosecution of her said voyage, the said vessel and her said cargo, became and were by the force of the winds and the waves, and the perils of the seas, totally wrecked and lost. IV. That at the time the said poUcy was so effected, and a\, all times down to its said loss, the plaintiff was the owner of the said cargo, and that the said policy was issued to cover his in- terest therein. V. That more than days before the commencement of this action, due proof of the said loss, and of the interest of this plaintiff in the said cargo, was given to the defendants. That such proof was given on or about , 19 . Wherefore [demand for money judgment]. Form No. 487 Carriers' Insurable Interest ' I. The complaint of the plaintiff shows, that at the several times hereinafter mentioned, the defendants were and still are a corporation duly created by or under the laws of the State of 1 From Savage v. Com Exchange Ins. Co., 36 N. Y. 655; in which a judg- ment in favor of the plaintiff was affirmed. 704 Bradbury's Forms of Pleading Insurance , duly organized and carrying on the business of insur- ing merchandise and other property against loss and damage by fire and inland navigation, in the city of , and in the city of , and at other places in the State of ; the business of said defendants in the city of being conducted by J. N. G., their agent at said place. II. That. the plaintiff, at the several times hereinafter men- tioned, was a common carrier of merchandise for hire, between and the city of , and intermediate points, by means of vessels owned or chartered by him, navigating the canal and the river, and running in a hne known as "The and Line." III. And the plaintiff further shows, that on or about the day of , 19 , the defendants, for the considera- tion hereinafter mentioned, did make and execute and dehver to the plaintiff, a certain instrument in printing and writing, com- monly called a policy of insurance, wherein and whereby it was among other things, in substance and effect, agreed by and on behalf of the defendants, that it would, and it thereby did, insure E. S. against any loss or damage he might sustain on cargoes, on account of himself or others, on his own boat, or boats be- longing to others, and running in "The and Line," by charter or on commission, loaded at , or at other ports or places as might be entered on said policy, for the several sums or amounts, and at the rates of premium agreed upon and entered on such policy, by J. N. G., agent, beginning the adventure upon the said goods, wares, merchandise and country produce from and immediately following the lading thereof, as aforesaid, at and continuing the same until the said goods, wares, merchandise or country produce should be safely landed at as indorsed as aforesaid. IV. Touching the adventures and perils which the said in- surance company was contented to bear, and take upon itself, on said trip or voyage, they were of the seas, canals, rivers and fire, and all other perils, losses and misfortunes, that should come or happen to the hurt, detriment or damage of the said goods, Complaints 705 Insurance wares, merchandise or country produce laden on board of said boat or boats on the voyage or trip aforesaid, excepting perils, losses and misfortunes arising from or caused by theft, robbery, ice or barratry of the master, or any of the crew of the said boat or boats, or from a want of ordinary care and skill [such as is common in said navigation] in lading or navigating said boat or boats, and excepting also all losses arising from or caused by the said boat or boats being unduly laden on the voyage or trip aforesaid. And the said insurance company did thereby under- take and agree to make good and satisfy unto the said assured all such loss or damage on the said goods, wares, merchandise or country produce, so laden as aforesaid, not exceeding in amount the sum insured thereon, as should happen or arise from any of the aforesaid causes and casualties, excepting as before excepted. And it was further, in and by said policy, agreed, that imme- diate notice of the occurrence of all losses should be given to said company by the assured, and that all loss or damage should be paid within days after notice and proof of the loss, and interest thereon, should have been made by the assured. And it was also agreed, that the amount of the loss should be ascertained by the opening of packages when necessary, by a competent person, and separating the sound from the damaged portion— the company being liable for the loss on the damaged portion only, which should be ascertained by appraisement by disinterested persons, or by sale at auction, as the said company might prefer— the said loss or damage to be estimated according to the true and actual value of the said property thereby insured, at the time the same shall happen. And it was also agreed, that said policy was not valid unless countersigned by J. N. G., agent, at V. And the said plaintiff further shows, that said policy, before the delivery thereof as aforesaid, was signed by the presi- dent of the defendants and attested by its secretary and counter- signed by the said J. N. G., agent of said defendants at And the plaintiff further shows, that on or about the day of , 19 , the said E. S., as such common carrier Vol. 1—45 703 Bradbury's Forms of Pleading Insurance as aforesaid, shipped, or caused to be shipped, at , on board the boat " J. M. F."— said boat then being the property of the plaintiff , and running in " The and Line" — to be conveyed from to , to be reshipped on either the lake boat "N. S." or "H." from , a cargo of corn, which was indorsed upon the said policy and insured there- under for $ , and a premium of $ paid therefor by the plaintiffs to the defendant, and the risk approved by said J. N. G., agent of said defendants at . And that on or about the day of > 19 , the said E. S., as such common carrier as aforesaid, shipped, or caused to be shipped, at aforesaid, on board the boat "J. B. C. " — said boat "J. B. C." then being the property of the plaintiff, and running in "The and Line" — a cargo of corn, to be con- veyed from to , to be reshipped on either the lake boat "N. S." or "H.," which was indorsed on said policy, and insured thereunder for the sum of $ , and a pre- mium of % paid therefor by the plaintiff to the de- fendants, and the said risk approved by the said J. N. G., agent of said company at . That said cargoes of corn were safely carried and conveyed on board the said boats "J. M. F." and "J. B. C." to , and then reshipped on board the boat "H.," said boat "H." being the property of the plaintiff, and running in "The and Line," to be carried to , as provided in the said indorsement on said policy. That the said boat "H.," with the two said cargoes of corn laden on board thereof, on or about the day of , 19 , departed from aforesaid, in tow of the steam tug "S.," bound for the said city of — the said policy, and the indorsements thereon as aforesaid, being and continuing in full force and effect. That while said boat was in the prosecution of her trip aforesaid, and had arrived at a p6int on the river, at about the place known as "S. D.," the said boat "H." struck upon a rock, which caused her to leak and let in large quantities of water, in consequence of which, although every exertion ^^'aH made to save such boat and cargo, the said boat. Complaints 707 Insurance with the aforesaid two cargoes of corn on board thereof, sunk in the said river at or about , whereby the said two cargoes of corn became and were wholly lost, whereby said E. S. sustained damage to the amount of $ . That the said corn so placed on the said boat "J. M. F.," and reshipped on said boat " H.," w'as of the full value of $ ; and the said corn so placed on the boat "J. B. C," and reshipped on board said boat "H." was of the full value of $ \1. That immediate notice of such loss was given to the de- fendants, and that on or about the day of > 19 , proof of the said loss and interest thereon, as required by said policy, was made by the plaintiff, and delivered to the defendants. That such loss was occasioned by accident and misfortune, and did not arise from, and was not caused by, theft, robbery, ice, barratry of the master, or any of the crew of the said boat "H.," or from want of ordinary care and skill [such as is com- mon in said navigation] in lading or navigating said boat "H.," or by said boat "H." being unduly laden on said voyage or trip, and that no part of said loss has been paid. That at the time of said loss, the plaintiff, as common carrier aforesaid, was in- terested in said cargoes of corn, to the whole amount thereof, and became liable for the same, by reason of said loss, to the shippers thereof. Wherefore [demand for money judgment]. Form No. 488 Canal Boat; Insurance to Close of Season; Canal Opened After Being Closed and Boat Resumed Voyage * I. That at all the times hereinafter mentioned, and for a long time previous thereto, the plaintiffs were and now are copart- ners, engaged in the business of shippers and forwarders upon the canal, in the State of , and the navigable waters connnected therewith. II. And that at all the times h ereinafter mentioned, the said 1 From Delahunt v. Mtna. Ins. Co., 97 N. Y. 537; in which the plaintiff re- covered. 708 Bradbury's Forms of Pleading Insurance defendant was and now is a body corporate created and doing business under and by virtue of the laws of the Slate of , having an office or agency at the city of , for taking fire and marine risks, and issuing pohcies of insurance thereon. III. And the plaintiffs further say, that on the day of ,19 , at the city of , county of and State of , the said defendant in consideration of certain premiums paid, and to be paid by the said plaintiffs, issued to the said plaintiffs, a certain policy of insurance "No. ," signed by the president of the defendant, and countersigned by the defendant's general agent at , , whereby the defendant agreed to insure the plaintiffs as "owners, advancers, or common carriers, on goods, wares, merchandise and country produce," loaded by the said plaintiffs on their own boats, or boats belonging to other persons, running from place to place, as might thereafter be indorsed on said policy, or in a book for thai, purpose, and issued with said policy to the said plaintiffs for the several amounts, at the rate and on the goods, wares, merchandise and country produce, specified on the said indorsements. IV. That afterwards and between the and days of , 19 , at , aforesaid, the plaintiffs, as ad- vancers and common carriers, loaded on the canal boat " J. M.," bushels of oats, and about tons of bones, hoofs and horns of great value, which the plaintiffs, as such carriers, had agreed to transport on said boat M., from the city of to the city of , excepting about tons of said bones, which were to be delivered at ,- near , on the river, for the freight of cents per bushel on the oats, and $ per ton on the bones, hoofs and horns, amounting in all to $ . And the plaintiffs further say, that on the day of , 19 , the said plaintiffs effected an insurance upon the said cargo of oats with the defendant under the said policy, for the amount of $ , for the trip from the city of , to the city of , and a further insurance on said quantity of oats for the amount of $ , at the rate of cents on $ , from the Complaints 709 Insurance city of , to the city of , and that on said day of , 19 , the said defendant duly declared an insurance on said quantity of oats, by entering in the aforesaid book, issued with said policy of insurance, a memorandum of the aforesaid amounts, the respective rates aforesaid of the prop- erty insured, and the trip for which they so insured, signed by the agent of the defendant at , according to the terms of said policy of insurance. V. And the plaintiffs say that they paid the said defendant the premiums on said insurance as aforesaid, at the rate afore- said; and that afterwards, and on the day of , 19 , the said plaintiffs effected an insurance upon the aforesaid quantity of bones, hoofs and horns, with the defendant under said policy of insurance, for the amount of $ at the rate of $ on $ , for the trip from the city of to the city of , on the said canal boat " J. M.," and that on said last-mentioned day, the defendant duly declared an insur- ance on said quantity of bones, hoofs and horns, for the amount aforesaid, at the rate aforesaid, and for the aforesaid trip, and duly specified the same by entering in said book issued with said policy of insurance, a memoranda of said property insured, and the amount of said insurance, for the trip, and at the rate afore- said, approved and signed by the agent of the defendant at , according to the terms of the said policy of insurance, and that the plaintiffs paid to the defendant the premium on such last-mentioned insurance at the rate last aforesaid. VI. And the plaintiffs further say that they effected such in- surance on the property aforesaid, by the reason of their interest in said property for the amount of the aforesaid freight therein, for the transportation of the same from the city of to the city of , and to , near , on the river, and to cover any damage sustained by them, by reason of their liability to the owners or consignees thereof, for any injuries to or loss of said property, and occasioned by any of the perils, losses or misfortunes, insured against in said policy of insurance. That afterwards the plaintiffs had effected the in- 710 Bradbury's Forms of Pleading Insurance surance aforesaid, upon the said bushels of oats, and lbs. of bones, hoofs and horns, the said canal boat " J. M.," being tight and well found, and manned in tackle and apparel, and also in all other things seaworthy, and means necessary and proper for the safe navigation thereof, on said trip in the canal and river, from the city of , to the city of , and intermediate ports, with said cargo of oats, bones, hoofs and horns, laden on board thereof. That after- wards and on or about the day of , 19 , when said boat had entered the river, on her trip aforesaid, and at or near the city of , in the State of , without any fault of the plaintiffs or those in charge of the said canal boat, and without any want of ordinary care and skill in the lad ng and navigating said boat, and not from any perils or causes occasioned by any causes excepted from the risks, perils and losses stated in the said policy of insurance, and in- sured against therein, the said canal boat, with the said cargo on board as aforesaid, by reason of one or more of the perils insured against in and by said policy, was caused to leak and sink in the said river, whereby said cargo was greatly injured, and the said plaintiffs sustained damage as hereinafter set forth. VII. And the plaintiffs further say, that although the utmost diligence and attention of the captain and crew of the said canal boat, were used to save the said property, a large portion thereof, a quantity of oats of the value of $ , and a quantity of bones, hoofs and horns, of the value of about $ , were by and from one or more of the perils insured against as aforesaid, thereby entirely lost, and that the plaintiffs became and were wholly unable to forward and transport said cargo of oats, bones, hoofs and horns, to its place of destination according to their contract, as the forwarders and carriers thereof. Whereby the said plaintiffs lost their entire freight thereon. VIII. That immediate notice of the occurrence of the said loss was given to the defendant by the plaintiffs, and that afterwards and w thin days after said loss happened, the plaintiffs delivered to the defendant's agent at , a written account Complaints 711 Insurance or statement thereof, as required by said policy of insurance, duly signed and verified by oath, according to the terms of the said policy. IX. And the plaintiffs further say that after the effecting of the said insurance as aforesaid, they paid out and expended large sums of money for advances on said cargo, for tolls on said cargo, for trimming the said cargo and for other expenses of said trip, and incurred other large expenses in endeavoring to safely transport and save said property from loss and damage, by the said perils insured against, amounting in the aggregate to the sum of $ , and that by means of the premises, the said plaintiffs wholly lost their entire freight on said cargo of oats, bones, hoofs and horns, amounting to the sum of $ , which last-mentioned sum, with interest thereon from the day of , 19 , the said plaintiffs are entitled to have and recover from the defendant in this action. X. And the plaintiffs further say, that by reason of the dam- age and loss to the said cargo aforesaid, the said plaintiffs have become liable to the owners or consignees thereof, in the sum of $ , as is claimed by the said owners or consignees, which further sum and interest thereon, tLcy claim to te entitled to have and recover of the said defendant, in this action. XI. And that by means of all and singular of the premises as aforesaid, the plaintiff claims that the defendant is justly in- debted to them in this action in the sum of $ and interest thereon from the day of , 19 . And the plaintiffs say that although often requested, the said defendant has wholly failed to pay the same, and still do neglect and refuse to pay the same, or any part thereof, although such payment has been duly demanded. Wherefore [demand for money judgment]. 712 Bradbury's Forms of Pleading Insurance Form No. 489 Cargo of Canal Boat Partially Rescued Under " No Abandonment " Policy ^ I. Plaintiff resides at the city of , county, ,11. The defendant above named is, and during all the times hereinafter mentioned was, a foreign corporation, duly organized and existing under the lav\s of the State of , but having an office and place of business in the borough of , city of , in the State of , and has complied with the requirements of the laws of the State of to authorize to do business within this State. III. Heretofore and on , 19 , at the city of and State of , the defendant, in consideration of a pre- mium of $ duly paid to it on that day by plaintiff, issued and delivered to plaintiff, a resident as aforesaid of the State of , its certificate of insurance, dated on that day, in and by which said certificate, the said defendant did insure J. J. D., under and subject to the condition of open policy No. , of the defendant, which said conditions are hereto annexed marked "A" and hereby made a part of this complaint, in the sum of $ on general produce, on board the canal boat "W. C. R.," at and from and intermediate ports, to , , loss, if any, payable to J. J. D. or order thereon upon return of said certificate, "free from any claim for damage or partial loss." IV. At the time of delivery of said certificate the said insured, this plaintiff, was the owner of merchandise consisting of general produce, then properly and safely loaded upon said canal boat "W.C. R.," and then being upon the canal at , consigned to said insured, this plaintiff, at , , viz.: bushels of potatoes of the cash value of $ at the port of destination, barrels of apples of the value of $ at the port of destination, and ^ From Devitt v. Providence Washington Ins. Co., 173 N. Y. 17; in which the plaintiff recovered. Complaints 713 Insurance bags of onions of the value of $ at the port of destina- tion. V. All of said property was in good merchantable condition at the time of the commencement of said risk and the issuance of said policy at , , and said insurance was the only insurance thereon, and the total cash value of said cargo insured was $ at the port of destination, to wit, , , on the day of the disaster thereto and hereinafter alleged, viz : , 19 . VI. Said canal boat "W. C. R." was in charge of one W. H. B., her master, was tight and seaworthy, was properly laden, and her subsequent loss and disaster was in no way due to any of the excepted causes of disaster enumerated in said open policy No. , nor to the fault of the insured, this plaintiff. VII. On information and belief, plaintiff further alleges, that on ,19 , the said canal boat "W.C. R.," while proceed- ing on her voyage in the canal in the State of , in the usual way, was, without fault on the part of her master or of the insured, sunk in said canal in the nighttime at a point therein near , , by striking a hidden obstruction in said canal, and thereupon filled with water and sank to the bottom of said canal with said cargo. VIII. On information and belief, that at the time of said dis- aster, the weather was cold and freezing- and in consequence thereof and of said disaster the said cargo on said vessel was sub- merged and frozen. IX. Due notice of said disaster was immediately given to the defendant, and said defendant thereupon by its agents and serv- ants visited the scene of said wreck and took charge of it, said sunken vessel and cargo. X. Thereafter, on , 19 , within the time provided for by the terms of said open policy No. , said insured, this plaintiff, delivered to the defendant due proofs of loss and inte- est, in all respects as required by. the conditions of said policy, claiming a total loss on said cargo under said policy 714 Bradbury's Forms of JPLEADiisro Insurance in the sum of S , and this plaintiff otherwise in all re- spects complied with the terms and conditions of said policy. XI. Said defendant having taken charge as hereinbefore alleged of said sunken canal boat and cargo, after the lapse of several days raised said canal boat. Euring such work the weather continued cold and freezing and said cargo was re- peatedly frozen and a portion thereof was otherwise damaged, injured and destroyed in the process of freeing said vessel from water, and thereby and in consequence thereof, the whole of said cargo was ruined and irreparably damaged as a result of said disaster and freezing, and its market value totally destroyed. XII. Thereafter a portion of said water-soaked, frozen and damaged cargo, the same being practically of no market value, was by the said defendant taken at great cost, out of said canal boat, it being impossible to continue said voyage, and thereafter shipped to the insured, this plaintiff, who thereafter disposed thereof at the best prices obtainable therefor, and the net pro- ceeds thereof received by the plaintiff amounted to $ XIII. A portion of said cargo of the value of $ was never recovered by the defendant or received by the insured, this plaintiff, and in consequence of said disaster, this plaintiff necessarily expended in connection with the recovery of the por- tion of the damaged cargo as aforesaid, the further sum of $ , and after deducting said expenses and shortage from said proceeds, there remained $ as the total net proceeds received from all property so recovered. XIV. On information and belief, plaintiff further alleges, that in consequence of said disaster and in connection with the at- tempted recovery by the defendant of said sunken and frozen cargo, said defendant expended a sum of money in excess of $ , the exact amount of which plaintiff does not know and cannot state, which sum is exclusive of the sum so ex- pended in connection therewith > by the plaintiff as hereinbefore alleged. XV. On information and belief, that said open policy No. , contained as one of its provisions the following clause, CokPLAlNfS 715 Insurance viz.: "In case of loss or misfortune, it is understood, that there can be no abandonment of the property insured, nor shall the acts of the insurers or their agents in recovering, saving or dis- posing of the property insured, be considered a waiver or an acceptance of abandonment nor as affirming or denying any liability under the policy, but such acts shall be considered as done for the benefit of all concerned, without prejudice to the rights of either party." XVI. Payment of said loss has been demanded of the defend- ant and refused, and said defendant has waived appraisal of the property insured and surrender of the certificate aforesaid of such insurance as a condition to such payment. / Wherefore [demand for money judgment]. Form No. 490 Loss of Cattle Carried Between Decks ^ I. That at the times hereinafter mentioned plaintiffs were co- partners in business, under the firm name of S. & M. II. That heretofore, and on or about the day of , 19 , the defendant, in consideration of certain premiums paid, and to be paid to him, did issue and deUver to the plaintiffs a certain policy of insurance in writing, in the words and figures following, viz. : "[Cargo:] ii-Q [No. (( "At 'U. S. L.' [Signed.] "By the undersigned firms and individuals, as separate under- writers, each represented by the above-named attorneys. "S. & M. on account of whom it may concern. "In case of loss to be paid in funds current in the city of 1 From Snowden v. Guion, 101 N. Y. 458. 716 Bradbury's Forms of Pleading Insurance , to them, do make insurance, and cause to be insured, lost or not lost, at and from "Port or ports, to port or ports, on live cattle, the U. S. L. liable only for loss of animal or animals caused directly by a sea, by stranding, sinking, burning or collision, and amounting to five per cent upon all kinds of lawful goods and merchandises, laden or to be laden, on board the good vessel or vessels whereof A. B. is master for this present voy- age. No shipments to be con- sidered as insured until ap- proved and indorsed on this policy by the assurers. " Indorsements valued at the same, provided they do not vary from the costs more than per cent, and the sound value at the port or place of destination, is not to be declared to exceed per cent on the purchas- ing prices of the shipping port. or whoever else shall go for master in the said vessel, or by what- ever other name or names the said vessel, or the master thereof, is or shall be named or called. " Beginning the adventure upon the said goods and merchan- dises, from and immediately following the loading thereof, on board the vessel at , as aforesaid, and so shall continue and endure until the said goods and merchandises shall be safely landed at , as aforesaid. And it shall and it may be lawful for the said vessel, in her voyage, to proceed and sail, to touch and stay, at any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without preju- dice to this insurance. The said goods and merchandises thereby insured and valued at as indorsed. "Touching the adventures and perils which the said assurers are contented to bear and take upon themselves in this voyage, they are of the seas, men-of-war, enemies, pirates, rovers, thieves, jettisons, letters of marqtie and countermarque, reprisals, takings Complaints 717 Insurance at sea, arrests, restraints, and detainments of all kings, princes, or people of what nation, condition or quality soever, barratry of the master and mariners, and all other perils, losses and misfor- tunes that have or shall come to the hurt, detriment or damage of the said goods and merchandises, or any part thereof. And in case of any loss or misfortune, it shall be lawful and necessary to and for the assured factors, servants and assigiis, to sell, labor and travel for, in and about the defense, safeguard and recovery of the said goods and merchandises, or any part thereof, without prejudice to this insurance, nor shall the acts of the in- surer or insurers in recovering, saving and preserving the prop- erty insured, in case of disaster, be considered a waiver or an acceptance of an abandonment, to the charges whereof the said assurers will contribute, according to the rate and quality of the sum herein insured, having been paid the consideration for this insurance by the assured or assigns, at and after the rate of per cent, the premiums on risks to be fixed at the time of indorsement, and such clauses to apply as the assurers may insert as the risks are successively reported. — Peemium Payable Monthly in Cash. "And in case of loss, such loss to be paid in days after proof of loss and proof of interest in the said cattle, which with aU notices may be made to the attorneys [the amoimt of any unpaid premiums, and all other indebtedness of the assured being first deducted]; but no partial loss or particular average shall in any case be paid unless amounting to five per cent. "Provided, always, and it is hereby further agreed, that if the said assured shall have made any other assurance upon the premises aforesaid prior in day of date to this policy, then the said assurance shall be answerable only for so much as the amount of such prior assurance may be deficient toward fully covering the premises hereby assured, and the said assurers shall return the premium upon so much of the sum by them assured as they shall be by such prior assurance exonerated from. And in case of any insurance upon the said premises subsequent in day^of date to this policy, the said assurers shall, nevertheless. 718 Bradbury's Forms of Pleading Insurance be answerable for the full extent of the sum by them subscribed hereto, without right to claim contribution from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received in the same manner as if no such subsequent assurance had been made. Other insurance upon the premises aforesaid of date the same day as this policy shall be deemed simultaneous herewith, and the said assurers shall not be hable for more than a ratable contribution in the proportion of the sum by them insured to the aggregate of such simultaneous insurance. It is also agreed that the property be warranted by the assured, free from charge, damage or loss, which may arise in conse- quence of a seizure or detention for or on account of any illicit or prohibited trade, or any trade in articles contraband of war. "Warranted not to abandon in case of capture, seizure or detention, until after condemnation of the property insured, nor until days after notice of said condemnation is given to the assurers. Also warranted not to abandon in case of blockade; free from any expense in consequence of capture, seizure, deten- tion or blockade, but in the event of blockade to be at liberty to proceed to an open port and there end the voyage. "Premiums. And the assurers are contented and do prom- ise and bind themselves severally and not jointly, nor any From Singleton v. Phenix Ins. Co., 132 N. Y. 298; in which the plaintiff recovered. 72i Bradbury's Forms of Pleading Insurance K." and of said tackle, apparel and other furniture, and as such owners had an interest therein to the amount of at least $ ; and said plaintiff sustained damages to the amount of at least ,| in consequence of the injury to said boat, tackle, apparel and other furniture, by said fire and sinking. X. That, after said loss, the plaintiffs gave the said defendant prompt notice of the disaster, and on or before the day of , 19 , furnished it with due proof thereof as required by said policy and duly performed said contract of insurance in all things on their part. VI. That said policy contained a provision that in all cases of loss $ should be deducted therefrom. VII. That no part of said loss has ever been paid or satisfied, and the defendant is now justly indebted to the plaintiff on ac- count of said loss and damage in the sum of $ , with interest thereon from the day of , 19 . All the allegations in this complaint are made upon informa- tion and belief. Wherefore [demand for money judgment]. Form No. 495 Reinsurance ^ 1. The plaintiff, on and before the day of , 19 , was and still is a corporation created and existing under and pursuant to the laws of the State of , and especially to an act of the legislature of last said State, entitled "An Act to provide for the incorporation of Insurance Companies," passed April 10, 1849, for the purpose of making insurance on dwelling houses, stores and all kinds of buildings; also upon household furniture, merchandise, ships and other vessels, and their cargoes in ports, and other property against loss or damage by fire, and the risks of inland navigation and transportation; and the several acts extending, altering or amending the same. 1 From Continental Ins. Co. v. Mtna, Ins. Co., 138 N. Y. 16; in which a judg- ment in favor of the defendant was reversed. Complaints 729 Insurance That the plaintiff's principal ofRce for the transaction of its businef T was and is in the city of , and it had and has power to make reinsurance of any risks taken by it. 2. That, as plaintiff is informed and beheves, the defendant on and before , 19 , was, and still is, a corporation created and existing under the laws of the State of , and qualified and capable to do business of insurance, and to take such marine risks, and to reinsure as aforesaid, in the State, of , under and pursuant to the laws thereof, and doing such insurance and reinsurance business in the city of and ■ elsewhere in said State of 3. That, as plaintiff is informed and believes, the P. I. Co. of , , and the G. I. Co. of , on and before the day of ? 19 , were, and still are, corpora- tions created and existing under and pursuant to the laws of the State of , and doing insurance business with power to issue policies, and to take reinsurance risks as aforesaid. .4. That on or about the day of , 19 , in consideration of certain premiums paid, or agreed to be paid therefor by the plaintiff to the defendant, and to said other in- surance companies, respectively and severally, the defendant and said other insurance companies, by their agents duly authorized thereto, made their policy of insurance in writing, dated on last said day and numbered , and to which pohcy plaintiff refers as making a part of this complaint, and thereby they did reinsure the plaintiff on account of whom it might concern, loss, if any, payable to them jyro rata, upon all kinds of lawful goods and merchandise laden on board of the good lighter or lighters as indorsed on said policy or in a book kept for that purpose, for the several amounts, .and on the goods and merchandise as specified in the said indorsement, the said assured agreeing to enter for insurance all goods at the full value thereof, at or from point or points in the harbor of , as far south as the , and the inland waters of adjacent and tribu- tary thereto, and on the river as far as , and the river as far as , be^nning the adventure 730 Bradbury's Forms of Pleading Insurance upon said property from and immediately following the lading thereof at the place indorsed aforesaid, and continuing the same until said property should be safely landed at the place of desti- nation as aforesaid. And in case of loss or damage the same to be estimated according. to the true and actual cash value on the day of the disaster, and the said reinsuring companies agreed to pay such proportion of the said loss as the amount thereby insured should bear to the sound value of the property so insured. And the said reinsuring companies did, in and by said policy of reinsurance, undertake and agree to make good and satisfy unto the plaintiff all such loss or damage on the said goods, wares or merchandise so laden as aforesaid, not exceeding in amount the sum insured thereon, as should happen or arise from any causes or casualties [not excepted], to be paid within days after notice of proof of the loss, and interest therein should have been made by the insured. And said reinsuring companies did, in and by said policy, promise and bind themselves severally and not jointly, nor the one for the other, to the plaintiff or its legal representatives, for the true performance of the premises, each company for its own part, and for the proportion therein assured by it. 5. Plaintiff further says, that on the day of 19 , and while the said policy of insurance was operative and binding and in full force, the defendant and said other reinsuring companies, for the consideration of premiums agreed to be paid to them by the plaintiff as aforesaid, did agree by a memoran- dum in writing indorsed on their said poUcy, and dated , 19 , and signed by J. N., their agent, thereto authorized, that on and after that date, the said policy should cover the plaintiff as reinsurance to the extent of one-half of the amount of each and every risk which should equal or exceed in value the sum of $ , and which the said plaintiff might have on cargo of any one barge or lighter, and insured by it under its open" policies, issued to the following named persons, viz. : T. & Co., J. H. S., N. Y. L. and T. Co., N. J. L. Co., F. W. J. & Co., J. & H., S. H. & Co. and F. L. On cargoes of the value of S Complaints 731 Insurance and upwards, the said policy was to cover the excess of $ , not exceeding the sum of $ on any one cargo. 6. Plaintiff further says, that while said policy of reinsurance and said memorandum of agreement indorsed thereon were in full force and operation, the plaintiff had insured T. & Co. by its open policy number , duly executed by the plaintiff, and dated , 19 , and which policy was in force at the time of the loss next hereinafter stated, against loss upon all kinds of lawful goods and merchandise laden on board of good lighter or lighters, as specified in the policy or in a book kept for that purpose, in the several amounts as therein specified and upon the terms and conditions mentioned in said policy, which contained substantially the same printed terms and conditions as were in the defendant's said policy of reinsurance and to which policy [or a copy thereof] plaintiff also refers as making a part of this complaint. 7. That under and in pursuance of the last-mentioned open policy, and on the day of , 19 , and while the same was in force, the plaintiff for premiums agreed to be paid to it, insured said T. & Co. [who had an insurable interest in the goods and cargo laden on board the barge called the " J. C."] to the sum of $ , on bags of coffee, or thereabouts, and on casks of prunes laden on board said barge J. C, to be carried from the wharf at foot of street, in the city of , to place of discharge at in the harbor of city, against loss or damage by perils of the seas, rivers, fires and all other perils, losses or misfortunes that should come or happen to the hurt, detriment or damage of the said goods or merchandise laden on board of said barge or lighter. The risk to begin from and immediately following the lading of the goods on board, excepting as in said last men- tioned policy is contained. And that said insurance was en- tered and kept in a book or books provided for that purpose. 8. That on the said day of , 19 , and after the said goods had been laden on board the said barge for the voyage aforesaid, and while lying at the foot of 732 Bradbury's Forms Of Pleading Insurance street aforesaid, the said barge and the goods aforesaid laden thereon, were by the perils of the sea sunk in the waters of river, and the said coffee and prunes were thereby greatly damaged and partially destroyed and lost; and that the said damage and loss were not caused by any of the risks or perils excepted in said policies of insurance or reinsurance. 9. That thereupon, by reason of said loss and damage, the plaintiff became liable to pay the same to said T. & Co., and the same was, after notice thereof, duly adjusted upon the true and actual cash value of the said goods on the day of disaster at the sum of $ , which sum the plaintiff was obliged to pay, and did pay to said T. & Co., the original insured, on the day of , 19 . 10. That plaintiff gave due notice of said loss and the proofs thereof to defendant, and to said other insurance companies, and requested it and them to join with plaintiff in adjusting the amount of said loss and damage, which defendant, and said other companies, declined or neglected to do, and that plaintiff duly fulfilled all the conditions of said policies of in- surance and reinsurance on its part, and that by reason of the premises the defendant became, and was, and still is, liable to pay to the plaintiff the one equal sixth part of said loss, amount- ing to $ , with interest thereon from the day of , 19 , and plaintiff demanded payment of the same from defendant, but no part thereof has been paid. • 11. And for a second and separate cause of action plaintiff says: 1. That while said policy of reinsurance and said memoran- dum of agreement indorsed thereon were in full force and op- eration, the plaintiff, for premiums agreed to be paid to it, had insured the N. Y. L. and T. Co., by its open policy duly executed by the plaintiff and dated the day of , 19 , and which policy was in force at the time of the loss next here- inafter stated against loss upon all kinds of lawful goods and merchandise laden on board of good lighter or lighters, as speci- fied in the policy or in a book kept for that purpose, in the Complaints 733 Insurance several amounts as therein specified, and upon the terms and conditions mentioned in last said policy, which contained sub- stantially the same printed terms and conditions as the defend- ant's said poUcy of reinsurance, and to which policy, or a copy of it, plaintiff also refers as making a part of this complaint. 2. That under and in pursuance of the last-mentioned open policy and on the day of , 19 , and while the same was in force, the plaintiff insured said the N. Y. L. and T. Co. [who had an insurable interest in the goods laden on board the barge called the " J. W. E."] to the amount of $ on hogsheads of sugar laden on board of said barge "J. W. E." to be carried from place of lading in harbor to , the place of discharge in said harbor, against loss or damage by perils of the seas, rivers, fires and all other perils, losses or misfortunes that should come or happen to the hurt, detriment or damage of the said goods or merchandise laden on board of said barge or lighter; the risk to begin from and immediately following the lading of the goods on bpard excepting as in said last-mentioned pohcy is contained. 3. That on the day of , 19 , and after the said goods had been laden on board the said barge " J. W. E." for the voyage aforesaid, and while pursuing her said voyage and when off the navy yard, the said barge sprang a leak, or was injured, and the barge, and the said goods laden thereon were by the perils of the sea sunken in the river within limits of the voyage aforesaid, and the said sugar laden on said barge was thereby greatly damaged and mostly destroyed and lost; and that the said damage and loss were not caused by any of the risks or perils excepted in said policies of insurance or reinsurance. 4. That thereupon by reason of said loss and damage plain- tiff became liable to pay the amount thereof to said the N. Y. L. arid T. Co., and the same was, after notice thereof, duly ad- justed upon the basis of the true and actual cash value of the said goods on day of disaster at the sum of $ , which sum the plaintiff was obliged to pay, and did pay, to the said 734 Bradbury's Forms of Pleading Insurance insured, the N. Y. L. and T. Co., on the day of , 19 . 5. That plaintiff gave due notice of said loss, and the proofs thereof, to defendant, and to said other reinsuring companies, and requested them all to join with plaintiff in adjusting the amount of said loss and damage, which they declined or neg- lected to do. And that plaintiff duly fulfilled all the conditions of said policies of insurance and reinsurance on its part; and that by reason of the premises the defendant, as reinsurer as afore- said, became and was, and still is, liable to pay to the plaintiff the one equal sixth part of last said loss and damage, amounting to the sum of $ , with interest thereon from the day of , 19 , and plaintiff has demanded payment thereof from the defendant, but no part thereof has been paid. III. And for a third and separate cause of action plaintiff says: 1. That while said policy of reinsurance and said memoran- dum of agreement indorsed thereon were in full force and operation the plaintiff, for premiums agreed to be paid to it, had insured J. H. S. by its open policy duly executed by the plaintiff, and dated the day of > 19 , and which policy was in force at the time of the happening of the loss and damage next hereinafter stated, against loss upon all kinds of lawful goods and merchandise laden on board of good lighter or lighters, as specified in the policy, or in a book kept for that purpose, in the several amounts as therein specified, and upon the terms and conditions mentioned in last said policy, which contained substantially the same printed terms and con- ditions as the defendant's said policy of reinsurance, and to which policy, or a copy thereof, plaintiff also refers as making a part of this complaint. 2. That under and in pursuance of the last-mentioned open policy, and on the day of , 19 , and while the same was in force, the plaintiff insured said J. H. S. [who had an insurable interest in the goods laden on board the lighter or barge called the " S. W,"] to the amount of $ on a cargo Complaints 735 Insurance of tons of ingots of copper, or thereabouts, laden on board of the lighter or barge " S. W.," at , in the harbor of , to be carried to , the place of discharge in said harbor, against loss or damage by perils of the seas, rivers, fires and all other perils, losses or misfortunes that should come or happen to the hurt, detriment or damage of the said goods or merchandise laden on board of said barge or lighter, the rislc to begin from and immediately following the lading of the goods on board, excepting as in last said policy is contained. 3. That on the said day of , 19 , and after the said goods had been laden on board the said barge "S. W.," for the voyage aforesaid, and while pursuing her said voyage and being towed by a tugboat, and when about abreast of street, river, in the city of , the said barge was run into by a steam ferryboat and injured, and when the said barge, with the said copper on board, was placed alongside the wharf at street, river, city, in the said harbor, she was found to be making water very fast in her hold, and notwithstanding hard work at her pump the said barge, with the said copper on board, soon sank to the bottom of the river, and which hurt, damage and loss were caused and occasioned by the perils of the sea within the harbor of , and in the limits of the voyage aforesaid; and the said barge and copper were damaged and great expense incurred and paid by plaintiff in recovering the same from the sunken barge and raising them from the bottom of the river, where they had sunken, as aforesaid, and in delivering the copper at its destination; and which loss and damage and expense were not caused by any of the risks or perils excepted in said policies of insurance and reinsurance. 4. That thereupon, by reason of said loss and damage and expense, the plaintiff became liable to pay the amount thereof to the said J. H. S., or to the persons employed to save the property for the benefit of all parties interested therein; that such expense was incurred and paid by plaintiff; the said barge was raised and the copper was recovered and delivered at its 736 Bradbury's Forms of Pleading Insurance destination by, or at the expense of the plaintiff, and the ex- pense thereof and damages and loss were paid by the plaintiff to said J. H. S., and to those who did the work; and the said loss, damage and expense were [after notice to defendant and to said other insurance companies of the loss and proof thereof, and request by plaintiff to join in adjusting the loss, which they declined or neglected to do] duly adjusted and settled at the sum of $ [besides the sum of $ not yet settled], which sum of $ the plaintiff was obliged to pay, and did pay as its portion of loss, damage and expense on said copper on the day of , 19 . That by reason of the premises, the defendant, as reinsurer as aforesaid, became and was, and still is, liable to pay to plaintiff the one equal sixth part of last said loss, damage and expense, amounting to the sum of $ , with interest thereon from the day of , 19 , and plaintiff has demanded payment from the defendant, but no part thereof has been paid. And the plaintiff had an insurable interest in all three of the risks above mentioned. IV. And for a fourth and separate cause of action the plain- tiff says : That differences having arisen between the plaintiff and the defendant and said two other insurance companies, respec- tively, as to their several liabilities for said losses, the parties, viz. : the plaintiff, as claimant, and the defendant and the said other two insurance companies, severally and respectively agreed with plaintiff to submit the said matters in difference between them to three arbitrators to be chosen and appointed by or for them, and to abide by and perform the award that should be made by such arbitrators or a major part of them; and the par- ties did, in pursuance of such agreement, make such submission in writing, signed by them or on their behalf, respectively, by their agents, thereto authorized, unto three arbitrators chosen as aforesaid, such arbitrators being men of great experience in marine and fire insurance, and being presidents or officers of in- surance companies, and two of them being chosen, one by each Complaints 737 Insurance party out of a list named by the other parties, and the third being chosen by the two so selected; that such arbitrators were duly sworn as such according to law, and the said matters in difference were, upon due notice, brought to a hearing before them; that the parties to the submission all severally appeared by their agents and counsel before the said arbitrators, and produced evidence and arguments, respectively, and several appointments and hearings were had therein; but while the trial was in progress, and before the final submission of the case, or the making of any award, the defendant and the said other two insurance companies, without the consent of the plaintiff and in violation of their agreement, and without any just reason, severally revoked their submissions to said arbitration and withdrew therefrom, and put an end to the powers of the ar- bitrators, and plaintiff was thereby put to damages in compen- sation of the arbitrators, counsel and other expenses paid or incurred by plaintiff, to amount of $ , for one-third of which, being $ , plaintiff claims that this defendant is severally Uable to this plaintiff, with interest thereon from the day of , 19 . Wherefore [demand for money judgment]. Form No. 496 Lloyd's Policy; Reformation of Contract and Action on Policy as Reformed ^ For a first cause of action. I. At all times in this complaint mentioned, the plaintiff was a foreign corporation, duly organized and existing under and by virtue of the laws of the State of , having its prin- cipal office at , county, II. On , 19 , and during the entire navigation season of said year, the defendants above named [excepting the defendant, A. L. A., administratrix of W. B. S., deceased], were 1 From Imperial Shale Brick Co. v. Jewett, 169 N. Y. 143; in which a judg- ment in favor of the defendant was reversed and judgment ordered for the plaintiff. Vol, 1—47 738 Bradbury's Forms of Pleading Insurance associated together and jointly engaged as an unincorporated association in the business of issuing certificates of fire and marine insurance and doing a general fire and marine insurance business on the lakes and elsewhere, under the name and style of the B. F. and M. U., having their principal office at , III. The said W. B. S., was also, during said season of 19 , associated with the defendants above named [excepting the said A. L. A.] in said insurance business. Said W. B. S. died, , 19 , and the defendant, A. L. A., is his duly appointed and qualified administratrix. IV. On or about , 19 , and from that time until the abandonment hereinafter referred to, plaintiff was the sole owner of a certain cargo of pavings brick, being about tons thereof, shipped by plaintiff on said last-named date, at , , on board the lake schooner J. M., con- signed to , . About said last-named date, plaintiff applied to defendants' agents at , , for insurance on said cargo against the perils of navigation, on a voyage from , , to , , and de- fendants, through their agents, accepted such application and agreed to insure said cargo for said voyage in consideration of a premium of $ ; and for the purpose of evidencing such insurance, issued a certificate of insurance which they duly delivered through their agents to plaintiff, at •, on or about , 19 ; and plaintiff, upon receipt of such certificate, paid defendants, through their agents, a premium for such insurance of $ Said certificate was in the words and figures following, to wit : "No. . $ "Inland Marine Certificate of Insurance. " 19 "This is to certify that the I. S. B. Co., insured under and sub- ject to the conditions of Open Policy No. issued by the B. F. and M. U., of , , at the agency, in the sum of $ , on paving brick. On board Complaints 739 Insurance cargo of schooner J. M., at and from , , to , . Loss, if any, payable to order of assured hereon, and return of this certificate. VaUd when countersigned by the authorized agent of this company at , [Signed.] "Countersigned by H. S. M., "Attorney." In filling in the blanks of said certificate, the defendants, through their agent who issued the same, by inadvertence, ac- cident and mistake, described the voyage to be insured as being "at and from , , to , ." There is not and was not in the year 19 , or prior to that, any port or place in the State of , called . , , a well-known lake port, which was the leal port to which said cargo was shipped, is and always has been the only port of that name on the lakes or their connecting and tributary waters. None of plaintiff's officers or agents discovered that said voyage had thus been wrongly described in said certificate until after the loss of said cargo hereinafter referred to. The said schooner M., in the prosecution of its voyage from , ^ to , , encountered perils of navigation as is set out in the second cause of action hereof, by reason whereof plaintiff sustained loss and damage intended to be insured against by the defendants under said certificate. Wherefore plaintiff prays that the said mutual mistake in description of said voyage in said certificate may be corrected by reforming said certificate so that it shall conform to the real intention and agreement of the parties; and for all appropriate relief in the premises. For a second cause of action. For its second cause of action against the defendants, plain- tiff refers to all the allegations contained in its first cause of action and by reference makes the same a part hereof as though fully pleaded herein; and further alleges as follows: It is provided by section of the Revised Statutes of the State of , which section was in full force and effect 740 Bradbury's Forms of Pleading Insurance at all times herein mentioned, as follows: "A person who so- licits insurance and procures the application therefor shall be held to be the agent of the party hereinafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding." A copy of the defendants' open policy No. , re- ferred to in said certificate of insurance, is hereto attached marked Exhibit "A," and by reference made a part of this complaint. The defendants first organized their said association and first commenced to do the business of marine insurance under said name of "The B. F. and M. U., ' in the year 19 ; and they con- ducted their said business of insurance during said year in vio- lation of the laws of the State of , in such case made and provided, in that they conducted said business under a corporate and fictitious name and not under the true names of the individuals composing such association and also in that they did not take any of the steps or comply with any of the laws applicable to insurance corporations in the State of A large number of the defendants have not at any time since they commenced to do such business, had any property subject to execution; and the defendants, as an association, have never had any assets of any sort. Until after the 'oss and abandonment hereinafter referred to, the defendants' open policy No. which &t all times herein mentioned was in the defendants' home office at , , was not shown to any of plaintiff's ofl!icers, agents or representatives, nor did they see said policy or any policy of the defendants until after said loss and abandonment; and the plain- tiff, through its officers, agents or representatives, did not know until after said oss and abandonment that the said B. F. and M. U. was an unincorporated association of individuals. On the contrary, plaintiff, in accepting said certificate of insurance, relying on the provisions and statements thereof, supposed it was contracting with an insurance corporation which had pro- tected its policy holders by the deposits required by the laws Complaints 741 Insurance of the State of and was authorized to do business un- der the insurance laws of said State. Plaintiff had no notice or knowledge of the attempted re- strictions and limitations upon the liability of the defendants contained in the last four paragraphs of the first page of said open policy, Exhibit "A," prior to the loss and abandonment hereinafter referred to. By the reason of premises, defendants are estopped to plead said provisions in defense of their joint liabihty under said certificate, or to claim or demand any benefit or advantage by reason thereof; and they are, by virtue of the premises, joint insurers of the plaintiff's said cargo under said certificate. At the time of the issuance of said certificate of insurance and the delivery thereof, said cargo of brick was laden on board said schooner J. M., and in safety. Said schooner then being in all respects sound, staunch and seaworthy, proceeded on her voyage to , , and while on encountered a severe and unusual storm and seas in which she rolled and labored so heavily that she sprung a leak and became in immi- nent danger of foundering and sinking; and being in such peril, her master and crew displayed signals of distress which were answered by the steamer S. S. C, a vessel of the value of at least $ , then laden with a valuable cargo, and manned by a crew of about men. At the time the steamship C. so came to the M.'s assistance, there was a high sea running and a heavy wind blowing which rendered it extremely dan- gerous for the C. to approach near enough to the M. to render her assistance. In attempting to get a line to the M. the C. collided with her, carrying away all the M.'s headgear and doing damage to the C. to the extent of about $ ; and later the M.'s foremast and main topmast were carried away, in which condition she became helpless. After a number of at- tempts the C. succeeded in getting a line to the M. and taking her in tow, and with the assistance of some steam tugs the M. was at length safely towed into the port of , By reason of the salvage services thus performed by said steam- 742 Bradbury's Forms op Pleading Insurance ship C. and by eaid steam tugs, the owners of said vessel ac- quired sal , age liens upon both said schooner M. and upon said cargo of linck, upon which both said schooner M. and her said cargo wnv llbcbd by said salvors in the United States District Court for the Eastern District of , and were taken into the official custody of said court upon the warrants issued upon said libels, said salvors claiming in their libels that they were entitled to salvage compensat on on account of the services above described, in the sum of $ .At the time of render- ing such salvage service, the value of said schooner M. was about $ , and the value of said cargo of brick was $ Upon examination of said schooner M. at , it was found that she was so badly damaged and disabled, that she could not safely proceed upon her voyage, whereupon the said voyage was abandoned by the master, crew and owners of said vessel, and said owner thereupon abandoned said schooner to their underwriters as a constructive total loss, and such aban- donment was accepted by their said underwriters. To have carried said cargo of brick on to would have necessi- tated the unloading thereof from the said schooner, and the reloading thereof onto cars or onto another vessel, in doing which said cargo would have been damaged. It was impossible to get another vessel to carry said brick from to or to forward the same by railroad, except at a large additional expense. There was no market for said brick at or near Said cargo's proportionate liability for salvage compensation, together with certain damage which said cargo had sustained by contact with muddy water, and the damage thereto which would have been sustained by rehandling, and the expense which necessarily would have been incurred in carrjdng said cargo from to by rail, or by another vessel if one could have been procured, would have much exceeded one- half the total value of said cargo. On , 19 , after said voyage had been thus broken up and said cargo had become a constructive total loss, plain- tiff abandoned the same to the defendants by serving on their Complaints 743 Insurance duly authorized attorney and manager, at , , a written notice of abandonment, wherein it stated the facts above set out as to the loss of said cargo, and abandoned the same to the defendants and claimed as for a total loss under said certificate of insurance. On , 19 , plaintiff duly served upon the defendants, through their said general manager, formal proofs of loss, being a certified copy of the protest of the master and crew of said schooner J. M.; a certified copy of the bill of lading under which said cargo of brick had been shipped; a certified copy of the invoice of said cargo; together with a formal statement of the facts and circumstances of said loss as above set forth. By reason of the premises, defendants are justly indebted to the plaintiff in the sum of $ ; but though often re- quested so to do, they have failed and refused to pay the same, and no part thereof has been paid to the plaintiff. Wherefoke [demand for joint money judgment]. Form No. 497 Insurance Against Barratry of Master ' I. That at the times hereinafter named the defendant was and still is a corporation duly incorporated under the laws of the State of II. That on the day of , 19 , at the city of , in consideration of the premium of $ , there and then paid to it by the plaintiff, the defendant, by its agent duly authorized thereto, made its policy of insurance in writing and thereby insured for the plaintiff $ upon the bark "B. P.," then at sea bound on a voyage from to and at or other port or ports in , and thence to a port north of , for said voyage, against the perils of the sea, barratry of the master and mariners, and all other perils, losses or misfortunes which should come to the hurt, detriment or damage of said vessel. 1 From Palmer v. Great Western Ins. Co., 163 N. Y. 660; aft'g 10 Misc. 167; 30 Supp. 1044. 744 Bradbury's Forms of Pleading Insurance III. That on or about the day of , 19 , the said bark sailed from on the voyage described in the poHcy, and while proceeding thereon and from to , was, on or about ,19 , by the perils of the sea or the barratry of the master and mariners, or by one of the perils insured against, wrecked and totally lost. IV. That the plaintiff was, at the time of the commencement of the risk, and thereafter until the said loss, the owner of one- quarter and of two-thirds of five-eighths part of said vessel which was of the value of $ , which sum was the valuation named in said policy. V. That the plaintiff duly fulfilled all the conditions of said policy of insurance on his part, and on or about , 19 , he gave to the defendant due notice and proofs of loss and interest as aforesaid, and duly demanded payment of said sum of $ , no part of which has been paid. Wherefore [demand for money judgment]. VI. Title Form No. 498 Title Insurance. Tax Assessment Confirmed Before Date of Policy But After Insured Took Possession ' The plaintiff above named by H. R. B., its attorney, respect- fully shows to the court and alleges : I. That the plaintiff is, and at all times hereinafter mentioned was, a corporation duly organized and existing under the laws of the State of New Jersey. II. That the defendant above named is, and at all times hereinafter mentioned was, a corporation duly organized under the laws of the State of New York. ^ From Trenton Potteries Company v. Title Guarantee & Trust Co., 50 App. Div. 490; 64 Supp. 116; in which the plaintiff recovered. It was decided in this case that policies of title insurance are subject to the rules of construction which are applicable to other insurance poUcies; and that all doubts and ambiguities are to be resolved in favor of the insured. Complaints 745 Insurance III. That on or about the 24th day of April, 1893, at the city of New York, the defendant duly made and entered into an agreement in writing under its corporate seal with plaintiff whereby the defendant in consideration of the sum of $2,246.25, to it paid by plaintiff, then and there insured plaintiff and its successors against all loss or damage, not exceeding $400,000, which plaintiff should sustain by reason of any defect or defects of title affecting the premises described in a schedule annexed to said agreement, of which the premises below mentioned were a part, and of which plaintiff had become or was about to be- come the owner; or by reason of any defect or defects affecting the interest of the plaintiff therein as described in said schedule, being a fee simple interest; or by reason of unmarketability of plaintiff 's title to said premises; or by reason of liens or incum- brances charging the same at the date of said agreement, sav- ing loss and damage by reason of certain estates, interests, de- fects, objections, liens and incumbrances excepted in another schedule annexed to said agreement. IV. And plaintiff further shows that at the date of said agree- ment, to wit, on the 24th day of April, 1893, and theretofore and thereafter, there was a lien or incumbrance charging a part of said premises, to wit, the parcel known and described in said first-mentioned schedule as "No. 3-Crescent," and otherwise known as lots Nos. 67 and 71, page 35 of the City Atlas of Trenton, New Jersey, situate, lying and being in the city of Trenton in the State of New Jersey and more particularly de- scribed as follows [Description]: V. That said lien or incumbrance was a tax or assessment imposed upon said premises for the widening of Allen street in the city of Trenton, the existence of which was entirely unknown and unsuspected by plaintiff either on or before April 24, 1893, the date of said agreement, or on or before the date when plain- tiff relying on said agreement with defendant acquired title to said premises upon the belief that they were free from any such lien. Said lien or incumbrance was not any one of the certain estates, interest, defects, objections, lien or incumbrance that 746 Bradbury's Forms of Pleading Insurance were contained in said schedule of exception, and was not ex- cepted from the operation of said agreement. VI. That upon the discovery of the existence of said lien or incumbrance long after the date of said agreement, plaintiff promptly notified defendant to take such steps or proceedings as would protect and reUeve plaintiff from loss or damage by reason of said lien or incumbrance and plaintiff otherwise com- plied with all the conditions and terms of said agreement on its part to be performed thereunder. VII. That notwithstanding, defendant, disregarding its said agreement, utterly failed and refused to protect or relieve plaintiff from loss or damage by reason of said lien or incumbrance, and utterly fail to have the same set aside, or released or discharged, or to pay off the same, though often requested to do so by plaintiff. VIII. That in order to protect its said property and prevent a sale of same under process of law by the municipal authorities of the city of Trenton, for the failure to pay said tax assessment and discharge said lien or incumbrance, plaintiff was compelled to pay and did pay to the proper city official of Trenton on the 10th day of July, 1895, the sum of $1,976.35, being the amount due for said tax or assessment, which sum with interest from July 10, 1895, plaintiff has demanded of defendant, but defend- ant has refused to pay same or any part thereof. Wherefore [demand for money judgment]. Complaints 747 Insurance VII. Miscellaneous Form No. 499 Violation of Contract With Agent ^ Supreme Court, county. Francis H. Ross, Plaintiff, against The Royal Insurance Company, Defendant. The plaintiff complaining of the defendant, alleges: I. That the above-named defendant is a foreign corporation, organized under the laws of the kingdom of Great Britain, and doing business in the State of New York, and elsewhere. II. That the above-named plaintiff is and was, at the times hereinafter mentioned, engaged in the insurance business, and in conductuig branch offices for divers fire insurance corpora- tions in the borough oftManhattan, city and county of New York. III. That on or about the day of , 19 , at the request of the above-named defendant, the above-named plaintiff agreed to undertake, and did undertake the conduct of a branch office for the above-named defendant at his place of business at the corner of and streets, m the said borough of Manhattan, for the period of one year, at the agreed yearly salary of $ , which said defendant agreed to pay in equal monthly installments, and that in the course of his conduct of such branch office, he procured and solicited in- surance, and issued insurance policies and renewals thereof for and on behalf of the above-named defendant. IV. That from and after the termination of the said year, to wit, from and after the day of , 19 , the above-named plaintiff continued to conduct such branch office » From Ross v. Royal Insurance Co., 107 App. Div. 615; 95 Supp. 1167; in which a judgment in favor of the plaintifl was affirmed. 