(forttf U ilatu ^tl^nnl fithtatg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022803070 HISTORY OF AN ACTION FOR THE PARTITION OF REAL PROPERTY SITUATED IN THE STATE OF NEW YORK WITH FORMS OF PLEADINGS AND PRECEDENTS ALSO Practical notes and references to the Sections of the Code of Civil Procedure and to Decisions of the Courts referring to Matters of Pleading and Practice in the action SAMUEL C. inOUNT, COUNSELLOR AT LAW. FALLON LAW BOOK CO. 83 Nassau Street, New York City 1907 Copyright, i 905 By SAMUEL C, MOUNT PREFACE. Actions for the partition of real property are continuously pending in the courts of this State. In most of them the property cannot be actually partitioned and must be sold and the proceeds partitioned among the several owners and lienors. In order that it be sold to the best advantage and for the best price, the sale must give to the purchaser a good marketable title. In order to give this, the action must be so conducted that all interest of the parties to the action in the property must be sold, and all liens thereon against every party to the action must be paid or cut off. Believing that a precedent of forms of the several papers in the action from which a busy practitioner could readily draw one to suit his particular case, with suggestions of the required practice, would be of service to the profession, this small volume is pub- lished by the author. Every effort has been made to make the book as brief as possible, without omitting any necessary prece- dent occurring to the author. The action is of equitable origin, greatly modified by the Code of Procedure, and modified still more by the Code of Civil Procedure, many amendments being made for the purpose of securing a perfect title to the purchaser in case of a sale. In many cases it will be found necessary to call upon the equitable powers of the court, which powers are inherent in the court as succeeding to the powers of the late Court of Chancery. Dated June 21, 1905. SAMUEL C. MOUN'T. [iii] INDEX TO CASES CITED. PAGE. Agar V. Fairfax 17 Vesey, Jr. 533 1 Apell V. O'Connor 39 Hun, 482 165 B. Baldwin v. Baldwin 23 Civ. Proc. Rep. 268 240 Barnard v. Haydrick 49 Barb. 62 58 Barnes V. Blake 59 Hun, 371 6 Bogart V. Bogart 23 St. Rep. 595 6 c. Conderman v. Conderman 44 Hun, 181 16,5 Croghan v. Livingston 17 N. Y. 218 5S Crouter v. Crouter 133 N. Y. 55 255 Cutlibert v. Ives 48 N. Y. St. Rep. 740 174 D. Doremus v. Doremus 66 Hun, 111 214 Roremus v. Doremus 76 Hun, 337 242 Dunham v. Minard 4 Paige, 441 3 Dusenbury, In re 34 Misc. 666. 2 F. Farmers and Mechanics' Bank v. Joslin , . . . 37 N. Y. 353 177 Fleming v. Burnham 100 N. Y. 1 255 Flynn v. Kennedy 62 Hun, 26 249, 276 Foster v. Foster 38 Hun, 365 6 H. Halstead v. Halstead 55 N. Y. 442 3 Jennings v. Jennings 2 Abb. Pr. 6 58 Jones V. Jones 120 N. Y. 589 249 K. Kitching v. Shear 26 Misc. 436 240, 245 VI IITDBX TO CASES CITED. M. Mathews v. Mathews 1 Edw. Ch. 565 2 McKenna v. Duffy 64 Hun, 597 ^'7 Mead V. Mead 24 N. Y. St. Rep. 455 255 Miller, In re 45 Hun, 244 220 Moulton V. Moulton 47 Hun, 606 55 Mundy v. Mundy 2 Vesey, 122 1 P. Prentice V. Janssen 79 N. Y. 478 5 K. Roarty v. McDermott 89 Hun, 511 255 Robertson v. Robertson 3 Paige, 387 54 S. Satterlee v. Cobb 173 N. Y. 91 4 Scott V. Guernsey 48 N. Y. 106 4 Shriver v. Shriver 86 N. Y. 575 255 Stewart v. Paton 23 Civ. Proc. Rep. 286 249 V. Varian v. Stevens 2 Duer, 635 53 W. Wainman V. Hampton 110 N. Y. 429 2 Weston V. Stoddard 137 N. Y. 119 4 Wilkin V. Wilkin 1 Johns. Ch. Ill 2 Winfield v. Stacom 40 App. Div. 95 3, 214, 245 INDEX OF RULES AND STATUTES CITED. Rules. Chancery Rule 145, 146 541 General'Eules of Practice XXXI 165 Rule I, First Judicial District 175 Rule V, First Judicial District 175 Statutes. 31 Henry VIII, ch. 1, § 2 I 32 Henry VIII, ch. 32, § 1 1 2 Revised Statutes, p. 317, § 1; p. 329, § 79 1 Laws 1899, ch. 737, Transfer Tax Law, §§ 222, 282 240 INDEX TO SECTIONS OF CODE CITED. 427 55 1539 3, 4, 215 438 24, 26, 44 1541 48 439 26 1544 2, 174 440 27 1557 58 441 27 1561 2, 3 442 26, 27, 34, 45, 48 1562 3, 4, 214 443 26, 29 1563 215, 244 451 102 1569 205 453 137 1573 247 472 52, 53 1576 247 521 116 1577 58 523 112 1578 3,4, 239 760 ' 137 1580 277 842 222 1581 278 844 22 1594 220, 245 937 ■ 72 1653 245 972 208 1670 19, 27 1016 " ' 222 1675 248 1187 185 1676 4, 255 1189 185 1677 245 1434 245 1678 3, 245, 25T 143= 257 1679 255 },32 4 2749 255 i535 55 2750 255 1536 55, 58 2777 13,220, 255 ils? 4 3297 255 1538 4,6,13,244, 283 HISTORY OF AN ACTION FOR THE PARTITION OF REAL PROPERTY IN THE STATE OF NEW YORK. The action of partition, in this State, came from the late Court of Chancery, and the jurisdiction and practice of that court in an action for partition, as supplemented by the Code of Civil Procedure, constitute the action of partition as it now exists. The principal change made by the Code of Procedure was the power of the court to try the title to the property, or of any share thereof, in the action by a jury; the Supreme Court having, under the Code, both equitable and legal jurisdiction. The late Court of Chancery succeeded to the jurisdiction of the English Court of Chancery in actions for partition, supple- mented by statute. The principal power given by the statute of the State was the power to sell the property in cases where an actual partition could not be made without great prejudice to tho interest of the owners thereof (2 R. S., p. 317, § 1 ; p. 329, § 79). The English Court of Chancery took jurisdiction of actions for partition because its procedure was one better adapted to ascer- taining the facts and providing the remedy necessary to make a full and equitable disposition of the matters involved, includ- ing its power to compel the parties to make necessary allowances to each other, in order to make an equitable division of the prop- erty, than was the procedure of the courts of law. Its jurisdic- tion in actions of partition rested in its equitable powers and not in any statute giving it jurisdiction in such cases (Agar v. Fairfax, 17 Vesey, Jr. 533; Mundy v. Mundy, 2 Vesey, 122). At common law, the only estates that were liable to partition were estates held in coparcenery, one instance of which was where one possessed of an estate of inheritance died leaving only female heirs. The female heirs held as coparceners ; they were so called because the land could be partitioned between them (Lit., § 241). This was the law until the statutes of 31 Henry VIII, ch. 1, section II, and 32 Henry VIII, ch. 32, section I, which author- ized the partition of lands held by joint tenants and tenants in common. Prior to these statutes joint tenants and tenants in common could partition voluntarily, but there was no compulsory partition. Under the Constitution of this State the title to real property HISTORY OF THE ACTION. is a question triable by jury as a matter of right. Under the practice of the late Court of Chancery, if an issue were raised involving the title to the lands sought to be partitioned, the court could proceed no further in the action, for the claimant had the right to a trial by jury of the question of his title and that court had no jury. In such a case the claimant had to waive his right of a trial by jury or the court had to dismiss the bill, or let the case stand over until the question of title had been tried at lavir by a jury (Wilkin v. Wilkin, 1 Johns. Ch. 111). And now a Special Term of the Supreme Court, which possesses the equity powers of the court, has no power to try this question of title to the land, unless the claimant waives his right to a trial by jury. If the right of a trial by jury be not waived, then the cause must be put upon the Trial Term calendar of the court and be dis- posed of by a jury, and in the same action (Code, § 1544).* If only equitable issues are raised in the action, namely, issues which, under the Constitution, are triable by the court without a jury, they are not triable by jury in this action (Wainman v. Hampton, 110' N. Y. 429). The late Court of Chancery, in actions for partition, before decreeing a sale of the property, provided by its I78th Kule, that proceedings should be taken to ascertain whether or no there were any liens against any of the undivided shares or interests in the property. This proceeding of the late Court of Chancery is the origin of sections 1561 and 1562 of the Code of Civil Procedure. The former Court of Chancery would not direct a sale in par- tition of the property within three years after the death and the granting of letters testamentary or of administration upon the estate of the common ancestor, where it appeared to the court that the real property might be subjected to a sale for the payment of his debts, because of the insufficiency of the personal property, left by the common ancestor, to pay his debts (Mathews v. Mathews, 1 Edw. Ch. 565). The Code now provides that a sale may be made in such a case and that the executor or administrator, if any, be made a party, and that the proceeds of the sale belonging to the estate of the deceased be paid into court (Code, § 1538). And in such a case the Surrogate's Court, upon an application to it for the sale of the decedent's lands to pay his debts or funeral expenses, must look to the proceeds of the sale in partition and not to the land (In re Dusenbury, 34 Misc. 666). •All references to the Code of f!iT il PrftnoHm-g nm v«-ioflTT afof^/i "nnAa" HISTOEY OF THE ACTION. 6 The Code, section 1561, requires a reference to ascertain if there be any creditor of a party to the action, who has a lien on an undivided share of a party, and section 1578 of the Code bars each person not a party, who has, at the time of entering final judgment, a general lien by judgment or decree on an undivided share of a party, if notice be given as prescribed in section 1562 of the Code by the referee appointed under section 1561 ; but a person not a party, who had a specific lien upon an undivided share at the time of the filing of the notice of the pendency of the action, is not affected by any such judgment Therefore a person not a party, who has a specific lien on an undivided share appearing of record at the time of the filing of the notice of the pendency of the action, need not appear and prove his claim. He must be made a party in order to cut off his lien. And the filing of the notice of the pendency of the action does not bar general creditors. They are barred only by the notice prescribed by sec- tion 1562 of the Code. Section 1678 of the Code provides that if the property or any part thereof should be sold subject to a lien, that fact must be declared at the time of the sale. Therefore if a sale of the prop- erty be ordered, it must be ascertained as well whether there be any lien on the entire property, as on an undivided share, and also whether there be any specific lien appearing of record at the time of the filing of the notice of the pendency of the action on an undivided share, in order to give the notice of the lien at the time of the sale. If a person has a general lien on the whole property, his lien would not be cut off by notice under section 1562 of the Code. Such a person should be made a party under section 1539 of the Code. The validity of specific liens on undivided shares may be litigated and determined in partition, either by jury or referee, and should be determined in an interlocutory judgment (Winfield V. Stacom, 40 App. Div. 95). It is not necessary that they be within the issues of the plead- ings (Dunham v. Minard, 4 Paige, 441 ; Halstead v. Halstead, 55 K Y. 442). After the filing of the notice of the pendency of the action any mortgagee, grantee, or lienor having a specific lien on the prop- erty or on any part thereof may, by his petition, be brought in as a party to the action (Winfield v. Stacom, 40 App. Div. 95). Any person having a lien upon the entire property at the death HISTOEY OF THE ACTION. of the decedent may be made a party, and the court, in its final judgment, may award him his entire right and interest or the proceeds thereof, or, where the right or interest is contingent, direct that the proceeds or share thereof be substituted for the property. If he be not made a party the property must be sold subject to his lien and he ia not affected by the judgment in the action (Code, § 1539), and the property cannot be sold free from the lien of his debt (Code, § 1538). His lien is not cut off by the advertising for creditors of parties to present their claims to the referee under section 1562 of the Code (Code, § 1578). It may be seen that before the commencement of the acticffi. a thorough search of the title to the premises should be made, in- cluding the actual possession of the real property, and that every person who has any share, right, title, or interest in the property should be made a party, and that every person who claims to have any share, right, title, or interest in the property should be made a party ; and that every person who had any lien upon the prop- erty at the time of the death of the ancestor, and whose lien still remains upon the property, should be made a party, and every person who has a lien upon any undivided share or interest in the property since the death of the ancestor should be made a party. This includes the State in case of any unpaid taxes, under the law relating to the Taxable Transfer of property. Municipal liens are paid as expenses of the sale at the time of the sale by the referee (Code, § 1676). The rents received by a cotenant are a lien upon his share in favor of those entitled to share therein (Scott v. Guemseyj 48 K Y. 106). The action of partition may be brought by a joint tenant or a tenant in common of lands situated in this State, of which he has a right to the present possession (Code, §§ 1532, 1538). It is not necessary that he have an actual possession, pedis possessio. It is sufficient if he has a constructive possession. If an heir be disinherited and the land be in the possession of a devisee under the ancestor's will, the heir can bring his action for partition, alleging the devise to be void (Code, § 1537). Or, if the land be claimed adversely by the other cotenants he can bring an action for partition and try the adverse title (Western v. Stoddard 137 N". Y. 119). Or, if it be in the possession of a stranger who claims by an adverse title, he can bring an action of partition, making the stranger in possession of the property a def^idknt and try the adverse title (Satterleejv._CQbKJ73 J5^ Y. 91V HISTOKY OF THE ACTION. 5 It would seem that, since the court has complete jurisdiction in equity and in law, where the person has a present right to the inmiediate possession of land, held by him as a joint tenant or as a tenant in common with others, he can bring an action of partition in the Supreme Court of this State; that in that action he can make as defendants every person who has any right, title, or interest in the property, and every person who claims to have any right^ title, or interest in the property, and every person who has any lien upon the property or upon any share or interest in the property, or who claims to have any lien upon the property or upon any share or interest therein; and that the court, having full jurisdiction over all questions that can arise, both at law and in equity, can determine all questions affecting real property in that action. Where the property to be partitioned consisted of a hotel and the furniture therein, and it was found, as a fact, that the furniture could , not be sold separate from the hotel, without greatly diminishing its value, judgment was directed that the furniture be sold with the hotel in one parcel, and this partition of the personal property with the real was sustained on appeal (Prentice v. Janssen, 79 N. Y. 478). In this case the common ancestor empowered his executor to sell the real property and to divide the proceeds among the devisees; The executor did not sell ; the devisees took possession of the property, leased it, some of them sold their interests in the property, and an action for partition of the property was brought. The executor was not made a party as such; he was a party by reason of his other interests in the property. The action was brought seven years after letters testamentary had been issued. It was objected that the partition would not lie, as the executor had the power to sell. The court held that the action would lie, and that the executor, as such, was not a necessary party. The court held that the testator, by his will, converted the real prop- erty into personal property and that the beneficiaries, prior to the sale by the executor, had a right to, and did, reconvert it into realty and thus extinguished the power of sale, and that they thereby became tenants in common in the realty. PEACTICE. PRACTICE. First, examine the title to the property and then make every person having any right, title, or interest in the property a party ; also make a party every person having a lien upon the property or upon the undivided share or interest of any party to the action. If there be, by reason of the death of any former ovmer of the property or interest therein, any unpaid lien, under the statute relating to the Taxable Transfer of property, then make the State a party. The executor or administrator of the common ancestor of the parties must be made a party if three years have not elapsed since the death of such ancestor, and the appointment, in this State, of an executor or administrator upon his estate. If three years shall have elapsed, the executor or administrator of the com- mon ancestor need not be made a party. If any person vs^ho, if living, would be a necessary party shall have died and there shall have been appointed in this State, an executor or an adminis- trator of his estate, such executor or administrator must be made a party, no matter how many years shall have elapsed. If any person who, if living, would be a necessary party shall have died, and there shall have been no executor or administrator of his estate appointed in this State, that fact must be stated in the complaint (Code, § 1538). A tenant in common, who is a plaintiff, may join his wife as a coplaintiff. They both represent but one and the same interest (Foster v. Foster, 38 Hun, 365). The husband of a person dying intestate is a necessary party (Bogart V. Bogart, 23 State Eep. 595). But the husband of a wife owning an undivided share, and living, is not a necessary party (Barnes v. Blake, 59 Hun, 371). COMPLAINT. COMPLAINT IN PARTITION OF EEAL PEOPEETY. SuPBEMH Court of New York. County of New York. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Hoe, Isabel Roe, his wife, James Roe, Edwin Roe, Thomas Roe, Mario Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charlea Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually, and as sole administrator of the goods, etc., of Erances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, der ceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or administrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, de- ceased. The names of the said heirs, other than parties hereto, devisees, next of Mn, wives, widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of km, if any, and widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are un- known to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow, or any devisee, or heir (other than parties hereto), next of kin or wife thereof, or widow, or surviving husband, or heir, or devisee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate. Defendants. 8 FORMS OF PLEADINGS AND PEECEDBNTS. The plaintiffs, by Kichard Fenn, Esq., their attorney, respect- fully show unto this honorable court, upon information and belief : I. That William Roe heretofore and on or about the first day of July, in the year A. D. 1890, was seized in fee simple absolute and possessed of certain real property situated in the city, county, and State of New York, and that the said William Roe there- after and on or about the first day of July, 1890, at said city of New York, died intestate, so seized and possessed of the said real property, of which the following is a more particular descrip- tion, viz. : All that certain piece or parcel of land and premises situate in the borough of Manhattan, of the city of New York, coianty and State of New York, and which may be more particularly described as follows : Commencing at a point on the southelrly side of Feimi- more street distant easterly two hundred feet from the e&stftrly side of Cooper avenue, and from thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block ; thence running easterly along said center line of the block and parallel with said Fennimore street fifty feet to a point ; thence running northerly parallel with said Cooper avenue one hundred feet to said southerly side of Fennimore street ; thence running westerly along said southerly side of Fennimore street fifty feet to the place of beginning. II. That there are two dwelling-houses erected on said land, each of the dimension of twenty-five feet in width by sixty feet in depth, and each erected on a lot of land, twenty-five feet wide by one hundred feet deep; the one is known as No. 18 and the other as No. 20 Fennimore street. III. That the said William Roe left him surviving his widow, Florence Roe, and the following named children: Richard Roe, Charles Roe, Frances Roe Stiles (wife of Henry Stiles), Mary Roe Jones (wife of Henry Jones), James Roe, Henry Roe, and Helen Roe Cole (wife of William Cole), and his grandchild, John Doe, this only child of his deceased daughter Ruth, who died intestate, who had married Thomas Doe, who was also deceased, his only heirs at law. IV. He left him surviving no other child and no other descendant of any deceased child, and that letters of administra- tion on his estate were granted unto Charles Doe by the Surro- gate's Court of the county of New York on the thirtieth day of COMPLAIKT. July, 1890, and that said administrator thereafter filed his accounts in the ofiice of the Surrogate of said county of New York on the thirtieth day of July, 1891, and the same were judicially settled by decree of said Surrogate's Court, dated September 10, 1891. That said administrator had then paid all of the debts of said William Koe, deceased. V. That thereafter, and on or about the first day of July, 1901, the said widow, Florence Eoe, died at the said city of New York. That her dower had never been assigned to her and she remained in, possession of said real property, and of the rents thereof, from the death of said William Eoe until her own death, and that she was allowed to and did appropriate the same to her own use. That the said plaintiff, John Doe, is married, and that his wife's name is Jeannette. That the said defendant, Eichard Eoe, is mar- ried, aud that his wife's name is Isabel. That the said Charles Eoe died at said borough of Manhattan of the city of New York, county of New York, intestate and seized and possessed in fee simple absolute of his undivided share and interest in said real property, on or about the tenth day of April, 1901, leaving him surviving his widow, Ethel Eoe, and three children, namely, Edwin Eoe, Thomas Eoe, infants over 14 years of age, namely, of the age of 15 years and 17 years respectively, and Marie Eoe, an infant under 14 years of age, namely, of the age of 7 years, his only heirs at law. He left him surviving no other child and no descendant of any deceased child. That letters of administra- tion were granted upon his estate by the Surrogate's Court of the county of New York on the twentieth day of May, 1901, to Ethel Eoe, his widow, who on the same day qualified as such. yi. That the said daughter, Frances Eoe, heretofore and on the first day of July, 1880, married the defendant, Henry Stiles, and thereafter and on the third day of May, 1895, died at said city of New York, intestate, seized and possessed in fee simple absolute of her undivided share and interest in said real property, leaving her surviving her said husband, Henry Stiles, and one child, Henry Stiles, Jr., then 14 years of age, her only heir at law. She left her surviving no other child and no descendant of any deceased child. VII. That thereafter and on the third day of June, 1895, the said Henry Stiles was appointed sole administrator of the rights, credits, goods, and chattels which were of said Frances Eoe Stiles, deceased, by a decree of the Surrogate's Court of said county of New York, made and filed on that day. 10 FORMS OF PLEADINGS AND PEECEDENTS. VIII. That the said Mary Eoe heretofore and on. or about the first day of July, 1897, married William Jones, both of whom are living. IX. That the said Helen Roe on or about the seventh day of May, 1878, married William. Cole, and that thereafter and on or about the second day of March, 1898, she died testate, at the city of Trenton, in the county of Meroer, in the State of New Jersey, where she and the said William Cole then resided, seized and possessed in fee simple absolute of her undivided share and interest in said real property and leaving a last will and testa- ment, which was duly proved before the Surrogate of the county of Mercer, State of New Jersey, on the thirteenth day of March, 1898 ; that she left her surviving her husband, said William Cole, and her only child, Richard Roe Cole; and that in and by said last will and testament, which was executed in conformity with the statutes of this State for the passing by devise of land situated in this State, she devised all of her share, right, title, and interest in said real property to her said child, Richard Roe Cole. X. That said Surrogate of the county of Mercer, upon the proof of said will as aforesaid, and on said thirteenth day of March, 1898, appointed the said William Cole the sole executor of said last will and testament of said Helen Roe Cole, deceased. XI. That the said last will and testament has not been proved in this State, and that no letters testamentary or of administration upon her estate has been granted in this State. XII. That the said Henry Roe, on or about Uie third day of January, 1903, at the city of Melbourne, Colony of Victoria, Australia, died intestate, seized and possessed in fee simple absolute of his undivided share and interest in said real property, unmarried and without lawful issue, leaving him surviving as his only heirs, the said John Doe, Richard Roe, James Roe, Edwin Roe, Thomas Roe,. Marie Roe, Mary Roe Jones, Richard Roe Cole, and Henry Stiles, Jr. XIII. As to the allegation in the twelfth paragraph that the said Henry Roe died unmarried and without lawful issue, the plaintiffs, from their information, believe it to be true, but that their information is limited and that there is a possibility that the said Henry Roe was married at the time of his death, and that he had lawful issue at that time, but that his widow, if any, and his lawful issue, if any, are unknown to the plaintiffs, nor do the plaintiffs know where they can be found, if any such there be. COMPLAINT. 11 That no executor or administrator of his estate has been appointed in this State and that he left no personal property in this State. XIV. That the aforesaid plaintiffs and defendants are pos- sessed of said real property and are seized thereof in fee simple absolute and are the only persons having any right, title, estate, or interest in, or lien upon, the said real property, and that the said premises are the only real property owned by said parties as tenants in common in the State of New York, and that the same is so situated that it is not susceptible of an actual partition among the several owners thereof. XV. That none of the parties hereto has conveyed away his or her share or interest in said real property or any part thereof. XVI. That immediately upon the death of said Florence Koe, the said defendant, Henry Stiles, took possession of aU the said real property herein mentioned, and of the rents and issues there- from, and applied the same to his own use, and that he has ever since remained in the sole possession thereof and in receipt of the rents and issues therefrom, and has continued to retain the same to his own use. XVII. That the respective rights, shares, and interests of the several parties in said real property held by them in common as aforesaid are as follows: (a) The said plaintiff, John Doe, is seized in fee simple abso- 1 Lite, and is entitled to the possession, of an one-eighth thereof, as an heir at law of said William Roe, deceased, subject to the in- choate right of dower therein of his wife, the plaintiff, Jeannette Doe. (b) The said defendant, Richard Roe, is seized in fee simple absolute, and is entitled to the possession, of an one-eighth thereof, as an heir at law of said William Roe, deceased, subject to the inchoate right of dower therein of his wife, the defendant, Isabel Roe. (c) The said defendant, James Roe, is seized in fee simple absolute, and is entitled to the possession, of an one-eighth thereof, as an heir at law of said William Roe, deceased. (d) The said defendant, Mary Roe Jones, is seized in fee simple absolute, and is entitled to the possession, of an one-eighth thereof, as an heir at law of said William Roe, deceased. (e) The said Richard Roe Cole is seized in fee simple absolute, and is entitled to the possession, of an one-eighth thereof, as devisee of his said mother, Helen Roe Cole, deceased, who was an heir at law of said William Roe, deceased. 12 FOEMS OF PLUADIAGS AND PEECEDENTS. (/) The said defendants, Edwin Eoe, Thomas Eoe, and Marie Roe are each seized in fee simple absolute, and entitled to the possession, of an one twenty-fourth thereof, as an heir at law of said Charles Eoe, deceased, who was an heir at law of said William Eoe, deceased, subject to the dower therein of their said mother, Ethel Eoa (g) The said defendant, Ethel Eoe, is seized of and entitled to a dower interest in an undivided one-eighth thereof, as the widow of said Charles Eoe, deceased. (h) The said defendant, Henry Stiles, Jr., is seized in fee simple of an one-eighth thereof as the only heir at law of hia said deceased mother, Frances Eoe Stiles, who died intestate, and who was an heir at law of said William Eoe, deceased, subject to the estate of curtesy therein of his father, said defendant, Henry Stiles. (t) The said defendant Henry Stiles is seized of and is entitled to the .possession, during his life, of an one-eighth thereof as tenant by the curtesy of his said deceased wife, Frances Eoe Stiles, who (Jied intestate, seized and possessed thereof in fee simple absolute. (;■) That the said plaintiff, John Doe, and the said defendants, Eichar• ss. 1 County of New York, (Verificcdion.) (o) It seems that if the action be commenced more than three years after letters of administration or testamentary have been granted in this State upon the estate of the late owner of the whole premises, the executor or administrator need not be a party; but that the executor or administrator of any deceased shareholder must be made a party, no matter how many years have elapsed since his appointment. Code, § 1538. Although real property is susceptible of sale after the expiration of four years from the denth of its late owner, though no executor or administrator of his estate has been appointed in this State (Code, § 2777), yet in the partition suit the shore must be paid into court, though the four years have elapsed since his death, unlt-as an executor or an administrator of his estate has been appointed in this State and three years have since elapsed. Code, i 1538. 14 FOEMS OF PLEABINGB AND PBJICEDENTS. The eomplaint framed in this case is intended to show that the executor or administrator of a common ancestor need not he made a party after the expira- tion of three years from the time of his appointment if no proceedings have been commenced to subject the real property to the payment of his debts or funeral expenses; that the executor or administrator of a deceased tenant in common, who if living would be a necessary party, must be made a party though three years or more have elapsed since his appointment, and though no proceedings have been commenced to subject his interest in the real prop- erty to a sale for the payment of his debts or funeral expenses; that though an executor has been appointed in another State where a deceased tenant in common resided and died and where his will has been proved and his estate settled, yet that the money must be paid into court though more than three years have elapsed since the appointment of the foreign executor and no suit has been commenced against his heir or devisee and no proceedings have been taken to subject his interest in the real property to a sale for the payments of his debts or fimeral expenses unless an executor or administrator shall have been appointed in this State and three years shall have elapsed since such appointment and no proceedings shall have been commenced to subject his interest in the real property to a sale for the payment of his debts or funeral expenses. It is also intended to show that the husband of a married woman, dying intestate, is entitled to the common-law estate of curtesy in her real property in case a child has been born alive; that a married woman can cut off her husband's right to a common-law estate of curtesy in her real property by her will; that the husband of a living married woman who is u tenant in common is not a, proper party to the action; that the surviving husband of a married woman, dying testate and devising her interest in the property to others than her husband, is a proper, if not a necessary, party, because it is sought in the action to prove title of th(: devisees under the will and thus to prove the will, and it is by this will that the husband's tenancy by the curtesy is cut off. It is intended in the complaint to lay the foundation to show later in the suit that the money may be paid to a tenant in common when three years have not elapsed since the appointment of the executor or administrator at the commencement of the action, or at the entry of the interlocutory decree, but has elapsed prior to the filing of the referee's report of sale, though the executor or administrator be a party to the suit; and to show the practice in proving a foreign will for record in this State and the taking of affidavits in another State, for use in this State; and to show the manner of serving a summons on infants over fourteen years of age and on infants under fourteen years of age; and the practice in the appointment of a guardian ad litem for an infant over fourteen years of age on his own petition within twenty days after the service of the summons upon him, and in the appointment of a guardian ad litem for an infant over fourteen years of age on his own petition after the lapse of twenty days from the service of the.summons upon him; and the appointment of a guardian ad Utem, for an infant under fourteen years of age; the practice in serving a summons on a non-resident defendant personally out of this State, and the practice in serving the summons on a non-resident defendant out of this State by publication; and the practice of serving a summons upon unknown tenants in common defendants: And also show the practice of a trial by jury in a partition suit; and also to show the pleadings and practice where a co-tenant sets up an affirmative defense against his co- defendants and the plaintiff. The practice where property is sold partly for cash and partly on credit; and the practice to cut off all liens of creditors, of tenants in common, who have not been made parties to the action (their claims not being affected by the filing of the notice of the pendency of the action, it becomes necessary to cut off their liens bv notice published under section 1562 of the Code) ; and the practice necessary in order to sell the real property free from all liens thereon against both the common ancestor and the tenants in common which may be due and payable. The complaint is also followed by an amended complaint and by a supplemental complaint, showing when it is proper to file an amended complaint, and when it is necesssary to file a supplemental complaint, and the practice thereon. NOTICE OF PElsDENCY OF ACTION. 