7i& Bradbury's Forms of Pleading Insurance as aforesaid, at the request of said defendant, with the same duties and upon the same terms and conditions as for the previous year, except that the above-named defendant requested him to continue to conduct its branch office as aforesaid, for one year from , 19 , but at the yearly salary of $ , in- stead of $ , and the above-named plaintiff assented thereto. V. That the above-named plaintiff continued to conduct said branch office of the above-named defendant at the place afore- said, and to perform in a faithful manner all the duties apper- taining thereto, so far as he was permitted to do so by the defendant, until the day of , 19 ; that defend- ant violated the terms of said contract by refusing on said day of , 19 , to pay the above-named plaintiff the sum of $ , which became due and payable to him on that date, pursuant to the terms of the aforesaid agreement, and by taking away from said plaintiff on or about the day of , 19 , the conduct of said branch office, by notifying him that his agency was canceled, and by depriving him of all books, papers, blanks and other documents necessary and proper for the conduct of such branch office, and that al- though this plaintiff at all times was ready and willing to carry out the said agreement on his part, and duly tendered to the defendant his services for the conduct of said branch office, .pursuant to the agreement hereinbefore set forth, said defend- ant refused to accept his said services, or to pay him the monthly installment of salary which became due from and after the day of , 19 . VI. That this plaintiff duly performed all the conditions of said contract on his part, but that the said defendant violated the terms of said contract to the damage to this plaintiff in the sum of $ , that the plaintiff has in his hands moneys lawfully collected by him, pursuant to the terms of said contract, amount- ing to the sum of $ , with which the said plaintiff credits the said defendant and applies the same in reduction of the said claim for damages herewith. Complaints 749 Insurance Wherefore plaintiff demands judgment against the defend- ant for $ , together with the costs of this action. [Signature and office address of attorney, and verification.] Form No. 500 Injunction by Company to Restrain Use of Agency Books by a Trans- feree Thereof ' I. The plaintiff is a foreign corporation, chartered, organized and incorporated under and by virtue of the laws of the State of in the United States of America, and so was and has been during all the times hereinafter stated. The plaintiff has complied with all the provisions required by the laws of the State of to authorize it to transact its business within the State of , and has so complied, and is and was pursuant to the laws of the State of authorized to transact its business within the State of , at and during all the times hereinafter stated. The business of the plaintiff for which it was incorporated, and which at all times herein- after stated was authorized to transact and which at such times it was authorized to transact in the State of pursuant to the laws thereof, is and was the business of fire in- surance, and the taking of risks against fire and the writing of policies for insurance against losses by fii-e. II. Heretofore, and on or about the day of , 19 , this plaintiff appointed and employed one A. K. S. as its agent at in the State of and its vicinity, for this plaintiff to solicit and obtain business for this plaintiff, and to transact its business at and to solicit business for plaintifi and for it and in its name and by its authority to write and deliver policies of insurance against loss by fire and to col- lect the premiums therefor and to transmit the same to plain- tiff, and to report all such business according to forms and regulations presented by this plaintiff and to keep record thereof for purposes among others, of renewals of such risks and policies, ^ From National Fire Ins. Co, v. Sullard, 97 App. Div. 233; 89 Supp. 934. 750 Bradbury's Forms of Pleading Insurance and the soliciting for this plaintiff of renewals of risks and policies and reinsurance, and the payment and collection of new premiums for such renewals and reinsurance, and for doing and transacting other business for this plaintiff, and this plain- tiff required said S. as such agent for plaintiff as part of his du- ties as such agent and which he agreed to perform for this plain- tiff, the daily reporting to this plaintiff upon daily report blanks as hereinafter described, and in other ways reasonable and proper of all and each item of business done and performed by him for the plaintiff as its agent, and the keeping by the said S. as the agent of the plaintiff for the plaintiff, of records of such risks as were taken and of such policies as were written and issued and delivered for and in the name of this plaintiff, and to that end, this plaintiff delivered to said S. as such agent of the plaintiff, to be used by him as such agent of the plaintiff in transacting the business of the plaintiff, a large quantity of printed policies in blank, signed and executed by the proper officers of this plaintiff, to be filled up in form of completed con- tracts or policies of insurance, and to become valid and of force when so filled up and countersigned by the said S. as plaintiff's agent, also a large quantity of blanks called "daily reports," to be filled up and used for recording the business done by said S., as the aforesaid agent of the plaintiff, and for copying into and inserting therein the particulars of the written parts of all policies to be written by said S., as the aforesaid agelit of the plaintiff, with the names of the persons, copartnerships and other persons and corporations applying for such insurance from said S., as such aforesaid agent of the plaintiff, with their residence and description of the property insured, with other information concerning such policies, concerning and relating to such in- surance and insured property and surroundings and questions to be answered thereon, also a large quantity of other station- ery and materials for transacting such business for the plaintiff. III. Said S. was required and he as such agent of this plain- tiff agreed to fill up and send and return to this plaintiff, on the day of taking and accepting for this plaintiff and binding each Complaints 751 Insurance risk, one of said daily report blanks, for each such risk, and for each renewal thereof, and for each indorsement, assignment or transfer of the policy or of the property insm'ed, duly filled up with the particulars and information aforesaid, and also for the purposes of continuing the business of this plaintiff, and the procuring from the insured renewals or reinsurance of the in- surance taken by or for this plaintiff and for other purposes of the business of this company, to keep and retain as such agent as aforesaid of this plaintiff, copies of all such daily report blanks so filled up as aforesaid ; and also to keep all such full and com- plete memoranda and information concerning the business done by him as the agent of the plaintiff as aforesaid, and would enable him or any other agent of this plaintiff to continue the business of the plaintiff with the persons so to be insured by this plaintiff, and the necessary information for soliciting from such persons of renewals and reinsurance of property, and further insurance to result in payment of further and new premiums and money to the profit of the plaintiff; all of which policies, blank reports and copies of reports, books and sta- tionery were and ever have remained the property of the plain- tiff, except only such policies as were actually written, filled out and delivered for completed and a^'cepted contracts and poli- cies for actual risks against loss by .fire, in and about the doing by the said S. of the business of the plaintiff. IV. From the day of ,19 , to the day of , 19 , the said S., at said , as the agent of the plaintiff aforesaid did and conducted business for the plaintiff, and in the same, took many risks, wrote many policies in the name of the plaintiff against loss by fire, collected much money for premiums, used much stationery, made up and filled out many of such daily reports, filled out with such particulars and in- formation concerning such insurance policies, and sent same to plaintiff, and kept and retained as plaintiff's said agent for use as aforesaid, certain written or partly written and partly printed memoranda of plaintiff's business and also copies of said daily reports filled out with such particulars and information concern- 752 Bkadbury's Forms of Pleading Insurance ing such business and policies and insurance aforesaid, and kept and retained much other memoranda and information of and concerning the business of the plaintiff done and transacted by him as such agent of the plaintiff for the plaintiff. V. On information and belief, the plaintiff alleges that on or about the day of , 19 , the said A. K. S., by some sale or other transaction unknown to plaintiff, but called as the plaintiff is informed a bill of sale, assumed to transfer and set over a certain pretended good will of what he called his business to the defendant, B. E. S., and without knowledge or consent of this plaintiff, did deliver to said defendant, S., for his own personal use, all such copies of said daily reports made, kept and retained by said S., as said agent of the plaintiff, in and while conducting the business of the plaintiff as aforesaid, the same containing as aforesaid particulars of policies of in- surance issued in the name of this plaintiff, and information concerning the insured and the property insured, and also de- livered to said defendant, S., all other printed and written memoranda and information and particulars of the business of this plaintiff which he, said S., had acquired and made and kept while as aforesaid conducting the business of the plaintiff and the same and all thereof have ever since been and remained in the possession of the said S., and he claims to own the same and to hold the same as owner thereof, by purchase from said S. VI. All of said copies of daily reports and other written and printed memoranda and particulars and information so de- livered by said S. to said S. is the property of this plaintiff. VII. This plaintiff since the same came into the possession of the said S. has demanded from the said S. the said copies of daily reports containing such particulars and information afore- said, and said other printed and written memoranda and in- formation and particulars of the business aforesaid of the plain- tiff, all received as aforesaid by said defendant, S., from the said S., and the said S. has refused to deliver the same to this plaintiff. VIII. Since the day of , 19 , and the de- Complaints 753 Insurance livery of said papers, copy daily reports and other printed and written memoranda and information and particulars of the business aforesaid of the plaintiff, the said S. has made use of the same, and has furnished the use of the same to others and allowed the use of the same to others for the purpose of acquir- ing information and allowing others to obtain information of and concerning the business aforesaid of the plaintiff, and for the purpose of acquiring information of policies of insurance issued by this plaintiff and soon or about to expire, and to per- suade patrons of plaintiff and persons insured by plaintiff not to renew their insurance and policies with this plaintiff, nor to reinsure with this plaintiff, and to change their insurance to other insurance companies and insure their property with other insurance companies other than this plaintiff, and all to the pecuniary benefit and advantage of said S. in the commissions earned by him from the insurance companies, to whom he has taken the same and paid to him therefor, and all to the injury and damage of the plaintiff and to its loss of business, and to the injury of its business and loss of premiums which would have resulted to it from such business. IX. The said defendant, S., has since the day of , 19 , continued and is continuing, and from day to day continues to use and to allow others to use the said copies of daily reports and said other written and printed memoranda and information and particulars so as aforesaid dehvered to him, said S., by said S., as aforesaid for his own purposes, and for the purposes of others, all to wit : for the purpose of acquir- ing information of and concerning the business aforesaid of this plaintiff arid of policies of insurance issued as aforesaid in the name of this plaintiff and about to expire and to expire in the future, and for the purpose of persuading the patrons of plain- tiff and persons insured by plaintiff, not to renew their insurance and policies with plaintiff, and to change their insurance to other insurance companies, and to insure their property in in- surance companies other than this plaintiff, all of which will be to the pecuniary benefit and advantage of the said S., in the Vol. 1—18 754 Bradbury's Forms of Pleading Insurance commissions to be earned by him from the companies to whom he shall take and divert said business and to be paid to him therefor, and all to the injury and damage of the plaintiff and its loss of business and to the injury of its business and loss of premiums which would have resulted to it from such business. X. No action at law will lie nor is any action at law adequate to compensate this defendant for the injury suffered by it as aforesaid, and to be suffered by it by the continuance of the acts aforesaid. Wherefore, this plaintiff demands judgment and order of this court as follows : I. That pending this action a receiver be appointed to take possession of and hold pending this action, and to dispose of as this court by its final judgment may order and direct, all the said copies of daily reports and other written and printed memo- randa, information and particulars, delivered by the said A. K. S. to the defendant, B. E. S., all as aforesaid, and also of all copies thereof or therefrom and* all extracts of information of any kind taken therefrom by said S., or by any other person, and that the court order and require the said defendant S. to deliver all thereof to said receiver, and that a referee be ap- pointed to ascertain by testimony a full and accurate descrip- tion of all such property, reports, information, memoranda and particulars so delivered to said defendant, S., and of all copies of or information taken therefrom, and that the said S. be re- quired to appear before said referee and disclose the same un- der oath, said referee to examine on oath concerning the same, said S., and such other persons as may be produced before him. II. That pending this action the said defendant, S., and all other persons, his agents or servants or other persons with his authority or connivance, be enjoined, restrained and forbidden by order of this court from delivering the same to any person other than this court shall order, from making any use of, ex- amining, consulting, copying or obtaining any information, or allowSag any person so to do from any of said copies of daily reports and other wj-itten or printed information, memoranda Complaints 755 Insurance or particulars, delivered by said S. to said S., and also from any copies of memoranda taken therefrom or mutilating any of the same, or doing any act founded on or proceeding from informa- tion deri\'ed therefrom in relation to the persons insured by policies of fire insurance issued by the plaintiff, and memoranda of which are written upon said copies of said daily reports or upon said other memoranda of the business of the plaintiff ; and from soliciting or inducing or endeavoring to induce any per- sons named on said copies of daily reports or in said memo- randa, information or particulars to take insurance with any other than the plaintiff, or from not renewing or reinsuring their property with the plaintiff company, or making any represen- tation to such persons in relation thereto. III. That pending this action the said S. and his agents or servants and all persons deriving their information thereof from them or from said S. or said A. K. S., be enjoined from inter- fering with the business of this defendant or soliciting any per- sons insured against fire by this defendant to change their in- surance or to take insurance in any other insurance company in place and instead of the insurance with plaintiff, or not to renew or reinsure with this plaintiff. IV. That by final judgment of this court said copies of daily reports and other written or printed memoranda, information and particulars so delivered by said A. K. S. to said defendant, B. E. S., be adjudged to be the property of this plaintiff and that possession of the same be recovered by the plaintiff from the defendant, B. E. S., and from his agents and servants and from such other persons as may have possession of the same, and that the same be delivered to this plaintiff, also with all copies or memoranda taken from any of the same, and that the defendant, B. E. S., his agents and servants and all other per- sons with his authority or connivance be by such final judgment perpetually enjoined and restrained and forbidden from de- livering the same to any other person than the plaintiff, its attorneys, agents and servants, and also from allowing any person to see or make copies of or take memoranda or informa- 756 Bradbury's Forms of Pleading Insurance tion therefrom, and also from making any use of, examining, consulting, copying or obtaining any information or allowing any person so to do from any of said copies of daily reports and other written or printed memoranda or information or partic- ulars delivered by said S. to said defendant, S., and also from any copies or memoranda taken therefrom and also from mu- tilating or in any way injuring the same or any copies thereof, and also from doing any act founded on information derived from any thereof in relation to the persons insured with this plaintiff by policies of fire insurance issued by this plaintiff, memoranda of which may be upon any of said papers or memo- randa delivered by said S. to said S., or upon any memoranda of the business of the plaintiff; and from soliciting or inducing or endeavoring to induce any persons named on said copies or daily reports or in said memoranda, information or particulars to take insurance with any other than the plaintiff or from not renewing or reinsuring their property with the plaintiff com- pany, or making any representation to such persons in relation thereto. V. That the plaintiff may have such other or further relief, order or judgment as may seem just to the court to grant. VI. That the plaintiff recover against the defendant judg- ment for the costs of this action, and for all interlocutory fees, commissions and expenses of this action Complaints 757 Miscellaneous Contract Actions CHAPTER XXII MISCELLANEOUS CONTRACT ACTIONS FORMS VAQE [. Carriers; abusive conduct toward passenger by conductor; com- plaint silent as to form of action 757 ). Broker's agreement for purchase and sale of stocks, bonds, etc 760 ). Failure of stockbroker to execute orders 763 !. Broker's commission on sale of real estate 766 S. Damages for default in performing contract for excavating 767 ). Building contract with claim for extras and damages caused by own- er's delay. 771 ). Exclusive agency for sale of goods 774 t. Royalties on license to use patented invention 776 2. Baseball player's contract for services 778 i. Action by bankers making loans to a manufacturer against persons receiving goods with notice of their hypothecation to secure said loans ■ 781 1. Action for necessaries furnished infant; board and lodging 783 5. Contract to dig canal and build dam; plaintiff prevented from com- pleting contract 784 3. Breach of contract to purchase of patents. . .• 788 7. Services in getting barge off shore 789 Form No. 504 rriers; Abusive Conduct Toward Passenger by Conductor; Complaint Silent as to Form of Action ^ Supreme Court, county. izabeth S. Gillespie, Plaintiff, against •ooklyn Heights Railroad Company, Defendant. The plaintiff complaining of t he defendant, alleges: I From Gillespie v. Brooklyn H. R. Co., 178 N. Y. 347; in which a judg- mt in favor of the defendant was reversed. That this was an action for a sach of contract on the part of a carrier to safely carry a passenger and that s tort can be waived and such an action can be maintained under circum- mces such as are disclosed in this case, see Busch v. Interurban R. T. Co., ?N.Y,388. 758 Bradbury's Forms of Pleading Miscellaneous Contract Actions I. That the defendant at the time hereinafter mentioned, was and still is, as plaintiff is informed and believes, a domestic corporation, maintaining and operating lines of street cars through A^arious streets and avenues of the borough of , county of , and also of the borough of in the city of II. That on the morning of the day of , 19 , this plaintiff became a passenger on one of the defendant's cars at about the junction of street and avenue, intending to go through said street in an easterly di- rection to avenue, and that for the purpose of paying her fare to the defendant's conductor having charge of said car, and the collection of fares, she handed him a quarter of a dollar, and asked for a transfer from street to avenue. III. That said conductor not immediately giving her her change of twenty cents due her over and above the price of her fare as such passenger, she called his attention to her desire for a transfer and requested him not to punch the same until he had informed her which transfer would take her nearest to a certain point in street to which she desired to go, or avenues, and he replied, " What is the matter with yez?" She then civilly asked him for the information, when said conductor informed her that a transfer to avenue would take her nearest to where she desired to go. That she thereupon requested him to give her a transfer to , avenue and asked him for her change. That thereupon said conductor, with a gruff and rude voice, in the presence and hearing of several passengers in said car, said, "Your change; what change?" That plaintiff thereupon said, "I gave you twenty-five cents, and I want my change." To which said conductor, in like voice and m.anner, replied, "The likes of yez can't cheat me. There are lots like you. I can't be dead beat. I meet just such swindlers as you. I know yez. You're a dead beat and you can't beat me." Then turning and addressing another passenger in said car, said conductor said, "We have Complaints 759 Miscellaneous Contract Actions these every day. Only the other day I had a woman like that try to beat me out of money." IV. Plaintiff further shows that the foregoing language so used by said defendant's servant, to wit, "The likes of yez can't beat me. There are lots like you. I can't be dead beat. I meet just such swindlers as you. I know yez. You're a dead beat and you can't beat me," was false, slanderous and de- famatory, and was maliciously uttered by defendant's servant, and, that in and by the same, she was charged, and was so in- tended to be, of being a swindler and a dishonest woman, and engaged in an effort to swindle the defendant's said servant, and the defendant, and that by reason thereof she was reviled, injured and wounded in her feelings, and, as she is informed and believes, the persons then and there present, who heard said defamatory language, were induced to believe that the same was true; that she was a swindler and a dishonest woman, and was engaged in an effort to swindle and cheat said conductor, and, through him, the defendant, out of money, to her damage. V. Plaintiff further alleges that the defendant, by its said conductor, rcfusetl to give her said change, or any part thereof, and that by reason thereof she was entirely without means to pay her fare to return or to continue on her journey after she had left said car at avenue for the purpose of making a complaint to one of the defendant's inspectors of the treatment that she had received at the hands of the defendant's said ser- vant; and that said inspector then gave her a transfer to the defendant's superintendent at the end of the line, to enable her to present to him a statement of the treatment she had received, and of the fact that she had been deprived by the defendant's conductor of her money; and that she proceeded to the office of said superintendent and made a statement of the facts as here- inbefore set forth to the defendant's officer in charge; and that after such a statement, and being informed that she was with- out money to reach her home, or to go further about her business, or pay to expenses incident to traveling over the lines of the defendant's cars for that purpose, said defendant, through its 760 Bradbury's Forms of Pleading Miscellaneous Contract Actions agent aforesaid, declined to make good to her the amount of money so detained; and that by reasons thereof she was com- pelled to walk through various streets and avenues in the bor- ough of to places where she was required to go, and thence to her home, a distance, as she is informed and believes, of nearly or quite miles; and that by reason thereof she was made sick, to suffer great pains and inconvenience, and was detained from performing her duties and practicing her profession, which was that of a physician; she was put to ex- pense for medicines, and that by reason of the premises she has sustained damage to the amount of $ Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification.] Form No. 505 Broker's Agreement for Purchase and Sale of Stocks, Bonds, etc.i I. That the plaintiff and one T. H. were at all the times here- inafter mentioned, until the day of , 19 , copartners engaged in business as brokers in the city of New York under the firm name and style of S. & Co. That on the said day of , 19 , the said T. H. died, leaving the plaintiff his sole surviving partner. II. That at all the times hereinafter mentioned until his said death the said T. H. was a member of the New York Stock Exchange; and that at all the said times until on or about the day of , 19 , the above-named de- fendant was hkewise a member of the said exchange. III. That during the period from the day of , 19 , to the day of , 19 , the plaintiff and the said T. H. as copartners as aforesaid, purchased and sold and cleared and carried for the account and benefit of the defendant, stocks, bonds and silver certificates, and advanced 1 From Selisberg v. Shepp, 107 App. Div. 616; 95 Supp. 1160; wherein an order requiring the defendant to serve a bill of particulars of his counterclaim was afirmed. The complaint was not directly passed upon. Complaints 761 Miscellaneous Contract Actions moneys in connection therewith at the request of the defendant and upon his promise to repay to them all sums so advanced with interest thereon as hereinafter specified, and also to pay them for their said services, commissions as herein specified. IV. That the agreement between the plaintiff and the said T. H. on the one side and the defendant on the other side with respect to the rate of interest above referred to was that the plaintiff and the said T. H. were to charge the defendant one per cent per annum in excess of the average rate of interest which they would have to pay from time to time on moneys borrowed by them and to allow defendant one per cent per annum less than the average rate of interest which they would receive from time to time in respect of stocks and securities borrowed by them and that with respect to stocks and securities borrowed flat by the plaintiff and the said T. H. for account of defendant knowing no interest was to be charged so allowed by them. V. That the commissions agreed to be paid by the defendant to the plaintiff and the said T. H. for their above-mentioned services in connection with each purchase, and with each sale of the above-mentioned stocks, bonds and silver certificates respectively, were as follows. That is to say: 1. With respect to such of the above-mentioned stock and bonds as should be cleared by them as above mentioned, the agreed commissions were fifty cents for each $10,000 par value of such stocks and bonds, except in cases where the purchase or the sale of anything of such stocks and bonds was personally executed on the floor of the New York Stock Exchange, by the said T. H., in which cases, the agreed commissions were in addi- tion to the commissions last mentioned $2 for each $10,000 par value of such stocks and bonds. 2. With respect to such of the above-mentioned silver cer- tificates as should have been cleared by them as above mentioned, the agreed commissions were fifty cents for each 10,000 ounces of silver represented by such silver certificates, except in cases where the purchase or the sale of any of such silver certificates 762 Bradbury's Forms op Pleading Miscellaneous Contract Actions was personally executed on the floor of the New York Stock Exchange by the said T. H. in which cases the agreed commis- sions were in addition to the commissions last mentioned, $2 for each 10,000 ounces of silver represented by such silver certificates. 3. With respect to the above-mentioned stocks and bonds as should be carried by them as above mentioned, the agreed commissions were $3.12^ for each $10,000 par value of such stocks and bonds, except for the periods between the day of , 19 , and the day of , 19 , and between the day of , 19 , and the day of , 19 , for which periods the agreed commissions were fifty cents for each $10,000 par value of such stocks and bonds and in addition $2 for each $10,000 par value of such of said stocks and bonds, the purchase or the sale of which was personally executed on the floor of the New York Stock Exchange by the said T. H. 4. With respect to such of the above-mentioned silver certifi- cates as should be carried by them as above mentioned, the agreed commissions were $3.12^ for each 10,000 ounces of silver represented by such silver certificates, except for the periods between the day of , 19 , and the day of , 19 , and between the day of , 19 , and the day of , 19 , for which .periods the agreed commissions were fifty cents for each 10,000 ounces of silver represented by such silver certifi- cates, and in addition $2 for each 10,000 ounces of silver repre- sented by such of said silver certificates, the purchase or the sale of which was personally executed on the floor of the New York Stock Exchange by the said T. H. VI. That during the period from the day of , 19 , and the day of , 19 , the plaintiff and the said T. H. as copartners as above mentioned, purchased and sold or caused to be purchased and sold for the account and benefit of the defendant, certain quantities of wheat and advanced moneys in connection therewith at the request Complaints 763 Miscellaneous Contract Actions of the defendant and upon his promise to repay to them all sums so advanced with interest at the rate of one per cent in excess of the prevailing money rates and also to pay them $12.50 for each 10,000 bushels of wheat so purchased, prior to and including the day of , 19 > and for each 10,000 bushels of wheat so purchased or sold subse- quent to said day of , 19 . VII. That on or about the day of , 19 , there was due and payable to the said plaintiff and the said T. H. as copartners as above mentioned from the defendant by reason of the above-mentioned transactions, the balance of $ ; and that thereafter at various times, on or about the day of , 19, the plaintiff and the said T. H. as copartners as above mentioned, received from the defendant or for his account various sums of money in reduction of his said indebtedness and interests leaving on the said day of , 19 , a balance due to them of $ VIII. [Allegations as to demand and nonpayment and prayer for money judgment.] Form No. 506 Failure of Stock Broker to Execute Orders ^ I. That at all the times hereinafter mentioned, defendants were and still are copartners transacting business as stock- brokers in the city of under the firm name and style of M. B. and were at all the times hereinafter mentioned and now are members of the N. Y. S. E. II. That between the day of , 19 , and the day of , 19 , one M. C. employed the de- fendants as her agents and brokers to buy and sell for her various stocks, bonds and commodities upon her orders, and defendants agreed to carry same upon margin, subject to her directions; and at various times between said dates said M. C. gave orders to buy and sell various stocks and bonds and deposited with the defendants various large sums of money to p rotect defend- 1 From Simonson v. Mendham, 190 N. Y. 515. 784 Bradbury's Forms of Pleading Miscellaneous Contract Actions ants from loss in the execution of her orders for the purchase and sale of stocks for her account. III. That such transactions were had between the said M. C. and the defendants herein that on or about the day of , 19 , the defendants had bought and were carrying for the said M. C. the following stocks and bonds, to wit: shares of the common stock of the R'. I. & S. Co.; shares of the preferred stock of the U. S. S. Corporation; D . & M . L . G . Bonds of the par value of $ each ; G. B. B. of the par value of $ each; shares of the second preferred stock of the E. R. Co.; shares of the common stock of the M. & St. L. R. Co.; ' shares of the common stock of the U. C. Co., and shares of the com- mon stock of the N. & W. R. Co.; and that upon said date said M. C. had on deposit with the defendants sufficient funds to protect defendants from loss in carrying said stocks and bonds for her, subject to her orders for the sale of same. IV. That on or about the said day of > 19 , the said M. C. ordered the defendants to sell for her account her said stocks as and whenever the market price should reach the prices hereinbelow specified, to wit: shares of the common stock of the R . I . & S . Co . at $ per share ; shares of the preferred stock of the U. S. S. C. at $ per share; G. B. bonds at $ each; shares of the second preferred stock of the E. R. Co. at $ per share; shares of the common stock of the M. & St. L. R. Co. at $ per share; shares of the U. C. Co. at $ per share; shares of N. & W. E. Co. at $ per share; said order to remain good until canceled. V. That thereafter all of said stocks, except said shares of the common stock of the M. & St. L. R. Co. and said shares of the common stock of the U. C. Co. reached in the market the prices at which the same had been ordered sold and that said defendants failed and neglected to sell said stocks for the said M. C. in accordance with her instruc- tions, although there was a market at said prices for the same. Complaints 765 Miscellaneous Contract Actions VI. That thereafter the market price of said stocks fell and said stocks were sold at prices lower than the prices at which the same were ordered sold by the said M. C. VII. That on the day of , 19 ,' the said M. C. ordered the said shares of the common stock of the M. & St. L. R. Co. and the shares of the common stock of the U. C. Co. sold at the best prices obtainable at that time and that defendants failed and neglected to execute said order although there was a market for the same. VIII. That thereafter the market price of said stocks fell and said stocks were sold at prices lower than the prices at which the same were ordered sold by the said M. C. IX. That by reason of the above the said M. C. has been damaged in the sum of $ , which has been duly de- manded of the defendants, and no part thereof has been paid. X. That prior to the commencement of this action the said M. C. for value received, duly sold, assigned, transferred and set over to this plaintiff all her right, title and interest in and to said account, claim or cause of action against the said defend- ants. Wherefore [demand for money jvdgment]. Form No. 507 Broker's Commission on Sale of Real Estate ' I. That the defendant, M. E. D., was the owner of the premises known as the "Marie," said premises bearing street Nos. 61 to 69 East Eighty-sixth street, in the borough of Manhattan and city of New York; that the said defendant employed one T. F. C, who was a real estate broker, to sell the said premises for the said defendant, M. E. D.; that in pursuance of said employment, the said T. F. C. sold said premises to the defendant F. B., who was the purchaser procured for said pre mises by said T. F. C; ' From Cody v. Dempsey, 86 App. Div. 335; 83 Supp. 899. This case held that the L. 1901, c. 128, adding sec. 640d to the Penal Code requiring written authority from an owner to a broker authorizing the sale of real property, was unconstitutional, 766 Bradbury's Forms of Pleading Miscellaneous Contract Actions that said M. E. D. promised to pay said T. F. C. the sum of dollars as compensation for his services in procuring a purchaser for said premises and effecting a sale thereof upon the terms fixed by said M. E. D., and that said T. F. C. did procure a pur- chaser for the said premises and did effect a sale thereof to the said F. B. upon the terms fixed by the said M. E. D. II. That said T. F. C, heretofore and before the commence- ment of this action, for valuable consideration assigned and transferred to the plaintiff all his right, title and interest in and to the compensation of dollars aforesaid. III. Upon information and belief that heretofore before the commencement of this action said M. E. D., at the instance and request of the said T. F. C, deposited with the said defendant F. B. the said sun) of dollars to await the settlement of the dispute between said M. E. D. and the said T. F. C. as to the sum of dollars; that said dispute arises as follows: that said M. E. D. alleges that said T. F. C. agreed to pay out of his compensation of dollars the cost of procuring a loan upon bond and mortgage to be given by said M. E. D. upon certain Brookl}^ lots taken in part payment of the purchase price of the premises known as the "Marie" and that the cost of procuring the said loan was dollars; that said T. F. C. and plaintiff deny that said agreement to pay said cost of pro- curing said loan out of said compensation of dollars was made, and allege that said M. E. D. was to pay tlte cost of procuring said loan ; that plaintiff alleges that the usual broker's commissions for the sale of the said premises known as the " Marie " was one per centum of the selling price, to wit : dollars, and that said cost of procuring said loan was allowed to the defendant M. E. D. out of said sum of dollars; and that defendant M. E. D. promised to pay said T. F. C. the sum of dollars as compensation for procuring the sale aforesaid, without any deduction or offset from any cause or claim whatsoever; that payment thereof has been demanded and that the same has been refused and that said sum has not been paid, nor any part thereof, Complaints 757 Miscellaneous Contract Actions Wherefore, plaintiff demands judgment against the defendant M. E. D. for the said sum of dollars, together with the costs of this action, and that the said defendant F. B. be en- joined from paying said sum of dollars deposited with him except as provided by the order of this court, and for such other and further reHef as may be proper. Form No. 508 Damages for Default in Performing Contract for Excavating i For a first cause of action. I. On or about the day of , 19 , the de- fendant entered into an agreement with the plaintiff whereby he agreed to make or to cause to be made the necessary excava- tion for building purposes, of earth and rock from the premises in the borough of Manhattan, city of New York, situate on the westerly side of the Boulevard [now Broadway] between and streets, according to the plans and surveys for said work, upon the terms hereinafter set forth, to provide at least forty teams per day, until all earth and rock should have been excavated, to work at least ten steam drills simultaneously while excavating rock, to work night and day and generally to use the utmost diligence and despatch so as to complete said contract at the earliest time possible, to use due diligence in the blasting of said rock in the course of said excavation and to be personally responsible for all damage which might thereafter ac- crue by reason of such excavation. That said contract consists of several written instruments bearing date the days of , 19 , copies of which said written instruments, marked ^ From Stokes v. Bradley, 107 App. Div. 616; 95 Supp. 1162; in which the court ordered that the complaint should be amended so as to read as above, this being the plaintiff's proposed amended complaint, except that the prayer for relief was ordered changed so as to leave the prayer for interest on the amount claimed as it was before the amendment was allowed, and that the demand for interest on the amount of the cause of action to be added to the amended complaint be from the day of the service of said amended com- plaint. Otherwise the sufficiency of the complaint does not seem to have been passed upoii. 768 Bbadbury's Forms of Pleading Miscellaneous Contract Actions "A," "B" and "C" respectively, are hereto annexed and made a part of this amended complaint. That said price of said excava- tion fixed by said agreement was cents per cubic yard of earth and cents per cubic yard of rock actually and nec- essarily excavated in the course of said work. II. That the defendant thereafter undertook the work of excavating said premises, but that he failed to perform said contract or agreement in all respects upon his part in that he did not use due diligence in the prosecution of said work, but delayed the same, did not at all times provide a sufficiency of materials and workmen, did not conduct said work during the nighttime, did not excavate the uniform depth agreed upon, did not perform said work as rapidly as possible, and caused the blasting of rock to be done in a negligent, improper and dan- gerous manner and thereby caused substantial damage to the adjoining premises. That by reason of the aforesaid delay, de- fault and negligence of the defendant, plaintiff was obliged to employ other workmen to complete said excavation and was obliged to make good the damage caused by the negligent blast- ing aforesaid to the damage of the plaintiff dollars. That dollars of said sum of dollars was paid by the plaintiff at the request of the defendant to prevent litigation on account of the damage caused by the negligent blasting done by the defendant on said premises, as follows : For damage to premises No. street, owned by one C $ For damage to premises No. street, owned by one 0. H $ III. That the plaintiff duly performed said agreement or con- tract in all respects on his part. [The second and third causes of action are on promissory notes and the allegations are the customary ones for said cases.] For a fourth cause of action. VI, That on or about the day of , 19 , the Complaints 769 Miscellaneous Contract Actions defendant entered into a further agreement with the plaintiff to make the additional excavations for the swimming pool and for the boilers to be erected upon said premises, at the same prices per cubic yard of earth and rock actually and necessarily excavated as were fixed by the contract or agreement above set forth and to furnish additional workmen so that there should be no delay in completing said agreement and the agreement hereinafter set forth. A copy of said agreement of the day of , 19 , is hereto annexed, marked "D" and made a part of this amended complaint. VII. That the defendant thereafter undertook the work pro- vided for by said agreement, but failed to perform said agree- ment jn all respects on his part, according to the tenor thereof, in that he caused such additional excavations to be made in a negligent and improper manner, failed to provide a sufficiency of materials and workmen, failed to complete said work within the time Hmit fixed by the said agreement and delayed other contractors upon said premises to the damage of the plaintiff I VIII. That the plaintiff duly performed said agreement or contract in all respects on his part. [The fifth cause of action is on an agreement for additional excavations and is set forth as is customary in such cases.] For a sixth cause of action. XII. Repeating the allegations contained in paragraphs I, II, III, VI, VII, VIII, IX, X and XI of the amended complaint that the plaintiff has caused accurate surveys of said premises to be made by a competent surveyor and has caused accurate calculations based on such surveys to be made for the purpose of determining the exact respective amounts of earth and rock actually excavated by the defendant and that the total amount earned by the defendant of the work performed by him under all of said written agreements at the price per cubic yard of earth and rock excavated which are fixed by said agreements does not exceed the sum of $ That by reason of erroneous certifications made to the plain- VoL, 1-49 770 Bradbury's Forms of Pleading Miscellaneous Contract Actions tiff, the plaintiff inadvertently paid to the defendant from time to time sums largely in excess of the amount actually due to the defendant for the said work; that said sums so paid to the defendant by the plaintiff amount in the aggregate to the sum of S ; that the excess of said sum of $ paid to the defendant aforesaid, over and above said sum of $ , amounts to the sum of $ . That said sum of $ , became and was due and payable to the plaintiff from the de- fendant on or about the day of , 19 , and that payment thereof was demanded and refused. For a seventh separate and distinct cause of action. XIII. That on or about the day of j 19 , and at the special instance and request of the defendant, the plaintiff entered into a certain other and further agreement with the defendant, in consideration of the plaintiff paying to him in advance, the sum of $ , by the provisions of which agreement, the defendant agreed to complete all of the work covered by his various prior agreements with this plain- tiff, on the premises situated on property between and streets, within twenty days from the making of the said agreement, and to further put on additional rock men and drillers to increase his labors, and to put on the full number of double carts, to wit, , and to do and perform certain other things more particularly specified in said agreement, a copy of which is hereto annexed and marked Exhibit "F." That thereupon and in consideration of said agreement of the day of , 19 , this plaintiff paid to the defend- ant, the sum of $ , and in all things performed all the conditions and covenants in said agreement contained on his part to be kept and performed; that the defendant failed and neglected to keep and perform the terms of said agreement of the day of , 19 , in that he failed and neg- lected to complete all of the work on said premises including blasting and drilling, digging, cutting of rock and the removing from the jiremisos of all of the same, so as to leave the lot en- tirely clear of all debris and material to be removed, including Complaints 771 Miscellaneous Contract Actions also all work on both excavations, and in connection with the pier holes, within twenty days from the date of the said agree- ment, and that he utterly failed and neglected to complete the said work at all. Further, that he failed to put more rock men and drillers on the job, and to increase his labors and to put on the full number of double carts, to wit, , and to clear out the rock of bases to retaining walls at the rear of the house, and also of other retaining walls on and streets, and entirely failed and neglected to perform and complete the terms of the said agreement. That by reason of the said delay of the defendant, in com- pleting the terms of the said agreement, the plaintiff's work, the iron contractors and all the other contractors upon the said building were hindered and delayed and the construction and completion of the said building was greatly hindered and de- layed. ' That by reason of such default on the part of the defendant, and as a result of the plaintiff's contractors being unable by reason of such delay to complete the said building for a long period of time after the same should have been completed, the plaintiff was damaged in the sum of $ AVherepore [demand for money judgment]. Form No. 509 Building Contract With Claim for Extras and Damages Caused by Owner's Delay ^ I. That the 0. C. Co. is a corporation organized and existing under the laws of the State of and having an office in the borough of and city of II. That the V. Co. is a corporation organized and existing ^ From Neidlinger v. Onward Construction Co., 188 N. Y. 572 [motion for reargument denied April 7, 1908]; in which a judgment in favor of the plaintiff was affirmed. Motion for a new trial on newly discovered evidence denied. 124 App. Div. 26. On the trial the complaint was amended by striking out certain items not allowed by the architect's certificate. 772 Bradbury's Forms of Pleading Miscellaneous Contract Actions under the laws of the State of , and having its principal office in the city of , III. That plaintiff is a resident of the county of IV. That heretofore and on or about the day of , 19 , the day of > 19 » the day of , 19 , the day of , 19 , the day of , 19 , and the day of , 19 , the said V. Co. entered into an original written contract and various supplemental contracts with the 0. C. Co., wherein the V. Co. agreed to furnish the labor and materials for the trim and interior woodwork supplied to and erected in the Ansonia Apartment Hotel, , City, as provided in said contracts and the plans and specifications forming a part thereof; for which said labor and materials the 0. C. Co. agreed to pay the V. Co. the sum of $ . That no part of said sum of $ has been paid to the said V. Co., except the sum of $ ; and there is now due and unpaid under the said contract and the contracts supplemental thereto the sum of $ . . V. That the said V. Co. afterwairds duly performed all of the terms and conditions of the said contract of , 19 , and the said contracts supplemental thereto, on its part to be done and performed; and that the same was fully completed on or about the day of , 19 . That within thirty days thereafter, to wit, on or about the day of 19 , the said V. Co. was entitled to have and receive from the said 0. C. Co., upon the said contract for the said labor performed and materials furnished, the sum of .| , but that no part thereof has been paid. VI. That heretofore and on or about the day of , 19 , the V. Co. duly assigned to the plaintiff herein all of its right, title and interest under the said contracts with the 0. C. Co., and the moneys due and unpaid there- under. For a second cause of action. VII. That the 0. C. Co. is a corporation organized and ex- Complaints 773 Miscellaneous Contract Actions isting under the laws of the State of , and having an office in the borough of and city of VIII. That the V. Co. is a corporation organized and existing under the laws of the State of , and having its principal office in the city of , IX. That the plaintiff is a resident of the county of X. That heretofore and on or about the day of 19 , the day of , 19 , the day of , 19 , the day of , 19 ; the day of ) 19 , and the day of , 19 , the said V. Co. entered into an original written contract and various supplemental contracts with the 0. C. Co., wherein the V. Co. agreed to furnish the labor and materials and interior woodwork supplied to and erected in the Ansonia Apartment Hotel, , City, as provided in said contract and the plans and specifications forming a part thereof for which said labor and materials the 0. C. Co. agreed to pay the V. Co. the sum of $ . That no part- of said sum of $ has been paid to the said V. Co. except the sum of $ ; and there is now due and unpaid under the said contract and the contracts supplemental thereto, the sum of $ XI. That the said 0. C. Co. hindered, delayed, embarrassed and interfered with the said V. Co. and with the work being carried on by said V. Co.; prevented said V. Co. from going on and finishing the same in a reasonable and proper manner; suspended the entire work under said contracts from time to time; forced the said V. Co. to keep its working forces and various employers idle for long periods of time; compelled it to rent apartments for the storing of completed trim, woodwork and materials; compelled said V. Co. to procure additional insurance on trim and materials; compelled said V. Co. to pay wages of carpenters, painters and others, largely in excess of the wages that would have been necessary to have been paid had said v. Co. been allowed to complete its work within a reasonable time; put said V. Co. to a large additional cost of putting hard- 774 Bkadbury's Forms of Pleading Miscellaneous Contract Actions ware on said trim and woodwork in City instead of , ; largely increased the cost to the V. Co. of the labor and materials used in the manufacture of said trim and woodwork; caused said V. Co. the loss of the use of a large part of the capital invested in its business; caused said V. Co. a large additional expense because of door bucks not being properly set and grounded, and sliding door pockets being too small in the said apartment house; caused the said V. Co. addi- tional expense for extra work in making patterns for trim, on account of plasterers not following grounds first put on; caused said V. Co. great additional expense for putting on glass plaques throughout the building; caused said V. Co. large additional expense for extra work on account of inability to do work by reason of the failure of the 0. C. Co. to prepare whole floors at one time ready for trim, and by reason of the orders of the 0. C. Co. to finish certain apartments out of the regular order; all to the loss and damages of the said V. Co. and the plaintiff in the sum of $ , the particulars of which are stated as to each item in the account hereto annexed and marked "A." XII. That heretofore and on or about the day of , 19 , the V. Co. duly assigned to the plaintiff herein all of its right, title and interest under the said contracts with the 0. C. Co. and the moneys due and unpaid and for extra work and damages thereunder. XIII. That on or about the day of , 19 , the said V. Co. duly demanded of the said defendant, the pay- ment of said sum, but no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 510 Exclusive Agency for Sale of Goods ^ I. For a first cause of action that at all the times hereinafter mentioned, the defendant was, and still is, a manufacturer and wholesale dealer in ladies' and men's hats, and has an office in 1 From More v. Knox, 52 App. Div. 145; 64 Supp. 1101; aff'd, without opin- ion, 169 N. Y. 591. Complaints 775 Miscellaneous Contract Actions the city of , N. Y. That during said time the plaintiff was and is a retail dealer in hats in the city of , N. Y. II. That for about years prior to the beginning of the season of 19 , the plaintiff has had the exclusive right to buy and sell hats of the defendant's manufacture in and for the city of , N. Y. That heretofore and on the day of , 19- , the plaintiff and defendant made and entered into an agreement in writing which was subscribed by the agent of the defendant duly authorized thereto, and it was therein and thereby mutually agreed between them as follows: That the defendant should manufacture for and sell and deliver to the plaintiff at , N. Y., via line, and dozen hats of different sizes and styles mentioned in said written contract, and dozen to be de- livered at once and the remaining dozen to be delivered on or about , 19 , and that plaintiff should pay the defendant therefor [upon the same terms as previous year, viz., days and per cent, discount], the sum of dollars [ dollars and cents]. III. That the defendant delivered the docen hats at once, which were invoiced at dollars, as agreed upon, and which have been paid for by plaiutiff. IV. That although on said day of , 19 , the plaintiff was ready and willing to perform the said agreement and otherwise has performed all the conditions thereof on his part, the defendant failed, neglected and refused to perform the terms of said agreement on his part [except as to said dozen], and has wholly failed to deliver dozen hats or any part thereof to the plaintiff's damage of dollars. V. And for a second and further cause of action against said defendant, plaintiff repeats the allegation set out in the first cause of action referring to the business of the parties hereto and their business relations with each other, and alleges that heretofore and on the day of , 19 , the plain- tiff and defendant made and entered into an agreement in writing which was subscribed by the agent of the defendant duly au- 776 Bradbury's Forms of Pleading Miscellaneous Contract Actions thorized thereto, and it was therein and thereby mutually agreed between them as follows: That the defendant should manu- facture for and sell and deliver to the plaintiff at , N. Y., via line, and dozen hats of different sizes and styles mentioned in said written contract, and dozen to be delivered at once, and dozen to be delivered , 19 , and • and dozen to be delivered , 19 , and that plaintiff should pay defendant therefor [upon the same terms as previous year, viz., days and per cent, discount, except as to silk hats, for which no discount was to be allowed], the sum of dollars. VI. That defendant delivered the and dozen ha.ts at once, which were invoiced at dollars, as agreed upon, and which have been paid for by plaintiff. VII. That, although on said day of j 19 , and on said day of , 19 , the plaintiff was ready and willing to perform the said agreement and otherwise has performed all the conditions thereof on his part, the defend- ant failed and neglected and refused to perform the terms of said agreement on his part [except as to said of said and dozen] and has wholly failed to deliver dozen hats, or any part thereof, to the plaintiff's damage of dollars. VIII. That by reason of the premises set forth in the said causes of action the plaintiff has sustained damage in the sum of dollars, with interest [etc.]. Wherefore [demand for money judgment]. Form No. 511 Royalties on License to Use Patented Invention ' ' lAfter recitals as to the incorporation of the parties.] III. On or about the day of , 19 , the * From United States Aluminum Printing Plate Co. v. Stecher Lithographic Company, 110 App. Div. 887; 96 Supp. 1149; in which a judgment overruling a demurrer to the complaint was affirmed. Complaints 777 Miscellaneous Contract Actions S. S. Co., and the A. P. & P Co., licensor, executed and de- livered to the defendant a contract in writing, known as license No. , dated the day of , 19 , whereby they licensed the defendant to use the inventions described in certain United States patents, mentioned in the said license, until the day of , 19 , when the patents should expire. They being inventions for the use of aluminum in place of stone in lithographing on one press described in said license as "one Rotary Aluminum Press [No. ] manu- factured by the A. P. P. Co.," and the defendant executed and delivered to the said licensor a duplicate of said license, and therein agreed to pay the said licensor until the said patents should expire, $ a year for the Rotary press described in the license, the first year's royalty in advance and thereafter, half yearly in advance, such royalties to last from the day of , 19 , tlie date of the license; and the defend- ant also therein agreed to buy from the licensor or their agent, all aluminum plates that the defendant may use or have oc- casion to use in printing, and agreed that the 'defendant, so long as such license should be in force would not use any aluminum plates except those bought by the defendant from the said li- censor or their agent, and would pay to the licensor by way of damages cents for 100 sq. inches on all aluminum plates that the defendant might buy or use in violation of such agree- ment. IV. On or about the day of , 19 , the said licensor sold and assigned to the plaintiff the said patents and all the said licenses and interest in the said license, and all royalties accruing since the day of , 19 , and all claim arising under said license. V. None of the patents have expired. The defendant has been operating under said license and using the said inventions and processes described herein by the Rotary press described in the said license from the day of , 19 , the date of the license, down to the present time, and is still con- tinuing to do so. 778 Bradbury's Forms of Pleading Miscellaneous Contract Actions VI. All royalties that became due prior to the day of , 19 , under said license, were paid. The defendant has failed to pay the semiannual royalty of $ , which became due in advance on the day of > 19 , under license No. , or any part thereof, and this has been duly demanded by the plaintiff. VII. The defendant has not bought from the said licensor or their agent all aluminum plates that the defendant has used or had occasion to use in printing, but the defendant, while the said license was in force, in violation of the said agreement, has bought from outside parties not authorized by the said licensors or by the plaintiff, and has used in printing a large amount of aluminum plates, to wit : about sq. inches of the thick- ness of of an inch, and by reason thereof, plaintiff has been damaged in the sum of $ [Three other causes of action similar to the above.] Wherefore [demand for money judgment]. Form No. 512 Baseball Player's Contract for Services ' For a first cause of action. I. [Allegation that the defendant is a corporation.] II. On information and belief that heretofore and on the day of , 19 , said defendant corporation made and entered into a contract with one F. P., wherein and whereby said defendant engaged said P. to perform such duties pertain- ing to the exhibition of the game of baseball as might be required of him by said defendant, or its assigns, at such reasonable times and places as said defendant, or its assigns, might desig- nate, for a period of six months, commencing on the day of , 19 , and ending on the day of 19 , inclusive, in and whereby said defendant, in addition to the matters mentioned in paragraph VII of the second cause of ^ From Russell v. The National Exhibition Co., 103 App. Div. 609; 93 Supp. 1145; in which a judgment for the plaintiiT was affirmed. Complaints 779 Miscellaneous Contract Actions action herein, contracted and agreed, among other things, to pay to the plaintiff for the services to be rendered by the plain- tiff to the defendant, thereunder, $2,400, payable in tweh c semi- monthly installments of $200 each, on the of each and every month of said period of six months. III. That the said P. duly entered on the performance of his duties under said contract, and duly and in all respects performed all the covenants, conditions and agreements therein on his part to be performed, and was at all times ready so to do. IV. That under the terms of said contract there became due to the said P. on each of the following named dates, to wit : , ; and , the installment and sum of $200, aggregating for the said four last-mentioned dates the sum of $800. V. That said P. duly received the installment and sum of $200 due , 19 , and of the installment and sum of $200 due , 19 , said P. received the sum of $160 on or about the day of , 19 . VI. That on the day of , 19 , there still re- mained due, owing and unpaid to said P. by defendant under and by virtue of said contract, the sum of $440, no part of which has been paid by defendant to said P. or to this plaintiff. VII. Plaintiff further alleges that after said sum of $440 be- came due and payable, and prior to the beginning of this action, said P. assigned the same and all his right, title and interest therein and thereto, together with all causes of action thereon, to this plaintiff. VIII. That thereafter, and prior to the beginning of this action, plaintiff duly notified defendant of said assignment, and thereafter duly demanded from defendant payment of the said sum of $440, and payment thereof was refused. For a second cause of action. Repeating all the allegations contained in paragraphs I, II and III of the first cause of action herein, plaintiff further al- leges: 780 Bradbury's Forms of Pleading Miscellaneous Contract Actions IX. On information and belief, that on the same date, to wit, the day of , 19 > as part of the same transac- tion set forth in paragraph II of the first cause of action herein, and as an inducement and consideration to said P. to execute the contract therein set forth, and in consideration of his agree- ment to play ball to the best of his ability during the continuance of his services with the New York baseball club [besides other considerations in his contract], the defendant herein agreed to give and pay to the said P. the sum of $600, to be paid in twelve semimonthly payments beginning , 19 . X. That in consideration of said agreement to pay to the said P. said $600 as aforesaid, he did execute the contract set forth in paragraph II hereof, and did agree to play ball with the New York baseball club to the best of his ability and during the continuance of his employment with the New York baseball club, did play baseball to the very best of his ability. XI. That under the terms of said agreement to pay to said P. said sum of $600, there became due to him on each of the following named dates to wit: ; ; ; ; ; ; ; ; , and , the installments and sum of $50, making a total for the ten last above-mentioned dates of $500. XII. On information and belief that said P. duly received the installment and sum of $50 due , and of the installment and sum of $50, due , said P. received the sum of $40, leaving a balance still due, owing and unpaid to said P. under the terms of said agreement and gift, of $410, no part of which has been paid to said P. or to plaintiff. XIII. Plaintiff further alleges that after said sum of $410 became due and payable and prior to the beginning of this action said P. assigned said sum and all his right, title and in- terest therein and thereto, together with all causes of action thereon, to this plaintiff. XIV. That thereafter and prior to the beginning of this action the plaintiff duly notified defendant of said assignment, and Complaints 781 Miscellaneous Contract Actions thereafter, duly demanded from defendant payment of the said sum of $410, and payment thereof was refused. Wherefore [demand for money damages]. Form No. 513 Action by Bank Making Loans to a Manufacturer, Against Persons Receiving Goods with Notice of Their Hypothecation to Secure Said Loans ^ I. That the plaintiffs are, and at all the times hereinafter re- ferred to have been, copartners engaged in the bankuig business at No. , street, in the borough of Manhattan, city of New York, under the firm name of L. T. & Co. II. That the above-named defendant is a corporation organ- ized and existing under the laws of the State of New York, and at all the times heremafter mentioned has been engaged in the business of manufacturing cotton fabrics at the city of U., county of 0., State of New York. III. That durmg the month of , 19 , the plaintiffs agreed with a certain mercantile and trading corporation, known as J. F. B. Co., to make loans and advances to it from time to time, to be secured by the hypothecation and pledge, among other things, of merchandise, and the proceeds of the sale thereof, and the said J. F. B. Co. agreed on its part to always keep and maintain a margin of at least ten per cent between the value of the merchandise and other securities hypothecated and pledged by it as aforesaid, and the amount of its indebted- ness at any time to the plaintiffs, any depreciation in the value of the plaintiffs' security to be instantly made good by the hypothecation and pledge of additional merchandise or other- wise. IV. That it Vv'as also part of said agreement, and the regular course of dealing between the plaintiffs and the said J. F. B. Co. during the continuance of the said agreement, for the plaintiffs to authorize and permit the said J. F. B. Co. to deliver from ^ From Thalmann v. Capron Knitting Co., 182 N. Y. 525; aff'g, without opin- ion, 100 App. Div. 247 ; 91 Supp. 520; where a judgment overruling a demurrer to the complaint was afBrmed; 782 Bradbury's Forms of Pleading Miscellaneous Contract Actions time to time to purchasers and customers of its own, the mer- chandise hypothecated and pledged to the plaintiffs under the said agreement, but the plaintiffs consented to such deliveries and the relinquishment of their right to the possession of the said merchandise upon the sole condition that every purchaser from the said J. F. B. Co., receiving merchandise previously hypothecated and pledged to the plaintiffs, should be given notice at or about the time of the receipt thereof that the plain- tiffs herein had an interest or lien thereon, and that the money due therefor was payable only to the plaintiffs. V. That under and in pursuance of said agreement, large loans and advances were made by the plaintiffs to the said J. F. B. Co. prior to the day of , 19 , on which date a petition in bankruptcy was filed against the said com- pany in the United States District Court for the Southern Dis- trict of New York. VI. That at the time of the filing of said petition, said J. F. B. Co. was indebted to the plaintiffs and still is indebted to them largely in excess of the merchandise and other securities held by them as security for said indebtedness, and that there was included in the merchandise hypothecated and pledged to plaintiffs as aforesaid, the cotton yarns and cloth particularly described as to quantity and value in the schedule annexed hereto marked "Plaintiffs' Exhibit A," and made a part hereof, as fully as if it were herein set forth at length. VII. That the plaintiffs authorized and permitted the said J. F. B. Co. to deliver the cotton yarn and cloth included in said schedule from time to time to the defendant, according to the practice and regular course of dealing under the agreement between them, and the said J. F. B. Co. as outlined in Section 4 of this complaint; and the plaintiffs allege upon information and belief that the aforesaid cotton yarn and cloth was de- livered to the defendants and accepted and retained by them, with notice that the plaintiffs had a lien thereon or interest therein, and that the amount due therefor was payable only to the plaintiffs. Complaints 783 Miscellaneous Contract Actions VIII. That the cotton yarn and cloth aforesaid was of the agreed value of $ , and that by reason of the premises, the defendant has promised and agreed to pay the said sum to the plaintiffs, but has refused, and still refuses to pay the same, with the exception of the sum of $ , which sum is credited to the defendant in the schedule annexed hereto as Exhibit "A." Wherefore, the plaintiffs demand judgment against the de- fendant for the sum of $ , with interest thereon from the dates on which the several items in the schedule hereto an- nexed became due and payable, together with the costs and disbursements of this action. Form No. 514 Action for Necessaries Furnished Infant. Board and Lodging ^ I. That the defendant is an infant of the age of years. II. That the plaintiff, between the day of , 19 , and the day of , 19 , both dates in- clusive, furnished and supplied the defendant, upon the defend- ant's request and implied promise to pay therefor, with board and lodging at No. , street, in the city of New York. III. That the said board and lodging were "necessaries," and of the reasonable value of $ per week, or in all of $ , and were of a character suited to the position in life of the defendant. That there has been paid on account of said sum of $ , the sum of $ IV. That there is now due and owing, by virtue of the premises, by the defendant to the plaintiff, the sum of $ , with interest thereon from the day of , 19 , no part of which sum has been paid. Wherefore [demand for money judgment]. 1 From Goodman v. Alexand^lGo N. Y. 289; where the only point discussed is the sufficiency of this complaint. 784 Bradbury's Forms of Pleading Miscellaneous Contract Actions Form No. 515 Contract to Dig Oanal and Build Dam; PlaintiS Prevented From Com- pleting Contract ^ For a first cause of action. I. That at all the times hereinafter mentioned, the said de- fendants, W. B. and C. W. W., were, and now are, copartners, doing business in the city of New York under the firm name and style of B. & W. II. That on the day of , 19 , J. R. De R., this plaintiff, and H. C. N., copartners under the firm name of J; R. De R. & Co., and defendants, entered into a contract in the words and figures following, to wit: [Here follows verbQtim copy of contract]. III. That in pursuance of the terms of said contract, and of the specifications thereto attached and made a part thereof, said firm of J. R. De R. & Co. entered iato the work therein specified upon giving the bond required thereby, satisfactory to the said engineer and said defendants, and continued on the work provided for in and by said contract up to on or about the day of , 19 . IV. That in preparing to perform and in performing the work specified in said contract and specifications, the said J. R. De R. & Co. necessarily expended the sum of about $ That all of the work done and performed by said J. R. De R. & Co. was performed strictly in accordance with the teftns of said contract and specifications, to the entire satisfaction of the engineer of defendants in charge of the said work, and in a manner acceptable to the defendants, and said work was ac- cepted by said defendants as satisfactory, and as having been done in a workmanlike manner and in accordance with the ■ terms of said contract and specifications. V. That, on or about the day of , 19 , the said defendants, without any fault, cause or reason for the ^ From De Remer't). Brown, 165 N. Y. 410; in which a judgment for the plaintiff was affirmed. The defendants claimed that they were acting for an undisclosed principal, which contention was not sustained. Complaints • 785 Miscellaneous Contract Actions same, of or on the part of the said J. R. De R. & Co., stopped the work under the said contract and prevented said firm of J. R. De R. & Co. from continuing any further work under, and completing the same, and said firm, compelled thereto by the defendants, and without any fault or reason on their part, did discontinue and suspend the said work under said contract although they were fully equipped and prepared to continue said work, and had expended a large amount of money in ma- terial and supplies necessary to complete the same. VI. That, from the time of the commencement of the said work of constructing the said dam and canal provided for in said contract, the said J. R. De R. & Co. performed work and labor in accordance with the terms thereof to the amount of I , for which estimates were furnished to them and to the said defendants by the engineer of the defendants in charge of said work, on which said estimates the defendants paid said J. R. De R. & Co. the sum of $ , leaving a balance due them from defendants on said estimates of the sum of $ , which defendants agreed to pay, but have since refused, and still refuse, to pay, which said estimates are in the words and figures following, to wit: [Here estimates are given verbatim.] VII. That thereafter, and before the commencement of this action, said firm of J. R. De R. & Co. was dissolved by mu- tual consent, and the said J. R. De R., the plaintiff herein, thereafter purchased from said H. C. N. all of the interest of the said N. in said firm of J. R. De R. & Co., together with his interest in the claim herein set forth and sued upon, and the said H. C. N. duly sold, assigned, transferred and delivered to said plaintiff all his right, title and interest in said firm of J. R. De R. & Co., including said claim and demand against these defendants, and the plaintiff herein is now the sole owner of said claim and demand, and there is justly due and owing by said defendants to this plaintiff on account thereof the sum of $ , with interest thereon from the day of , 19 . Vol. 1—50 786 Bradbury's Forms of Pleading Miscellaneous Contract Actions For a second cause of action. I. Plaintiff repeats and reiterates the allegations contained in pararaphs I, II, III, IV and V of the first cause of action herein, and makes the same a part hereof, as if the same had been set forth fully and at length herein. II. That the discontinuance of said work on said. dam and canal was wholly without the fault of said J. R. De R. & Co., or either of them, and the said firm of J. R. De R. & Co. were compelled to discontinue and suspend work thereon, and were prevented from the further performance of the work specified in said contract through the sole fault of the said defendants, and the said J. R. De R. & Co. had no reason to believe that the said contract would not be faithfully performed according to its terms by the said defendants. III. That in carrying out the terms of said contract, and in preparing to perform and in performing the work therein speci- fied, it was necessary and material for the due performance thereof and for the proper construction of said work to incur expenses and to provide for the completion of said work in accordance with the terms of said contract; in the providing of the necessary supplies and materials, tools, implements ^.nd labor necessary to be used in the construction of said dam and canal, to wit, to the amount of $ , which sum the said firm of J. R. De R. & Co. expended in and about the perfor- mance of said contract, an account of which said expenditures are as follows, to wit : [Here this account is set forth verbatim.] IV. That the total amount of the estimates for the work done by said J. R. De R. & Co. under said contract amounted to the sum of $ , of which the sum of $ has been paid by defendants, leaving due thereon under said esti- mates the sum of $ unpaid, as specified in the first cause of action, and refused to be paid by these defendants, and leaving still due of the amount necessarily expended by said J. R. Dc R. & Co., as aforesaid, in and about preparing for anil in the performance of the terms of said contract, and the Complaints 787 Miscellaneous Contract Actions construction of said dam and canal, the sum of $ , their damages, over and above the amount of the estimates so as aforesaid furnished, suffered by reason of the failure of said defendants to fully carry out the terms of said agreement and their refusal to permit said J. R. De R. & Co., to complete the work to be done thereunder, which said sum of $ , is due the plaintiff from defendants, but which said sum defend- ants have not paid, but have refused and still refuse to pay the same or any part thereof. V. That said J. R. De R. & Co. and this plaintiff at the time of the stoppage of said work by said defendants as aforesaid were, and ever have been, able, ready and willing to continue said work under said contract and agreement, and complete the same. VI. That thereafter, and before the commencement of this action, said firm of J. R. De R. & Co. was dissolved by mutual consent, and the said J. R. De R., the plaintiff herein, there- after purchased from said H. C. N. all of the interest of the said N. in said firm of J. R. De R. & Co., together with his interest in the claim herein set forth and sued upon, and the said H. C. N. duly sold, assigned, transferred and delivered to said plain- tiff all his right, title and interest in said firm of J. R. De R. & Co., including said claim and demand against these defendants, and the plaintiff herein is now the sole owner of said claim and demand, and there is justly due and owing by said defendants to this plaintiff on account thereof the sum of $ , with interest thereon from the day of , 19 . Wherefore, plaintiff demands judgment against the defend- ants as follows : 1st. On the first cause of action for the sum of $ , to- gether with interest thereon from the day of , 19 . 2d. On the second cause of action for the sum of $ .to- gether with interest thereon from the day of , 19 . 3d. For the costs arid disbursements of this action, 788 Bradbury's Forms of Pleading Miscellaneous Contract Actions Form No. 516 Breach of Contract to Purchase Patents ' I. That on or about the day of , 19 , the plaintiff and the defendant entered into an agreement in writ- ing, a copy whereof is hereto annexed, marked "A," and made a part of this complaint. II. That the plaintiff has duly performed all the conditions of said contract on his part; that in accordance with the said conditions of the said contract, he delivered to defendant on the execution of the same 199 shares of the capital stock of the M. M. Co., and that the defendant paid to the plamtiff at the same time, the sum of $ , in cash, on account of the pur- chase price of $ , for said shares; that letters patent have been granted and issued to the plaintiff by the Commis- sioner of Patents of the United States on the applications men- tioned in said contract and filed by him in said ofRce for im- provements in dental chairs and head rests; that the plaintiff has offered to assign to the M. M. Co., the letters patent Num- bered and those which have been granted to the plain- tiff, as aforesaid, as provided for in said agreement, Exhibit "A;" that on the day of j 19 , the plaintiff duly tendered to the defendant, instruments in writing executed by him, assigning and transferring to the M. M. Co. the said letters patent; that he at the same time demande(f from the defendant that the said defendant should pay to the plaintiff the balance of the purchase price mentioned in said agreement, to wit, the sum of $ , in a note or notes payable not later than thirty days after the tender of said assignment, to the defendant; that the defendant refused to accept said assign- ment and to pay to the plaintiff the balance of the said purchase price, to wit, the sum of $ , in a note or notes payable not later than days as provided in said agreement. III. Plaintiff further says that he has also given to the M. M. * From Marker v. Bultman, 110 App. Div. 889; 96 Supp. 1136; in which a judgment in favor of the plaintiff was affirmed, Complaints 789 Miscellaneous Contract Actions Co. and to the defendant, his active aid and assistance in apply- ing for letters patent in foreign countries, as provided in the said agreement, Exhibit "A." IV. Plaintiff further shows that by reason of the matters aforesaid, and of the defendant's failure to comply with said agreement and to fulfill the terms thereof on his part, he, the plaintiff, has suffered damages in the sum of $ Wherefore [demand for money damuges]. Form No. 517 Services in Getting Barge ofi Shore.^ I. That at all the times hereinafter mentioned it was and still is a foreign corporation, organized and existing under and pursuant to the laws of the State of , and has duly complied with all the laws of this State relative to foreign cor- porations doing business in this State and ob;tained the proper certificate from the secretary of authorizing it to do business in this State. II. That at all the times hereinafter mentioned the defend- ants were copartners and the owners of the barge E. W. S. III. That at the special instance and request of the de- fendants between the day of , 19 , and the day of , 19 , both dates inclusive, the plain- tiff performed certain wrecking services and work and labor and furnished certain materials to the defendants in and about the rescue and floating of the said barge E. W. S., which was ashore off the north shore of , near , ^ , and in bringing the same to the port of , and putting her upon a dry dock and delivering her to the defendants. IV. That said wrecking services, work and labor and ma- teri Is furnished were of the fair and reasonable value of $ no part of which has been paid, although duly demanded. Wherefore [demand f or money judgment]. iFromMerritt & Chapman Wrecking Co. v. Tice, 192 N. Y. memo.; aff'g without opinion, 118 App. Div. 123; 103 Supp. 333. 790 Bradbury's Forms of Pleading Judgments CHAPTER XXIII JUDGMENTS i FORMS NO. PAGE 518. Domestic judgment 790 519. Assignee of judgment by confession 792 520. Foreign judgment 793 521. Judgment of another State; another form 795 522. Judgment of another State; another form 797 523. Action against a corporation on a judgment of a court of a foreign State 807 524. Action of judgment of another State awarding alimony 809 525. Action of judgment of United States court after removal of action from state court by assignee of judgment 819 526. Action to set aside judgment in partition 820 527. Action to set aside judgment annulling a marriage, alleged to have been procured by fraud 828 528. Judgment of a justice of the peace of a foreign State 832 Form No. 518 Domestic Judgment ^ Supreme Court, county. Hugh K. Peace, Plaintiff, against James G. Wilson [and other defendants named], Defendants. The plaintiff complaining of the defendants, alleges : I. That on or about the day of , 19 , W. K. ' At common law a party had a right of action upon his judgment as soon as it was recovered, which was neither barred nor suspended by the issuing of an execution. Harris v. Steiner, 30 Misc. 624; 62 Supp. 752. An action may be maintained on a judgment of the former District Court of ^ From Peace v. Wilson, 186 N. Y. 403; in which the plaintiff recovered. It was held in this case that L. 1896, c. 568, adding sec. 1913 to the Code of Civil Procedure allowing an action to be begun on a judgment when "ten years have elapsed since the docketing of such judgment," is retroactive so as to include judgments entered before the statute was enacted. Complaints 791 Judgments P. and this plaintiff, H. K. P., duly commenced an action in the Marine Court of the city of , in the State of , which said court is a court of general jurisdiction duly created by the laws of said State, against the defendants by summons duly issued in said action, which was duly served upon each of the defendants in the city and county of , and that such proceedings were thereupon duly had in said action; that on the day of , 19 , the said W. K. P. and H. K. P. in said action duly recovered a judgment which was duly given and made by the said court against the defendants, for the sum of $ II. That no part of said judgment has been paid. III. That the said W. K. P. and H. K. P. were copartners in business, and that on or about , 19 , the said W. K. P. died, leaving this plaintiff his residuary legatee; that the said W. K. P. left a last will and testament wherein and whereby he appointed H. K. P., J. P. M. and G. E. B. executors and trustees of his wiM; that said will was on > 19 > duly proved and registered in the District Probate Registry of her Majesty's High Court of Justice of , , said court being a court of competent jurisdiction to take the proof of wills and of the said will, and grant administration thereon, New York CSty without obtaining leave of court. Harris v. Steiner, 30 Misc. 624; 62 Supp. 752; Baldinger v. Turkowsky, 36 Misc. 822; 72 Supp. 897. An action on a judgment of a court of another State cannot be maintained by one foreign corporation against another foreign corporation in New York. Anglo-American Prov. Co. v. Davis Prov. Co., 169 N. Y. 506. "A court of one State may, where it has jurisdiction of the parties, deter- mine the question whether a judgment between them, rendered in another State, was obtained by fraud, and, if so, may enjoin the enforcement of it, although its subject-matter is situated in such other State." Gray v. Rich- mond Bicycle Co., 167 N. Y. 348, 359; Davis v. Comue, 151 N. Y. 172, 179. A valid judgment in personam cannot be obtained against a nonresident of the State who is not personally served with process within the State and has not appeared in the action; nor is it competent for a State to authorize such a judgment which will bind property not within the State at the time and not proceeded against in rem in satisfaction of the claim. Bartlett v. Spicer, 75 N. Y. 628; Schwinger v. Hickok, 53 N. Y. 280; Bartlett v. McNeil, 60 N. Y. 53; Penncyeri;. Neff, 95 U. S. 714. 792 Bradbury's Forms of Pleading Judgments and administration on the estate of the said W. K. P. was on said day duly granted by the aforesaid court to the said H. K. P., J, P. M. and G. E. B., who thereupon quahfied according to law and became and ever since have been the executors of said will and estate. IV. Thereafter and before the commencement of this action, H. K. P., J. P. M. and G. E. B., as executors of said will of W. K. P., deceased, by an instrument in writing, assigned, transferred and set over unto the plaintiff all the right, title and interest of W. K. P., deceased, and in and to the judgment and claim hereinbefore mentioned ; and the plaintiff is now the owner and holder thereof, and holds said judgment and claim as sur- viving partner, residuary legatee and as assignee from the said executors. V. That said judgment was docketed in the office of the clerk of the city and county of on , 19 , the same day on which it was recovered, and more than ten years have elapsed since said judgment was recovered and docketed. Wherefore [demand for money judgment]. {Signature and office address of attorney and verification.] Form No. 519 Assignee of Judgment by Confession ' I. That on the day of , 19 , at , in the county of , and State of " , in the Supreme Court of the said State, one H. W. M. recovered a judgment which was duly given by said court against the defendant, upon the confession of said defendant duly made according to law, for the sum of $ II. That the judgment roll therein was duly filed and judg- ment for the above sum duly docketed in the office of the clerk ^ From Mandeville v. Reynolds, 68 N. Y. 528. The answer in this case set up satisfaction of record. Under this complaint it was held that evidence could be introduced showing that the satisfaction of record had been procured by collusion and imposition. Complaints 793 Judgments of county, on the said day of , 19 , at 4:30 o'clock, p. m. III. That thereafter the said H. W. M. duly assigned said judgment to this plaintiff of which the defendant had due no- tice, and that the plaintiff is now the lawful owner and holder thereof. IV. That no part thereof has been paid. Wherefore [demand for money judgment]. Form No. 520 Judgment of Another State; Defendant Whose Name Has Been Stricken Out After General Appearance ^ I. That on or about the day of , 19 , W. H. V. duly commenced an action in the Circuit Court of the State of Florida for the Judicial Circuit in and for the county of in said State, which said court is a court of general jurisdiction duly created by the laws of said State, against one Edwin W. P. [under the name E. W. P.] and the above-named J. M. K. by process of subpoena duly issued in said action, which was duly served upon the said P. M. K. in said State. II. That thereupon such proceedings were duly had in the said action that the K. & W. Co., a corporation organized un- der the laws of the State of Florida, and C. S. W., above named, were duly added as parties plaintiff therein, and one E. R. G. was duly added as a party defendant therein, and the above- named 0. F. T. duly became a party defendant by an order duly madfc in said action, upon his application to join as such therein, and the A. L. & I. Co. duly intervened therein. III. That on or about the day of ,19 , the said 0. F. T. by his solicitors and attorneys duly filed a petition to intervene in said action, and that such proceedings were duly had therein that the said 0. F. T. upon his application duly intervened as and became a party defendant therein. 1 From Washington v. Thomas, 103 App. Div. 423; 92 Supp. 994; in which the appeal was on a motion for a change of venue, which motion was granted. Theretofore a demurrer to this complaint had been overruled. 794 Bradbury's Forms of Pleading Judgments IV. That thereafter and on or about the day of , 19 , the said 0. F. T. by his solicitor and attorney duly filed a petition for permission to withdraw his aforesaid intervention and to have his name stricken out as party in said action, which said petition was as follows: [The petition is here set forth verbatim.] And the aforesaid petition was duly brought on before said court for hearing and determination, and thereupon the said court duly made an order therein as follows, to wit: [Here is set forth an order granting the petition, but without vacating an order previously made making the said 0. F. T. a party defendant.] V. That thereafter and on or about the day of , 19 , the said 0. F. T., by his said solicitor and attorney, duly filed a petition in the said action to have his name stricken out as a party therein. That said petition was as follows, to wit: [Here the petition is set forth verbatim.] That annexed to the foregoing petition were affidavits in support thereof, together with a notice of hearing therein, as follows : [The notice of hearing is set forth verbatim.] VI. That the aforesaid application, by the said O. F. T. to have his name stricken out las a party to said action, was op- posed by the complainants in said action; that said application was duly brought on for hearing and determination before the said court and duly adjudicated adversely to said 0. F. T. by the said court, which duly made its order in said action denjang the said application and refusing the said T. permission to with- draw from the said action and retaining him as a party defend- ant therein. That upon the hearing of said application said T. by his said solicitor and attorney duly applied for an extension of time to plead in said action, whereupon the said court duly made its order allowing him until the March rules to plead to the amended bill therein. VII. That under and pursuant to the laws of the State of Florida and under and in pursuance to the practice and rules of Complaints 795 Judgments the aforesaid court, the aforesaid proceedings on the part of said 0. F. T. in said action have the force and effect of a general appearance therein, and constitute a waiver of service and process therein. VIII. That such proceedings were duly had in the said ac- tion, that on or about the day of , 19 , the plaintiffs recovered a judgment which was duly given by the said court, then and there having jurisdiction of the parties in the said matter of the action against said 0. F. T. and J. M. K. wherein and whereby it was duly ordered, adjudged and decreed that the W. H. B. have and recover of and from the said J. M. K. and 0. F. T., the sum of $ ; that the said, the K. & W. Co., have and recover of and from the said J. M. K. and 0. F. T. the sum of $ , and that the said C. S. W. have and recover of and from the said J. M. K. and 0. F. T., the sum of $ ; and that the said A. L. & I. Co. have and recover of and from the said J. M. K. and 0. F. T., the sum Of $ IX. That the said judgment is wholly unpaid. That there is now due thereon to the plaintiff, the sum of $ , with interest thereon from the day of , 19 . Wherefore [demand for money judgment]. Form No. 521 Judgment of Another State; Another Form • I. That the defendant is a domestic life insurance corpora- tion, created and existing under the laws of the State of , and having its principal office or place of business at No . , street, in the borough of , city of , and for a long time prior thereto, hereinafter mentioned, was such cor- poration doing business as aforesaid, but under the corporate name of the M. R. F. L. A., and the plaintiff is a resident of county in said State. > From Hunter v. Mutual Reserve Life Ins. Co., 118 App. Div. 94; 103 Supp. 70. 796 Bradbury's Forms of Pleading Judgments II. That on or about the day of > 19 , one J. W. C. and J. B. G. commenced an action against said defend- ant in the Superior Court of county in the State of , which said court is a court of record of general' juris- diction, duly created by the laws of said State, by summons, which was duly issued on said date, and thereafter , to wit, on the day of , 19 , was duly served on said defendant, according to law, and such proceedings were thereupon duly had in said action that on or about the Term, 19 , of said Superior Court, the plaintiff herein recovered a judgment, which was duly given by said court against the defendant for the sum of $ , with interest on the sum of $ from , 19 , until paid, at the rate of six per cent per annum, together with the costs of said action, amounting to the sum of $ That thereafter said defendant, M. R. F. L. Association, ap- pealed from said judgment to the Supren.e Court of and such proceedings were thereafter had at the Term, 19 , of said Supreme Court of ; the said appeal was dismissed and thereafter at the Term, 19 , of the said Superior Court of held in county the said former judgment rendered therein at the Term, 19 , was affirmed, and final judgment entered for the sum of $ , with interest on $ from ,19 . III. That by the laws of said State of , interest upon a judgment runs at the rate of six per cent per annum. IV. That thereafter and before the commencement of this action, to wit, on the day of , 19 , the said J. W. C. and J. B. G., the plaintiffs in said judgment, duly transferred and assigned the same for value, by written instru- ment under seal, to W, R. H., the plaintiff herein. V. That payment of said judgment was demanded of the defendant by the plaintiff herein prior to the commencement of this action, but no part has been paid. Wherefore [demand for money judgment]. Complaints 797 Judgments Form No. 522 Judgment of Another State ; Another Form ^ The following question in difference between G. W. G., the plaintiff above named, a person of full age and a citizen of .the State of , and the M. R. L. I. Co., the defendant above named, a domestic corporation, is hereby submitted to the Ap- pellate Division of the Supreme Court of the State of , in and for the First Judicial Department, to wit : Whether the said G. W. W. is entitled to recover judgment against the said M. R. L. Co. for the sum of $ , with interest thereon from the day of , 19 , and for the further sum of $ , with interest thereon from the day of , 19 , or any part thereof, together with costs. The following case is agreed upon by said parties, (Containing a statement of the facts upon which the said controversy hereby submitted depends: I. The M. R. F. L. Association was at all the times herein named, prior to the day of ,19 , a domestic corporation organized for and transacting the business of life insurance upon the co-operative or assessment plan under the laws of the State of , originally incorporated on 19 , under Chapter 267 of the laws of 1875, and reincorporated on , 19 , under Chapter 175 of the laws of 1883 of the State of , pursuant to the provisions of said last-men- tioned act; and on the day of , 19 , the said M. R. F. L. Association duly amended its charter and reincor- porated as a mutual life insurance company, under the name of the M. R. L. I. Co., under and pursuant to and in compliance with the terms and provisions of Section 52 of the Insurance Law of the State of , being Section 52 of Chapter 690 of the laws of 1892, as amended by Chapter 725 of the laws of 1 From Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485. This was an agreed statement of facts which with slight change in the verbiage Qould be used as a complaint. 798 Bradbury's Forms of Pleading Judgments 1893, and by Chapter 722 of the laws of 1901, of the State of II. In the year 1883 the following statute, which had been theretofore duly adopted by the legislature of the State of , took effect and was then and thereafter in force, namely : Chapter 29, Vol. II, Code of (1883). "Sec. 3062. Secretary of State to Issue Licenses; Conditions. "The Secretary of State may issue licenses to do insurance business, but before the issue of any license the applicant there- for shall : " (1) Appoint a general agent, who shall be a citizen and resident of this State, and file a certificate of such appoint- ment, under the seal of the appellant, together with a written acceptance thereof by such appointee with the Secretary of State, and copies of such certificate of appointment, and of such acceptance, certified by the said Secretary, shall be re- ceived as sufficient evidence of such appointment and accept- ance before any court in this State, and such certificate shall contain a stipulation agreeing that so long as there may be any liability on the part of the applicant, under any contract en- tered into in pursuance of any law concerning insurance, any legal process affecting the applicant may be served in his ab- sence upon such general agent, or upon the Secretary of State, and when so served, shall have the same effect as if served per- sonally on such applicant in this State: Provided, when such service is made upon the Secretary of State, it shall be his duty to transmit at once a copy of the process to the home office of the Company." III. Prior to the day of , 19 , the said M. R. F. Association had duly complied with Section 3062 of the Code of , above set forth, and was duly admitted to transact business in said State, and on that day made a cer- tain contract of insurance with, and on the life of, said G. W. W., a citizen of , and issued its certain certificate of piembership or policy of insurance as evidence thereof, Complaints 799 Judgments IV. On , 19 , a statute was duly adopted by the legislature of the State of and took effect, and was then and thereafter in force, wherein and whereby a new de- partment of the state government of the State of was created, to be known as the Insurance Department of said State, and a new office, namely, that of Insurance Commissioner of said State, was created, and the supervision and control of in- surance companies, domestic and foreign, and the regulation of the transaction of the business of insurance in the State of was thereby transferred to said Department, and the act of 1883, referred to in paragraph II hereof was repealed. And in and by said act of March 6th, 1899, it was provided as follows : "Sec. 16. When legal process is served upon him (meaning and referring to the Insurance Commissioner of ) as attorney for a foreign company, under the provisions of Section sixty-two, he shall forthwith notify the company of such serv- ice by letter prepaid and directed to its secretary, or, in the case of a foreign country, to its resident manager, if any, in the United States; and shall within 2 days after such service for- ward in the same manner a copy of the process served on him to such secretary or manager, or to such other person as may have been previously designated by the company by written notice filed in the office of the commissioner. As a condition of a valid and effectual service and of the duty of the commis- sioner in the premises, the plaintiff in such process shall pay to the insurance commissioner at the time of service thereof the sum of two dollars, which the said plaintiff shall recover as taxable costs if he prevails in his suit. The insurance commis- sioner shall keep a record of all such proceedings which shall show the day and hour of service." "Sec. 62. No foreign insurance company shall be admitted and authorized to do business until— "First. It shall deposit with the insurance commissioner a certified copy of its charter or deed of settlement and a state- ment of its financial conditions and business, in such form and 800 Bradbury's Forms of Pleading Judgments detail as he may require, signed and sworn to by its president and secretary or other proper officer, and shall pay for the fil- ing of such statement the sum of twenty dollars. "Second. It shall satisfy the insurance commissioner that it is fully and legally organized under the laws of its State or government to do the business it proposes to transact; that it has, if a stock company, a fully paid up and unimpaired capi- tal, exclusive of stockholders' obligations of any description of an amount not less than $ : Provided, that nothing in this subsection shall apply to companies now authorized to do busi- ness in this State; and if a mutual company, other than life, that its net cash assets equal to the capital required of like com- panies on the stock plan ; or that it possesses net cash assets of not less than $ , with also invested assets of not less than $ , and, in each case, with additional contingent assets of not less than J , and that such capital or net assets are well invested and immediately available for the payment of losses in this State; a.nd that it insures on any single hazard a sum no larger than one-tenth of its net assets. "Third. It shall by a duly executed instrument filed in his office constitute and appoint the insurance commissioner, or his successor, its true and lawful attorney, upon whom all law- ful processes in any action or legal proceeding against it may be served, and therein shall agree that any lawful process against it which may be served upon its said attorney shall be of the same force and validity as if served on the company, and the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this com- monwealth. The service of such process shall be made by leav- ing the same in the hand or office of the insurance commissioner. Copies of such instrument, certified by the insurance commis- sioner, shall be deemed sufficient evidence thereof, and service upon such attorney shall be deemed sufficient service upon the principal. " Fourth. It shall appoint as its agent or agents in the State some resident or residents thereof. Complaints 801 Judgments " Fifth. It shall obtain from the insurance commissioner a certificate that it has complied with the laws of the State and is authorized to make contracts of insurance." V. Pursuant to the statute last referred to, and on the day of , 19 , said M. R. F. L. Association duly executed a power of attorney, as follows : "Know All Men by These Presents, that the M. R. F. L. Association of the City of and the State of , desiring to transact business in the State of in con- formity with the laws thereof, does hereby make, constitute and appoint J. R. Y., Insurance Commissioner of the State of , or his successor, its true and lawful attorney in and for said State, upon whom all lawful processes in any action or legal proceeding against it may be served, subject to and in accordance with all the provisions of the laws of the State of now in force, and such other laws as may hereafter be enacted in relation thereto; and said company does hereby expressly agree that any lawful process against it which may be served upon said J. R. Y., Insurance Commissioner, or his suc- cessor, shall be of the same force and validity as if served upon this Company, and this authority shall continue in force and irrevocable so long as any liability of the said company remains outstanding in the said State. "The said Company does hereby make, constitute and ap- point W. M. S., of , in the county of , and State of [and a resident of said State, its General Agent to and for said State], upon whom any lawful process may be served, and said Company does hereby stipulate and agree, that axiy lawful process against it, which may be served upon said General Agent, or his successor, shall be of the same force and effect as if served on said Company in said State. "In Witness Whereof, The said Company has to these ■ presents affixed its corporate seal, and caused the same to be subscribed and attested by its President and Secretary, this the day of a. d., 19 . "[Seal.] ~ "[Signed.]" Vol. 1-51 802 Bradbury's Forms of Pleading Judgments And the same was duly filed with and in the office of the Commissioner of Insurance of the State of VI. After the filing of said power of attorney, but as of , 19 , the Insurance Commissioner of the State of issued to the said M. R. F. L. Association a license, as follows: " No. 37. "State of " Insurance Department, ,19 . "The M. R. F. L. Insurance Company of , having filed an application with this Department to do business in the State of "This is to Certify, That said Company has complied with the ' Insurance Act of 1899,' and is authorized to make in this State contracts of Life Insurance on Assessment Plan. "And said Company having on the day of 19 , paid into this Department the sum of $ , license fee required by law, the said Company is, by these presents, licensed to do the business above named during the Insurance year ending , 19 , subject to all the provisions of the Laws of this State. "Witness, my hand and official seal, the day and date above written. "$ "[Signed.]" VII. On , 19 , the following statute, known as the C. Bill, which had been theretofore duly adopted by the legis- lature of the State of , took effect, and was then and thereafter in force, namely: "Sec. 1. That every telegraph, telephone, express, insurance, steamboat and railroad company incorporated, created and organized under and by virtue of the laws of any State or gov- ernment other than that of , desiring to own property or to carry on business or to exercise any corporate franchise whatsoever in this State, shall become a domestic corporation of the State of by filing in the office of the secretary of Complaints 803 Judgments state a copy of its charter duly authenticated in the manner directed by law for the authentication of statutes of the State or country under the laws of which such company or corpora- tion is chartered and organized, and a copy of its by-laws duly authenticated by the oath of its secretary. Such corporation shall pay therefor to the secretary of state, to be turned over by him into the state treasury, such fees as are or may be re- quired by law. "Sec. 2. That if any such charter or by-laws, or any part thereof, filed in the ofhce of the secretary of state shall be in contravention or violation of the laws of this State, such charter or by-laws or such part thereof as are in conflict with the laws of this State shall be null and void in this State. "Sec. 3. That when any such corporation shall have com- plied with the provisions of this act above set out, it shall there- upon immediately become a corporation of this State and shall enjoy the rights and privileges and be subject to the liability of corporations of this State the same as if such corporation had been originally created by the laws of this State. It may sue and be sued in all the courts of this State and shall be subject to the jurisdiction of the courts of this State as fully as if such corporation were originally created under the laws of the State of "Sec. 4. That on or after the day of , 19 , it shall be unlawful for any such corporation to do business or to attempt to do business in this State without having fully complied with the requirements of this act. "Sec. 5. Any such corporation violating any provision of this act shall forfeit to the State of a penalty of $ for each and every day after the first day of , 19 , on which such corporation shall have contmued to operate or do business without having complied with the requirements of this act. Such penalty shall be recoverable by the treasurer of the State for the benefit of the State of , and it shall be his duty to sue for such forfeitures in the Superior Court of County, as the same accrue. 804 Bradbury's Forms of Pleading Judgments "Sec. 6. No telegraph, telephone, express, insurance, steam- boat or railroad company, which is a foreign corporation of another State doing business in , shall be allowed to sue in the courts of on or after , 19 , until such foreign corporation has become a domestic corporation, either by a special act of the legislature or under the provisions of this act. "Sec. 7. No such foreign corporation, mentioned in the pre- ceding section of this act, shall be allowed to enter into a con- tract in the State ■ of on or after the day of , 19 , nor shall any such contract heretofore or here- after made or attempted to be made and entered into by such corporation in the State of be enforceable by such corporation unless such corporation shall on or before the day of , 19 , become a domestic corporation under and by virtue of the laws of " Sec. 8. Any such corporation violating the provisions of this act by doing any business in this State without first becom- ing a domestic corporation in the manner prescribed by law, shall, in addition to the penalty prescribed in section five of this act, forfeit a penalty of $ for each day any such business shall be done by it in the State of on and after the day of , 19 . The amount so for- feited under the provisions of this section shall be recovered by the treasurer of and it shall be the duty of said state-treasurer to institute suit for same in the Superior Court of "Provided, the business contemplated in this sectioji of this act does not embrace such business as is strictly the business of interstate commerce. "Sec. 9. That all laws and clauses of laws in conflict with the provisions of this act are hereby repealed. "Sec. 10. That this act shall be in force from and after its ratification. "Eatified the day of , a. d., 19 ." YIII. On the day of , 19 , the said M. R. Complaints 805 Judgments i'. L. Association, by its Board of Directors, duly adopted the oUowing preambles and resolutions: "Whereas: The M. R. F. L. Association has been, for a lumber of years last past, and still is, licensed to transact the msiness of life insurance on the assessment plan in the State if ; and " Whereas : By a recent enactment of the Legislature of that State, known as the C. Bill, it is required, among other things, hat insurance corporations created and organized under and by 'irtue of the laws of any State or government other than that if desiring to own property, or to carry on business, or exercise any corporate franchise whatsoever within said State shall become a domestic corporation of the said State )f ; and "Whereas: It is the sense of this Board that it is neither vise nor prudent for this Association to comply with the pro- nsion of said law [the C. Bill]; now therefore be it "Resolved: By the Board of Directors of the M. R. F. L. Association that it does hereby withdraw from the State of , and shall forthwith cease the transaction of business therein; that the services of all agents, general or otherwise, in ;he employ of said Association, and of all local treasurers and jollectors within said State of , be, and the same hereby ire, dispensed with and their employment terminated; and be t further "Resolved: That the appointments, at any time made, of W. M. S., and of J. R. Y. as Insurance Commissioner, as the ;rue and lawful attorneys of said Association upon whom law- ■ul processes in any action or legal proceeding against said ^sociation might be served be, and the same hereby are, can- !eled, revoked and annuled." And on the day of , 19 , duly certified and luthenticated copies of the same were filed with and in the office of the Hon. J. R. Y., then Insurance Commissioner of the ?tate of IX. After the adoption of the said preambles and resolutions 806 Bradbury's Forms of Pleading Judgments ' on the day of , 19 , neither the said M. R. F. L. Association nor the M. R. L. Insurance Company has made any contract of life insurance in the State of , nor has either said association or said company done or transacted any business in said State, and on and after said date, to wit, , 19 , the said M. R. F. L. Association withdrew each and all of its agents and agencies which it had theretofore had in said State of , and closed each and all of the offices which it had theretofore had therein, and since the said day of , 19 , neither the said M. R. F. L. Association nor the M. R. L. Insurance Company has at any time had any agent or agency in the said State, nor any office or offices therein, but since said date, to wit, the day of , 19 , the said Asso- ciation and the said company have received premiums, dues and assessments at the home office of said / ssociation or said company in the city of , where the same were payable, transmitted to it only by mail from the certificate or policy holders of said M. R. F. L. Association in , who became such prior to the day of j 19 , and the said association and said company have, at the city of , issued receipts therefor and transmitted such receipts only by mail from said city of to such policy holders at their addresses in the State of , and the said Association and said company have since the said day of , 19 , from time to time paid and adjusted death losses accruing on policies issued to and held by citizens of the State of prior to the day of , 19 , only at its home office in the State of through the mails. X. At all the times mentioned herein the Superior Court of county in the State of was a court of general jurisdiction duly created by the laws of said State. XI. On the day of , 19 , a summons was issued out of said Superior Court for the county of , State of , at the instance and in favor of G. W. W., resident and citizen of the said county of , in the State of , as follows: Complaints 807 Judgments Form No, 523 Action Against a Corporation on a Judgment of a Court of a Foreign State ' The plaintiff by his attorney, E. F., complaining of the de- fendant, alleges and respectfully shows to the court : I. That the plaintiff is a resident of the State of New York; and that the defendant is a foreign corporation, duly organized and existing under and by virtue of the laws of the State of New Jersey [or other State]. [Or }s a domestic corporation.] II. That A. B., the plaintiff herein, on or about the day of , 19 , duly commenced an action against the C. D. Company, the defendant herein, in the court, in the State of , which said court is a court of record of general jurisdiction,^ duly created by the laws of said State; that process of said court, consisting of a summons, was duly ' See Johnston v. Mutual Reserve L. Ins. Co., 104 App. Div. 550; 93 Supp. 1052; Same v. Same, 104 App. Div. 544; Wright v. Chapin, 74 Hun, 521; 26 Supp. 825, and cases cited. ^ The judgments of Superior Courts of record of. general jurisdiction are presumed to be valid until the contrary appears, and this presumption applies to the question of the jurisdiction over the parties following from the proper service of process. Smith v. Central Trust Co., 154 N. Y. 333; Yates v. Lan- sing, 9 Johns. 396, 437; Galpin v. Page, 18 Wall. 350, 365; Applegate v. Lexing- ton, etc., Mining Co., 117 U. S. 255; Peacock v. Bell, 1 Saund. 73; Johnston v. Mutual Res. L. Ins. Co., 104 App. Div. 550; 93 Supp. 1052. This presumption arises principally as to matters which do not appear in the record, so far as jurisdiction is concerned. Thus, if the record is silent as to the manner in which the process was served on the defendant, a presumption arises that it was properly served, and the person attacking the court's juris- diction on the ground of the non-service, or defective service, of process, in such a case, must show affirmatively that the process was not served in a manner to give the court jurisdiction. Smith v. Central Trust Co., 154 N. Y. 333, and cases cited. If, however, the record itself discloses the manner of the service of the process and from this it appears affirmatively that the court did not acquire jurisdiction, the presumption is destroyed, the same as it would be by other affirmative proof of defective or non-service of process. Galpin v. Page, 18 Wall. 350, 365; Applegate v. Lexington, etc.. Mining Co., 808 Bradbury's Forms of Pleading Judgments issued in said action, on the day of j 19 » against said defendant, the C. D. Company, and said process was duly and personally served on the said defendant, the CD. Company, within the State of , on or about the day of , 19 [or said defendant, the C. D. Company, duly appeared in said action by its attorney, G. H., on or about the day of , 19 ]. [// the defendant appeared and defended the case add\: and the defendant, the CD. Company, duly appeared in said action and defended the same. That such proceedings were thereupon and thereafter duly had in such action that on or about the day of , 19 , a judgment was duly given, made, filed and entered therein, in favor of A. B., the plaintiff in this action, and against the C D. Company, the defendant in this action, for the sum of dollars, which said judgment was duly filed, en- tered and docketed in the office of the clerk of said court, in the county of , in the State of , on the day of , 19 , and no part of said judgment has been paid. Wherefore the plaintiff demands judgment against the de- 117 U. S. 255; Johnston v. Mutual Res. L. Ins. Co., 104 App. Div. 550; 93 Supp. 1052. An attempt has been made in some jurisdictions to draw a distinction be- tween the' presumption arising in favor of judgments against corporations which are foreign to the State where the judgments are rendered, and judg- ments against nonresident natural persons. The argument is based on the rule in the Federal courts (see Mutual Lite Ins. Co. v. Spratley, 172 U. S. 602, and cases therein reviewed) and in some of the state tribunals, that jurisdic- tion over a foreign corporation cannot be acquired unless it is doing business in the State where the action is brought (Earle v. Chesapeake & O. R. Co., 127 Fed. Rep. 235; Central Grain & Stock Exchange v. Board of Trade, 125 Fed. Rep. 463) and that therefore the fact that the corporation was doing business in such State when the judgment was rendered, is a jurisdictional fact which must either appear affirmatively in a subsequent action on the judgment, or that the fact that it was not doing business may be set up by way of affirm- ative defense by the defendant. Whatever authority there may be in sup- port of such a doctrine seems to have been overthrown by the later decisions, at least in New York. Johnston v. Mutual Res. L. Ins. Co., 104 App. Div. 550; 93 Supp. 1052. Complaints §09 Judgments fendant for the sum of dollars, with interest from the day of , 19 , with the costs of this action. E. F., Attorney for Plaintiff, No. Street, New York City. [Add verification in statutory form.] Form No. 524 Action on Judgment of Another State Awarding Alimony * I. That the plaintiff, whose maiden name was M. G. W., was lawfully married to the defendant on the day of , 19 , at the city of , in the State of , by the Rev. S. M. S.; and that thereafter plaintiff and defend- ant remained inhabitants of the State of , living to- gether as husband and wife, in a;foresaid, for almost years, and until the defendant deserted the plaintiff and left the State of , at the time and in the manner hereinafter stated. II. That during the period mentioned in the first paragraph of this complaint, and for a long time before his desertion of plaintiff, the said defendant became habitually intemperate, and treated this plaintiff in a cruel and inhuman manner, and repeatedly beat and bruised her, and wholly neglected to pro- vide her with necessary lood and clothing. III. That on or about the day of , 19 , the defendant deserted the plaintiff, and left the said State of , and never thereafter returned to her, and has never ^ From Lynde v. Lynde, 162 N. Y. 405. The defendant in this case had not appeared in the action originally, but did appear personally on a motion subsequently made to amend the decree as to alimony under the authority of a statute in New Jersey where the decree was entered. It was held that while the original decree was not enforceable against the defendant because of lack of jurisdiction (the service of the summons not having been personal in New Jersey) yet his appearance on the motion for alimony made the decree binding upon him. It was also held that the provision in the decree for the appoint- ment of a receiver, etc., could not be enforced in New York, but the plaintiff could recover by execution the alimony awarded. 810 Bradbury's Forms of Pleading Judgments since provided or made any attempt to provide for her in any manner or degree. And that thereafter, for- more than years, the said defendant willfully, continually and obstinately deserted the plaintiff, and during all that time wholly neglected to make any provision for her support. IV. That plaintiff had not then, and has not at any time since had, and has not now, any means of support other than by her own exertions. V. That after her abandonment and desertion by the defend- ant, as hereinbefore stated, the plaintiff, while still a resident of the State of , commenced a suit in the court of chan- cery of , and filed a petition in said court for an abso- lute divorce and for alimony, on the day of , 19 , a copy of which is set forth on pages *1, *2 and *3 of the case on appeal hereinafter described, which is hereto annexed and marked Exhibit "A." VI. That process was thereupon duly issued out of the said court, directed to the defendant in due form of law, requiring the defendant to appear and answer said petition, and that said process was .issued and returned according to law and the rules of said court. That, as the defendant could not be found within the State of , an order for the publication of the said process and for the service thereof by publication and mailing was duly made by the said court according to the laws of the said State and the rules and practice of said court, and that notice thereof was duly pubhshed and mailed according to the said laws and rules and practice. VII. That by the laws of the State of and the rules and practice of the said court, the said court had full power and jurisdiction thereupon, and upon showing the proper facts to its satisfaction, to grant and make a decree of divorce in said cause, and therein and thereby to reserve the question of alimony for decision upon a future application therefor; and that such is the uual course and practice of said court in such cases. VIII. That the defendant having made default in answering the said petition, an order was thereupon and on the Complaints 811 Judgments day of , 19 , duly made, referring said cause to a special master to take the necessary proofs therein. That thereupon the special master named in said order pro- ceeded to take proof of the facts alleged in the petition and did take proof thereof, and on or about , 19 , filed his report. IX. That thereafter, and on or about the day of ,19 , a decree was duly made, entered and enrolled in said suit by said court of chancery, a copy of which is set forth on pages No. *3 and No. *4 of Exhibit "A," hereto an- nexed. And plaintiff alleges that the said court had jurisdic- tion of the subject-matter of said suit and of the parties hereto, and had power to make said decree as stated in paragraph VII hereof, and that all proceedings in said suit were regular and in due form of law, according to the practice of the said court, except for the inadvertent omission in said decree which is hereinafter set forth, and that said decree has ever since re- mained and still remains in full force unrevoked, unreversed and unaltered except as hereinafter set forth. X. That, although the aforesaid petition specifically asked for alimony, and this plaintiff, the petitioner therein, repeatedly instructed her then sohcitor to take the necessary measures to secure her right to alimony, yet through the inadvertence of her said solicitor, and without the knowledge of this plaintiff, the aforesaid decree was entered, making no provision touching alimony, or reserving the consideration and allowance thereof for hearing upon a future application to be made on her behalf, all of which more fully appears by the petition and affidavits thereafter filed in said suit, which are set forth on pages *5-16 of the annexed Exhibit "A" and hereinafter more fully de- scribed. XL That thereafter, and during the year 19 , the defend- ant's father died, leaving a vast estate, and that his will was probated and recorded in the surrogate's office of county, , on or about , 19 . That under said will the defendant, as one of two residuary legatees, inherited 812 Bradbury's Forms ol' Pleading Judgments from his said father, as his share of his said estate, over $ , and that defendant has been for about years past, and now is, in possession of his said share of said estate. XII. That thereafter, and on or about the day of ) 19 , and immediately after learning the facts set forth in paragraphs X and XI of this complaint, plaintiff duly filed a petition and affidavits in said court of chancery in the aforesaid cause, setting forth the premises and praying the said court, among other things, to open the aforesaid decree of , 19 , and amend the same by decreeing that reasonable alimony should be paid by defendant to this plaintiff, the petitioner therein, and for other relief, as more fully appears by said pe- tition and affidavits, copies whereof are set forth on pages *5-16 of the aforesaid case on appeal, the said annexed Exhibit "A." XIII. That thereafter, and on the day of , 19 , an order, a copy of which is set forth on pages 17 and 18 of said Exhibit "A," hereto annexed, was duly made in said cause by the court of chancery aforesaid, directing the defend- ant to appear and show cause, among other things, why the prayer of said petition should not be granted, and prescribing the method of service thereof upon the said defendant. XIV. That certified copies of the last above-mentioned peti- tion, affidavits and order to show cause were duly personally served upon said defendant in accordance with said order, and the rules and practice of the court aforesaid. XV. That thereafter, on the day of > 19 , the defendant duly appeared in said action by Mr. J. H. P., his attorney and solicitor, thereunto by him duly authorized, and then and thereafter strenuously opposed the said application of the petitioner. Said appearance was a general appearance, and said opposition was based on the alleged falsity of the facts set forth in the last above-mentioned petition. No preten- e was then, or has ever since been, made that there was a mere ap- pearance for any special purpose only, but defendant subjected himself fully and unreservedly to the jurisdiction of the said court for the purpose of litigating the said case upon its merits, Complaints 813 Judgments as appears by Exhibits "B," "C," "D," "E," "F" and "G," which are hereto annexed and hereinafter more fully described. That the defendant through his said solicitor, Mr. J. H. P., then asked for an adjournment of the argument of petitioner's motion on the sole ground that he had not had time to prepare to oppose the same, and that neither then nor at any time thereafter was any suggestion or pretense made that the ap- pearance on behalf of defendant was other than general. That the defendant's solicitor thereafter entered into, and signed^ as solicitor of defendant, two stipulations in said cause adjourn- ing said argument, which are hereto annexed and marked Exhibits "B" and "C." On , 19 , defendant filed in said cause affidavits in opposition to said application on be- half of petitioner, copies of which are hereto annexed, marked Exhibit "D," and at the same time, through his said solicitor, Mr. P., and his counsel, Mr. C. H. V., opposed said application, and thereafter, from time to time, continued said opposition. After hearing the arguments of solicitors and counsel for both parties, the chancellor handed down a decision or memorandum, a copy of which is hereto annexed and marked Exhibit "E." That by consent of both parties no order was entered thereon, but testimony was taken pursuant thereto on behalf of both parties, a copy of which and the proceedings relating thereto is set forth on pages *19 to *46 of Exhibit "A," hereto annexed. That the notices, copies of which are set forth on pages *30 and *40 of said Exhibit "A," were signed and indorsed by said P. as solicitor of defendant in said cause, and served on the so- licitor's petitioner therein, Mr. W., copies whereof, showing the indorsements, are hereto annexed and marked Exhibits "F" and "G." Thereafter, on , 19 , the evidence and proofs taken on behalf of both parties in said suit were submitted to the chancellor of , and the motion to amend the decree aforesaid was fully reargued on behalf of both parties therein. XVI. That thereafter, and on or about ,19 , an order, a copy of which is set forth on pages *53 and *55 of Ex- 814 Bradbury's Forms of Pleading Judgments hibit "A," hereto annexed, was duly made and filed in said cause, amending the aforesaid decree therein of j 19 , by adding thereto a clause giving to the petitioner, the plaintiff herein, the right to apply to said court at any time thereafter at the foot of said decree for reasonable alimony, and reserving to the said court the power to dispose of said application when it should arise. All of which more fully appears by said copy of said order on pages *53 and *55 of said Exhibit "A," hereto annexed. XVII. That said defendant on the day of , 19 , appealed from the whole and every part of the order last above mentioned to the court of errors and appeals in the last resort in all causes, and duly filed a notice of appeal, a copy of which is set forth on pages *55 and *56 of said Exhibit "A," and served same on petitioner's solicitor, and thereafter filed his petition of appeal in said court of errors and made a deposit of $ as security for costs on appeal as required by the laws of said State and the rules and practice of said court, and duly filed his printed case on appeal, all of which more fully appears by a copy of said case on appeal, hereto annexed and marked Exhibit "A." And defendant through his duly authorized solicitor aforesaid, served notice of argument of said appeal, a copy whereof is hereto annexed marked Exhibit "H," and brought the said appeal on for hearing before the said court of errors and appeals at the Term, 19 . And the said court having duly considered the questions brought up by said appeal, thereafter, and on the day of , 19 , duly made ap order in all things affirming the order of the court of chancery appealed from, with costs, and remitting the record to the said court of chancery, as more fully appears by the remittitur, a copy whereof is hereto annexed marked Exhibit "K." XVIII. Plaintiff further alleges that on , 19 , im- mediately after the making of the order mentioned in para- graph XVI of this complaint, due notice of a motion, for a Complaints 815 Judgments reference to ascertain and report whether ahmony should be allowed to said petitioner, this plaintiff, and if so, how much, was duly served on said solicitor of said defendant. Said notice of motion, a copy of which is hereto annexeil marked Exhibit "L," was returnable on the day of , 19 , and on said day the argument of said motion was adjourned one week at the request of defendant's said so- licitor. Thereafter and between the date of service of said notice and the argument of said motion, the defendant appealed from the last above-mentioned order of the court of chancery as set forth in paragraph XVII of this complaint, and thereafter said mo- tion was fully argued on behalf of both parties, and decision thereon was reserved until after the disposition of the aforesaid appeal by the said court of errors and appeals. That thereafter and after the aforesaid decision and order of the said court of errors and appeals, due notice of a renewal of said appUcation for a reference was duly served upon the so- Ucitor of said defendant, and thereupon an order was duly made and entered in the aforesaid cause in said court of chancery, a copy of which order is hereto annexed and marked Exhibit "M." That thereupon the special master named in gaid order issued a summons to defendant to appear before him, which was duly served on defendant's soUcitor, and said special master then proceeded in due course to take proof of the facts thereby re- ferred to him, and alleged in the petition of petitioner therein, this plaintiff, which petition is described in paragraph XII of this complaint, and the said special master did take proof thereof, and on or about the day of , 19 , filed hiE report, a copy of which is hereto annexed, marked Ex- hibit " N," and a rule nisi to confirm the same was on said 19 , duly entered in said cause and duly served on defendant according to the rules and practice of said court of chancery. A copy of said rule is hereto annexed and marked Exhibit "0." XXIX. That thereafter, and on or about the day of , 19 , a final decree was duly made and entered in 816 Bradbury's Forms of Pleading Judgments said suit by the said court of chancery, a copy of which is hereto annexed and marked Exhibit "P;" and said decree was there- after duly enrolled ; and the plaintiff alleges that the said court of chancery had jurisdiction of the person of the said defendant, and of the said subject-matter of said suit, and that all pro- ceedings therein were regular and in due form of law, according to the practice of the said court, and that said decree has ever since remained and still remains in full force, unreversed, un- revoked and unaltered, and that no part of the sum therein and thereby directed to be paid by defendant to plaintiff has been paid, but the same and every part thereof is now due and owing to plaintiff herein. XX. And plaintiff further alleges that according to the laws of the State of , and the rules and practice of the courts thereof, the said decree is valid and effectual in said State as a personal judgment against the said defendant to bind his property within said State by process of execution or otherwise, and to compel the said defendant to comply with the several other provisions thereof. XXI. Plaintiff further alleges on information and belief that the defendant has since the making of the decree of divorce mentioned in paragraph IX of this complaint, and since the filing of the petition mentioned in paragraph XII of this com- plaint, and acting upon the theory of the validity and binding force of said decree, and of the jurisdiction of the said court of chancery to make the same, some time in the month of , 19 , married a woman whose name is unknown to this plain- tiff, with whoiTi,he is now living as his wife at , in the county of and State of , and defendant claims to have been justified in contracting and entering into said married relation by virtue of the decree aforesaid. XXII. Plaintiff further alleges that on the day of , 19 , a certified copy of the aforesaid decree of , 19 , Exhibit "P," hereto annexed, together with the taxed bill of costs of the petitioner therein and a written demand for compliance by said defendant with the terms of Complaints 817 Judgments the aforesaid decree were duly personally served upon the said defendant, and the said defendant then refused to comply therewith, and has since wholly refused to comply with the terms of said decree in any respect, and has wholly failed to pay the amount of alimony directed and adjudged to be paid by the said decree or the costs of said suit, which were duly taxed and adjusted and amounted to the sum of $ , or the counsel fee of $ , or any part thereof, and that there is now due and unpaid and owing by the defendant to the plaintiff, accord- ing to the terms of the said decree, alimony at the rate of $ per week from the day of , 19 , to the day of , 19 ) amounting to the sum of $ , with interest thereon from the day of , 19 , and the said costs and counsel fee, amounting in all to the sum of $ , with interest from said day of , 19 , and also the sum of $ per week from the day of , 19 , payable at the expiration of each and every week thereafter up to the present time, with interest on each of said weekly payments from the days when they sev- erally fell due. XXIII. That no execution was issued out of the said court of chancery to enforce the payment of the said several sums, because so far as plaintiff was able to ascertain, with due dili- gence, or has any information sufhcient to form a behef, the said defendant had not and has not any property in the said State of subject to execution. XXIV. That on said day of , 19 , there was duly personally served upon the said defendant a notice of motion to be made in the said suit in the said court of chancery for the appointment of a receiver of his property, and for other relief, a copy of which notice, with proof of service thereof, is hereto annexed and marked Exhibit "Q," and that the said notice was thereafter duly posted ui the clerk's office of the court of chancery in the city of and State of , according to the laws of the State of and the rules and practice of the said court. Vol, 1—52 818 Bradbury's Forms of Pleading Judgments That thereafter, on the day of ; 19 , pur- suant to the said notice, an order was duly madef entered and filed in said cause, a copy of which is hereto annexed, marked Exhibit "R," appointing a receiver of the property of the said defendant C. W. L., and directing that an injunction issue against him, as therein more fully appears. XXV. That it has been and will be practically impossible for the said receiver to obtain possession of any property or as- sets of said defendant in the State of XXVI. That each and every one of the papers hereinabove mentioned and described, copies of which are hereto annexed, are hereby referred to and made a part of this complaint as if herein set forth in full. Wherefore plaintiff demands judgment against the defend- ant as follows: I. That the aforesaid decree and order of the court of chancery of of ) 19 , and , 19 , respectively^ may be enforced against the defendant with like force and effect as if the same were a judgment of this court, and that plaintiff may have all the rights and remedies for the enforcement thereof provided by the laws of the State of and the Constitution of the United States, and the rules and practice of this court in such cases. II. That plaintiff may have judgment for the sum of $ alimony, counsel fee and costs due under the said 'decree of the day of , 19 , together with interest thereon from that date, besides the costs and disbursements of this ac- tion. III. That permanent alimony may be awarded and adjudged to be paid to the plaintiff by the defendant from the day of , 19 , continuously, at the rate of $ a week in accordance with the terms of the aforesaid decree of , 19 , together with interest upon each weekly pay- ment from the time the same became due, and that defendant be required to give security for the payment of the aforesaid sum of $ Complaints 819 Judgments IV. That a receiver be appointed herein of the real and per- sonal property of the defendant ancillary to the receiver ap- pointed by the court of chancerj'-, that defendant's property be sequestrated, and that defendant be enjoined during the pendency of this suit, and thereafter, so far as necessary, from assigning, transferring or otherwise disposing of any of his real or personal property except subject to the order of this court. V. That plaintiff have such further or other order, judgment or relief as to the court shall seem equitable and just. Form No. 525 Action on Judgment of United States Court After Removal of Action From State Coiirt by Assignee of Judgment ^ I. That heretofore, to wit, on the day of , 19 , at the city of , in the State of , in the Circuit Court of the United States for the District of , then and there hel I, the Exchange and Deposit Bank of , a corporation existing under the laws of the State of , and having its principal office at the city of aforesaid, recovered a judgment which was duly given by the .said Circuit Court of the United States, then and there having jurisdiction of the parties and the subject-matter of the action against the defendant, then being a citizen of the State of , for $ and costs of suit, in an action wherein the said the Exchange and Deposit Bank of was plaintiff, and the defendant herein was defendant, and was afterwards upon his application duly removed thence into the said Circuit Court of the United States. II. That after the rendition of such judgment, to wit, on or about the day of , 19 , the said the Exchange and Deposit Bank of , duly assigned and transferred said judgment .to this plaintiff. III. That the said judgment is wholl y unpaid, and there is 1 From Baxter v. Drake, 85 N. Y. 502. 