16 NOTICE OF THE PEHDENCT OP THE ACTION. SUPEEME COUET OF jSTeW YoEK, County of New Yoek. John Doe and Jeannette Doe, his wife, vs. Notice of the Pendency of the Action; Lis pendent. Plaintiffs, Richard Roe, Isabel Roe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or adminis- trator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, dev- isees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow if any, of said Henry Roe, deceased, and the executor or adminis- trator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow, or any devisee, or heir, other than parties hereto, next of. kin or wife thereof, or widow or surviving husband, or heir, or devisee, or executor, or administrator, of a deceased heir, devisee, or next of kin, or that there is any executor, adminis- trator, or personal representative of his estate, Defendants. J Notice is heeeby given to all to whom it may concern that the verified complaint in the above-entitled action is filed and that an action is pending by the plaintiffs and against the defendants therein named and against all persons unknown and claiming any share or interest in the real property described in said complaint for the purpose of obtaining a partition and division thereof among the several owners thereof and for a sale thereof under the direction of this court, if an actual partition thereof cannot be made, and for a >liVi'fiinTi nf ihp nroceeds of said sale among said owners according 16 FOEMS OF PLEADINGS AND PEECXDENTS. to their several rights and interests therein, which real property is described in said complaint as follows, to wit : All that certain piece or parcel of land and premises situate in the borough of Manhattan of the city of New York, county and State of New York, and \diich may be more particularly described as follows: Commencing at a point on the southerly side of Fennimore street distant easterly two hundred feet from the easterly side of Cooper avenue, and from thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block; thence rimning easterly along said center line of the blo^ and parallel with said Fennimore street fifty feet to a point; tience running northerly parallel with said Cooper avenue one hundred feet to said southerly side of Fennimore street; thence running westerly along said southerly side of Fennimore street fifty feet to the place of beginning. EICHAED FENN, Plaintiffs' Attorney. No. 1 Main street, borough of Manhattan, city of New York, State of New York. To , Esq., Clerk of the County of New York: Index the foregoing notice of the pendency of this action against the following persons : John Doe, Richard Koe, James Koe, Mary E. Jones, Ethel Eoe, Edwin Roe, Thomas Roe, Marie Roe, Henry Stiles, Henry Stiles, Jr., Richard Roe Cole, Mrs. Henry Roe, Henry Roe, the heirs, devisees and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or administrator of the estate of Henry Roe, deceased, and every person having an interest in real property of Henry Roe, deceased ; Ethel Roe as sole administratrix of the es- tate of Charles Roe, deceased ; Henry Stiles as sole administrator of the estate of Frances Roe Stiles, deceased, and estate of Hden Roe Cole, deceased. Dated April 13, 1903. RICHARD FENN, Plaintiffs' Attorney. The land affected by the within instrument lies in section in block in the land map of the city of New York. File the complaint and the pendency of the action, together, in the office of the clerk of the county of Neto York, then, on the follovoimg day, issue the summons. In a suit in a court of chancery the hill of complaint must he filed hefore the subpoena to answer it is issued, and it is customary to issue the suhpoena on a day subsequent to the day of the filing of the hill, so that there shall he na question, hut that the subpoena issued after the filing of the hill. In a suit ai tow the summons is, or may be, issued and served hefore any complaint is filed. But in an action for partition the summons should he served after the complaint has been filed. SCMMONS. 17 SUIOIONS. SuPEEMB Court of New Yoek. County of New Yoek. John Doe and Jeannette Doe, his wife, vs. Plaintiffs, Richard Eoe, Isabel Roe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie I^, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, -Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or adminis- trator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto devisees, next of kin, wives, widows, surviving husbands, heirs, dev- isees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or adminis- trator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow, or any devisee, or heii other than parties hereto, next of kin or wife thereof, or widow or surviving husband, or heir, or devisee, or executor, or administrator, of a deceased heir, devisee, or next of kin, or that there is any executor, adminis- trator, or personal representative of his estate, Defendants. ^Summons. 18 FORMS or PLEADINGS AND PEBCEDENT8. To the above-named defendants : You ABE HEBEBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer on the plaintiffs' attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated April 14, 1903. RICHAED FENN, Plaintiffs' Attorney. Office and post-office address, No. 1 Main street, in the borough of Manhattan, city of New York, State of New York. State of New York, I ■:} County of New York EoBEET Belnor of the borough of Manhattan, of the city of New York, county aforesaid, being duly sworn, deposes and says that he is of full age. That on the twentieth day of April, 1903, at No. 22 Fennimore street in said borough of Manhattan, of the city of New York, he served the annexed summons and a copy of the complaint herein filed in the office of the clerk of the county of New York, upon the defendants, Eichard Roe, and Isabel Ex)e, his wife, and the defendants, Mary Koe Jones, James Eoe, Henry Stiles and Henry Stiles, Jr., personally by then and there delivering to and leaving with each one of said defendants a true copy of said summons and complaint, and that on the same day at No. 22 Cooper avenue in said borough of Manhattan of the city of New York, county aforesaid, he served said annexed summons and a copy of said complaint on the de- fendant, Ethel Roe, and on the defendants, Edwin Roe, Thomas Roe, and Marie- Roe, personally by then and there delivering to and leaving with each of said defendants, Ethel Roe, Thomas Roe, and Edwin Roe, a true copy of said summons and complaint and also by then and there delivering to and leaving -with said defendant, Marie Roe, a true copy thereof directed to her and at the same time and place he delivered a further true copy of said summons and complaint to said Ethel Roe, the mother of said infant defendant, Marie Roe, directed to her as the mother of said infant defendant, Marie Roe, and left the same with her. Deponent further says, that at the time of such senrioe, he knew AFriDAVIT OF SEEVICE OF SUMMONS. 19 the persons so served to be the persons mentioned and described in said summons as defendants therein. Deponent further says that he personally knows that said defendant, Marie Eoe, is an infant under fourteen years of age and that said Ethel Roe is the mother of said infant, and that said infant resides -with her said mother at the address last aforesaid and that her father, Charles Roe, is dead. ROBERT BELNOR. Sworn to before me, this 2l8t day of April, 1903, etc. To , Esq., Sheriff of the Goimty of New York: Please serve the annexed summons on the following defendants therein named, viz. : William Cole, Richard R. Cole, Mrs. Henry Eoe, Henry Roe, his heirs, devisees, next of kin, and the executor or administrator of his estate.* Dated, New York, April 21, 1903. RICHARD FENN, Plaintiffs' Attorney. No. 1 Main street, borough of Manhattan, city of New York, N. Y. Sheriff's return aimexed, dated April 30, 1903. ,(o) The summons must be served within sixty days after the filing of the complaint and notice of the pendency of the action personally on one or more of the defendants or publication be commenced within the same time. Code, f 1670. Care should be taken to have the summons legally served upon all of the defendants, and proof of such service filed among the papers in the case. 20 FOEMS OF PLEADINGS AND PEECEDENTS. AITIDAVITS TO OBTAIN AN ORDEE FOE SEEVICE 01 STTMMONS BY PUBLICATION. Supreme Couet of New Yoek. County of New Yoek. John Doe et al., vs. Rictard Eoe et al., Plaintiffs, Defendants. AfficUwit. State of New Yoek, \ County of New York, j John Doe, being duly sworn, deposes and says, that he is one of the plaintiffs in this action. That he well knows the defend- ants, William Cole and Richard R. Cole. That they are not residents of the State of New York, but that they are residents of the city of Trenton, New Jersey, and that they seldom visit the State of New York. That when they do, they customarily visit him, but that they have not visited him since the commencement of this action and he has no knowl- edge or information of any present intention on their part to visit the State of New York. JOHN DOE. Sworn, etc. Supreme Couet of New Yo!EtK. County of New Yoek. John Doe et al., vs. Richard Roe et al.. Plaintiffs, Defendants. >- Affidavit. State op New Yoek, County of New York, Robert Belnor of the borough of Manhattan of the city of New York, county aforesaid, being duly sworn, deposes and says AFFIDAVIT FOB OEJDEE OF PUBLICATION. 21 ihkt th« simimons and several copies thereof and several copies of the verified complaint filed herein were delivered to deponent by Richard Fenn, the plaintiffs' attorney, with instructions to serve the same on all of the defendants therein named or on as many of them as deponent could possibly serve. That deponent having been for several years last past well acquainted with the several parties to this action, he was enabled to serve them all except said William Cole and Richard Roe Cole and the widow, heirs, devisees, and personal representatives of said Henry Roe, deceased, as appears by his affidavit annexed to said summons. That he could not find either William Cole or Richard Roe Cole in this State ; that he inquired for them from all of their relatives aforesaid and of others and could receive only the answer that they were not in the city but could be found at Trenton, N". J., ■where they reside; neither could deponent learn anything of said nnkhown defendants. ROBERT BELlSrOR Sworn to before me, this 8th day of May, 1903, etc. Supreme Coubt of New Yoek. County of New Yoek. John Doe et al., Plaintiffs, vs. y Affidavit. Ridiaird Roe et ial., Defendants. State of New Jbesey, llereer County, T. H. T., being duly sworn, deposes and says that he is the sheriff of the county of Mercer, State of New Jersey; that he is Avell acquainted with William Cole and Richard Roe Cole, of Trenton, New Jersey; that he saw them both this day at Trenton, New Jersey, and inquired of them whether they or either of them would soon visit the State of New York; that they botJi replied that they had no occasion to visit the State of 22 FOEMS OF PLEADINGS AND PRECEDENTS. New York at the present time and that they could not say when they would visit in that State; that any papers in the aboTe-en- titled action could be served upon them at Trenton, New Jersey. T. H. T. Subscribed and sworn to before me at Trenton, county aforesaid, this 6th day of May, 1903. Henet Holt, Master in Chancery of New Jersey.* State of New Jersey, ) Mercer Ooimty, j Ij , clerk of the county of, Mercer and clerk of the Circuit Court and Court of Common Pleas of said county, paid courts being courts of record, do hereby certify that Henry Holt, whose name is subscribed to the jurat on the foregoing affidavit, was, at the time of the taking of said affidavit, a resident of said county of Mercer and a master in chancery of the State of New Jersey, duly commissioned and sworn, and was duly authorized by the laws of the State of New Jersey to take affi- davits and to take and certify acknowledgments and proofs of deeds and conveyances of lands, tenements, and hereditaments to be recorded in said State, and further that I am well acquainted with the handwriting of said Henry Holt, and that I verily be- lieve the signature to said certificate to be genuine. In testimony whereof I have hereunto set my hand [seal.] and affixed the seal of said county and said courts,' this 6th day of May, 1903. Clerk. (a) This affidavit must be made before some person who is authorized to take the acknowledgment of deeds for lands in New Jersey (Code, § 844), as a notary public is not authorized to take acknowledgment of deeds for reoord of lands in New Jersey, it follows that the affidavit could not lawfully be made before a notary public of New Jersey, although such notary public oaa take affidavits in New Jersey for use there. AFFIDAVIT FOE OEI>BE OF PUBLICATION. 23 Supreme Couet of New Yobk. County of New York. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. Affidavit. State of New Yoek, ) County of New York, ) Richard Fenn, the plaintiffs' attorney, being duly sworn, da- poses and says, that this action is brought to partition certain real property situate in the borough of Manhattan of the city of New York, county and State of New York, among the several owners thereof. That the verified complaint in this action was filed in the oflice of the clerk of the county of New York on the thirteenth day of April, 1903, and that the notice of the pendency of this action was there filed at the same time. II. That the defendants, William Cole and Richard R. Cole, are not residents of the State of New York, and that deponent has been unable to serve them with the summons in this action within this State. That he personally made efforts to serve them in this State. That he inquired of their relatives, the several parties to this suit, where they resided and was informed that they resided at Trenton, Mercer county. New Jersey, and that they seldom visited this State, and that said plaintiff, John Doe, stated that when they did visit this State, it was their custom to visit him, and that should they do so, he would inform deponent. That deponent communicated with said defendants at Trenton, New Jersey, through , Esq., the sheriff of said Mer- cer county, whose affidavit is hereto attached, and learned that they were at Trenton and that they had no present intention of visiting the State of New York. That said William Cole is the surviving husband and said Richard Roe Cole is the only child and the devisee of Helen Roe Cole, deceased, who inherited an one-eighth interest in said real property as a child of said William Roe, deceased, and that said defendants own real property in this State or claim an interest therein which is the subject of this action. 24 FORMS OF PLEADINGS AND PRECEDENTS. III. That he requested Robert Belnor who had said summons to serve and who served the same on several of the defendants to use his best efforts to serve said summons and copy of complaint on said defendants, William Cole and Richard Roe Cole, and that he returned said summons unserved on said absent defendants, saying he had made every effort to serve the same, but that they could not be served in this State, whereupon deponent delivered said summons to the sheriff of the county of JSTew York for service upon said absent and unknovm defendants, and that said sheriff has returned said summons not served with his certificate that they cannot be found in his county. That he has again inquired of the said John Doe whether the said defendants, William Cole or Richard Roe Cole, have visited this State since the commencement of this action and he is informed by said plaintiff that they have not, to his knowledge ; and deponent says that said William Cole and Richard Roe Cole cannot with due diligence be served with the summons herein within the State of New York. Which summons with the affidavits of said Rpbert Belnor and the said certificate of the sheriff pf the county ,pf New York are also herewith submitted. That no other applica- tion for the order applied for hereon has been made to any otter court or judge. Sworn to before me, this RICHARD TENN *** 8th day of May, 1903. - (o) The affidavit should state that the defendants are nonresidents of the State. Code, | 438. OEDEiK FOK SElKVICE OF BOMMONS liif POULl CATION. OBSER THAT THE SUMMONS BE SERVED BY PUBLICATION OR PERSONALLY OUT OF THE STATE. Stjpeeme Coubt of New Yoek. OotJNTY OF New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffa, vs. Bichard Roe, Isabel Roe, his wife, James Roe, Edwin ]ftoe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, jdevisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any of Henry Roe, deceased, the executor or ad- ministrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an mljerest in real property of Henry Roe, deceased. The names of the said heirs other than parties hereto, devisees, next of kin, wives, widows, surviving hus- ibands, heirs, devisees, executors, and administrators of 'Seceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them ihat the said Henry Roe left him surviving any widow or any devisee or heir other than parties hereto, next of kin, or wife thereof, or widow, or surviving husband, or heir, or devisee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, ' administrator, or personal representative ' of his estate. Defendants. Order for the Berviee of the Sum- mons by Pub- lication. it appearing to my satisfaction by the affidavit of Richard Eenn, the plaintiffs' attorney herein, and of John Doe and Robert Belnor 26 FORMS OF PLEADINGS AND PRECEDENTS, of the eighth day of May, 1903, duly filed herein, and of T. H. T., sheriff of the county of Mercer, New Jersey, and the certificate of the sheriff of the county of New York of the thirtieth day of April, 1903, annexed to the summons herein and duly filed, and the verified complaint herein on file in the office of the clerk of the county of New York, that this action is brought for the parti- tion and sale of certain real property situate in the county of New York in this State, and that the complaint demands judgment of partition and sale thereof, and that the defendants, William Cole and Richard E. Cole, are not residents of the State of New York, and that they cannot with due diligence be personally served with the summons herein in this State, and that diligent efforts to serve said defendants in this State have been made, and that the said defendants cannot after and with due diligence be per- sonally served with the summons in this State, and that the non- resident defendants own or may claim to own an interest in said real property, and that they are necessary or proper parties to this action and are persons against whom judgment of partition and sale is sought, and the case being one specified in section 438 of the Code of Civil Procedure, and this order being in the further- ance of justice, it is, on motion of Kichard Fenn of counsel for the plaintiffs, Oedekeid, that the said summons be served upon said non- resident defendants, William Cole and Richard R. Cole, by the publication thereof, with the notice prescribed by section 442 of the Code of Civil Procedure, subjoined thereto and published therewith in the following newspapers, which newspapers are most likely to give notice to said defendants, namely, in the New York Lardern, printed and published in the county of New York, and in The New York Law Journal, printed and published in said county of New York, once in each week for six successive weeks ; or at the option of the plaintiffs, by service without this State of the summons and a copy of the verified complaint and of this order and the notice prescribed by section 443 of the Code of Civil Procedure stating the reason why the said summons is served without this State, upon said defendants personally, and that on or before the day of the first publication thereof, the plaintiffs deposit in the post-office at the city and county of New York a set of copy of the simimons, verified complaint,'** and of (a) The complaint must be a verified complaint and the order should so recite. Code, i 439. PBACTICE UNDER OKDEB FOB SEKVICH BY PUBLICATION. Zi this order, in a securely closed postpaid wrapper directed to the said several nonresident defendants, respectively, at their re- spective places of residence, as hereinafter particularly stated, namely: William Cole, Trenton, New Jersey; Richard Roe Oole, Trenton, New Jersey.*"' Dated, May 9, 1903. JAMES BRONSON,"-* J. S. 0. (a) Upon obtaining the order of publication, the same together with the papers upon which the order was granted should be at once fll^ with the veri- fied complaint, in the office of the clerk of the court,, and the summons should also be then and there filed, if it has not been previbusly filed. This must be done before personal service is made out of the State, and before the com- mencement of publication by advertisement; and the service must be made out of the State, or publication must be begun in each newspaper designate*! in the order, within three months after the order is granted. Code, g§ 441, 442. If the summons has not been served upon some defendant in the action, then the summons must be served personally on a non-resident or the pub- lication of the summons must be commenced within sixty days after the filini; of the complaint and the notice of the pendency of the action. Code, $ 1670. (6) This order must be a chambers order, made by a judge at chambers and signed by him and filed, and not a court order. Code, S ^tO. 28 FORMS OF PLEADINGS AND PEECEDEHTS. SUMMONS AND NOTICE ANNEXED FOE SEEVICE PEESONALLY OUT OF THE STATE. StTPREMB COUET OF NeW YoKK. CbuNTT OF New York. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Kichard Koe, Isabel Roe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., ,of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Heiiry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or adminis- trator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or ad- ministrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin, or wife Thereof, or widow, or surviving husband, or heir, or devisee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate, Defendants. To the above-named defendants: You are hereby summoned to answer the complaint in this ac- tion and to serve a copy of your ■angmnr nn tbn nIniTitiffn' nis^mr- SUMMONS, ETC., FOE PERSONAL SEiEVICE ON NONEESIDENT. 29 within twenty days after the servicje of this summons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated, April 14, 1903. KICHAE.D FENN, Plaintiffs' Attorney. Office and post-office address, No. 1 Main street, borough of Manhattan, city of New York, New York. To William Oole: The forgoing summons is served upon you without the State of New York, pursuant to an order of the Honorable James Bronson, one of the justices of the Supreme Court of the State of New York, dated the ninth day of May, 1903, and filed with the verified complaint and the summons herein in the office of the clerk of the county of New York in the borough of Manhattan of the city of New York, coimty and State of New York.^'* Dated, May 9, 1903. EIOHAKD FENN, Plaintiffs' Attorney. No. 1 Main street, borough of Manhattan, city of New York, State of New York. (a) Code, § 443. 30 FOEMS OF PLEADINGS AND PKECEDENTS. APITDAVIT OF THE PERSONAL SEEVICE OF THE SUMMOWS, HOnCE, OBDEB ASB COUFLAINT FEESON- ALLY OUT OF THE STATE. Supreme Court of New Yoek. County of New Yobk. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Eichard Roe, Isabel Eoe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased. heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or admin- istrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or admin- istrator, if any, of his estate, are unknown to the plain- tiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin, or wife thereof, or widow, or surviving husband, or heir, or dev- isee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate, Defendants. affidavit of seievicb made out of this state. 31 State of New Jersey, ) Mercer County, j John A. Howland of Trenton, county of Mercer and State of New Jersey, being duly sworn, deposes and says. That on the sixteenth day of May, 1903, at the city of Trenton, county of Mercer, State of New Jersey, he served the summons in the above-entitled action, and a notice stating the reason why the summons' was served without the State of New York, together with a copy of the verified complaint, and a copy of the order of publication therein, of which the annexed are true copies, upon William Cole, one of the defendants therein named, by then and there delivering to and leaving with the said William Cole said summons together with said copy of the verified complaint and order of publication, and the said original notice, stating why said summons was served out of the State of New York, signed by Richard Fenn, the plaintiffs' attorney, which were received by deponent from said Eichard Fenn, the plaintiffs' attorney herein. Deponent further says that at the time of such service he knew the person so served to be the said defendant William Cole therein named. Deponent further says that at the time of such service he was more than 21 years of age. JOHN A. HOWLAND. Subscribed and sworn to before me at Tren- ton, county aforesaid, this 16th day of May, 1903. Heney Holt, Master in Chancery of New Jersey. State of New Jersey, ) Mercer County, j I, , clerk of the county of Mercer, and clerk of the Circuit Court and Court of Common Pleas of said county, said courts being courts of record, do hereby certify that Henry Holt, whose name is subscribed to the jurat on the foregoing affidavit, was at the time of the taking of said affidavit a resident of said county of Mercer and a master in chancery of the State of New Jersey, duly commissioned and sworn and was duly au- thorized by the laws of the State of New Jersey to take affidavits and to take and certify the acknowledgments and proofs of deeds 32 FORMS OF PLEADINGS AND PBJXJEDENTS. - and^conveyances of lands, tenements, and hereditaments to be re- cordedHij. said State, and further, that I am well acquainted with the handwriting of said Henry Holt, and that I verily believe the signature to said certificate is genuine. In testimony whereof, I have hereunto set my [l. S.J hand and affixed the seal of said county and said courts, this 16th day of May, 1903. CleA. SUMMONS AND NOTICE. FOB SERVICE BY PUBLICATION. 33 SUMMONS AND NOTICE ANNEXED FOR SERVICE BY PUBLICATION. Supreme Court op New York. County of New York. Jdin Doe and Jeannette Doe, his wife, vs. Plaintiffs, Eichard Roe, Isabel Eoe, his wife, James Roe, Edwin Roe, Tliomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or admin- istrator of the estate of said Henry Roe, deceased, if ^Summons. any, and every person otherwise having an interest in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, dev- isees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or admin- istrator, if any, of his estate, are unknown to the plain- tiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin, or wife thereof, or widow, or surviving husband, or heir, or devisee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate. Defendants. To the above-named defendants : You ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer on the plaintiffs' 34 FOEMS OF PLEADINGS AND PRECEDENTS. attorney within twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated, April 14, 1903. EICHAED FElSriSr, Plaintiffs' Attorney. Office and post-office address, No. 1 Main street, in the borough of Manhattan, city of New York, State of New York. To Eichard E. Cole: The foregoing summons is served upon you by publication, pursuant to an order of the Honorable James Bronson, one of the Justices of the Supreme Court of the State of New York, dated the ninth day of May, 1903, and filed with the verified complaint and the summons herein in the office of the clerk of the county of New York, in the borough of Manhattan, of the city of New York, county and State of New York. Dated, May 9, 1903.<"> EIOHAED FENN, Plaintiffs' Attorney. No. 1 Main street, borough of Manhattan, city of New York, State of New York. =;l- PUBLISHER'S AFFIDAVIT OF PUBIICATION. State of New York, County of New York, A. B., of the borough of Manhattan, of the city of New York, county aforesaid, being duly sworn, deposes and says that he is the publisher of the New York Lan^ Attach tern, a daily newspaper printed and published in the Slip. borough of Manhattan, of the city of New York, county aforesaid, and that the summons and notice of which the annexed is a printed copy were regularly published in said New Yorh Lantern once in each week for six weeks successively, commencing on the tenth day of May, 1903. A. B. Sworn, etc (o) Code, § 442. AFFIDAVIT OF PUBLISHING AND MAILING. 35 PUBLISHER'S AFFIDAVIT OF PUBLICATION. Attach Printed Slip. SS.: State of New Yoek, County of New York, E. F., of the borough of Manhattan, of the city of New York, county aforesaid, being duly sworn, deposes and says that he is the publisher of The New York Law Journal^ a daily newspaper printed and published in the borough of Manhattan, of the city of New York, county aforesaid, and that the summons and notice of which the annexed is a printed copy were regularly published in The New York Law Journal aforesaid once in each week for six weeks successively, commencing on the tenth day of May, 1903. E. E. Sworn, etc. AFFIDAVIT OF MAILING COPY, SUMMONS, NOTICE, COM- PLAINT AND ORDER. SupuEME C0UE.T OF New Yoiek. County of New Yobjc. John Doe et al., vs. Eiehard Eoe e; i| al., Plaintiffs, Defendants. > Affidavit. SS.: State of New York, County of New York, Richard Fenn, the plaintiffs' attorney, being duly sworn, de- poses and says: That on the tenth day of May, 1903, in the borough of Man- hattan of the city of New York, he deposited in the postoffice there a set of copies of the summons and notice subjoined thereto, and verified complaint, and of the order of publication herein of the ninth day of May, 1903, contained in a securely postpaid wrapper directed to the defendant, Eichard E. Cole, at Trenton, New Jersey. 36 FOEMS OF PLEADINGS AND PEECHDENTS. Deponent further says that the summons, order, and papers upon which said order was made were filed in this action with the verified complaint before the day of the first publication of the summons and the mailing of the papers, as aforesaid. KICHAED TENK Sworn, etc. AFFIDAVITS TO OBTAIN AN ORDER FOR THE SERVICE OF THE SUMMONS ON UNKNOWN DEFENDANTS BY PUBLICATION. Supreme Cotjet op New Yoke. County of New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. y Affidcuvif. Eichard Koe et al.. Defendants. State of New Yoek, ) County of New York, j John Doe, one of the plaintiffs, being duly sworn, deposes and -says, he was well acquainted with James Stewart, formerly a resident of the city of New York, and saw him and deponent's uncle, Henry Eoe, sail together from New York for Australia, about the first of January, 1891; that afterward deponent re- ceived letters from his said uncle, Henry Eoe, three or four times a year until the winter of 1902-3, when deponent ceased to receive any letters from him, and that the last letter which deponent wrote to his said uncle, Henry Eoe, in the month of November last at his usual address at Melbourne, Colony of Victoria, Australia, was never answered. That about the first of February last, communications from said brother having ceased deponent's aunt, Mary Eoe Jones, received a letter from the said James Stewart, whose handwriting was well known to deponent from Sydney, Australia, stating that the said Henry Eoe had died AFFIDAVITS FOE OEDEE OF SERVICE ON UNKNOWN DEFENDANTS. 37 at Melbourne, Australia, according to a letter he had received from a Mr. William Smith there, stating that he would send further word later, but that no further word was received as far as deponent knows. That deponent has not since heard from the said James Stewart or any other person concerning said Henry Roe. Deponent further says that he has no knowledge that the said Henry Roe was married or whether he left him surviving any wife or child, or whether he died testate or intestate; that deponent never heard of his marriage or of his having left a will or testament; and deponent verily believes that said Henry Roe died intestate and unmarried at the city of Melbourne, in, the Oolony of Victoria, Australia, in the winter of the year 1903. JOHN DOE. Sworn to before me, this 10th day of May, 1903, etc. Supreme Couet of New Yoke. County of New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe et al., Defendants. Affidavit. ss.: State of New Yoek, County of New York, Mary Roe Jones, a defendant above named, being duly sworn, deposes and says, that she is a sister of said Henry Roe; that from the time he arrived in Australia in 1891 up to the first of July, 1900, she and Florence Roe, their mother, occasionally re- ceived letters from said Henry Roe from Sydney, New South Wales ; later from Melbourne, Colony of Victoria, Australia ; that 38 POEMS OF PUEADINGS AND PRBCEaOENTS. since their mother's death July first, 1901, she has but seldom heard from him; that in the month of February, 1903, she received a letter from James Stewart from Sydney, Australia, stating that her brother, said Henry Koe, had died at Melbourne, Victoria, Australia, and that he would write later,' but no further letter was ever received by her or by any of the family so far as she knows; that she did not answer the letter as she was waiting first for a further letter; that it never occurred to deponent that her said brother might have been married, but that she has no positive knowledge that he was not married; that in the summer of the year 1902, he wrote to her that he expected to get married the following winter. He was they living at Melbourne, Colony of "Victoria, Australia, but he never wrote that he had been mar- ried ; and deponent did not receive letters from him oftener than once or twice a year; and deponent verily believes that said Henry Eoe died intestate and unmarried. MAEY ROE JONES. Sworn to before me, this 10th day of May, 1903, etc. AFFIDAVITS FOE OEDEE OF SERVICE ON UNKNOWN DEFENDANTS. 39 SUPEEME COUET OF NeW ToEK. County of New Yoek. Jolm Doe and Jeannette Doe, his wife, vs. Plaintiffs, Eicliard Roe, Isabel Eoe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, Avidow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, -w^dow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or admin- istrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an inter- est in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto, dev- isees, next of kin, wives, widows, surviving husbands, heirs, devisees, executors, and administrators of de- ceased heirs, devisees, and next of kin, if any, and ■widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin, or wife thereof, or vTidow, or surviving hus- band, or heir, or devisee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representa- tive of his estate, Defendants, >■ AfjMctvit, 40 FOKMS OF PUIADINGS AND PEECEDENTS. Australia, ' ^ ss. Colony of JSTew South Wales, j James Stewart of Sydney, Colony of New South Wales, Austra- lia, being duly sworn, deposes and says, that he was well acquainted with Henry Eoe, formerly of the city of Ifew York; that they came from Kew York to Sydney, Australia, together in 1891 ; that in the year 1897, said Henry Eoe went to Melbourne, Colony of Victoria, Australia, to reside, business interests calling him there, and that deponent did not afterward see him, but occasionally corresponded with him; that in the early part of January, 1903, deponent received a letter from William Smith of Melbourne in whose employ said Henry Eoe had been engaged, announcing the death of said Henry Eoe and stating that said Henry Eoe had requested the said Smith to write to deponent and ask deponent to send word to the relatives in New York of said deceased Henry Eoe, and saying that said Henry Eoe had been properly buried by his friends and a society to which he belonged, in the cemetery there, and his personal effects disposed of as requested by said deceased; and that deponent has visited said city of Iilelbourne and saw said William Smith who stated to deponent the fact of the death and burial of said Henry Eoe as aforesaid. Deponent also called upon Dr. Charles Wilkinson, the physician of said Henry Eo© in his last illness, who said that said Henry Eoe died suddenly of a disease of the heart, and that deponent inquired of the Eegistrar of the Supreme Court Probate Judicature at Melbourne aforesaid if any will of said Henry Eoe had been offered for probate or if any letters of administration had been applied for upon his estate, which court has jurisdiction of all probate proceedings there ; and deponent was informed by the said registrar that there was none, which inquiry was made at the request of John Doe, of the city of New York, in the month of March, 1903. Deponent never heard that the said Henry Eoe was married, but deponent has no positive knowledge on the sub- ject, not having had any communication with said Henry Eoe upon that subject and he made no inquiry concerning that fact. JAMES STEWAET. Subscribed and sworn to before me, at Sydney, Colony of New South Wales, Australia, this first day of April, 1903. [l. s.] Geoege Hilton, A Commissioner for the State of New York, residing at Sydney, Colony of New South Wales, aforesaid. AFFIDAVITS FOE ORDEB OF SEEVICE ON UNKNOWN DEFENDANTS. 41 4 ss. State of New Yoek, Office of the Secretary of State, I hereby certify that George Hilton, of Sydney, Colony of New South Wales, Australia, was, at the time of taking the annexed affidavit, a commissioner for the State of New York, to take the proof and acknowledgment of deeds and other instruments to be used or recorded in this State, and to administer oaths and affirmations; and that such commissioner was at the time afore- said duly authorized to take the same ; and that I have compared the signature of the said commissioner to the certificate subjoined to the annexed affidavit with the signature of such commissioner deposited in this office, and have also compared the impression of the seal affixed to such certificate with the impression of the seal of such commissioner deposited in this office, and I verily believe the signature and impression of the seal to the said certificate to be genuine. Witness my hand and the seal of office of Secretary [l. S.J of State, at the city of Albany, this tenth day of May in the year one thousand nine hundred and three. Secretary of State. Supreme Court of New York. County of New York. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Eichard Eoe et al.. Defendants. 'Afflda/vit. SS.: State of New York, County of New York, Eichard Fenn, the attorney for the plaintiffs in the above- entitled action, being duly sworn, deposes and says : That he has inquired of all of the parties to this suit for the whereabouts of Henry Eoe, one of the sons of the said William 42 FORMS OF PLEADIIfGS AND PKECEDENTS. Eoe, deceased, and that he has been credibly informed that the said Henry Eoe died at Melbourne, Australia, in the winter of 1903. That no wife or child or issue of the said Henry Eoe is Imown, and deponent verily believes that he left no child, wife, or issue; but the defendant, Mary Eoe Jones, says that he stated prior to his death, in letters to her, that he expected to marry, and that deponent cannot say positively that he did not marry. That deponent has inquired of said relatives and others to ascer- tain whether any widow, or devisee, or personal representative of the said Henry Eoe could be found within this State upon whom the summons herein could be served, and he has issued the sum- mons herein to Eobert Belnor against said unknown defendants, as well as the others, in order to have him serve them if possible, and that he has been unable to serve them or any of them within this State. Deponent has also issued the summons herein to the sheriff of the county of New York for service upon said Mrs. Henry Eoe, the heirs, devisees, and next of kin of said Henry Eoe, deceased, their respective wives, if any, and the respective widows and sur- viving husbands, executors, and administrators of deceased heirs, devisees, and next of kin, if any, of Henry Eoe, deceased; the executor or administrator of the estate of said Henry Eoe, deceased, and that the said sheriff has returned the same not found, as appears by his certificate indorsed upon the summons filed herein. And deponent further says that the said unknown defendants, if any such there be, are not residents of this State and cannot be served with due diligence within this State, and that the place, if any, where such unknown defendants, or any of them, would probably receive matter transmitted through the post-office cannot be ascertained. That said defendants, if any such there be, own real property in this State, or have an interest therein, which 13 the subject of this action. That no previous application for the order applied for hereon. has been made to any other court or judge. EIOHAED FEliTN". Sworn, etc. OEBER FOE SEKVICE OF SUMMONS ON" UNKNOWN DEFENDANTS. 43 OEDER THAT THE SUMMONS BE SERVED ON UNKNOWN DEFENDANTS BY PUBLICATION; SUPBEME COUBT OF ISTeW YoEK. County of New Yobk. Joku Doe and Jeannette Doe, his wife, Plaintiffs, vs. Bichard Eoe, Isabel Koe, his wife, James Eoe, Edwin Eoe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Prances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or administrator of the estate of said Henry Roe, de- ceased, if any, and every other person otherwise hav- ing an interest in real property of Henry Roe, de- ceased. The names of the said heirs, other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin, or wife thereof, or widow, or surviving hus- baJid, or heir, or dc'visee, or executor, or adminis- trator of a deceased heir, devisee, or next of Mn, or that there is any executor, administrator, or personal representative of his estate, Defendants. Order. 44 FOEMS OF PLEADINGS AND PRECEDENTS. It appearing to my satisfaction by the complaint herein duly verified and on file herein in the office of the clerk of the county of New York aforesaid that this action is brought for the partition of certain real property situate in the county and State of New York, and that there are or may be certain defendants who have or may claim to have a share or interest in said real property who are unknown and whose names and residences are unknown, and it further appearing to my satisfaction by the afiidavits of John Doe, one of the plaintiffs, and Mary Eoe Jones, a defendant, of the tenth day of May, 1903 ; and of James Stewart, of the first day of April, 1903; and of Robert Belnor, of the tenth day of May, 1903; and of Richard Fenn, the plaintiffs' attorney, of the tenth day of May, 1903, that they cannot with due diligence be ascer- tained other than this: That Henry Roe, if living, would be seized as a tenant in common in fee of an undivided part of said real property as an heir at law of William Roe, deceased, the father of said Henry Roe. And that said unkno-wTi owners who are parties defendant to this action are the widow, if any, of said Henry Roe and the child or children, or their heirs, if any, of said Henry Roe, his devisees and personal representatives, if any ; and it further appearing by said affidavits and by the certificate of the sheriff of the county of New York annexed to the summons herein filed that diligent efforts to serve said unknown defendants in this State have been made, and that the plaintiff has been unable with due diligence to make personal service of the summons upon said unknovm defendants in this State, and that said unknown defendants cannot, nor can any of them, after and with due dili- gence be personally served with the summons in this State, and that said unknown defendants are necessary or proper parties to this action and are persons against whom judgment is prayed in this action, and whose interest in said real property is sought to be adjudged in this action, and the case being one of those speci- fied in section 438 of the Code of Civil Procedure, and this order being in the furtherance of justice, and it further appearing to my satisfaction by the affidavits aforesaid that the plaintiffs can- not with reasonable diligence ascertain a place or places where the unknown defendants, or any of them, would probably receive matter transmitted through the post-office, it is, on motion of Richard Fenn, Esq., of counsel for the plaintiffs, Oedeebd, that the summons herein be served on said unknown defendants by publication thereof, with the notice prescribed by OEDEK FOR SEORVICE OF SUMMONS OIT UNKNOWN DEFENDANTS. 4r5 section 442 of the Code of Civil Procedure subjoined thereto and published therewith, in the following newspapers, which news- papers are most likely to give notice to said unknoAvn defendants, namely: In the New York Herald^ published in the city and county of New York; and in The New York Law Journal, pub- lished in the city and county of New York; and in the Albany Evening Journal, published at Albany, the capitol of this State, once a week in each week for six successive weeks, or, at the option of the plaintiffs, by service of the summons and copy of the said verified complaint and of this order without this State, together "with a notice stating why the summons is served without this State upon said defendants personally; and it is further Oedbeed, that a deposit of any paper in the post-office be dis- pensed with, but that in addition to the matter above required that a notice be subjoined to the copy of summons as published or served therewith, stating briefly the object of this action and containing a brief description of the property sought to be par- titioned herein. Dated May 16, 1903. JAMES BEONSON", J. S. C. 46 FOEMS or PLEADINGS AND PEBCffiDKNTS. SUMMONS AND NOTICBS FOR SERVICE ON UNKNOWIT DEFENDANTSBY PUBLICATION. Supreme Court of New Tork. County of New York. .Tol\u Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Koe, Isabel Eoe, his wife, James Eoe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or ad- ministrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an inter- est in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto, dev- isees, next of kin, wives, widows, surviving husbands, heirs, devisees, executors, and administrators of de- ceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin or wife thereof, or widow, or surviving husband, or heir, or devisee, or executor, or administrator of a de- ceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate, Defendants. >■ Summons. NOTICE TO UNKNOWN DEFENDANTS. 47 To the above-named defendants: You ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer on the plaintiffs' attor- ney within twenty daysi after the service of this summons, ex- clusive of the day of service, and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint, Dafed April 14, 1903. EICHAED FENN, Plaintiffs' Attorney. Office and post-office address, 'No. 1 Main street, in the borough of Manhattan, city of New York, State of New York. To the defendants, Mrs. Henry Eoe, widow of Henry Koe, deceased; the heirs, devisees, and next of kin of Henry Eoe, deceased; their respective wives, and the respective widows, sur- viving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin of Henry Roe, deceased; the executor or administrator of the estate of Henry Eoe, deceased ; and every other person having an interest in real property of Henry Eoe, deceased; all of whom and all of whose names and respective places of residence axe unknown to the plaintiffs : Notice. — The foregoing summons is herewith served upon you by publication in pursuance of an order of the Hon. James Bronson, one of the justicesi of this court, dated the sixteenth day of May, 1903, and filed with the verified complaint and the sum- mons herein in the office of the clerk of the county of New York, in the borough of Manhattan, of the city of New York, county of New York, and State of New York. And that the object of this action in which the summons is herewith served upon you is to obtain partition of certain real property, situate in said borough of Manhattan, of the city of New York, State of New York, known as Nos. 18 and 20 Fennimore street, below described, or a sale thereof, if actual partition cannot be made, and a division of the proceeds among the parties to this action who are entitled thereto. No personal claim is made against you, but it is sought to have it adjudged that you have no title or interest in the prop- erty. The said real property consists of two lots of land with 48 POEMS OF PLEADINGS AND PEEICEDENTS. two dwellings thereon erected, and taken together may be described as follows : All that certain lot or parcel of land and premises situate in the borough of Manhattan, of the city of iTew York, county and State of New York, commencing at a point on the southerly side of iFennimore street distant easterly two hundred feet from the east- erly side of Cooper avenue, thence running southerly parallel with said Cooper avenue one hundred feet, to the center line of the block ; thence running easterly along said center line of the block, parallel with said Fennimore street, fifty feet; thence mnning northerly parallel with said Cooper avenue, one hundred feet to the said southerly side of Fennimore street; thence running west- erly along the said southerly side of Fennimore street fifty feet to the place of beginning/'' Dated May 16, 1903. KICHAKD FENN, Plaintiffs' Attorney. iN'o. 1 Main street, borough of Manhattan, city of iTew York, State of New York. PUBLISHEE'S AFFIDAVIT OF PUBUCATIOW. State of New York, County of New York, '"^*" E. F., of the borough of Manhattan, of the city of New York, county aforesaid, being duly sworn, deposes and says that he is the publisher of The New York Law Journal, a daily newspaper printed and published in the PHnt^d ^°^°"S^ of Manhattan, of the city of New York, county Blip, aforesaid, and that the summons and notice of which the annexed is a printed copy were regularly published in the said The New York Law Journal once in each week for six weeks successively, commencing on the seventeenth day of May, 1903, E. F. Sworn, etc. (o) Code, §§ 442 and 1541. AFFIDAVITS OF PUBLICATI03S'. 49 PUBLISHER'S AFFIDAVIT OF PUBLICATIOK. State of New York, County of New York, ^ C. D., of the borough of Manhattan, of the city of New York, county aforesaid, being duly sworn, deposes and says that he is the publisher of the New York Herald, a daily newspaper printed and published in the borough of Attoc)^ Manhattan, of the city of New York, county aforesaid, and Slip, that the summons and notice of which the annexed is a printed copy were regularly published in the said New York Herald once in each week for six weeks successively, commencing on the seventeenth day of May, 1903. C. D. Sworn, etc. PUBLISHER'S AFFIDAVIT OF PUBUCATIOH. State of New Yoek, County of Albany, G. H., of the city of Albany, county aforesaid, being duly sworn, deposes and says that he is the publisher of the Albany Evening Journal^ a daily newspaper printed Attach and published in the city of Albany aforesaid, and that gMpt the summons and notice of which the annexed is a printed copy were regularly published in the said Albany Evening Journal once in each week for six weeks successively, com- mencing on the seventeenth day of May, 1903. G. H. Sworn, etc. 50 FORMS OF PLEAI>I]SrGS AND PRECEiDE.NTS. PETITION OF INFANT DEFENDANT OVEK, FOURTEEN YEARS OF AGE FOR THE APPOINTMENT OF A GUARDIAN AD LITEM WITHIN TWINTY DAYS AFTER SERVING SUMMONS. Supreme Court of New York. County of ISTew York. John Doe and Jeannette Doe, his wife, vs. Plaintiffs, Eichard Koe, Isabel Koe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Prances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or admin- istrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, deceased. The names of the said heirs other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, dev- isees, executors and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or adminis- trator, if any, of his estate, are unknown to the plain- tiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin, or wife thereof, or widow, or surviving husband, or heir, or dev- isee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate, Defendants. >■ Petition. infant's petition fok guaedian ad litem. 51 To the Supreme Court of the State of New York: The petition of Thomas Eoe, of the borough of Manhattan, of the city of New York, county and Stat© of New York, respectfully shows : I. That your petitioner is a defendant in the above-entitled action. That he is an infant over fourteen years of age, namely, of the age of seventeen years. That on the twentieth day of April, 1903, at your petitioner's residence, No. 22 Cooper avenue, in said borough of Manhattan, of the city of New York, he was served with the summons and a copy of the verified complaint herein personally, which were then and there delivered to and left with your petitioner. II. That the above-entitled action was commenced for the par- tition of certain real property situate in the borough of Man- hattan, of the city of New York, county and State of New York, and particularly described in the verified complaint on file herein. III. That your petitioner is interested in said real property as an heir and part owaer thereof, as one of three children and heirs at law of Charles Eoe, deceased, intestate. That your peti- tioner has no general and no testamentary guardian, and that he resides with his mother, Ethel Eoe, a defendant herein, at No. 22 Cooper avenue aforesaid. IV. Wherefore, your petitioner prays that Charles Kent, Esq., an attorney and counsellor of this court, residing at No. 13 Fenni- more street, in the borough of Manhattan, of the city of New York, and a person fully competent to understand and protect the rights of your petitioner, and who has no interest in this action adverse to your petitioner, and who is not connected in business with the attorney or counsel of the adverse party, be appointed his guardian ad litem to appear and defend said action in his behalf. Dated May 5, 1903. THOMAS EOE, Petitioner. State of New York, ) County of New York, ( ^*-- Thomas Eoe, the petitioner above named, being duly sworn, deposes and says: That he has read the foregoing petition and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated to be alleged 52 FORMS OF PLEADIN&S AND PBECEDEWTS. on information and belief, and as to those matters, he believes it to be true. That no other application for the order applied for on the foregoing petition has been made to any other court or judge. THOMAS KOE. Sworn, etc. CONSENT OF PROPOSED GUARDIAN AND ACKNOWLEDGMENT THEREOF. I hereby consent to become guardian ad litem of the above- named infant defendant, Thomas Eoe, and to appear and defend the said action in his behalf. Dated 5th day of May, 1903. CHARLES KENT. ;}"■ State of 'E'ew Toek County of ISe-w York, On this fifth day of May, 1903, before me personally appeared Charles Kent, to me known and known to me to be the individual described in the foregoing petition, and who, executed the fore- going consent, and acknowledged to me that he executed the same for the purpose therein mentioned. DAITIEL LANE, Notary Public, etc.*'* AFFIDAVIT THAT PETITION WAS READ OVER TO THE INFANT AND THAT INFANT SIGNED IT. State qif New York, 1 County of New York, J Henry Hart^ of full age, of the borough of Manhattan, of the city of New York, county aforesaid, being duly sworn, deposes and says: That he is personally acquainted with Thomas Eoe, the petitioner in the foregoing petition named. That on the fifth (a) The consent must be acknowledged. Code, § 472. guardian's affidavit of competenoy. 53 day of May, 1903, he saw the said Thomas Eoe suDscribe his name to the said petition, the same having been first fully and truly read over to him by this deponent/"' Sworn to, before me, etc. HENRY HAHT. AFFIDAVIT OF GUARDIAN THAT HE IS COMPETENT AND EESFONSIBLE. Supreme Court of New York. County of New York. John Doe and Jeannette Doe, his wife. vs. Richard Eoe et al., Plaintiffs, Defendants. > Ouardian's Affidavit. State of New Yoek, 1 rSS. ' County of New York, J Charles Kent, of the borough of Manhattan, of the city of New York, county and State of New York, counsellor at law, being duly sworn, deposes and says that he is fully competent to under- stand and protect the rights of said infant in this action, and that he has no interests adverse to that of said infant, and that he is not connected in business with the attorney or counsel of the adverse party. That he is of sufficient financial ability to answer to the said infant for any damages which may be sustained by his neg- ligence or misconduct in this action, which is for the partition of (a) Under the practice of the late Court of Chancery the signature of the infant to the petition and the signature of the proposed guardian to the con- sent had to be proved by affidavit. Under the Code, § 472, the signature of the proposed guardian to the consent is proved by his acknowledgment. The purchaser objected to take title to real property at a partition sale, where it did not expressly appear that the signature of the infant to the petition for the appointment of a guardian ad litem was verified by thq affidavit of a person who saw him sign the petition. Varian v. Stevens, 2 Duer, 635. At common law the signature of an infant to an application to the court for the appointment of a next friend to prosecute an action or the appointment of a guardian ad litem to defend an action had to be proved by affidavit. Tidds Pr. Forms, p. 6. 54 FOEMS OF PLEADINGS AND PEECEDENTS. real property, and that he is worth at least the sum of two hun- dred and fifty dollars over and above all of his debts and liabilities besides property exempt by law from execution.^*' [Add property qiudification.']'^^ Sworn to before me, etc. CHAELES KEISTT. ORDER APPOINTING GUARDIAN AD niEM FOR INFANT DEFENDANT. At a Special Term, Part — , of the Supreme Court of the State of New York, held at the l^ew York County Court House, in the borough of Man- hattan, of the city of New York, on the eighth day of May, 1903. Present: Hon. James Beonson, Justice. John Doe and Jeannette Doe, his wife. Plaintiffs, '"^- border. Eichard Eoe et al.. Defendants. On reading and filing the petition herein, dated the fifth day of May, 1903, and duly verified of Thomas Eoe, an infant over the age of fourteen years, namely, of the age of seventeen years, for the appointment of Charles Kent, Esq., of the borough of Man- hattan, of the City of New York, a counsellor at law, as guardian ad litem for him in this action, with the written consent of said Charles Kent, duly acknowledged and indorsed upon said petition, and on the affidavit of Henry Hart, verified the fifth day of May, 1903, that he saw said Thomas Eoe, the petitioner afore- said, sign his name thereto ; and it appearing by affidavit to the (o) Under the practice of the late Court of Chancery the proposed guard- ian ad Utem had to be -a responsible person and worth at least the sum of $250 over all debts and liabilities, and property exempt from sale on execution. Chancery Rules, 145, 146; Eobertson v. Robertson, 3 Paige, 387. (6) Code, § 471, Rule 49. BOND OF GUAEDIAN AD LITEM. 55 satisfaction of the court that the said Charles Kent is a com- petent and responsible person to act as such guardian ad litem, that he has no interest adverse to that of the said infant and is not connected in business with the attorney or counsel of the plaintiffs; now on motion of Eichard Fenn, Esq., the plaintiffs' counsel herein, it is OEDEEED.That Charles Kent, Esq., of the borough of Manhattan, of the City of Wew York, aforesaid, counsellor at law, be and he hereby is appointed guardian ad litem for the infant defendant, Thomas Roe, in the action mentioned in the said petition, and is authorized and directed to appear for answer and defend in his behalf the said action upon his executing to the people of this State and duly acknowledging and filing a bond in the penalty of two hundred and fifty dollars, and with two sureties to be approved by a justice of this court, conditioned for the faithful discharge of the trust committed to him as such guardian, and to render a just and true account of his guardianship in any court or place when thereunto required. Enter, J. B., J. S. C. <^> <"> <•=> BOITD OF GUABDIAN AB LITEH FOB INFANT BEFBNBANT. Know all men by these presents. That we, Charles Kent, of the borough of Manhattan, of the city of New York, county and State of Kew York, and John Doe and Eichard Smith, of the same place, are held and firmly bound unto The People of the State of New York in the sum of two hundred and fifty dollars, lawful money of the United States, for (o) This order must be an order of the court in which the action of par- tition is brought. Code, § 1535. One seeing the general provisions for the appointment of a guardian ad litem in article four of title two, chapter five of the Code apparently applying to all actions might miss the special provisions of Section 1535 and have a guardian ad litem appointed by a judge of the court ' or a county judge unless his special attention were called to this section (B)' The guardian ad lllem must give bond in an actionifor partition. Code, S 1536. (c) It is not necessary to designate a person to receive service of a sum- mons for an infant over fourteen years of age, but on an application for y, guardian ad litem the court may designate a person, other than the infant, to be also served with the summons, under section 427 of the Code (Moulton T, Moulton, 47 Hun, 606). 56 FOEMS OF PLEADINGS AND PEECEDENTS. which sum, well and truly to be paid, we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, dated the ninth day of May, one thousand nine hundred and three. Whereas, at a Special Term of the Supreme Court of the State of 'New York, held in and for the county of New York, at the County Court House in the borough of Manhattan, of the city of ISTew York, on the eighth day of May, 1903, before the Honorable James Bronson, one of the justices of the said court, an order was made in an action ■vyherein John Doe and Jeannette Doe, his wife, are plaintiffs, and Thomas Koe, an infant under the age of twenty-one years, is, with others, a defendant, appointing the above-named Charles Kent guardian of the said infant, to appear for him and defend such action in his behalf, and to take charge of the interest of such infant in relation to the proceedings for the partition of the real property mentioned in the complaint in said action; and further ordering that before entering upon the execution of his duties as such guardian, he execute a bond in the penalty of two hundred and fifty dollars, with two sufficient sureties, conditioned for the faithful discharge of the trust com- mitted to him as such guardian, and to render a just and true account of his guardianship in any court or place when thereunto required. Now, the condition of this obligation is such that if the above- bounden Charles Kent shall faithfully discharge the trust com- mitted to him as such guardian, and shall render a just and true accoimt of his guardianship in any court or place when thereunto required, then this obligation to be void, otherwise to remain in full force and virtue. CHAELES KENT. [seal. J JOHN DOE. [seal.] EICHAED SMITH. [seal.] Sealed and delivered in the presence of James Meecee. :;}- State of New Yoek, County of New York, On the ninth day of May, one thousand nine hundred and three, before me personally appeared Charles Kent, John Doe and BOND OF GUARDIAIf AD LITEM. 57 Richard Smith, to me known and known to me to he the indi- viduals described in and who executed the foregoing bond, and severally acknowledged before me that they executed the same. JAMES MERCER, Commissioner of Deeds, New York County. State qif New Yoek, 1 rSS ' Coimty of New York, J John Doe, a surety in the foregoing bond named, being duly sworn, says that he is a freeholder, residing at No. 40 Fenni- more street, in the borough of Manhattan, of the city of New York, county aforesaid; that he owns his said residence in fee simple, and that there is no lien thereon, and that the same is worth at least nine thousand dollars, and that he is worth over the sum of two thousand dollars, over and above all the debts and liabilities which he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. Sworn, etc. JOHN DOE. J"- State of New York, County of New York, Richard Smith, a surety in the foregoing bond named, being duly sworn, says that he is a freeholder, resident of No. 42 Fenni- more street, in the borough of Manhattan, of the city of New York, county aforesaid ; that he owns the real property known as No. 10 Main street, in said borough of Manhattan, in fee simple; and that there is no lien thereon other than a mortgage of five thousand dollars, and that the same is worth over said mortgage at least the sum of seven thousand dollars; and that he is worth over the sum of two thousand dollars, over and above all the debts and liabilities which he owes or has incurred, and exclusive of prop- erty exempt by law from levy and sale under an execution and lawful claims upon his property. Sworn, etc. RICHARD SMITH. 58 FOEMS OF PLEADINGS AND PEECEDENTS. ENBOBSED. SUPEEME OOTTET OF NeW YoEK. County of New Yoek. John Doe et al., vs. Richard Eod tst al., Plaintiffs, Defendants. Bond of Guardian ad litem in Par- tition Suit. I approve the within Bond as to its form and manner of execution, and also of the sufficiency of the sureties therein named. Dated, May 11, 1903. James Beonson, J. S. O. Filed, May 11, 1903. , Clerk.*'') (a) The bond must be approved and filed with the clerk before the guard- ian enters upon the execution of his duties. The bond cannot be dispensed with even if the general guardian appears as guardian ad litem. Code, § 1536. Anything done on behalf of the infant by the guardian ad litem before the filing of his bond is a nullity, and validity cannot be given to it by the filing of the bond nunc pro tunc. Jennings v. Jennings, 2 Abb. Pr. 6. Considering the powers of a court of equity concerning the property and person of an infant who is its ward, and of its undoubted power to inquire whether or no it is for the infant's interest to ratify the proceeding, and if it find the infant's interest require this to be done it may be a question still open whether the court has not the power to allow the bond to be filed and to ratify the proceeding. It is its constitutional duty to protect the infant's interest. This was done in Croghan v. Livingston, 17 N. Y. 218. The summons being served, the court has jurisdiction over the infants, and the Code makes the final judgment binding on all upon whom summons was served. Code, §§ 1557, 1577. _A copy of the order appointing the guardian ad litem should be served by him with his notice of appeai'ance, or, if no notice of appearance be served then with the answer, with a notice thereon indorsed, which may be as fol- lows : " Please take notice that the within is a copy of an order entered and filed in the within-entitled action, on the eighth day of May, 1903. Charles Kent, guardian ad litem for the infant defendant, Thomas Roe." (Barnard v. Haydrick, 49 Barb. 62.) INFAITT S PETITION FOB APPOINTMENT OF GTJAKDIAN AD LITEM. 59 PETITION OF INFANT DEFENDANT OVEK 14 YEARS OF AGE FOE, APPOINTMENT OF GUARDIAN AD LITEM, MORE THAN TWENTY DAYS AFTER THE SERVICE OF THE SUMMONS ON HIM. SUPEEME COUET OF NeW YoEK. County of New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Kichard Roe, Isabel Roe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or administrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an in- terest in real property of Henry Roe, deceased. The names of the said heirs, other than parties hereto devisees, next of kin, wives, widows, surviving hus- bands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto next of kin, or wife thereof, or widow, or surviving husband, or heir, or devisee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estat^ Defendants. Petition 60 FORMS OF PLEABINGB AND PEECEDENTS. To the Supreme Court of the State of New York : The petition of Edwin Eoe, of the borough of Manhattan, of the city of Ifew York, county and State of New York, respectfully shows : II. That your petitioner is a defendant in the above-entitled action. That he is an infant over fourteen years of age, namely, of the age of fifteen years. That on the twentieth day of April, 1903, at your petitioner's residence, No. 22 Cooper avenue, in said borough of Manhattan, of the city of New York, he was served with the summons and a copy of the verified complaint herein personally, they being then and there delivered to and left with your petitioner. That more than twenty days have since elapsed, but your petitioner is informed by Richard Fenn, the plaintiffs' attorney, and verily believes that the said plaintiff has made no application for the appointment of a guardian ad litem herein for your petition.**' m. That the above-entitled action has been commenced for the partition of certain real property situate in the borough of Manhattan, of the city of New York, county and State of New York, and particularly described in the complaint on file herein. IV. That your petitioner is interested in said real property as an heir and part owner thereof, as one of three children and heirs at law of Charles Eoe, deceased, intestate. That your petitioner has no general and no testamentary guardian, and resides with his mother, Ethel Eoe, a defendant herein, at 22 Cooper avenue, aforesaid. v. Wherefore, your petitioner prays that Charles Kent, Esq., of No. 13 Fennimore street, of the borough of Manhattan, of the city of New York, an attorney and counsellor at law and a person fully competent to understand and protect the rights of your petitioner, and who has no interest in this action adverse to your petitioner, and who is not connected in business witb the attorney or counsel of the adverse party, be appointed his guardian ad litem to appear and defend said action in his behalf. Dated May 15, 1903. EDWIN EOE, State OF New YoEK,l Petitioner. County of New York, J ^^••" Edwin Eoe, the petitioner above named, being duly sworn, deposes and says: That he has read the foregoing petition and knows the contents thereof, and that the same is true of his own 'a) This application being made more than twenty days after the service of the summons, it must be shown that the plaintiff has not applied for the appointment of a guardian ad litem. PROPOSED GUAEDIAn's CONSENT AND ACKNOWLEDGMENT. 61 knowledge, except as to the matters therein stated to be alleged on information and belief ; and as to those matters, he believes it to be true. That no other application for the order applied for on the foregoing petition has been made to any other court or judge. Sworn, etc. EDWIN KOE. I hereby consent to become guardian ad litem of the above- named infant defendant, Edwin Roe, and to appear and defend the said action in his behalf. Dated May 15, 1903. CHARLES EIENT. State of New York, ] County of New York, J On this fifteenth day of May, 1903, before me personally ap- peared Charles Kent, to me known and known to me to be the individual described in the foregoing petition and who executed the foregoing consent, and acknowledged to me that he executed the same for the purpose therein mentioned. DANIEL LANE, ,^ ^ ^ Notary Public, etc. State cf New Yoek, rSS ' County of New York, J Henry Hart, of full age, of the borough of Manhattan, of the city of New York, county aforesaid, being duly sworn, deposes and says : That he is personally acquainted with Edwin Roe, the petitioner in the foregoing petition named. That on the fifteenth day of May, 1903, he saw the said Edwin Roe, the petitioner aforesaid, subscribe his name to the said petition, after the same had been first fully and truly read over to him by this deponent. Sworn, etc. HENRY HART. SUPEEME COTJET OF NeW YoKK. County of New York. John Doe and Jeannette Doe, his wde, Plaintiffs, vs. Richard Roe et al.. Defendants. >■ QMwrdian's Affidavit. State of New York,"! . County of New York, J Charles Kent, of the borough of Manhattan, of the city of New 62 FOEMS OF PLEABINGS AND PEECEDENTS. York, county and State of New York, counsellor at law, being- duly sworn, deposes and says that he is fully competent to under- stand and protect the rights of said infant in this action, and that he has no interests adverse to that of said infant, and that he is not connected in business with the attorney or counsel of the adverse party. That he is of sufficient financial ability to answer to the said infant for any damages which may be sustained by his negligence or misconduct in this action, which is for the partition of real property, and that he is worth at least the sum of two hundred and fifty dollars, over and above all of his debts and lia- bilities, besides property exempt by law from execution. \_Add property qualification.