820 Bradbury's Forms of Pleading Judgments now due thereon from the said defendant to this plaintiff, the sum of $ , with interest on such sum from the day of , 19 . Wherefore [demand for money judgment]. Form No. 526 Action to Set Aside Judgment in Partition ' I. That I. I. T. died in 19 , leaving two children, E. I. T. and J. E. L., and that J. E. L. died in 19 , leaving two children, F. B. S. and B. E. D.; said F. being this plaintiff, and her uncle E. and sister B. being defendants; that I. acquired the real estate hereinafter mentioned between the years 19 and 19 , inclusive, and died seized thereof and of a large amount of per- sonal property, devising and bequeathing the same, except a small amount of personal property, to his said children, E. and J., in equal shares; that at the time of I.'s death and for many years immediately preceding, said I. and his children E. and J.'s children, F. and B., lived together as one household at I.'s residence in the city of and so continued to live after I.'s death till J.'s death in 19 ; that after I.'s death in 19 , his son E. managed the real estate and was the business man having the confidence of his sister J. ; that after the death of J., in 19 , E., F. and B. continued to live together ^ntil B. married in 19 , after which F. and E. lived together till some time in 19 , when F. left the old homestead to live elsewhere. ' II. That from the time of the death of J. in 19 , her daugh- ter F. was unable to ascertain what had become of her mother's personal estate, hef uncle E. saying there was nothing for her, F., nor was she able to learn what disposition had been made of her mother's one-half interest in the real estate, said E. who continued to manage the real estate as well as the personal property being very parsimonious and miserly in his treatment of said F., this plaintiff; that the relations between the plaintiff ' From Schwaman v. Truax, 179 N. Y. 36; in which this complaint was sus- tained on demurrer in the Court of Appeals, reversing a judgment sustain- ing a demurrer thereto. Complaints 821 Judgments and E. became so strained and unbearable after her mother's death that finally in 19 plaintiff left her uncle without having been able to ascertain what had become of her mother's prop- erty, real or personal, E. being in control thereof and fully able to give plaintiff information in regard thereto. III. That plaintiff in , 19 , after leaving her old home, began an action of partition under the advice of her at- torney that it was possible that J., the mother of plaintiff, had in some manner placed one-half of her property in trust for the plaintiff's benefit though the plaintiff was not receiving any income from the personal estate and not receiving her full share of the income from the real estate, assuming that her mother had divided her property equally between her two children, this plaintiff and the defendant B., and that if such a trust ex- isted the partition suit would develop that fact and plaintiff would learn something of what had become of her mother's property. IV. That after the commencement of the partition suit, plaintiff learned of the execution by her mother of certain transfers of her personal estate, one made in , 19 , and another in , 19 , about a week before her death^ to the defendant B., and of a power of attorney executed by B. to her uncle, the defendant E., and other facts in relation thereto which led plaintiff to beheve that said E. and B. had defrauded J. of her personal estate and this plaintiff of a one-half interest therein; that upon acquiring this information plaintiff made application to the surrogate of county, , 19 , for the appointment of an administrator of her mother's estate, alleging in her petition that her mother's estate was but nominal exclusive of her share in the rents of a one-half interest in the real estate in devised to her by her father, I. I. T., which rents this plaintiff was informed and believed were col- lected and retained by said E. and only obtainable by a suit therefor and exclusive of certain bonds, mortgages and moneys in bank belonging to said J. in her lifetime, the possession, custody and legal title to which were unlawfully obtained from said J. 822 Bradbury's Forms of Pleading Judgments and transferred to her brother, said E., or to her daughter, said B., or to both of them, who still retain possession and control thereof or of the proceeds thereof, the legal title, custody and control whereof could only be obtained by the administrator of the estate of said J. by suit therefor as this plaintiff then be- lieved; that days later said E. filed a petition for the probate of the will of said J., which had been written by him and had been in his possession since the death of J. years before. That said will named said E. and B. as executors and gave J.'s estate in equal shares to this plaintiff and the defendant B., J.'s two daughters. That this plaintiff opposed the granting of letters testamen- tary to said E. and B. on the ground that the chief need of an executor or administrator was to bring suit against E. and B. to recover J.'s personal estate unlawfully obtained and held by them and that they were dishonest in seeking letters, the only purpose of which would be to thwart and delay plaintiff in obtaining her share iu her mother's estate; the surrogate held that charges of fraud were no proof of fraud and issued the letters, the decree being made , 19 ; that plain- tiff appealed from so much of the decree as awarded letters testamentary to said E. and B.; meanwhile issue had been joined in the partition suit and at the term, 19 , a referee was appointed to take proof of title and state the ac- counts. That pending the appeal of the surrogate's decree proceed- ings before the referee in the partition action were suspended by consent of the attorneys; the Appellate Division affirmed the surrogate's decree and denied a motion for leave to go to the Court of Appeals, the latter order being made , 19 . That thereafter a partition suit was proceeded with resulting in an interlocutory judgment , 19 , settling E.'s ac- count for the rents and ordering a sale, said account having shown a balance of $ of plaintiff's rents in said E.'s hands, and that $ had been expended in her support CoMPLAmTS 823 Judgments and advances to her from , 19 , to , 19 , which balance E. paid over. V. That plaintiff now firmly believing that she had been de- ,. frauded of her share of her mother's personal estate and having no other property than her one-fourth share in the real estate decreed to be sold in the partition suit and her interest in her mother's personal estate which was in the possession of said E. and B. and wrongfully withheld by them from her, commenced an action against said E. and B. in which she asked to have the instruments by which B. held title to her mother's personal estate set aside so far as they were in the way of this plaintiff obtaining her one-half interest in her mother's personal estate and for an accounting by E. and B. of said J.'s personal estate and for judgment against them for her one-half interest in J.'s personal estate as if such instruments had not been executed, E. and B. claiming that those instruments had transferred to B. her mother's entire personal estate, the entire estate of J., E. and F. and B., both real and personal, being the real and per- sonal estate derived from the said 1. 1. T. who died in 19 , and its increase, plaintiff setting up her ineffectual attempt to have an administrator appointed to bring such suit, this suit being commenced , 19 , and on the same day plaintiff made a motion in the partition suit to have the sale of the real estate therein postponed, plaintiff in her moving papers showing that she had commenced said action to vacate said instruments and for an accounting; that besides said cause of action she had no other property than her one-fourth interest in the real estate to be sold and that in order to protect her interest in said real estate it was necessary that she should be able to bid against E. and B. who were very friendly and whose joint interest em- braced three-fourths of the said real estate. Said motion was ' denied, the court holding that the title to the real estate being undisputed its sale could not be suspended while plaintiff was trying to establish her right to other property; that plaintiff appealed from said order which was made ,19 , and moved for a stay pending the appeal, which was denied , 824 Bradbury's Forms of Pleading Judgments 19 , on a preliminary objection, and said sale took place , 19 , the first trial term after plaintiff's action to recover the personal property was commenced not being held till the fol- lowing and the defendants having demurrer to the complaint. VI. That having been defrauded of her personal property by E. and B., who then had possession thereof, plaintiff was unable to protect her interest in said real estate at the sale thereof , 19 , and the whole thereof was struck down to said B. for $ , said B. and E. having agreed, as plaintiff beheves, to purchase the same in the name of said B.; that the parcel of said real estate known as the street stores was struck down to said B. for $ , this plaintiff being unable to bid higher than $ therefor, being unable tb take care of a higher bid because of said defendants E. and B. having wrongfully obtained her share of her mother's estate, the pos- session of which by plaintiff would have enabled her to bid much more for said parcel, plaintiff at the time being willing to bid $ for said parcel and believing the same to be worth $ , having often heard her grandfather, said I., state that it paid a fair return on an investment of that amount, but plaintiff was unable to bid $ , or to protect her in- terest, her inability being due to the unlawful acts of said E. and B. in respect to J.'s property as aforesaid and said E. and B. or said B. being the beneficiary of such inability on plaintiff's part so occasioned by them; that plaintiff, through her attorney, made bids on other parcels of said real estate, but was so ham- pered and distressed for want of the funds so wrongfully with- held by said E. and B. that said property was all bought in by said B. VII. That said sale was confirmed by this court , 19 , and final judgment obtained in said partition suit, on which motion plaintiff moved for a stay pending the trial of her other action, but the court held that it ought not to hold the title in abeyance pending a determination of the issues in that action or, as the court stated, till the plaintiff could get Complaints 825 Judgments rich, notwithstanding that her poverty was due to the alleged wrongdoing of the purchaser. VIII. That in , 19 , the issues in the action against E. and B. were brought to trial and judgment obtained setting aside the transfers of J.'s personal estate to B. and an accounting by E. and B. ordered, which was affirmed by the Appellate Divi- sion, and an accounting thereafter had and report made and final judgment entered in favor of this plaintiff against said E. and B. for$ , 19 . That among the grounds for the decision the court stated, "J.'s will gives her property to the plaintiff and to the defend- ant B. in equal shares; it was duly proved about , 19 , that E. and B., who were named as executors, duly qualified. They then claimed that the instruments of , 19 , and , 19 , transferred to B. all her mother's personal estate and refused the plaintiff any share therein, whereas the plaintiff is entitled to one-half her mother's personal estate after payment of her debts, funeral and testamentary expenses, but has been unable to procure any recognition of her rights, B. being willing to permit her to share therein, but, being under the influence of E., who has held her power of attorney executed ,19 , to manage and control the property as if it were his own, she has felt unable to do so. Since a time prior to his father's death, E. had a great antipathy to the plaintiff which grew into hatred of her before her mother's death, and his desire to injure the plaintiff led hita to set up as operative the instruments of transfer in violation of J.'s confidence in him and her understanding that they were inoperative." That an appeal to the Court of Appeals has been taken from said final judgment and noticed for argument, and that said appeal will be placed on the new calendar about to be made and can be argued when reached; that if said judgment is affirmed and paid, plaintiff will be in the position she should have been in when said real estate was sold in , 19 , and desires that she should have an opportunity to compete with said E. and B. for the purchase thereof when in possession of the means of 826 Bradbury's Forms of Pleading Judgments which they had deprived her to their advantage at the sale in , 19 . IX. That the plaintiff is informed and believes that the title to said real estate still remains in said B.; that she intends to sell or dispose of some of the same, and on the day of , 19 , moved for a suspension of the hen of said judg- ment on said real estate pending said apj^eal to the Court of Appeals in her moving affidavit, stating that she desired to sell said real estate. Plaintiff further says she has never withdrawn from the hands of the referee who made the sale in partition her one-quarter interest in the proceeds of said sale or the costs allowed her and has not recognized said judgment as valid. X. Plaintiff further says that her poverty and the harsh treatment of her by said E. and inability to secure any fair allowance from her mother's estate or information in regard thereto compelled her to resort to the courts for redress of her grievances, that said partition action was commenced as one means of securing such redress, but that it has been used by said E. and B. to still further injure plaintiff and deprive plaintiff of her property by compelling a sale of said real estate while said E. and B. wrongfully withheld from plaintiff her personal property, but for which wrongful withholding plaintiff could have protected herself and her interest on said sale, plaintiff having done all she could to defer said sale, but being unable to persuade the court to postpone a sale because her charges against E. and B. were unproven though the truthfulness of the charges was known to said E. and B. who unconscionably sought through the moans of a sale before the trial of the other action to wrest from the plaintiff her real estate; that if a sale of said real estate is ordered after plaintiff's judgment is affirmed plaintiff will bid $ or upwards for said real estate; that defendants E. and B.'s attorney on the argument of the motion to suspend the lien on appeal stated to the court that said real estate is now worth $ ; that no equities in favor of third parties have intervened, but that the rights between plaintiff, E. and B. while involved in and ascertained by the partition action Complaints 827 Judgments and the suit for an accounting of the mother's estate cannot be completely adjusted and the wrong done plaintiff by E. and B. in her property rights redressed without bringing the results of the two actions together so as to enable the plaintiff with the means given her by the judgment in the one action to pro- tect her real estate wrested from her in the other action in furtherance of the defendant E. and B.'s wrongful acts of which the court was unable at the time of the sale to take cognizance. XI. That the defemlants other than E. and B. are tenants of portions of the said real estate or parties to said partition action, and that a sale thereof subject to their tenancies may be made without injury to this plaintiff, E. or B. XII. The real estate hereinabove mentioned is described as follows : [Insert Description.] XIII. Plaintiff's allegations above made of legal proceedings and various steps therein and the dates thereof are made upon information and belief. Wherefore plaintiff asks judgment directing the sale of the real estate above described to B. E. D. ; 19 , be va- cated and the order confirming the same and the final judgment in said partition action set aside and that a resale thereof be had under the direction of the court by the referee who made the said sale or another referee to be appointed; that an accounting before a referee to be appointed be had by said B. E. D. of the rents and profits of said real estate from the commencement of her ownership under said sale of , 19 , to the date of the resale, upon which accounting the referee shall take account of the expenses and improvements on said real estate so that upon such accounting said B. may be allowed for expenses and improvements and the income of said property for said period ascertained and so that said income may be apportioned between said E., B. and the plaintiff as if said sale of , 19 , had not been made and as if said property had been managed for their benefit and in the same proportions in which they owned said real estate before the sale , 19 , after first deduct- 82J; Bradbury's Forms of Pleading Judgments ing therefrom interest, at a rate to be fixed by the court, on $ , the purchase price to be paid to B., or for such other or further relief in the premises as may be just. Form No. 527 Action to Set Aside Judgment Annulling a Marriage, Alleged to Have Been Procured by Fraud * I. That the plaintiff is a resident of the city of , county of and State of That on the day of , 19 , the plaintiff was married to the defendant herein at the city of , county, by J. C, justice of the peace of the said city of and county of That from that time down to and including the day of , 19 , the plaintiff and the defendant lived and cohabited together as husband and wife. II. The plaintiff further alleges that no issue have been born or begotten between this plaintiff and the said defendant. III. That in and about the year 19 , the defendant [with fraudulent intent and for the purpose of misleading and de- ceiving plaintiff] stated and represented to the plaintiff that his family [meaning the defendant's family] would never rec- ognize a marriage by a justice of the peace, referring to the mar- riage ceremony performed by the said J. C, Esq., which took place at said city of , on said day of , 19 ; that a ceremonial marriage would have to take place before a minister of the Gospel. That the defendant thereupon stated and represented to the plaintiff that it would be neces- sary to have the marriage ceremony theretofore performed by said justice of the peace annulled and set aside; and that, after that had been done, he [defendant] would have a ceremonial marriage performed by a regularly ordained minister of the gospel. IV. That. the defendant [with like fraudulent intent] also stated and represented to the plaintiff at the same time that 1 From Everett v, Everett, 89 App. Div. 619; 86 Supp. 922. Complaints 829 Judgments the proceedings to annul marriage would be merely formal in character; that the plaintiff need not give the same any attention whatever, and that he [defendant] would look after all of the the details thereof. That it would not be necessary for her to peruse any papers which might be served on her; neither would it be necessary for her to engage the services of counsel to repre- sent her in such proceedings. V. That subsequently, as this plaintiff is informed and be- lieves, proceedings were instituted in the Supreme Court of the State of , held in and for the county of , the purpose and object of which were to have the said marriage con- tract between the plaintiff and defendant declared void and the marriage between them annulled. VI. That the plaintiff, relying solely upon the statements and representations so, as aforesaid, made by the defendant, and be- lieving the same in all respects to be true, did not employ counsel to represent her in such proceedings, and paid no attention whatever thereto, which were, as she has subsequently learned, instituted on or about the day of , 19 . VII. That this plaintiff had on said day of , 19 , and has now, a good and substantial defense on the merits to the cause of action set forth in said plaintiff's [now defend- ant's] complaint in the action instituted on said day of , 19 , and to each and every part thereof. That in the year 19 , when plaintiff was about years of age, she went with one W. G. M. to a social gathering, and while there it was proposed in a spirit of fun that a marriage ceremony should be performed; that thereupon the plaintiff "stood up" with said W. G. M., and one of the parties present went through the form of a marriage ceremony; that such cere- mony was a sham ceremony; that whatever the plaintiff and the said M. did they did in the spirit of fun and without the in- tention of becoming married, and the person who performed such ceremony had no authority under the laws of the State of Rhode Island to perform such a ceremony; that the alleged ceremony took place at the c'.ty of Providence, in the State 830 Bradbury's Forms of Pleading Judgments of Rhode Island; that at the time it is alleged to have taken place this plaintiff was a minor and under the age of sixteen years; that within an hour after the ceremony was performed the plaintiff returned to her home in , and nothing further was heard of the alleged marriage until some two months thereafter, when the said M. called on the plaintiff's parents and claimed that the marriage was a valid one; that the said M. urged his claim with such persistency that the plaintiff went to live with him in the city of , , and lived with him for a period of six months, but left him before she reached the age of seventeen years ; that at the time the alleged ceremony is said to have taken place no consent of the parents or guar- dians of the plaintiff to the so-called marriage had been obtained, no license had been procured as required by law and no record of the alleged marriage was ever made in the office of the county clerk of the county where the ceremony is alleged to have taken place. That the alleged marriage between the said M. and this plaintiff was not recognized by the laws of the State of and was null and void. That the defendant herein prior to the marriage between himself and this plaintiff took the steps necessary to ascertain and determine whether there had been a lawful and valid marriage between this plaintiff and the said M. and this plaintiff alleges the fact to be that the de- fendant herein became satisfied that no valid marriage had ever taken place between the plaintiff and the said M. And plaintiff further alleges, upon information and belief, that all of the facts relating to the illegality and invalidity of the so- called marriage of M. were known to this defendant on said day of , 19 . VIII. Upon information and belief, that such proceedings were thereafter had as resulted in defendant's obtaining a judg- ment and decree of the court declaring the marriage contract between the plaintiff and this defendant void, and annulling the said marriage. IX. The plaintiff' is informed and believes that said judgment and decree so obtained, as aforesaid, was entered in the clerk's Complaints 831 Judgments office of the county of on or about the day of , 19 . X. That, immediately upon being advised that the marriage between the defendant and the plaintiff had been annulled, she [plaintiff] demanded of the defendant that a ceremonial marriage be at once performed by a minister of the gospel as he had agreed and promised to do. XI. That the plaintiff and the defendant continued to live together for a period of years, down to and until the day of , 19 . XII. That no ceremonial marriage was ever performed, al- though during the entire period of said years he repeated and reiterated his promises to have the same performed. XIII. That the plaintiff alleges and charges the fact to be that the defendant was guilty of fraud and deceit in the procure- ment of the decree of judgment of this court declaring the mar- riage contract between the plaintiff and the defendant void and, annulling said marriage, and that whatever was done by him in obtaining and procuring the same was the result of the fraud, imposition and deceit practiced by the defendant upon this plaintiff, and was the result of a fraudulent plan, scheme or conspiracy on his part. Wherefore, the plaintiff, by reason of the premises, demands the judgment of this court, as follows : I. That it be adjudged and decreed that the judgment or de- cree of this court dated the day of , 19 , and filed and entered in the oflBce of the clerk of the county of on the day of , 19 , be annulled, and in all re- spects vacated and set aside. II. That it be further adjudged and decreed that the mar- riage contract heretofore made between the plaintiff and the defendant is still binding, and that the marriage between this plaintiff and the defendant is still in full force and effect. _ III. That it be adjudged and decreed that the plaintiff re- cover of the defendant herein the costs and disbursements of this action. 832 Bradbury's Forms of Pleading Judgments IV.' And that the plaintiff have such further and other relief in the premises as may be just and equitable. Form No. 528 Judgment of a Justice of the Peace of a Foreign State ^ [Title of court and names of parties.] The plaintiff, A. B., by his attorney, C. D., complaining of the defendant, The E. F. Company, alleges: I. That the plaintiff is a resident of the State of New York, and the defendant is a foreign corporation duly organized and existing under and by virtue of the laws of the State of II. That at all the times hereinafter mentioned G. H. was a justice of the peace in and for the town of in the county of in the State of , and that said justice resided in the said town, county and State, and by virtue of the laws of the State of , such justice of the peace had power to hold court, issue process, and had jurisdiction to hear, try and determine actions on contract to recover a sum of money only, provided the sum demanded did not exceed the sum of $ [or otherwise state the jurisdiction of the justice so as to include the cause of action in which the judgment was rendered]. III. That on or about the day of ,19 ,C. D., the plaintiff in this action, duly commenced an action against E. F. Company, the defendant in this action, before said justice of the peace in the town of , county of , State of , and that on said day a summons in said action was duly issued by said justice, and said summons was, on the day of , 19 , in the town of , county of , State of , duly and personally served upon the said 1 In pleading a judgment or other determination of a court or officer of special jurisdiction, the facts necessary to confer jurisdiction to render the judgment, must be fully set forth, or every fact necessary to confer jurisdic- tion to render judgment in the action must be recited, or in the alternative, under sec. 532 of the New York Code of Civil Procedure, the judgment or determination may be stated to have been "duly given or made." Friedman V. Metropolitan Steamship Co., 109 App. Div. 600; Werbelovsky v. Michael, 106 App. Div. 138; Frees v. Blyth, 99 App. Div. 541, Complaints §33 Judgments E. F. Company, the defendant named in said summons, and which is also the defendant in this action, and said defendant thereafter appeared in said action by its attorney and defended the same. [// the defendant voluntarily appeared without the ser- vice of the summons, state that fact.] IV. That such proceedings were thereafter duly had in said action that on the day of , 19 , a judgment was duly made and given by said justice in favor of A. B., the plaintiff in this action, who was also the plaintiff in said action, against the E. F. Company, the defendant in that action, which said company is also defendant in this action, for the sum of $ damages with interest, and the sum of $ costs and disbursements, making in all the sum of $ , which said judgment was duly entered and docketed by said justice accordmg to the law and practice of the State of , and no part of said judgment has been paid. Wherefore plaintiff demands judgment against the defend- ant for the sum of $ , with interest from the day of , 19 , with the costs of this action.* CD., Attorney for Plaintiff, No. , street, New York City. [Add verification in statutory form.] ' The foregoing form with such variations as will readily suggest themselves may be used for inferior courts of special or limited jurisdiction. Vol. 1—53 834 Bradbury's Forms of Pleading Arbitration CHAPTER XXIV ARBITRATION FORMS NO. PAGE 530. Form of submission 834 531. Action on arbitration award 836 532. Action to set aside award 837 533. Setting aside arbitration award alleged to have been made through fraudulent inducements to the umpire 841 Form No. 530 Form of Submission ' Supreme Court, county. In the Matter of the Arbitration Be- tween Lulce A. Burke, and Henry Corn under an agreement to arbitrate, Dated , 19 . Agreement made the day of , 19 , between L. A. B., doing business in the city, county and State of , party of the first part, and H. C, of the same place, party of the second part, witnesseth. Whereas, under date of , 19 , the parties hereto entered into a certain contract, whereby the party of the first part agreed, under the direction and to the satisfaction of R. M., architect, to provide all the materials and perform all the work mentioned in the specifications and shown on the drawings pre- pared by the said architect for the mason work of the alterations to the building known as Nos. avenue in the borough of , city; and Whereas controversies have arisen, and still exist, between ' From Matter of Burke, 117 App. Div. 477; 102 Supp. 785. Complaints 835 Arbitration the parties hereto as to what amount, if any, is due the party of the first part from the party of the second part on account of the work performed and materials furnished on said building, whether under said contract or otherwise, and also as to what amount, if any, is due the party of the first part from the party of the second part with regard to the various claims made on behalf of the party of the first part against the party of the second part arising out of the said contract or in connection with the 'alterations on said buildings; and also as to what amount, if any, is due the party of the second part from the party of the first part with regard to the various claims made on behalf of the party of the second part against the party of the first part, arising out of said contract or in connection with the said alterations; and Whereas the parties hereto have agreed to submit all their differences to Hon. D. C. H., as arbitrator; Now therefore, the parties hereto in consideration of the premises, and of one dollar by each to the other in hand paid, the receipt whereof is hereby acknowledged, do agree as follows : I. That the parties hereto do hereby pursuant to Chap. 17, Title 8, of the Code of Civil Procedure submit all and all manner of actions, cause and causes of actions, suits, controversies, claims and demands whatsoever, now pending and existing by and between them, as aforesaid, to the Hon. D. C. H., as arbi- trator, to decide the same with all reasonable dispatch, his de- cision to be final. n. The parties hereto hereby mutually covenant and agree to and with each other, that the award to be made by the said arbitrator shall, in all things, by each of them and by the ex- ecutors, administrators and assigns of each of them, be well and- faithfully kept, observed and performed, and that judg- ment of the Supreme Court shall be entered upon the award which may be made pursuant to the above submission, said judgment to be entered in county; to the end that all matters in controversy in that behalf between them shall be finally concluded. 836 Bradbury's Forms of Pleading Arbitration In \Yitness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written. [Signatures and acknowledgments.] Form No. 531 Action on Arbitration Award ^ I. This plaintiff complains and says that the defendant herein, is indebted to him in the sum of $ , and interest on the same from and after the day of , 19 , upon and by virtue of a certain award made by L. 0., P. A. J. and R. AV., on the day of , 19 , under the hands and seals of the said L. 0., P. A. J. and R. W., and duly attested by a subscribing witness, upon and by virtue of a certain sub- mission before that time made by the parties to this action, to the award, order and determination of the said L. 0., P. A. J. and R. W. of and concerning all and all manner of actions, cause and causes of action, suits, controversies, claims and demands whatsoever then pending, existing or held by and between the said parties: and upon and by virtue of which said reference, the said L. 0., P. A. J. and R. W. had there and then, to wit, on the day of , 19 , awarded that the said defendant should pay the said last mentioned sum of money to the said plaintiff within days after the date of said award, which said award said defendant promised to abide by and perform ; and plaintiff states that after the time mentioned in said award for the payment of said sum of money, plaintiff duly requested payment thereof of defendant, which said defend- ant then and there neglected and refused to comply with. And plaintiff at the same time, offered and tendered to said defend- ant a general release under seal and executed by plaintiff, of all actions, cause and causes of action, suits, controversies, tres- passes, debts, damages, accounts, reckonings and demands whatsoever, for or by reason of any matters, cause or thing ^ From Bumside v. Whitney, 21 N. Y. 148; in which it was held that a com- mon law action could be maintained on the award notwithstanding the power given by statute to enter a judgment directly on tlie award. Complaints §37 Arbitration whatsoever from the beginning of the world to the day of the date of said bond of submission, as by said award required, on payment of the said sum of $ as aforesaid. Wherefore [demand for money judgment]. Form No. 532 Action to Set Aside Award ^ Supreme Court, county. ' -v Eugene E. Hinkle [and others named], Plaintiffs, against Jacob A. Zimmerman, Defendant. The plaintiffs, complaining of the defendant, allege : I. That during the time covered by the matters hereinafter alleged the plaintiffs were and still are copartners, doing busi- ness under the name or designation of the H. I. Co., having duly complied with the statute in said cases made and pro- vided. II. That said plaintiffs and said defendant entered into a written contract, dated , 19 , whereby said plaintiffs contracted to furnish and erect certain structural and orna- mental iron work on the buildings known as and avenue for the sum of $ , and which was to be paid in installments as the work progressed. III. That said contract provided that the said work should be completed on or before , 19 ; but it also provided that if said plaintiffs should be obstructed or delayed by act or neglect, delay or default of the owner or architect, or any con- tractor employed by the owner, that the time fixed for the com- pletion of said work should be extended for a period equivalent to the time lost by any or all of the aforesaid causes. ^ From Hinkle v. Zimmerman, 184 N. Y. 114; in which the plaintiff suc- ceeded. The award was set aside because the arbitrators had not been sworn and the waiver of the oath of the arbitrators was not in writing. 838 Bradbury's Forms of Pleading Arbitration IV. That part of said plaintiffs' contract was the redesign- ing of certain cast iron bases, columns and girders; and this redesigning was made subject to the approval of the building department. V. That after the execution of said contract, said plaintiffs prepared plans for the revising of said bases, columns and girders, but before these were completed or at or about the time of their completion, the said defendant requested said plaintiffs to incorporate in the said revised plans certain altera- tions or modifications in other lines on work [such as the de- fendant's own carpenter work], and with which the said plain- tiffs had nothing whatever to do. The said plaintiffs as a favor to said defendant, consented and allowed their draftsmen to incorporate the additional changes and modifications desired by said defendant and such revised plans were submitted to the building department. VI. That the building department held the said plans for quite some time and insisted upon certain amendments being made as to several points objected to by said department in prior plans for the entire building, and which said prior plans had been prepared and filed by an architect and which objec- tions had no relation to the work said plaintiffs had contracted to perform. In consequence thereof considerable delay was caused, and the delay was further increased by the default of other workmen and contractors employed by the owner or by said defendant and for whom said plaintiffs were not answerable. VII. That on the completion of said plaintiffs' work, the said defendant refused to make them their final contract payment of $ , and claimed that said plaintiffs were liable for damages by reason of the non-completion of the said defend- ant's work, and of the said building within the time that said defendant had agreed to complete it. VIII. That shortly thereafter the said defendant suggested to said plaintiffs the submission of his claim for damages to ar- bitration, and on or about , 19 , the said plaintiffs CoMPLAmfs 839 Arbitration and said defendant signed an agreement of which the following is a copy : ,19 . "In consideration of the sum of one dollar [SI] to hand, the receipt of which is hereby acknowledged, the H. I. Co. and J. A. Z. hereby agree to submit their differences to a board of arbitration, as recited in the contract entered into on the day of , 19 . A decision of the umpire of the arbitra- tion board shall be binding upon both parties." IX. The only provision in the contract mentioned in the said submission to arbitration is found in Article III of said contract, and it relates only to the value of extra work or work omitted, and provides that the value thereof shall be computed by the architect, and then provides as follows : "In case of dissent from such award by either party hereto, the valuation of the work added or omitted shall be referred to three disinterested arbitrators, one to be appointed by each of the parties to this contract and the third by the two thus chosen; the decision of any two of whoin shall be final and binding, and each of the parties hereto shall pay one-half of the expenses of such reference." X. Under the aforesaid arbitration submission the said plain- tiffs named as an arbitrator Mr. E. O., and said defendant named W. J. M. XL That prior to the appearance of any party to the said controversy before the said arbitrators they signed an agree- ment as between themselves, of which the following is a copy: ,19 . "We hereby mutually agree that in case of disagreement be- tween ourselves in regard to the settlement of the account be- tween the H. I. Co. and J. A. Z. to stand by the decision of W. A. C. whom we appoint as umpire in the case. In reference to No. and avenue. "[Signed.]" XII. That thereafter said plaintiffs and said defendant ap- peared before the said two arbitrators and said umpire, who 840 Bradbury's Forms of Pleading Arbitration asked a few ([ucslions of each; and thereafter and on or about , 19 , th(> decision of the said umpire W. A. C. was rendered and served upon said plaintiffs, the same being in the form of a letter, of which the following is a copy: " 19 "Mr. E. 0., St., City. "Dear Sir: "In regard to the arbitration between Mr. J. A. Z. and the H. I. Co. on the building Nos. and avenue, re- ferred to me as umpire, I find that the H. I. Co. shall deduct from the final payment due by Mr. J. A. Z. to the said H. I. Co., the sum of $ " Yours truly, "W. A. C, "Umpire." XIII. On information and belief that the said umpire arbi- trarily and unjustly held that the delay of the building depart- ment in passing upon and allowing the final revised plans of said entire building was a delay for which said plaintiffs were liable; and in consequence thereof the said umpire charged said plaintiffs with the entire amount claimed by said defendant, although the said defendant gave no proof whatever of the amount of said loss. XIV. On information and belief that none of the parties who appeared before the said arbitrators was sworn in any way. XV. On information and belief that neither of said arbitra- tors nor the said umpire took the required statutory oath or any oath to hear and examine faithfully and fairly the matters in controversy and to make a just award according to the best of their understanding. XVI. That said plaintiffs did not know that neither of said arbitrators nor said umpire took the required statutory oath until quite some time after the decision of the said umpire; and Complaints 841 Arbitration that the taking of said required oath was not waived by said plaintiffs by written or verbal consent. XVII. On information and belief that by reason of the facts hereinafter alleged, and the errors in taking the evidence, and of the omissions and irregularities of the said arbitrators in and about the aforesaid arbitration; and by reason the unjust and unconscionable holding by the said umpire that your plaintiffs were chargeable with all of the delay caused by the retention of the plans by the building department and in its approval of the said plans, that the aforesaid award is irregular and void in law and should be set aside. Wherefore, said plaintiffs pray judgment that the said award be set aside as irregular and void and for such other And further relief as to the court may seem just and proper. Form No. 533 Setting Aside Arbitration Award Alleged to Have Been Made Through Fraudulent Inducements to the Umpire ^ I. That the plaintiff is a resident of the borough of city of , and is engaged in business as a commission merchant in the sale of meats and provisions at , borough of , city of II. That the defendant, P. A. Co., limited, of , is a corporation organized and existing under the laws of the king- dom of and having its principal place of business in the United States at No. street, borough of city of III. That the defendant, the H. I, Co., is a corporation or- ganized and existing under the laws of the State of and having its principal place of business at No. street, borough of , city of IV. That on or about the day of , 19 , the defendant, P. A. Co., hmited, of , at the city of ^'rom Maye7TPhoenTxl^'c^24 AppTciv. 241; 108 Supp. 711; in which this complaint was sustained on demurrer. 842 Bradbury's Forms of Pleading! Arbitration issued its certain policy of fire insurance dated on tiiat day, whereby, in consideration of the sum of $ premium to it paid by D. M., the plaintiff, it insured said plaintiff for the term of one year from the day of , 19 , at noon, to the day of j 19 , at noon, against all direct loss or damage by fire, except, as thereinafter provided, to an amount not exceeding $ on his stock of mer- chandise, furniture, fixtures, etc., while contained in, on, or at- tached to the brick buildings with additions and extensions thereto or on and under the sidewalks thereof, situate at being also , borough of , city of That a true copy of said pohcy of fire insurance is hereto at- tached, marked Exhibit "A" and made a part hereof the same as though here set forth at length. ^ V. That the defendant, the H. I. Co., on or about the day of ) 19 , issued its certain policy of fire insurance, dated on that day, whereby, in consideration of the sum of $ premium, to it paid by D. M., the plaintiff, it insured said plaintiff for the term of one year from the day of , 19 , at noon, to the day of ) 19 , at noon, against all direct loss or damage by fire, except as thereinafter provided, to an amount not exceeding $ , on his stock, merchandise, furniture, fixtures, etc., while con- tained in, on, or attached to the brick buildings, with additions and extension thereto or on and under sidewalks thereof situate at Nos. , and Nos. , , borough of , city of . That a true copy of said policy of fire insurance is hereto attached marked Exhibit "B" and made a part hereof the same as though here set forth at length. . VI. That the property owned by the plaintiff at the said address described in and covered by the said policies of fire in- surance was, on the day of , 19 , of the reasonable value of $ / VII. That on the day of , 19 , a fire oc- curred in said and destroyed and injured a large por- tion of the property of the plaintiff described in said policies of Complaints 843 Arbitration fire insurance, and that said fire did not occur from any of the causes excepted in said poUcies or though any fault of the plain- tiff. That by reason of such fire property belonging to the plaintiff and insured by said policies of fire insurance issued by the defendants was destroyed and damaged to the amount of $ VIII. That upon the occurrence of said fire the plaintiff gave immediate notice of loss suffered by him thereby in writing to each of the defendant companies, and did every other thing required on his part in the said policies of fire insurance and did make a complete inventory of the property so destroyed and damaged, stating the quantity and cost or cash value of each article and the amount claimed thereon, and within sixty days after such fire did render a statement to each of the de- fendant companies, signed and sworn to by him, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the assured and of all others in the prop- erty, the cash value of each item thereof and the amount of loss thereon and all other facts required to be stated therein by the terms of said policies. IX. That the plaintiff has faithfully and fully comphed with all the terms and conditions and stipulations of each of said policies to be performed on his part. X. That there being a disagreement between the plaintiff and the defendants as to the amount of loss suffered -by plain- tiff by reason of said fire, the plaintiff and defendants did on or about the day of , 19 , pursuant to the terms of said policies, each select an appraiser, the plaintiff selecting W. L. M. and the defendants selecting E. V. B., and the plain- tiff and the defendants entered into an agreement in writing on that day accepting said M. and B. as appraisers to ascertain pursuant to the terms and conditions of said policies the sound cash value of the property of the plaintiff insured by the defend- ants, on the day of ,19 , as well as the actual loss or damage directly caused thereto by the fire which occurred on that day, with the provisions, among others, that the said 844 Bradbury's Forms of Pleading Arbitration two appraisers should first select a competent and disinterested person who should act as umpire; that the said two appraisers together should then estimate and appraise the loss according to their best knowledge and judgment, stating separately sound value and damage, and failing to agree should submit their differences to the said umpire and that an award, in writing, of any two should determine the amount of such loss. XI. That said appraisers, after taking the usual and custo- mary oath to act with strict impartiality in making an appraise- ment according to their best knowledge, skill and judgment, proceeded to name E. N. F. as such umpire; that said F. was unknown to plaintiff, and, as plaintiff is informed and believes, was unknown to W. L. M., the appraiser named by the plaintiff, and, as plaintiff is informed and beUeves, said umpire was named by E. V. B., the appraiser appointed by the defendants and was prejudiced in favor of the defendants and was neither disin- terested nor competent. XII. That said umpire failed and neglected to take an oath that he would act with strict impartiality and according to his best knowledge, skill and judgment, or any oath whatever of that kind and nature. XIII. That said appraisers, after selecting said umpire, pro- ceeded to estimate and appraise the loss and damage sustained by the plaintiff through said fire. That W. L. M., the appraiser named by the plaintiff, also estimated and stated separately the sole value of the property insured as well as the damage suffered by the plaintiff by reason of such fire. That E. V. B., the appraiser named by the defendant companies, neglected to state separately the sound value of the property insured, as provided in the agreement for arbitration aforesaid, dated ,19 . XIV. That said appraisers, failing to agree, submitted their differences to said umpire, E. N. F., but that said umpire did not proceed to adjust the differences between the two appraisers, as provided in said agreement of arbitration but assumed to make a new appraisal of his own in which he valued many of the Complaints 845 Arbitration items of loss at figures lower than those estimated by either of said appraisers. XV. Upon information and belief, that it was agreed between W. L. M., one of the said appraisers, and E. V. B., the other of the said appraisers, that neither would see, confer nor communi- cate with E. N. F., the umpire, except in the presence of the other; that this agreement was broken by the said B., the ap- praiser appointed by the defendant, and the said B. did confer with said umpire privately and in the absence of said M., and the said B., unknown to plaintiff or said appraiser W. L. M., did present a written argument on behalf of the defendants to the said umpire; that the said B., in the preparation of said argument, consulted with and was assisted by parties repre- senting the defendant companies; that such argument was re- ceived by said umpire E. N. F., and was given consideration by him; that in such written argument the appraiser, E. V. B., unknown to plaintiff or to W. L. M., the appraiser appointed by the plaintiff, did appraise plaintiff's loss at figures con- siderably lower than those at which such loss was originally estimated and appraised by said B. XVI. Upon information and belief, that said umpire refused to listen to argument by W. L. M., the appraiser named by the plaintiff, as to the extent and amount of loss suffered by the plaintiff and arbitrarily insisted upon the correctness of his private estimate and appraisal of plaintiff's loss. XVII. Upon information and belief, that E. N. F., the said umpire, did, at various times during the pendency of the said arbitration proceedings, visit plaintiff's premises in secretly and without the knowledge of plaintiff or of W. L. M., the appraiser appointed by the plaintiff, and in company with various persons unknown to plaintiff, and instead of relymg.on his own judgment took the opinions of these third persons as to the damages suffered by the plaintiff, which said opmions were given to said umpire privately, and when neither the plam- tiff nor said appraiser W. L. M. were present. XVIII. That said umpire refused to listen to evidence offered 846 Bbadbuhy's Forms of Pleading Arbitration on behalf of plaintiff as to the value of his property and the loss suffered by him, and in other ways conducted himself in a high- handed, unfair and arbitrary manner. XIX. That as evidence of, and as the result of, such arbitrary and imfair conduct on the part of E. N. F., the said umpire estimated plaintiff's loss at the sum of $ , which is upwards of $ less than the actual loss which plaintiff sustained by reason of such fire and which plaintiff was insured against by the defendants. XX. That despite the protest of W. L. M., the appraiser ap- pointed by the plaintiff, E. N. F., the said umpire, together with E. V. B., the appraiser appointed by the defendant com- panies, proceeded to adopt the appraisement made as aforesaid by the said umpire, and to sign and file, on or about the day of , 19 , an award in which they stated the actual net cash value of the property insured to be $ , and the actual damage but $ . That said award is grossly inadequate and by reason of the facts hereinbefore stated, is illegal and void and of no force and effect. XXI. That more than sixty days have elapsed since notice, ascertainment, estimate and satisfactory proof of plaintiff's loss, as required by said policies, has been given to each of the defendant companies, including the pretended award aforesaid and that no part of such loss has been paid or tendered; and that twelve months have not elapsed since said fire. XXII. That each of said policies contains the following clause : "This company shall not be liable for a greater portion of any loss or damage to the property described herein then the sum hereby insured bears to 100% of the actual cash value of such property at the time such loss shall happen." XXIII. That by reason of the foregoing facts there is now justly due and owing from the defendant P. A. Co., limited, of , the sum of $ , and from the defendant the H. I. Co., the sum of $ Wherefore [demand for money judgment]. Complaints 847 Pleading Foreign Statute CHAPTER XXV PLEADING FOREIGN STATUTE i FORMS NO. PAGE 535. Foreign statute 847 536. Foreign statute of limitation 850 537. Statute of limitations and rate of interest 851 538. Interest on judgment same as that on contract on which it was founded 852 Form No. 535 Foreign Statute ^ New York Supreme Court, county. Augusta Amelia Gleitsmami, Plaintiff, against Joseph Wilhelm Gleitsmann, Defendant. The plaintiff complaining of the defendant, alleges: I. That on or about the day of , 19 , in the 1 The law pf another State cannot be proved unless pleaded, although the court may allow an amendment at the end of the trial conforming the pleading to the proof. Audley i). Townsend, 49Misc. 23; 96Supp. 439. If an action on a guaranty if the right to recover depends on a foreign statute it must be pleaded. Fidelity & Casualty Co. v. Wells, 49 App. Div. 171;62Supp. 1066. , Ib an action for libel if the plaintiff desires to show that the alleged libelous publication charged him with a crime under the laws of the State where the offense was committed but was not a crime in this State he must plead the statute. Stuart v. N. Y. Herald Co., 73 App. Div. 459; 77 Supp. 216. If a foreign statute contains a clause for the benefit of the pleader and also a proviso against him he may plead the part in his favor and leave it to his adversary to show the proviso. Acker v. Richards, 63 App. Div. 305; 7 Supp. 929. 2 From Gleitsmann v. Gleitsmann, 60 App. Div. 371; 70 Supp. 1007; in which it was held under this pleading that proof could be admitted showmg the foreign statute as a fact. 848 Bradbury's Forms of Pleading Pleading Foreign Statute State of , , this plaintiff and the defendant J. W. G. agreed to be married to each other and to take up their residence as husband and wife, in the city of , State of , in the United States, and to execute a certain deed of trust designated as an indenture of marriage settlement, here- inafter more fully and at large set forth. II. That on said day of j 19 » at aforesaid, in pursuance of said agreement, the said indenture- of marriage settlement of which a copy is hereto annexed and marked Exhibit "A," and to which the plaintiff prays leave to refer as though the same were herein set forth in full, was duly signed and sealed by this plaintiff and by the said defendant J. W. G., and thereafter on said day the plaintiff and the said J. W. G. were married to each other and thereupon immediately went to the city of aforesaid, and took up their per- manent abode where they resided for many years. That at the time of the commencement of this action the plaintiff and the defendant J. W. G. were each a resident of the State of III. That after the said deed of marriage settlement had been executed as aforesaid, the said J. W. G. took the same into his possession and promised and agreed to procure the execution of the same by the trustees therein named, but that said J. W. G. wholly failed and neglected to procure such execution and willfully suppressed and concealed said indenture from said trus- tees and retained exclusive possession and control of said inden- ture for many years thereafter, and although frequently there- unto requested by this plaintiff, refused to permit the said trustees to execute said indenture or enter upon their duties as trustees thereunder. On information and belief, that the said trustees stood ready and willing at all times to execute said in- denture and to accept said trusts which facts were well known to the said J. W. G. IV. That subsequent to the execution by said J. W. G., of the aforesaid indenture of marriage settlement he received a portion of the property provided by said indenture to be held in Complaints 849 Pleading Foreign Statute' trust for the purposes therein expressed, and applied a portion of the income thereof to the purposes expressed in said indenture and retained for his own use and benefit, contrary to the terms of said indenture a certain other portion of said income, for which lie has never accounted. V. That after the execution of the aforesaid indenture of mar- riage settlement, by this plaintiff, certain of the property pro- vided in said indenture to be held in trust for the purposes therein expressed was received by this plaintiff, and the income thereof was appUed by this plaintiff to the purposes expressed in said indenture, for which income the plaintiff has never ac- counted. VI. That W. J. P. named as one of the trustees in said in- denture, is dead and the defendant F. P., who is living and is named in said indenture as one of the trustees, has re- fused to execute said indenture or accept (^aid trust. That since the commencement of this action, to wit, on the day of , 19 , in the city of , , the defendant J." P., who is named in said indenture as one of the trustees thereof, accepted said trust and duly signed, sealed and delivered the said indenture. On information and belief that the said J. P. desires the appointment of a trustee or trustees residing in the United States of America, to act with him in the execution of said trust. VII. On information and belief, that by the law of the State of contemplation of which the said indenture of marriage settle- ment was made, the parties to said indenture who received or who had in their possession or control the property therein pro- vided to be held in trust, became trustees ad interim for the purposes expressed in said indenture until the qualification of the trustees named in said indenture or the appointment of others in their place. That the plaintiff desires to account for her acts and proceedings as trustee ad interim under the afore- said indenture of marriage settlement with respect to that por- tion of the trust fund which has come into her possession, and the plaintiff desires that said J. W. G., shall also account fop his Vol, 1—54 850 Bradbury's Forms of Pleading Pleading Foreign Statute acts and proceedings as such trustee in respect to the portion of said trust fund which has come into his possession. VIII. The defendant, E. D. G., is the only issue of the mar- riage of the plaintiff and the said J. W. G., and has under said indenture of marriage settlement a vested interest in the principal of said trust fund. IX. That by a judgment duly rendered on or about the day of , 19 , in an action in the Supreme Court of the State of in which this plaintiff was plaintiff, and in which the said J. W. G. was defendant, upon personal appear- ance of said defendant an absolute divorce was granted to this plaintiff from said J. W. G. Wherefore, the plaintiff prays : I. That a trustee be appointed by this court of the trusts created by said indenture of marriage settlement in place and stead of W. J. P., deceased. II. That an accounting be had by and between the trustee so appointed, including the defendant J. P., and the defendant J. W. G., and this plaintiff in respect to those portions of the trust fund which have respectively been received and admin- istered by this plaintiff and the said J. W. G., and that the court make such order or decree in respect to the said trust fund as upon such accounting shall appear to be just and equitable. [Signature and office address of attorney, and verification.] Form No. 536 Foreign Statute of Limitation ^ That by Subdivision 1 of Section 1 of Chapter 197 of the laws of the State of Massachusetts, enacted November 19, 1881, to take effect February 1, 1882,, and entitled "An Act for Con- solidating and Arranging the General Statutes of the Common- wealth," it is provided as follows: That actions of contract founded upon contracts or liabilities not under seal, express or ' From Phillips v. Ljndley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N- Y. 606, Complaints ggj Pleading Foreign Statute implied, except such actions as are brought upon judgments or decrees of courts of record of some other State of the United States, shall be commenced within six years next after the cause of action accrues and not afterwards; that by Section 7 of the same chapter and same act it is provided that personal actions on contracts not limited by the preceding sections of said chapter of said act, or by any other law of the commonwealth, shall be brought within twenty years after the cause of action accrues; that by Section 11 of the same chapter and same act it is pro- vided that if at the time when a cause of action mentioned in the same said chapter accrues against a person he ig out of the commonwealth, the action may be commenced within the time limited therefor after he comes intc^ the commonwealth, and if after a cause of action has accrued the person against whom it has accrued is absent from and resides out of the commonwealth, the time of his absence shall not be taken as part of the time limited for the commencement of the action, provided that no action shall be brought by any person whose cause of action has been barred by the laws of any State, Territory or country while he has resided therein; that the defendant was out of and absent from said State and resided elsewhere when this action accrued and that this cause of action has not been barred by the laws of any State, Territory or country while the plaintiff has therein resided; that by Section 3 of Chapter 77 of the same act it is provided that it shall be lawful to pay, reserve or contract for any rate of interest, provided the agreement therefor is in writing. That the aforesaid law was ever since its passage and now is in full force and effect in said State. Form No. 537 Statute of Limitations and Rate of Interest ' That by Sections 4979 and 4980 of the laws of the State of passed the 11th day of March, 1853, and entitled "An act to es- 1 From Phillips v. Lindley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N. Y. 606. ... 852 Bradbury's Forms of Pleading Pleading Foreign Statute tablish a Code of Civil Procedure," it is provided that an action upon a specialty, or agreement, contract or promise in writing may be brought at any time within fifteen years after the cause of action accrues : That by Section 1 at page 91 of Volume 66 of the laws of Ohio, passed the 4th day of May, 1869, and entitled "An act to amend an act fixing the rate of interest," it is pro- vided that the parties to a promissory note or other instrument in writing for the forbearance or payment of money at any future time may stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight per centum per annum ; that the aforesaid laws were ever since their said passage and now are in full force and effect in said State. Form No. 538 Interest on Judgment Same as That on Contract on Which It Was Founded ^ That by Section 2 at page 91 of Volume 66 of the laws of the State of Ohio, passed the 4th day of May, 1869, and entitled "An Act to amend an act fixing the rate of interest," it is pro- vided that the rate of interest to be computed upon all judg- ments, decrees or orders shall be at the rate fixed in the instru- ment upon which the same were rendered; that the aforesaid law was ever since its passage and now is in full force and effect in said State. 1 From Phillips v. Lindley, 112 App. Div. 283; 98 Supp. 423; aff'd 188 N. Y. 606. Complaints 853 Matrimonial Actions CHAPTER XXVI MATRIMONIAL ACTIONS PAGE I. Divorce 854 II. Separation 857 III. Annulment op Mabriaqe 870 FORMS Part I. Divorce NO. PAGE 540. Divorce 854 541. Divorce; another fonn 855 Part II. Separation 542. Separation 857 543. Separation; another form 866 544. Separation; another form 867 545. Separation; abandonment 870 Part III. Annulment 546. Action to annul a marriage because the wife had not reached the age of consent °'" 547. Action to annul marriage, on the ground that former husband or wife was living "7^ 548. Action to annul marriage of idiot 872 549. Action by relative of lunatic to annul marriage on the ground of lunacy ^"^^ 550. Action by lunatic at time of marriage to annul marriage after restora- 873 tion to sound mind 551. Complaint in action to annul marriage on the ground of fraud in ob- taining consent 552. Action to annul marriage on ground of physical incapacity 876 854 Bradbury's Forms of Pleading Matrimonial Actions I. Divorce^ Form No. 540 Divorce ^ New York Supreme Court, Kings county. Nellie M. Ackerman, Plaintiff, against Charles M. Ackerman, Defendant. The plaintiff complaining of the defendant, alleges: I. That the plaintiff is, and at all the times hereinafter men- tioned was a resident of the State of , and was such a resident at the time of the commissions of the several acts of adultery hereinafter mentioned. II. That on or about the day of , 19 j in the city of , now in the borough of , city of , county of and State of , plaintiff was married to the defendant herein. III. That between the day of , 19 , and the day of ) 19 , or at times which the plaintiff is unable more particularly to state, the defendant committed adultery with a woman known as M. A., in the city of , State of ■ , at an apartment house known as The M. A. H., pr the M. F., or The M. [the name of which the plaintiff is unable more particularly to state], in the said city of • A cause of action for an absolute divorce on the ground of adultery and one for separation on the ground of abandonment and cruel and inhuman treatment, cannot properly be united in one complaint, although a counter- claim may be interposed in an action for either a divorce or separation setting up a cause of action for either divorce or separation. Conrad v. Conrad, 124 App. Div. 780, 109 Supp. 387. ^ From Ackerman v. Ackerman, 123 App, Div. 750; 108 Supp. 534; in which a decree in favor of the plaintiff was affirmed. The defense was that the de- fendant had procured a prior judgment of divorce on service by publication in Florida. Complaints 855 Matrimonial Actions IV. That the defendant has committed adultery with one M. A.', and between , and , 19 , was living in adulterous intercourse with her at an apartment house known as The M. A. H. or The M. F. or The M. [the name of which the plaintiff is unable more particularly to state], in the city of , State of V. That at divers places within the said city of , State of , and at various times between the day of , 19 , and the day of , 19 , but at what particular times and places plaintiff is unable more par- ticularly to state, the defendant committed adultery with a woman whose name is unknown to the plaintiff. VI. That said adultery has been committed without the con- sent, connivance, privity or procurement of the plaintiff. VII. That five years has not elapsed since the discovery by the plaintiff of the commissions of said adultery or adulteries or any of them or of such adulterous intercourse, and that the plaintiff has not voluntarily cohabited with the defendant since the commission of the offenses above set forth and the dis- covery thereof by the plaintiff, nor has the plaintiff forgiven or condoned the same. VIII. That there is no issue of said marriage. Wherefore, plaintiff demands judgment against the defend- ant that the bonds of matrimony between the plaintiff and the defendant be forever dissolved and for such other and further relief as to the court may seem just and proper; that a reason- able provision be made out of the property and income of the defendant for the support of the plaintiff, together with the costs and disbursements of this action. [Signature and office address of attorney, and verification.] Form No. 541 Divoice; Another Ponn The complaint of the above named plaintiff respectfully Shows, that on the day of ,19 , the plaintiff 856 Bradbury's Forms of Pleading Matrimonial Actions and defendant were married at , in the State of New York [or state other jurisdictional facts as to residence required by section 1756]. And plaintiff further states upon information and belief, that since the said marriage was contracted, and on or about the (lay of , 19 , the defendant, at the of , in the State of , committed adultery with one I. M., at [state as nearly as possible, the locality of the offense: e. g., at the house of C. E,.]