^ '''' Sworn to before me, etc. CHARLES KEIfT. OEDER APPOINTING GUARDIAN AD LITEM FOR INFANT DEFENDANT MORE THAN TWENTY DAYS AFTER SERVICE OF SUMMONS. At a Special Term, Part — , of the Supreme Court of the State of New York, held at the New York County Court House, in the borough of Man- hattan, of the city of New York, on the eighteenth day of May, 1903. Present: Hon. James Bronson, Justice. John Doe and Jeaimette Doe, his wife, Plaintiffs, vs. Eichard Roe et al., Defendants. ^ Order. On reading and filing the petition herein, dated the fifteenth day of May, 1903, and duly verified, of Edwin Eoe, an infant (a) Code, § 471, Rule 49. OEDEE APPOINTING GUARDIAN AD LITEM. 63 over the age of fourteen years, namely, of the age of fifteen years, for the appointment of Charles Kent, Esq., of the borough of Manhattan, of the city of New York, a counsellor at law as guardian ad litem for him in this action, with the written consent of said Charles Kent, duly acknowledged and indorsed upon said petition, and on the affidavit of Henry Hart, verified the fifteenth day of May, 1903, that he saw said Edwin Eoe, the petitioner aforesaid, sign his name thereto, after the same had been fully and truly read over to him; and it appearing that no application has been made by the plaintiffs herein for the appointment of a guardian ad litem herein for said infant defendant ; and it appear- ing by affidavit to the satisfaction of the court that the said Charles Kent is a competent and responsible person to act as such guardian ad litem,, and that he has no interest adverse to that of the said infant and is not connected in business with the attorney or coun- sel of the plaintiffs; now, on motion of Richard Fenn, Esq., the plaintiffs' counsel herein, it is Ordeeed, That Charles Kent, Esq., of the borough of Man- hattan, of the city of K"ew York, aforesaid, counsellor at law, be aad he hereby is appointed guardian ad litem for the infant de- fendant, Edwin Eoe, in the action mentioned in the said petition, and is authorized and directed to appear for, answer, and defend in his behalf the said action upon his executing tOi the people of this State, and duly acknowledging and filing a bond, in the penalty of two hundred and fifty dollars and with two sureties to be approved by a justice of this court, conditioned for the faithful discharge of the trust committed to him as such guardian, and to render a just and true account of his guardianship in all courts and places when thereunto required. Enter, J. B., J. S. C. File Bond as in the case of Thomas Roe. 64 FORMS OiF PLEADINGS AND PEECEDENTS. PETITION FOR THE APPOIMTMENT OP A GUAUDIAW AD LITEM FOR AN INFANT DEFENDANT ITNDEE 14 YEARS OF AGE. Supreme Cottrt of JSTew York. County of New York. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Roe, Isabel Eoe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Eoe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, indi- vidually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees, and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and ad- ministrators of deceased heirs, devisees, and next of kin, if any of Henry Roe, deceased, the executor or administrator of the estate of said Henry Roe, de- ceased, if any, and every other person otherwise having an interest in real property of Henry Roe, deceased. The names of the said heirs other than parties hereto devisees, next of kin, wives, widows, surviving hus- bands, heirs, devisees, executors, and administra- tors of deceased heirs, devisees, and next of kra, if any, and vsddow, if any, of said Henry Roe, deceased, and the executor or admiaistrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that the said Henry Roe left him surviving any widow or any devisee or heir other than parties hereto next of kin, or wife thereof, or vsddow, or sur- viving husband, or heir, or devisee, or executor, or ad- ministrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate, Defendants. Petition, PLAINTIFF S PETITION FOE GUAEDIAN AD LITEM. 65 To the Supreme Court of the Stat© of New York : Eichard Fenn, attorney for the plaintiffs in this action, respect- fully shows: I. That this action was commenced for the partition of certain real property situated in the county and State of New York, by filing the verified complaint and notice of the pendency of the action in the office of the clerk of the county of New York, on the thirteenth day of April, 1903, and the service of a summons on one or more of the defendants within sixty days thereafter. II. And your petitioner further shows, upon information and belief, that the summons was served personally on the defendant, Marie Eoe, on the twentieth day of April, 1903. That said defendant is an infant under the age of fourteen years, namely, of the age of seven years, and resides with her mother, Ethel Eoe, in the borough of Manhattan, of the city of New York, in this State, and that she has no general and no testamentary guardian. That the summons was served personally upon both the infant and her mother aforesaid, at their residence. No. 22 Cooper avenue, borough of Manhattan aforesaid, as appears by the affidavit of Eobert Belnor hereto annexed with a copy of said summons. III. And your petitioner further shows that twenty days and more have elapsed since the service of the summons aforesaid upon said infant defendant, and that no guardian ad litem for said infant has been appointed herein, and that no application for such appointment has been made, to this deponent's knowledge. IV. Wherefore, the plaintiffs pray that a suitable and com- petent person be appointed guardian ad litem for said infant defendant to appear and defend this action in her behalf and for such further or other order as the court shall deem meet. EICHAED FENN, Petitioner. State of New Yoek.I County of New York, J Eichard Fenn, being duly sworn, deposes and says that he is the attorney for the plaintiffs in the above-entitled action and the petitioner aforesaid. That the foregoing petition is true of his own knowledge, ex- cept as to those matters which are therein stated to be alleged on information and belief, and as to those matters, he believes it to be true. That no other application for the order applied for on the foregoing petition has been made to any other court or judge. Sworn, etc. EICHAED FENN. 66 FORMS O'F PLEADINGS AND PEECEDENTS. AFFIDAVIT OF SERVICE OF THE SUMMONS AND COMPLAINT ON INFANT DEFENDANT UNDEE FOURTEEN TEAHS OF AGE. Supreme Court of New Yoke. County of New York. Jolin Doe and Jeannette Doe, his wife, vs. Richard Eoe et al., Plaintiffs, Defendants. >■ Afpdaoit. I, J State O'F New Yore, County of New York, Robert Belnor, of full age, being duly sworn, deposes and says : That he resides at No. 1 Neptune avenue, in the borough of Man- hattan, of the city of New York. That on the twentieth day of April, 1903, at No. 22 Cooper avenue, in the borough of Man- hattan, of the city of New York, he served the summons in this action, a copy of which is hereto annexed, together with a copy of the verified complaint filed herein, personally upon Marie Roe, an infant under the age of fourteen years, and at the same time and place he also served a copy of said summons and com- plaint personally upon Ethel Roe, the mother of said infant, Marie Roe, with whom she resided, at the place aforesaid, by delivering said copies of summons and verified complaints to them respec- tively and leaving the same with them. Deponent further says that at the time of such service he knew the said Marie Roe to be one of the defendants in this suit, and the said Ethel Roe to be her mother. That deponent has for several years last past been well ac- quainted with the family, and from his knowledge and the ap- pearance of said infant, deponent verily believes and has no doubt that she is an infant under the age of fourteen years. Sworn, etc. ROBERT BELNOR. {Annex copy of summons.) NOTICE OF MOTION FOE APPOINTMENT O'F GUAEDIAN AD LITEM. 61 AFFIDAVIT OF MOTHER OF INFANT DEFENDANT UNDEE 14 YEAES OF AGE. SUPEEME COTTET OF NeW YoEK. County of New Yoejk. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. > Affidavit. State of New Yoek, 1 fSS ' County of New York, J Ethel Roe, of the borough of Manhattan, of the city of New York, being duly sworn, deposes and says that she is one of the defendants in the above-entitled action; that she is the mother of Marie Roe, an infant defendant in the above-entitled action; that said Marie Roe was of the age of seven years at the last anni- versary of her birth, which was on the fifth day of March, 1903. Sworn, etc. ETHEL ROE. NOTICE TO INFANT DEFENDANT UNDER FOURTEEN YEARS OP AGE AND TO HER MOTHER, WITH WHOM SHE RESIDiS, OF MOTION FOR THE APPOINTMENT OF A GUARDIAN AD LITEM. New Yoek Supeeme Cquet. County of New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. ^Notice of Motion. Richard Roe et al., Defendants. Please take notice, that on the verified petition of Richard Eenn, the plaintiffs' attorney, and the affidavit of Robert Belnor, 68 FOEMS OF PLEADINGS AND PRECEDENTS. thereto annexed, of the service of the summons in this action upon Marie Eoe, an infant defendant therein, under the age of (fourteen years, and the affidavit of Ethel Eoe, the mother of said infant defendant, copies of which are herewith served, and the notice of the pendency of this action, the verified complaint and papers filed, and the proceedings herein, ■ I shall move this court at a Special Term thereof. Part I, to be held at the New York County Court House, in the borough of Manhattan, of the city of New York, on the twentieth day of May, 1903, at 10 :30 o'clock in tlie forenoon, or as soon thereafter as counsel can be heard, for an order appointing a guardian ad litem, for the said infant defend- ant, Marie Eoe, in this action and for such further or other order as the court shall deem meet. Dated May 12, 1903. EICHAED FEXX, Plaintiffs' Attorney. To Marie Eoe, infant defendant, and to Ethel Eoe, her mother. ATFIDAVIT OF SERVICE UPON INFANT DEFENDANT AND HER MOTHER OF THE NOTICE OF MOTION FOE THE APPOINTMENT OF A GUARDIAN AD LITEM AND OF PETITION AND AFFIDAVITS. New York Supreme Coiuet. County of Neiw York. John Doe and Jeannette Doe, his wife. vs. Eichard Eoe et al.. Plaintiffs, Defendants. >• Affidavit. State of New Yoek^I New York County, J **••' Henry Hart, of the borough of Manhattan, of the city of New York, being duly sworn, deposes and says: That he is of full age and a clerk in the office of Eichard Fenn, the plaintiffs' attorney; that he is well acquainted with said OEBEE APPOINTING GUAKDIAN AD LITEM. 69 infant defendant, Marie Roe, and with her said mother, Ethel Roe. That on the twelfth day of May, 1903, he served upon both said infant and her mother, at their place of residence, No. 22 Cooper avenue, in the borough of Manhattan, of the city of New York, copies of the within verified petition and of the affidavits of Robert Belnor and Ethel Roe thereto annexed and the notice of motion for the appointment of a guardian ad litem in this action for said defendant, Marie Roe, by there and then delivering to and leaving with each one of them personally a copy of said verified petition and afiidavits thereto annexed and of said notice. Deponent further says, that said infant has not appeared in this action and that no application has been made by or for her for the appointment of a guardian ad litem herein, to the best of this deponent's knowledge and belief. Sworn, etc. HENRY HART. ORDEE APPOINTING GUAHDIAN AD nTEM FOR INFANT DEFENDANT TINDER FOURTEEN YEARS OF AGE. At a Special Term, Part — , of the Supreme Court of the Stat© of New York, held in and for the county of New York, at the County Court: House, in the borough of Manhattan,. of the city of New York, on the twentieth day of May, 1903. Present: Hon. James Beonson, Justice. John Doe and Jeannette Doe, his wife. vs. Richard Roe et al., Plaintiffs, Defendants. Order On reading and filing the verified petition of Richard Fenn, the plaintiffs' attorney herein, and the affidavit of Robert Belnor, thereto attached, of the due service of the summons herein upon 70 FORMS OF PLEADINGS AND PKECEDE.NTS. said infant defendant, Marie Eoe; and on reading and filing the notice of this motion with proof, hj the affidavit of Henry Hart, ©f the due service thereof and of said verified petition and affi- davit of Eobert Belnor of the service of the summons herein upon said infant and her said mother, and the accompanying affidavit of said Ethel Eoe and thereupon and upon the summons, com- plaint, notice of the pendency of this action, and the papers and proceedings herein, it appearing that no guardian ad litem has been appointed, and that no application has been made for the appointment of a guardian ad litem herein, for the said infant de- fendant, Marie Roe, now on motion of Richard Fenn, of counsel for the plaintiffs, it is Oedeeed, That Charles Kent, Esq., of the borough of Man- hattan of the city of New York, counsellor at law, and a competent and responsible person, be and he hereby is appointed guardian ad litem of the infant defendant, Marie Roe, in this action, upon filing with the clerk of this court his written consent, duly proved and his bond to be approved by a justice of this court to the people of this State, with two sureties in the sum of two hundred and fifty dollars according to the statutes of this State and the rules and practice of this court ; and who is thereupon authorized and directed to appear, answer, and defend the same in her behalf as such guardian. Enter, J. B., J. S. C. CONSENT OF PKOPOSED GUAHBIAN AT UTEK ANB ACKNOWL- EDGMENT THEKEOF. I, Charles Kent, above named, hereby consent to become guard- ian ad litem of the above-named infant defendant, Marie Roe, and to appear and defend the said action in her behalf. Dated May 20', 1903. CHARLES KENT. State of New York,") r SS * County of New York, J On this twentieth day of May, 1903, before me personally ap- peared Charles Kent to me known, and known to me to be the in- dividual who executed the foregoing consent and acknowledged to me that he executed the same for the purpose therein mentioned. DANIEL LANE, Notary Public, etc. BETAINEE OF ATTOBNEY BY ADULT KEiFENDANTS. 71 AFFIDAVIT OF GUAKDIAW AD LITEM THAT HE IS COMPE- TENT AND RESPONSIBLE. SuPEEMEi COUET OF NeW YoBK. New Yoek County. John Doe and Jeannette Doe, hia ■wife, Plaintiffs, vs. Eichard Eoe et al., Defendants. * Guardian's Affidavit. State of New Yobk, ^ County of New York, J Charles Kent, of the borough of Manhattan, of the city of New York, county and State of New York, counsellor at law, being duly sworn, deposes and says that he is fully competent to understand and protect the rights of the infants in this action, and that he has no interests adverse to that of said infants, and that he is not connected in business with the attorney or counsel of the adverse party. That he is of sufficient financial ability to answer to the said infant for any damages which may be sus- tained by his negligence or misconduct in this action, which is for the partition of real estate and is worth at least the sum of two hundred and fifty dollars over and above all of his debts and lia- bilities besides property exempt by law from execution. [Add property qualification.'] Sworn to before me, etc. GHARLES KENT. File also Chuirdian's bond. RETAINER BY ADUIT DEFENDANTS OP AH ATTORNEY AND COUNSEL. SUPEEME CoUET OF NeW Yo- Retainer. We severally hereby retain Sydney Gray, Esq., attorney and 72 FOBMS OF PLEADINGS AND PEECEDEWTS. counsellor at law, to represent us as our attorney and counsel in the above-mentioned action. Dated April 29, 1903. JAMES EOE, ETHEL EOE, individually and as sole administratrix, etc., of Charles Eoe, deceased. MARY ROE JONES, HENRY STILES, Jb. ACKNOWLEDGMENT OF EETAINER IN THIS STATE. <»> State of New Yokk, 1 County of New York, J " On this twenty-ninth day of April, 1903, personally appeared before me James Roe, Ethel Roe, Mary Roe Jones, and Henry Stiles, Jr., to me known, and known to me to be the individuals who subscribed their names to the above written retainer, and executed the same and severally acknowledged to me that they executed the same for the purpose therein mentioned. DANIEL LANE, Notary Public, New York County No. — . NOTICE OF EETAINER AND OF APPEARANCE FOR DEFENDANT BY AN ATTORNEY. SuPEEME Court of New Yoek. New Yoek County. \ John Doe and Jeannette Doe, Plaintiffs, vs. Richard Roe et al.. Defendants. Notice of Appearance. Please take notice, that I have been retained by and that I (a) The retainer may be acknowledged and thereupon become evidence. Code, § 937. The retainer should be filed before or at the time of the application for an order referring the trial of the issues to a jury or the commencement of the hearing before a referee. NOTICE OF APPEARANCE BY DEFENDANTS ATTORNEY. 73 hereby appear herein for James Koe, Ethel Koe, individually and as sole administratrix of the goods, etc., which were of Charles Roe, deceased, Mary Roe Jones, and Henry Stiles, Jr., defendants in the above-entitled action, and tliat I demand that all notices and papers herein for said defendants be served upon me at my office, No. 7 Main street, in the borough of Manhattan, of the city of New York, State of New York. Dated May 1, 1903. Yours, etc. SYDNEY GRAY, Attorney as aforesaid. To Richard Fenn, Plaintiffs' Attorney. EXTENSION OF TIME TO PMAD. Supreme Court of New York. New York County. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. ^ Stipulation, The time for the defendants, James Roe, Ethel Roe, indi- validity and as sole administratrix, etc., Mary Roe Jones, and Henry Stiles, Jr., to answer the complaint herein is hereby ex- tended imtil service by publication upon the absent and the un- known defendants shall have been made, and until the twentieth day of July, 1903. bated May 1, 1903. RICHARD PENN, Plaintiffs' Attorney. 74 POEMS OiF PLEABINGS AND PEECEDEBTTS. EETAINEB, AND ACKNOWLEDGMENT. StrPEEME COUET OF NeW YoEK. Hew Yoek County. John Doe et al., vs. Eiehard Roe et al., Plaintiffs, Defendants. Retainer. "We hereby retain Milton Morris, Esq., attorney and counsellor at law of the borough of Manhattan, of the city of New York, to appear for and represent us in the above-entitled action. Dated May 5, 1903. EIOHAED ROE, „ „ "1 ISABEL ROE. State of JNeiw York, y ss * County of New York, •' On this fifth day of May, 1903, before me personally came Richard Roe and Isabel Roe, to me personally known and known to me to be the individuals who executed the foregoing retainer and severally acknowledged to me that they executed the same for the purposes therein mentioned. -p. . -vj-i-p-r t a -vrp Notary Public, etc. NOTICE or RETAINER AND OF APPEABAITCE BY ATTORNEY FOR DEFENDANT. SUPEEMB COTJET OF NbW YoEK. New Yoek County. John Doe et al.. vs. Richard Roe et al.. Plaintiffs, Defendants. y Ifotice of Appearance. Please to take notice, that I have been retained by, and hereby appear in this action for the defendants, Richard Roe and Isabel Roe, and that I demand that all notices and papers herein for EXTENSION O'F TIME TO PLEAD. 75 said defendants be served upon me at my office, No. 3 Main street, in the borough of Manhattan, of the city of New York, State of New York. Dated May 6, 1903. Yours, etc., MILTON MOBEIS, To Eiohard Fenn, Attorney as aforesaid. Plaintiffs' Attorney. EXTENSION OF TIME TO PLEAD. Supreme Couet of New York. New York County. John Doe et al., Plaintiffs, vs. >- Stipulation, Eichard Eoe et al.. Defendants. The time for the defendants, Kichard Eoe and Isabel Eoe, to answer the complaint herein is hereby extended until service by publication upon the absent and the unknown defendants shall have been made, and until the twentieth day of July, 1903. Dated May 6, 1903. EIOHAED PENN, Plaintiffs' Attorney. RETAINER AND ACKNOWLEDGMENT. Supreme Court of New York. New York County. John Doe et al.. vs. Eichard Eoe et al., Plaintiffs, Defendants. Retainer. I hereby retain Horace Lake, Esq., attorney and counsellor at law of the borough of Manhattan, of the city of New York, to 76 POEMS 0'¥ PLEADINGS AND PEECEDENTS. appear for and represent me in the above-entitled action, indi- vidually and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, intestate. Dated April 30, 1903. BENRY STILES. State of New yoEOi;, \ County of New York, J On this thirtieth day of April, 1903, before me personally ap- peared Henry Stiles, to me known, and known to me to be the indi- vidual who executed the foregoing retainer and acknowledged to me that he executed the same for the purpose therein men- tioned. DANIEL LANE, Notary Public, etc. NOTICE OF RETAINER AND OF APPEARANCE FOR DEFENDANT BY AN ATTORNEY. StrPEEME COUET OF NeW YoEK. New Yoek CotrNTT. John Doe et al., vs. Richard Roe et al.. Plaintiffs, Defendants. Notice of Appearance. Please to take notice, that I have been retained by and hereby appear for Henry Stiles, a defendant in the above-entitled action, individually and as sole administrator, etc., and demand that all notices and papers herein for said defendant be served upon me at my office, No. 1 Broadway, in the borough of Manhattan, of the city of New York, State of New York. Dated May 9, 1903. Yours, etc., HORACE LAKE, Attorney as aforesaid. To Richard Fenn, Esq., Plaintiffs' Attorney. NOTICE OF APPEARANCE BY GUAKDIAN AD LITEM. 77 EXTENSION or TIME TO PLEAD SUPBEME COTJET OP NeW YoEK. New Yoek County. John Doe et al., vs. Eichard Roe et al., Plaintiffs, Defendants. y Stipulation. ' -' The time for the defendant, Henry Stilea, individually and aa sole administrator, etc., to answer the complaint herein is hereby extended until service by publication upon the absent and the unknown defendants shall have been made, and until the twen- tieth day of July, 1903. Dated May 9, 1903. ^ RICHAED FENN", Plaintiffs' Attorney. NOTICE OF APPEARANCE BY GUABDIAN AD LITEM. N'ew York Supheme Couet. County of New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Roe et al.. Defendants. >■ Notice of Appearance. Please to take notice, that I hereby appear in this action as guardian ad litem for the infant defendants, Thomas Roe, Edwin Roe, and Marie Roe, pursuant to three*'' several orders herein of the court, copies whereof are herewith served, and demand that a copy of the complaint and all papers herein be served upon me at (a) One of the orders is made on the application of an infant within twenty days after the service of the summons. Aiother order is made on the applica- tion of an infant after the lapse of twenty days from the service of the sum- mons. The third order is made on the application of the plaintiff for the ap- pointment of a guardian ad litem of an infant under fourteen years of age. 78 FORMS OF PLEADINGS AND PEECEDENTS. my office, No. 1 Broadway, in the borough of Manhattan, of the city of New York, State of New York. Dated May 21, 1903. Yours, etc, CHAELES KENT, Guardian ad litem as aforesaid. To Richard Fenn, Esq., Plaintiffs' Attorney. EXTENSION OF TIKE TO PLEAD. Nbw Yobk Supbemb Court. CouNTT OF New Yoek. Stipulation, John Doe et al., Plaintiffs, Kichard Boa et al., Defendants. The time for the defendants, Edwin Roe, Thcanas Roe, and Marie Roe, to answer the complaint herein is extended until ser- vice by publication upon the absent defendants and the unknown defendants shall have been made, and until the twentieth day of July, 1903. Dated May 21, 1903. RICHARD FENN, Plaintiffs' Attorney. EETAINEB, AND ACKNOWLEDGMENT. New York Supbemb Court. County of New Yoek. John Doe et al.. Plaintiffs, vs. Richard Roe et al.. Defendants. Retainer. J I hereby retain Sydney Gray, Esq., attorney and counsellor at law of the borough of Manhattan, of the city of New York, ACKNOWLEDGMENT OF EETAINEE. 79 county and State of New York, to appear for and represent me in the above-entitled action. Dated June 27, 1903. RICHAED EOE COLE. State of Neiw Yoeos:, County of New York, On this twenty-seventh day of June, 1903, before me personally appeared Richard Roe Cole, to me known and known to me to be the person who executed the above retainer and acknowledged to me that he executed the same for the purposes therein men- tioned. DANIEL LANE, Notary Public, etc. NOTICE OF RETAINER AND OE Af FEASANCE. New Yoek Supeeme Couet. CoiTNTT OF New York. John Doe et al.. vs. Richard Roe et al.. PlaintifEs, Defendants. t-Notice of Appearance. Please to take notice, that I have been retained by and hereby appear for Richard Roe Cole, one of the defendants in the above- entitled action, and demand that all notices and papers herein for said defendant be served upon me at my office, No. 7 Main street, in the borough of Manhattan, of the city of New York, State of New York. Dated June 29, 1903. Yours, etc., SYDNEY GRAY, Attorney as aforesaid. To Richard Fenn, Esq., Plaintiffs' Attorney. 80 POEMS OF PLEADINGS AND PEECEDENTS. EXTENSION OF TIME TO PLEAT. New Yoek Supeeme Couet. County of New Yoek. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. Stipulation. The time for the defendant Richard Roe Cole to answer the complaint herein is hereby extended until service by publication upon the absent defendants and the unknown defendants shall have been made, and until the twentieth day of July, 1903. Dated June 29, 1903. RICHAUD FENN, Plaintiffs' Attorney. RETAINER BY NONRESIDENT. New Yoek Supeeme Couet. County of New Yoek. John Doe et al., vs. Richard Roe et al.. Plaintiffs, Defendants. > Retadner, To Horace Lake, Esq., No. 1 Broadway, Borough of Manhattan, New York City, New York. This is to request and authorize you to appear for me as my attorney and coimsellor at law, in the above-entitled action, and take such proceedings therein as shall be for my interest. Dated June 29, 1903. Yours, etc., WILLIAM COLE, a defendant in the above- entitled action. ACKNOWLEDGMENT AND PKOOF BY A NONRESIDENT. 81 ACKNOWLEDGMENT OF RETAINEK BY NONKESIDENT DEFENDANT. ss. State of New Jersey, Mercer County, Be it remembered, that on this twenty-ninth day of June, one thousand nine hundred and three, before me, the subscriber, a Master in Chancery of the State of New Jersey, personally ap- peared William Cole, personally known to me and who is known to me to be the person described in and who executed the foregoing written request, and I having first made known to him the con- tents thereof, he thereupon acknowledged to me that he executed the same for the uses and purposes therein expressed. HEmiY HOLT, Master in Chancery of New Jersey. State of New Jersey, "1 Mercer County. J I, , clerk of the coimty of Mercer, and clerk of the Circuit Court and Court of Common Pleas of said county (said courts being courts of record), do hereby certify that Henry Holt, whose name is subscribed to the certificate of acknowledgment of the annexed instrimient and thereon written, was at the time of taking such proof of acknowledgment a resi- dent of said county of Mercer and a Master in Chancery of New •Jersey, commissioned and sworn, and duly authorized to take the acknowledgments and proofs of deeds and conveyances for lands, tenements, and hereditaments in said State; and further, that I ira well acquainted with the handwriting of said Henry Holt and I verily believe the signature to said certificate is genuine. In testimony whereof, I have hereunto set my hand [l. s.] and affixed the seal of said county and said courts, this twenty-ninth day of June, one thousand nine hun- dred and three. 6 Clerk. 82 FOEMS O'F PLEADINGS AND PEECEDENTS. NOTICE OF RETAINER AND OF APPEARANCE FOR DEFENDANT BY AN ATTORNEY. ' New Yoek Supreme Coukt. County of New Yoek. John Doe et al., vs. Richard Eoe et al., Plaintiflfs, Defendants. Notice of Appearance. Please to take notice, that I have been retained by and hereby appear for William Cole, one of the defendants in the above-enti- tled action, and demand that all notices and papers herein for said defendant be served upon me at my office, No. 1 Broadway, in the borough of Manhattan, of the city of New York, State of Ne^^ York. Dated June 30, 1903, Yours, etc., HORACE LAKE, Attorney as aforesaid. To Richard Fenn, Esq., Plaintiffs' Attorney. EXTENSION OF TIME TO PIEAD. New Yoek Supreme Coubt. County of New York. John Doe et al., vs. Richard Roe et al.. Plaintiffs, Defendants. stipulation. The time for the defendant William Cole to answer the com- plaint herein is hereby extended until service by publication upon the absent defendants and the unknown defendants shall have been made, and until the twentieth day of July, 1903. Dated June 30, 1903. RICHARD FENN, EETAINEE AND NOTICE OF APPEAEANCE. 83 RETAINER AND ACKNOWLEDaMENT. Netw York StrPBEMB Couet. County of New York. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. " Retainer. I hereby retain Roger Lee, Esq., attorney and counsellor at law of the borough of Manhattan, of the city of ISTew York, county and State of 'New York, to appear for and represent me in the above-entitled actioii. Dated June 20, 1903. VICTORIA ROE. State of New Yoek^ County of New York, On this twentieth day of June, 1903, before me personally ap- peared Victoria Roe, to me known, and known to me to be the individual who executed the foregoing retainer and acknowledged to me that she executed the same for the purpose therein men- tioned. DANIEL LANE, Notary Public. NOTICE OF RETAINER AND OF APPEARANCE. New Yoek Supebmb CotnaT. County of Neiw Yoek. John Doe et al.. vs. Richard Roe et al.. Plaintiffs, Defendants. Notice of Appearance. Please to take notice, that I have been retained by and hereby appear for Victoria Roe, a defendant in the above-entitled action. 84 FOKMS O'lf PLEADINGS AND PRECEDENTS. as the widow of Henry Roe, deceased, a son of William Roe afore- said, and demand that a copy of the complaint and of all notices and papers herein for said defendant be served upon me at my office, No. 3 Main street, in the borough of Manhattan, of the city of ISTew York, State of 'Neyf York. Dated June 23, 1903. Yours, etc., ROGER LEE, Attorney as aforesaid. To Richard Eenn, Plaintiffs' Attorney. PETITION FOR PROBATE OF WILL OF HELEN ROE COLE TO SURROGATE OF MERGER COUNTY, NEW JERSEY. Meecee County, Suebogate''s Office. In the Matter of the Probate of the Alleged Will of Helen R. Cole, De- eeased. On Petition for Proiate. Petition. \ To , Esq., Surrogate of the county of Mercer. The petition of William Cole, of the city of Trenton, State of New Jersey, respectfully shows : I. That Helen R. Cole, late of the city of Trenton, county of Mercer, State of E'ew Jersey, the wife of your petitioner, departed this life on the second day of March, 1898, and that ten days and more have elapsed since her said death, and that no caveat against the proof of her alleged will has been filed in this office, and that prior to her death the said Helen R. Cole made and executed a paper writing purporting to be her last will and testa- ment, and that your petitioner, William Cole, is named therein as the sole executor thereof. II. Your petitioner further shows that the said Helen R. Cole left her surviving her husband, your petitioner, and her son, Richard Roe Cole, her only child and her only next of kin and heir at law. She left her surviving no other child and no descendant of any deceased child; that your petitioner resides in the city of Trenton aforesaid, and that said child, Richard Roe Cole, is of PKOOF OF FOREIGN WILL FOE EECOKD. 85 fTill age and resides with your petitioner at your petitioner's ad- dress aforesaid. III. Your petitioner, therefore, prays that the said writing be admitted to probate as and for the last will and testament of said Helen E. Cole, deceased, and that letters testamentary thereon be granted to him. Dated, Trenton, New Jersey, March 13, 1898. WILLIAM COLE. State of New Jersey, "1 Mercer County, ^ j ss.. William Cole, being duly sworn, according to law upon his oath deposes and says that he is the petitioner in the foregoing petition named, and that the matters and things therein contained are true to the best of his knowledge and belief. WILLIAM COLE. Subscribed and sworn to this thirteenth day of March, 1903, at Trenton, county aforesaid, before me. Surrogate of the county of Mercer, N. J. WILL OF HELEN EOE COLE. The last will and testament of Helen Roe Cole. 1. Helen E. Cole, wife of William Cole, of the city of Trenton, Mercer County, N. J., being of sound mind and good memory, but mindful of the uncertain tenure of this life, and desiring that after my death the property of which I shall have died possessed be disposed of as hereinafter directed, do make, publish and de- clare this my last will and testament, that is to say : I give and bequeath unto my husband, William Cole, all of my personal property contained in our residence, and money that shall then be on deposit in the Trenton Institute for Savings of the city of Trenton, N. J. 2. I give, devise and bequeath to my only child, Richard Ros Cole, the remainder of my property, both goods and chattels, rights and credits, lands, tenements and hereditaments, to his own use forever. 3. I nominate and request the appointment of my husband, 86 FOEMS OiF PLEADINGS AND PEECEDENTS. William Cole, as executor of this my last will and testament. I hereby revoke all former wills by me made. In witness whereof, I have hereto set my hand this third day of January, one thousand eight hundred and ninety-eight. HELEN K. COLE. The foregoing instrument was signed on the day of the date thereof by Helen E. Cole, the testatrix therein named, in our presence, and she at the same time published and declared the same to be her last will and testament, we three being present a.t the same time, and she thereupon requested each of us to witne,^ the same as such, and at her request and in her presence and in the presence of each other we have at the same time subscribed our names thereto as subscribing witnesses. Eavmond Cole, residing at No. 3 Pennington avenue, Trenton, K J. Sydney Hale, residing at No. 500 Stockton avenue, Trenton, K J. ''\ss. FBOOFS OF WnX OF HELEN EOE COLE TAKEN BY SUBRO- GATE OF UERCER COUNTY, NEW JERSEY. State of New Jbbset, Mercer County. Eaymond Cole and Sydney Hale, of the city of Trenton, county of Mercer and State of New Jersey, witnesses to the within will, being severally sworn, did severally depose and say that they and each of them saw Helen E. Cole, the testatrix therein named, sign the same, and heard her publish, pronounce, and declare the within writing to be her last will and testament, and that at the doing thereof the said testatrix was of sound and disposing mind, memory, and understanding as far as these deponents know and as they and each of them verily believe, and that each of them signed his name as witness to the said will in the presence of the testatrix and in the presence of each other at the same time as the execution and publication of said will by said testatrix, and at her request. EAYMOND COLE, SYDNEY HALE, Subscribed and sworn to at the city of Trenton, county aforesaid, this thirteenth day of March, one thou- sand eight hundred and ninety- ei^t, before me. gvw.r.n-ofo peoof of fokeign will foe eecoed. 87 State of New Jersey, "1 >SS ' Mercer County. J "William Cole, sole executor of the within testament named, be- ing duly sworn, did depose and say that the within instrument contains the true last wiU and testament of Helen K. Cole, the testatrix therein named, deceased so far as he knows and as he verily believes, and that he will well and truly perform the same by paying first the debts of said deceased and then the legacies of the said testament specified so far as the goods, chattels, and credits of the said deceased can thereunto extend and the law charge him, and that he will make and exhibit into the Surrogate's office, of the county of Mercer, at Trenton, a true and perfect inventory of all and singular, the goods, chattels, and credits of the said de- ceased that have or shall come to his knowledge or possession or to the possession of any other person or persons for his use, and render a just and true account when thereunto lawfully required. WILLIAM COLE. Subscribed and sworn to at the city of Trenton, county aforesaid, this thirteenth day of March, one thou- sand eight hundred and ninety- eight, before me. Surrogate. ORDER OF SURROGATE OF MERCER COUNTY, ITEW JEMEY, ADMITTING WILL TO PROBATE AND APPOINTING EXECU- TOR THEREOF. Meeceb Cottntt, Sueeogate's Office. In the Matter of the Probate of the Alleged Will of Helen K. Cole, Deceased. Order Admitting Will to Probate. On reading and filing the petition of William Cole for probate of the last will and testament of Helen K. Cole, deceased, and for letters testamentary thereon, and the surrogate having en- quired into the circumstances and taken proof and being satis- fied of the eenuineness of the will produced, and the validity of 88 POEMS OF PLEABINGS AND PEECEDEWTS. its execution, and the competency of the testatrix, and it further appearing that the said testatrix died more than ten days ago, and that no caveat has been filed against the probate of said will; It is on this thirteenth day of March A. D. one thousand eight hundred and ninety-eight, ordered and adjudged that the instru- ment offered for probate in this matter be and the same hereby is established as the last will and testament of Helen K. Cole, de- ceased, and that the same be and hereby is admitted to probate. And it is further ordered that letters testamentary be issued thereon to William Cole the executor named in said will. Surrogate. CEETIFICATE OF SURROGATE OF MERCER COUNTY, CER- TIFYING THAT COPY OF WILL IS TRUE COPY, AND THAT EXECUTOR THEREIN NAMED PROVED THE SAME AND IS AUTHORIZED TO ADMINISTER THE ESTATE. State of New Jeeset, , yss ' Mercer Countv. ■}' I, J. W. C, surrogate of the county of Mercer, do certify the annexed to be a true copy of the last will and testament of Helen R. Cole, late of the county of Mercer, deceased, and that William Cole, of the city of Trenton, county aforesaid, the executor therein named proved the same before me, and is duly authorized to take upon himself the administration of the estate of the tes- tatrix agreeably to the said will. Witness my hand and seal of office the thirteenth day of [l. s.j March in the year of our Lord eighteen hundred and ninety-eight. J. W. C. Surrogate. PEOOF OF FOREIGN WILL FOE BECOED. 89 CERTiriCATE OF THE SURROGATE OF MERCER COUNTY TO COPIES OF WILL, APPLICATION FOR PROBATE, PROOFS, ORDER GRANTING PROBATE, LETTERS TESTAMENTARY, AND RECORDS, ON APPLICATION TO ADMIT THE WILL FOR RECORD IN THE STATE OF NEW YORK. State of New Jeeset, 1 Mercer County. J 1, J. W. C, surrogate of the county of Mercer, do certify that I have compared the foregoing copy of the last will and testament of Helen Roe Cole, late of the county of Mercer, deceased, and the foregoing copies of the application for probate of the proofs of the order of the surrogate, granting the probate of the said will and of the letters testamentary granted and issued thereon with the records thereof remaining in this oiEce, and that the same are correct transcripts thereof. In testimony whereof, I have hereunto set my hand and [l. S.J affixed my seal of office this twenty-third day of May in the year of our Lord nineteen hundred and three. J. W. C, Surrogate. CERTIFICATE OF THE GOVERNOR OF NEW JERSEY TO THE CERTIFICATE OF THE SURROGATE OF MERCER COUNTY. State of New Jeesey, ] rSS ' Executive Department, J I, F. M., Governor of the State of New Jersey, having the custody of the great and principal seal of said State, do hereby certify that the surrogate of said county of Mercer at the time of the application, proofs and order for probate of the will and testament of said Helen Roe Cole, deceased, and of the granting of said letters testamentary thereon was duly authorized by the laws of the State of New Jersey to admit said will to probate and to grant said letters testamentary thereon, and to grant letters of administration upon the estates of intestates and to grant letters of guardianship, etc., in uncontested cases. That the records of the said will, application, proofs, and order for probate and letters testamentary of the said will of Helen Eoe Cole, deceased, copies of which are hereimto annexed and 90 FORMS O'F PLEADINGS AND PEECEDENTS. authenticated are kept in tlie office of said surrogate, pursuant to the laws of this State. That the exemplified copy hereto annexed is in due form and by the proper officer. That the seal appended thereto is genuine and is the seal of said surrogate and that the signature thereto written and attesting said copy is genuine as I verily believe. In testimony whereof, I have hereunto set my hand and caused the great seal of the State of New Jersey to be hereunto aifixed at the city of Trenton in said [li. s._l State, this twenty-fifth day of May in the year of our Lord nineteen hundred and three, and of the inde- pendence of the United States, the one hundred and twenty-seventh. F. M. Governor. Bt the Goveenoe : S. D. D. Secretary of State. PETITION TO THE SITRROGATE'S COURT OF TEE COUNTY OF NEW YORK TO ADMIT FOREIGN WTU FOR RECORD IN THIS STATE. Sueeogate's Cottet. County of New Yoek. In the Matter of filing for record an exemplification of the Will of Helen R. Cole, late of the city of Trenton, county of Mercer, State of New Jersey, deceased. >■ Petition. To the Surrogate's Court of the county of New York : I. The petition of Eichard E. Cole, residing at the city of Trenton, State of New Jersey, respectfully showeth, that your petitioner is a devisee in the last will and testament of said de- ceased. PBOOF OF FOOBEIGN WILL FOE EECOED, 91 II. That said deceased was at the time of her death a resident of the city of Trenton, county of Mercer, and State of New Jersey, and departed this life in said city of Trenton on the second day of March, 1898, leaving real property or an interest in real prop- erty situated within this county, to wit: An undivided interest in two certain lots of land with the dwellings thereon erected situate on the southerly side of Fennimore street two hundred feet easterly from the easterly side of C'ooper avenue and known as Nos. 18 and 20 Fennimore street which is devised to your petitioner, her only child, by the said will of said deceased. III. That said will was duly executed in conformity with the laws of this State. IV. That on the thirteenth day of March, 1898, the said will of said deceased was admitted to probate within the State where the deceased so resided as aforesaid. V. That said will is recorded in the office of the surrogate of Mercer county, New Jersey, aforesaid, the same being the proper office as prescribed by the laws of said State of New Jersey, and that the record of said will, with the proofs and the records thereof, remains in said surrogate's office. YI. That your petitioner herewith presents a copy of such will, proofs, and records prepared and exemplified as prescribed by Sections 2703 and 2704 of the Code. Vll. That no previous .application herein has been heretofore made to this court. Vm. Your petitioner therefore prays that a decree may be signed by the surrogate of this court, directing that said copies be filed and recorded in his office. Dated, New York City, May 27, 1903. EICHAED K COLE, Petitioner. CotTNTT AITD StATE OF NeW YoEK, SS. ." Richard Eoe Cole, the petitioner named in the foregoing peti- tion, being duly sworn, deposes and says that he has read the fore- going petition subscribed by him and knows the contents thereof ; and that the same is true of his ovra knowledge, except as to the blatters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn, etc. EICHAED EOE COLE, Petitioner. 92 FOBMS OF PLEADINGS AND PEECEDENTS. DECIIEE ADMITTING TOREIGN WILL FOE RECORD IN THIS STATE. At a Surrogate's Court held in and for the county of New York, State of New York, at the Surrogate's office, in the city of New York on the 28th day of May in the year 1903. Present: Hon. A. B. T., Surrogate. In the Matter of filing for record an exemplified copy of the Will and Proofs of Helen Eoe Cole, late of the city of Trenton, county of Mercer, State of ISTew Jersey, de- ceased. On reading and filing the petition of Eichard Roe Cole, of the 3ity of Trenton, county of Mercer, and State of New Jersey, veri- 3ed the twenty-seventh day of May, 1903, and the accompanying exemplified copy of said will and the judgment, decree, or order admitting said will to probate and of the proofs It is ordered and decreed, that the exemplified copy of said will and of the judgment, decree, or order admitting said will to pro- bate, and of said proofs and all . certificates and authentications attached together with said petition be recorded in this office as of the date of this decree. A. B. T. Surrogate. AFFIDAVIT TO OBTAIN OKDEE TO AMEND PAPEaRS. 93 AFFIDAVITS FOR ORDER AMENDING SUMMONS, COMPLAINT, AND THE OTHER PAPERS. Nbw Yoke Supebme Court. County of New York. John Doe et al., vs. Eichard Roe et al.. Plaintiffs, Defendants. >- Affidavit State of New Yoek. 1 County of New York, J I. Eichard Fenn, the plaintiffs' attorney herein, being duly sworn, deposes and says that the proceeduiga in this action which has been brought for the partition of real property, situated in the county and State of New York, are as follows: The verified com- plaint and notice of the pendency of this action have been filed and the summons herein has been filed and served personally or by publication on all of the defendants. II. That all of the defendants have appeared herein by their respective attorneys other than the infant defendants, who have appeared herein by Charles Kent, Esq., their guardian ad litem, and that Eoger Lee, an attorney of this court, has appeared for the unknown defendant, Mrs. Henry Koe, namely Victoria Eoe, the widow of said Henry Eoe, deceased, and there has been no appearance for any other unknown owner. III. That none of said defendants have answered. That no further proceedings have been had herein. IV. And deponent further says that among the parties de- fendants in the original summons and complaint and other papers herein, were the following named unknown parties : Mrs. Henry Eoe, widow of Henry Eoe, deceased, the heirs, devisees, and next of kin of said Henry Eoe, deceased, their respective wives, if any, the respective widows, surviving husbands,heirs, devisees, executors and administrators of deceased heirs, devisees, and next of kin, if any, of Henry Eoe, deceased, the executor or administrator of the estate of said Henry Eoe, deceased, if any, and every other person 94 FOEMS OF PLEADINGS AND PEECEDENTS. otherwise having an interest in real property of Henry Eoe, de- ceased, and the summons herein was served as to them by publica- tion pursuant to an order on file herein, of the sixteenth day of May, 1903, of the Honorable James Bronson, one of the justices of this court. V. And deponent further says that said Victoria Eoe has ap- peared herein as the widow of said Henry Roe, deceased, by Eoger Lee, Esq., as her attorney, and that her said attorney and the attorney of all of the othe'r defendants herein,' except the infant defendants who appear by guardian ad litem, have consented to the amendment of the summons and complaint and all other papers herein in their title, and the complaint in the seventh paragraph thereof, as stated in said consent hereto annexed, and that due notice of this application has been served upon the guardian ad litem of the infant defendants as appears by said notice and proof of service thereof hereto annexed. That no other application for the order applied for hereon has been made to any other court or judge. Sworn, etc. RICHARD FEKN". New Yoek Supeeme Cottet. County of New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe et al., Defendants. State of New Yoek, 1 >ss ' County of New York, J Affidamt. I. Victoria Roe, of full age, one of the defendants in the above-entitled action, described as Mrs. Henry Roe, being duly ?wom, deposes and says: That on the first day of June, 1903, at Southampton, England, she saw the summons and notice of the object of this action advertised in the New York Herald and that AFFIDAVIT TO OBTAIN OEDEB AMENDING PAPERS. 95 afterward on the tenth, day of June, 1903, she sailed from Southampton for the city of New York, arriving here on the seventeenth day of June, 1903, and that she thereupon retained as her attorney in this matter, Eoger Lee, Esq., counsellor at law. II. The deponent further says that on the first day of Novem- ber, 1902, at the city of Melbourne, in the colony of Victoria, Australia, she intermarried with Henry Roe, a son of William jRoe, deceased, and the same person mentioned in the complaint filed herein, which complaint this defendant has read. III. That said marriage ceremony was performed at the time and place aforesaid by the Reverend John W. Brook at his residence there, No. 3 Charles street, and that upon the com- pletion of the marriage ceremony, a certificate of the mamage was then and there made out by the said minister and signed by him and two witnesses present, namely, William Jones and Thomas Brooks, which certificate deponent now has here with her. IV. That on the tenth day of December, 1902, this defendant left Melbourne, Australia, on a visit to her parents in- Southamp- ton, England, intending to return after a visit there of three months. That during this defendant's absence in England on said visit and on the third day of January, 1903, her said husband, Henry Roe, died suddenly at the city of Melbourne, aforesaid, intestate. That this defendant claims a dower interest in an un- divided one-eighth of said real property and of the rents and profits thereof as the widow of said Henry Roe, deceased. V. That there has been no child bom and none begotten of said marriage. Sworn, etc. VICTORIA ROE. 96 FOEMS OF PLEADIITGS AlfD PEECEDENTS. C0N1SENT TO OEDEB AMENDDTG SUILMONS, COKPLAINT, AND OTHER PAPERS. Supreme Court of New York. County of New York. John Doe et al., vs. Eichard Roe et al., Plaiatiffs, Defendants. ^ Consent that Papers be Amended. I. We hereby consent that the summons, complaint, and all other papers herein be amended in their title, by an order to be entered without notice to us as follows : By striking out the following words : " Mrs. Henry Roe, widow of Henry Eoe, deceased, the heirs, devisees and next of kin of said Henry Roe, deceased, their respective wives, if any, and the re- spective widows, surviving husbands, heirs, devisees, executors and administrators of deceased heirs, devisees, and next of kin, if any, of Henry Roe, deceased, the executor or administrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, de- ceased; the names of the said heirs, other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, devisees, executors and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them, that the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin or wife thereof or widow or surviving husband or heir or devisee or executor or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate," and inserting therein the following: "Victoria Roe, widow of Henry Roe, deceased," and by erasing the seventh paragraph and inserting a new seventh paragraph to read as follows : II. " That the said Henry Roe, on or about the third day of January, 1903, at the city of Melbourne, colony of Victoria, OOKSSKT TO OBDEK AMBNDINO PAFISS. 97 Austr&Iia, died intestate, seized and possessed in fee simple absolute of his undivided share and interest in said real property, leaving him surviving his widow, Victoria Roe, of full age, and leaving him surviving no issue bom or begotten of his marriage and leaving as his only heirs at law, the said John Doe, Eichard Roe, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Mary Roe Jones, Richard Roe Cole, and Henry Stiles, Jr., who are parties hereto. " That no letters testamentary or of administration upon his estate have been granted in this State, and that he left no per- sonal property in this State." And amending the eleventh paragraph thereof as follows : By inserting in subdivision " j " immediately after the words " respective interests aforesaid," the followiag words, " subject to the dower therein of said defendant, Victoria Roe, aa the widow of said Henry Roe, deceased; and by adding a new subdivision designated " k " to read as follows : " k. That said defendant, Victoria Roe, is seized of and entitled to dower in an undivided one-eighth of said real property, as the widow of said Henry Roe, deceased," and changing the present "k"to"l." Dated June 3Q, 1903. SYDNEY GRAY, Attorney for Defendants Mary Roe Jones, and others. MILTON MORRIS, Attorney for Defendants Richard Roe and Isabel Roe. HORACE LAKE, Attorney for Defendants Henry Stiles, individually, etc., and William Cole. ROGER LEE, Attorney for Defendant Victoria Roe. 98 FORMS OF PLEADINGS AND PEECBDEJSITS. OEDEa TO SHOW CAUSE WHY SUMMONS, COMPLAINT AJID OTHEB PAPERS SHOULD NOT BE AMENDED. Supreme Couet of New York. County of New York. John Doe et al., vs. Richard Eoe et al., Plaintiffs, Defendants. >■ Order to Show Caate. I. On the affidavits herein of Richard Fenn, the plaintiffs' at- torney of the first day of July, 1903, and of Victoria Roe of the thirtieth day of June, 1903, and the papers filed and the pro- ceedings herein, it is on motion of Richard Fenn, of counsel for the plaintiffs, II. Ordered, That the defendants show cause, if any there be, before me or one of the justices of this court at a Special Term, part thereof, to be held at the New York County Court House, in the borough of Manhattan, of the city of New York, on the sixth day of July, 1903, at 10 :30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, why an order should not be made amending the summons, complaint and all the papers herein in their title, as follows : By striking out the following words: " Mrs. Henry Roe, widow of Henry Roe, deceased, the heirs, devisees and next of kin of said Henry Roe, deceased, their respective wives, if any, and the respective widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, of Henry Eoe, deceased, the executor or administrator of the estate of said Henry Roe, deceased, if any, and every other person otherwise having an interest in real property of Henry Roe, de- ceased; the names of the said heirs, other than parties hereto, devisees, next of kin, wives, widows, surviving husbands, heirs, devisees, executors, and administrators of deceased heirs, devisees, and next of kin, if any, and widow, if any, of said Henry Roe, deceased, and the executor or administrator, if any, of his estate, are unknown to the plaintiffs, and it is not known to them that OEDER TO SHOW CAUSE. 99 the said Henry Roe left him surviving any widow or any devisee or heir, other than parties hereto, next of kin or wife thereof or widow or surviving husband, or heir, or devisee, or executor, or administrator of a deceased heir, devisee, or next of kin, or that there is any executor, administrator, or personal representative of his estate," and inserting therein the following : *' Victoria Eoe, widow of Henry Koe, deceased," and by erasing the seventh para- graph and inserting a new seventh paragraph to read as follows : III. " That the said Henry Eoe, on or about the third day of January, 1903, at the city of Melbourne, colony of Victoria, Australia, died intestate, seized and possessed in fee simple absolute of his undivided share and interest in said real property, leaving him surviving his widow, Victoria Eoe, of full age, and leaving him surviving no issue bom or begotten of his marriage, and leaving as his only heirs at law, the said John Doe, Eichard Roe, James Eoe, Edwin Eoe, Thomas Eoe, Marie Eoe, Mary Eoe Jones, Eichard Eoe Cole, and Henry Stiles, Jr., who are parties hereto. That no letters testamentary or of administration upon his estate have been granted in this State, and that he left no personal property in this State." And amending the eleventh paragraph thereof as follows : By inserting in subdivision " j " immediately after the words " respective interests aforesaid," the following words, " subject to the dower therein of said defendant, Victoria Eoe, as the widow of said Henry Eoe, deceased;" and by adding a new subdivision designated " k " to read as follows : IV. " k. The said defendant, Victoria Eoe, is seized of and en- titled to dower in an undivided one-eighth of said real property as the widow of said Henry Eoe, deceased," and by changing the present " k " to " 1." V. Service of this order on or before the fifth day of July, 1903, shall be sufficient. Dated July 2, 1903. JAMES BEON-SON", J. S. 0. Due service of the foregoing order to show cause is hereby ad- mitted. Dated July 2, 1903. CHAELES KEKT, Guardian ad litem for the infant Defendants Edwin Roe et al. 100 FOEMS OF PLEADINGS AND PKECEDEHTS. OBDER OF THE COTJBT THAT STJHMONS, COICPLAIITT AXD FAPEES BE AJULENBED. At a. Special Term of the Supreme Court of the Stat© of New York, Part — , held in and for the county of New York, at the County Court House in the borough of Manhattan, city of New York, on the sixth day of July, A. D., 1903. Present: Hon. James Bronson, Justice. John Doe and Jeannette Doe, his wife. vs. Richard Roe et al., Plaintiffs, Defendants. ^ Order Amending Papers. The order to show cause, if any there be, why the summons, complaint and other papers herein should not be amended in their title, and why the complaint should not be amended in the serm^ and eleventh paragraphs thereof, coming regularly on to be heard upon due service thereof upon the guardian ad litem for the infant defendants, the attorneys of all of the other defendants consenting thereto, now upon reading and filing the affidavit of Richard Fenn, the plaintiffs' attorney, made on the first day of July, 1903, and the affidavit of Victoria Roe, made the thirtieth day of June, 1903, and the consent of the attorneys of all of the adult defendants to the making of this order, and upon the sum- mons, pleadings, papers and proceedings herein and no objection to this order being made, and it appearing that this order is in the furtherance of justice, it is on motion Amended Complaint. AMENDED COMPLAINT. Supreme Court of New Yoex. County of New York. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Eichard Roe and Isabel Roe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually, and as sole adminis^ trator of the goods, etc., of Frances Roe Stilea. deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased, Defendants. The plaintiffs, by Richard Fenn, Esq., their attorney, respect- fully show unto this honorable court, upon information and be- lief : {a) When the name becomes known an order must be made by the court upon such notice and terms as it prescribes that the proceedings already taken be deemed amended by the insertion of the true name in place of the fictitious name, or the designation as an unknown person and that all subsequent pro- oeedingB be taken under the true name. Code , S 451. AMENDED COMPLAINT. 103 First. That William Roe heretofore and on or about the first day of July in the year, A. D., 1890, was seized in fee simple absolute and possessed of certain real property situated in the city, county, and State of New York, and that the said William Roe thereafter and on or about the first day of July, 1890, at said city of New York, died intestate, so seized and possessed of the Haid real property, of which the following is a more particular description, viz. : All that certain piece or parcel of land and premises situate in the borough of Manhattan, of the city of New York, county and State of New York, and which may be more particularly described as follows : Commencing on the southerly side of Fennimore street distant easterly two hundred feet from the easterly side of Cooper ave- nue, and from thence running southerly parallel with said Cooper avenue one hundred feet to the centre line of the block; thence running easterly along said centre line of the block and parallel with said Fennimore street fifty feet to a point ; thence running northerly parallel with said Cooper avenue one hundred feet to said southerly side of Fennimore street; thence running westerly along said southerly side of Fennimore street fifty feet to the place of beginning. That there are two dwelling houses erected on said land, each of the dimension of twenty-five feet in vndth by sixty feet in depth, and each erected on a lot of land, twenty-five feet wide by one hundred feet deep, the one is known as No. 18, and the other as No. 20 Fennimore street. Second. That the said William Roe left him surviving, his widow, Florence Roe, and the following named children : Richard Roe, Charles Roe, Frances Roe Stiles, wife of Henry Stiles, Mary- Roe Jones, wife of Henry Jones, James Roe, Henry Roe, and Helen Roe Cole, wife of William Cole, and his grandchild, John Doe, the only child of his deceased daughter Ruth, who had died intestate, and who had married Thomas Doe, who was also de- ceased, his only heirs at law. He left him surviving no other child and no other descendant of any deceased child, and that letters of administration upon his estate were granted to Charles Doe by the Surrogate's Court of the county of New York, on the thirteenth day of July, 1890. And that said administrator thereafter filed his account in the ofiice of the surrogate of said county of New York, on the 104 FOEMS OF PLEADINGS AND PEECEDENTS. thirtieth day of July, 1891, and the same were judicially settled by decree of said Surrogate's Court, dated September tenth, 1891, That said admiaistrator had then paid all of the debts of said William Roe, deceased. Third. That thereafter and on or about the first day of July, 1901, the said widow, Florence Roe, died at the said city of New York. That her dower had never been set off to her, and that she remained in possession of said real property and of the rents thereof from the death of said William Roe until her own death, and that she was allowed to and did appropriate the same to her own use. That the said plaintiff, John Doe, is married, and that. his wife's name is Jeannette. That the said defendant, Richard Roe, is married, and that his wife's name is Isabel. That the said Charles Roe died at said borough of Manhattan, of the city of New York, county of New York, intestate, and seized and pos- sessed in fee simple absolute of his undivided share and interest in said real property, on or about the tenth day of April, 1901, leav- ing him surviving his vsddow, Ethel Roe, and three children, namely, Edwin Roe^ Thomas Roe, infants over fourteen years of age, namely, of the age of fifteen years and seventeen years respec- tively, and Marie Roe, an infant under fourteen years of age, namely, of the age of seven years, his only heirs at law. He left him surviving no other child and no descendants of any deceased child. That letters of administration were granted upon his- es- tate by the Surrogate's Court of the county of New York, on the twentieth day of May, 1901, to Ethel Roe, his widow, who on the same day qualified as such. Fourth. That the said daughter, Frances Roe, heretofore and on the first day of July, 1880, married the defendant Henry Stiles, and thereafter and on the third day of May, 1895, died at said city of New York, intestate, and seized and possessed in fee simple absolute of her undivided share and interest in said real property, leaving her surviving her said husband, Henry Stilesj and one child, Henry Stiles, Jr., then fourteen years of age, her only heir at law. She left her surviving no other child and no descendant of any deceased child. That thereafter and on the third day of June, 1895, the said Henry Stiles was appointed administrator of the rights; credits, goods, and chattels which were of said Frances Roe Stilesj de- ceased, by a decree of the Surrogate's Court of said county, of New York, made and filed on that day, and that her estate baa AMENDED COMPLAINT. 105 been judicially settled by a decree of the Surrogate's Court of the county of New York, and all of her debts have been paid. Fifth. That the said Mary Roe, heretofore and on or about the first day of July, 1897, married Williani Jones, both of whom are living. Sixth. That the said Helen Roe, on or about the seventh day of May, 1878, married William Oole, and that thereafter and on or aJbout the second day of March, 1898, she died testate at the city of Trenton, in the county of Mercer, State of New Jersey, wh€re she and the said "William Oole then resided, seized and possessed in fee simple, absolute of her undivided share and inter- est in said real property, and leaving a last will and testament, which was duly proved before the surrogate of the county of Mercer, State of New Jersey, on the thirteenth day of March, ] 898j that she left her surviving her husband, said William Cole, and her only child, Eichard Roe Cole, and that in and by said last, will and testament, which was executed in conformity with the statutes of this State for the passing by devise of land situate in this State, she devised all of her share, right, title, and interest, in said real property to her said child, Richard Roe Cole. That said surrogate of the county of Mercer, upon the proof of said will, as aforesaid, and on said thirteenth day of March, 1898, appointed the said William Cole the sole executor of said last will and testament of said Helen Roe Cole, deceased. That: the said last will and. testament has not been proved in this State, and that no letters testamentary or of administration! upon hen estate have been granted in this State. Seventh. That the said Henry Roe, on or about the third day of" January, 1903, at the city of Melbourne, colony of Victoria, iihi^ralia, died intestate, seizedr and: possessed in fee simple absolute of his undivided share and interest in said real property, leaving him surviving his widow, Victoria Roe, of full age^ and leaving him surviving no issue bom or b^otten of his marriage, and leaving as his only heirs at law, the said John Doe, Richard Roe, James Roe, Edwin Roe, Thomas Roe, and Marie Roe; Mary Roe Jones, Richard Roe Colej and Henry Stiles, Jr., who are parties hereto. That no letters testamentary or of administration upon his estate, have been, granted in this State, and that he left no personal property in this State. Eighth. That the aforesaid plaintiffs and defendaaits are pos- seseed of said real property, and are seized thereof in fee simple; 106 POEMS 0F PLEADINGS AND PRECEDENTS. absolute, and that they are the only persons having any right, title, estate, or interest in or lien upon the said real property, and that the said real property is the only real property owned by them as tenant in common in the State of New York, and that the same is so situated that it ia not susceptible of an actual partition among the several ovsmers thereof. Ninth. That none of the parties to this action has conveyed away his or her share or interest in said real property or in any part thereof. Tenth. That immediately upon the death of said Florence Roe, the said defendants Henry Stiles, took possession of all the said real property herein mentioned and of the rents and issues there' from and applied the same to his own use, and that he has ever since remained in the sole possession thereof and in receipt of the rents and issues therefrom and has continued to retain the same to his own use. Eleventh. That the rights, shares, and interests, of the several parties, in said real property, held by them in common as afore- said, are respectively as follows : a. The said plaintiff, John Doe, is seized in fee simple absolute and is entitled to the possession of an one-eighth thereof, as an heir at law of said William Roe, deceased, subject to the inchoate right of dower therein of his wife, the plaintiff Jeannette Doe. b. The said defendant, Richard Roe, is seized in fee simple ab- solute and is entitled to the possession of an one-eighth thereof, as an heir at law of said William Roe, deceased, subject to the in- choate right of dower therein of his wife, the defendant, Isabel Roe. c. The said defendant, James Roe, is seized in fee simple ab- solute and is entitled to the possession of an one-eighth thereof, as an heir at law of said William Roe, deceased. d. The defendant, Mary Roe Jones, is seized in fee simple ab- solute and is entitled to the possession of an one-eighth thereof, as an heir at law of said William Roe, deceased. e. The said Richard Roe Cole, is seized in fee simple absolute and is entitled to the possession of an one-eighth thereof, as dev- isee of his said mother, Helen Roe Cole, deceased, who was an heir at law of said William Roe, deceased. f. The said defendants, Edwin Roe, Thomas Roe, and Marie Roe, are each seized in fee simple absolute and entitled to the pos- session of an one twenty-fourth thereof, as an heir at law" of said AMEITDED COMPLAINT. 107 Charles Eoe, deceased, who was an heir at law of said William Eoe, deceased, subject to the dower therein of their said mother, Ethel Eoe. g. The said defendant, Ethel Eoe, is seized of and entitled to a dower interest in an undivided one^eighth thereof, as the widow of said Charles Eoe, deceased. h. The said defendant, Henry Stiles, Jr., is seized in fee simple of an one-eighth thereof, as the only heir at law of his said de- ceased mother, Frances Eoe Stiles, who died intestate, and who was an heir at law of said William Eoe, deceased, subject to the estate of curtesy therein of his father, said defendant,' Henry Stiles. i. The said Henry Stiles is seized of and is entitled to the pos- session during his life of an one-eighth thereof as tenant by the curtesy of his said deceased wife, Frances Eoe Stiles, who died intestate, seized and possessed thereof in fee simple absolute. j. That the said plaintiff, John Doe, and the said defendants, Eichard Eoe, James Eoe, Mary Eoe Jones, Eichard Eoe Cole, Henry Stiles, Jr., Edwin Eoe, Thomas Eoe, and Marie Eoe, are seized in fee simple absolute and entitled to the possession of an undivided one-eighth of said real property, as the heirs at law of said Henry Eoe, deceased, who was an heir at law of said William Eoe, deceased, in addition to their respective interests aforesaid, subject to the dower therein of said defendant, Victoria Eoe, as the widow of said Henry Eoe, deceased, in the following propor- tions : John Doe, an one-seventh, subject to the inchoate right of dower therein of his wife, the plaintiff Jeannette Doe. Eichard Eoe, an one-seventh, subject to the inchoate right of dower therein of his wife, the defendant Isabel Eoe. James Eoe, an one-seventh. Mary Eoe Jones, an one-seventh. Eichard Eoe Cole, an one-seventh. Henry Stiles, Jr., an one-seventh. Edwin Eoe, an one-twenty-first. Thomas Eoe, an one-twenty-first. Marie Eoe, an one-twenty-first. k. That the said defendant, Victoria Eoe, is seized of and enti- tled to a dower in an undivided one-eighth of said real property, as the widow of said Henry Eoe, deceased. 