. That on or about the day of > 19 > [oJ" some time in the month of , in the year 19 ,] the defendant committed adultery with one F. P., at the hotel, in the of , in the State of , and that the defendant, at various other times in the year 19 , committed adultery with various other [women] whose names are unknown to the plaintiff, at certain other places in said [city] to the plain- tiff unknown. That the said acts of adultery charged were committed with- out the consent, connivance, privity or procurement of the plain- tiff. That five years have not elapsed since the discovery of the fact that such adultery had been committed by the defendant, and that the plaintiff has not voluntarily cohabited with the de- fendant since such discovery. And plaintiff further alleges that as [she] is informed and believes, the said defendant has been living in adulterous inter- course with one E. F., [or with the said ], at That five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff, and that sucli adulterous intercourse between the defendant an,l the said E. F. was begun and is continued without the consent, connivance, privity or procurement of the plaintiff, and that plaintiff has not voluntarily cohabited with the defendant since the discovery thereof. That the plaintiff has no property of her own, but that the de- fendant is seized and possessed of real and personal estate to the Complaints §gy Matrimonial Actions amount of dollars, and that his annual income is at least dollars. That children have been born of the marriage of said plamtiff and defendant, one a boy named F aged years, on the day of , 19 , and the other a girl named H., aged years, on the day of 19 , [but plaintiff alleges that he is not the father of the said H. she being illegitimate]. ' Wherefore the plaintiff prays judgment divorcing the said plaintiff and defendant and dissolving the said marriage, and that the plaintiff may be awarded the custody of said children [and that the court may retiuire the defendant to provide suitably for the education and maintenance of the said children, and for the support of the plaintiff, and that the plaintiff may have tem- porary alimony and the costs of this action], and that the said H. may be adjudged to be illegitimate and that plaintiff may have such other and further relief as may be proper. II. Separation Form No. 542 Separation ^ Nev^ York Supreme Court, New York county. Jeanie France Page Plaintiff, against Henry W. A. Page, Defendant. The plaintiff' complaining of the defendant, alleges: I. That on or about the day of j 19 , the plaintiff' and defendant were married in the State of II. That at the time of the commencement of this action, and for some time prior thereto, the plaintiff and the defend- ant were, and still are, residents of the State of 1 From Page v. PageJ 124 App. Div. 421; 108 Supp. 864; in which a judg- ment in favor of the plaintiff was affirmed. 858 Bradbury's Forms of Pleading Matrimonial Actions III. That the issue of said marriage between plaintiff and defendant are a son, H. F. P., who is now years of age, a daughter, G. P., who is now years of age, and a son, N. L. P., who is now months of age. That the said H. F. P. is now at school at , , ; that the other two children have been taken from the plaintiff by the defendant, and plaintiff is informed and believes that they have been placed with a certain man named W., an employee of the defendant. IV. That the defendant for many years past has treated the plaintiff, and is still treating the plaintiff in a cruel and inhuman manner; ' that the defendant's conduct toward the plaintiff is, and has been for a long time past, such as to render it unsafe and improper for the plaintiff to cohabit with the defendant; that the defendant has abandoned the plaintiff, and the de- fendant has neglected and refused for a long time past to pro- vide for plaintiff; that the conduct of the defendant of which plaintiff complains is as follows, to wit : V. That almost immediately after the marriage of plaintiff and defendant, the defendant gave manifestations of violent temper and would fly in a rage at any trivial thing that did not suit him, and abuse the plaintiff almost daily when in such fits of temper. That in the fall of 19 , while plaintiff and defend- ant were living at , , defendant complained one day that one of the servant's rooms was not in a neat con- dition, and instead of sending for the women servants, he sent for the gardener and had him come in and sweep it up. That plaintiff then went into the room, and defendant, without just cause or provocation, took hold of plaintiff and violently dragged her out of the room in the presence of the gardener and used at the time, abusive, indecent and insulting language to plain- tiff in the presence of said gardener. VI. That on frequent occasions defendant would get in a 1 In an action for a separation, an allegation merely of adultery does not state a cause of action on the ground of cruel and inhuman treatment. Allen V. Allen, 125 App. Div, 838, 110 Supp. 303. Complaints 859 Matrimonial Actions rage and take glassware and chinaware from the table and break it on the table. That in the fall of 19 , just a few weeks before their eldest child was born, the defendant got in a rage one day and picked up a number of colored drinking glasses and deliberately dashed them to pieces on the table, and ran out of the house saying that he was going to kill himself, and plaintiff was obliged to run after him. That defendant fre- quently when in a rage threatened to kill himself. VII. In the year 19 or 19 , the plaintiff and defendant were living at a boarding house kept by a Mrs. H., at > , . That they lived there two or three months. That while there defendant abused almost continually and would shout at plaintiff in a boisterous manner, using violent, abusive and obscene language. That the language defendant used at such times is too vile for plaintiff to set forth in this complaint. That defendant was so loud and boisterous in the way that he would shout at plaintiff at said times, that other persons living in the same house heard him, and on one occasion some men passing along the street at the time, who were also boarders at the house, shouted out to defendant, calling him by name, and indicating that they had heard the defendant abusing plaintiff. VIII. That in , 19 ; while plaintiff and defendant were living at , , the defendant got in a tem- per one evening and began quarreling with plaintiff and, with- out just cause or provocation, struck plaintiff with his fist on plaintiff's left cheek under her eye and injured her cheek bone, and her cheek became greatly swollen and her eye closed for some days, and plaintiff was obliged, by reason thereof, to con- sult a physician, and to wear colored glasses for several weeks. IX. That in the summer of 19 , one evening when plaintiff and defendant were at the dinner table and had a number of guests, the defendant became angry because plaintiff had her elbow on the table, and ordered her to take it off, and then, without just cause or provocation, the defendant arose from his seat and waved a carving knife before plaintiff in a threaten- ing manner and ordered her to leave the table. 860 Bradbury's Forms of Pleading « Matrimonial Actions X. That in the summer of 19 , when plaintiff and defend- ant were at the home of defendant's mother in , , , defendant abused plaintiff almost continually. That one morning while at said place at the breakfast table, the de- fendant got angry at some trifling thing, and without just cause or provocation, took his cup of tea and threw the contents in plaintiff's face in the presence of defendant's mother and nephew. That during said summer, and at the place aforesaid, the defendant almost incessantly used vile and abusive language to plaintiff in the presence of defendant's mother and nephew. XI. That from , 19 , to , 19 , defend- ant's nephew, W. H. B., lived at the home of plaintiff and de- fendant at , . That during that time, the de- fendant frequently swore at plaintiff and called plaintiff vile and filthy names and at times threatened to strike plaintiff. That those things defendant did and said in the presence of his said nephew. That the defendant did frequently strike plain- tiff and inflict bruises upon her. XII. That during the spring of 19 , plaintiff, at the sugges- tion of defendant, had planned to spend the summer with a friend, Mrs. W. R. L., at her cottage at , That when plaintiff and defendant were talking to said Mrs. L. about the matter, the defendant, in plaintiff's presence, said to Mrs. L. that he [the defendant] would have to tell her [Mrs. L.] certain things, and it might be that she, after hearing them, would refuse to take plaintiff and the children with her. That defendant then said, to said Mrs. L., that plaintiff was addicted to the use of liquor and drugs, and that plaintiff had been treated for it by a physician. That said statements were abso- lutely false and were spoken without just cause or provocation by the defendant. XIII. That defendant had violent fits of temper, accompanied with the use by him of vile, abusive and insulting language toward the plaintiff, commencing shortly after their marriage, and continuing incessantly during their whole married life down to date. Complaints 861 Matrimonial Actions XIV. That in , 19 , shortly after defendant's re- turn from a trip to , while plaintiff and defendant and said Mrs. L. were at luncheon at the hotel in the city of , the defendant, without just cause or provocation, became very angry and abusive toward plaintiff., and said to plaintiff, in the presence of said Mrs. L., that he [defendant] did not expect to live with plaintiff again, and said further that he [defendant] was tired of plaintiff and sick of women, and that he did not further intend to spoil his life by being tied down to plaintiff, and that he [defendant] was going to devote himself in the future to his business. XV. That early in , 19 , the defendant insisted upon plaintiff and her children going to and staying there, and promised to send plaintiff $ per week, be- sides extra money for clothing and things of that kind. That plaintiff did go to and stayed there for about months. That while plaintiff was in , defendant sent her pounds a month except for the last months when she was there, during which time defendant sent plaintiff absolutely nothing. That defendant did not send plaintiff any extra money for clothing and other things as he had promised. That defendant, during all of that time, did not write plaintiff any letters or communicate with her in any way excepting by sending the checks, and that most of said checks were not sent to plaintiff direct but to plaintiff's brother. That plaintiff's last remittance from the defendant was received on or about , 19 , and was used up in a short while for necessaries. That thereafter plaintiff wrote defendant several times asking him to send her money for her needs and those of the children, but defendant did not reply at all to those requests except to write plaintiff's brother that he [defendant] would not send plamtiff any more money unless she [plaintiff] gave up the children. That after waiting some time, plaintiff returned to this coun- try to seek the defendant with her youngest two children, her oldest child having, with the consent of the defendant, been placed at school in • The plaintiff and her two chil- 862 Beadbury's Forms of Pleading Matrimonial Actions dren reached on , 19 . That on , , 19 , plaintiff went to the B. hotel, at street and avenue, in the city of , where the defendant was then living, and went with her two children to defendant's room in said hotel. That when defendant reached said hotel and found plaintiff and her children there, he at once began to abuse plaintiff most frightfully and used vile and dis- gusting language in such a loud tone that others in the hotel heard it and the clerk of the hotel came up to the room and requested plaintiff to desist as there were ladies in the hotel, but that defendant continued with his abusive language and disturbance. That the hotel clerk finally directed that the defendant's belongings be taken from said room, and the same were taken downstairs to another room which the defendant occupied that night. That the following day, plaintiff and de- fendant and their two children left said hotel, and after walk- ing about th6 street some time, during which time the defend- ant continually abused the plaintiff and used vile, insulting and indecent language to her, the defendant deserted plaintiff and her two children, leaving them upon the street. That plaintiff finally went to a boarding house at street in the city of . That the following afternoon, defendant came to said house in a great rage and abused plain- tiff and used vile language to plaintiff and stated that plaintiff was under thei influence of drugs at the hotel, and asked plaintiff whether she had been thrown out of the S. D. because she had been drugged. That defendant kept insisting that plaintiff return to , and upon plaintiff's refusing so to do, defendant told plaintiff that she had better be careful; that she was not in and that defendant could do a good deal more here than could be done over there. That defendant then threatened that if plaintiff did not do as he insisted that he would close up his business and that then no court would award plaintiff more than $ per week. That during said conversation defendant not only used abusive language to plaintiff, but acted in a threatening way, th^t is, Complaints 863 Matrimonial Actions as though he would strike plaintiff. That the altercations above referred to, both the last one and the one at the B. hotel, took place in the presence of the two children. XVI. That on and between and , 19 , both said days inclusive, the defendant maliciously and wickedly conceived a plot to put plaintiff out of the way and cause her to be incarcerated in an institution, and in pursuance of said scheme, defendant caused two physicians to make a pretended examination of plaintiff and then to make affidavit that plain- tiff was in the habit of using alcohol and drugs to great excess, and in pursuance of said scheme, the defendant did make and swear to a petition, a copy of which is hereto annexed, marked Exhibit "A," and hereby made a part of this complaint. That the statements made in said petition regarding the plaintiff, excepting the formal statements as to the residence of plain- tiff, and her age, and that defendant is her husband, were ut- terly false and untrue. That upon said petition and said affi- davits, the said defendant wickedly and maUciously procured an order or warrant of commitment to be issued for the com- mitment of plaintiff to S. S.'s sanitarium. That thereupon and on , 19 , the defendant went to plaintiff at said board- ing house, and by deceitfully representing that he would ob- tain a nice place for plaintiff to board at in the Bronx, defend- ant induced plaintiff to accompany him and took plaintiff to the Bronx, pretending to her that they were going to look at said boarding house. That after leaving the cars and walking for about a mile and a quarter, plaintiff saw that they were going towards a large building with iron bars at the windows. That plaintiff then became suspicious of defendant's motives and refused to go further with him. The defendant thereupon undertook to force plaintiff to accompany him. That plaintiff started to run away, and defendant tripped plaintiff. That plaintiff then concluded that it was useless to try to get away and so accompanied defendant to said institution expectmg there to be properly protected. That when plaintiff was taken into s^id institution by the defendant, she was left there by 864 Bradbury's Forms of Pleading Matrimonial Actions the defendant and was detained by the officials in charge of said institution and deprived of her hberty until the day of , 19 . That upon learning of her predicament, cer- tain friends of plaintiff's consulted counsel, who obtained the affidavits of numerous persons, acquaintances of plaintiff, show- ing the absolute falsity of the statements made in defendant's said petition. That upon said affidavits and a petition, plain- tiff's said counsel procured a writ of habeas corpus to be issued by a justice of the Supreme Court, for the purpose of determin- ing the legality of plaintiff's imprisonment or detention. That shortly after the service of said writ, the authorities in charge of said institution informed said plaintiff's counsel that they had decided that plaintiff was not a subject for their care and that they would not contest the writ of habeas corpus, and that plaintiff would be allowed to leave said institution when- ever she desired to do so. That plaintiff was accordingly re- leased from said confinement in said institution on , 19 . XVII. Defendant's constant abuse and ill-treatment of plain- tiff wore greatly on her nerves, and her condition became such that plaintiff used to frequently become hysterical, and after their last child was born in , 19 , after defendant had abused plaintiff as aforesaid and she had become hysterical, defendant woulfl send for a physician and tell him that plain- tiff was under the influence of drugs and sometimes would say that plaintiff' was intoxicated. That the said charges were absolutely false. That plaintiff never took any drugs except that a physician prescribed for her codeine after her last baby was born, which plaintiff believes was given her for pain, and that plaintiff only took the same a few times. That after the last child was born, the physician also administered strychnine to plaintiff. That plaintiff has never been intoxicated in her life, nor under the influence of liquor. XVIII. That the vile, abusive and obscene language re- ferred to herein as having been used by the defendant to plain- tiff was as vile and filthy as language can possibly be, and for Complaints 865 Matrimonial Actions that reason it is utterly impossible for the plaintiff to set it forth in detail. XIX. That such abuse of plaintiff and use of bad language toward plaintiff by defendant was frequently in the presence of the children, and the oldest child, H., commenced to use the same kind of language, and stated that he had learned it from his father. That the defendant frequently whipped the child H. very severely; frequently struck him on the head in a way which plaintiff believes was injurious to said child. That when defendant was abusive to plaintiff as aforesaid and got in those terrible fits of anger, it would frighten the child G. and cause her to cry and become so nervous that she could not sleep at night. XX. That plaintiff has always been, and still is, devoted to her children, and has the greatest love for them, and the de- fendant has never exercised any particular care or oversight over them, and even now, as plaintiff is informed and believes, he has left them in charge of a Mr. W., an employee of the de- fendant, while the defendant himself lives at a club. That in view of the ages of said children, and the disposition and con- duct of defendant as aforesaid, the influence of the defendant upon said children will be very harmful to them, and their best interests will be subserved by giving them into the custody and control of plaintiff. XXI. That the defendant is possessed of much property, a large income and ample means, but since about , 19 , has refused and neglected to support plaintiff', and still refuses and neglects to support her, and plaintiff is absolutely without money or means to support herself, or her children, and the defendant has willfully abandoned and deserted the plaintiff and has left her entirely destitute. Wherefore, the plaintiff demands judgment against the de- fendant that a decree of separation be granted to her pursuant to the statute in such case made and provided, separating the plaintiff from the bed and board of defendant forever; that the defendant be compelled to set apart a reasonable portion Vol. 1—55 Bradbury's Forms of Pleading Matrimonial Actions of his estate for the support and maintenance of plaintiff, and for the support and maintenance and education of the tiiree children of plaintiff and defendant, and that the custody and care and maintenance of said three children be awarded to the plaintiff, and that the plaintiff have costs of this action, and that she may have such other and further relief in the premises as may be just and proper. [Signature and office address of attorney, and verification.] Form No. 543 Separation; Another Form ' I. That heretofore, to wit, in the month of , 19 , in the city of , in Poland in the Empire of Russia, the plaintiff and defendant intermarried. II. That about six weeks after said marriage, to wit, in or about the month of > 19 , the plaintiff and defendant emigrated to this country and since said last-men- tioned time, the plaintiff and defendant have been still and are residents of the State of New York. III. That the issue of the said marriage of the plaintiff with the defendant are two children, to wit, J. S., aged years, and D. S., aged years. IV. That although the plaintiff has always conducted her- self towards said defendant as a faithful and obedient wife, the defendant, disregarding his duties as a husband, and without plaintiff's consent, has been willfully and continuously absent from the plaintiff for more than four years last past without any cause or justification therefor, and with intent not to return, and has refused to cohabit or live together with the plaintiff as husband and wife during the entire of such period and has, during said period, failed, refused and neglected to provide for the support of the plaintiff and the said two children. V. That during the four years last past, during which time 1 From Schwalbe v. Schwalbe, 105 App. Div. 643; 94 Supp. 1163; in which judgment for the plaintiff was affirmed. Complaints 867 Matrimonial Actions defendant has refused to cohabit and hve with plaintiff and his "children, defendant has lived in open and notorious adulterous intercourse with a woman known as , and that while during a great portion of said period of time, the defendant has entirely neglected and refused to provide anything at all for the support of the plaintiff and the said two children, and while during the remaining portion of the said period defendant has furnished to the plaintiff for the support of herself and the said two children the sum of dollars weekly, in accordance with an order to that effect of a city magistrate in a criminal proceeding for abandonment, he, the defendant, has, during the said period, lavished thousands of dollars upon the said woman known as , has been living with her in great wealth and luxury, and has furnished her with diamonds and jewelry in value of thousands of dollars. VI. That.the defendant is engaged in business, as a manu- facturer of cloaks, suits and skirts, at No. street, in the borough of Manhattan, city of New York, under the firm name and style of C. M. Co. That defendant employs at least workmen in said establishment, and that the earnings of said defendant's business are at least the sum of $ weekly. Wherefore plaintiff demands judgment against the defendant for a separation from the bed and board of defendant, and that a reasonable provision be made for support and maintenance, and for the education and maintenance of the said children out of the defendant's property, and that the plaintiff may have such other and further relief as may be just, together with the costs of this action. Form No. 544 Separation; Another Form I. The complaint of the above named plaintiff respectfully shows, that on or about the day of ,18 , the plaintiff and defendant were married at the of in the State of New York, and that both plaintiff and defend- 868 Bradbury's Forms of Pleading Matrimonial Actions ant are and were, at the commencement of this action, resi- dents of said State [or allege other jurisdictional facts as to resi- dence, as required by section 1763 of the Code of Civil Procedure]. II. That the plaintiff continued to reside with the defendant, as his wife, until about the day of , 19 . III. That during the time she lived and cohabited with said defendant as aforesaid, she had two children by him, to wit: F., who was born on the day of , 19 , and is now of the age of years and upwards, and G., who was born on the day of , 19 , and is now of the age of years and upwards, and during all that time she conducted herself with propriety, managed the household affairs of her said husband with prudence and economy, and at all times treated her said husband with kindness and forbearance; but that the said defendant, disregarding the solemnity of his marriage vow, and his obligation to treat the plaintiff with kindness and attention, within about a year after their said marriage, commenced a course of unkind, harsh and tyrannical conduct towards her, which continued with very slight inter- missions, until she finally separated from him about three months since. IV. And the plaintiff further shows, that on divers occasions, while the said plaintiff lived with the said defendant, as afore- said, he was guilty of cruel and inhuman treatment of her, and of such conduct towards her as rendered it unsafe and improper for her to cohabit with him. V. That on or about the day of , 19 , at the house No. street, in the city of , where they then resided, as the plaintiff was sitting by the fire, the said defendant came home, and pulled her chair from under throwing her ^ iolently upon the hearth, and dragged her across the floor, in a manner and under circumstances which showed an utter disregard for her health, if not for her life. VI. That on another occasion [specify the several acts of cruel and inhuman treatment, giving the time, place and circumstances of each net complained- of with reasonable certainty]. Complaints 869 Matrimonial Actions VII. And the plaintiff further shows, that the said defendant is a man of violent passions, and of ungovernable temper; and that on many occasions, during the time the plaintiff lived with him, thq said defendant addressed to her the most opprobrious epithets and threats of personal violence, and that he repeat- edly threateaned to take her life, and that in consequence of the cruel and inhuman treatment above mentioned, together with the threats aforesaid, and such brutal and outrageous conduct towards her as rendered it unsafe for her to live with him, or to remain within reach of his violence, she was, on or about the day of , 19 , obUged to leave the house of the said defendant and to go to her friends, since which time she has not dared to return to his said house or to live with him. VIII. And the plaintiff further shows, that since she so left the house of the said defendant, he has refused to provide for her support and maintenance, and that she has been, and is now, entirely dependant upon her own labor and the charity of her friends for her support; that she is now very destitute and in great want, and that she is indebted, to a considerable amount, for board and necessary clothing. IX. And the plaintiff further shows, that within about a year after their said marriage, the said plaintiff received about dollars as the distributive share of her father's estate, the whole of which the said defendant has applied and con- verted to his own use; and that the said defendant, as plaintiff is informed and believes, is seized and possessed of real and per- sonal estate to the amount of dollars, and that his an- nual income is about dollars. Wherefore the plaintiff prays judgment that the defendant and the plaintiff be separated from bed and board forever, and that defendant make a proper and suitable provision for the sup- port and maintenance of the plaintiff and her said children, and that plaintiff may have the care and custody of the said chil- dren, and may have her costs of this action, and such other and further relief as may be just and proper. 870 Bradbury's Forms of Pleading Matrimonial Actions Form No. 545 Separation; Abandonment' i. That she was marriod to the defendant at the city of , on the day of , 19 . II. That there is no issue of said marriage, but that plaintiff is pregnant by reason of said marriage and a child expected to be born within a few months. III. That the plaintiff is and has always been a resident of the city, county and State of IV. That on or about ,19 , at the city and county of , the defendant, without any real or probable cause and without the consent of this plaintiff, abandoned her, and withholds from her, his support and continues to withhold such support. V. Wherefore plaintiff demands that she have judgment decreeing a separation, and for such other relief as may be just, and the costs of this action. III. Annulment Form No. 546 Action to Annul a Marriage Because the Wife Had Not Beached the Age of Consent ^ I. [Allegation as to gvardian ad litem. See Form No. 34.] II. That on or about the day of , 19 , the 1 Complaint held sufficient in Mossa v. Mossa No. 1, 123 App. Div. 400; 107 Supp. 1046. 2 From Wander v. Wander, 111 App. Div. 189; 97 Supp. 586. The case was sent back to the referee to make new findings, but there seems to have been no question as to the sufficiency of the complaint. Section 1742 of the Code of Civil Procedure is absolute. Conte v. Conte, 82 App. Div. 335; 81 Supp. 923; Dickinson v. Earle, 96 App. Div. 639; 89 Supp. 1102. If either party to the contract is under the age of consent (eighteen years; Domestic Relations Law sec." 4; L. 1896, c. 272) he or she may bring an action under sees. 1743 and 1744. Dickinson v. Earle, 96 App. Div. 639; 89 Supp. 1102; Silveira v. riilveira, 3i Misc. 267; 69 Supp. 634; Conte v. Conte, Complaints 871 Matrimonial Actions plaintiff and the defendant married at the city of New York, borough of Manhattan, and the county and State of New York. III. That at the time of said marriage the plaintiff had not attained the age of eighteen years, but was of the age of fif- teen years on the day of , 19 . IV. That at the time of said marriage the plaintiff and the defendant were, ever since have been, and now are residents of this State. V. That since on or about the day of , 19 , the plaintiff attained the age of eighteen years * she has not voluntarily or freely^ cohabited with the defendant herein. Wherefore, the plaintiff demands judgment that the said marriage be annulled and declared void and that the plain- tiff have such other and further relief as may be just, together with the costs of this action. 82 App. Div. 335; 81 Supp. 923; Wander v. Wander, 111 App. Div. 189; 97 Supp. 586. Such an action may be brought by the party through a guardian ad litem if still under twenty-one years of age, or the action may be brought by either parent of the infant, or the guardian of the infant's person, or the court may allow the action to be maintained by any person as the next friend of the infant. Code Civ. Pro., sec. 1744. If brought by any other person than the infant, the infant in whose behalf it is brought must be made a party to the suit. Wood V. Baker, 43 Misc. 310; 88 Supp. 854. The last-mentioned case seems to be inconsistent with Slocum v. Slocum, 37 Misc. 143; 74 Supp. 447; wherein it was held that the defendant, the wife, in an action brought by the mother of the plaintiff, could not set up by way of counterclaim a demand for a divorce, for the reason that the husband was not a party to the action. See also Fero v. Fero, 62 App. Div. 470; 70 Supp. 742; Coddington v. Lamer, 75 App. Div. 532; 78 Supp. 276. In any action brought under sec. 1743 it must appear, as provided in sec. 1744, that the parties have not freely cohabited after they have attained the age of consent. This fact should be pleaded. Alimony will not be allowed where the action to annul the marriage is brought by the wife. Jones v. Brinsmade, 183 N. Y. 258. 1 The words in brackets are not in the complaint from which this form is taken. From the facts there set forth it appears that on the date given the plaintiiT was not eighteen years of age, however. 2 The word "freely" as used in this statute does not seem to have been judicially construed. 872 Bradbury's Forms of Pleading Matrimonial Actions Form No. 547 Action to Anniil Marriage, on the Ground That Former Husband or Wife Was Living [Code Civ. Pro. §§ 1743 (subd. 2), 1745.] I. That on the day of , 19 , the plaintiff and defendant were married. II. That, at the time of such marriage, the said defendant was the husband [or wife] of one P. F., and that said P. F. was then Hving, and that the marriage of said defendant, with said P. F., was then in full force and effect. III. And plaintiff further alleges, that the said marriage be- tween plaintiff and defendant was contracted by said plain- tiff [or by said plaintiff and defendant] in good faith, and with the full belief that said P. F. was dead [or without any knowl- edge on the part of said plaintiff, of such former marriage]. IV. That one child, a boy [or girl], named , the issue of such marriage between the plaintiff and defendant, was born on the day of , 19 , and is now living. Wherefore, the plaintiff demands judgment that the mar- riage between the plaintiff and the defendant be declared null and void, and that the plaintiff have such other further and dif- ferent relief as may be equitable [with costs] adding [when children have been born], as follows : that the said issue of the marriage between plaintiff and defendant [or between plaintiff and said M. G.], may be adjudged, for all purposes, the legiti- mate child of the said plaintiff and entitled to succeed as such, in the same manner as other legitimate children, to the real and personal estate of said plaintiff, and that the plaintiff may be awarded the care and custody thereof. Form No. 548 Action to Annul Marriage of Idiot ^ [Code Civ. Pro. §§ 1743 (subd. 3), 1746.] I. That M. R. and E. J., who are both living [or allege accord- ^ The idiot or other incompetent whose marriage it sought to be annulled must be made a party to the action. Fero v. Fero, 62 App. Div. 470; 70 Supp. Complaints g73 Matrimonial Actions ing to the fact], were married on the day of 19 . J' , II. That, at the time of said marriage, the said E. J was an idiot. [*]. III. That the plaintiff is the [state relationship], of the defend- ant, having an interest to avoid such marriage by reason of his said relationship, and his being entitled to succeed to the property of the said E. J., in the event of his death, as his heir- at-law and next of kin. Wherefore the plaintiff prays that the marriage between the said M. R. and E. J. be declared null and void, and that the plaintiff may have such other and different relief as may be equitable with costs against the defendant E. J. Form No. 549 Action by Relative of Lunatic^ to Annul Marriage on the Ground ol Lunacy I [Code Civ. Pro. §§ 1743 (subd. 3), 1747.] I. That on the day of , 19 , the defend- ants, B. H. and M. F., were married. II. That, at the time of such marriage, said B. H. was, and he still is, a lunatic [or and that he {or she) continued to be such lunatic at the time of his (or her) death, which occurred on the day of , 19 ]. [Continue as in last preceding form from (*) to the end thereof.] Form No. 550 Action by Lunatic at Time of Marriage to Annul Marriage After Res- toration to Sound Mind [Code Civ. Pro. §§ 1743 (subd. 3), 1747.] I. That on the day of > 19 , the plaintiff and defendant were married. 742; Coddington v. Lamer, 75 App. Div. 532; 78 Supp. 276. Unless, there- fore, the incompetent is made a party by his or her guardian or committee in the first place it is necessary as in all other cases to have a guardian ad litem or committee appointed for the incompetent. ' The lunatic whose marriage it is sought to annul must be made a party to the action. See note to last preceding form. 874 Bradbury's Forms of Pleading Matrimonial Actions II. That, at the time of such marriage, the plaintiff was a lunatic. III. That on or about the day of , 19 , said plaintiff was restored to sound mind, and has been ever since, and is now of sound mind. IV. That said plaintiff and defendant have not cohabited as husband and wife, since the said plaintiff has been restored to a sound mind. Wherefore the plaintiff prays judgment [prayer for judgment as in form No. 547]. Form No. 551 Oomplaint in Action to Annul Marriage on the Oround of Fraud in Ob- taining Consent [Code Civ. Pro. §§ 1743 (Bubd. 4), 1750.] I. That on the day of j 19 , the plaintiff and defendant [or R. F. and defendant] were married. II. That the consent of the said plaintiff [or of said R. F.] to said marriage was obtained by fraud, the defendant for the purpose of obtaining said consent having fraudulently repre- sented to the plaintiff [or to said R. F.], prior to said marriage, that [here state facts constituting the fraudulent representations], which representations the plaintiff [or said R. F.] believed to be true and was induced thereby to consent to said marriage, and entered into said marriage relying upon such representations, which representations plaintiff [or said R. F.], after said marriage, discovered to be wholly untrue. III. That the defendant at the time of making said represen- tations, knew them to be false and untrue and made the same with intent to deceive and defraud this plaintiff. [Or that the consent of the said plaintiff (or of said R. F.) to said marriage was obtained by force {or by duress) {state facts in regard to force or duress, e. g.) in that before and at the time the said marriage took place the said plaintiff {or the said R. F.) was imprisoned by the said defendant (and others in collusion Complaints 875 Matrimonial Actions with him), and then and there continued so imprisoned until the said plaintiff {or the said R. F.), through the force and re- straint of that imprisonment, there consented to said marriage with the said defendant.] That the said plaintiff and defendant [or said R. F. and the defendant] have not, at any time before the commencement of this action [with a full knowledge of the facts constituting the said fraud], voluntarily cohabited as husband and wife. [And the plaintiff further alleges, that he (or she) is the father {or mother, or guardian of the person) of the said R. F.^ {or that he, or she), is the (state relationship) of the said R. F., and has an interest to avoid the said marriage, by reason of his {or her) being the heir-at-law and next of kin of the said R. F.] Wherefore, the plaintiff prays judgment that said marriage be annulled and said marriage contract be declared void, pur- suant ^to the statute in such case made and provided [and that the custody of the children of said marriage be awarded to the said plaintiff], and that the court will make such provision for the education and maintenance of the said children out of the property of the said defendant as may be necessary and proper and that the plaintiff may recover the costs of this action and have such other and further relief as may be proper. ^ Form No. 552 Action to Annul Marriage on Ground of Physical Incapacity [Code Civ. Pro. § 1743, subd. 5.] The complaint of the above-named plaintiff respectfully shows : I. That on the day of , 19 , the plaintiff and the defendant were married at in the city of and State of . II. That, at the time of the said marriag e, the plaintiff be- 1 An incompetent must be ma"d7^rty to any actton to annul a marriage. Fero V. Fero, 62 App. Div. 470; 70 Supp. 742; Coddington v. Lamer, 75 App. Div. 632;78Supp. 256. §76 Bradbury's Forms of Pleading Matrimonial Actions lieved the defendant, from [her] dress, appearance and repre- sentations, to be a [woman] capable of entering into the marriage state, and of performing all the duties and relations of a [wife]. III. That [he] took [her] to his residence [or that she took up her residence with him], and for the space of [six months] en- deavored to cohabit with [her] as his [wife], until [he] ascer- tained, both from [his] own knowledge and from [her] own ad- missions and confessions, that [she] was, and ever had been, physically incapable of cohabitation or sexual intercourse, or of entering into the marriage state by reason of [here state na- ture of incapacity]. IV. And plaintiff alleges, upon information and behef, that the said defendant was, at the time of such marriage, physically incapable of entering into the marriage state, and that such incapacity still continues and is incurable. Wherefore, the plaintiff prays judgment that the said mar- riage contract may be declared void, and that said marriage may be annulled pursuant to the statute in such case made and provided [and that the plaintiff may have (her) costs of this action], and such other and further relief as may be proper. Complaints 877 Husband and Wife CHAPTER XXVII HUSBAND AND WIFE FORMS NO- PAGE 555. Necessaries furnished wife when separated from husband 877 556. Action by wife against husband on agreement for support and main- tenance 878 557. Separation agreement; action against executors of husband; trustees, refusing to prosecute, made defendants 878 558. Ante-nuptial agreement enforcement in equity 880 559. Marriage settlement; enforcement by accounting 885 560. Enforcement by wife of agreement to pay sum of money to her made by third party for consideration paid by her husband 888 561. Alienation of wife's affections 891 Form No. 555 Necessaries Furnished Wife When Separated From Husband ^ Supreme Court, county. Edward P. Hatch, Plaintiff, against John Leonard, Defendant. The plaintiff above named, at the time hereinafter mentioned, 1 From Hatch v. Leonard, 165 N. Y. 435. This case was first tried apparently upon the theory that the wife was agent for the husband in the purchase of the goods in question. Upon it appearing that the husband and wife had separated the plaintiff claimed the right to recover on the ground that the goods constituted necessaries furnished to the wife. The court at special term and at the Appellate Division (38 App. Div. 128; 56 Supp. 489) held that the complaint was insufficient to support an action for necessaries. This decision was reversed by the court of appeals (165 N. Y. 435) when the complaint was declared to be sufficient to recover against the husband for necessaries fur- nished to the wife even though they were separated. A judgment in favor of the plamtiff upon the second trial was reversed for error in the judge's charge. 71 App. Div. 32; 75 Supp. 726. In an action against a husband for the value of a dress furnished his wife, based upon the wife's implied agency to pledge her husband's credit for necessaries, the burden, where the parties had not Uved together for eleven years, was held to be on the plaintiff to show that the wife's act in living apart, was justified. Buxdaum v. Mason, 48 Misc. 396; 95 Supp. 539. 878 Bradbury's Forms of Pleading Husband and Wife doing business under the firm name of L. & T., complaining of (he defendant herein, alleges on information and belief: That between the day of , 19 , and the day of , 19 , plaintiff, doing business as aforesaid, sold and delivered to defendant, and at his request, certain merchandise, said sale and delivery being to, and said request and the promise to pay therefor being made by the wife of defendant, defendant's agent, and said merchandise, to wit: dry goods, being of the value of • dollars, which sum de- fendant promised to pay therefor to plaintiff, as aforesaid. That no part of said sum has been paid. Wherefore [prayer for money judgment]. [Signature and office address of attorney, and verification.] Form No. 556 Action by Wife Against Husband on Agreement for Support and Maintenance ^ I. That on or about the day of , 19 , at the city of , she entered into a contract in writing and under seal with this defendant, a copy of which is hereto annexed and made a part of this complaint. II. That there was due and payable to this complainant under the terms of said agreement on the day of , 19 , the sum of $ , no part of which has been paid, and pay- ment whereof was duly demanded and refused. Wherefore [demand for money judgm,ent]. Form No. 557 Separation Agreement; Action Against Executors of Husband; Trustees, Refusing to Prosecute, Made Defendants ^ I. That at all the times between the day of , 19 , and the day of , 19 , the plaintiff 1 From Winter v. Winter, 191 N. Y. 462. ^ From Recknagel v. Steinway, 184 N. Y. 614; modifying 105 App. Div. 561; 94 Supp. 119. The court held that the plaintiff could recover all instalments due but could not recover one sum in an amount larger than the instalments due, as for the breach of a contract. Complaints 879 Husband and Wife 0. C. R. was the wife of one G. A. S., then of in the town of , county of , city of New York. II. That said G. A. S. was the son of one W. S. who de- parted this Ufe on or about the month of , 19 , leaving a last will and testament, wherein he nominated and appointed the defendants, C. H. S., F. T. S., L. Von B. and P. T. Von B., his executors and executrix, which said^will was duly admitted to probate by the surrogate of the county of New York, unto whom jurisdiction in that behalf appertained and said defendants duly qualified as executors and executrix of and under said will, and are now acting as such. III. That on or about the day of 19 , at the city of New York, the said W. S., for a good and valuable consideration entered into an agreement with the plaintiff 0. C. R. [then 0. C. S.] wherein and whereby he agreed to pay the de- fendants, A. R. and L. Von B., as trustees under said agree- ment of and for the use of said plaintiff, the sum of $ , , from the day of , 19 , to the day of ,19 , in quarterly payments of $ each on the first days of , , , , in each of said years for the support and maintenance of said plaintiff, and for the support, maintenance and education of 0. M. S., C. B. S. and G. M. S. [who were the children of the marriage of said plaintiff with said G. A. S.], and thereafter, that is from the day of , 19 , until G. M. S. or the last survivor of the said three children should arrive at the age of twenty-one years, to pay unto said A. R. and L. Von B. as trustees as aforesaid, the sum of $ , annually in quarterly payments of $ , each on the days of , in each of said years, and said defendants, A. R. and L. Von B., on said day, accepted the trust reposed in them in and by said agreement and covenanted and agreed to pay over to the said plaintiff the quarterly payments when and as received by them from said W. S. Annexed hereto marked "A" and made a part of this amended complaint is a true copy of said agreement. 880 Bradbury's Forms of Pleading Husband and Wife IV. That all three of the children mentioned in said agreement, to wit, 0. M. S., C. B. S. and G. M. S., are living and not one of them has yet attained the age of twenty-one years. V. That during his life said W. S. made the quarterly payment as called for in and by said agreement, but since his death his executors have wholly failed and neglected to pay the same, al- though thereunto duly demanded, except that they have paid on account thereof, $ ' [stating amounts and dates]. ' VI. That A. R. and L. Von B. as trustees under said agree- ment, on the day of , 19 , were made de- fendants herein because they have refused upon request duly made by the plaintiff to prosecute this action as plaintiffs. VII. That by reason of the premises, the plaintiff has suf- fered damage in the sum of $ Wherefore plaintiff demands judgment against the defendants C. H. S., F. T. S., L. Von B. and P. T. Von B., as executors, ex- ecutrix and trustees of and under the last will and testament of W. S., deceased, in the sum of $ , besides the costs and disbursements of this action. Form No. 558 Ante-Nuptial Agreement; Enforcement in Equity ^ I. That this plaintiff is the only son of J. P., deceased, formerly of , who died in on the day of , 19 , leaving a last will and testament, and leaving him surviving his widow, C. S. P., who has since deceased, and his daughters, F., C. dc G. and C. C. de N., defendants herein and this plaintiff, his only he'rs-at-law and next of kin. II. That on or about the day of , 19 , in contemplation of plaintiff's projected marriage with J. de Z., and in and for the consideration thereof, and of the mutual stipula- tions contained in the contract hereinafter mentioned, and the obligations thereby assumed by the parties thereto, the said J. P., the father of this plaintiff, entered into a written contract under * From Phalen v. U. S. Trust Co., 186 N. Y. 178; in which the com- plaint was sustained on demurrer. Complaints 881 Husband and Wife seal, and dated the day of , 19 , with this plaintiff, in and by which contract he, the said J. P., covenanted and agreed that he would make no distinction between his chil- dren as regards the proportion of his estate coming to each under his will, account being taken of any advances which may have been made to either during the lifetime of said J. P., the amount of which advances in all cases to be deducted from the share to which such child would otherwise have been entitled, a copy of which contract is hereto annexed, marked "A," and made a part of this complaint. III. That thereupon on , 19 , the plaintiff, relying on the said covenants of J. P. was duly married to said J. de Z. and the plaintiff has duly and fully performed all the conditions of the said agreement on his part. rV. That thereafter the said J. P. executed his will dated , 19 , and six codicils thereto disposing of all his es- tate and property in accordance with and in conformity to the terms of said written contract under seal, and his obligations thereunder. The said will and codicils after making allowance as provided in the written contract under seal, for advancements made by J. P. in his lifetime to his three children [the defendants, C. and F., and the plaintiff, C], left for each child the same share, to wit: one equal fourth part of the residuary estate; the share of each child to be held by the U. S. T. Co. of , with directions to pay the principal [saving the sum of $ which amount at least was required by the fifth codicil to remam in the hands of the trustee until the death of that child], to such child upon that child's written request, and to pay the mcome to that child for life upon such of the principal as should be at any time remaining in the trust company's hands, and on that child's death to pay over as that child should direct by will, or m defau t of such will, to that child's children, and in default of such chil- dren to J. P.'s next of kin, such of the principal as should then remain in the trust company's hands. That the other fourth of the residuary estate was left to the trust company in trust for the widow C. S. P. Vol. 1-56 882 Bradbury's Forms of Pleading Husband and Wife That J. P. declared as follows, in the tenth article of his will: "It is my intention and desire ttiat all the stipulations by which I am bound in the marriage contracts of my children, shall be fully and faithfully executed, anything in this will contained [if any such thing there be] to the contrary notwithstand- ing." That the foregoing provisions in favor of J. P.'s daughters, C, C. de N. and F., C. de G., were never altered or revoked. V. That on the day of , 19 , the said J. P., disregarding and in violation of the terms and provisions of his said contract with this plaintiff, made a codicil, being a seventh codicil to his said will, by which he revoked the above-mentioned provisions of his will in favor of this plaintiff, and devised and bequeathed the whole of the plaintiff's share of the rest, residue and remainder of his, the said J. P.'s estate to the U. S. T. Co. in the city of , in trust, to hold the same during the life- time of said plaintiff, paying him the income, and directing that on plaintiff's death the principal of said share should go to and be divided among the plaintiff's heirs-at-law. That a copy of said last will and testament of J. P., deceased, and the codicils thereto is hereto annexed, marked B, and made a part of this complaint. VI. That the said J. P., the testator above named, died, as aforesaid, on the day of , 19 , and his^aid will aforesaid and the codicils thereto were thereupon admitted to probate by the surrogate of the county of VII. That thereupon letters testamentary were issued to E. L. and F., C. de G., the executors therein named, who entered upon their duties. VIII. That the executors administered the estate and on their application a decree was entered in the surrogate's court of county, , 19 , judicially settling and allowing their accounts of their proceedings as executors. The said decree de- termined the amount of the residuary estate and the amount of t\ie advancements made by the testator to his children, and Complaints 883 Husband and Wife determined the amount of the shares left for the testator's widow, two daughters and son, respectively, and directed the executors to turn over to the U. S. T. Co. of , as trustee under the will and codicils, the shares as so determined. The plaintiff's share so determined consisted of cash and secur- ities, fully described in said decree, of the value of as estimated in said decree. A copy of the said decree is hereto an- nexed, marked C and made a part of this complaint. IX. That the provisions of J. P.'s will [including the first six codicils], which gave to the plaintiff, as it did to each of the other children of J. P., the absolute right to the principal of his share [all but the $ to be held in trust for his life, under the fifth codicil], were made in accordance with J. P.'s said written contract under seal with the plaintiff. That the seventh codicil, which revoked those provisions in favor of the plaintiff, and instead thereof left the plaintiff's share in trust during his life, and took from the plaintiff all right in and control of the principal, was made in violation of the said written contract under seal and the making of that seventh codicil and its taking effect on J. P.'s death violated the plaintiff's right under the said written contract under seal, and the plaintiff suf- fered damage thereby in a. large sum. That the exact amount of the plaintiff's damage is the amount of the plaintiff's fund as now held by the U. S. T. Co. of , after the said $ is reserved therefrom as provided in the fifth codicil. X. That the executors have complied with all the terms of the said decree and have paid over all money and property of the estate as therein directed; that there is no further property of the estate; and that the executors have no property in their hands and are free and discharged from all further liability and ac- countability by virtue of having complied with the said decree. XI That J. P.'s widow C. S. P., for whom a share of the resid- uary estate was set aside by J. P.'s wiU has died and her estate has been entirely wound up and distributed. XII. That the U. S. T. Co. of has paid over to J. P.'s daughters, F. and C, on their request, parts of the prmcipal of Bradbury's Forms of Pleading Husband aad Wife the two funds held for them and still holds in its hands certain parts of those funds. And that the said T. Co. still holds the whole of the principal of the plaintiff's fund or the reinvestments of it. XIII. That the plaintiff has demanded of the U. S. T. Co. of , as provided in the will that it turn over to him all of the principal of his share, except $ , the amount di- rected to be reserved by the fifth codicil, but the T. Co. has refused. XIV. That the seventh codicil, as mentioned above, seeks to give to the plaintiff's " heirs-at-law " the remainder after the plaintiff's life in the plaintiff's fund in the U. S. T. Co. The plain- tiff has no children descendants. His sisters, the defendants, F. and C, would be his only heirs at law if he died now. XV. ThattheU.S.T. Co. of is a domestic corporation. Wherefore the plaintiff demands judgment as follows: Adjudging and decreeing that the trust under the seventh codicil in the fund held for the plaintiff be declared to be created in violation of plaintiff's rights under his contract, and the plain- tiff is entitled to the principal of his said fund held by the U. S. T. Co. after $ is reserved therefrom in accordance with the provision of the fifth codicil, and that the said trust under the seventh codicil be abrogated and that the remainders in said fund given by the seventh codicil to the heirs of the plaintiff be extinguished, and that the plaintiff's two sisters, F. and C, and all other persons who may ever be his heirs-at-law be barred therefrom, and that it be declared that the U. S. T. Co. holds that fund under the will as modified by the first six codicils and that the T. Co. be directed to turn over all «f said fund with the increment thereto and accumulation thereof to the plaintiff, ex- cept the S directed by the fifth codicil to be reserved, and that the said T. Co. be directed to continue to hold the said $ , of the fund in accordance with the terms of the trusts declared by clause ninth of the will. And the j^laintiff demands judgment for such other and further relief as may be just and for costs. Complaints 885 Husband and Wife Form No. 559 Marriage Settlement; Enforcement by Accounting ' The plaintiff above named, by D., S. & A., her attorneys, by this her amended complaint, respectfully shows : I. That on or about the day of > 19 , at W., in the State of H., German Empire, this plaintiff, and the defendant, J. W. G., agreed to be married to each other and to take up their residence as husband and wife, in the city of B., State of Maryland, in the U. S., and to execute a certain deed of trust designated as an indenture of marriage settlement, herein- after more fully and at large set forth. II. That on said day of , 19 , at W. afore- said, in pursuance of said agreement, the said indenture of mar- riage settlement, of which a copy is hereto annexed and marked Exhibit "A," and to which the plaintiff prays leave to refer as though the same were herein set forth in full, was duly signed and sealed by this plaintiff and by the said defendant, J. W. G., and thereafter on said day the plaintiff and the said J. W. G. were married to each other and thereupon immediately went to the city of B. aforesaid, and took up their permanent abode where they resided for many years. That at the time of the commencement of this action the plaintiff and the defendant, J. W. G., were each a resident of the State of New York. III. That after the said deed of marriage settlement had been executed as aforesaid, the said J. W. G. took the same into his possession and promised and agreed to procure the execution of the same by the trustees therein named, but that said J. W. G. wholly failed and neglected to procure such execution and will- fully suppressed and concealed said indenture from said trustees and retained exclusive possession and c ontrol of said indenture 1 From Gleitsmann v. Gleitsmann, 60 App. Div. 371; 70 Supp. 1007; wherein it was held that the complaint stated a good cause of action agamst the hus- band and that the court had jurisdiction, as the parties now resided mNew York, although the settlement was made in Germany to be executed m Mary- land where the parties resided for a long time. 886 Bradbury's Forms of Pleading Husband and Wife for many years thereafter, and although frequently thereunto requested by this plaintiff, refused to permit the said trustees to execute said indenture or enter upon their duties as trustees thereunder. On information and belief, that the said trustees stood ready and willing at all times to execute said indenture a;nd to accept said trusts, which facts are well known to the said J. W. G. IV. That subsequent to the execution by said J. W. G. of the aforesaid indenture of marriage settlement, he received a portion of the property provided by said indenture to be held in trust for the purposes therein expressed, and applied a por- tion of the income thereof to the purposes expressed in said indenture and retained for his own use and benefit, contrary to the terms of said indenture, a certain other portion of said in- come, for which he has never accounted. V. That after the execution of the aforesaid indenture of marriage settlement by this plaintiff, certain of the property provided in said indenture to be held in trust for the purposes therein expressed was received by this plaintiff, and the income thereof was applied by this plaintiff to the purposes expressed in said indenture, for which income the plaintiff has never accounted. VI. That W. J. P., named as one of the trustees in said in- denture, is dead, and the defendant, F. P., who is hvijig in E. and is named in said indenture as one of the trustees, has re- fused to execute said indenture or accept said trust. That since the commencement of this action, to wit, on the day of , 19 , in the city of S., in the country of E., the defendant, J. P., who is named in said indenture as one of the trustees thereof, accepted said trust and duly signed, sealed and delivered the said indenture. On information and belief, that the said J. P. desires the appointment of a trustee or trus- tees residing in the U. S. of A., to act with him in the execution of said trust. VII. On information and belief, that by the law of the State of M., in contemplation of which the said indenture of marriage Complaints 887 Husband and Wife settlement was made, the parties to said indenture who received or who had in their possession or control the property therein provided to be held in trust, became trustees ad interim for the purposes expressed in said indenture until the qualification of the trustees named in said indenture or the appointment of others in their place. That the plaintiff desires to account for her acts and proceedings as trustee ad interim under the afore- said indenture of marriage settlement with respect to that por- tion of the trust fund which has come into her possession, and the plaintiff desires that said J. W. G. shall also account for his acts and proceedings as such trustee in respect to the portion of said trust fund which has come into his possession. VIII. The defendant, E. F. G., is the only issue of the mar- riage of the plaintiff and the said J. W. G., and has under said indenture of marriage settlement a vested interest in the prin- cipal of said trust fund. IX. That by a judgment duly rendered on or about the day of , 19 , in an action in the Supreme Court of the State of New York, in which this plaintiff was plaintiff, and in which the said J. W. G. was defendant, upon personal appearance of said defendant an absolute divorce was granted to this plain- tiff from said J. W. G. Wherefore, the plaintiff prays: I. That a trustee be appointed by this court of the trusts created by said indenture of marriage settlement in the place and stead of W. J. P., deceased. II. That an accounting be had by and between the trustee so appointed, including the defendant, J. P., and the defendant, J. W. G., and this plaintiff, in respect to those portions of the trust fund which have respectively been received and admin- istered by this plaintiff and the said J. W. G., and that the court make such order or decree in respect to the said trust fund as upon such accounting shall appear to be just and equi- table. 888 Bradbury's Forms of Pleading Husband and Wife Form No. 560 Enforcement by Wife of Agreement to Pay Sum of Money to Her Made by Third Party, for Consideration Paid by Her Husband ^ For a first cause of action. I. That on or about the day of , 19 , an agreement was entered into by and between the plaintiff and defendant whereby in consideration of services theretofore rendered and thereafter to be rendered to the defendant by R. D. B., the husband of this plaintiff, and by one R. G. D. and by this plaintiff, and of other good and valuable considerations moving from the said R. D. B., R. G. D. and this plaintiff unto the said defendant, the said defendant promised and agreed with the plaintiff that in the ev6nt of the success of certain proceedings then pending or any which might thereafter be taken to practically set aside the section, article or clause of the last will and testament of the late S. J. T., the uncle of the said defendant, the said defendant would pay to this plaintiff or to her order the sum of $ II. That at the time of the making of the said agreement, there was pending in the Supreme Court in and for the city and county of New York, an action brought by the defendant herein as plaintiff against A. H. G. and others, as executors and trus- tees under the last will and testament of S. J. T., deceased, im- pleaded with this plaintiff and others as defendants, in which action the defendant herein as plaintiff sought judgment, among other things, adjudging and decreeing that the devises and be- quests embraced in the clause of the said last will and testament were at the death of said S. J. T. illegal and void and of no effect, and that in respect to the property mentioned therein, the said S. J. T. died intestate, and the said property at the death of the said S. J. T. vested in due course of law in the defendant herein and the other heirs-at4aw and next-of-kin of said S. J. T., deceased. That the said Supreme Court had full and complete jurisdiction of the subject-matter of the said 1 From Buchanan v. Tilden, 158 N. Y. 109. Complaints 889 Husband and Wife action, and of the parties thereto; and that all necessary parties to a complete adjudication of said subject-matter were before the court in said action, having been duly summoned, or hav- ing duly appeared therein by their attorneys. That such pro- ceedings were had in the said action as finally resulted in a judgment of this court, which was duly entered in the office of the clerk of the city and county of New York on or about the day of , 19 , which among other things, adjudged that the provisions of the article or clause of the said last will and testament were illegal and void and that as to the property therein mentioned and each and every part thereof, the same was undisposed of by the said provisions of said last will, and at the death of the said testator, the said property and each and every part thereof, descended to and vested in due course of law in the defendant herein [G. H. T.] and the other heirs-at-law and next-of-kin of the said S. J. T., deceased, and that as to his entire residuary estate, the said testator died intestate, and the whole thereof at his death de- scended to and vested in the defendant herein G. H. T., and the other heirs-at-law and next-of-kin of the said S. J. T., de- ceased. That thereafter the defendants in the said action, A. H. G., J. B. and G. W. S., as executors and trustees under the said last will and testament, and the defendant in said ac- tion, the corporation styled the T. Trust , having ap- pealed to the general term of this court from the judgment entered as aforesaid on the day of , 19 , the last-mentioned judgment was by a judgment duly ordered by the said general term and entered in the office of the clerk of the city and county of New York, on or about the day of , 19 , in all respects above mentioned, duly affirmed. That thereafter said last-mentioned defendants hav- ing appealed to the Court of Appeals from the said judgment entered on the day of , 19 , the last-men- tioned judgment was by a judgment of the Court of Appeals, duly entered on or about the day of , 19 , in all respects affirmed; and that by virtue of the said last- 890 Bradbury's Forms of Pleading Husband and Wife mentioned judgment of the Court of Appeals in the said action, the section, article or clause of the last will and testa- ment of the said S. J. T., deceased, was practically set aside within the meaning of the above mentioned agreement. III. That the said defendant has paid to this plaintiff on account of the said $ the following sums of money, to wit: [Here are inserted the amounts and dates.] IV. That no part of the said sum of $ has been paid by the defendant to the plaintiff except as last above men- tioned; and that there is now justly due and owing from the defendant to the plaintiff under the said agreement the sum of $ , with interest as hereinafter demanded. For a second cause of action. V. That on or about the day of , 19 , an agreement was entered into by and between the defendant and R. D. B., the husband of this plaintiff, whereby in considera- tion of services theretofore rendered and thereafter to be ren- dered by the said R. D. B. and by R. G. D., and other good and valuable considerations moving from the said R. D. B. and the said R. G. D, to the said defendant, the said defendant promised and agreed with the said R. D. B. that in the event of the suc- cess of certain proceedings then pending, or any which might thereafter be taken, to practically set aside the potion, article or clause of the last will and testament of the late S. J. T., the uncle of the said defendant, the said defendant would pay to this plaintiff, or to her order, the sum of $ VI. That as evidence of the last mentioned agreement, the said defendant wrote and signed and delivered to one R. G. D. the following letter: "New York, February 19, 1887. "R. G. D., Esq., "No. 314 Broadway, "New York City. "My dear Sir:— "It is understood between Mr. R. D. B. and myself that in the Complaints 891 Husband and Wife event of the success of the proceedings now pending, or any which may be taken to practically set aside the sec- tion of the will of my late uncle, S. J. T., in view of the assist- ance looking to that end which has been and may be rendered by Mr. B., as well as yourself, that I will and do hereby become responsible for the payment to Mrs. A. E. B., or her order, of the sum of $ . "It is further understood between us that while I am not strictly authorized to speak in behalf of my brothers and sis- ters in that respect that from what has already transpired be- tween me and them, in the event of such success they will be dis- posed to act generously with Mrs. B. in the premises. "Yours very respectfully, "G. H. T." VII. The plaintiff here repeats the allegations of this com- plaint contained in paragraphs numbered II, III and IV, and makes the same as a part of this cause of action. Wherefore [prayer for money judgment]. Form No. 561 Alienation of Wife's Affections * • I. That on or about the day of , 19 , at , in the State of , the plaintiff and one H. W. S., intermarried and became husband and wife; and the said •plaiiitiff and said H. W. S. have ever since been, and are now hus- hed and wife. _ . II; That shice said marriage, and until about the , day of , 19 , the plaintiff and his said wife have lived md cohabited with, and manifested great love and affection for each other and have lived peacefully, happily and harmomously as husband and wife. That there were born to the said plam- tiff and his said wife children of which only one H. E. P& R., of the age of years on the day of , 19 , is now alive. 1 From D^ Ronde v. Bell, 116 App. Div. 191 ; 101 Supp. 497. 892 Bradbury's Forms of Pleading Husband and Wife III. That prior to, and since said marriage, the said defend- ants have, at all times exercised and exerted an influence and control over the mind of the said plaintiff's wife, and that since said marriage, the said plaintiff's wife frequently visited the said defendants and the said defendants did as often return the said visits, so that at divers times, said wife and said defendants were in the presence of one another for at least several hours almost every day. IV. That in or about the month of , 19 , the de- fendants well knowing said H. 'W- S. De R. to be the wife of plaintiff and wrongfully contriving and intending to injure the plaintiff, and to deprive him of her comfort, society and aid ma- liciously enticed her away from the plaintiff and her then resi- dence in , , and have ever since detained and harbored her against the consent of the plaintiff, and in opposi- tion to his utmost peaceable efforts to obtain her from the de- fendants' custody, control and influence. V. That at divers times between the day of , 19 , and the day of , 19 , the defendants by various acts, promises of valuable presents and payments of money made by them to plaintiff's said wife and by representations made to her that plaintiff was not fit to be her husband and life companion, have wholly alienated and destroyed the love and affection of the plaintiff's said wife for him, and said defendants encouraged and directed said wife to remain with them and apart from plaintiff, and since on or about the day of , 19 , the plaintiff has been compelled to live separate and apart from his said wife by the conduct, promises and rep- resentations of defendant as aforesaid. VI. That by reason of the premises, the plaintiff has been and Still is wrongfully deprived by the defendants of the comfort, society, aid and services of his said wife, and has been put to great trouble and expense in endeavoring to recover her from the defendants, and has suffered great distress of body and mind, to his damage $ Wherefore [demand for money judgment]. Complaints §93 Breach of Contract to Marry CHAPTER XXVIII BREACH OF CONTRACT TO MARRY ^ FORMS NO. p^Qj. 566. Breach of promise of marriage; day certain 893 567. Breach of promise of marriage; time not specified 894 Form No. 566 Breach of Promise of Marriage; Day Certain ^ Supreme Court, county. Nellie E. Yale, Plaintiff, against William R. Curtis, Defendant. The plaintiff complaining of the defendant.alleges: I. In or about the month of , 19 , at the city of , the plaintiff and defendant both being unmarried, the defendant in consideration that the plaintiff would marry the defendant, he, said defendant, promised and agreed to marry the plaintiff and the said plaintiff and said defendant then be- came and were duly engaged to each other to be married. II. That such engagement continuing the time when such marriage was to be solemnized was fixed and agreed upon be- tween the plaintiff and defendant for the day of , 19 , and at the defendant's request, the plaintiff assenting thereto, said time of marriage was postponed and fixed for the day of , 19 , at the plaintiff's home in the city of * To recover for a breach of promise of marriage there must have been a meeting of the minds as in other contracts. Yale v. Curtiss, 151 N. Y. 598; rev'g 71 Hun, 436; 24 Supp. 981. 2 From Chellis V. Chapman, 125 N. Y. 214. 894 Bradbury's Forms of Pleading Breach of Contract to Marry III. That the plaintiff confiding in said promise so made by defendant has always since remained and now is ready ancyf^ill- ing to marry the defendant. IV. That the defendant in violation of his said promise to marry the plaintiff neglects and refuses so to do, although a rea- sonable time elapsed before the commencement of this action for the fulfillment of his said promise. V. That at the time of plaintiff and defendant's engagement as aforesaid she, said plaintiff, was engaged as a teacher in the public schools of the city of and had been for a long time prior thereto and that on account of her said engagement and contemplated marriage with defendant she gave up her posi- tion as a teacher and set about arranging for her marriage with the defendant and spent and devoted a good deal of time and money in procuring her marriage outfit, all of which defendant well knew. Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification.] Form No. 567 Breach of Promise of Marriage; Time Not Specified ' I. That on or about the day of , 19 , at the city and county of , in the State of , in con- sideration that the plaintiff, who was then unmarried, at the request of the defendant, promised the defendant to marry him on request, he, the defendant, promised to marry the plaintiff within a reasonable time. II. That the plaintiff, confiding in said promise of said de- fendant, has always since remained and now is ready and will- ing to marry tfie defendant. III. That the plaintiff before the making of said promise by said defendant had devoted much time and expended large sums of money in preparing and qualifying herself, and had ^ From Campbell v Arbuckle, 123 N. Y. 662; aff'g without opinion 51 Hiw, 641;4Supp. 29, Complaints 895 Breach of Contract to Marry qualified herself as a singer with a view to sin^ng in public and giving instruction in vocal music as a profession and for com- pensation ; but that after the making of said promise by said de- fendant she, at the desire and request of said defendant, aban- doned her purpose to sing in public and to give instruction in music, and discontinued the necessary study, practice and train- ing to maintain and perfect her qualifications in that regard, by reason whereof her qualifications for said profession have become and are greatly lessened and impaired ; of all which said defend- ant was at all times fully advised. rV. That the defendant refuses to marry the plaintiff although a reasonable time had elapsed before this action, to the damage of the plaintiff in the sum of $ Wherefore [demand for money judgment]. 896 Bradbury's Forms of Pleading Replevin CHAPTER XXIX REPLEVIN 1 FORMS NO. PAGE 669. Wrongful taking 896 570. Replevin against sheriff for goods taken on execution. Allegation defendant had rebonded goods 897 571. Tenant against landlord to recover fixtures 899 672. Action by committee of person sentenced to life imprisonment to se- cure contents of safe deposit box 900 Form No. 569 Wrongful Taking ^ Supreme Court, county. John Hofman Company, Plaintiff, against Edward Murphy, 2d [and others named] Defendants. The plaintiff complaining of the defendants, alleges : I. That plaintiff now is, and was at all times hereinafter named a domestic corporation with its principal place of business in the city of , N. Y. II. That as plaintiff is informed and verily believes to be true, the defendant, the C. M. Co., is a domestic corporation. III. That at the time of the commencement of this action plaintiff was the owner, and was entitled to the immediate pos- session^ of the chattels described as follows : [Insert description].* 1 See Vol. II, Bradbury's Lansing, p. 1208. ^ From John Hofman Co. v. Murphy, 187 N. Y. 648; aff'g without opinion 111 App. Div. 908, in which a judgment in favor of the plaintiff was affirmed. ' See Vol. II, Bradbury's Lansing, p. 1217, as to when replevin will lie, even though the defendant is not in possession of the chattels. ■* Code Civ. Pro., § 1695. See Vol. II, Bradbury's Lansing, p. 1221, for cases sjiowii^C the necessity of accurate description. Complaints §97 Replevin IV. That said chattels were of the value of $ } V. That, as plaintiff is informed and verily believes to be true, before the commencement of this action the defendants wrong- fully took the said chattels into their possession and wrongfully detain the same from the plaintiff. \I. That as plaintiff is informed and verily believes to be true, before the commencement of this action a demand= was made upon the said defendants for the possession of said chat- tels on behalf of the plaintiff, but that defendants refused to de- liver the same. VII. That plaintiff has been damaged in the sum of $ by the detention of said chattels by the defendants. Wherefore, the plaintiff demands that the defendants may be adjudged to deliver to the plaintiff the said chattels and to pay the plaintiff damages for the detention thereof in the sum of $ , and in case a delivery thereof cannot be had, that the plaintiff may recover the value of said chattels with dam- ages, as^ aforesaid, and in case the defendants shall retain the said property during the pendency of this action, that plaintiff may recover such further damages for the wrongful detention thereof as may be just besides the costs of this action. Form No. 570 Complaint — Replevin Against SheriS for Goods Taken on Execution- Allegation Defendant Had Rebonded Goods ^ The above-named plaintiffs, for cause of action against said defendant, allege: That at aU the times in this complaint mentioned plaintiffs were co-partners engaged in business at the city of , N. Y., under the firm name and style of D., W. & Co., and during all said times the above-named defendant was, and now is, sheriff of the county of , State of N, Y. ' See Vol. II, Bradbury's Lansing, p. 1223. ^ See Vol. II, Bradbury's Lansing, pp. 1218, 1219. ^From Desbecker v. McFarline, 166 N. Y. 625; aff'g without opinion 42 App. Div. 455; 59 Supp. 439; in which a judgment in favor of the plaintiff was aflSrmed. Vol. 1—57 Bradbury's Forms op Pleading Replevin That at the time of the commencement of this action, and also at the time of the replevy of the goods hereinafter referred to, the said plaintiffs were the owners and lawfully entitled to the immediate possession of said personal property and chattels, which are mentioned and described in schedule "A," annexed to and made part of this complaint. That at the time of the commencement of this action of the replevy of said property by these plaintiffs, the said defendant had possession' thereof, and the plaintiffs, before the commence- ment of this action or the replevy of said goods, duly demanded of said defendant the delivery thereof to these plaintiffs, which was refused by said defendant, who wrongfully detained the same from the plaintiffs herein. Upon information and belief, that the alleged cause of deten- tion of said property by said defendant was that he, the said defendant, as sheriff of said county, claimed to hold said prop- erty by virtue of certain executions which had been issued to him as such sheriff against the property of F. E. S. and D. M. C, constituting the firm of C. & S., upon five judgments recovered, pursuant to offers of judgment made and given by said C. & S. to H. M. C, B. C, E. E. S., D. & Co., and D. E. S., as trustees, re- spectively, and which were recovered by said persons against said C. & S. That said goods so retaken by defendant constituted a portion of goods sold and delivered by these plaintiffs to said C. & S., and obtained by them from these plaintiffs under false and fraudulent representations made by them as to their assets, and which sale these plaintiffs have duly rescinded. That since the commencement of this action the said defend- ant has retaken and rebonded said goods so replevied by these plaintiffs, as aforesaid, and for which judgment is asked in this action, and the same were returned to, and now are and remain in the possession of said defendant, or have been sold by him pur- suant to said executions. ' See notes to form No. 569. Complaints 899 Replevin That the value' of said goods so replevied by these plaintiffs, and for the possession or value of which judgment is asked herein, is the sum of $ Wherefore, plaintiffs demand judgment against said defend- ant for the recovery or possession of the goods and chattels de- scribed in said schedule "A," or for the sum of $ , the value thereof, in case a delivery cannot be had, together with the sum of $ , damages, besides the costs of this action. Form No. 571 Tenant Against Landlord to Recover Fixtures ^ I. That at all the times hereinafter named the plaintiffs were and still are copartners in trade carrying on business in the city of , under the firm name and style of B. and S. II. That at the said city of , and on or about the day of , 19 , one A. M., for a valuable consid- eration, made and deUvered to these plaintiffs her certain prom- issory note dated on that day, wherein and whereby she, the said A. M., promised and agreed to pay on demand to the order of these plaintiffs the sum of $3,000, with interest, at No. street, in the city of III. That as collateral security for the payment of the said note the said A. M. did on the day of , 19 , make, execute and dehver to these plaintiffs a mortgage on the chattels then in the saloon in the premises known as No . street, in the city of , a copy of which was filed in the office of the register of the city and county of on the day of , 19 , in which county the said A. M. then resided and still resides. That before the time hereinafter mentioned, the said sum of $3,000, with interest, was duly demanded from said A. M. by the plaintiffs, but said A^MJailedto_pay th e same, and thereupon 1 See notes to form No. 569. 2 From Bemheimer v. Adams, 70 App. Div. 114; 75 Supp. 93; affd 175 N. Y. 472; in which the plaintiff succeeded. See Vol. II, Bradbury's Lansing, p. 1208. 9D0 Bradbury's Forms of Pleading Replevin pursuant to said mortgage, the plaintiff became entitled to the immediate possession of the following chattels, that is to say : One storm house; one iron awning; two urinals; two water closets and twenty feet of oak partition, now in or about the premises known as No. , street, in the borough of , in the city of That the value ^ of said chattels is the sum of $480. That on or about the day of , 19 , at No. , street, in the city of , the defendant wrongfully took possession ' of the aforesaid chattels, and since then the defendant has wrongfully and unlawfully withheld and still wrongfully and unlawfully withholds the same from these plaintiffs. That thereafter and prior to the commencement of this action the plaintiffs demanded ^ of the said defendant the immediate return and deUvery up of the said chattels to them, but he has refused to make such return and delivery. Wherefore, plaintiffs demand judgment against the defend- ant for the recovery of the possession of said property, and in case a return cannot be had, then for the sum of $480, the value thereof, together with the costs of this action and the damages sustained by the plaintiffs not exceeding the sum of $250 for such detention. Form No. 572 Action by Oommittee of Person Sentenced to Life Imprisonment to Secure Contents of Safe Deposit Box ^ I. That at all of the times hereinafter mentioned, plaintiff was and still is, a domestic corporation, duly organized under the banking laws of the State of New York, and having its principal ofhceatNo. , street, in the borough of , county and city of New York, and that at all times hereinafter ^ See notes to Form No. 569. 2 From Trust Co. of America v. State Safe Dep. Co., 187 N. Y. 178; in which this complaint was sustained on demurrer. See Vol. II, Bradbury's Lansing, p. 1208. Complaints 901 Replevin mentioned, the defendant was, and still is, a. domestic corpora- tion organized under the laws of the State of New York, and that its principal office was formerly at No. , street and is now at No. , place, in the borough of county and city of New York. II. On information and belief, that heretofore, and on or about the day of , 19 , one A. J. S., a resident of New York City, rented a safe deposit box in the vaults of the de- fendant, and deposited therein certain stocks, bonds, cash and other personal property belonging to him, all of which are still contained in said box, and are in custody and under the control of the defendant; that an exact and detailed list ^ of said prop- erty is annexed hereto, marked Exhibit "A," and made a part of this complaint and that all of the property therein named and described is the property of A. J. S. III. Upon information and belief, that on or about the day of , 19 , said A. J. S. was convicted and sentenced to imprisonment in the State prison at hard labor, for the term of his natural life, by the court of oyer and terminer in and for the city and county of New York, upon conviction by verdict of murder in the second degree of one C. G. R., which sentence is still in force and effect. That under and in pursuance of said sentence he ha^ ever since been, and still is, confined in the State's prison, having been so confined in Sing Sing prison from J 19 , to , 19 , and in the Dannemora State hospital for insane convicts since the latter date, on which date he was transferred to said hospital under the provisions of chap- ter 520, laws of 1899. IV. That on or about the day of , 19 , an order was duly made at special term, part I, of this court ap- pointing the plaintiff, the T. Co. of A., as committee of the estate of said A. J. S., a life convict, under the provisions of chapter 401, laws of 1899; that a copy of said order and of all the proceed- ings upon which the same was made, is hereto annexed, marked 1 See notes to Form No. 569. 902 Bradbury's Forms of Pleading Replevin Exhibit "B" and made a part of this complaint, and that the plaintiff thereupon duly qualified as such committee and en- tered upon the discharge of its duties as such, and still continues to be such committee. V. That, under and in pursuance of the terms of said order of appointment, the plaintiff, as such committee, prior to the com- mencement of this action, duly demanded ' of the defendant the delivery of all the property and effects of said A. J. S., heretofore deposited by him in said deposit box in the vaults of the defend- ant and now in the custody and under the control of the defend- ant as aforesaid, mentioned and described in Exhibit "A" and at the same time duly tendered to the defendant payment in full of all arrears of box rent due the defendant from the said A. J. S., and also duly demanded access to the said safe deposit box in the defendant's vaults standing in the name of said A. J. S. and per- mission to remove therefrom and take into its possession the said property of said A. J. S. contained therein. VI. That the defendant has wholly failed and neglected to comply with any of the aforesaid demands of the plaintiff, and has wholly refused, and continues to refuse, to surrender or de- liver to plaintiff, the said property of said A. J. S. described in Exhibit "A " or any part thereof, or to permit the plaintiff to have access to sa'd safe deposit box and remove said property therefrom and now wrongfully detains ' the same from the plain- tiff to the plaintiff's damage in the amount of $ VII. That prior to the commencement of this action, and on or about the day of , 19 , the plaintiff was duly authorized by an order of this court to bring this action. Wherefore, plaintiff demands judgment against the defend- ant for the possession of said property described in Exhibit " A " or for the sum of $ , damages in case possession thereof cannot be given to the plaintiff, together with the costs of this action. * See notes to Form No. 569. Complaints 903 Conversion CHAPTER XXX CONVERSION FORMS NO. PAGE 574. Conversion of Piano 903 575. Conversion of law books 904 676. Conversion of yacht; assigned claim 904 577. Conversion of a check 905 578. Conversion of checks which had been stolen 906 579. Conversion of notes given for specific purpose and diverted there- from; action against executor 906 580. Conversion by bank in accepting check of corporation on fund de- posited to its credit, to extinguish debt of individual oflBcers of said corporation 909 581. Forged indorsement of draft; action against person receiving pay- ment on such indorsement 912 582. Stock delivered to defendant to be deposited in the name of plain- tiff until reorganization agreement was deposited by defendant in his own name and defendant accepted proceeds thereof 913 583. Chattels taken by sheriff; substitution of sheriff's indemnitors as de- fendants 916 584. Removal of fixtures 918 585. Landlord's removal of tenant's building 919 586. Conditional sale of personal property attached to real estate 919 587. Conversion; including claim for consequential damages. Foreign corporation; compliance with L. 1896, c. 908, § 181 920 588. Conversion and false arrest 922 Form No. 574 Conversion of Piano ^ Supreme Court, county. Buckingham, Plaintiff, against Vincent, Defendant. The plaintiff complaining of the defendant, aUeges: I. That on o r about the day of ■ ^^ ' ^^^ 1 From Buckingham v. Vincent, 23 App. Div. 238; 48 Supp. 747; in which judgment for the plaintiff was affirmed. 904 Bradbury's Forms of Pleading Conversion plaintiff was the owner and in possession of one piano of the value of $ II. That on or al^out the day of , 19 , the defendant wrci^f i-iHy and unlawfully took from the possession of the said plaintiff the said p'aao, and has wrongfully and unlaw- fully convcrtod the same to his own use without the consent of the plaintiff. III. That prior to the commencement of this action, the plaintiff demanded of the said defendant, the said piano or its value, and he refuses to give it up or to pay its value to the dam- age of this plaintiff of $ Wherefore [demand for money judgment]. [Signature and office address of attorney, and verification.] Form No. 575 Conversion of Law Books ' I. That at all the times hereinafter mentioned the defendants were, and still are, copartners trading under the name and style of B. & Bro. II. That before and until the time hereinafter mentioned, the plaintiff was lawfully possessed of the following property, to wit : volumes of law books, his property, of the value of % III. That on the day of , 19 , while plain- tiff was lawfully in possession of said above mentioned ^oods the defendants wrongfully took the said above mentioned goods £rom the possession of the plaintiff, and unlawfully converted and disposed of the same to their own use, to the plaintiff's damage '$ Wherefore [prayer for money judgm^ent]. Form No. 576 Conversion of Tacht; Assigned Claim ^ I. That before and on the day of , 19 , ^ From Vogel v. Banks, 60 App. Div. 459; 70 Supp. 1010; in which a judg- ment for the plaintiff was affirmed. ^ From Flagler v. Hearst, 91 App. Div. 12; 86 Supp. 308. For form of Complaints 905 Conversion one A. C. was the owner and on said date was entitled to the im- mediate possession of the steam yacht "A," her tackle, apparel and furniture. II. That on or about the day of , 19 , the said yacht, her tackle, apparel and furniture were in the pos- session of the defendant, who, although requested so to do by said C, would not deUver the same to him, but then and ever since wrongfully detained the same and wrongfully and unlaw- fully converted the same to his own use to the damage of said C.$ III. That on or about the day of , 19 , the said C. duly assigned to this plaintiff his claim against the de- fendant for damages for said conversion. Wherefore [demand for money judgment]. Form No. 577 Conversion of a Check ^ I. That the parties to this action now are and were at all times hereinafter mentioned, residents of the city of , county of , and State of New York. II. That at the time hereinafter mentioned plaintiff was the owner and entitled to the possession of a certain check drawn on the Bank, , by defendant, to the order of T. E. L., for the sum and of the value of $ III. That on or about the day of , 19 , in the aforesaid city of , the defendant wrongfully took from this plaintiff and converted to his own use and enjoyment, said check to the damage of plaintiff $ Wherefore [prayer for money judgmen t]. answer in this case see chapter on Answers. The court commended the pleadings in this action in the following language: "In these days of unnec- essary and improper proUxity of pleadings it is certainty ref reshmg to meet a complaint and answer which set out the cause of action and the defenses intended to be offered thereto in such concise and appropriate l^°g"ag« ^ >« used in the pleadings in this action." Flagler .. Hearst 91 App. P^^. 12 14^ 1 PawsoD r. Miller, 66 App. Div. 12; 72 Supp. 1011; m which a judgment ■r Kivnr of the defendant was reversed. 906 Bradbury's Forms op Pleading Conversion Form No. 578 Conversion of Checks Which Had Been Stolen ' I. That the defendant is a banking association created by and under the laws of this State, organized pursuant to an act of the Legislature, entitled "An Act to Authorize the Business of Banking, and the Acts Amending the Same." For a first cause of action. II. That heretofore and on the day of , 19 , at , in the State of New York, M. L. J., drew his certain check in writing, and directed the same to the bank of , and directed said bank to pay to the order of S. & F., a copartnership then composed of this plain- tiff and one R. F., $ , and duly delivered said check to the said firm of S. & F. for value, who thereby became the sole own- ers thereof. III. That thereafter the defendant became wrongfully pos- sessed of said check, and while so possessed thereof, after demand duly made therefor by the plaintiff, refused to deliver the same, wrongfully and unlawfully converting the same to its own use, to the plaintiff's damage of $ IV. That heretofore and before the commencement of this action, and in the month of , the said firm of S. & F. duly dissolved, and said R. F. sold, assigned and transferred over unto this plaintiff all her right, title and interest in and to the assets of said firm, including the said cause of action. [There are many other causes of action on other checks. A money judgment is demanded.] Form No. 579 Notes Oiven for Specific Purpose and Diverted Therefrom; Action Against Executor " I. That in or about the month of , 19 , it was ^ From Spero v. West Side Bank, 168 N. Y. 588; aff' g -without opinion, 42 App. Div. 619; 59 Supp. 57; in which a judgment for the plaintiff was af- firmed. ^ From Hynes v. Patterson, 95 N. Y. 1; in which a judgment in favor of Complaints 997 Conversion agreed by and between the plaintiff and one J. J. B. that the plaintiff should loan his credit to said B, for the purpose of en- abling him to raise money to be used in discharging certain mdebtedness affecting certain real estate situated in the State of , in which real estate said B. and D. J. E., the de- fendant's testator, were, as plaintiff is informed and believes in some manner interested; that to accomplish the end in view the plaintiff should make his three promissory notes for certain sums, payable to the order of said B.; that said B. should in- dorse said notes and procure the same to be discounted; that out of the proceeds of such discount, the plaintiff should be paid a certain sum of money as compensation for the loan of his credit; that the residue of such proceeds should be applied to the discharge of said incumbrances upon said real estate; that bonds to the amount of $ secured by mortgage of said real estate, should be issued; that a sufficient amount of said bonds should be sold to provide funds for the payment of said notes at maturity; and out of the funds so to be provided, said notes should severally be paid and taken up by said B. at the maturity thereof. II. That for the purpose of securing the use of the said notes by said B. in the manner agreed upon, the application of the money obtained upon the discount thereof to the discharge of the said incumbrances upon said real estate, and the payment by said B. of said notes at maturity, or the reimbursement of the plaintiff in case he should be obliged to pay the same, it was agreed between the plaintiff, said B. and said D. J. E., that said notes should be signed by the plaintiff and left in the hands of said E. That said B. should procure some party or parties to discount the same. That said E. should deliver said notes to such party or parties and receive the proceeds of the discount thereof. That out of such proceeds said E. should pay to the plaintiff the sum agreed upon for the loan of his credit. That the balance of such proceeds, less certain commissions and the plaintiff was affirmed. For a discussion of the principle of this case, see Industrial & Gen. Trust Co. v. Tod, 170 N. Y. 263. 908 Bradbury's Forms of Pleading Conversion interest, should be applied by said E. towards satisfying said incumbrances on said real estate. That said real estate should be conveyed to said E. That bonds should be issued thereon to the amount of $ . That two-fifths of the bonds so to be issued should be held by said E. as security for the payment of said notes by said B. That upon the payment of all of said notes by said B., said bonds so to be held should be delivered to him; but that if said B. should fail to pay said notes, or either of them, at maturity, said two-fifths of said bonds should be delivered to said H. and become his sole and exclusive property. III. That in pursuance of such agreement and in reliance thereon, and for the purpose above mentioned and no other, the plaintiff made and delivered into the hands of said E., three promissory notes, one dated the day of , 19 , for $ ; another dated the day of , 19 , for $ , and another dated the day of , 19 , for $ , and each payable three months after the date thereof to the order of the said B.; and thereupon the said E. executed and delivered to this plaintiff a paper, a copy of which is here- unto annexed, marked "A," and which the plaintiff prays may be taken as a part of this, his complaint. IV. That thereafter and before the maturity of said notes or any of them, the said D. J. E., and said B., as plaintiff is informed and believes, instead of procuring said notes or any of them, to be discounted as required by said agreement, wrongfully di- verted two of them, to wit, the one dated the day of , 19 , and the other bearing date the day of , 19 , from the p'urpose for which they were rnade as aforesaid, and, without the knowledge, concurrence or consent of the plaintiff, wrongfully converted and disposed of the same to their own use by transferring them, after the indorsement thereof by said B., to the firm of C. & E., in part payment for a quantity of malt purchased from said firm by said E. and said B. or one of them; by reason whereof the plaintiff was com- pelled to pay, and has paid, said two notes, to his damage Complaints 909 Conversion V. That, as the plaintiff is informed and believes, the said D. J. E. departed this life in or about the month of > 19 , leaving a will whereby he appointed the defendants C. D. E. and T. E. P. executrix and executor thereof, which will was, as plaintiff is informed and believes, duly admitted to probate by the Surrogate of the city and county of New York, on or about the day of , 19 , and on the same day, letters testamentary upon said will, were duly issued to the defend- ants as such executrix and executor. VI. That prior to the commencement of this action the plain- tiff caused to be presented to the defendants, as such executrix and executor, his claim against the estate of said D. J. E., de- ceased, for his damages suffered as aforesaid, but the defend- ants, as such executrix and executor, disputed and refused to pay and still dispute and refuse to pay the same or any part thereof. Wherefore [demand for money judgment]. Form No. 580 Conversion by Bank in Accepting Check of Corporation on Fund De- posited to its Credit, to Extinguish Debt of Individual Officers of Said Corporation ^ I. The plaintiff for a first cause of action herein against the above-named defendant alleges that as he is informed and be- lieves, and relying on such information states, that The M. F. I. Company of New York, during the times hereinafter mentioned, prior and up to the day of , 19 , was a domestic corporation duly organized, existing and created by and pur- suant to the laws of the State of New York. II The plaintiff further alleges that heretofore and on or about the day of , 19 , by an order of the Supreme Court of the State of New York, duly entered m the office of the clerk _oUhe_co unty of on said day 1 From Kelsey v. Bank of Mansfield, 85 App. Div. 334; 83 Supp. 281; in which an attachment founded on the cause of action here alleged was sus- tained. 910 Bradbury's Forms of Pleading Conversion of , 19 , this plaintiff was appointed the temporary receiver of the said The M. F. I. Company of New York; and that thereafter and on or about the day of , 19 , this plaintiff was duly appointed as permanent receiver of the said The M. F. I. Company of New York by a final judg- ment of the Supreme Court, which said judgment was entered in the office of the Clerk of county on the day of , 19 , and that your petitioner duly qualified immedi- ately on the entry of the order appointing him temporary re- ceiver as aforesaid, as required by the terms of the order appoint- ing him, and acted as such up to the time of his appointment as permanent receiver herein as aforesaid; and that pursuant to said final judgment said plaintiff duly qualified as said perma- nent receiver, and now is and ever since has been acting as such, in pursuance and in discharge of the duties imposed upon him. III. Plaintiff further alleges that as he is informed and be- lieves and relying upon such information states: that the said defendant, "Bank of M.," now is, and during the times herein- after mentioned was, a corporation duly organized, existing and created by and pursuaint to the statute of the State of 0. rela- tive to the organization, government and control of banks within the State, and during all the times hereinafter mentioned, and now has its principal banking office and bank at M. in the State of 0. IV. The said plaintiff further alleges that he is informed and believes and relying on such information states : that during the times hereinafter mentioned, in the year 19 , and up to the time of the final dissolution of the said The M. Fire Ins. Co. of New York, as aforesaid, D. M. was at all times the president of said corporation, and H. E. C, the cashier thereof. V. That, as plaititiff is informed and believes, and relying on such information alleges, that heretofore and on or about the day of ,19 , W. A. M., W. M. H. and D. M., aforesaid, were indebted upon their personal obligations to the aforesaid, the "Bank of M," in the sum of $ Complaints 911 Conversion VI. Plaintiff further alleges that on the date last above men- tioned, to wit: on or about the day of , 19 , the said, The M. Fire Ins. Co. of New York, had on deposit to its credit and subject to its order and check with the said de- fendant, the "Bank of M," the sum of $ , and that on or about that date at the city of New York, the said D. M., as president, and H. E. C, as cashier, of the said The M. Fire Ins. Co. of New York, wrongfully and feloniously made a check, pay- able to the order of said defendant, signed by them as presi- dent and cashier of the said. The M. Fire Ins. Co. of New York, on the aforesaid, defendant, the "Bank of M.," on the fund therein so deposited to the credit of the said, The M. Fire Ins. Co. of New York, which said check was for the sum of $ , and was thereupon duly delivered to the said defendant who thereafter at their banking house at M. aforesaid, wrongfully appropriated and charged the same against the account and de- posit of the said M. Fire Ins. Co. of New York as aforesaid, and wrongfully credited the said last amount to and in cancellation, extinguishment and payment of the individual obUgation and indebtedness of the said W. A. M., W. M. H. and D. M. aforesaid. VII. The plaintiff further alleges that said defendant, at the time and' place aforesaid, well knew that the said fund upon which the said check was drawn as aforesaid was the property of and belonged to the said, The M. Fire Ins. Co. of New York, and that the said defendant then and there as aforesaid, wrongfully and willfully charged said check against the said sum on deposit as aforesaid, and applied and appropriated the amount thereof as aforesaid to the payment and extinguish- ment of the personal obligations and indebtedness of said AV. A. M., W. M. H. and D. M. to the damage and injury of this plaintiff in the sum of $ , with the interest thereon from day of , 19 . , Plaintiff further alleges that the payment of the aforesaid sum together with the interest thereon, has heretofore, and before the commencement of this action been duly demanded of the said defendant, and ."^aid defendant has refused and still refuses 912 Bradbury's Forms of Pleading Conversion and neglects to pay the same, although justly owing said sum to this plaintiff. Wherefore, plaintiff, as receiver, aforesaid, demands judg- ment [for money relief]. Form No. 581 Forged Indorsement of Draft; Action Against Person Receiving Pay- ment on Such Indorsement ' I. That the plaintiffs are copartners, doing business in the city of New York, under the firm name of H. & Co. II. That the above named, the M. U. E. Company, is a joint stock company or association, in the city of New York and county of New York, in this State, and consists of seven or more shareholders. III. That the defendant is the president of said company or association. IV. That on and before the day of , 19 , the plaintiffs were indebted to the firm of L., Q. & Co., a firm doing business in the city of , in the State of Louisiana, in the sum of $ . That on or about the said day of , , the firm of L., Q. & Co., by authority of plaintiffs, drew a certain draft or bill of exchange on these plaintiffs for said sum payable to the order of T. D. F., and of which the copy is annexed marked "A," and thereupon for- warded the same by mail to the said T. D. F. at , in Missouri, who thereupon became the owner thereof. V. That neither the said T. D. F., the payee of said draft, nor anyone on his behalf, ever received or indorsed the same. VI. That the letter containing the said draft was taken from the United States Post Office in , Missouri, aforesaid, by some person other than the payee thereof, and that there- after the words "T. D. F." were written on the back of the said draft, by some person other than the payee thereof, and by a person who was not authorized to sign the name of the said ^ From Holt v. Ross, 54 N. Y. 472, in which a judgment in favor of the plaintiff was affirmed. Complaints 913 Conversion payee, and who had no right, title or interest in or to said draft, with possession thereof, and no right or authority to receive, indorse, or dispose of the same. MI. That the said draft was subsequently presented to the l)laintifl's by the defendant, for acceptance and payment; that tlie plaintiffs then had no knowledge of the handwriting or signature of the payee thereof, nor that the said draft had been surreptitiously or fraudulently obtained from the post office, nor that the words "T. D. F." written on the back of said draft, were not the genuine signature of the payee thereof, nor that the defendant was not the lawful owner and holder thereof; that on the contrary, the plaintiffs relied on the defendant's representation of being the lawful owner and holder of said draft, and of having the right to collect the same; and that plaintiffs thereupon on the day of , 19 , paid to the defendant the full amount of the said draft. VIII. That the words "T. D. F.," indorsed on said draft, are forged; that the defendant had no right, title or interest of, in or to said draft, or to the possession thereof, and no right or au- thority to collect the same. That the plaintiff paid said draft by mistake, and through the misrepresentation or fraud of defendant. IX. That plaintiffs have been compelled to pay to the said L. Q. & Co. the sum for which said draft was drawn, on account of the same indebtedness for which it was drawn. X. That the defendant has refused to repay to the plaintiffs the amount of said draft, although the same was duly tendered back to the defendant. Wherefore [demand for money judgment}. Form No. 582 Stock DeUvered to Defendant to Be Deposited in the Name of Plaintifi Under Reorganization Agreement, Was Deposited by Defendant in His Own Name and Defendant Accepted Proceeds Thereof I. That both the plaintiff_andjtlie^ ^ are nonresidents 1 From Miller v. Miles, 171 N. Y. 675; aff'g 68 App. Div. 103; 68 Supp. 565; in which a judgment in favor of the plaintiff was affirmed. Vol, 1-58 914 Bradbury's Forms of Pleading Conversion of the State of New York and reside in the city of , county, II. That on or about the day of , 19 , this plaintiff was the owner and holder of shares of the capital stock of the Street Railway & Illuminating Co. of , , of the par value of $ per share, and upon said last-mentioned date this plaintiff was also the holder of shares of the capital stock of the Street R. & I. Co. of , , of the par value of $ per share, and that said last-mentioned shares of stock of the said Street R. & I. Co. were held by this plaintiff as security for the payment of certain promis- sory notes aggregating the sum of $ , with the accumu- lated interest thereon, signed by one E. C. G., and that no part of said notes has been paid. III. That on or about the day of > 19 , this plaintiff delivered to the above-named defendant the said shares of the capital stock of the Street R. & I. Co., for the express purpose of having the said defendant deposit said shares of stock with the M. T. Co., of New York; City, in trust for the use and benefit of this plaintiff. That the said shares of stock were to be deposited with the said M. T. Co. in pursuance of a plan for the reorganization of the Street R. & I. Co., such plan providing that all of the stock and bonds of the Street R. & I. Co. should be deposited with the said M. T. Co. as aforesaid. Said plan further provided that with each share of stock there should be deposited with said trust company the sum of I in cash, and that all the property, rights and franchises of the Street R. & I. Co. should be purchased by a committee chosen by the bondholders and stock- holders of said company. That a new corporation should be in- corporated for the purpose of acquiring all of the property of the Street R. & I. Co. The said plan of reorganization fur- ther provided that the stockholders of the Street R. & I. Co. for the stock held by them, should receive stock of the new corporation as follows : preferred stock to the amount of money Complaints 915 Conversion deposited with their stock in the M. T. Co. ; that is, for the $ required to be deposited with each share of stock, each stock- holder should receive preferred stock to an amount equal to the total amount so deposited by him, and should also receive com- mon stock of the new corporation to the amount of % of the face value of the stock of the Street R. & I. Co. held by him. IV. Plaintiff further alleges that such plan of reorganization was afterwards so modified, that at the time when said stock of the Street R. & I. Co. was deposited with the M. T. Co,, the owners of said stock were required to deposit therewith only per cent of the $ per share, as above required, and the balance of said $ per share was to be deposited when called for by the reorganization committee. V. Plaintiff further alleges that on the day of , 19 , the defendant, L. C. M., deposited with the M. T. Co. of New York City, the shares of the capital stock of the Street R. & L. Co., referred to in paragraph II of this complaint and belonging to this plaintiff. That said defendant deposited said stock with said trust colnpany as his own prop- erty and in his own name, and with such stock the defendant deposited the sum of $ ' VI. Plaintiff further alleges that thereafter a new corporation was organized and incorporated, to wit : The T. & E. Co., and that such new corporation acquired all of the property, rights and franchises of the Street R. & I. Co., in pur- suance of the aforesaid plan of reorganization. That for the shares of the stock of the Street R. & I. Co. of the par value of $ per share, there was delivered shares of the preferred stock of the T. & E. Co. of the par value of $ . VII. Plaintiff further alleges that on or about the day of , 19 , the stock and rights of such stock, both com- mon and preferred, of the T. & E. Co., by consent of all the stockholders, were sold to one H. A. E. of , , and after payment of certain obUgations of the corporation, the 91G Bradbury's Forms of Pleading Conversion surplus was to be divided and was divided among the stock- holders by consent of all the stockholders as follows : $ per share for the common stock and $ per share for the preferred stock. VIII. Plaintiff further alleges that in accordance with the above plan of distribution, he was entitled to a sum amounting in all to $ , and should have received for the said shares the last above-mentioned sum, less the sum of $ , the amount of the deposit of $ per share upon the said shares of the capital stock of the Street R. & I. Co., heretofore mentioned, that is to say, for his said stock the plaintiff should have received the sum of $ IX. Plaintiff further alleges that the defendant, L. C. M., after having deposited said stock with said M. T. Co. as his own property as aforesaid, refused to account to this plaintiff for the proceeds of the sale of plaintiff's stock as aforesaid, and refused and still refuses to pay over to this plaintiff the sum of $ , due to this plaintiff as the proceeds of the sale of the stock be- longing to the plaintiff as aforesaid, which said sum of money was received by the defendant for the use and benefit of this plaintiff. X. Plaintiff further alleges that the defendant has fraudu- lently converted and appropriated to his own use the money so received by him for the use and benefit of this plaintiff, and fraudulently and in violation of the trust and confidence reposed in him by this plaintiff, neglects and refuses to pay over to the plaintiff the said sum of $ , so received by the defendant for the use and benefit of this plaintiff. Wherefore [demand for money judgment]. Form No. 583 Chattels Taken by Sherifi; Substitution of SheritE's Indemnitors as Defendants ^ I. That at all the times hereinafter mentioned, the plaintiff 1 From Columbia Bank v. American Surety Co., 178 N. Y. 628; aff'g, with- out opinion, 84 App. Div. 487; 82 Supp. 1054; in which a judgment for the plaintiff was affirmed. The plaintiff held the property by virtue of a chattel jiiortgage aiic} yfus in possession thereof, Complaints 917 Conversion was and now is a domestic corporation organized and existing under and by virtue of the laws of the State of New York, and carrying on the business of banking in the city of New York. II. That on or about the day of , 19 , the plaintiff was the lawful owner and in possession of certain chat- tels, consisting of a stock of feathers, excelsior, lumber, strings, hair, jute, fiber, moss, velvets, velours, denims, ticking, matting, leather, fringes, buttons and hardware, as well as couches and chairs, brass and iron beds, and bedsteads and forms, and also certain safes, desks, workbenches, partitions, tools, stationary machinery and other implements and fixtures, all contained in the premises known and designated as and by the number of , , , street, in the borough of , in the city of New York, and also of two certain horses, together with their harnesses and blankets, and four cer- tain trucks or vans with their appiu-tenances contained and sit- uate in the premises known and designated as "Ferguson's Boarding Stable," at the corner of street and avenue, in the said borough and city, which said chattels were of the fair and reasonable value of upwards of $ III. That on said day of , 19 , T. J. D., then sheriff of the county of New York, at the instance and by the direction of the defendant herein, wrongfully took from the possession of this plaintiff and unlawfully removed all of said chattels, and thereafter unlawfully and wrongfully detained and withheld the same from the possession of this plaintiff, al- though return to the plaintiff of said chattels, was duly de- manded of said D., to plaintiff's damage, $ IV. That thereafter and on or about the day of , 19 , an action was duly instituted in this court by the above- named plaintiff against the said T. J. D., sheriff of the county of New York, as defendant, for the recovery of the sum of $ damages suffered and sustained by the plaintiff by reason of said unlawful taking and detention by said D. of said chattels as aforesaid. V. That thereafter proceedings were instituted by said D. m 918 Bradbury's Forms of Pleading Conversion the said action for the substitution in his place and stead as D. as defendant in the action of the A. S. Co. of New York, a defend- ant herein, due notice of which was given to the said A. S. Co. and to all other j arties interested therein, which proceedings re- sulted in the entry of an order in said action at a special term of this court on the day of , 19 , directing the substitution of said A. S. Co. of New York, the defendant herein, as defendant in lieu and place of said T. J. D., and directing the amendment of the summons and complaint in said action against said D., by the substitution of the name of the A. S. Co. of New York, for the name of said T. J. D., as sheriff aforesaid and in such further particulars as may be necessary by the changed condition of said action. VI. [Allegation that the defendant is a domestic corporation.] Wherefore [demand for money judgment]. Form No. 584 Removal of Fixtures ^ I. [Allegation that the plaintiffs are and were copartners.] II. That the plaintiffs are and were at the times hereinafter mentioned the owners in their own right of all the personal property hereinafter mentioned and described. III. That the defendants, on or about the day of , 19 , willfully, wrongfully and unlawfully took posses- sion of, and converted to their own use, the following personal property, belonging to the plaintiffs, that is to say, one office building, one derrick, flooring for five lots of ground and fencing and platform, then and now located and being on the premises, on the south side of street on the East river in the city of New York, which said premises are owned by the defendant J. S. and by him leased to the defendant H. T. W. IV. That on the day of , 19 , the plaintiffs demanded the surrender and delivery to them of the said personal 1 From Thorn o. Sutherland, 131 N. Y. 622; in which a judgment for the plaintiff was upheld Complaints gjg Conversion property above mentioned, of and from the said defendants and on that day the plaintiffs caused to be served personally' upon each of said defendants, a written demand from the said plamtiffs, for the surrender and delivery to the plaintiffs by the defendants of the said personal property. V. That the defendants refused and still refuse to surrender and deliver up to the plaintiffs the said personal property, and willfully, wrongfully and unlawfuUy retain and withhold the said personal property from the plaintiffs, and have converted the same to their own use. VI. That the value of said personal property so retained and withheld and converted to their own use by the defendants from the plaintiffs is $ Wherepobe [demand for money judgment]. Form Wo. 585 Landlord's Removal of Tenant's Building ^ I. [Allegation that the defendant is and was a domestic corpo- ration.] II. That on or about the day of , 19 at the town of , county, the defendant wrong- fully took and detained from this plaintiff and converted to its own use, certain personal property belonging to this plaintiff, namely, one two-story frame house with bars, bar fixtures, gas and plumbing fixtures. III. That the reasonable value of said property was $ Wherefore [demand for money judgment]. Form No. 586 Conditional Sale of Personal Property Attached to Real Estate ^ I. That during all the time and times hereinafter mentioned, * From Lewis v. Ocean Navigation & Pier Co., 125 N. Y. 341. * From Davie v. Bliss, 187 N. Y. 77. 920 Bradbury's Forms of Pleading Conversion the plaintiffs were and now are copartners doing business in the city of B., under the firm name of D. & D. II. That during all the time and times hereinafter mentioned, plaintiffs were the owners and entitled to the immediate posses- sion of one thirty-five horse power Olds gasolene engine situate in a building on premises belonging to or in the possession of one W. T. L., at B., county, N. Y., of the reasonable value of$ III. That on or about the day of , 19 , de- fendant unlawfully and wrongfully took possession of said engine and converted the same to her own use; and wrongfully and unlawfully refused to deliver possession of the same to plaintiffs, although demand therefor was duly made; and wrongfully and unlawfully converted the same to her own use to plaintiffs' dam- age in the sum of $ Wherefore [demand for money judgment]. Form No. 587 Conversion; Including Claim for Consequential Damages; Foreign Corporation; Compliance with L. 1896, C. 908, § 181 ' The plaintiff above named, complaining of defendant, by this his complaint, alleges : For a first cause of action. I. Plaintiff is a foreign corporation created, organized and existing under and by virtue of the laws of the State of New Jersey, engaged in the manufacture of proprietary medicines in the city and county of New York and having procured from the secretary of State of New York, a certificate that it has com- plied with all the requirements of law,^to authorize it to do ' From Parmele Co. v. Haas, 171 N. Y. 579; in which the complaint was held sufficient to support an order of arrest. ^ It was held that it was not required that the complaint in this case should contain an allegation showing compliance with L. 1896, c. 908, § 181, on a motion for an order of arrest ; such a defense should be raised by demurrer on answer. Parmele Co. v. Haas, 171 N. Y. 579. Complaints 921 Conversion business in this State, as provided by Section 15 of the general corporation law of this State. II. At all the times hereinafter stated defendant, under the name of J. A. H., by which name only he was known to plaintiff, was in the employ of the plaintiff in the city of New York, re- ceiving compensation for his services, and subject to the author- ity and orders of plaintiff, its officers and agents. III. Between the day of , 19 , and the day of , 19 , defendant while in the employ of plaintiff and subject to the authority and orders of plaintiff, as aforesaid, wrongfully took and stole from plaintiff, and fraudu- lently converted to his own use, certain gold bars of value of dollars, belonging to plaintiff, and intended to be used by plaintiff in its business, and which gold bars had been re- ceived by defendant to be used by him in the business of plain- tiff and for no other purpose, and sold and converted said gold to his own use. For a second cause of action. Plaintiff repeats the allegations contained in paragraphs I and II of this complaint and alleges : Upon information and belief, that between , and 19 , defendant, while in the employ of plaintiff, wrongfully took and stole from plaintiff and fraudulently con- verted to his own use certain other gold, to wit: chloride of gold, valued at dollars, by neglecting to use same in and ex- tracting same from certain medicinal specifics which it was de- fendant's duty to manufacture according to formula; and thereby the said preparations became useless and of no therapeutical value and much of said medicine became wasted, and by the sale and distribution of medicinal specifics manufactured by defend- ant on account of plaintiff, and in which he used insufficient gold, plaintiff lost customers and was damaged in its business to its further loss of dollars. Wherefore plaintiff demands judgment against defendant m the sum of dollars, with interest, and the costs of this action. 922 Bradbury's Forms of Pleading Conversion Form No. 588 Conversion and False Arrest ^ That at the times hereinafter mentioned, the plaintiff was in the possession and occupation of certain leasehold premises on the north side of Metropolitan avenue, and the west side of Mor- gan avenue, being ft. on Metropolitan avenue and about ft. on Morgan avenue, under a lease from the owner thereof, for years from the day of , 19 , and was the owner of and entitled to the possession of certain build- ings, upon the said premises above described, to wit, a building known as the Cover Shop, being ft. by ft.; one stable ft. by ft. ; one factory building, including sheds, furnaces and four ovens, and was also the owner of and entitled to the possession of certain tools, and molds, used in the manufacturing of glass bottles and demijohns; on the day of , 19 , the plaintiff was lawfully possessed of the above-described premises, the buildings thereon and the tools and molds above described, and was at that time carrying on, on said premises, and had been for some time prior thereto, the business of manufacturing glass bottles and glass demijohns. II. That on the said day of , 19 , the de- fendant unlawfully and forcibly ejected the plaintiff from said premises, and converted the buildings thereon, and the tools and molds aforesaid, used in such business, to his own use, and by force prevented the plaintiff from entering said prem- ises and buildings and carrying on such business of manufacture of glass bottles; and on the said day, after forcibly assaulting and ejecting plaintiff, the defendant maliciously and without cause, caused the plaintiff to be arrested and taken through the public streets of the city of Brooklyn, to a police station house, in charge of a policeman in uniform, and from said station house * From Bahr v. Boley, 50 App. Div. 577; 64 Supp. 200; where a judgment in favor of the plaintiff was aflfirmed. It is not clear whether or not the fabe arrest alleged in the complaint was an element in the damages awarded. Complaints 923 Conversion to and before a police magistrate, who, after hearing and examin- ing the plaintiff, discharged him. III. That by reason of such forcible ejection and conversion, the business of the plaintiff has been destroyed, and plaintiff has been unable to carry on his' business as a glass manufacturer. IV. That by reason of the acts of the defendant aforesaid, plaintiff has sustained damages in the sum of $ Whbrefobe [demand for money judgment]. 1)24 Bradbury's Forms of Pleading Usury CHAPTER XXXI USURY » FORMS NO. PAGE 591. Declaring chattel mortgage void 924 592. Usury setting aside conveyance of property conveyed to secure usurious loan 927 Form No. 591 Declaring Ohattel Mortgagfe Void ^ Supreme Court, county. John Lowry, Plaintiff, against Collateral Loan Association, Defendant. The plaintiff, complaining of the defendant, alleges : I. Upon information and belief, that the defendant is a corpora- tion organized under the provisions of Chapter 326 of the Laws of 1895 of the State of New York, and acts amendatory thereof, and the said corporation was organized to do business in the county of New York, only. 1 The facts constituting the alleged usury must be set forth in detail; a general allegation that the mortgage in suit was given to secure a usurious contract, to wit, an agreement to pay interest at a greater rate than six per cent per annum for the use of money loaned, is insufficient on demurrer. Cliapins v. Mathot, 91 Hun, 565; 36 Supp. 835; aff'd 155 N. Y. 641. " It is, beyond question, the settled law of this State that a loan, made upon notes or bills and for which a usurious rate of interest is charged in violation of the statute, is void in its inception; and that the vice of usury follows the note even into the hands of a bona fide holder." Schlesinger v. Lehmeier, 49 Misc. 419; 99 Supp. 819. ^ From Lowry v. Collateral Loan Association, 172 N. Y. 394; in which the plaintiff succeeded. See also Lowry v. Collateral Loan Association, 172 N. Y. 633. These cases construed, L. 1895, c. 326, concerning pawnbrokers and held that it did not repeal the general usury laws of the State. Complaints 925 Usury II. That heretofore and on or about , 19 , the de- fendant agreed to loan to this plaintiff the sum of $ for a term of one month, and on or about said ,19 , as collateral security for the repayment of said sum of $ , this plain- tiff made, executed and delivered to said defendant two certain chattel mortgages for $ each, dated on or about that day, whereby this plaintiff mortgaged certain chattels therein de-i scribed, in the premises No. , Avenue, , county, N. Y., the premises and place where the plaintiff at that time lived and still lives. That upon the delivery of said mortgages to said defendant association and plaintiff's two cer- tain notes each in the sum of $ , the plaintiff received from the said defendant association the sum of $ , alleged and claimed by said defendant association to be the balance due to plaintiff after deducting therefrom the charges for making said loan, and interest at the rate of % per month in advance. That thereafter and on or about the day of every sub- sequent month to and including , 19 , the defendant ex- tended the time of payment of the said sum of $ so secured by said two mortgages, upon this plaintiff executing each subsequent month two chattel mortgages for $ each, to secure pa3mient of the original loan made on or about ,19 , as aforesaid, the defendant demanding and re- ceiving from plaintiff the sum of $ each and every month at the time of such renewals, which sums said defend- ant alleged and claimed to be interest at the rate of % per month in advance upon said loan of $ , and the nec- essary charges for drawing papers. III. That the last renewals of said loan and of said mortgages became due and payable on or about , 19 . That at no time between said , 19 , and ,19 , has said loan been repaid, and that the renewals of said mortgages aforesaid, were ^ven to secure the identical sum loaned in the first instance, to wit, on or about , 19 . That the de- fendant has demanded the payment of the said sum of $ QO , 19 , and threatened if the same w^s not paid to 926 Bradbury's Forms of Pleading Usury seize the property of this plaintiff, situate at No. , avenue, , County, N. Y., and described in the said mortgages. IV. Upon information and behef that the aforesaid loan to plaintiff by defendant is usurious and violates the provisions of the act under which said defendant was incorporated, in that First : The defendant has demanded and compelled this plain- tiff to pay interest in advance on said loan, secured by said mortgages, at the rate of %, or more per month. Second: That the defendant has demanded and compelled plaintiff to pay more than % a month in advance for renewals and extentions of said loans and mortgages. Third: That this defendant had intentionally dealt with the plaintiff as a resident of the county of , and took as security for such loans chattels situated within the county of , a county in which this defendant had no power or authority to do business under the act and acts amendatory thereof, under which said defendant was incorporated. Wherefore plaintiff demands judgment: First: Declaring the said loan secured by plaintiff's notes and said chattel mortgages, usurious and void. Second : That the said notes and chattel mortgages given to secure the said loan, be delivered up to this plaintiff, without payment. Third: That pending the determination of this suit, the defendant, its agents and servants, be enjoined from taking any proceedings to collect or enforce said loan, or to realize upon the chattels covered by said mortgages, or from in any way inter- fering with the property of this plaintiff, mentioned in said mortgages. Fourth: That this plaintiff may have such other and further relief or decree in the matter as to this court may seem just and proper. Signature and office address of attorney, and verification.] Complaints 927 Usury Form No. 592 Usury Setting Aside Oonveyance of Property Conveyed to Secure XTsurious Loan ^ I. That on or about the day of 19 the plaintiff above named and one K. K. entered into a contract in writing in and by which contract the plaintiff agreed to pur- chase from said K. K. a certain parcel of real estate situate in the city of , commonly known and described as No. , West, said property being subject to a mortgage of $ with interest thereon at the rate of per cent per annum. II. That in order to raise the money necessary to complete the purchase of said house, the plaintiff entered into an agree- ment with the defendant, E. F., in and by which agreement and in consideration of the sum of $ to be paid to said de- fendant F., she agreed to loan to the plaintiff the sum of $ for a period of days. III. That as collateral security for the repayment to said de- fendant F. and for the said loan of $ as aforesaid, it was agreed between the plaintiff and the said defendant F., that the aforementioned property which the plaintiff was about to pur- chase from the said K. K. to wit, No. , West, should be taken in the name of the defendant F. or in the name of such person or persons as she should designate, and that the deed therefor should be deposited with said defendant F. until the said loan as aforesaid should be repaid, and that upon its repay- ment to said defendant F. until the said loan as aforesaid should be repaid, and that upon its repayment to said defendant F. within days from the date thereof the said defendant F. should reconvey or cause to be reconveyed to the plaintiff said property No. , West. IV. That thereafter, and on or about the day of , 19 , and in accordance with said agreement with the ^ Sustained on demurrer in Weiland v. Forgotston, 44 App. Div. 54; 60 Supp. 483. 