1. That the said defendant, William Cole, is not entitled to 108 FOBMS OV FLSADIKOS AND PSXCEDJUSTB. a tenancy by the curtesy in the ahare which was of hia said wif ey nor any share or interest in said real property. Twelfth. And the plaintiffs further show that there is no in- terest or ownership in said real property other than as above set forth, and that there ia no general and no specific lien or en- cumbrance upon the real property herein mentioned, except two leases thereon, which- will expire on the first day of May, 1904, nor is there any specific lien appearing of record, upon the un- divided share of any party to this action, nor any lien thereon, except the liability of said defendant, Henry Stiles, to account for said rents received by him, which is a lien on his shaxe or in- terest in said real property, in favor of all parties who are entitled to share in said rents. Wherefore, the plaintiffs demand judgment for a partition and division of said real property according to the respective rights of said parties, or if a partition thereof cannot be made without great prejudice to the owners thereof, then for a sale of said real property and a division of the proceeds between the parties ac- cording to their respective rights and interests, and for an account- ing by the said defendant, Henry Stiles, of the rents and issues of said premises at and from the death of said Florence Koe, and a division thereof between the parties hereto according, to their respective interests therein, and that in the meantime a receiver of the rents and issues of said real property be appointed with the usual powers and duties of receivers in such cases, and that the costs and disbursements of this action be first paid out of the pro- ceeds of such salo and accounting, and that the plaintiffs have guch further or other judgment or orders as shall be meet.'** RICHARD YEKSi, Plaintiffs' Attorney. Office and post-office address,, ITo. 1 Main street, borough of Manhattan, city of New York, State of New York. (Add usual verification.) (a) The complaint and the amended complaint are one pleading. Originally the amendments were made by taking the eompltiint on file and interlining the amendments in the original complaint. Thus it appeared on record as if the amerdments were in the complaint when filed; hencer it became a rule that the complaint could not be amended by the insertion of any matter tha* oreurred after the filing of the comnlaint, but that all such matters, must be brought in by a supplementary codiplaint. If the amended matter was too great to be interlined, the original complaint was re-engroesed. ADMISSION OX SEEVICE OF AMENDED COMPLAINT. 109 ADMISSION OF SERVICE OF AXEXmUD COKFLAIHT. SUPHEME COUET OF NeW YoEK. County of New Yoek. John Doe and Jeannette Doe, hia wife, Plaintiffs, vs. Kichard Eoe et al.. Defendants. Admission of Service of ^ Amended Complaint. Due service of a copy of the amended complaint didy filed herein in the office of the clerk of the county of New York, on the sixth day of July, 1903, is hereby admitted. Dated July 9, 1903. MILTON MOKEIS, Attorney for Defendants Richard Eoe et al. SYDNEY GRAY, Attorney for Defendants James Roe et al. HORACE LAKE, Attorney for Defendants Henry Stiles, etc., et al. ROGER LEE, Attorney for Defendant Victoria Roe. CHARLES KENT, Giiardian ad litem for the infant Defendants Edwin Roe et al. 110 FOBMS OF PLEADINGS AND PEECEDENTS. AMENDED NOTICE OF THE PENDENCY OF THE ACTION. SUPBEME COUET OF NeW, YoEK. CouNTT OF New Yobk. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Eichard Roe and Isabel Eoe, his wife, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, as widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually, and as sole adminis- trator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased, Defendants. ^ Amended Notice of the Pendencg of the Action, Notice is hereby given to all to whom it may concern that the complaint and the amended complaint in the above-entitled action are filed and that an action is pending by the plaintiffs and against the defendants therein named for the purpose of obtaining a par- tition and division of the premises therein described, among the owners thereof, or for a sale thereof under the direction of this court and for a division of the proceeds of such sale among such owners according to their respective rights, which premises were at the time of the commencement of this action and at the time of filing this notice situated in the borough of Manhattan, of the city of New York, county and State of New York, and are described in said complaint and amended complaint as follows: All that certain lot of land and premises situate in the borough of Manhattan, of the city of New York, county and State of New York. Commencing at a point on the southerly side of "Femiimore street, distant easterly two hundred feet from the easterly side of Cooper AMENDED NOTICE OF PENDENCY OF ACTION. Ill av«mie ; thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block; thence running easterly along said center line of the block and parallel with said Fennimore street, fifty feet to a point; thence running northerly parallel with said Cooper avenue one hundred feet to said southerly side of Fennimore street; thence running westerly along said southerly side of Feimimore street, fifty feet to the place of be- ginning. Dated July 6, 1903. MOHARD FENN, Plaintiffs' Attorney, Office and post-office address, No. 1 Main street, borough of Manhattan, city of New York, State of New York. To Thos. L. Hamilton, Clerk of the County of New York : Index the notice of the pendency of this action against the defendant Victoria Eoe, EICHARD FENN, Plaintiffs' Attorney. (Endorsed.) The land affected by the within instrument lies in section in Block , on the land map of the city of New York.'** AirSWEBS OF DTTANT DEFENDANTS. StrPEEME Co'UBT OP New York. County of New York. John Doe et al., vs. Eichard Eoe et al., Plaintiffs, Defendants. ^ Answer of Infant Defendant. The answer of Thomas Eoe, one of the defendants named in the above-entitled action, by Charles Kent, Esq., his guardian ad (a) The amended complaint verified must be filed also at the time of filing this notice. 112 FORMS OF PLBiLDINGS AND PEECBJDENTS. litem, duly appointed herein pursuant to an order of this oonrt, bearing date the eighth day of May, 1903, to the complaint herein, respectfully shows unto this court: L That he, the said Thomas Roe, is an infant within the age of twenty-one years, to wit, of the age of seventeen years, and that he, as well as his guardian ad litem aforesaid, is a stranger to all and singular the matters and things in the complaint in this action alleged, and that he claims soxch interest and estate in the i-eel property and premises described in said complaint as he may be entitled unto, and he submits his rights, interests, and estate in the matters in question herein to the protection of this court. "Wherefore, this defendant prays such judgment herein as will fully protect his rights, interests, and estate in the premises.*** CHARLES KENT, <3uardian ad litem, for the infant Defendant, Thomas Roe. SCPBEME CCUET OF Kew YoRK. County of New York. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. > Answer of Infant Defendant. The answer of Marie Roe, one of the defendants named in the above-entitled action, by Charles Kent, Esq., her guardian ad litem, duly appointed herein pursuant to an order of this court, bearing date the twentieth day of May, 1903, to the complaint herein, respectfully shows unto this court: I. That she, the said Marie Roe, is an infant within the age of twenty-one years, to wit, of the age of seven years, and fhat she, as wiell as her guardian ad litem aforesaid, is a stranger to all and singular the matters and things in the complaint in this action alleged, and that she claims such interest and estate in the (a) This answer need not be yerified. Code, | 523. A like answer by Edwin Roe. AlfSWEES OF DEFENDANTS. 113 real property and premises described in said complaint as she may be entitled unto and ste submits her rights, interests, and estate in the matters in question herein to the protection of this court. Wherefore, this defendant prays such judgment herein as will fully protect her rights, interests, and estate in the premises. OHAKLES KENT, Guardian ad litem for the infant Defendant, Marie Koe. jonrr answeb of seveilal adttlt defendants. SuPKBME Court of New Yoek. County of New York. John Doe and Jeannette Doe, his' wife, Plaintiffs, vs. Eichard Roe et al., Defendants. Joint Anatoer of Several De- fendants. The joint answer of the defendants, James Roe, Ethel Roe, widow of Charles Roe, deceased, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, Mary Roe Jones, Richard Roe Cole, and Henry Stiles, Jr., by Sydney Gray, their attorney. These defendants, answering the complaint herein, respect- fully show to this honorable court : I. They admit the first, second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, and twelfth paragraphs thereof to be true. II. They admit on information and belief the seventh para- graph to be true. III. They admit it to be true that the plaintiffs and defendants own no other real estate in common in the State of New York. SYDNEY GRAY, Attorney for Defendants aforesaid. 114 forms of pleadings and peecedents. State of New York, 1 > ss * County of New York, J Maiy Roe Jones, of full age, one of the defendants, jointly answering the complaint herein by the foregoing answer, being duly sworn, deposes and says that the foregoing answer is true of her own knowledge except as to those matters which are therein stated to be alleged on information and belief, and as to those matters she believes it to be true. Sworn to before me this MARY ROE JONES. 15th day of July, 1903. Notary Public. AHSWEB OF DEFENDANTS DENYlNa PLAINTIFFS' TITLE AND CXAHONG to own THE SEAL PSOPERTY SOXTfiHT TO BE PAETITIONED. Supreme Court of New York. County of New York. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. "" Ansioer. The defendants^ Richard Roe and Isabel Roe, by Milton Morris, their attorney, answering the plaintiffs' complaint herein, respect- fully show : I. They admit that the said William Roe was seized and pos^ sessed of the real property mentioned in the said complaint in the manner therein alleged, and that the said William Roe died intestate at the time and place alleged in said complaint, and that letters of administration were issued upon his estate, and that the said administrator's accounts were judicially settled, and that all of said William Roe's debts were paid as alleged in said complaint. A defendant's answer denying plaintiffs' title. 115 II. They deny the allegation in the said complaint that the said William Roe died seized or possessed of the said land and premises. HI. These defendants further answering admit that the said William Roe left him surviving the widow, children, and grand- child in said complaint alleged, and that he left him surviving no other child and no other descendant of any deceased chUd. rV. They admit that the said widow, Florence Roe, died at the time and place alleged in said complaint, and that they and the said John Doe are married as in said complaint alleged. V. They admit that the said Charles Roe died at said city of New York intestate, but they deny that said Charles Roe died seized and possessed of an undivided one-eighth interest in said real property as an heir at law of said William Roe, and they deny that the said Charles Roe died seized or possessed of any interest in said real property. VI. They admit that letters of administration were granted upon the goods, eta, of said Charles Roe as alleged in said com- plaint VII. They admit that the said daughter, Frances Roe, married as in said complaint alleged, and that she died intestate on the day and at the place in said complaint alleged, but they deny that she died seized and possessed of an one-eighth interest in said real property as an heir at law of said William Roe, and they deny that she died seized or possessed of any interest in said real property. They admit that she left surviving her, Henry Stiles, her hus- band, and one child, Henry Stiles, Jr., and that she left no other child and no descendant of any deceaswL child. They admit that letters of administration upon the goods, etc., which belonged to her were granted to said Henry Roe as alleged in said complaint, and that he has judicially settled her estate and paid her debts. VI II. They admit that the said Mary Roe married William Jones, and that both of them are living as alleged in said com- plaint. TX. They admit that said Helen Roe married as alleged in said complaint, and that she died testate, and that her last will and testament was proved as alleged in said complaint; and that she left her surviving her husband, William Cole, and her only child, Richard Roe Cole: But they deny that she died seized or possesse'd of any interest in said real property; and they deny that she In and by her said last will and testament devised any interest in said real property. 116 FOBMS OF PUCADINGS AND PHJJCEDBWT8. X. They admit that the said Henry Roe at the time of his father's death was an unmarried man; and they admit ujion in- formation and belief that he married as alleged in said complaint, and that he died at the tirae and place therein alleged intestate. XI. They deny each and every allegation in saiid ctiiniplaint which has not been above specifically admitted or dallied. Second. And for a further and 8epara;te defence to this action brought by the plaintiffs aforesaid, these defendants refepectfilly show that prior to the death of said William Roe, and 'to iihe fifteenth day of Julie, 1890, at the Sdd city of New ^oAjin consideration of divers services which had b^en reridfered to the said "W^illiam Roe for a long time prior thereto by this defendtoit, and of the love and affection which the said William Roe bofe f or his son, this defendant, he the said William Roe, and hia'said vAib, Florence- Roe, made their certain defed in writing, as parties of the first part, and this defendant as party of the second part, w*he¥elsy they granted and conveyed the real property mentioned in the complaint herein unto this defendant in ffee simple, which dsed was signed and sealed by the said William Roe and Florence Roe, his wife, and by them duly acknowledged and delivered to 'this defendant; but that the said deisd is not in this defendant's pos- session ready to be produced and proved nor has it been recorded so that the record thereof can be produced, because the said deed became lost before it i^eached the registfer's office of the cOiinty of N'ew York for record. That the said real property in said c6m- plaint mentioned was by the said William ROe and Florence Roe, his vnife, conveyed in fee simple "to this defendant by thfe'ir d6ed in writing duly executed by them and delivered to lihis defeiidkit ias aforesaid. Wherefore, these defendants demand judgment that the cOin- plaint be dismissed, with costs and disbursemeiits, to theise 'de- fendants.**' MILTOIT MORRIS, Attorney for Defendants Richard Roe and Isabel Roe. eVerification July 12, 1903.) (a) This aniiweT must be served on all of the co-defendants as well as on the plaintiffs. Code, S 521. AN8WEES OF DEFENDANTS. 117 AMDBSIOH OF SEEVICE OF ANSWEE BY THE PLAIHTIFPS Aim CO-DEFENDANTS. N^^w: York Suprbmb Couet. New Yoek County. '■Admission of Sermce of Answer. John Doe and Jeannette Doe, Ms wife, Plaintiffs, vs. Ki^^ard Boe et al., Defendants. Due service of a copy of the answer herein of the defendants, Richard Eoe and Isabel E«e, his wife, is hereby admitted. Dated July 12, 1903. iHOHAUD FENN, Attorney for Plaintiffs. SYDNEY GRAY, Attorney for Defendants James Roe et al. HORACE EASE, Attorney for Defendants Henry Stiles, etc., et al. ROGER LEE, Attorney for Defendant Victoria Roe. CHARLES KEN"T, Guardian ad litem for Infant Defendants Edwin Roe et al. ABBWEB OF DEFENDANT CHABGED WITH BECEIVIirO THE BENTS. 'New York Supeeme Cotjet. County of New Yoek. "Answer. John Doe et al.. Plaintiffs, vs. Richard Roe et al., Defendants. The defendant Henry Stiles, by Horace Lake, his attorney, aiiswering the plaintiffs' complaint, herein respectfully shows to this court: I. He admits the first, second, third, fourth, fifth, sixth, eighth, eleventh, and tweHth paragraphs thereof to be true. 118 FOBMS OF PLEADINGS AKD FB.E<:!i:i>£JfT8. n. Upon inf ommtion and belief, he admits the seventh and ninth paragraphs thereof to be true. TTT . This defendant, further answering as to the tenth para- graph of said complaint, alleges : IV. He admits that immediately upon the death of said Flor- ence Roe, he took possession of the said real property and has evfe'r since collected the rents and issues therefrom, and that he has ever since remained in the sole possession thereof and in re- ceipt of the rents and issues therefrom, and, except as admitted as aforesaid, he denies the twelfth paragraph of said complaint. V. This defendant further respectfully shows unto this court that the said rents are and have been claimed by several persons. VI. The defendant Richard Roe claims the same as belonging to him, and the other heirs of said William Roe, deceased, claim the same as belonging to them and the said Richard Roe and that this defendant is ready to account for said rents and to pay over the same according to the order or judgment of this court, deter- mining to whom they shall be paid, first deducting his disburse- ments for taxes, insurance, and necessary repairs and for his ser- vices in the premises. HORACE LAKE, Attorney for Heniy Stilea, Sworn, etc., July 13, 1903. ANSWER OF VICTOBIA ROE. New York Supbbimb Oottbt. County op New Tokk. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. yAnatoer. The answer of Victoria Roe, a defendant in the above-entitled action, by Roger Lee, her attorney, answering the plaintiffs' com- plaint herein, respectfully shows unto this court : That she admits, upon information and belief, the allegations of the first, second, third, fourth, fifth, sixth, eighth, ninth, tenth. nonos OF motion that parties plead to answeb, 119 eleventh, and twelfth paragraphs thereof to be true, and, further answering, she admits the seventh paragraph thereof to be true. ROGER LEE, Attorney for Defendant Victoria Roe. (Verification, July 13, 1903.) NOTICE OF MOTION EEQTJIEING PLAINTirPS TO EEPLT AND THE CO-DEiFENBAHTS TO PIEAD TO ANSWEE OF DEFEND- ANT BICHAED EOE DENYING PLAINTXFFS' TITLE. New York Supeeme Cotjet. County of New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Roe et al., Defendants. '■Notice of Motion. J Please to take notice that in order to clearly define the issue or issues to be submitted to the jury in this action, I shall move this court at a Special Term thereof, Part I, to be held at the New York County Court House in the borough of Manhattan, of the city of New York on the twentieth day of July, 1903, at 10:30 o'clock in the forenoon or aa soon thereafter as counsel can be heard upon the pleadings, papers, and proceedings herein, for an order that the plaintiffs' reply to the allegations of the second defence in the answer herein of the said defendants Richard Roe and Isabel Roe, a copy of which answer is herewith served upon all parties to this action, and that each and every defendant in this action, who does not admit the truth of said allegations, plead thereto, and for such further or other order in the premises as the court shall deem meet. Dated July 12, 1903. Yours, etc., MILTON MORRIS, Attorney for Defendant Richard Roe. To Richard Fenn, Esq., Plaintiffs' Attorney. Sydney Gray, Esq., Attorney for Defendants James Roe et al. Horace Lake, Esq., Attorney for Defendants Henry Stiles, Individually and as sole Administrator, etc., and William Cole. 120 FOEMS OF PLEISlDINQS AND : PBBCEDENTS. Roger Lee, Esq., Attorney for Defendant Victoria Eoe. Charles Kent, Esq., Guardian ad litem for Defendants Edwin Roe, Tkomas Roe, and Marie Roe. ADMISSION OF SEEVICE OF ANSWER OF BICHARS £0E ASS WIFE AND OF NOTICE OF MOTION, Service of the answer of the defendants. Richard Roe and Isabel Roe and of the within, notice of motion is hereby admitted. Dated July 12, 1903. RICHARD FENN, Attorney for Plaintiffs. SYDNEY GRAY, Attorney for Defendants James Roe et al. HORACE LAKE, Attorney for Defendant Henry Stiles et al. ROGER LEE, Attorney for Defendant Victoria Roe. CHARLES KENT, Guardian ad litem for Infaiit Defendants Edwin Roe et al. ORDER THAT PLAINTIFFS REPLY AND THAT CO-DEPENDANTS PLEAD TO ANSWER. At a Special Term, Part — , of the Supreme Court. of the State of Newr York held at the New York G&untj Court House in the borough of Manhattan of the city of New York on the twentieth day of July, 1903. Present: Hon. James Bronson, Justice. John Doe and Jeanette Doe, Plaintiffs, vs. Richard Roe et al.. Defendants. ' Order to Plead. The motion for an order requiring the plaintiffs to reply to the second defence in the answer of the defendants Richard Roe OKDEE THAT CO-DEFENDANTS PLEAD. 121 and Isabel Koe and requiring each and every co-defendant who does not admit the truth of the allegations of said second defence TO. plead thereto, coming regularly on to be heai'd, on the plead- ings, papers, and proceedings herein, and on due notice to all the parties to this action; and after hearing Milton Morris, Esqi., of counsel for the defendants Bichard Eoe and Isabel Roe, and Richard Fenn, Esq., of counsel for the plaintiffs, and Charles Kent, Esq., guardian ad Miem ior the infant defendants, Sydney Gray, Esq., Horace Lake, Esq., and Roger Lee, Esq., of counsel for the other defendants, and due consideration being had, it if-, on motion of Milton Morris, Esq., of counsel, as aforesaid, Ordered, That the said plaintiffs reply to the allegations of the second defence in the answer of the said defendants Richard Roe and Isabel Roe and that each and every co-defendant intend- ing to, deny the truth of the allegations of said second defence plead thereto within twenty days after service upon them respe^-,- tively of a copy of this order, the said answer having been already served. Enter, J. B., J. s. a EEPLICATIOW OF PLAINTirPS. Kew York Supreme Cotoet. County of New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe et al., Defendants. >■ Replication. John Doe and Jeannette Doe, the plaintiffs herein, for a reply to the second defence of the defendants Richard Roe and Isabel Roe to the plaintiffs' complaint herein, respectfully show unto this court: First : They admit that on or about the fifteenth day of June, ] 890, at the city, county, and State of New York, the said Wil- liam Roe and Florence Roe, his wife, signed and sealed a certain 122 FOEMS OF rUEADINGS AND FaECEDENTS. deed in writing of said premises as parties of the first part to said Kichard Eoe as party of the second part, and they admit that the said deed is not in said defendants' possession and that it has not been recorded. These plaintiffs, further replying, deny each and every allega- tion in said second defence contained which is not above expressly admitted. RICHARD FENN", Plaintiffs' Attorney. State of New Yobk^ 1 County of New York, ]**•• John Doe, one of the plaintiffs named in the above replication, being duly sworn, deposes and says that the foregoing reply is true of his own knowledge except as to the matters therein stated to be alleged on information and belief and as to those matters he believes it to be true. Sworn, etc. JOHN DOE. DEEENDAITT'S JODTT AlfSWER TO AKSWEB. OF CO-DEFENDANTS. New York Supreme Cotjet. CouNTT OF New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe, Isabel Roe, his wife, et al., Defendants. Joint Anstcer to Answer of Co-defendant . James Roe, Ethel Roe, individually, Mary Roe Jones, Rich- ard R. Cole, and Henry Stiles, Jr., defendants herein for answer to the second defence of the defendant Richard Roe to the plain- tiffs' complaint herein, respectfully show unto this court: They admit that on or about the fifteenth day of June, 1890, at the city, county, and State of New York, the said William Roe and Florence Roe, his wife, agned and sealed a certain deed in writing of said premises as parties of the first part to said Richard PLEAS OF CO-DEFENDANTS. 123 Koe aa party of the second part, and they admit that the said deed is not in said defendant's possession and that it has not been recorded. These defendants, further answering, deny each and every alle- gation in said second defence contained which is not above ex- pressly adndtted. SYDNEY GEAY, Attorney for above-named Defendants. State of New Yoek, ] County of New York, /''*•• Henry Stiles, Jr., one of the defendants named in the foregoing answer, being duly sworn, deposes and says that the foregoing ainswer is true of his own knowledge except as to those matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. RICHARD ROE COLE. Sworn to before me this 2 2d day of July, 1903. A. B., Notary, etc. DEFENDANT ADMTNISTUATRIX'S ANSWEE TO ANSWEft OF CO-DEFENDANT. New Yoek Supreme Court. County of New York. John Doe and Jeannette Doe, Plaintiffs, vs. Richard Roe and others, Defendants. Answer of Defendant Adminis- tratrix to Answer of Co-de- fendant. The defendant Ethel Roe, as sole administratrix, etc., of Charles Roe, deceased, answering the second defence herein of the defend- ant Richard Roe, respectfully shows unto this court upon informa- tion and belief : That she denies the same and each and every allegation thereof. SYDNEY GRAY, Attorney for Defendant Ethel Roe, as Administratrix, etc. (Verification July 22, 1903.) 124 FOEMS OF PLEADINGS AND PKB,OEDENTS. SEiUNDANT ASUINISIBATOB'S ANSWI^R TO AJSSWE& OF CO-DEFENDAIIT. New Yoek Supeeme Couet. County of New Yqkk. John Doe and Jeannette Doe, his wife, vs. Richard Roe et al., Plaintiffs, Defendants. AnsvDerof Defendant Adminis- trator to Answer of Co-de- fendant. Tho defendant Henry Stiles, as sole administrator, etc., of Frances Roe Stile?, deceased, answering the second defence herein of said defendant Richard Roe, respectfully shows unto this court, upon information and belief : That he denies the same and each and every allegation thereof, HORACE LAKE, Attorney for Defendant Henry Stiles, as Sole Administrator, etc. (Verification.) DEFENDANT'S ANSWER TO ANSWER OF CO-DEFENDANT. New Yoek Supeeme Couet. County of New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Answer to Answer of Co-defend- ants. Richard Roe, Isabel Roe, his wife, et al.. Defendants. Henry Stiles,, a defendant herein for answer to the second de- fence of the defendant Richard Roe to the plaintiffs' complaint herein, respectfully shows unto this court: He admits that on or about the fifteenth day of June, 1890, at the city, county, and State of New York, the said William Roe and Florence Roe, his wife, signed and sealed a certain deed in writing of said premises as parties of the first part to said Richard Roe as party of the second part, and he ^ ^ ^'t ff | t^at ^■^'^ said dee d PLEAS OF CO-DEFENDANl^. 125 h not in said defendant's possession and that it has n6t been recorded. This defendant, further answering, denies each and every alle- gation in said second defence contained which is not above ex- pressly admitted. HORACE LAKE, (Verification.) Attorney for Defendant Henry Stiles. DEPENDANT'S ANSWER TO ANSWER OF CO-DEFENDANT. ifEW YOKK Str'PfeEME CoUET. tlbtNTY OF New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffs, ^^- K.Ansv>erto Answer of Co-defend- Richard Roe, Isabel Roe, his wife, et al.. Defendants. Victoria Roe, a defendant herein for answer to the second de- fence of the defendant Richard Roe to the plaintiffs' complaint herein, respectfully shows unto this court, upon information aiid belief : That she denies the said second defence and each and every alle- gation thereof. ROGER LEE, (Verification.) Attorney for Defendant Victoria Roe. INFANT DEFENDANTS' JOINT ANSWER TO ANSWER OF CO-DEFENDAirr. Kew Yokk Shpheme Gotjbt. OoxTSTT OF New Yobk. John Doe et al., Plaintiffs, vs. Richard Roe et al., Defendants. Infant Defendants' Joint Answer to Answer of Oo-defindiant. The answer of the infant defendants hereiin, Edwin Roe, Thomas Roe, and Marie Roe, by Charles Kent, their guardian 126 FOEMS OF PLEADINGS AND PRECEDENTS. ad litem to the second defence in the answer of the said defendant Richard Roe, respectfully shows unto this court : That they are strangers to all and singular the matters and things in the said bill of complaint and in said second defence in said answer of the defendants Richard Roe and Isabel Roe con- tained otherwise than that these defendants are informed that their father died seized and possessed of an interest in said real property mentioned in the complaint filed herein and that these defendants have some interest therein and these defendants, being^ infanta of tender years, submit themselves to the judgment of this honorable court and pray that their interests may be protected and saved to them. CHAHLES KENT, Guardian ad litem for said Infant Defendants. HOTICE OF MOTION FOB LEAVE TO FILE STTPPLElUilirTAL COMFLAINT. New YoSk Supebme Couet. County of New Yobk. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. ► Notice of Motion. Please take notice that I shall apply to this court at a Special Term, Part — thereof to be held at the New York Coimty Court House in the borough of Manhattan of the city of New York on the thirty-first day of August, 1903, at 10 :30 o'clock in the fore- noon, or as soon thereafter as counsel can be heard, for an order giving the plaintiffs leave to file and serve a supplemental com- plaint herein, and to file a supplemental notice of the pendency of this action, and to issue and serve a supplemental summons herein, and that the defendants answer the supplemental matter set up in said supplemental complaint, and for such further or other order in the premises as the court shall deem meet, which application will be made upon the affidavits herein of Richard HOrriCB FOE LEAVE TO FILE SUPPLEMENTAL COMPLAINT. 127 Fenn, Mary Roe Jones, and Ethel Roe of the twentieth day of August, 1903, and upon the proposed supplemental complaint, a copy of which affidavits and proposed supplemental complaint is herevrith served, and upon all the pleadings, papers, and proceed- ings herein. Dated August 22, 1903. Yours, etc., RICHARD FENN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants Richard Roe and Isabel Roe. Sydney Gray, Esq., Attorney for Defendants Mary R. Jones et al. Horace Lake, Esq., Attorney for Defendants Henry Stiles et al. Roger Lee, Esq., Attorney for Defendant Victoria Roe. Charles Kent, Esq., guardian ad litem for Infant Defendants Edwin Roe, Thomas Roe, and Marie Roe. ADMISSION OF SEEVICE OF NOTICE OF MOTION, AFFIDAVITS AND FBOPOSED STTFPLEMENTAL COMPLAINT. Due service of the above notice and of the affidavits and pro- poeed supplemental complaint aforesaid is hereby admitted. MILTON MORRIS, Attorney for Defendants Richard Roe et al. SYDNEY GRAY, Attorney for Defendants Mary Roe Jones et al. HORACE LAKE, Attorney for Defendants Henry Stiles et al. ROGER LEE, Attorney for Defendant Victoria Roe. CHARLES KENT, Guardian ad litem for Infant Defendants Ed- win Roe et aL 128 FOEMS OP Pt^EiADINGS ANU PiUECEDENTS. AFFIDAVITS TO OBTAIN OKDER GIVING T.F.AVE TO YJLE SUPPLEMENTAL COMPLAINT. New York Supeeme Goitet. County of New York. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. > Affidavit. Eichard Roe et aL, Defendants. State of New Yoek, "l County of New York,/**'" Richard Fenn, the plaintiffs' attorney herein, being duly sfwom, deposes and says: I. That this action is brought for the partition of certain real property situate in the borough of Manhattan of the city of New York, county aforesaid, or a sale thereof and a division of the*pro- ceeds in case an actual partition cannot be had. That the com- . plaint and notice of the pendency of the action has been duly filed in the office of the clerk of the county aforesaid, and' 'that within sixty days thereafter a summons was served upon "several of the defendants therein named in the county of New Yoit afor&- aaid, and that orders of publication have been -duly served upon the other defendants. That all of the defendants in this action have appeared herein by attorneys of this court except the infant dtefiendants, and that they have appeared by their guardian Henry Stiles, individually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased. Defendants. Notice is hereby given to all to whom it may concern that the complaint and supplemental complaint duly verified in the above- entitled action have been filed and that an action is pending against the defendants therein named and against all person* claiming any interest in the real property described in said com- plaint and supplemental complaint for the purpose of obtaining a partition and division of said real property among the owners thereof, and for a sale thereof made under the direction of this court, if an actual partition thereof cannot be made without great prejudice to the ovraers thereof and for a division of the proceeds of said sale among said owners according to their several rights and interests therein, which real property is described in said complaint and supplemental complaint as follows, to wit: All that certain lot, tract, or parcel of land and premises sit- uate in the borough of Manhattan of the city of New York, county and State of New York. Commencing on the southerly side of Fennimor© street distant easterly two hundred feet from the easterly side of Cooper SUPPLKMErfTAL NOTICE OF PENDENCY OF THE ACTION. 139 avenue^ and from thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block; thence running easterly along said center line of the block and parallel with said Fennimore street fifty feet to a point; thenco running northerly parallel with said Cooper avenue one hundred feet to said southerly side of Fennimore street; thence running westerly along said southerly side of Fennimore street fifty feet to the place of beginning. RICHARD FENN, Plaintiffs' Attorney. No. 1 Main street, in the borough of Manhattan, city of N'ew York, county and State of New York. .To , Esq., Clerk of the County of New York : Index the foregoing supplemental notice of the pendency of this action against the defendants. George Roe, individually and as sole administrator, etc., of James Roe, deceased. Ethel Roe, as general guardian of Edwin Roe, Thomas Roe, and Marie Roe, infant children of Charles Roe, deceased. RICHARD FENN, Plaintiffs' Attorney. Dated August 31, 1903. The land affected by the within instrument lies in section in block in the land map of the city of New York This and the supplemental complaint and the order having been filed, issue a supplemental summons. 140 FORMS OF PLEAIUNGS AND PEBCEDENTS. SUFPIEMENTAI. SUIOEONS. Supreme Court of New York. County of New York. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Bupple- >- mental Summons. George Roe, individually and as sole administrator of the goods, etc., which were of the late defendant James Eoe, deceased, and Ethel Roe, as general guardian of Edwin Roe, Thomas Eoe, and Maiie Roe, infant chil- dren of herself and of Charles Roe, deceased, impleaded with Richard Roe and others. Defendants. To the above-named Defendants, George Roe, individually and as sole administrator of the goods, etc., of James Roe, deceased, and Ethel Roe, as general guardian of the said infant defend- ants, Edwin Roe, Thomas Roe, and Marie Eoe. You are hereby summoned to answer the complaint and sup- plemental complaint in this action, a copy of which is herewith served, and to serve a copy of your answer on the plaiutrfifs' at- torney within twenty days after the service of this summons, ex- clusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated September 1, 1903. RICHARD FENN, Plaintiffs' Attorney. Office and post-office address, No. 1 Main street, borough of Manhattan, city of New York, New York. State of New York, County of New York, :h Henry Hart, of full age, being duly sworn, deposes and says, that on the first day of September, 1903, at the office of Richard Fenn, No. 1 Main street, in the borough of Manhattan, of the SUPPLEMENTAL SUMMONS AND AFFIDAVITS OF SERVICE. 141 city of New York, county of ISTew York, aforesaid, he served the supplemental summons hereto annexed personally upon said ■ Retainer. I hereby retain Sydney Gray, Esq., attorney and counsellor at law of the borough of Manhattan, of the city of New York, State of New York, to appear for and represent me in the above-entitled action, individually and as sole administrator of the goods, etc, of James Roe, deceased, late a defendant in said action. Dated September 3, 1903. GEORGE ROE. {Add certificate of acknowledgment.) 