928 Bradbury's Forms of Pleading Usury- said defendant F. the said plaintiff received from defendant F. the sa.d sum of $ and paid her therefor as agreed upon on the same date the sum of $ and also paid her on ac- count of said loan the sum of $ V. That the said sum of $ so paid by the plaintiff to the defendant for the use of said sum of $ for a period of days, is equal to interest on said sum at the rate of per cent per annum, which rate exceeds the legal rate of interest permitted to be exacted under the laws of the State of upon said sum of $ for that period, and said contract was and is therefore usurious and illegal under the laws of the State of , and is therefore invalid and void. VI. That thereafter, and on , 19 , said K. K., by an instrument in writing dated , 19 , transferred to the defendant E. B., the person designated for that purpose by the defendant F., said premises No. , West, subject to the above-mentioned mortgage accordmg to the terms of the agree- ment to that effect, between the plaintiff and said defendant F. and the deed therefor was thereupon delivered to the defend- ant F. VII. That the transfer of the title of said premises to the defendant E. B. and the delivery of said deed to said F. as afore- said, were made only as collateral security for said loan of $ , as aforesaid, and in accordance with the terms of the agreement between plaintiff and said defendant F. VIII. Plaintiff further alleges on information and belief that thereafter, and on the day of , 19 , and with- out notice to this plaintiff, that said defendant F. caused to be executed and the said defendant E. B. as agent for the said defendant F. did execute and without consideration therefor a deed of said premises No. , West, subject to the afore- mentioned mortgage to the defendant S. IX. Plaintiff further alleges on information and belief that thereafter, and on the day of , 19 , said defendant S. by a deed in writing dated on that day transferred said property No, , West, to the defendant K. A, B,, Complaints 929 Usury without consideration, subject to the aforementioned mort- gage. X. Plaintiff further alleges On information and belief that all the said transfers of said property were made without considera- tion therefor and were and are fraud of the plaintiff's rights in the premises and all of the said transfers were made with the full knowledge of each and every of the said grantors and gran- tees of the plaintiff's rights in the premises and are therefore invalid and void as against this plaintiff. XI. On information and behef plaintiff further avers that all the said grantors and grantees were and still are servants and agents of the defendant F., and acted and still act in collusion and connivance with the said defendant F. to defraud the plain- tiff of his rights in the said property, and said defendant F. still maintains possession and control of said property just as if the record title thereto was in her own name. XII. That the market value of said premises at the time of said fraudulent and unlawful transfers was the sum of $ , subject to a mortgage of $ , with interest thereon at the rate of per cent per annum, payable semiannually on the days of and every year. XIII. That said property consists of a story apart- ment house with a rental value of about $ per month, which rental the defendant F., her agents and servants, have collected and are collecting and appropriating to the use of said defendant F. to the damage of the plaintiff and for which said de- fendants have refused and still refuse to account to this plaintiff. XIV. That by reason of the premises plaintiff's interest in the said property has greatly diminished and that until the deter- mination of the rights of the parties herein it is proper and just that a receiver of said property be appointed with full power and authority to collect the rents and profits thereof and to preserve the same and pay the interest on said mortgage of $ , and to do any and all things necessary for the maintenance and pres- ervation of such property until the final order of the court herein. XVI. That said plaintiff at all times has been and still is Vol. I -59 930 Bradbury's Forms of Pleading Usury ready and willing to pay to said defendant F. any sum which may in equity be due and owing on account of or by reason of said loan. Wherefore plaintiff demands judgment: I. That the deed of said premises No. , West, executed by K. K. to the defendant E. A. B. as agent for the defendant E. F. be decreed to have been executed and delivered as collat- eral security for said loan of $ II. That said deed be therefore decreed to be a mortgage upon said premises. III. That said mortgage having been made as collateral security for a loan for which was exacted a rate of interest in excess of the legal rate of interest permitted to be exacted by the laws of the State of , be decreed to have been and to be usurious in its inception, and therefore illegal and void. IV. That the defendants A. S. and K. A. B., purporting to have obtained title to said property subsequent to the execution and delivery of said usurious mortgage, be decreed not to have obtained any title to said premises. V. That a receiver of said property be appointed, with all the rights, powers and duties of a receiver in like cases, to collect the rents and profits thereof and to preserve said property until a further order of this court. VI. That an accounting be had of all the sums paid and received by said defendant E. F., for or on account of said Iban, as well as of the rents and profits of said property received by said defendant F. since the day of , 19 . VII. That the defendant E. F. be compelled to execute, or cause to be executed, a deed of said premises. That if the defendants other than the defendants E. B. and F. be found to be or to have been innocent purchasers of said property, that the damage of this plaintiff herein be assessed against the defendant E. F. VIII. That the plaintiff have his costs and disbursements in this action, and such further and other relief that to this court may seem proper and just. Complaints 931 Libel and Slander CHAPTER XXXII LIBEL AND SLANDER PAGE I. Libel 932 II. Slander 973 FORMS Pabt I. Libel NO. page 594. Words exposing to ridicule 932 595. Statement that a woman posed as a man. 935 596. Words concerning public officer (city magistrate) 938 597. Statements injuring the plaintiff in his business 942 598. Words written of a plaintiff touching him injuriously in his capacity as a physician 944 599. Libel by a corporation plaintiff. Words injuriously affecting its business 946 600. Corporation as plaintiff. Words charging its officers with fraud in conducting the business 946 601. Words imputing crime 949 602. Words imputing " graft " to a class, one of which sues 950 603. Words imputing imchastity to a woman 954 604. Accusing the plaintiff of committing the crime of libel 954 605. Words touching plaintiff injuriously in its business 959 606. Words touching plaintiff injuriously in his business 961 607. Accusing legislator of corruption 963 Part II. Slander 609. Words charging larceny 973 610. Witness testifying in court 975 611. Words which could be construed as imputing felony 976 612. Words imputing that the plaintiff, a merchant, could not pay a cer- tain debt ; ^^^ 613. Words imputing insolvency to a copartnership 979 614. Words imputing the cpmmission of a crime 983 615. Words imputing ignorance to a physician 983 616. Libel and slander, pleaded together 987 932 Sradbuey's Forms of Pleading Libel and Slander I. Libel Form No. 594 Words Exposing to Ridicule ^ Supreme Court, county. Oscar L. Triggs, Plaintiff, against j- The Sun Printing and Publishing Association, Defendant. The plaintiff complaining of the defendant, alleges : I. That the defendant is a domestic corporation. II. Upon information and belief that at all the times herein- after mentioned, the defendant was and still is the owner and proprietor of, and engaged in printing, publishing and conduct- ing a newspaper in the city of New York, and county of New Yorlt, and State of New York, which said newspaper is called "The Sun." III. Upon information and belief that said newspaper called "The Sun" was widely circulated by the defendant in the city of New York, and in the State of New York, and in the city of Chicago, State of Illinois, and throughout the United States of America, and that said newspaper is widely known, circulated and read throughout the United States and foreign countries generally. IV. That plaintiff was and still is and at all times hereinafter mentioned, and for more than seven years last past has been, an instructor or teacher in the Department of English at the University of Chicago, in the city of Chicago, State of Illinois, and was duly practicing his profession at the said University of Chicago. That the said plaintiff has been associated with the 1 From Triggs v. The Sun Printing & Pub. Assn., 179 N. Y. 144; in which this connlaint was sustained on demurrer. The court held that the articles complained of came "far short of falling within the line of true criticism" and were clearly defamatory in character, and were libelous per se. Complaints 933 Libel and Slander University of Chicago since its foundation in 18 ; that he was regularly appointed a privat docent in the Department of English of the University of Chicago, in , which said position plaintiff occupied for three years; that he was regularly appointed by the University of Chicago, an instructor in the Department of English in for a term of three years; that he was reappointed for a second term of three years in the year ; that he was reappointed in the year for a period of one year and in the year was again reappointed by the University for a period of one year. That he is serving the University of Chicago in said capacity; that plaintiff was also engaged in lecture and extension work in connection with the University of Chicago and in private lecturing and writing on literary subjects since his said association with the University of Chicago in 19 ; that the plaintiff had always as such privat docent and instructor in the Department of English in the Univer- sity of Chicago and as such lecturer and writer on literary sub- jects, conducted himself with honesty, fidelity and dignity, and had never been guilty nor suspected of being guilty of any incom- petency, inabihty, nor that he was ill-fitted, or poorly qualified to occupy his position as an instructor in the University of Chicago, or, as a lecturer or writer; that he had never been guilty nor suspected to have been guilty of sensationalism, miscon- duct or infidelity in the performance of his duties in his said capacity or profession as a teacher, lecturer and writer, or as instructor in the Department of English in the University of Chicago; that prior to the publication hereinafter set forth, plaintiff had enjoyed a wide reputation for honesty, uprightness, integrity, fidelity, dignity, competency and ability; that he had a large circle of friends and had professional business relations with the University of Chicago, and with various persons in the city of Chicago and State of Illinois, and throughout the United States generally. V. That the plaintiff, in the performance of his said duties as an instructor in the Department of English in the University aforesaid was assigned by the head of the Department of Enghsh 034 Bradbury's Forms of Pleading Libel and Slander of the University of Chicago, to the presentation of certain ideas and of the conduct of a certain line of work in literature in the I classroom; that in his lectures before the said students he was assigned to the work of dealing with current English literature, and particularly with the poets Longfellow, Whittier, Emerson, Holmes, Garland and others; that plaintiff was the Professor 0. L. T. referred to herein who conducted the said lectures and that in the presentation of his ideas and of his work, the said plaintiff acted under the direction and as an assistant and sub- ordinate to the head of the Tepartment of English in the Uni- versity of Chicago. VI. Upon information and belief that on or about the day of , 19 , the defendant herein, The Sun Printing and Publishing Association, well knowing these facts and that the plaintiff deservingly enjoyed the respect and esteem of his neighbors, associates, acquaintances and friends and of the community in general, contriving, wickedly and maliciously intending to injure this plaintiff in his good name, fame, and credit, and to bring him into public scandal, infamy and dis- grace and to hold him up as an object of hatred, ridicule and contempt in and among his neighbors, associates and acquaint- ances, friends and citizens and to cause him to be suspected and believed by those neighbors, associates, aquaintances and friends and other good and worthy citizens, that he had been guilty and was guilty of bad taste, sensationalism and of other offenses hereinafter mentioned to have been made and charged against him by the defendant, and to injure and destroy the esteem in which he as an individual and in his profession a,iid calling always had been held, and to deprive him of his position as an instructor in the Department of English at the University of Chicago, in the city of Chicago, State of Illinois, arid to harass and annoy him, the said defendant, falsely, wickedly and mali- ciously printed, published and circulated and caused it to be procured, printed, published and circulated in the city, county and State of New York, and in the city of Chicago, State of Illinois and in and throughout each and every State in Complaints 935 Libel and Slander the United States and generally throughout the United States and in foreign coutries generally, the following falsp, improper scandalous, malicious and defamatory libel of and concerning the plaintiff m the aforesaid newspaper, called "The Sun " to wit: [Here was inserted one of the three alleged libelous articles. The other two were introduced by allegations similar to those givea in paragraph VI herein. All three are printed verbatim in 179 N. Y. 144.] That the aforesaid Hbelous articles and the publication thereof was neither a fair nor a true report of any judicial, legislative or other public or official proceeding, and that the said articles, and each and every publication thereof, as herein alleged, was a false, malicious and defamatory libel of and concerning the plaintiff. VII. Upon information and behef that each and every copy and copies so published and circulated by the defendant, and each and every one of them contained the libelous article and matter as herein alleged, and was published and circulated by said defendant. VIII. That by reason of the foregoing facts, plaintiff claims, to have been damaged and to be entitled to recover from the defendant the sum of $ Wherefore [demand for money judgment]. [Signature and office address of attorney and verification.] Form No. 595 Statement That a Woman Posed as a Man ^ I. On information and belief that the defendant, the M. & E. Co., is a domestic corporation, duly incorporated under the laws of the State of , and at all times hereinafter men- tioned was engaged in publishing "The E. M." II. That at this time this plaintiff was and now is a resident of the city of , and was and is now a married woman ' Sustained on demurrer in Minch v. Mail & Express Co., 190 N. Y. 503; aff'g without opinion, 120 App. Div. 875. &36 Bradbury's Forms of Pleading Libel and Slander living with her husband, to whom she was duly married on the day of , 19 , and with whom she has lived continuously since that time. III. On information and belief that said defendant con- trived to injure the plaintiff in her good name, did on or about the day of , 19 , maliciously, carelessly and wickedly compose and publish in said newspaper, known as "The E. M.," of and concerning this plaintiff, a false, scandalous, malicious and defamatory libel, as hereinafter set forth, all of which said libelous and malicious publications by said defend- ant is untrue. IV. That said false, scandalous, malicious, libelous and de- famatory publication printed and published by said defendant of and concerning this plaintiff is as follows: "Posed as a Man for 50 Years. "'Michael' Minch Had Taken Out 'His' First Citizenship Papers and was 'Married.' Pale, Smooth Face Betray 'His' Sex. Worked as a Gardener Here Years; Now to Be Deported. "After posing as a man for nearly years, of which 'he' was married, 'M.' M. is discovered to be a woman and is held a prisoner on Ellis Island pending 'his' return to as 'undesirable.' 'M.'s' wife, K., also is detained by the Immigration Authorities and has been ordered deported. "Two nieces in have appealed to in behalf of their 'uncle' and 'aunt' but unless the Immigration Com- missioner-General, reverses the decision of the special board of inquiry, the couple will be sent back on the on "The discovery that 'M.' is a woman brought with it one of the oddest tales that Ellis Island, always fruitful of family skele- tons, has ever unearthed. Not only has it been discovered that 'M.' worked as a gardener for years for several of the best known families in this yicinity, but the investigation also has shown that 'M.' took out 'his' first citizenship papers Complaints 937 Libel and Slander here years ago, and that 'he' bought some property in the name of 'his wife' before -he' decided years ago to go over to on a visit. " 'M.' and 'his wife' came back from on the steamer , last , and might have passed through Ellis Island, but for the fact that 'M.'s' face was unusually pale. 'He' was dressed in a neat black coat and vest, with a new pair of trousers and a brand new cap purchased in . Al- though over years old, there was no trace of gray in 'his' cropped brown hair. But 'his' face was white as chalk, and there was not even the suspicion of hair about the chin or cheeks. "Not suspecting that the 'man' was really a woman, the marine hospital doctor held up 'M.' because 'he' looked too delicate for admission. It was only after the couple were taken to the detention ward and 'M.' displayed some bank books and 'his' first citizenship papers that the doctors decided to make the inquiry more rigid. " 'Mrs.' Minch told the doctors that she was 'married' to 'M.' years ago and that their two children were living with relatives in . Then she said that she never had any children. The 'wife's' desire to conceal something was her 'husband's' undoing. That and his pale, beardless face. "The doctors could not entirely reconcile the fact that a man could be so well formed as 'M.' was and stiU have the face of a woman. The physicians asked several other questions. Then 'M.' broke down and cried. The confession came after the nervous breakdown and tears had subsided. "Then 'M.' told all. 'He' and his 'wife' were playmates in County . 'He' was never dressed other than a boy, and as a boy 'he'' played with the other 'gossoons.' When 'he' grew to be a 'man' 'he' came to America and secured work as a gardener 'He' had told K. that 'he' would make a home for her in America, and when 'he' accumulated some money, 'he' sent for her. They were 'married' in . . ,. j "The Immigration Authorities on Ellis Island were inclined 938 Bradbury's Forms of Pleading Libel and Slander to let the 'couple' land, but never having a case like it before, it was decided to reject them. , " 'M.'s' first papers are valueless on the ground that as a woman 'he' was not entitled to them." V. On information and belief that said newspaper in which said libelous article was published was extensively circulated and sold by the defendant in large numbers in the city of and throughout the State of , and also throughout various other States and Territories of the United States. VI. That by reason of said composition, publication and circu- lation of said malicious, false, scandalous and defamatory matter of and concerning this plaintiff, charging that this plaintiff was and is guilty of criminal ^cts and of such other offenses and moral turpitude, that she has been held up to pubUc scorn, scandal, infamy and disgrace, and has suffered and will continue to suffer great mental pain, anguish and distress, and has been otherwise injured to her damage in the sum of $ Wherefore [demand for money judgment]. Form No. 596 Words Concerning Public Officer (Oity Magistrate) ^ I. That at the times hereinafter mentioned the defendant was and still is the owner and proprietor of, and engaged in printing, publishing and conducting a newspaper in the city of New York, which said newspaper is called " The New York Herald." II. That the plaintiff is a City Magistrate, appointed as such by the Mayor of the city of New York, in June, 19 , and pre- sides as such magistrate in various criminal courts, known as magistrates' courts, in the borough of Manhattan, city of New York. III. That the plaintiff, in the performance of his duties as such magistrate as aforesaid, held court in the Fifth District City Magistrate's Court, on the day of , 19 , ' From Crane v. Bennett, 177 N. Y. 106; in which a judgment for the plain- tiff was, as modified, affirmed. Complaints 939 Libel and Slander That on said day of , 19 , while in the dis- charge of his duties as such City Magistrate as aforesaid, a case was presented for the consideration of the plaintiff on the com- plaint of one A. R. against one J. C, one J. L., one J. McD. and one M. M. That the two prisoners C. and M. were arrested and held by the officers as suspicious persons, while the prisoners L. and McD. were charged by the complainant, A. R., with robbing and attempted assault. That plaintiff, after hearing the complaint against the said prisoners, held that there was not sufficient evidence to hold the prisoners L. and McD. on the ground of robbery, and immediately thereafter, however, or- dered a complaint of disorderly conduct taken against the pris- oners L. and McD., and held them in five hundred dollars bonds, each, for their good behavior for three months, but stat- ing at the time that said prisoners should have treated the complainant with more kindness and consideration. That C. and L. gave testimony that there was no violence or robbery, simply disorderly conduct, which did not substantiate the charge made by the complainant A. R. During all examinations the complainant A.. R. stood before the plaintiff on the bridge giving her testimony, and stated^to the magistrate, under oath, that she had taken money given to her by her husband for rent and spent it for liquor, thereupon plaintiff remarked that a woman having taken her husband's money for rent, and out upon the streets that hour in the morning, must expect to get into trouble, and as her statement was uncorroborated, the prisoners could not be held on the charge of robbery. That this is an exact statement of what took place in the Magistrate's Court in connection with the complaint of A. R. IV. That on or about the day of , 19 , the newspaper, " The New York Herald," above referred to, the de- fendant, printed an alleged report of the proceedings had before plaintiff, which was not a fair and true report, but on the con- trary, published a false, exaggerated and sensational article, and same was wrongfully, wickedly and maliciously printed and pubUshed and extensively circulated. 940 JBradbury's Forms of Pleading Libel and Slander [Herein follows an article from the " Herald," printed verbatim, which purported to describe the hearing in the Police Court.] \. That said matter and statement and allegations therein contahied are false and defamatory, and not a correct report of what took place in the court over which plaintiff presided, and said article was written, printed, published and circulated ma- liciously and with a wrongful intent of injuring this plaintiff in the community; and that the said statement and matter was published by the defendant in a prominent position in said newspaper and in a conspicuous place and many thousand copies were circulated throughout the world, all of which was printed to the said plaintiff's great injury and damage. VI. That by reason of the publication of the article aforesaid, the said plaintiff was injured in reputation, credit and standing, to the sum of dollars. For a second cause of action this plaintiff alleges : First: The plaintiff reiterates the first, second and third al- legations of this complaint, as though the same were here set forth at large. Second: That on or about the day of , 19 , in the said newspaper, " The New York Herald," above referred to, the defendant printed, published and circulated of and con- cerning the plaintiff a certain false, scandalous, malicious and defamatory libel, in a certain part of which said libel, there was and is contained among other things, the false, scandalous, ma- licious, defamatory and libelous matter following: [Here follows, printed verbatim, an article from the " Herald" mi the same subject, the headnote of which is : "Grand Jury may in- vestigate Crane."] Third: That said matter and statement and all allegations therein stated are false and defamatory and a malicious libel on, of and concerning the plaintiff, and that the same were written, published and circulated maliciously and with a wrongful in- tent of injuring this plaintiff in the community, and that said statement and matter were printed and published by the de- fendant in a prominent position in the said newspaper, and in a Complaints 941 Libel and Slander conspicuous place, and many thousand copies thereof were circulated throughout the world, all of which was printed to the said plaintiff's great injury a;nd damage. Fourth: That by reason of the premises and the publication of the article aforesaid, the plaintiff was injured in his credit and standing in the community to the extent of dollars. For a third cause of action the plaintiff alleges: First: The plaintiff reiterates the first, second and third al- legations of this complaint as though the same were here set forth at large. Second : That on or about the day of , 19 , in the said newspaper, " The New York Herald," above referred to, the defendant printed, published and circulated of and con- cerning the plaintiff a certain false, scandalous, malicious^ and defamatory libel, in a certain part of which said libel there was and is contained, among other things, the false, scandalous,,, malicious, defamatory and hbelous matter following. [Herein follows an article by the "Herald" printed verbatim,, the headnote of which is: "Mclntyre to act in Crane Case," an article from the " World" reprinted in the "Herald" and several letters printed in the " Herald," being letters from the " Herald's " readers.] Third: That said matter and statement, and all allegations therein stated, are false and defamatory, and a malicious libel on, of and concerning the plaintiff, and that the same was writ- ten, printed, published and circulated maliciously and with a wrongful intent of injuring this plaintiff in the community, and that the said statement and matter were printed and published by the defendant in a prominent position in the said newspaper, and in a conspicuous place, and many thousand copies thereof were circulated throughout the world, all of which was prmted to the said plaintiff's great injury and damage. Fourth: That by reason of the premises and the publication of the article aforesaid, the plaintiff was injured in his credit and standing in the community to the extent of dollars. Wherefore [demand for money jvdgment]. 942 Bradbury's Forms of Pleading Libel and Slander Form No. 597 Statements Injuring the PlaintifE in His Business ^ I. That the plaintiff at all the times hereinafter stated was, and still is, a citizen of the United States, residing within the city, county and State of New York, and has for many years last past been engaged in important financial and commercial enterprises in the United States, involving the use and manage- ment by plaintiff of large sums of money intrusted to him by other persons residing in the United States and in foreign couritries; and plaintiff's reputation both in the United States and elsewhere, has always been that of a competent, energetic and honorable man of business, and one to whom the manage- ment of large enterprises requiring the exercise of economy, good judgment, and integrity could be safely intrusted. II. That, as the plaintiff is informed and believes and therefore alleges, the defendant at all the times hereinafter stated was, and still is, a corporation organized and exercising under the laws of the State of New York, in the United States of America, and was, and still is, the owner and publisher of a newspaper called "The E. & M. Journal," which newspaper is of general circulation in the city of New York, in the United States, in the kingdom of Great Britain and Ireland and elsewhere. III. That on or about the day of , 19 , the defendant maliciously composed and pubUshed of and concern- ing this plaintiff in said newspaper "The E. & M. Journal," a certain article containing the false and defamatory matter fol- lowing, to wit, "Attachments have been placed on the property of C. K. Mining Co. [Limited], at C, F. county, though the mine is still at work. Capt. C. H., representing the London stockholders, is in San Francisco endeavoring to straighten affairs up for the principal owner, F. G. of London. This is the mine in which N. H. D. figured largely. His extravagance startled people, and ' From Daily v. Engineering & Mining Journal, 94 App. Div. 314; 88 Supp. 6; in which a demurrer to this ccmplaint was overruled. Complaints 943 Libel and Slander finally got the company into trouble. He was deposed, and is no longer in California. The bills will doubtless be paid, but it re- mains to be seen whether the mine pays as well as stockholders were led to expect. It has a smelter at S. B. landing on San Fran- cisco Bay." meaning and intending thereby that plaintiff caused said C. K. Co. [Limited] to become financially embarrassed by using its funds for Tiis own personal extravagance and that because thereof he was removed from his position as manager by said corporation and absconded from the State of California. IV. That on or about the day of , 19 , the defendant maliciously composed and published of and conceruT ing this plaintiff in said newspaper, "The E. & M. Journal," a certain article containing the false and defamatory matter, following; to wit: "San Francisco, , 19 . "[From Our Special Correspondent.] "The C. K. M. Co. [Limited], with a mine at C. F. county and a smelter on the upper shores of San Francisco Bay has filed its schedule of debts and property in the United States court; and this shows an indebtedness of $614,423 of which $508,695 is un- secured. The total assets are given as $306,704. They coimting the real estate as $99,400, and machinery at $180,225. The mine at F. is only valued in the statement at $85,400, covered by attachments. The whole failure is the result of extravagant management. The breaking up of the company involves San Francisco and London financiers and banks. A number of San Francisco machinery firms are also sufferers. The deal for the sale of the mine and its equipment was managed by W. H. D. and F. L. G. ; and G. figures as a creditor for $207,742, cash advanced. D. was the local manager. Finally the mine^ was attached by miners and other creditors, and work was stopped. Then the attorney of the San Francisco board of trade petitioned the Uni- ted States Circuit Court to declare the company insolvent. The large amount of money was sunk in exploiting mine and conduct- ing the smelter.' 944 Bradbury's Forms of Pleading Libel and Slander V. That the statements contained in each of said articles of and concerning this plaintiff were and are wholly false and untrue, and that by reason thereof plaintiff has been prevented from fol- lowing his usual vocation as set forth in paragraph I. hereof, and has been prevented from engaging in profitable enterprises and his reputation as a capable, honorable and energetic man of business has been greatly damaged and he has been held up to public scorn, ridicule and contempt to his great damage in the sum of $ Wherefore [demand for money judgment]. Form No. 598 Words Written of a Plaintiff Touching Him Injuriously in His Capacity as a Physician ^ For a first cause of action. I. That at all the times hereinafter mentioned the plaintiff was and still is a duly licensed physician and surgeon in the State of New York, and prior to the publication of the article hereafter referred to was practicing as senior assistant house surgeon and was one of the residential staff in the M. hospital, conducted and directed by the department of public charity in the city of New York and State of New York,, and plaintiff was of good name, fame and credit as such. II. [Allegation that the defendant was a domestic corporation pub- lisher of a newspaper with a large circulation. See Form No. 594.] III. That on or about the day of , 19 , in the city and State of New York, the defendant falsely and mali- ciously composed and published in a conspicuous place in its said newspaper concerning the plaintiff in his said profession the following false libelous and defamatory matter, to wit: [Herein is inserted an article from the defendant's newspaper, the first head- line of which is: "Used a dead body to perpetrate a 'joke.'" This article states that twelve young physicians of the M hospital, hung up a body as an effigy of the superintendent.] ^ From Bommann v. Star Company, 174 N. Y. 212; in which a judgment in favor of the plaintiff was affirmed. The articles complained of are printed verbatim in the Court of Appeals opinion. Complaints 945 Libel and Slander IV. That the plaintiff is one of the persons referred to in said false and malicious publication. V. That the facts stated in said publication were false and malicious and libelous, and made with the intent to injure the plaintiff in his good name and credit in his said profession and business, and to cause it to be believed that by reason thereof, he had become incompetent to discharge his duties in his profession. That by means of said publications the plaintiff has been injured in his good name and credit as a physician and surgeon, and it will cast a strong stigma upon his standing as a physician and surgeon, and will work greatly to his injury in procuring patients and practice in the future. For a second cause of action. I. The plaintiff repeats and realleges as a part of this cause of action, all the allegations contained in paragraphs I. and II. of the first cause of action herein. II. That on or about the day of , 19 , in the city and State of New York, the defendant falsely and mali- ciously composed and published in a conspicuous place in its said newspaper concerning the plaintiff in his said profession, the following false, hbelous and defamatory matter, to wit: [Herein is inserted verbatim an article from the defendant's newspaper en- titled "Ghouls in the Charity Hospital," which criticises the young doctors of the hospital.] Itl. That the plaintiff is one of the persons referred to in said false and malicious publication. IV. That the facts stated in said publications were false and malicious and libelous, and made with the intention to injure the plaintiff in his good name and credit in his said profession and business, and to cause it to be beUeved, that by reason thereof, he had become incompetent to discharge his duties in his pro- fession. That by means of said publications the plaintiff has been injured in his good name and credit as a physician and surgeon, and it will cast a stigma upon his standing as a physician and surgeon and will work greatly to his injury in his procurmg patients and practice in the future. Vol. 1—60 946 Bradbury's Forms of Pleading Libel and Slander V. That by reason of the pubUcations of the articles as al- leged herein in the first and second causes of action herein, the plaintiff has been damaged in the sum of $ Wherefore [demand for money judgment]. Form No. 599 Libel by a Corporation Plaintiff. Words Injuriously Afiecting its Busi- ness. Complaint as Summarized in Opinion ' The complaint after setting out the above matters ^ and the circulation of the paper, averred that divers neighbors and cit- izens to whom the innocence of the plaintiff was unknown, have, since the publication, refused to receive the notes of the plain- tiffs, and have refused to have any dealings of business trans- actions with the plaintiffs in their business of banking as they formerly had, to the great damage of the plaintiff. The complaint also contained similar allegations as to another publication by the defendant, that the bank would not pay drafts upon it, and that he saw no reason why the bank may not at any time be closed by an injunction, with similar averments as to damage. Form No. 600 Corporation as Plaintiff. Words Charging Its OfBcers with Fraud in Conducting the Business ^ (As Summarized by Court in Opinion) I. The plaintiffs exercised and carried on the business of in- suring lives, and also property against loss or damage by fire; aad that their property, affairs and concerns were conducted and ^ From Shoe and Leather Bank v. Thompson, 18 Abb. Pr. 413; in which the demurrer was overruled. There were sufficient allegations of special damage and the defendant's remedy was by motion. ^ The plaintiffs, a banking corporation, formed under the laws of the State of New York, brought this action to recover damages for a pubhcation made by the defendant in a paper called, "Thompson's Bank Note and Commercial Reporter," which stated that there were 50's and lOO's of notes of the bank said to be counterfeits, and as the signatures on the genuine notes of the bank are engraved, the officers were in doubt as to which were good. 'From Trenton Mutual Lite, etc., Assn. v. Perrine, 3 Zab. (N. J.) 402; in which this complaint was sustained on deniurrer. Complaints 947 Libel and Slander managed by directors and officei-s, among whom were a presi- dent and secretary, and that they were in high and deserved re- pute, estimation and credit with the pubUc, and were doing a large, profitable and increasing business, and had acquired and were then daily acquiring, large gains and profits therefrom, and the defendant, well knowing the prem'ses, but contriving and maliciously intending to injure the plaintiffs in their aforesaid business and in the repute and estimation of the public, and to prevent many and divers persons from insuring their lives and property in the «aid company, and to deprive the said company of the gains and profits arising therefrom, falsely, wickedly and maliciously did publish, and cause and procure to be published, in a certain newspaper called "The Weekly Trentonian," of and concerning the said F. M. L. & F. I. Co., of and concerning the same company, in their aforesaid business, of and concerning the directors of the same company, of and concerning the president, vice-president and secretary of the same company, of and con- cerning the property and concerns of the same company, and of and concerning the conduct and management of the property and concerns of the same company, by the aforesaid directors and officers of the same company, a certain false, scandalous, malicious and defamatory libel, containing therein the false and libelous matter following: Of and concerning the said company, of and concerning the same company in their aforesaid business; of and concerning the directors of the same company, of and con- cerning the president, vice-president and secretary of the same company, of and concerning the property and concerns of the same company, and of and concerning the conduct and manage- ment of the property and concerns of the same company by their aforesaid directors and officers, that is to say: "For the Trento- nian. The T. M. L. &. F. I. Co. asked the legislature for author- ity to increase the guaranteed capital from $150,000 to $300,000 to effect the inland and marine insurance, and make the charter perpetual. It would be weU for the above company [meaning the said T. M. L. & F. I. Co.] if the following questions were sat- isfactorily answered before applying for such great and unlimited 948 Bradbury's Forms of Pleading Libel and Slander powers and privileges. Has the Trenton Co. any authority to hold a guaranteed capital? If none, is it not the object to get a legislative recognition of an authority that does not exist under their charter. In which did the guaranteed capital consist on the day of , 19 ? Did not the president [mean- ing the president of the said T. M. L. & F. I. Co.] give a mortgage on his property of $ , which was previously mortgaged for about $ , nearly to its full value? Did not the vice- president [meaning the said vice-president of the said the T. M. L. & F. I. Co.] give a mortgage on his Greek mansion of $ which was previously mortgaged for $ , the full amount of the original purchase? Did not one of the directors [meaning one of the said directors of the said the T. M. L. &. F. I. Co.] give a mortgage of $ on property previously mortgaged to nearly its full value? Did not the insurance company [mean- ing the said the T. M. L. & F. I. Co.] by the president, vice-pres- ident and directors [meaning the said president, vice-president and directors of the said the T. M. L. & F. I. Co.] agree to pay to themselves [meaning the said president, vice-president and directors] an interest of six per cent per annum on $ ? Were the mortgages given for a valuable consideration? Or were they [meaning the mortgages above mentioned] not fraudu- lent and void for the want of consideration? Had the members or stockholders of the insurance company, any knowledge of these transactions? Did they [meaning the said directors of- the said the T. M. L. & F. I. Co.] not fraudulently conceal it, by keep- ing these mortgages from the record of the county, where all mortgages are recorded, and therefore open to the public? Had the insurance company [meaning the said the T. M. L. & F. I. Co.] one dollar invested on bond or mortgage on the first of October last? Did not the president [meaning the said pres- ident of the said the T. M. L. & F. I. Co.] certify, and the sec- retary [meaning the said secretary of the said the T. M. L. & F. I. Co.] swear to the certificate in August last [meaning the month of August, in the year of Our Lord, ,] that the insurance company had a guaranteed capital of $ on bond and Complaints 949 Libel and Slander mortgages on good productive property in Trenton and South Trenton? [thereby meaning that the president of the said the T. M. L. & F. I. Co. made a false and fraudulent certificate in relation to the affairs of the said company, and that the said secretary of the same company swore that the said certificate was true]. Did not the president, vice-president and du-ectors [meaning said president, vice-president and directors of the said the T. M. L. & F. I. Co.] loan to the company [meaning the said the T. M. L. & F. I. Co.] a large amount of gas, Trenton Im- provement, water power, rolling mill, insurance and other stocks at par value, much of which is worthless; and were they, [meaning the said president, vice-president and directors of the said the T. M. L. & F. I. Co.] not to receive 6% per annum for the loans? Were these stocks transferred to the insurance com- pany or not? Won't some one tell us if the whole thing was not a fraud on the members of the company and a swindle on the pub- lic? A member of the company." The defendant then and thereby meaning to insinuate and have it imderstood that the officers and directors of the said the T. M. L. & F. I. Co. had acted fraudulently in the conduct and management of the prop- erty and concerns of the said company, and had thereby swin- dled the public. rorm No. 601 Words Imputing Orime ' I. That, upon information and beUef, at the time hereinafter mentioned, the defendant. The New York Evening Journal Publishing Co., was a domestic corporation duly organized and incorporated under the laws of the State of New York, with its principal office in the city of New York, and engaged in edit- ing, printing, publishing and circulatmg a certam newspaper 1 From Cudlip v. N. Y. Evening Journal Pub. Co., 174 N. Y. 158; in which although a verdict for the plaintiff was unanimously affirmed on appeal, the Court of Appeals granted a new trial on account of the admission of improper evidence. 950 Bradbury's Forms of Pleading Libel and Slander in said city and State of New York, Known as " The New York Evening Journal." II. That on the day of , 19 , the defend- ant maliciously published concerning the plaintiff in its news- paper called " The New York Evening Journal, at New York City, the false, defamatory and libelous matter following, to wit : "Noted Thief Caught in Philadelphia, "Ellen CudUp Wanted Here for Big Diamond Robbery, "Held for Extradition. " Ellen CudUp, said to be one of the most daring women dia- " mond thieves in the country, is safe at last under lock and key "in Philadelphia, where she is held to-day to await the arrival "of extradition papers from this State. "The police of this city have been hunting for the woman "for the past six months. They could get no trace of her, and "had no idea in what part of the country she might be until "they were notified that the woman was arrested yesterday "afternoon in Philadelphia. "The woman is wanted in this city for a big diamond robbery. "She is said to have gotten away with over $ worth of "gems a short time ago. "The police at headquarters are extremely reticent about "the matter, but say that the capture is an important one." III. That by reason of said publication the plaintiff has been brought into pubhc scandal and disgrace, and injured in her reputation to her damage in the amount of $ Wherefore [demand for money judgment]. Form No. 602 Words Imputing " Graft " to a Class, One of Which Sues ^ I. [Allegation that 'plaintiff is a member of the coroner's office.^] II. That at all the times hereinafter mentioned, the term ^ From Weston v. Commercial Advertiser Assn., 184 N. Y. 479; in which a demurrer was overruled. 2 See Form No. 39, p. 23. Complaints 951 Libel and Slander "graft" was and still is current and employed in common speech, in and about the city of New York and elsewhere, to indicate and designate pecuniary gains and personal profit and advan- tage which public officers would and did secure to themselves by means of their unfaithful administration of their respec- tive public offices, and by means of illicit and unlawful conduct on their part in the administration of their said respective pub- lic offices; and at the same time, the word or term "system" was and still is current and employed in common speech, in and about the city of New York and elsewhere, to indicate and designate a certain means and method in which public officers and others, in collusion and association with public officers, would and did secure to themselves pecuniary gain and per- sonal profit and advantage by means of the unfaithful admin- istration of their respective pubhc oSices by the said public officers, and by means of illicit and unlawful conduct on their part, in the administration of their respective pubhc offices; and at the same time it was a matter of common report and wide belief, in and by the pubUc in the city of New York and elsewhere, that certain members of the Police Department of the city of New York, were, by and through the unfaithful, unlawful and iUicit administration of the duties of their offices on their part, joined and associated in the said "system," so called, to secure and acquire to themselves the said "graft," so called, and heretofore, and on or about the day of , 19 , one M. J. J., then being a coroner in and for the borough of Manhattan, of the city of New York, upon an indict- ment charging him with that offense, was convicted of the crime of an attempt at bribery in the Court of General Sessions of the Peace, holden in aud for the city and county of New York. III. [Allegations as to the defendant being a domestic corpora- tion and publishing a newspaper having large circulation.] IV. That on the day of , 19 , the defendant, well knowing the premises and all the matters and things herein- before set forth, maliciously published of and concerning this plaintiff in its said newspaper, a certain article containing the 952 Beadbury's Forms of Pleading Libel and Slander false and defamatory matter following, to wit: "Says Graft" [meaning thereby unlawful and unjust pecuniary gain and per- sonal profit hereinbefore described]. "Rules the Coroner." "Former Bureau Official Declares 'System' " [meaning thereby the unlawful and collusive combination and association here- inbefore described] "Runs Perfectly;" "Hush Money Abund- ant; Five hundred or even one thousand Paid by Hotels to keep suspicious Cases Out of the Papers; Death Coined Into Cash; Men Enter Bureau with a ' shoe String,' and Leave with Comfortable Fortunes." "The Coroner's Office," [mean- ing thereby the office of the coroners of the Borough of Man- hattan of the city of New York, and the persons constituting and having official connection with the same] "said a former prominent official of that office, while discussing it to-day in connection with the recent conviction of Dr. Jackson" [mean- ing thereby the conviction of the said M. J. J. hereinbefore mentioned] " is a hot bed of corruption " [meaning thereby that the said office was and is being administered in an unlaw- ful and feloniously corrupt method] "in which the system" [meaning thereby that the persons constituting and having official connection with the said coroner's office were then and there organized and associated into a combination and con- spiracy and system, as hereinbefore described] " runs more freely than in any other department, not excepting even the Police Department " [meaning thereby the unlawful and cor- rupt combination and association of certain members of the Police Department of the said city of New York, as hereinbefore described]. "The 'System' " [meaning as aforesaid] " runs in the cor- oner's office " [meaning the said coroner's office of the Bor- ough of Manhattan of the city of New York] " with absolute impunity. It " [meaning the said system as hereinbefore de- scribed] " pervades the entire office " [meaning thereby that this plaintiff then and there being a coroner's physician of the borough of Manhattan of the cit}'' of New York as aforesaid, and so as aforesaid being then and there a member of, and connected Complaints 953 Libel and Slander with, the said coroner's office, was a party to, and a member of, an organization and association of persons united, organized and associated for the purpose of securing pecuniary profit and personal advantage to themselves and to this plaintiff by the unfaithful, unlawful and corrupt administration of the duties of his said office by the plaintiff, and of the duties of their respec- tive offices by other persons connected with, and members of, the coroner's office of the said borough of Manhattan of the city of New York]. "But I should say that the most of the 'graft ' "-[meaning as aforesaid, and meaning that this plaintiff was a person who would and did secure pecuniary gain and personal advantage to himself by the unlawful, improper and unfaithful administration of the duties of his said office of cor- oner's physician] "goes, not to the underlings, but to those higher up.' " [Here follows a verbatim extract from an article complained of with the following added in explanation:] Meaning thereby that this plaintiff, so being a public officer as aforesaid, would and did commit the crime of extortion by feloniously obtaining property 'from another with the consent of such other induced by a wrongful use of fear; induced by a threat made by this plain- tiff to do an unlawful injury to such person, and to a relative of his, and to a member of his family, and to expose and to im- pute to such person, and to a relative of his, and a member of his family, certain disgrace and to expose a secret affecting such person and a relative of his, and a member of his family; and that this plaintiff would and did commit the crime of extortion in otst&mmg property from another under color of official right, by doing an act whereby such other person is injured in his person and rights, and by asking and receiving, and agreeing to receive a fee or other compensation for his official service, where no fee or compensation is allowed to him by statute therefor. [Two other verbatim extracts from the article complained of, are next given with the explanation similar to the one just given al- leging that the charges made against the cluss to which he belongs injured the plaintiff.] 954 Bradbury's Forms of Pleading Libel and Slander V. That the facts stated in said publication were wholly false, and that by reason of the premises plaintiff has been injured in his reputation and in his good name and credit, as a physician to his damage in the sum of dollars. Wherefore [demand for money judgment]. Form No. 603 Words Imputing Unchaatity to a Woman ^ The defendants were, at the time of the occurrence of which the plaintiff now complains, proprietors and publishers of a monthly magazine, published in the city of New York, and entitled "A.'s Magazine." In the number of that magazine for , 19 , was pub- lished an advertisement containing the following words and figures : "Illustrated New Book. Up to Date. "The Experience of a Giddy Typewriter Girl in New York. "Typewritten. Good is no name for it. Sent in plain Wrap- pers, post-paid, on receipt of cts. in silver or stamps. Book Co., Street, Chicago." Accompanying these words and completing the advertisement was the picture of a young and comely woman, and this picture was a likeness of the plaintiff. The meaning of this advertisement was that the plaintiff had been the subject of an unchaste and indecent experience. Wherefore [demand for money judgment]. Form No. 604 Accusing the Plaintiff of Committing the Crime of Libel ' I. That he is and was at all the times hereinafter mentioned, engaged in the business of the publishing of certain newspapers or journals liaving for their object the dissemination of all news ' From Morrison v. Smith, 177 N. Y. 366; in which a judgment for the de- fendant was reversed. ^ From Stumpf v. Shanks (not reported), in which, on demurrer, this com- plaint was upheld, ;it N. Y. Special Terra. Complaints 955 Libel and Slander relative to financial matters, the purchase and sale of bonds and the publishing of the names of such persons engaged in the busi- ness of bankers or brokers as should advertise therein, which said journals or newspapers are published under the name and style of "The A. B." and "The A. B. D. B. N." II. That the defendant S. was at all the times hereinafter mentioned and still is, as plaintiff is informed and believes, the editor and manager of a certain newspaper known as "The B. B.," then and now owned, controlled and operated by the defendant, the N. P. I. Co. III. That the said defendant, the N. P. I. Co., was at all the times hereinafter mentioned and still is, as plaintiff is informed and believes, a domestic corporation incorporated and existing under and pursuant to the laws of the State of New York and having its office and place for the transaction of business in the borough of Manhattan in the city of New York, in said State. IV. That the defendant S. was at all the times hereinafter mentioned and still is, as plaintiff is informed and believes, the president of said defendant, the N. P. I. Co. V. That at all the times hereinafter mentioned one S. A. K. was and now is engaged in the business of a banker and broker and a purchaser and seller of municipal and other bonds in the city of , in the State of Illinois. VI. That on the day of , 19 , the defend- ant S., contriving and wickedly, wantonly and maliciously intending to injure the plaintiff in his good name, fame and credit, and to bring him into public scandal, shame, infanly and disgrace with and amongst all his neighbors and other good and worthy citizens, and to cause it to be suspected and beUeved by those neighbors and citizens that said plaintiff had been guilty of the offenses and misconduct hereinafter mentioned to have been made and charged upon him by said defendant aiid to injure the said plaintiff in his profession by causing it to be sus- pected and believed by the subscribers of and advertisers in the said "The A. B." and "The A. B. D. B. N.," that the said plaintiff would maliciously and wantonly publish reckless and 956 Bradbury's Forms of Pleading Libel and Slander false, defamatory and untrue statements of a person engaged in the business of a banker or broker as hereinafter set forth, and to vex, harass, annoy and injure him, the said plaintiff, did on the aforesaid day of , 19 , falsely, wickedly, wantonly and maciliously and with intent to injure the said plaintiff, compose, and the said defendants did publish in the said newspaper known as "The B. B." of and concerning the said plaintiff, a certain false, scandalous and defamatory libel designed for and intending to hold the said plaintiff up to hatred, ridicule and contempt and to injure him in his business and profession as aforesaid, which said libel contained the false, scandalous, defamatory and libelous matter following, that is to say : " Financial Responsibility "In submitting his bid for the G., N. J., bonds, Mr. S. A. K., of " [meaning thereby the S. A. K. in paragraph fifth of this complaint mentioned], " of his own accord, referred for information as to his financial standing to the editor of the 'The B. B.'" [meaning the defendant S.] "and to Mr. A. S., publisher of 'The A. B.' " (meaning the plaintiff]. "Knowing something of the difficulties under which Mr. K." [meaning thereby the S. A. K. in paragraph fifth of the complaint mentioned] "had been laboring for some years past and the strong sympathy generally felt for him by reputable bond dealers, the editor of The B. B." [meaning thereby the defendant S.] " made no reply to inquiries. Mr. S., however " [meaning thereby the plaintiff], "having in his employ as an editorial writer an alleged bond dealer who served an apprenticeship in Mr. K.'s office and knew of his financial troubles, immediately replied in the following charitable and cheering terms not only as to Mr. K.'s finances, but his alleged practices in bidding for bonds" [meaning thereby that the plaintiff had written the letter hereinafter set forth, which said letter is false and libelous as hereinafter mentioned, and that the said plaintiff had been guilty of the crime of libel and had published a malicious pub- lication without good motives or for justifiable ends, by writing Complaints 957 Libel and Slander or printing or otherwise than by mere speech, which exposed the said S. A. K. to hatred, contempt, ridicule or obloquy, or which caused or tended to cause the said K. to be shunned or avoided , or which had a tendency to injure him in his profes- sion or business.] " Gentlemen : " S. A. K. failed four years ago " [meaning thereby that the said S. A. K. in paragraph fifth of this complaint mentioned, had four years ago become insolvent and a bankrupt], "and I do not believe his creditors received twenty cents on the dollar" [meaning thereby that said plaintiff did not beheve that said S. A. K. had paid his creditors more than twenty cents for every dollar that he had owed them]. "Place no credence in any assurance that he will take up the bonds unless it is accompanied by a certified check or the actual cash" [meaning thereby that the plaintiff had written and published of and concerning the said K. that no assurance was to be placed in the words of the said K. and that the word of the said K. was worthless and that he would not fulfill the contracts made and entered into by him in his business unless he had been forced to deliver previously his certified check or the cash for the amount that he was obli- gated to pay]. " He has no business standing " [meaning thereby that the said plaintiff had written and pubhshed of and con- cerning the said K., that the said K. was not a banker or broker in good standing and was not a reputable banker or broker and that his credit was impaired and that he was financially irre- sponsible, all of which statements are and were wholly false and untrue and known to the said defendants so to be] " and is in the habit of bidding for bonds for the purpose of selling at a profit " [meaning thereby that the plaintiff had written and published of and concerning the said K., that the said K. was in the habit of completing his contracts for the purchase of bonds only in case he found he should be able to make a profit on the resale thereof, all of which is and was wholly false and untrue and known to the defendants so to be]. " If he finds that he cannot sell, he leaves those who offer the bonds for sale in the lurch " 958 Bradbury's Forms of Pleading Libel and Slander [meaning thereby that the said plaintiff had written and pub- hshed of and concerning the said K. that the said K. had habit- ually, continually, unjustifiably, improperly and unlawfully re- fused to carry out his contracts for the purchase of bonds unless he might find that he would afterwards be able to sell the same at a profit, and that in case he would not be able to sell the same at a profit he would refuse to complete said purchases, and that he was a dishonest and fraudulent trader and bond dealer, all of which statements, as plaintiff avers, are and were wholly false and untrue and known to the defendants so to be]. "While the A. B. has its hand in, will it not give the public the benefit of its estimate of the practices and the financial re- sponsibility of the alleged bankers, C. G. H. and E. B. U., whom it lately called as witnesses in a libel suit against it, in which the paper was mulcted in $ damages? And also, not to be invidious, will it not state the financial responsibility of F. K. of its editorial staff or A. B. Agency who advertises in its columns to purchase bonds apparently in order to obtain information from municipal officers proposing to issue bonds?'' [meaning thereby that the plaintiff had knowingly permitted fraudulent advertisements for bonds to be inserted in the columns of the newspapers and journals published and owned by him by persons who had no intention of purchasing the same.] " The charity which is so strong that it can go abroad to attack Mr. K. ought certainly to be strong enough to hobble home to defend H. and its other editor even if it does not care to protect U." VII. That by reason of the wrongful act of the defendants and the foregoing libel as hereinbefore and in this complaint set forth, the plaintiff has been and is greatly injured in his good name, fame and credit and brought into public scandal, infamy and disgrace, with, to and amongst his neighbors and other good and worthy citizens and has been held up to public hatred, ridicule and disgrace and has been and still is greatly injured in his business and profession to his hurt and damage in the sum of $ Wherefore [demand for money judgment]. Complaints 959 Libel and Slander Form No, 605 Words Touching Plaintiff Injuriously in Its Business 1 I. That during all of the times hereinafter mentioned, the plamtiff was and stiU is a corporation created and existing un- der and pursuant to the laws of the State of New York and was at all the times hereinafter mentioned, and stiU is the owner and proprietor of a newspaper known as the " N. Y. T." II. On information and behef, that during all of said times the defendant, the N. Y. E. J. P. Company, was and still is a corporation created and existing under and pursuant to the laws of the State of New York and was at all of said time, the owner and proprietor of a newspaper published in said city of New York under the name " N. Y. E. J." III. That during all of said times, the defendant W. R. H. was the editor and publisher of said " N. Y. E. J." and the defend- ant A. B. was an editor of said newspaper and the writer of the article hereinafter set forth. IV. That the plaintiff through its officers and editors has diligently labored to publish and maintaini, and has published and maintained, the newspaper known as the "New York Times " free from all outside influence except such influence as may be honorably and properly exerted by any reputable mem- ber of the community, actuated by good motives and regard for the public welfare, well knowing that the prosperity of the business of this plaintiff, its standing and the confidence with which it is regarded in the commimity, were and are depend- ent upon the establishment of its reputation as a newspaper unselfishly devoted to the public interests and welfare. V. That one A. B. referred to in the libelous article herein- after set forth, does not own any of the capital stock of this plaintiff, and has no voice or control whatsoever in the manage- ment of its affairs nor in the affairs of any of its auxiliary asso- ciations, and said A. B. does not in any way control or direct 1 From New York Times v. Star Co., 105 App. Div. 642; 94 Supp. *I167; in which, on demurrer, this complaint was upheld. 960 Bradbury's Forms of Pleading Libel and Slander the policy or management of said "New York Times;" nor is the said newspaper or its management nor is the said A. S. C. referred to in said article, and who owns in his own right, more than the majority of the capital stock of this plaintiff, and who directs the editorial and business policy of said "New York Times," under any financial or other obligations to said A. B. VI. The libelous article is set forth verbatim. Its headline is: "Mr. Augustus Belmont and His Tame Ochs." It says in part, "If he [Ochs] could patch up the wreck of a newspaper that had been stupid enough to reflect the opinion of A. B., of the government bond deal; Mr. F., of the Rubber Trust, etc., he was to have certain proprietary rights in the sheet. Mr. Ochs is now trying to earn those proprietary rights — you must re- member that when you read his paper. "Sometimes he is a reformer, in the hope of getting sub- scribers. Again, when he remembers that Mr. B.'s ring, backed by the R.'s, owns the elevated railroads and the underground, the dull Ochs suddenly finds that he is against reform. He hates the E. bill, in fact he does not know that it exists." VII. That by said false, defamatory and libelous matter, said defendants charged and intended to have it understood that said "New York Times," was not published and edited honestly in the interests of the community, in which it is pub- lished and circulated, but is published as the organ of and in the interests of persons charged by said«defendants with having unsavory reputations, with having perpetrated frauds on the United States government, with having betrayed the interests of the people of the United States, including the citizens of the city of New York, for private gain, with being corrupt and dishonest, with having connived at and been responsible for the murder of one W. G., Governor of Kentucky, with promoting gambling and dishonesty, with controlling institutions that make forgers and thieves of thousands of men and ruin thousands of families, and with whom any association whatsoever meets pubRc disapproval, and that the articles printed and published in the "New York Times " arc published in the interests of these Complaints 961 A Libel and Slander persons and alleged lawbreakers and elements dangerous to the welfare of society, and that the editorial policy of said "New York Times" is controlled and dictated by interests in- imical to the welfare of the citizens of the State of New York and the United States, and encourages lawlessness and the commission of acts dangerous to the welfare of society. VIII. That by reason of the publication of the aforesaid words and matter by said defendants, this plaintiff has been greatly injured in its good name, fame and credit, and brought into public obloquy and disrepute throughout the city and State of New York, and the United States, to its damage in the sum of $ Wherefore [demand for money jiidgment]. Form No. 606 Words Touching Plaintiff Injuriously in His Business i I. [Allegation that the defendant is and was a domestic corpo- ration.] II. That at all the times hereinafter mentioned, the plain- tiff was an officer of the N. C. Works situated at C, N. J., viz.,— general manager, and that he was indicted with others by the United States Grand Jury for the State of New Jersey, and plead to said indictment in , 19 , and was tried under said indictment and on the day of , 19 , was acquitted by trial jury in the District Court of the United States for the district of New Jersey. Ill That at all the times hereinafter mentioned, the defend- ant was the proprietor and publisher of a daily newspaper called "The Evening Mail" published in the city of New York, borough of Manhattan and State of New York. Said newspaper as plaintiff is informed and believes is one of large circulation m the city of New Yorkandthrou^^ ordered stricken out are italicised. Vol. 1-61 962 Bradbury's Forms of Pleading Libel and Slander the time the article hereinafter mentioned was published, the circulation of said newspaper was over copies daily. IV. That the said defendant on the day of , 19 , in the issue of the said "The Evening Mail" of that date maliciously published in said "The Evening Mail," and caused to be circulated throughout the city of New York and the Uni- ted States, a certain false, improper, scandalous, maUcious and defamatory libel concerning this plaintiff; said false and de- famatory article is contained upon the editorial page of said newspaper, and is as follows : "Iron Bars in Life Belts. "Four men [meaning thereby plaintiff, with others] who pleaded guilty at Trenton, N. J., to the charge of placing iron bars in the center of cork blocks intended for life preservers, did so for 'the purpose of demurring to the indictment.' It is understood that it is their future purpose to claim that the blocks of iron in the cork, 'did not interfere with the efficiency of the life preservers, but on the other hand, added to their strength and durability.' "These gentlemen evidently expect to get an acquittal from the court and a vote of thanks from the public for generously making better life belts by the aid of a substance nearly eight times as heavy as water than their contract required to make. Having discovered that iron would buoy people up better than cork will, they proceeded to hide away the iron inside the corjc, in order that neither the inspectors nor the public whom they were serving in this self-sacrificing manner, should know any- thing about it. "One wonders that they kept so great a discovery secret. If iron-weighted life belts would save more lives on the Delaware River than clear cork belts will, they must save more elsewhere. Why conceal the iron so carefully, when its widespread use would do so much good? When a cork belt is under the required weight, a weight, let it be remembered of strong and buoyant cork, which will bear up in the water a greater human weight than a lighter cork belt would, and when the makers are afraid Complaints 963 Libel and Slander that the belts will not pass the inspectors on account of their lightness, it is a cheap way of supplying added weight to smuggle a piece of old iron into the cork block [meaning thereby that plaintiff for the sake of money, manufactured dangerous Ufe preserver blocks]; but the 'stronger' such a block is on account of its iron weight, or the more 'durable,' it may claim to be on that account, the worse it is as a life preserver [meaning thereby that plaintiff endangered lives]. "It becomes an instrument of death [meaning thereby that plaintiff manufactured articles which would cause death and thereby committed manslaughter]. The specious claim of these Trenton men insults the common sense of the judge and jury before whom it was brought." That all the statements in said article were false and untrue. V. That the foregoing libelous article and publication thereof was neither a fair nor a true report of any judicial, legislative or other public or official proceeding and that the said article and the publication thereof as herein alleged was a false, malicious and defamatory libel of and concerning the plaintiff. VI. Upon information and behef that each and every copy and copies so published and circulated by the defendant, and each and every one of them, contained the hbelous article and matter as herein alleged and was published and circulated by said defendant. VII. That by reason of the foregoing facts, plaintiff claims to have been damaged and to be entitled to recover of the de- fendant the sum of $ Wherefore [demand for money jvdgment]. Form No. 607 Accusing Legislator of Oomiption ^ I. That plaintiff at all the times hereinafter mentioned was, and for mo re than years last past has been, a resident " iFrom Robertson .7n. Y. Press Co., 2 App. Div. f! 37 Supp. 187; in which that part of the complaint in the paragraph marked X was struck out as irrelevant. 934 Bradbury's Forms of Pleading Libel and Slander of the county of W. and, prior to the time of the commission of the grievances hereinafter mentioned, liad been for morf) than years engaged in business in the village of P. in said county and in New York City as a stove manufacturer, and was of good name and credit in the community. II. That for many years prior to the commission of the griev- ances hereinafter mentioned, the plaintiff has been on several occasions chosen by his neighbors and fellow citizens a member of the legislature of the State of New York, and plaintiff has represented his constituents in both branches of said legislature, and has been once chosen as a representative in the assembly, and once elected to the Senate; and plaintiff has also held various offices of trust within said county of AVestchester, within the town of C. therein, and within the village of P. in the said county. And plaintiff was at the time of the commission of the griev- ances hereinafter mentioned, and still is, a member of the Senate and of the legislature of the State of New York, from the county of W., and a portion of the city of New York, and engaged in the discharge of the duties of said office, and plaintiff enjoyed the confidence, respect and esteem of his neighbors and fellow citizens throughout the State. III. That until then plaintiff had always maintained a good reputation and credit, and has never been guilty of any fraud, deceit, bribery or corrupt practice or any of the offenses charged against him in the libel hereinafter set forth, nor until the pub- lication thereof was he ever suspected to be. IV. That the business of this plaintiff as a stove manu- facturer, and his position as a public representative in the community where he resides, and in the county of W., has always depended largely upon the good reputation and credit of this plaintiff, and on the absolute trust reposed in him by persons having dealings with him, and by the public in conse- quence thereof. V. Plaintiff further says, that by reason of the matters here- inbefore alleged, plaintiff has become widely acquainted and Complaints 965 Libel and Slander well known, both personally and by reputation, to his fellow citizens in the State of New York, both in private and public life, and has taken active part in political affairs, in which it was necessary, and is now as heretofore, for plaintiff to retain and enjoy the respect and confidence of all citizens as a man and official of integrity and of honorable purpose in his official relations with his constituency and with the people of the State of New York. VI. Plaintiff further alleges that the defendant, the N. Y. Press Co., Lim., was at all the times hereinafter mentioned, and still is a domestic corporation duly existing under and by virtue of the laws of the State of New York, engaged in print- ing, pubhshing and the sale of newspapers, books and publica- tions in the city, county and State of New York, under the corporate name of the N. Y. P. Co., Lim., and said defendant, the N. Y. P. Co., Lim., and the defendant L. E. Q. were at all the times hereinafter mentioned and still are the publishers, and proprietors of the "P.," a newspaper pubhshed in the city of New York. And the defendant L. E. Q. was at all the times hereinafter mentioned, and stiU is engaged in editing, printing and pub- lishing said daily newspaper under the name and title of the "P.," as aforesaid. And the plaintiff further alleges, upon information and be- lief that the said newspaper published by said defendants in the' city of New York, as aforesaid, to wit, the "P.," has a very large and extensive circulation in the counties of N. Y. and W and throughout the State of New York and elsewhere, to wit: Daily circulation, as plaintiff is informed and beheves, of more than copies, and its editorial and news items are ex- tensively copied and commented upon by all the leading news- paper presses in the State of New York. Vn. Plaintiff further aUeges that the defendants, well know- ing the premises, did on the day of 19 , compose and pubhsh in said newspaper, to wit : The P., of and concerning the plaintiff and concerning the premises, 966 Bradbury's Forms of Pleading Libel and Slander the false, malicious and defamatory and libelous matter, to wit : "Boodle $ . A Legislative Scandal Which Must Be Investigated. Fireman's Bill 'Strike.' Mercenaries [meaning this plaintiff] Demand a Corruption Fund. Money Actually Raised. R. [meaning this plaintiff], C. and R. were the Sena- tors Mentioned. 'L. P.' to 'Handle Things.' Negotiations With Prominent Firemen. Efforts to Sidetrack the P. Bill. Only Powerful Influence was Able to Make the Senators 'Let Go.' The Fire Department Should Go to Work and Ask Some Questions. The Next L. Investigation Should Be of the State Senate Itself. There are Members of that Body Whose Motives in Their Attitude Toward Certain Public Measures Need To Be Inquired Into. The "P." presents to-day certain facts in con- nection with the Firemen's Salary Bill which point unerringly at corrupt negotiations if not between the Senators [meaning this plaintiff] and the representatives of the officers' association of the Fire Department, at least in behalf of Senators [meaning this plaintiff] through one of the most notorious political lobby- ists. These facts suggest, if they do not wholly prove, that the measure introduced by Senator R. [meaning this plaintiff] as a substitute for the P. salary bill was a strike for money; that it was so understood by the officers of the Fire Department. That it resulted from negotiations in which Ex-Marshal L. F. P. was a conspicuous figure; that the terms of the negotiations require the ra'sing among the firemen of this city of $ , to be distributed among the Senators [meaning this plaintiff] who were alleged to be in the deal; that if they [meaning this plaintiff] were not in the deal, they were made the tools of a most bold and shameful plot for corruption; that arrangements to raise the money were made by and pressed upon the Officers' Association [meaning the Officers' Association of the Fire De- partment of the city of N. Y.], whose proportion of the $ was $ ; that of this $ , between $ and $ was actually raised, and that the Senators whose names were mentioned among the firemen as the men CoMPLAnsTTs 967 Libel and Slander who 'required to be taken care of [meaning this plaintiff] feloniously demanded a bribe as Senator R of AV. [meaning the plaintiff], R. of , and C. of 0. "How the Salary Bill Was Made. The pay of the members of the Fire Department of the grade of firemen, under existing law, is $ a year for the first-year men, $ for the second-year men and $ a year for the third-year men, which is the maximum salary of firemen. Until one year ago these sums were paid also to the members of the poUce force, but the last legislature, under circumstances that caused a good deal of scandal, raised the salaries of pohcemen to $ The members of the Fire Department thought themselves as much entitled as policemen to this amount of pay, and early in the present session they submitted a bill to the legislature which raised the pay of the second-year men from % to $ , and the maximum salary from $ to $ . The firemen are organized in a regularly incorpo- rated society, which is known as the Firemen's Mutual Benevo- lent Association, the president of which is J. D. C, a fireman attached to Engine C, Company No. 22. The bill to carry the firemen's claims into effect was prepared under Mr. C.'s direc- tion and that of a special committee of the association, the chairman of which is T. R. of Engine Company No. 44. "And Now it Strikes a Snag. [Here follows a stateinent as to the introduction of the bill before the legislature.] A corrupt proposition is made. It raised a storm at once. The P. bill was unobjectionable to the city authorities. Indeed, Mayor b. was known to favor it, and it was well understood that if it succeeded in passing the legislature, it would meet with no objection either from the mayor or the governor. In its amended form, however, it was equally well known to be sure of defeat. A law was already in existence enabling the city authorities at wiU to increase the pay of the officers, and the board of esti- mate had, year after year refused to act under its provisions. The R. [m;aning the plaintiff] amendment made this law amenda- tory and no doubt existed or could exist that it would be op- Bradbury's Forms of Pleading Libel and Slander posed by the city authorities. The firemen and their friends made a great to-do, and so prompt and influential were their protests that R. [meaning this plaintiff] consented to have his substitute bill recommitted, to the city's committee, there to undergo further consideration. At this point the true meaning of the R. [meaning this plaintiff] amendment began to develop. The officers of the Firemen's Association and the members of its special committee on legislation began to receive numerous hints from the foreman and assistant foreman in their various engine houses, that what was needed was a little 'soap,' and that there were Senators [meaning this plaintiff] at Albany who 'were not there for their health.' At last these sugges- tions took a definite form and the president of the Firemen's Association, Mr. C, was approached by one of the officers of the department with a distinct proposition that the men should meet the officers in a boodle fund. "L. P. to 'Handle Things.' The officers of the department have an association of their own. Its president is J. J. B., foreman of tlook and Ladder Company No. 1, who is regarded as one of the best firemen and one of the ablest men in the department. There are foremen in the department, assistant foremen, deputy chiefs and battalion chiefs, making in all officers. There are firemen. The proposition submitted to Mr. C. was that the officers would ' put up ' $ and the men $ more, making a total of $ . Mr. C. was informed that no bill of any kind would ever come out of the city's committee of the Senate until this amount of money had been raised, and that the interests of the officers had been placed in the hands of L. P. who would 'handle things' at Albany. Mr. C. asked some more questions in order to possess himself of the main facts of the case, and then stated that the men had made up their minds that they would not engage in any bribery busi- ness, and would either get their increase of pay without the use of money or go without it. "Subsequent investigations and accidental revelations brought Complaints 969 Libel and Slander out the fact that a committee of officers existed, composed of Mr. B., foreman F. W. G., Jr., of Engine Company No. 35, and assistant foreman J. J. S., of Hook and Ladder No. 2, who were placed in charge of the legislative interests of the officers. For each battalion a collector was appointed to raise the nec- essary money and a considerable sum of money, which at one time amounted to $ , was actually raised among the officers. During the pendency of the bill in the Senate Com- mittee the information was formally conveyed to the firemen that the bill was effectually locked in the committee and that the Senators who were 'in charge of the matter' [meaning that plaintiff was corruptly and feloniously demanding a bribe as a Senator] were R. [meaning this plaintiff], C. and R. "A Full Investigation Necessary. Eventually, as is well known, these Senators [meaning this plaintiff] 'let go' [meaning this plaintiff ceased to insist upon a payment of a bribe as a condition of favoring said bill]. "The bill was restored to its original condition, reported favorably and passed. It received the mayor's approval and the governor's signature, and it is now a law. The officers' bill was introduced as a separate measure, was reported favorably, and is now pending. This came about because of the firm posi- tion the firemen took in refusing to be blackmailed [meaning to pay a corrupt bribe to this plaintiff], and because of the powerful political influences they were able to secure in behalf of their just measure and in support of their honorable conduct. "But the behavior of two of the Senators, R. [meaning this plaintiff] and C, whose names were connected with this scandal, and who, on Tuesday last, repudiated their caucus pledges, and voted in the Senate to emasculate the I. Police Reorgani- zation Bill by so amending it as to give to policemen the right of appeal from the finding of the Police Reorgamzation Com- mission, gives to the facts in the case of the Firemen s Bill a peculiar pertinency. If it can be possible that they were so innocent as not to know that their names were bemg used to force corrupt legislation, then they certainly will be anxious 070 BrAdSury's Forms of pLEADirJci Libel and Slander to shed what Hght they can on the matter. There is no doubt that an investigation properly undertaken into the facts which the 'P.' has now made pubHc will develop the whole truth. Such an investigation must certainly be had. "Bad Business at Albany." [Another two pages of matter similar to preceding.] The foregoing publication, made of and concerning this plain- tiff by defendants as aforesaid, was intended and expected by said defendants to be made, and was made, the subject of editorial comment and of news items in all the newspapers of the State of New York, as well as of all important cities of the United States, and was given prominence as sensational news wherever such comment was made as bringing into disrepute this plaintiff as well as the bodies of men with which said plain- tiff was associated in said publication, that such effect and consequence of the defendant's pubhcation as aforesaid, the defamatory matter above set forth, was in the contemplation of the defendants when said defamatory matter was so pub- lished by them. VIII. Plaintiff further alleges that the defendants published said articles with the intent to charge this plaintiff with viola- ing the statutes of this State, relative to bribery and relative to the duty of public officers holding offices of trust in this State, and to cause it to be believed thereby, that this plaintiff was guilty of bribery and was guilty of a wicked and malicious breach of trust in violation of his public duty as a Senator of the State of New York, and as a citizen of the said State, and that he was guilty of malfeasance in office, and with the further intent to cause it to be believed that this plaintiff had entered into a corrupt conspiracy and combination to defeat legisla- tion, and to receive and accept money and bribes for his official acts as such Senator, and to cause money, bribes and things of value to be received on his behalf as such public officer and Senator, in violation of his public duty as such Senator, and in violation of his oath as a public officer and in violation of his duty as a citizen. Complaints 971 Libel and Slander IX. Plaintiff further alleges that the said -defendants pub- lished said articles and libelous matter, contriving and intend- ing thereby to injure the good name and reputation of plaintiff in private life and as a public officer, and to deprive him ^ re- spect and confidence as a man of honor and integrity in private and public life, worthy to be trusted with the discharge of the duties of public offices as a representative of his fellow citizens, and to cause it to be believed of plaintiff that, as a public official and Senator in the legislature of the State of New York, the official act of the plaintiff was affected, influenced and con- trolled by mercenary motives, and that plaintiff received as such Senator, unlawfully and feloniously, pecuniary considera- tion for his official action, and soUcited and demanded, feloni- ously, the payment of money or other bribes as a condition of favoring or opposing the enactment of laws pending before the legislature of the State of New York, and further willfully and maliciously contriving and intending to cause it to be believed of plaintiff by the people of the State of New York that plain- tiff had specifically asked, solicited and demanded, and caused to be asked, soUcited and demanded, in his behalf, unlawfully and feloniously, a pecuniary bribe for his support of a certain bill or bills and amendments thereof, pending in the legislature of the State of New York, in the year 19 , by which the sala- ries and compensation of the employees, members and officers of the Fire Department of the city of New York, were then and there to be fixed and increased by act of the legislature of the State of New York. X. That, immediately after said publication was made, the Senate of the State of New York, by formal resolution adopted in open sQssion, ordered an investigation of all the matters contained in said pubhcation, which investigation contmued during the period of nearly one month; and the details thereof were made the subject of much comment. And the plaintiff further was obliged to employ, and did employ, counsel m his behalf to attend upon all the hearings of said investigation at great expense, and to personally devote a great deal of time 972 Bradbury's Forms of Pleading Libel and Slander to the gathering of evidence and personal attendance upon such investigation, to estabhsh the falsity of all the matters sug- gested and charged by all the matters of such publication by defendants; that such result of the publication as aforesaid, of the matters hereinbefore set forth, was intended and ex- pected by the defendants herein, and contemplated by said defendants, when said defamatory matter was published by them. XI. That such labors were protracted and exhausting, caus- ing plaintiff great mental anxiety because of the difficulty of the investigation and the false reports and suspicions caused to be put in circulation by said publication, and the shame, reproach and infamy brought hereby upon plaintiff, all of which was the result and consequence expected and contem- plated by defendants herein when the defamatory matter hereinbefore set forth was published by them as aforesaid. XII. The plaintiff was further subjected to severe nervous strain, impairing the plaintiff's usual health, by the mortifica- tion incident to the publicity of all the charges, investigations, rumors and suspicions aforesaid, for a time; which said in- vestigations, rumors and suspicions aforesaid affected injuri- ously and placed in peril plaintiff's reputation as a man of honorable purposes and associations in public life, and an official of integrity, worthy of the confidence and respect of the con- stituency whom he represented in the Senate of the State of New York, as well as of the general public; and because no vindication by any investigation would repair the injury done to plaintiff's reputation by the universal publication of the charges contained in said publication of defendants. XIII. That, by reason of the premises, the plaintiff has been injured in reputation and credit and suffered damages by rea- son of the matter and things hereinbefore set forth, in the sum of $ Wherefore [demand for money judgment]. Complaints 973 Libel and Slaonder II. Slander Form No. 60Q Words Charging Larceny ^ The above-named plaintiff complains of the defendant in this action, for "that, whereas he was Commissioner of High- ways of the town of B., in the county of , N. Y., or about the years 19 , 19 and 19 . That whereas the said plaintiff was and is a good, true and honest member of society, and was never guilty in any manner of the crime and felony, as hereinafter mentioned and laid to his charge by the defendant, nevertheless, the said defendant well knowing the premises, but contriving and maUciously intending to injure, defame and slander the said plaintiff in his good name, to wit: on or about the day of , 19 , at the town of B., in the said county of , and within the jurisdiction of this court, in a certain conversation or discourse had of and concerning the said plaintiff, in the presence and hearing of good and worthy persons of and concerning said plaintiff, J. S. H., these false, iniquitous, scandalous and defamatory words, did speak, pubUsh and declare, to wit: He [meaning plaintiff] stole. Ho [meaning plaintiff] stole $ of the town of B. when he was commissioner. He [meaning plaintiff] stole.' He [meaning plaintiff] stole $ when he was Commissioner of Highways of the town of B. He [meaning plaintiff] is a thief and stole $ of the town of B.'s money, thereby maliciously and atrociously meaning and in- tending to charge and make it beUeved that the plaintiff, J. S. H., had been and was g-uilty of the crime of felony, and of having feloniously stolen % of the town of B., when he was Commissioner of Highways of said town. And whereas, also, the said defendant, with further mahce towards the said plaintiff, afterward, to wit: on or about the day of , 19 , at the town and village of C, 1 From Hayes ^TB^TTNy YTHiTin which a judgment for the plaintiff was affirmed. 974 Bradbury's Forms of Pleading Libel and Slander county, in a certain other discourse or conversation, then and there had in the presence and hearing of several other good people, of and concerning this plaintiff, did falsely, ma- liciously and slanderously in the presence and hearing of these people, and speaking of said plaintiff, J. S. H., who was then a candidate in nomination for the office of supervisor of the town of B., county, said to one of the persons there present: "Who are y6u going to vote for, for supervisor?" And was replied to that he intended to vote for H., the above plaintiff; to which defendant then said in the hearing of these people: "Will you vote for such a man as H. [meaning plaintiff], that stole $ of the town of B., when he was Commissioner of Highways? Will you vote for him for supervisor [meaning plaintiff] and give him a chance to steal $ or S more from the town? Will you vote for him [meaning plam- tiff], and let him steal more of the town's money; he [meaning plaintiff] stole $ of the town of B., when he was com- missioner, and I [meaning defendant] knew it at the time, but lied to conceal it and keep it still, but knew it was true at the time; he, [meaning plaintiff] stole money of the town of B., when he was Commissioner of Highways and I [meaning defendant] knew it at the time, but Ued about it and kept it still on account of the party, for fear it would injure it. And will you vote for him to get a chance to steal $ or $ more of the town of B.? He [meaning plaintiff] stole $ of the town'a money when he was commissioner, and everybody knows it." And whereas, also, the said defendant, with further malice toward the said plaintiff, to wit : on or about the day of , 19 , at the place aforesaid, in a certain other con- versation, which defendant then and there had in the presence and hearing of other good and worthy people, of and concern- ing the plaintiff, J. S. H., to wit: In the presence and hearing of E. W., I. S. B., C. E. D., T. J. N. and A. W., did falsely, ma- liciously, slanderously and wickedly, in speaking of and con- cerning plaintiff, these false, scandalous and malicious words of plaintiff, written, published and declared. He [plaintiff Complaints 975 Libel and Slander meaning] stole; he [plaintiff meaning] stole $ when he was Commissioner of Highways, and I [meaning defendant] knew it at the time. Defendant further said: "Do you want him [meaning plain- tiff] elected for supervisor, so that he can steal $ or $ more of the town's money? He [meaning plaintiff] stole $ when he was Commissioner; thereby meaning and intending, maliciously and atrociously, to charge and make it believed that the plaintiff, J. S. H., was guilty of the crime of larceny, was guilty of felony, and of having feloniously stolen $ of the money belonging to the town of B., when he, said J. S. H., was Commissioner of Highways of said town. By reason of the speaking, pubUshing and uttering of said false, scandalous, malicious and defamatory words, the said plaintiff, J. S. H., has been and is injured in his good name, fame, credit and reputation. Wherefore [demand for money judgment]. Form No. 610 Witness Testifying in Court ^ After formal allegations: III. And the said J., of his further malice against the said T., afterwards, to wit, on the same day and year aforesaid, at S., in the county aforesaid, and at divers other days and times, both before and afterwards, and while the said T. was, then and there, giving testimony, in a court of the people of the State of New York, before J. R. G., Esq., one of the justices of the 1-eace, etc., of said county, in a certain cause, between the said J. W., plaintiff, and one J. K., defendant; of which cause the said justice had jurisdiction, and by whom the said T. was duly sworn, and was testifying to a point material between the par- ties there, other false, feigned, scandalous and opprobrious words, of and concerning the said T., in the presence and hear- ing of divers other worthydtizen Mhen and there, d id falsely 1 From McClaughry «7w^ore, 6 Johns. 82; in which jud^ent for the plaintiff was affirmed 976 Bradbury's Forms op Pleading Libel and Slander and maliciously pronounce and with a loud voice publish, to wit : "That [meaning the testimony by the said T., then delivered to the said court] is false." By reason, etc. Form No. 611 Words Which Oould Be Construed as Imputing Felony ^ That heretofore, and during the month of , 19 [the exact date of which plaintiff is unable more particularly to state], in a conversation then and there had with one C. S., concerning the burning of defendant's barns in on the night of , , 19 , the said defendant, contriv- ing and maliciously intending to injure the said plaintiff in his good name, fame and reputation, and to cause it to be suspected and beheved by^his neighbors and friends that the said plain- tiff had been and was guilty of the felony hereinafter mentioned, to have been made and charged upon him by the said defend- ant, and to vex, harass and oppress the said plaintiff, falsely and maliciously spoke of and concerning the plaintiff the false, scandalous and malicious words following: "He [meaning plain- tiff] knows more about the fire than anyone else. He [meaning plaintiff] told J. that the best thing that could happen to the barns was to have a match touched to them," thereby intend- ing to charge the plaintiff with having committed the crime of arson in the second degree, and the said C. S. then and there understood that that was the meaning of said words. II. And for a second, further and separate cause of action against said defendant, the plaintiff alleges, on information and belief, that the said defendant during the months of and , 19 [the exact date of which the plaintiff is unable more particularly to state], at , , in a conversation then and there had with one G. B. of , 1 From Warner v. Southall, 163 N. Y. 496; aff'g 31 App. Div. 375; 52 Supp. 320; in which the plaintiff recovered, the principal point decided being that where the alleged slanderous words might have two constructions and it might be determined that they charged the plaintiff with an offense which made them actionable slander, the case should go to the jury. Complaints 977 Libel and Slander aforesaid, concerning the burning of defendant's barns in , on the night of , , 19 , contriving and ma- liciously intending to injure and defame the said plaintiff in his good name, fame and reputation, and to cause it to be sus- pected and beUeved by his neighbors, friends and acquaintances, that the said plaintiff had been and was guilty of the felony hereinafter mentioned to have been made and charged upon him by the said defendant, and to vex, harass and oppress the said plaintiff, falsely and maliciously spoke of and concerning the plaintiff, the false, malicious and defamatory words follow- ing: "I [meaning defendant] believe that W. [meaning plaintiff] burned those barns," thereby intending to charge the plaintiff with having committed the crime of arson in the second degree, and the said F. B. then and there understood that that was the meaning of said words. III. And for a third, further and separate cause of action the plaintiff alleges on information and belief, that during the months of and , 19 , and 19 , at , , the above-named defendant in conversation then and there had with divers good and worthy citizens of and , aforesaid, and in the presence and hearing of divers other good and worthy citizens of , and , concerning the burning of defendant's barns as hereinbefore alleged, contriving .and maliciously intending to injure and de- fame the said plaintiff in his good name, fame and reputation, and to cause it to be believed by his neighbors, friends and ac- quaintances that said plaintiff had been and was guilty of the felony hereinafter mentioned to have been and charged upon him by the said defendant, and to vex, harass and oppress the said plaintiff, falsely and maliciously spoke of and concerning said plaintiff, the false and malicious and defamatory words following: "I [meaning defendant] believe that W. [meaning plaintiff] burnt those barns," thereby intending to charge plain- tiff with having committed the crime of arson in the second decree. That by reason of the speaking, publishing and uttering of Vol. I— fi2 978 Bradbury's Forms of Pleading Libel and Slander which said false, scandalous and malicious words the plaintiff is greatly prejudiced in his good name, fame and reputation, and also greatly injured in his business, and has thereby suffered damage to the amount of dollars. Wherefore [demand for money judgm,ent]. * Form No. 612 Words Imputing That the Plaintifi, a Merchant, Oould not Pay a Cer- tain Debt. Oomplaint as Summarized in Opinion ^ The first count recited, that before, and at the time of pub- lishing the slander, the plaintiff was and had been a merchant, and sought his liveUhood by buying and selling goods, wares and merchandise, as others of that trade and business usually do; that he was in good credit, etc., and averred that the defendant, knowing the premises, in a conversation with divers good and worthy citizens, of and concerning the plaintiff, and of and concerning his business as such merchant or trader, and of and concerning the state of his circumstances as such merchant or trader, spoke certain slanderous words. The fifth count was as follows: "And whereas, etc., in a cer- tain other discourse which he, the defendant, then and there had, with divers other good and worthy citizens of this State, of and concerning the said plaintiff, and of and concerning his business, and of and concerning his circumstances as such trader or merchant as aforesaid, he, the said defendant, falsely and maliciously said, spoke and published, in the presence and hearing of those last-mentioned citizens, of and concerning the plaintiff as such trader or merchant as aforesaid, and of and concerning his business, and of and concerning the state of his circumstances, and of and concerning a certain sum of money which was then due and owing from the said plaintiff to one M. H., these other false, scandalous, malicious and defamatory words following, that is to say: 'there is poor H. [meaning the said M. H.], 'it is hard for him,' [again meaning the said M. H.] ' From Mott v. Comstock, 7 Cow. 654; in which a verdict for the plaintiff was upheld. Complaints 970 Libel and Slander to lose his [meanmg the said M. H.] 'debt' [meaning thereby that the said plaintiff was insolvent, and unable to pay the debt he owed to the said M. H.; and that the said M. H. would lose the said debt in consequence of the said plaintiff's insol- \encyj. Form No. 613 Words Imputing Insolvency to a Copartnership 1 For a first cause of action. I. [Allegation as to the three plaintiffs being copartners.] II. That since during the year 19 , the said I. R. and W. R. H., two of the said plaintiffs under the said firm name and style of R. & H., have been engaged in the manufacture of tortoise shell and celluloid goods in the city of New York, and that since the said day of ,19 , all of the said plaintiffs have been and still are engaged in said business as copartners under said name and style; that during all of the said times the said firm of R. & H. transacted business with and sold the articles manufactured by it to a large number of merchants thi-oughout the United States and that in the transaction of such business, the said firm and the plaintiffs, as members thereof, at the times when the slanderous and defamatory statements were uttered by the defendant, as hereinafter stated, had estabhshed and were then maintaining and enjoying high reputations and financial standing and credit as manufacturers and merchants and otherwise, and that the predecessors of said firm, including the said I. R., one of the plaintiffs, had been merchants engaged in said business and other businesses, in the city of New York, for upwards of forty years last past. III. That at all the times hereinafter referred to, the defend- ant was and still is employed by or otherwise associated in business with one A. T. who at such times was and still is also engaged in the city of New York in the business of manufac- ' From Rice v. Zindel, 10.5 App. Div. 642; 94 Supp. 1161; in which, on de- murrer, this complaint was sustained, 980 Bradbury's Forms of Pleading Libel and Slander turing and selling tortoise shell and celluloid goods and other articles similar to those manufactured and sold by the said plaintiffs. IV. That prior to the beginning of this action, the defendant in the presence and hearing of divers persons maliciously and with the intent to injure the plaintiffs as such copartners as aforesaid, and with the intent to damage them in their said business, spoke of and concerning the plaintiffs as such copart- ners, false and defamatory words of the following tenor, that is "to say: "R. & H. are insolvent. They have been in the market pur- chasing One hundred thousand dollars worth of material on credit which they cannot pay for. They have lately applied to insurance companies for one hundred thousand dollars addi- tional insurance. The shelves in their warehouse and factory contain little or no merchandise, but empty boxes, and they are largely in debt. That Mr. H. has gambled and lost heavily and has given the firm's note in payment of his gambling debts after his own note had been refused. That the firm bribes the buyers of the large stores and also bribes the clerks in these stores to sell their goods in preference to others." V. That the said statements so made as aforesaid by the de- fendant, were false and untrue and were made by the defendant maliciously and because of actual ill-will and malice towards the plaintiffs as such copartners as aforesaid, and with the in- tent and purpose of imputing to the plaintiffs as such copart- ners and charging them with fraud, dishonesty and corruption in connection with the management and conduct of said business and for the purpose of maliciously injuring the said plaintiffs as such copartners in connection with the transaction of their said business and that the said statements were so understood by the persons who heard them. VI. That by reason of the utterance of the aforesaid words, the plaintiffs as such copartners have been damaged in their said business, trade and occupation, and in their reputations as merchants in the sum of $ Complaints 981 Libel and Slander [The second, fourth, fifth, sixth and seventh causes of action similarly allege slanderous statements.] For a third cause of action. The said plaintiffs hereby refer to, repeat and reallege all of the matters and things contained and stated in paragraphs I, II and III of this complaint with the same force and effect as though the same were here stated and realleged at length, and further allege as follows: X. That prior to the beginning of this action, the defendant, in the presence and hearing of divers persons, maliciously and with the intent to injure the plaintiffs as such copartners as aforesaid, and with the intent to damage them in their said business, spoke of and concerning the plaintiffs as such copart- ners, false and defamatory words of the following tenor, that is to say : "They [referring to the plaintiffs herein] are thieves and robbers to ask such outrageous prices for their merchandise. They are known to make personal inducements to buyers. [Meaning thereby that the plaintiffs' said firm paid money to or otherwise fraudulently induced the buyers of firms and mer- chants with which it dealt, to purchase its goods, instead of purchasing from others.] They have also been the means of Mr. B. losing his position in W.'s. [Meaning thereby that by reason of some moneys paid or other inducements made to Mr. B. who was employed by J. W., a merchant who purchased goods from the plaintiffs, the said B. had lost his position.] Have you heard the latest report? There is a firm in Phila- delphia who had a man come into my place of business and se- lect a large quantity of goods and pay me cash, which amounted to al-out $ , and had the goods sent to a hotel up town. A few clays after I was sent for to go to Philadelphia by the firm of W I was shown into the private office of Mr. W. and he had these goods laid on the table along with goods which he had purchased fron^^ the firm of Messrs. R. & H. He told me that he wanted to draw a comparison, and that he had taken this method to obtain the goods. There was a young lady sent for 982 Bradbury's Forms of Pleading Libel and Slander in the department, who was asked to place a value upon the things. She valued the goods of R. & H. at one dollar, while my goods of the same price and style they could sell at 50c." meaning thereby that the said J. W. had purchased merchan- dise from the said defendant of a similar character to that pur- chased from the plaintiffs herein for the purpose of comparing the value of the said merchandise purchased from the defend- ant with that purchased from the plaintiffs, and that the differ- ence in the price charged by the defendant for the same articles sold by the plaintiffs was so great that the said J. W. could sell those purchased from the defendant for one-half of what they were compelled to charge for those purchased from the plaintiffs, and that the plaintiffs charged for the goods and merchandise sold by them, 100 per cent more than they were worth. XI. That the said statements so made as aforesaid by the defendant were false and untrue and that they were made by the defendant, maliciously and because of actual ill-will and malice towards plaintiffs, as such copartners as aforesaid, and with the intent and purpose of imputing to said plaintiffs as such copartners and charging them with dishonesty, fraud, and unfair conduct in the management and conduct of their said business and of charging them with selling their merchandise to their customers at prices greatly in excess of its value and thereby being thieves and robbing their said customers and that the said statements were so understood by the persons who heard them. XII. That by reason of the utterance of the words aforesaid, plaintiffs as such copartners have been damaged in their said business, trade and occupation and in their reputations as merchants in the sum of $ [The prayer for relief asks money damages on all the causes of action.] Complaints 983 Libel and Slander Form No. 614 Words Imputing the Commission of a Crime ^ I. That on the day of , 19 , at , New York, the defendant, in the presence and hearing of one A. M. H., maliciously spoke of and concerning the plaintiff, the false and defamatory words following: " I am working short- handed, having been obliged to discharge one of my clerks; have you not heard the scandal about D., he is the father of a child by a young girl not yet fifteen years old, not until this autumn, and you know that means sixteen years in States Prison." II. That on the day of , 19 , at said , New York, the defendant in the presence and hearing of one P. J. R., maliciously spoke of, and concerning the plaintiff, the false and defamatory words following: "That he knew Mr. D. had been criminally intimate with a girl by the name of M. B., a child under fifteen years of age, and that the act occurred in a packing room in the rear of the building in which Mr. D. lived." III. That said M. B. at the time of the using of such words was an unmarried female, and never having been married, and was so known to the defendant, said H. and said R., at such times. IV. By reason of the foregoing matters and the using of such words the plaintiff was injured in his reputation to his damage, Wherefore [demand for money judgment]. Form No. 615 Words Imputing Ignorance to a Physician ^ I. That at the times herein mentioned, the plaintiff was and stiU is a practicing physician duly authorized and licensed to 1 From Dudley v. NowiU, 11 App. Div. 203; 42 Supp. 681; in which a judg- ment for the defendant, upon a dismissal of the complamt, was reversed. The opinion discusses the complaint and holds it sufficient. , . ,. „ 2 From Cruikshank v. Gordon, 118 N. Y. 178; m which a judgment for the plaintiff was affirmed. 9S4 Bradbury's Forms of Pleading Libel and Slander practice his said profession, and residing and having an office in the city of B., in this State. II. That on or about the day of , 19 , the defendant, as the plaintiff is informed and believes, in the pres- ence and hearing of one P. I. H., in the city of B., with intent to injure this plaintiff in his profession as a physician, ma- liciously spoke and uttered concerning this plaintiff in his pro- fession as a physician certain false and defamatory language in the following words: "I [meaning the defendant] discharged Dr. C. [meaning this plaintiff] because he had nearly killed my daughter, and had treated her for malaria when she did not have malaria at all, and I shall never pay him a single cent. Dr. C. would have killed her if I had not discharged him, and called in another doctor." III. And for a further and separate cause of action the plain- tiff repeats the allegations in paragraph I, hereinbefore con- tained, and alleges further that on or about the day of , 19 , the defendant, as the plaintiff is informed and believes, in the presence and hearing of one A. S., in the city of B., with intent to injure this plaintiff in his profession as a physician, maliciously spoke and uttered concerning this plaintiff in his said profession to the said A. S. certain false and defamatory language in the following words: "If you [meaning the said A. S.] do not get another doctor [meaning another physician than this plaintiff] you will be your own child's mup- derer: [the said A. S. having at the time of said conversation a sick child and having called this plaintiff to attend the same as a physician and this plaintiff being at said time in attendance upon the said child, and having the care of it as a patient.] It shows that, Dr. C. [meaning this plaintiff] knows nothing about the case, because if he did, he would syringe the child's throat. I [meaning the defendant] had Dr. C. for my family, and he al- most killed my child, and if I had not got another doctor in his place my child would liave died. You ought to get another doctor immediately. I wish your husband were at home so that I could speak to him about it, and urge him to get another Complaints 985 Libel and Slander doctor. Dr. C. has sued me, but you can tell him I do not care that for him [meaning that the defendant was wholly indifferent in any suit brought by this plaintiff or any claim for legal re- dress made by him], I would never risk a child in his care." IV. And for a further and separate cause of action, the plain- tiff repeats the allegations of paragraph I, hereinbefore con- tained, antl alleges further that on or about the day of , 19 , the defendant, as the plaintiff is informed and believes, in the presence and hearing of one G. S., in the city of B., with intent to injure this plaintiff in his profession as a physician, maliciously spoke and uttered concerning this plaintiff' in his said profession to the said G. S., certain false and defamatory language in the following words, this plaintiff being at said time in attendance as a physician upon a child of said G. S., and having cared for the same as a patient: "If I [meaning the defendant] were you [meaning the said G. S.] I would get another doctor [meaning another physician than this plaintiff]. Dr. G. [meaning this plaintiff] is no good of a doctor. He is nothing but a butcher. I have had Dr. C. in my family to attend my child, and if I had not got another doctor in his place I would ha\'e had a death in my family. I intend to do Dr. C. all the harm I can." V. And for a furtiier and separate cause of action the plain- tiff repeats all the allegations of paragraph I, hereinbefore contained, and alleges further, that on or about the day of , 19 , the defendant, as plaintiff is informed and believes, in' the presence and hearing of one A. S., in the city of Brooklyn, with intent to injure this plaintiff in his pro- fession as a physician, maliciously spoke and uttered concern- ing this plaintiff in his said profession to the said A. S., certain false 'and defamatory language in the following words: "I [meaning the defendant] told your sister-in-law [meamng the aforesaid A S a sister-in-law of the said A. S.] she should get another doctor, for he [meaning this plaintiff] does not under- stand his business. I had Dr. C. in my famdy and if I had not got another doctor my child would have died. Dr. C. -was 986 Bradbury's Forms of Pleading Libel and Slander the doctor I had attending my child. He is no good for a doc- tor, and if she does hot get another doctor she will be her child's own murderer." VI. And for a further and separate cause of action, the plain- tiff repeats all the allegations of paragraph I, hereinbefore con- tained, and alleges further that on or about the day of , 19 , the defendant, as the plaintiff is informed and believes, in the presence and hearing of one Mrs. M. D., in the said city of B., with intent to injure this plaintiff in his profession as a physician, maliciously spoke and uttered con- cerning this plaintiff in his profession to the said M. D. certain false and defamatory language in the following words: "I [meaning the defendant] have employed Dr. C. [meaning this plaintiff] to attend my child, and I obtained the services of another physician just in time, or my daughter would have died under the treatment of Dr. C. He was not treating her properly. Dr. C. is no good of a doctor, and I would not have him to attend a dog. I had him to attend M. [meaning defend- ant's daughter] and if I had not got another doctor in his place, he would have killed the child." VII. And for a further and separate cause of action, the plaintiff repeats all the allegations of paragraph I, hereinbefore contained, and alleges further that on or about the day of , 19 , at the city of B., in this State, the de- fendant, as plaintiff is informed and believes, in the presence and hearing of one F. P. B., in the city of B., with intent to in- jure this plaintiff in his profession as a physician, maliciously spoke and uttered, concerning this plaintiff in his said profession, certain false and defamatory language in the following words: "You [meaning said B.] had better tell Mrs. C. [meaning one L. A. C. upon whom this plaintiff was attending at said time as her physician, and who was one of the patients of this plain- tiff] to get another doctor. If she does not get another doctor she will never get better. I [meaning defendant] would not have Dr. C. attend a dog. I have myself employed Dr. C. to attend my child, and if I had not got another doctor to attend my Complaints 987 Libel and Slander child in the place of Dr. C. my child would surely have died." And this plaintiff alleges further that the defendant uttered said false and defamatory language to the said F. P. B. con- cerning this plaintiff, with the intent that the said F. P. B. should thereupon repeat the same to the said L. A. C, and as an instruction to the said F. P. B. so to repeat the said false and defamatory language; that the said F. P. B., at the time when the defendant uttered said false and defamatory language to him, was in the employ of the defendant as the janitor of a building owned by the defendant, and that thereupon, pursuant to the said instruction received from the defendant, as aforesaid, the said F. P. B. went to the said L. A. C, and repeated the said false and defamatory language to her in the presence of one Mrs. B.; that by reason of the utterance and repetition of said false and defamatory language by the said F. P. B. to the said L. A. C, the said Mrs. B. was influenced and affected to the dis- advantage of this plaintiff, and that this plaintiff was injured in her estimation as a physician, and his reputation as a physician thereby impaired and damaged. VIII. That by reason of said false, malicious and defamatory words, uttered as aforesaid, to the various persons hereinbefore named, and at the times and places therein named, the plain- tiff was caused- trouble, inconvenience and injury, and has been damaged in the sum of $ Wherefore [demand for money judgment]. Form No. 616 Libel and Slander, Pleaded Together i I For a first cause of action against the said defendants, the said plaintiff says upon information and belief, that the said A H C and the said J. E. C. are, and at the time of the speak- ing the defamatory words hereinafter set forth, were, and for 1 From Byamr. Collins, HI N. Y. 143; in which a judgment for the defend- ants was reversed Bradbuby's Forms of Pleading Libel and Slander some time prior thereto, had been husband and wife, duly mar- ried to each other and living together as such husband and wife, at C, L. county, N. Y., that while the said J. E. C. was the wife of the said A. H. C. as aforesaid, and on or about the day of , 19 , the said defendant, J. E. C, at C. aforesaid, in the presence and hearing of one A. F., a citizen of said C, wrongfully and maliciously spoke to and of and con- cerning the said plaintiff, the false and defamatory words fol- lowing, to wit: "I [meaning said J. E. C] wrote a letter to Miss B. [a lady of C. aforesaid] which disappeared very mys- teriously and you [the said plaintiff meaning] must have got hold of and opened it. You [the said plaintiff meaning] have committed a State's prison offense and are no better than a thief.'' Whereby and by means of all such said false and de- famatory words the said defendant, J. E. C, intended to and did charge the said plaintiff in substance with having feloniously taken, stolen, opened and read a certain letter written by the said defendant to the said Miss B. duly directed to her and duly scaled whereby the said plaintiff had committed an offense against the laws for which he was liable to be imprisoned in the State's prison; and whereby and by reason of all which the premises, the said plaintiff was greatly injured and damaged in his reputation. II. For a second and further cause of action against the said defendant, the said plaintiff says, upon information and Ijelief, that the said A. H. C. and the said J. E. C. are husband and wife and have heretofore been such husband and wife as hereinbefore in plaintiff's first cause of action in this complaint stated, and the said defendant J. E. C, was such wife at and before the time of the speaking of the false and defamatory words hereinafter mentioned, and the said plaintiff further says that the said plain- tiff at and before the time of the speaking of said words was and at all times since has been an attorney and counselor at law in all the courts of record of the State of New York and in the due practice, at C. aforesaid, of his profession as such attorney and counselor and at the time of the speaking of the said false and Complaints 989 Libel and Slander defamatory words, hereinafter mentioned, was and for a long time prior thereto had been of good name, fame, credit and reputation as such attorney and counselor. The said plaintiff further says, upon information and belief, that on or about the day of , 19 , at C. afore- said, the said defendant, J. E. C, in the presence and hearing of D. E. C. of C. aforesaid, and of divers other good and repu- table citizens of the State of New York, wrongfully, maliciously and with intent to cause it to be believed that the said plain- tiff was a person unfit and unworthy to be associated with and was unfit and unworthy to be consulted professionally as an attorney and counselor or to be trusted in his profession and business, then and there spoke of and concerning the said plain- tiff and of and concerning his said profession and business the false and defamatory words following, to wit: "He [the said plaintiff meaning] is a bad man and ought to be driven out of the place and is not fit to associate with decent people. He, [the said plaintiff meaning] insulted a young lady in. G. by go- ing into her room, and she drew a revolver on him and he had to go down on his knees and beg of her to let him off. He [the said plaintiff meaning] also went to C. in company with a woman in private. He [the said plaintiff meaning] is also guilty of dishonest practices as a lawyer and is not to be trusted. He [the said plaintiff meaning] is altogether void of principle both as a man and in his business." Whereby and by reason of all of which false and defamatory words in the premises in the second cause of action set forth, a number of persons, in particular, R. E., W. R., R. J. M- and D Mc N who had theretofore been accustomed to deal with and employ the plaintiff in his business as aforesaid, ceased to deal with him, and the plamtiff was thereby deprived of their custom and patronage and of the profits he would otherwise have realized by such custom and patronage and was other- wise greatly damaged in his profession, business and reputation III For a third and further cause of action against the said defendants the said plaintiff says, upon information and belief, 990 Bradbury's Forms of Pleading < Libel and Slander that the said A. H. C. and the said J. E. C. are husband and wife and have heretofore been such husband and wife as herein- tofore in plaintiff's first cause of action in this complaint stated, and the said defendant J. E. C. was such wife at and before the time of the publication and circulation of the libelous letter or article hereinafter mentioned; and the said plaintiff further says that at and before the time of the publication and circula- tion of the libelous letter as aforesaid, the said plaintiff was and at all times since has been an attorney and counselor at law in all the courts of record of the State of New York and in the due practice at C. aforesaid of his profession as such attorney and counselor and at the time of the publication and circulation of said libelous letter as aforesaid was and for a long time prior thereto had been of good name, fame, credit and reputation as such attorney and counselor. Said plaintiff further says upon information and belief that in or about the month of , 19 , the said defendant J. E. C. wrongfully and maliciously composed, published and circulated of and concerning the said plaintiff at aforesaid, a certain false and libelous let- ter or article directed to Miss C. B., in a certain part of which letter there was and is contained the false and defamatory matter following, to wit : " He [the said plaintiff meaning] is a person of very bad character and of very bad morals. [He the said plaintiff meaning] is a great rascal and is not fit for any lady to associate with." Whereby and by reason of all of which- the said plaintiff was greatly injured in his reputation and busi- ness. IV. For a fourth and further cause of action against said defendants, the said plaintiff says, upon information and belief, that the said A. H. C. and the said J. E. C. are husband and wife and have heretofore been such husband and wife as herein- before in plaintiff's first cause of action in this complaint stated, and the said J. E. C. was such wife at and before the time that the letter hereinafter mentioned was composed, published and circulated as hereinafter stated; that on or about the day of I 19 , the said defendfint, J. E. C,, wrongfully Complaints 991 Libel and Slander and maliciously composed, published and circulated of and con- cerning the said plaintiff, at aforesaid, a certain false and libelous letter or article directed to Miss D. McN. of aforesaid, and which false and libelous letter or article was in the words and figures following to wit : [Here follows letter concerning plaintiff. It is printed verbatim in Byam v. Collins, 111 N. Y. 143.] Said plaintiff further says, that at the time said letter was composed, published and circulated as aforesaid, the said plain- tiff and the said D. McN. were severally residents of aforesaid ; that the said letter was sent by said defendant to and was received and read by the said D. Mc N.; that at the time the said plaintiff and the said D. Mc. N. were severally unmarried and on terms of social friendship and intercourse with each other; that the said plaintiff was paying and the said D. was receiving the addresses of the said plaintiff with the expectation and understanding on the part of the said plaintiff, and as he verily believes, with the expectation and understanding on the part of the said D., that the relations existing between them in view of said addresses might and would culminate in a contract of marriage between them; and the said plaintiff further says: upon information and belief, that the person mentioned and referred to in said letter as "that man," and as "an adven- turer of a few weeks' acquaintance" and as "a stranger," and as "that man," was the said plaintiff and was understood by the said D. to be the said plaintiff and it was intended by the said defendant J. E. C. that the said D. and other persons who might read or hear read said letter should understand the said person in said letter mentioned to be the said plaintiff and none other Whereby and by reason of all of which the composition, publication of said false and libelous letter, the said plaintiff was greatly wronged, outraged and injured in his feelmgs, em- barrassed, annoyed and hindered in his relations with the said D and in his social and friendly relations with her famdy and friends and was greatly injured in his reputation and business. And for a fifth and a further cause of action against the s»id 092 Bradbuky's Forms of Pleading Libel and Slander defendants the said plaintiff realizing herein all the matters and things hereinbefore set forth with the same force and effect as if the same were herein repeated as a part hereof, further alleges upon information and belief, that at the times and places aforesaid and at divers other times and places in the presence and hearing of divers other persons, the said defendants wrong- fully and maliciously reported and published the several false and defamatory charges and imputations aforesaid against and of and concerning the said plaintiff and wrongfully and mali- ciously spoke of and concerning the said plaintiff in the presence of such persons and at such times and places the same words in substance as hereinbefore alleged and set forth or words of the same import and meaning all for the purpose and with the intention on the part of the defendant J. E. C. to injure and defame the said plaintiff, and all of which said words were spoken and uttered and said libel composed, published and cir- culated before the commencement of this action. Whereby and by reason of all which the premises the said plain- tiff was and has been injured and damaged in his reputation and in his good name, fame and credit, and as an attorney and counselor at law and in his practice as such attorney and coun- selor. Wherefore [demand for money judgment]. Complaints 993 Assault and Battery CHAPTER XXXIII ASSAULT AND BATTERY FORMS NO. PAGE 618. Assault by discharging gun at plaintiff 993 619. Shooting at person unlawfully taking trout from defendant's prem- ises 994 620. Assault and battery by clerk in store; action against principal 995 621. Assault and battery and false arrest by street car conductor 996 622. Carriers; assault on passenger by employee of street railway com- pany; tort waived and action founded on contract of carrier to safely carry passenger 999 Form No. 618 Assaiilt by Discharging Gun at Plaintiff ^ Supreme Court, county. George Kurz, Plaintiff, against Anton Dorr, Defendant. The plaintiff, complaining of the defendant, alleges: I. That plaintiff and defendant are residents of the county of , State of New York. II. That on or about the day of , 19 , m the ward of the borough of , defendant assaulted plam- tiff by willfully and maliciously leveUng a loaded firearm at plaintiff and discharging the same at him. • III That by reason of said assault and the fright occasioned to plaintiff therebj^plainti^^ 1 From Kurz .. Doerr, 180 N. Y. 88; in which a judgment for the plaintiff was affirmed. Vol. 1—63 994 Bbadbury's Forms op Pleading Assault and Battery self under the care of a physician, and has been damaged in the sum of $ Wherefore [demand for money damages]. [Signature and office address of attorney, and verification.] Form No. 619 Shooting at Person Unlawfully Taking Trout from Defendant's Premises ' T. That the plaintiff is a resident of , county, . That the defendant H. is a resident of , county, . That the defendant T. is a resident of , county, II. That the defendant S. H. is the owner of a farm or park in the county of , , upon which is located a lake known as Lake, and that the defendant H. was residing and living upon said farm, at said lake, during the month of ; 19 , or the fore part of said month, and particularly on the and days of , 19 . III. That the defendant H. employed the defendant T. as a night watchman to watch and care for said farm or park or said lake and the premises adjacent thereto, during the nighttime. IV. That the said defendant B. suffered and permitted his said agent or servant, the said defendant T., to carry a loaded rifle with him while acting as such guard or watchman, for the purpose of shooting, scaring or keeping persons away from said premises, who might cross the said farm or park, or who should in any manner trespass upon the said premises at any time. V. That the defendant H. employed said defendant T. as a night watchman to care for said farm, park or lake and the premises adjacent thereto, and instructed the said defendant T. to carry a loaded rifle with him while acting as night watch- man, and instructed him, in case he saw or heard any person or persons upon the premises herein feferred to, he should shoot at them, or shoot to scare or frighten them, or any person who should trespass or cross upoii said premises at any time. ' From Magar v. Hamplond, 183 N, Y, 387, Complaints 995 Assault and Battery VI. That on or about the day of , 19 , and at about 10: 30 o'clock in the evening of said day, this plains- tiff, while passing across the said premises hereinbefore referred to, and while near the lake upon said premises, was shot in his hip and body by a rifle ball, which tore a large hole in his hip, breaking the bones thereof and maiming and crippling him for life, and that the rifle or gun from which the said ball came was fired by the defendant T., who was at the time of the shooting the agent, servant or employee of the said defendant H., and acting under the directions of the said defendant H. and within the scope of his employment. VII. That the plaintiff was shot and wounded through the negligence and improper and unlawful conduct of the defend- ants, and said injury was in no way contributed to by the plain- tiff. VIII. That by reason of the injuries aforesaid the plaintiff has suffered, and is still suffering, and will continue to suffer during the term of his natural life, great pain. That he has paid out and will be required to pay out a large amount of money, namely, not less than $ , for medical treatment and appUances by reason of said injuries. That he will never be able-, to resume or continue his former occupation, nor scarcely any, occupation, and that he never will be able to walk without the aid of crutches. Wherefore [demand for money judgment]. Form No. 620 Assault and Battery by Olerk in Store; Action Against Principal I That at the times hereinafter mentioned, the defendant con- ducted at No. , street in the borough of , city of New York, a store for the sale of groceries and provi- sions, and invited the public to deal with him at said store m the buying and_selling_rfsiich^^ — — p, „.„„ „ R„+l»r 179 N Y. 156; where a judgment for the plaintiff been raised on the pleadings. 996 Bradbury's Forms of Pleading Assault and Battery II. That on or about the day of , 19 ; the said defendant had in his employ, at said store, certain clerks, servants or employees to wait upon customers in the course of said business; and on said day of , 19 , the said defendant had displayed in front of said store certain mer- chandise which he advertised to be sold at a specified price. III. That this plaintiff on said day, lawfully and peaceably entered the said store, and entered into negotiations with one of said clerks, servants or employees, in charge of said store for the purchase of certain merchandise, and that during said negotiations, without cause or provocation, the said clerk, servant or employee did violently assault and beat this plain- tiff, and pushed and thrust her along said store and ejected her therefrom to the sidewalk, threw her down upon the sidewalk and did violently beat and bruise her about the shoulders, back and limbs; that plaintiff's spine was injured, her cloak and dress torn in shreds and her body covered with bruises, and she has suffered greatly from nervous shock; that said plain- tiff has suffered great physical and mental pain and agony, and as she is informed and believes, will continue for a long time to come. IV. The plaintiff has been put to great expense in procur- ing medical attendance and nursing, and has been unable to work, or attend to her duties, all to her damage in the sum of $ V. That said injuries and damage were caused entirely by the fault, and misconduct of the defendant, his servants, agents or employees, and without any fault or misconduct of this plaintiff. Wherefore [demand for money jvdgmsnt]. Form No. 621 Assault and Battery and False Arrest by Street Oar Conductor ^ The plaintiff, by F., W. & O'C, his attorneys, complain- ^ From Gonorovsky v. Dry Dock, etc., R. Co., 62 App. Div. 617; 71 Supp. 1137; in which a judgment in favor of the plaintiff was affirmed. Complaints 997 Assault and Battery iiig of the defendant, respectfully shows to this court and alleges : For a first cause of action. I. That at all the times hereinafter stated, the defendant was and now is a domestic corporation organized and existing under the laws of the State of New York. II. That the plaintiff is a well-known and highly reputable manufacturer of stringed musical instruments, in the city and county of New York. III. That on the evening of , the day of i ,19 , at about between the hours of and o'clock in the evening of said day, this plaintiff lawfully and properly entered and boarded a certain street car owned, operated, propelled and controlled by the defendant, its serv- ants, agents or employees, and while so lawfully pursuing his way in said street car, having paid the legal fare, requested and obtained from the conductor in charge of said car, being a serv- ant of the defendant, a certain transfer check or ticket per- mitting this plaintiff to transfer cars at Grand street and Essex street, in the city of New York. IV. That when plaintiff was about to alight from said car at the junction of Grand and Essex streets, in the city of New York as aforesaid, the conductor of said car, being the servant of the defendant, prevented and refused to allow plaintiff to leave the said car. This plaintiff thereupon protested and de- manded the badge number of said conductor and attempted to leave the said car of the defendant, whereupon said conductor and servant of the defendant violently held and seized this plaintiff by the arm and prevented him from leavmg the said car statin-^, " You're a counterfeiter; you won't get off; I'll get an officer- " and there and then with force and arms assaulted this plaintiff and seized and laid hold of this plaintiff, and with force and violence dragged and pulled the Person of this plain- tiff, and also then and there forced and compeUed this plamtiff to remain in said car until it had reached a pomt on Ea.t Broad- way between Pike and Rutgers streets, m the city of New York, 998 Bradbury's Forms of Pleading Assault and Battery and during all of said time, from the moment at which this plaintiff had attempted to leave said car, the conductor and agent of the defendant then and there imprisoned this plaintiff and kept and detained him* in. prison there contrary to the laws and custom of this State and against the will of said plaintiff, whereby said plaintiff was greatly bruised and wounded, and was then and there greatly exposed and injured in his credit and circumstances, and was there and then hindered and pre- vented from performing and transacting his necessary business affairs during that time, by reason whereof the said plaintiff has been injured and has sustained damage to the amount of $5,000, and For a second cause of action. V. The plaintiff reiterates and repeats as if at length set forth each of the allegations containisd in the first cause of action herein. VI. That when the said car upon which the plaintiff was held had reached a point on East Broadway, between Pike and Rutgers streets, in the city of New York, the said conductor and servant of the defendant then and there forced and com- pelled the plaintiff and delivered him into the custody of a police officer, to wit, officer J. D., and then and there charged this plaintiff with attempting, to pass counterfeit money on the said conductor and agent of the defendant, and compelled him to go as a prisoner along divers public streets to a certain police station, to wit : Madison street, Seventh Precinct Police Station, being in the city of New York, and then and there caused this plaintiff to be imprisoned and kept and detained in the common prison there charged as aforesaid, and this plaintiff" was thete- upon thrown into prison and his friends who came to offer bail for his release were refused the right to bail him out as he was charged with an offense against the United States government, and the plaintiff was compelled to remain in jail through the whole of the night of the day of , 19 , and until the following day, being election day, all contrary to the laws and customs of this State and against the will of thus piimr Complaints 999 Assault and Battery tiff; that on the day of , 19 , this plaintiff was promptly released and discharged by a city ma^sttate and the false charge against him was dismissed. By reason of the aforesaid this plaintiff has been greatly hurt, bruised and wounded; and was thereby then and there greatly exposed and injin-ed in his credit, good name and circumstances, and was there and then hindered and prevented from performing and transacting his necessary affairs and business during all of said time, to the plaintiff's damage in the sum of dollars. Wherefore the plaintiff demands judgment against the de- fendant for the sum of dollars, besides the costs of this acction. Form No. 622 Osrriers; Assault on Passenger by Employee of Street RaUway Com- pany; Tort Waived and Action Founded on Contract of Carrier to Safely Carry Passenger ^ I. Upon information and beUef, that at the times hereinafter mentioned, the defendant was and is a domestic corporation created by and under the laws of the State of New York, and doing business as a common carrier of passengers for hire, and operating and controUing a line or lines of transportation known, as the underground raih-oad and being operated in the borough of Manhattan, city of New York, and being the only line or lines of railroad in the said borough thus operated. II That on the