142 FOBMS OF PUBADINGS AND PBECEDENTS. SUPEEME CotTET OF KeW YoBK. County of New Yobk. John Doe and Jeannette Doe, Plaintiffs, vs. ^ Retainer. Richard Boe and others. Defendants. I hereby retain Sydney Gray, Esq., attorney and counsellor at law, of the borough of Manhattan, of the city of New York, State of New York, to appear for and represent me as general guardian of the infant defendants, Edwin Roe, Thomas Roe, and Marie Roe, in the above-entitled action. Dated September 3, 1903. ETHEL ROE, As General Guardian of the Infant Defendants aforesaid. {Add certificate of acknowledgment.) NOTICE or BETAINEE AND OF APFEASAlirCE. SuPEEME COUET OF NeW YoEK. CotTNTY OF New Yobk. John Doe et al., vs. Richard Roe et al.. Plaintiffs, Defendants. >- Notice of Appearance. Please to take notice that. I have been retained by and hereby appear for the defendants above named, G«orge Roe, individually and as sole administrator, etc., of James Roe, deceaaed, and Ethel Roe, as general guardian of said infant defendants, Edwin Roe, Thomas Roe, and Marie Roe, and demand that all papers herein IDMieSION OF SEBVICB OF SUPPLEMENTAL COMPLAINT, ETC. 14S iCT said defendants be served upon me at my oflSce, No. 1 Main Btreet, borough of Manhattan, city of New York, New York Dated September 3, 1903. SYDNEY GKAY, Attorney for Defendants George Koe, etc., and Ethel Koe, as general guardian, etc To Richard Fenn, Esq., Plaintiffs' Attorney. ASKIS&IONS OF SEBVICE OF SUPPLEMENTAL COMFLAIRT Am) OF OBDEB ALLOWING IT TO BE FILED. SUPKEME COUET OF NeW YoBK, OoTJNTT OF New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Bichard Eoe et al., Defendants. Admission of Service of Supple- mental Complaint, etc. Due service of the supplemental complaint herein and of the order authorizing the filing and service thereof, entered herein and filed the thirty-first day of August, 1903, is hereby admitted. Dated September 5, 1903. MILTON MOREIS, Attorney for Defendants Richard Roe and Isabel Roe. SYDNEY GRAY, Attorney for Defendants Mary Roe Jones et al. HORACE LAKE, Attorney for Defendants Henry Stiles et aL ROGER LEE, . Attorney for Defendant Victoria Roe. CHARLES KENT, Guardian ad litem for Infant Defendants. Edwin Roe et aL 144 FOEMS OF PLEADINGS AND PEECEDENTS. ADMISSIONS OF SERVICE OF COMPLAINT AND SUPPLEMENTAL COMPLAINT. SuPEEME Court of New Yoek. County of New Yoek. John Doe and Jeannette Doe, his wife. vs. Richard Roe et al., Plaintiffs, Defendants. Admission of Service of Oom- >. plaint and Supplemental Complaint. Due service of the complaint and supplemental complaint filed herein is hereby admitted. Dated September 5, 1903. SYDNEY GRAY, Attorney for Defendants George Roe, individually and as sole administrator, etc., and Ethel Roe, as general guardian, etc. NOTICE OF RETAINEE AND OF APPEAEANCE SEEVED ON CO-DEFENDANT. Supreme Couet of New Yoek. County of New Yoek. John Doe et al., Richard Roe et al.. Plaintiffs, y Notice of Appearance. Defendants. Please take notice that I have been retained by and hereby appear for the defendants herein, George Roe, individually and as sole administrator of the goods, etc., of James Roe, deceased, and Ethel Roe, as general guardian of said infant defendants, Edwin Roe, Thomas Roe, and Marie Roe, and demahd that all papers- herein for said defendants George Roe, individually and as sole administrator, etc., and Ethel Roe, as general guardian, etc., be NOTICi: OF KETAINBE AND DEMAND ON CO-DEFENDANTB. 145 served upon me at my oifice, i^o. 7 Main street, in the borough of Manhattan of the city of New York, New York. Dated September 3, 1903. SYDNEY GRA^Y, Attorney for Defendants George Roe, individually and as sole administrator, etc., and Ethel Eoe, as general guard- ian, etc To Milton Morris, Esq., Attorney for Defendants Richard Roe and Isabel Roe.<'> ABinSSION OF SEBVIGE OF AITSWES OF CO-I>EFEJn)Ant. Supreme Cotjet of New Yoek. OoTJNTT OF New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe et al., Defendants. "Admission of Bervioe of Answer of Co-defendant. Due service of the answer of the defendants Richard Roe and Isabel Roe to the complaint herein is hereby admitted. Dated September 7, 1903. SYDNEY GRAY, Attorney for Defendants George Roe, individually, etc., and Ethel Roe, aa general guardian, etc. (o) This is served on Milton Morris, attorney for the defendants Richard Roe and Isabel Roe, because they have answered claiming the property and the eo-defendsmts have been ordered to plead to said answer. 10 146 FOEMS OF PLElADINGS AND PBECEDENTS. ANSWEBS TO COUFLAINT Am) SUPPLEMENTAL COXPLADTr. SUPEEME COUET OF NeW YoEK. CotTNTT OF New Yoek. John Doe et aL^ vs. Kichard Boe et al., Plaintifis, Defendants. ■ Anttoer. I The answer of the defendant herein, G«orge Roe, to the com- plaint and the supplemental complaint filed herein by Sydney Gray, his attorney, respectfully shows unto this court: That he admits the allegations contained in the said complaint and supplemental complaint to be true as therein stated. SYDNEY GRAY, Attorney for Defendant G«orge Roe. (Verification.) ""Ansicer. SUPEEME COTJET OF NeW YoEK. CorNTT OF New Yoek. John Doe and Jeannette Doe, Plaintiffs, vs. Richard Roe and others, Defendants. The answer of the defendant Ethel Roe, as general guardian of said infant defendants Edwin Roe, Thomas Roe, and Marie Roe, to the complaint and the supplemental complaint filed herein by Sydney Gray, her attorney, respectfully shows unto this court: That she admits the allegations therein contained to be true as therein stated. SYDNEY GRAY, Attorney for Defendant Ethel Roe, as general guardian, etc. (Verification.) ANSWEE TO CO-DEFBHDANTS' ANSWER. ANSWEE TO CO-DEFENDANTS' AKSWER. Bttpbeui: Coubt of New Yobk. GouNTT of New York. 147 John Doe, and Jeannette Doe, his wife. Plaintiffs, vs. Biohard Roe et al.. Defendants. ^ Antioer to Anatoer of Co-defend- ant. The defendant George Roe, individually and as sole adminis- trator, etc., of the goods, etc., of said James Roe, deceased, an- swering the second defence of the defendants Richard Roe and Isabel Roe herein, by Sydney Gray, his attorney, respectfully •hows upon information and belief that he denies the same and each and every allegation therdn contained. SYDNEY GRAY, Attorney for Defendant George Roe, indi- vidually and as sole administrator, etc. (Verification.) SUFBEIIE COUBT OF NeW YoEK. OouHTT OF New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe et al.. Defendants. yAnttcerto Anstoerof Co-defend- ant. The defendant Ethel Roe, as general guardian of the infant liefendants Edwin Roe, Thomas Roe, and Marie Roe, answering ihe second defence stated in the answer of the defendants Richard Roe and Isabel Roe herein, respectfully shows upon information 148 FOEMS OF PLEADINGS AND PRECEDENTS. and belief that she denies the same and each and every allegati*a. therein contained. SYDNEY GRAY, Attorney for Defendant Ethel Roe, M general guardian, etc (Verification.) PETITION FOE DESIGNATION OF AFFRAISER UNDEE THE STATUTES BELATING TO THE TAXABLE TBANSFERS 07 PROPEETT. Sueeogate's Coxjet. County of New Yoek. In the Matter of the Transfer Tax upon the Estate of Henry Roe, late of the city of Melbourne, colony of Victoria, Australia, de- ceased. To the Surrogate's Court of the County of New York : The petition of John Doe respectfully shows : First That your petitioner is an heir at law of said Heniy Roe, deceased, and as such a person interested in the estate of the said deceased. Second. That the said decedent departed this life on the third day of January, 1903, at the city of Melbourne, Colony of Vic- toria, Australia, intestate; that the said deceased was a resident of said city of Melbourne. Third. That no letters on the estate of said deceased have beea issued by any Surrogate's Court in the State of New York, and that said decedent left no personal property in this State, but that he died seized of an interest in real property situated in the county of New York, this Stata Your petitioner's post-office address is No. 1 Main street, borough of Manhattan, city of New York, Stat© of New York. Eourth. That, as your petitioner is informed and believes,^ the property of said decedent, or some portion thereof or some inter- ests therein, is or may be subject to the payment of the tax im- posed by the law in relation to taxable transfers of property. PBTITIOH FOB APPBAISEB OF TAXABUE TEANSFBES. 149 Ififth. That all persons who are interested in said estate and ■who are entitled to notice of all proceedings herein, and their po$t-office addresses, are as follows: The Comptroller of the State of New YorL Henry Stiles, Jr., 22 Fennimore street, horough of Manhattan of the city of New York, N. Y. Richard Roe Cole, 400 Pennington street, Trenton, N. J. Edwin Roe, Thomas Roe, Marie Roe, 22 Cooper avenue, bor- ough of Manhattan of the city of New York, N. Y. John Doe, your petitioner, No. 1 Main street, borough of Man- hattan of the city of New York, N. Y. That all the above named are of full age and sound mind, ex- cept that the said Edwin Roe and Thomas Roe are infants over fourteen years of age, and Marie Roe is an infant under fourteen years of age, and all of said infants reside with their mother, Ethel Roe, who is also their general guardian, at 22 Cooper ave- nue in the borough of Manhattan of the city of New York afore^ said, their father Charles Roe being dead, he having died at the boirough of Manhattan of the city of New York, county of New York, on the tenth day of April, 1901. Wherefore your petitioner prays that you will designate an appraiser, as provided by law. Btttedf, New York, August 18, 1903. JOHN DOE, Petitioner. State of New Yokk, . Yss. ::)• Coxmty of New York, John Doe, being duly sworn, deposes and says : That he is the petitioner herein; that he has read the foregoing petition sub- scribed by him and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. Sworn, etc. JOHN DOE. 150 FOEMS OF PLEADINGS AND PEECEDENTS. OBDEE DESIGNATING AN APPRAISER TINDER THE STATUTES RELATING TO THE TAXABLE TRANSFERS OF PROPERTY. At a Surrogate's Court, held in and for the county of New York, at the County Court House in the borough, of Manhattan, city of New York, on the nineteenth day of August, 1903. Present: Hon. F. T. F., Surrogate. In the Matter of the Transfer Tax upon the Estate of Henry Koe, late of the city of Melbourne, colony of Victoria, Australia, de- ceased. On reading and filing the petition of John Doe, an heir at law of said decedent, I do hereby, pursuant to the requirement of chapter 658 of the Laws of 1900, direct Esq., one of the appraisers appointed by the State Comptroller under said statute, to fix the fair market value of the property which was of the above-named decedent and which is subject to the payment of any tax imposed by article X, chapter 908, Laws of 1896, and the acts amendatory thereof and supplemental thereto. F. T. F., Surrogate. OBDEB APPOINTING APPKAISEE AND AFFIDAVIT OF ASSETS. 151 AFFIDAVIT OF ASSETS AlID OF DEBTS TO BE SERVED ON AFFRAISEE TINDEB TRANSFEB TAX ACT. Subeogate's Couet. County of New Yoek. In the Matter of the Appraisal under the act- in relation to Tax- able Transfers of property, of the property of Henry Koe, late of the city of Melbourne, colony of Victoria, Australia, deceased. State of New York, "1 County of New York, J I. John Doe, being duly sworn, deposes and says that he is an heir at law of Henry Eoe, deceased, above named. II. That the said decedent died intestate, at the city of Mel- bourne, aforesaid, on the third day of January, 1903. III. That said decedent was a resident of said city of Mel- bourne, Australia, aforesaid, at the time of his death, and had been a resident of Australia for upwards of eleven years last past. That he was bom in the State of New York, and resided there until January, 1891, and since then he has not been in this State. IV. That said decedent left in the city of New York the fol- lowing property, namely, an one-eighth interest in the dwelling- houses and lots known as Nos. 18 and 20 Fennimore street, in the borough of Manhattan, of the city of New York, county of New York, situate on the southerly side of !Fennimore street, distant two hundred feet easterly from the easterly side of Cooper avenue, and fronting fifty feet on said Fennimore street and running back to the center line of the block one hundred feet, being two lots, each twenty-five feet wide, with a four-story brownstone dwelling- house thereon. V. That the assessed value of the whole of said property at the last assessment for the year 1902 was fifteen thousand dollars. VI. That said decedent left no interest in any other real prop- erty in the State of New York. VII. That the decedent died possessed of no mortgages, prom- issory notes, or deposits in trust companies, or other personal property in this State. 152 POBMS OF PLEADINGS AND PEECEDENTS. VIII. That there are no claims owing the decedent IX. That decedent had no life interest in any estate. X. That no reversion fell in by reason of decedent's death. XI. That decedent had no business in or connected with the State of New York whatever. XII. That the value of the real property, No. 18 and 20 Fenni- inore street, of wliich the deceased died possessed of an undivided one-eighth share, to the best of deponent's information and belief, is about nineteen or twenty thousand dollars, one-eighth thereof, the deceased's share, two thousand three himdred and seventy-five or two thousand five hundred dollars. XIII. That the decedent left no shares of stock in corporations of the State of New York. XIV. That the gross value of the entire personal estate of said deceased, wherever situated is unknown to deponent, but that he is informed by Victoria Eoe, the widow of said decedent, and he verily believes that his personal estate did not exceed the sum of one thousand dollars. XV. That the decedent made no transfer or conveyance of real, or personal property prior to his death in contemplation of death, or to take effect at or after death. XVI. That decedent was not given power of disposing of prop- erty by the will of another person. XVII- That deponent has made diligent search for property of every kind, nature, and description left by the decedent £^nd that he has been able to discover in this State only his said in- terest in the real property aforesaid and deponent verily believe^ that decedent left no property, either real or personal, or any in- terest therein within this State, except that above set forth in this affidavit. XVIII. That no party in interest is dead and that no deduo- tions from the aforesaid property is claimed. XIX. The names of the persons interested in said real prop- erty, of which the said Henry Koe died possessed, as aforesaid, at the time of his death together with their relationship to the de- cedent are as follows: John Doe, a nephew of the decedent ; Kichard Roe Cole, a nephew of the decedent ; Henry Stiles, Jr., a nephew of the decedent ; Edwin Roe and Thomas Eoe, nephews, and Marie Eoe, a niece, three infant children of the deceased brother, Charlea Koe, deceased ; :pXPEBT's APPBAISEMENT OF VALUE. 163 Jfimes |loe, who was a b^^other of the dece4ent since de<5eaaed; Yiq^^ia Roe, widow of said decedent ; !^iehard Rpe, a brother of decedent ; Mary |loe Jones, a ^ister of decedent ; E^, etc. JOHN DOE. APFRAISEHEKT OF VALVE OF ££&L FEOFE&TT BT AH EZFEBT. Ktjkbogate's Coubt. OouNTY OF New York. In the Matter of the Appraisal under the act in relation to Tax- able Transfers of property, of the property of Henry Roe, deceased. I, E. F., the undersigned real estate agent and appraiser of re^ estate in the borough of Manhattan of the city of New York, do hereby certify that I have appraised an undivided one-eighth iUit^rest in the following property, to wit: Numbers 18 and 20 Fennimore street, in the city of New York, and fixed the value thereof as of the third day of January, 1903, to^it: Land $10,000 l/8th $1,250 Buildings 9,200 l/8th 1,150 Total $2,400 Dated, August 24, 1903. E.F. TOfJce to the appraiser named in the order a certified copy of the order arid copy of the petition, also the above affidavit amd fioo copies of the affidavit and of the appraisement of E. F., the r^alf estate expert, also the tax hill of said real property for the lasi^ preceding year. Whereupon the appraiser will set a day 154 FOEMS OF PLEADINGS AND PEECEDINT8. for hearing and give notice thereof to ail parties interested. Infants must have special guardians appointed by the sur- rogate to represent them. On the day of hearing, proofs wiU be taken of all facts necessary to enable the appraiser to make his report to the surrogate of the exact value of the property to be taxed and of the value of each individual's share and interest therein which is liable to a tax. AFPBAISEIt'S NOTICE OF HE&SINO. Stteeogate's Couet. CouNTT OF New Toek. In the Matter of the Appraisal, imder the act in relation to Tax- able Transfers of property, of the property of Henry Roe, deceased. You will please take notice that, by virtue of an order of Hon. Frank T. Fitzgerald, one of the Surrogates of the county of New York, made and dated the 19th day of August, 1903, and pur- suant to provisions of chapter 908 of the Laws of 1896, relating Taxable Transfers of Property, and the acts amendatory thereof, I shall on the 26th day of August, 1903, at 12 o'clock noon of that day, at room No. , Home Life Building, Nos. Broadway, in the borough of Manhattan, city of New York, pro- ceed to appraise at its fair market value all the property of said Henry Roe, deceased, late of Melbourne, A\istralia, passing by the Intestate Laws of the State of New York, which is subject to the payment of the tax imposed by the said act and acts amenda- tory thereof. And such of you as are hereby notified as are under the age of twenty-one years are required to appear by your guardian, if you have one, or, if you have none, to appear and apply for one to be appointed, or in the event of your neglect or failure to do' so, a guardian will be appointed by the surrogate to represent and act for you in the proceeding. New York, August 20, 1903. A. B., To Appraiser. PEOCEEa>INGS BEFORE APPRAI8EK. 155 unruTEs OF HEAsma befoke affbaises. Subeogate's Cotjet. County of New Yoek. - — ^ In the Matter of the Appraisal under the act in relation to Tax- able Transfers of property, of the property of Henry Koe, deceased. Hearing held before appraiser, A. B., on the twenty-sixth day of August, 1903, at 12 o'clock noon at room No. — , No. — , Broad- way, borough of Manhattan of the city of New York, county of NefW York, aforesaid. Appearances: Hon. ■ , Attorney for Stat© Comptroller. Bichard Fenn, Esq., Attorney for the adult heirs interested in said property. Charles Kent, Esq., special guardian of the in- fant heirs. C. D. , being duly sworn and examined, testifies as follows: Examined by Mr. A. B., Appraiser. Question. Answer. AFFBAISEB'S KEPOBT TO THE STJXBOGATE. Sueeogate's Cotjet. New Yoek County. In the Matter of the Appraisal under the act in relation to Tax- able Transfers of property, of the property of Henry Roe, deceased. To the Surrogate's Court of the countyi of New York: I, A. B., who was, by an order of the Honorable E. T. F., one of the Surrogates of the county of New York, made and filed on the nineteenth day of August, 1903 (certified copy of which order is hereto annexed) , directed to act as appraiser pursuant to 1$6 FOBMS OF FT.T;AT>IK&S and FBirCEDENTS. chapter 908 ^f the Lav?:8 of 1896 and the acts ameadatoi^ thweof, and supplemental thereto, do respectfully report: First. That I have filed my oath of office in the State Comp- troller's office, pursuant to chapter 173 of the Laws of 1901. I gave notice by mail, postage prepaid, to all persons known to have or to claim an interest in all property, subject to the tax imposed by law, to wit : To the following persons, being those named in the petition for said order, of the time and place at which I would appraise the p;i^operty of Henry Roe, deceased, subject to the payment qf aaid t«^ ; a true copy of said notice is also hereto attached. Hob. E. H. F., Attorney for the State Comptroller. John Doe, Henry Stiles, Jr., Kficha^rd Roe Cole, Edwin Roe, Thonaas Roe, 3^arie Roe. Beeond. I further report that at the time and place in said no- tice stated, to wit: on the twenty-sixth day of August, 1903, at twejxe o'clock noon, at No. 257 Broadway, borough of Manhattan, of the city of N"ew York, I appraised the estate of said Henry Roe, deceased, within the State of 'Ne^v York at its fair market value on the third day of January, 1903, the date of his death, as follows : Real Estate. An undivided one-eighth share and interest in the real property known as Nos. 18 and 20 Fennimore street, borough of Manhattan, of the city of New York, county of New York $3,400 00 Deducting $ Leaving a net estate of the value of $2,400 00 Third. I further report that the said Henry Roe died a resi- dent of the city of Melbourne, colony of Victoria, Australia, on the third day of January, 1903, intestate, leaving a widow, Victoria Roe, him surviving but leaving no child nor any descendant of a deceased child him surviving, and leaving as his only heirs at law, the following named person^: Richard Roe, a brother, James Roe, a brother. appeaisee's bepobt. 1S7 Mary Roe Jones, a sister, John Doe, a nephew, Richard Roe Cole, a nephew, Heniy Stiles, Jr., a nephew, Edwin Roe, a nephew, Thomas Roe, a nephew, Marie Roe, a niece. The last three named being the infant children of the decedent's brother, Charles Roe, deceased, and his only heirs at law, said Charles Roe died in the borough of Manhattan of the city of New York, county of New York, on the tenth day of April, 1901. Fourth. I further report that all the persons interested in this estate are of sound mind and of full age, except the said Edwin Roe, who is an infant of the age of fifteen years, Thomas Roe, ^ho is an infant of the age of seventeen years, and Marie Roe, who is an infant of the age of seven years. I further report that I appraised the several interests of the following named persons in the said estate of Henry Roe, deceased, being all the interests therein, subject to tax, in this proceeding at the fair market value thereof on the third day of January, 1903, the date of decedent's . death, as follows: First I deducted from the said share and interest of said Henry Roe, deceased, his widow's dower which I appraised at five hundred and sixty-four doUare and thirty-two cents. John Doe, a nephew $262 24 Richard Roe Coie, a nephew 262 2.4 Henry Stiles, Jr., a nephew 262 24 Edwin Roe, a nephew 87 41 Thomas Roe, a nephew 87 41 Marie Roe, a niece 87 42 Sixth. I further report the following appearances: Hon. E. H. F., Attorney for State Comptroller. Richard Fenn, Esq., Attorney for all of the adult persona interested. Charles Kent, Esq., Special guardian of the infanta. Respectfully submitted, A. B., Appraiser. Dated, New York City, August 28, 1903. 168 FORMS OF PLEADINGS AND PRECEDENTS. HOTICE OF FnnrG APFBAISEB'S BEFOBT. 1^-Ew YoBK, August 28, 1903. In the Matter of the Transfer Tax upon the Estate of Henry Roe, deceased. Dear Sir. — I enclose herewith copy of draft of my report in the above-entitled estate. The report will be filed on or about the twenty-ninth day of August, 1903. Yours respectfully, A. B., Appraiser. To Eichard Fenn, Esq., Attorney, etc., Charles Kent, Esq., Special Guardian, etc. Prepare an order for the surrogate to sign, assessing the tax, and make of it a copy. Deliver the order amd copy to the sur- rogate's clerk and leave the same with him. The surrogate will sign the order and the clerk mil then transmit a properly certified copy of the order to the Comptroller ai Albany. Send a check to the Comptroller at Albany, for the amount of tax as assessed by the surrogate and he will return duplicate receipts counter- signed and sealed by the State Treasurer. If the tax be paid within six months of the decedent's death, deduct five per cent, from the amount of tax assessed, and send a check for the balance to the Comptroller. This five per cent, rebate is allowed where payment is made within said six months. subbogate's obdee assessing tax. 159 OSDEB OF STJKBOGATE ASSESSING AHOTJITT OF TAX. At a Surrogate's Court held in and for the County of New York, at the County Court House in the City of New York, on the thirty-first day of August, 1903. PTesent: Hon. , Surrogate. In the Matter of the Transfer Tax upon the Estate of Henry Eoe, deceased. On reading the report of A. B., Esq., the appraiser, filed herein on the twenty-eighth day of August, 1903, and on motion of Hichard Fenn, Esq., attorney for the heirs herein, it is Ordered and adjudged that the cash value of the property re- ferred to in said report, the transfer of which is subject to the tax imposed by the act relating to taxable transfers, and the tax to which the said transfers are liable, is as follows : Cash Valtte Tax Assessed Beneficiabt. of Intebbst. Thbbbon. John Doe, nephew $262.24 $13.12 Richard Eoe Cole, nephew 262.24 13.12 Henry Stiles, Jr., nephew 262.24 13.12 Edwin Eoe, nephew 87.41 4.3T Thomas Roe, nephew , 8Y.41 4.37 Marie Roe, niece 87.42 4.37 Surrogate. 160 FORMS OF PLEADINGS AND PEECtjDENTS. OSIGINAL BEGEIPT OF STATE COMFTSOLLEK AlTib TBEASTJREB FOB THE TAX. If a. STATE OF NEW YORK. $52.47. COMPTEOLLEE'S OFFICE. Albany, September 7, 1908. Eeceived from John Doe and othel" heirs at Uw of the ^i^ter '^ of Henry Eoe, deceased, J Fifty-two 47-100 ddllara •g* For amount of transfer tax assessed and fixed thereoii by thii O. Surrogate of the county of New York, as per certified copy of baa order dated September 1, 1803. O. K Comptroller of the State of New ^ork. L. M. Treasurer of the State of New York. Sealed and countersigned September 7, 1903. State of New York. Seal. Treasurer. DUPLICATE BECEEPT OF STATE COHFTBOLLEB AHlt TBEASTTBEB FOB THE TAX. No. STATE OF NEW YOEK. $52.47 COMPTEOLLEE'S OFFICE. Albany, September 7, 1903. -S Eeceived from John Doe and other heirs at law of the estate .^ of Henry Eoe, deceased, §< Fifty-two 47-100 dollars PETITION TO SDEEOGATE EELATING TO TEANSPEE TAX. 161 Por amount of transfer tax assessed and fixed thereon by the Surrogate of the county of ISTew York, as per certified copy of his order dated September 7, 1903. State of New York. Seal. Treasurer. O.K. Comptroller of the State of New York. L. M. Treasurer of the State of New York. Sealed and countersigned September 7, 1903. PETITION TO HAVE THE ESTATE DECLARED EXEMPT FROK PAYKEENT OF TRANSFEU TAX. Sueeogate's Couet, County of New Yoek. In the Matter of the Application of George Roe, sole administrator of the goods, etc., which were of James Roe, late of the county of New York, deceased, to have the estate of said deceased, real and personal, declared exempt from tax under the Tax Act relating to the Taxable Transfers of Prop- erty. To the Surrogate of the County of New York: The petition of George Roe, shows to the court and alleges: I. That the above-named decedent died on the thirtieth day of July, 1903, intestate at the borough of Manhattan of the city of New York, county and State of New York and a resident thereof. II. That he left him surviving your petitioner, a child of the paid deceased and his only child and only heir at law. That he left him surviving no descendant of any deceased child and no widow and that your petitioner is the only person interested in his estate. 11 162 FOEMS OF PLEADINGS AND PKECEDENTS. m. That your petitioner was appointed administrator of the goods, chattels, and credits of said decedent by Order of this court of the seventeenth day of August, 1903, and that your petitioner had the estate of said decedent regularly appraised and an inven- tory thereof made and filed vsith the clerk of this court and that the personal property of which the deceased died possessed does not exceed in value the sum of five thousand dollars, and that the real property m this State of which he died possessed did not exceed in value three thousand dollars. That he left an estate real and personal of less than ten thousand dollars. IV. That all persons interested in this matter and their ad- dresses are as follows: Comptroller of the State of New York, Albany, N'ew York. George Roe, your petitioner, !N"o. 22 Fennimore street, borough of Manhattan of the city of IsTew York, State of New York. V. Thai; the said James Roe died seized of an undivided one- seventh part of the real property, known as No. 18 and 20' Fenni- more street in the said borough of Manhattan of the city of New York, and that he owned no other real property in this State and that he owned no interest in any other real property in this State. VI. That your petitioner has made a diligent search for prop- erty of every kind and nature of which the said decedent died seized, possessed, or entitled to, or any interest therein and that the aforesaid is a statement of all the real and personal property of which the said decedent died seized or possessed or in which lie had any interest. VH. That as the said real and personal property is under the sum of ten thousand dollars in value, and that as it passes to the child of the said deceased, no tax is imposed thereon under the law relating to taxable transfers of property. VIII. On information and belief, the decedent, prior to his death, made no transfer of property by deed, grant, bargain, sale, or gift in contemplation of death or intended to take effect at or after such death. Wherefore, your petitioner prays that an order be made and filed herein, determining that the said estate is not liable to tax under the laws of the State of New York, relating to Taxable Transfers of Property. (Verification.) GEOEGE ROE. NOTICE OF MOTION BEFOKE SUBROGATE 163 NOTICE OF MOTION FOR ORDER DECLARING ESTATE NOT IL&RIE TO A TRANSFER TAX. Sueeogate's Cotjet, County of New York. In the Matter of the Application of George Roe, sole administrator of the goods, etc., which were of James Koe, late of the county of INTew York, deceased, to have the estate of said deceased, real and personal, declared exempt from tax under the Tax Act relating to Taxable Transfers of Property. > 'Notice of Motion. Please take notice, that upon the petition of George Roe, veri- fied the sixteenth day of November, 1903, a copy whereof is here- unto annexed, I will apply at a Surrogate's Court of this county to be held at the New York County Court House in the borough of Manhattan, of the city of New York, State of New York, on the twenty-sixth day of November, 1903, at ten o'clock in the forenoon of that day or as soon thereafter as counsel can be heard for an order which shall determine that the estate of the above-named decedent is not liable to tax under the laws of the State of New York, relating to taxable transfers of property and for such further or. other relief as the court may deem meet. Dated November 16, 1^03. SYDNEY GRAY, Attorney for Petitioner, office and post-office address No. 7 Main street, borough of Manhattan, city of New York, State of New York. To Honorable Comptroller of the State of New York. 16-4 FOEMS or FT.F.AOINGS AND PKECEDENTS. OEDER ADJUDGING ESTATE NOT LIABLE TO A TRANSFEE TAX. At a Surrogate's Court of the County of New York, held at the JSTew York County Court House, in the borough of Manhattan of the city of New York, State of New York, on the twenty-seventh day of November, 1903. Present: Hon. , Surrogate. In the Matter of the Application of George Roe, sole administrator of the goods, etc., which were of James Roe, late of the county of New York, deceased, to have the estate of said deceased, real and personal, declared exempt from tax under the Tax Act relating to Taxable Transfers of Property. On reading and filing the petition of George Roe, the adminis- trator, etc., of James Roe, late of the county and State of New York, deceased, duly verified, and due notice of this application to Honorable , Comptroller of the State of New York, with proof of the due service of said notice returned before this court, this day, no one appearing in opposition, and proof being made of the facts alleged in said petition before me, it is on motion of Sydney Gray, of counsel for said petitioner. Ordered and adjudged that there is no property of the said decedent, the transfer of which is subject to the tax imposed by the Tax Law relating to Taxable Transfers of property. Surrogate. NOTICE OF MOTION FOR TBIAL BY JUEY. , 165 NOTICE OF MOTION TO PUT CAUSE ON PREFERRED CALENDAR FOR TRIAL BY A JURY. Supreme Court of New York. New Tork County. John Doe and Jeannette Doe, his wife, Plaintiffs, ,, ^. . ,, ^■ ' > Notice of Motion, vs. Richard Eoe et al. Defendants. Please to take notice that upon the affidavit of Eichard Fenn, the plaintiffs' attorney, a copy of which is herewith served, and the pleadings, papers, and proceedings herein, I shall move this court at a Special Term thereof, Part — , to be held at the New York County Court House, on the twelfth day of October, 1903, at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard for an order settling the issues in this action for trial by jury, and ordering the cause to be placed on the Special Calendar, Part 2nd, Trial Term, Calendar No. 3, of this court for trial at the next term thereof, and for such further or other order in the premises as the court shall deem meet. Herewith is served upon you a copy of the questions of fact proposed to be submitted to the jury for trial.*'* Dated October 3, 1903. EICHAED FENN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants Eichard Eoe et al. Sydney Gray, Esq., Attorney for Defendants Mary Eoe Jones et al. Horace Lake, Esq., Attorney for Defendants Henry Stiles et ai Eoger Lee, Esq., Attorney for Defendant Victoria Eoe. Charles Kent, Esq. Guardian ad litem for Tnf.int Defendants. (a) Notice of trial for the next term of Part 2nd, Trial Term, must be served at the same time. This notice should be served within ten days after the joinder of issue as the matter is within the reason of Supreme Court Rule XXXI, but the right to a trial by jury being absolute it is not lost by a fail- ure to apply within ten days. Conderman v. Conderman, 44 Hun, 181. In an equity ease the court has power of its own motion after ten days. Apel v. O'Comner-JP Hun. 485>. 166 FOEMS OF PLEADINGS AND PBJECEDElirTS. AFFIDAVIT ON MOTION TO PUT CAUSE ON PREFERKED CALENDAR FOR JURY TRIAL. Supreme CotrBT of 'Nmw Yoek, New Yoek County. John Doe and Jeannette Doe> his wife, Plaintiffs, vs. Richard Eoe et al., Defendants. ■Affidavit. State of New Yoek, 1 County of New York, J Eichard Fenn, the plaintiffs' attorney herein, being duly sworn, deposes and says that the pleadings in this action have ended; that all of the defendants have answered except the defendant William Cole, and that his time to answer has long since expired. That the infant defendants, by Charles Kent, their guardian ad litem, have put in the usual answer of infant defendants sub- mitting their right to the protection of the court ; that the answers of the other defendants, other than the answer of the defendant, Richard Roe, raise no issue upon the complaint; that the answer of the said defendant, Richard Roe, does raise an issue of fact thereon in the second defence of his said answer, which second defence has been replied to by the plaintiffs and plead to by the other defendants except said William Cole not pleading herein, raising an issue of fact upon the second defence of the answer of said Richard Roe to be tried by a jury. That the time of all parties to plead has expired and that the last pleading was served September twenty-fifth, 1903. That no other application for the order applied for herein has been made to any other court or judge. Sworn, etc. RICHARD FEISTN". \ PEOPOSED FINDINGS. 167 PKOPOSED FINDINGS TO BE SUBMITTED TO THE JURY. SUPEEME COUET OF NeW YoEK, New Yoek County. John Doe and Jeannette Doe, his wife, Kichard Eoe et al., Plaintiffs, Detfendants. "Proposed Findings. Issues of fact proposed by plaintiffs to be stunbitted to a jury for trial. First. Was William Ebe on and prior to June fifteenth, 1900, seized in fee simple absolute and possessed in his own right of the real property mentioned and described in the complaint herein. Second. Did the said William Roe and Florence Roe, his wife, on the fifteenth day of June, 1900, or at any time before or after that date, sign, seal, and deliver their deed in writing as parties of the first part to Richard Ro6 as party of the second part, con- veying the said real property to the said Richard Roe. Third. Did the said William Roe and Florence Roe on the said fifteenth day of June, 1900, or at any time before or after that date acknowledge and deliver their deed in writing of the real property mentioned in the complaint herein to said Richard Roe. Fourth. If you find that William Roe died seized in fee simple and possessed of said real property on the first day of July, 1890, then in whom do you now find the said premises to be vested and what is the right share and interest therein of each party, and what are the rights of the parties therein. Fifth. Who has received the rents and profits of said real property since the first day of July, 1901, the date of the death of said Florence Roe, and has he retained the same to his own use or how otherwise. Dated October 3, 1903.<»> RICHARD FEE'E", Plaintiffs' Attorney. (a) But few questions are framed here because the issues will be tried on the pleadings and the questions will be framed at the trial. 168 FORMS OF PLEADII^GS AND PRECEDENTS. NOTICE OF TRIAL FOR TRIAL TERM. Supreme Court of New York. County of New York. John Doe and Jeannette Doe, Plaintiffs, vs. Richard Roe et al.. Defendants. Plaintiffs' Notice of Trial. Please to take notice that the issues of fact in this action will be brought to trial, and an inquest taken therein, at a Trial Term, Part 2nd, of this court, appointed to be held in and foi the county of New York at the New York County Court House, in the borough of Manhattan of the city of New York on the first Monday of November, 1903, at 10:30 o'clock in the fore- noon of that day, or as soon thereafter as counsel can be heard. Dated the 3d day of October, 1903. RICHARD FENN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants Richard Roe et al. Sydney Gray, Esq., Attorney for Defendants Mary Roe Jones et al. Horace Lake, Esq., Attorney for Defendants Henry Stiles and William Cole. Roger Lee, Esq., Attorney for Defendant Victoria Roe. Charles Kent, Esq., Guardian ad litem for the Infant Defendants, Edwin Roe, Thomas Roe, and Marie Roe. ADMISSION OF SEEVICE OF NOTICE OF MOTION, ETC. 169 Due service of the foregoing notice of motion, affidavit, pro- posed issues of fact, and notice of trial is hereby admitted. Dated October 3, 1903. MILTON MOREIS, Attorney for Defendants Richard Eoe and Isabel Eoe. SYDNEY GEAY, Attorney for Defendants Mary Eoe Jones et al. HOEACE LAKE, Attorney for Defendants Henry Stiles et al. EOGEE LEE, Attorney for Defendant Victoria Eoe. CHAELES KENT, Guardian ad litem for Infant Defendants Edwin Eoe et al. 170 POEMS OF PLEADINGS AND PEECEDENTS. ORDER SENDING CAUSE TO TRIAL TERM. At a Special Term, Part — , of the Su- preme Court of the State of New- York, held in and for the county of New York, at the County Court House, in the borough of Manhattan, of the city of New York, on the twelfth day of October, 1903. Present: Hon. James Beonson, Justice. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe and Isabel Roe, his wife, George Roe, individually and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as general guardian of said Edwin Roe, Thomas Roe, and Marie Roe, infant defendants, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually and as sole adminis- trator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, de- ceased, Defendants. * Order for Trial hy Jwry. The application to settle the issues herein arising upon the answer of the defendants Richard Roe and Isabel Roe to the complaint herein and the replication of the plaintiffs and the pleadings of the other defendants to said answer ; for the purpose OEDER SEISTDING CAUSE TO TRIAL TEEM. 171 of submitting the same -to a trial by jury in this action, and for an order directing the trial thereof at the next Trial Term of this court and for such further or other order as the court shall deem meet coming regtdarly on to be heard, upon due notice served with a notice of trial herein and proposed issues of fact to be so submitted, to the attorneys and guardian ad litem for all of the defendants herein, and upon reading the affidavit of Richard Fenn, Esq., the plaintiffs' attorney, and the pleadings in this action and after inspecting the records and files of this court in this action whereby it appears that this action was brought for the partition and sale of certain real property owned in common by the parties hereto, situate in the borough of Manhattan of the city of New York, county and State of New York. That the verified complaint and the notice of the pendency of this action were at the same time filed in the office of the clerk of said county of New York on the thirteenth day of April, 1903, and that the summons herein was duly served personally in this State upon said defendants, Richard Roe, Isabel Roe, James Roe, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, individually and as sole administratrix of the goods, etc., of Charles Roe, deceased, Henry Stiles, surviving husband of Frances Roe Stiles, deceased, and as sole administrator of her estate, Mary Roe Jones, and Henry Stiles, Jr., within sixty days after the filing of the said verified complaint and the notice of the pendency of this action, to wit, on the twentieth day of April, 1903 ; and upon said defendant William Cole personally out of this State, pursuant to an order of the Hon. James Bronson, one of the justices of this court, of the ninth day of May, 1903, which order and the papers upon which it was granted were first duly filed with the summons and the verified complaint herein, and which summons when so served npon said William Cole had subjoined thereto and served there- with the notice prescribed by law to be subjoined to and served with the summons in such cases, subscribed by the plaintiffs' attorney ; and that there were also served with the service of said summons a copy of said complaint and of said order, as directed by said order and in the manner and within the time prescribed by law,. to wit on the sixteenth day of May, 1903, and upon said defendant, Richard Roe Cole, out of this State by publication and mailing pursuant to an order of the Hon. James Bronson, one of the justices of this court, of the ninth day of May, 1903, which order and the papers upon which it was granted were first duly filed with the summons and verified complaint herein, which 172 FORMS OF PLEADINGS AND PEECEDENTS. summons when so served, had subjoined thereto and published therewith the notice prescribed by law to be subjoined thereto and published therewith in such cases, subscribed by the plaintiffs' attorney, and which summons when so mailed had said notice subscribed by the plaintiffs' attorney subjoined thereto, and there were mailed therewith a copy of said verified complaint and of said last named order, all enclosed in a securely sealed envelope with the postage thereon prepaid directed to said Eichard Roe Cole at Trenton, New Jersey, his last known residence and post- office address, as directed by said order and in the manner and within the time prescribed by law, to wit : on the tenth day of May, 1903, and upon said unknown owners, among whom is the defend- ant Victoria Eoe, out of this State by publication, pursuant to an order of Hon. James Ercnson, one of the justices of this court, of the sixteenth day of May, 1903, which order and the papers upon which it was granted were first duly filed with the sum- mons and verified complaint herein; and which summons when so served upon said unknown defendants had subjoined thereto and published therewith the notice prescribed by section 442 of the Code of Civil Procedure and in addition thereto the matters prescribed in section 1541 of the Code of Civil Procedure, stating briefly the object of this action, to wit: that it was for the parti- tion of certain real property situate in the city, county, and State of 'New York, of which William Eoe died seized on the first day of July, 1890, and contained a brief description of the said real property, to wit: two lots of land and dwellings thereon, situate on the southerly side of Fennimore street, distant two hundred feet easterly from the easterly side of Cooper avenue and known C'S nvanbers IS and 20 Fennimore street, subscribed by the plain- tiffs' attorney, and published as directed by said order, and in the manner and within the time prescribed by law, to wit, on the seventeenth day of May, 1903. And it further appearing that pending this action, the defend- ant James Eoe died intestate at the borough of Manhattan of the city of New York, county of New York aforesaid, leaving him surviving, as his only heir at law, his only issue, George Eoe, and that the said George Eoe was thereafter appointed sole ad- ministrator of the estate of his said deceased father, James Eoe, by the Surrogate's Court of the county of New York, by its order made and filed on the seventeenth day of August, 1903, and it also appearing that pending this action said Ethel Eoe was appointed the general guardian of said infant defendants, Edwin Eoe, Thomas Eoe, and Marie Eoe, by =airl Sm-rno-ntp'c! nnm-f n-f +Tio ORDER SENDING CAUSE TO TRIAL TERM. 173 county of New York by its order made and filed therein on the thirtieth day of July, 1903, and that letters of guardianship were thereupon granted unto her, and that thereupon the plaintiffs obtained an order of this court, giving them leave to file and serve a supplemental complaint herein, setting up the death of said de fendant, James Eoe, and the descent of his share and interest in said real property to his only issue and heir, said George Eoe, and of the appointment of said George Eoe as sole administrator of the goods, etc., of said James Eoe, deceased, and also setting up the said appointment of Ethel Eoe, as the general guardian of said infant defendants, Edwin Eoe, Thomas Eoe, and Marie Eoe, since the commencement of this action and also giving them leave to file a supplemental notice of the pendency of this action, and also giving them leave to issue and serve a supplemental sum- mons upon said George Eoe individually and as sole adminis- trator, as aforesaid, and upon the said Ethel Eoe, as the general guardian of the said infant defendants, Edwin Eoe, Thomas Eoe, and Marie Eoe, and it further appearing that the plaintiffs filed their said supplemental complaint duly verified, together with a supplemental notice of the pendency of this action, and issued and duly served the said supplemental summons, together with a copy of the verified complaint, and of the supplemental complaint upon the said defendant, George Eoe, individually, and as sole administrator of the goods, etc., of said James Eoe, deceased, and upon said Ethel Eoe, as general guardian, as aforesaid, and that they have respectively appeared herein by Sydney Gray, Esq., their attorney, and also duly served said supplemental complaint and order allowing the same upon all of the other parties to this action, and that all of the parties to this action have appeared herein, and all have pleaded herein except the defendant William Cole and that his time to plead has expired. That all of the parties interested in said real property are of full age except the defendants Edwin Eoe, Thomas Eoe, and Marie Eoe, and that said Edwin Eoe and Thomas Eoe are infants over fourteen years of age and said Marie Eoe is an infant under fourteen years of age, and that all of said infants reside with their widowed mother, said Ethel Eoe, in the borough of Manhattan of the city of JSTew York aforesaid, and that they have been duly served with the summons herein as aforesaid and that they have duly appeared and answered herein by Charles Kent, Esq., their guardian ad litem, first duly appointed such guardian by the sev- eral orders of this court made and filed in this action and who 174 FOEMS OF PLEADINGS AND PEBCEDEKTS. duly qualified before appearing herein as such guardian. Whereby it appears to the court and the court doth find that the summons and copy of the complaint in this action have been duly served upon all of the defendants herein; and that an issue of fact to be tried by a jury has arisen upon the pleadings in this action.*** And after hearing upon this application, Richard Fenn, Esq., of counsel for the plaintiffs, Milton Morris, Esq., of counsel for the defendants Eiehard Eoe and Isabel Eoe, and Charles Kent, Esq., guardian ad litem for the said infant defendants, Horace Lake, of counsel for the defendants Henry Stiles and William Cole, Eoger Lee, Esq., of counsel for the defendant Victoria Hoe, and Sydney Gray, Esq., of counsel for the remaining defendants, it is, on motion of Eiehard Eeim, Esq., of counsel as aforesaid, Ordered and the court doth hereby order that the issues of fact in this action be tried upon the pleadings herein,*''' and it is further Ordered that this cause be placed on the Special Calendar to be called at Part 2nd, of the Trial Term of this Court for the first Monday of November next to be there disposed of in its regular order thereon. ^'^^ And it is further i Ordered that the clerk at the Trial Term of this court before which the said trial shall be had certify and return the order and directions of the court at such trial settling the questions to be. submitted to the jury and the findings and verdict of the jury thereon to the Special Term, Part — of this court to be held in and for the county of New York aforesaid, to the end that the said cause be placed on the special preferred calendar to be called in Special Term, Part — of this court that such further pro- ceedings to final judgment therein may be had as shall be proper. *''' Enter, J. B., J. S. C. (0) The fact of the due service of the summons upon all of the defendants should be found by the court before ordering a trial. (6) The issues to be tried by a jury in an action of partition may be tried on the pleadings. Code, § 1544. (c) In the first district the court does not set a particular day in term for the trial. ( d ) The order should direct the clerk at Trial Term to certify the findings and verdict, and virhere questions are not framed at Special Term, the order and directions framing the questions for the jury, to the Special Term, and not to the justice himself. Cuthbert v. Ives, 48 N. Y. St. Hep. 740. The jury trial being in the same court, the court in making the order can direct the clerk at Trial Term' to certify the verdict to the Special Term. The facts appearing of record found in the order are found from an inspection of the record, which is better evidence than an aflftdavit of what the records show. NOTE OF ISSUE FOK TRIAL TERM. 175 NOTE or ISSUE FOR TEIAL TERM. SUPEEME COUET OF New YoEK. County of New Yoek. John Doe et al.. Plaintiffs, vs. Richard Roe et al., Defendants. Plaintiff's Note of Issue (a). Calendar JSTo. 3 (b). Special Calendar. Part 2d, Trial Term (c). Richard Fenn, Attorney for Plaintiffs. Milton Morris, Attorney for Defendants Richard Roe and Isabel Roe. Sydney Gray, Attorney for Defendants Mary Roe Jones et al. Horace Lake, Attorney for Defendants Henry Stiles and William Cole. Roger Lee, Attorney for Defendant Victoria Roe. Charles Kent, Guardian ad litem for Infant De- fendants Edwin Roe et al. The last pleading was served September 25, 1903. An issue of fact arising in an action for the partition and sal^ of real property, to be tried by a jury in pursuance of an order of the Special Term, a copy whereof accompanies this note. (a) The court at Special Term does not fix a day on which the cause shall be tried. But notice of trial for the term must be duly served and the note of issue with a certified copy of the order of the Special Term must be duly filed with the calendar clerk, and thereupon it is the clerk's duty to put the cause on the day calendar for trial in its proper order. (6) Rule 1, First Judicial District. (c) Rule V, First Judicial District. 176 FOBMS OF PLEADINGS AND PKECEDENTS. ORDER or COURT AT TRIAI TERM SETTLING THE ISSUES TO BE SUBMITTED TO THE JURY. At a Trial Term, Part — , of the Su- preme Court of the State of New York, held in tod for the county of 'New York at the County Court House in the borough of Manhattan of the city of New York on the ninth day of November, 1903. Present: Hon. Thomas Sabgeant, Justice. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Roe et al.. Defendants. Order Settling the Issues for ^ Trial by Jury. The issues of fact to be tried by a jury in this action coming regularly on to be heard upon the pleadings herein pursuant to an order herein made at Special Term and filed herein on the twelfth day of October, 1903, in the presence of Richard Fenn, Esq., of counsel for the plaintiffs, and Milton Morris, Esq., of counsel for the defendants Richard Roe and Isabel Roe, Sydney Gray, Esq., of counsel for the defendants George Roe individiially and as sole administrator, etc., Ethel Roe individually and as sole adminis- tratrix, etc., and as general guardian, etc. Mary Roe Jones, Rich- ard Roe Cole, and Henry Stiles, Jr., Horace Lake, Esq., of counsel for the defendant Henry Stiles individually and as sole administrator, etc., and William Cole; Roger Lee, Esq., of coun- sel for the defendant Victoria Roe ; Charles Kent, Esq., guardian ad litem for the infant defendants Edwin Roe, Thomas Roe, and Marie Roe, and an application being made by the respective coun- sel for a settlement of the issues to be submitted to the jury upon the pleadings herein, it is on motion aforesaid ORDEE SETTLING ISSUES FOE JUET. 177 Ordered, that the following questions of fact be submitted to the jury.*"* First. Was said William Roe, deceased, seized in fee simple absolute and possessed of the real property mentioned and described in the complaint herein at and prior to the fifteenth day of June, 1890? Second. Did the said William Eoe, and Florence Eoe, his wife, on the said fifteenth day of June, 1890, or at any time before or after that date acknowledge their certain deed in writing, con- veying the said real property to their son, the defendant herein, Eichard Eoe ? Third. Did the said William Eoe on said fifteenth day of June, 1890, or at any time before or after that date deliver to said Eichard Eoe a deed in writing conveying the real property men- tioned in the complaint herein to the said defendant, Eichard Eoe? Fourth. Did the said William Eoe on the first day of July, 1890, at the city of ISTew York, county and State of New York, die intestate ? Fifth. Did the said William Eoe on the said first day of July, 1890, at the city of 'New York, county and State of New York, die possessed of the real property mentioned and described in the complaint herein and seized thereof in fee simple absolute ? Sixth. Did the said William Eoe die possessed of any other real property situated in the State of New York ? Seventh. If you find the fifth question of fact in the affirmative, then find who are the heirs and the devisees of deceased heirs dying testate and the heirs of deceased heirs dying intestate of said William Eoe. State the degree of relationship of each heir now living to the said William Eoe, and the degree of relation- ship to him of the ancestor where an heir of said Vv^illiam Eoe has died leaving heirs or devisees, and the name of the wife or husband of any heir and of any devisee now married, and of the widow or surviving husband of any heir, devisor, or devisee deceased leaving a husband or a wife still surviving; and state what, if any, wills of said heirs or devisees of deceased heirs dying testate have been proved in this State. (a) The directions to return to the Special Term of the court is contained in the order of the Special Term sending the cause to the Trial Term. (6) The special verdict or findings must be in/writing and be filed with the clerk and the clerk must make an entry in his minutes specifying the time and place of trial, the names of the jurors and witnesses, the verdict, or the questions and findings thereon as the case requires, and the directions if any which the court gives with respect to the subeequent proceedings. Code, §§ 1187, 1189. 186 FORMS OF PLEADINGS AM'D PKECEDENTS. NOTICE OF MOTION FOR NEW TRIAL. Supreme Court of New York. CouiTTT of IfEW York. John Doe and Jeannette Doe, his wife, vs. Richard Koe et al, Plaintiffs, Defendants. > Notice of Motion. Please take notice that I shall move before Mr. Justice Thomas Sargeant, at a Trial Term of this court, Part — , to be held at the New York County Court House, in the city of New York, on Wednesday, November eleventh, 1903, at 10.30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for a new trial upon the justice's minutes, or for such other order as may be meet. Dated November 9, 1903. Yours, etc., MILTON MOERIS, Attorney for Defendants, Richard Roe et al.*** To Richard Fenn, Esq., Plaintiffs' Attorney. Sydney Gray, Esq., Attorney for George Roe et al. Horace Lake, Esq., Attorney for Henry Stiles et al. Roger Lee, Esq., Attorney for Victoria Roe. Charles Kent, Esq., Guardian ad litem for Edwin Roe, Thomas Roe, and Marie Roe. (a) This motion is usually made orally in the presence of the opposing coun- sel in open court, immediately after the receipt of the verdict. The steno- grapher notes the mdtion, its denial, and the exception thereto on his minutes. OEDEE DENYING MOTION FOE NEW TRIAL. 187 Due service of the above notice is hereby admitted. Dated November 9, 1903. EICHAED FENN, Plaintiffs' Attorney. SYDNEY GKAY, Attorney for Defendants, George Roe et al. HOEACE LAKE, Attorney for Defendants, Henry Stiles et al. EOGER LEE, Attorney for Defendant, Victoria Eoe. CHAELES KENT, Guardian ad litem for Infant Defendants. ORDER DENYING MOTION FOR A NEW TRIAL. At a Trial Term, Part — , of the Supreme Court of the State of New York, held at the New York County Court House, in the borough of Man- hattan, of the city of New York, on the eleventh day of November, 1903. Present: Hon. Thomas Saegeant, Justice. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Eichard Eoe et al., Defendants. >. Order Denying Motion. A motion for a new trial upon the justice's minutes being duly made by Milton Morris, Esq., attorney and of counsel for Eichard Eoe and Isabel Eoe, on due notice to Eichard Eenn, Esq., attor- ney for the plaintiffs, Charles Kent, Esq., guardian ad litem 188 FORMS OF PLEiAI>INQS AND PRECEDENTS. for the infant defendants, Sydney Gray, Esq., Horace Lake, Esq., and Roger Lee, Esq., attorneys for the other defendants appear- ing herein, and after hearing the arguments of the respective counsel and duly considering the pleadings, proofs, findings and arguments aforesaid, it is Ordered, That the said motion be and the same hereby is denied.'** Enter, T. S., J. S. C. The defendants, Eichard Roe and Isabel Roe, by Milton Morris, their attorney and counsel, except to the aforesaid ruling of the court, denying their aforesaid motion for a new trial.'"* MILTOE" MORRIS, Attorney for Defendants, Richard Roe and Isabel Roe. (a) This must be excepted to. (l>) If an appeal be taken on a motion for a new trial on exceptions, pre- pare case as in other actions. A motion for a new trial may be made on one or more exceptions, in which ease only the evidence necessary to present the question of law arising on the bill of exceptions need be presented, forming a " case containing exceptions." A motion for a new trial brings up only questions of law for review; an appeal sometimes brings up questions of fact as well ks law, not so on a motion for new trial. A decision by the Appellate Division on a motion for a new trial cannot be appealed to the Court of Appeals. NOTES CONCEEJSriNG PEACTICE ON APPEAL. 189 NOTES CONCERNING PRACTICE ON APPEAX. Serve proposed case and exceptions arid notice as follows: "Please take notice that the within is a copy of the case and exceptions proposed on hehalf of the defendants Richard Roe and Isabel Roe herein. " Yours, etc., " MILTON MORRIS, " Attorney for Defendants Richard Roe et al." Dated . To . (Serve on the attorneys for all of the other parties.) The opposite party may serve: Amendments to proposed case on appeal within ten days; Whereupon within four days give notice of settlement of mot less than four days nor more than ten days. '"' Endorse a direction for the justice to sign, as folloivs: " The foregoing case, contairdng all of the evidence given upon the trial of this action, is hereby settled, and the clerk of this court is hereby directed to file the same as the case and exceptions en appeal in this action. " THOMAS SARGEANT, "Dated . "/. S. 0." The case as settled should be at once engrossed and then filed. If the attorney for the opposite party should decline to stipu- late that a printed copy be so filed, making it necessary for the printed copy to be compared by the clerk with the case as settled, in order that he may certify it, it appears that the case as settlM should be on file. Formerly the case was settled and then the appellant hccd the case engrossed as settled, and then on notice presented the engrossed copy to the justice, who marked it as the settled case and ordered it on file. The practice is for the attorney to prepare an engrossed copy of the case as settled for the printer; to then prepare for the printer the papers to which the case as settled must he attached, under Rule XLI ; then to the papers thus prepared attach the engrossed copy of the case and exceptions a^s settled; also prefix to these papers the statement of the time of the commencement of the action, etc., required by said rule. Then add to the papers a copy of the opinion of the court below, if there he one. If none was given, then add am, affidavit that no opinion was given and have them printed. The printed papers must be arranged in the order named in Rule XLI. This is mentioned as an attorney or (a) General Rule XXXIII. 190 FORMS OF PLEAI>IH^GS AND PRECEDENTS. printer migJii arrange them in a different order. He might insert the evidence after the pleadings and before the judgment. 1. Statement required by Bute XLI. 2. Notice of appeal. S. Summons. Jf. The pleadings, minutes of trial, including the verdict, the order denying the motion for a new trial, and exception thereto, and then the case. These papers must be certified by the cleric as required by the rule unless, as is usual, the stipulation of waiver under section 8301 of the Code is added, which may read as follows: " Pursuant to Section 3301 of the Code of Civil Procedure, it is hereby stipulated that the foregoing printed papers contain true copies of the notice of appeal, pleadings, order submitting the cause to trial by a jury, the issues of fact submitted to the jury, the findings and verdict of the jury, minutes of the trial, the order denying the motion for a new trial, exception thereto filed in this action November eleventh, 1903, and case, and excep- tions, and order settling the same and filed herein in the office of the clerh of the county of New York, and certification thereof by the said county clerk is hereby waived." Dated December — , 1903. MILTON MORRIS, Attorney for Defendants Richard Roe et al. RICHARD FENN, Attorney for Plaintiffs. SYDNEY GRAY, Attorney for Defendants George Roe et al. HORACE LAKE, Attorney for Defendants Henry Stiles et al. ROGER LEE, Attorney for Defendant Victoria Roe. CHARLES KENT, Guardian ad litem for Infant Defendants Edwin Roe, Thomas Roe, and Marie Roe. PEO'POSED OEDEE OF APPELLATE DIVISION. 191 The printed copy is also generally filed as the case on appeal by consent and a consent is written as follows: It is hereby stipulated that the foregoing printed case be filed as the case on appeal herein. Dated December — , 1903. Signed by the Attorneys for all of the parties. Plaintiffs and Defendants, and presented to the Justice who thereupon writes: "So ordered. " THOMAS SABGEANT, "J. 8. C" PROPOSED ORDER DENYING MOTION FOR NEW TRIAL AT APPELLATE DIVISION. At a Term of the Supreme Court of the State of New York, Appellate Division First Department, held at the Court House thereof in the county of New York, on the day of February, 1904. Present: Hon. , Presiding Justice. Hon. 5 Hon. Hon. Hon. - Justices. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Kichard Koe et al., Defendants. Proposed Order. The defendants, Eiehard Koe and Isabel Eoe, having moved the court for a new trial upon the minutes of the trial justice 192 FORMS OF PLEADINGS AND PRECEDENTS. at a Trial Term of this court, First Department, held on the ninth day of November, 1903, and their motion having been de- nied and they having duly excepted thereto and appealed from the order of the said trial justice, denying their said motion to the Appellate Division . of this court, First Department, which order was filed in the office of the clerk of the county of New York on the eleventh day of November, 1903, and the said appeal having come regularly on to be heard at a term of said Appellate Division of this court and after hearing Milton Morris, Esq., of counsel for the defendants-appellants and Richard Fenn, Esq., of counsel for the plaintiffs-respondents, and due deliberation having been had thereon, it is, on motion of Richard Fenn, Esq., of counsel for the plaintiffs-respondents, aforesaid, unanimously Ordered, that the said motion for a new trial, be and the same hereby is denied, and that the said order appealed from, be and hereby is in all respects affirmed with costs and disbursements to the plaintiffs. (Endorsed.) Take notice that the within order will be submitted for settle- ment and entry to the Appellate Division of the New York Su- preme Court for the First Department at the Appellate Division Court House, Madison square and East Twenty-fifth street, borough of Manhattan, of the city of New York, county of New York, on February eighth, 1904, at one o'clock P. M. Dated February 6, 1904. RICHAED FENN, Attorney for Plaintiffs-Respondents. To Milton Morris, Esq., Attorney for Defendants-Appellants. (A\dd attorneys for all other defendants.) Due and timely service of the annexed proposed order and notice of settlement is hereby admitted. Dated February 6, 1904. (Admission hy all of the Attorneys and the Guardian ad litem.) OBDES OF APPELLATE DIVISION. 193 OSDES DUETTINO KOTION FOR A NEW TBIAI — APPELLATE DIVISION. At a Term of the Supreme Court of the State of New York, Appellate Di- vision, First Department, held at the Court House thereof in the county of New York on the ninth day of Febru- Present: Hon. Hon. Hon. Hon. Hon. ary, 1904. Presiding Justica Justices. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Richard Roe et al.. Defendants. > Order. The defendants, Eichard Roe and Isabel Roe, having moved the court for a new trial upon the minutes of the trial justice at a Trial Term of this court. First Department, held on the ninth day of November, 1903, and their motion having been denied and they having duly excepted thereto and appealed from the order of the said trial justice, denying their said motion to the Ap- pellate Division of this court. First Department, which order was filed in the office of the clerk of the county of New York on the eleventh day of November, 1903, and the said appeal having come regularly on to be heard at a term of said Appellate Di- vision of this court and after hearing Milton Morris, Esq., of counsel for the defendants-appellants and Richard Fenn, Esq., of counsel for the plaintiffs-respondents, and due deliberation having been had thereon, it is, on motion of Richard Fenn, Esq., of counsel for the plaintiffs-respondents, aforesaid, unanimously Ordered, that the said motion for a new trial, be and the same 13 194 FOEMS OF PLEADINGS AND PRECEDENTS. hereby is denied, and that the said order appealed from, be and hereby is in all respects affirmed with costs and disbursements to the plaintiffs. Leave the draft order with the clerk of the Appellate Division^ also leave with him a copy (not a carbon copy) of the order for him to certify and remit, with the papers upon which the appeal was heard, to the County Clerk. After the entry of the order serve a copy endorsed as follows: Please take notice that the within is a copy of an order duly entered in the office of the clerk of the Appellate Division of the New York Supreme Court, First Department, on the ninth day of February, 1904, and that a certified copy thereof together with the remittitur from the said Appellate Division was duly filed in the office of the clerk of the county of New York on the ninth day of February, 1904. Dated New York, February 9, 1904. EIOHAED FENN, Attorney for Plaintiffs-Respondents. To Milton Morris, Esq., Attorney for Defendants-Appellants, Richard Roe and Isabel Roe. Sydney Gray, Esq., Attorney for Defendants, Mary Roe Jones et aL Horace Lake, Esq., Attorney for Defendants, Henry Stiles et aL Roger Lee, Esq., Attorney for Defendant, Victoria Roe. Charles Kent, Esq., Guardian ad litem for Infant Defendants Edwin Roe et al. Due service of the order of which the foregoing is a copy and of the above notice of the filing thereof and of a certified copy of said order is hereby admitted. Dated, February 9, 1904. (Signatures of Attorneys and Guardian ad litem for all Defendants.) OBIKESt TO SHOW CAUSE FOE APPOINTMENT OF BECEIVEE, 195 OEDER TO SHOW CAUSE FOE APPOINTMENT OF A EECEIVEE, Supreme Couet of New Yoek. County of New Yoek. John Doe et al., Plaintiffs, vs. Bichard Roe et al., Defendants. >■ Order to Show Cause. On the annexed affidavits of Richard Fenn, attorney for the plaintiffs and the affidavit of Sydney Gray, attorney for the de- fendants George Roe, Ethel Roe, individually, etc., Maiy Roe Jones, Richard Roe Cole, and Henry Stiles, Jr., and upon the pleadings and proceeding herein, it is, on motion of Richard Fenn, of counsel for the plaintiffs. Ordered, that the defendant Henry Stiles show cause, if any there be, before me or one of the justices of this court, at a special term thereof. Part — , to be held at the New York County Court House in the borough of Manhattan of the city of New York, State of New York, on the sixteenth day of November, 1903, at half -past 10 o'clock in the forenoon, or as soon thereafter as coun- sel can be heard, why a receiver of the rents and issues of the real property mentioned and described in the complaint herein, pending this action, with the usual powers and duties of receivers in such cases, should not be appointed, and why the plaintiffs should not have such further or other order in the premises as shall be meet. Service of a copy of this order on or before the thirteenth day of November, 1903, which must be upon all of the defendants who have appeared herein, shall be sufficient. Dated November 11, 1903. JAMES BRONSON, J. S. C. 196 FOBMS OF PLEADINGS AND PRECEDENTS. ATFIDAVIT FOR APPOINTMENT OF RECEIVE&. Sttpeeme Coubt of New Yoek. County of New Yoek. John Doe et al., Kichard Roe et al., Plaintiffs, vs. y Affidavit. Defendants. State of New Yoek, Coiinty of New York, Richard Fenn, the plaintiffs' attorney herein, being duly sworn, deposes and says that the above entitled action is brought for the partition of two houses and the lots whereon they stand, situated in the borough of Manhattan of the city of New York, county and State of New York, and known as Nos. 18 and 20 Fennimore street. II. That the said premises belonged to one William Roe, who died possessed thereof on the first day of July, 1890, intestate, leaving him surviving Florence Roe, his widow, and the following named children and grandchild, his only heirs at law: Richard Roe, James Roe, Charles Roe, Henry Roe, Mary Roe Jones, wife of William Jones, Helen Roe Cole, wife of William Cole, Frances Roe Stiles, wife of Henry Stiles, children, and John Doe, his grandchild, only child of the deceased daughter, Ruth Roe Doe. III. That after the death of said William Roe, his said widow died, and the following named children also died: Frances Stiles,, who died intestate, leaving her surviving her husband, Henry Stiles, and Henry Stiles, Jr., her son and her only heir at law, defendants in this suit; Helen Roe Cole, who died testate, leaving her surviving her husband, William Cole, and leaving her surviving her only child, Richard Roe Cole, the devisee of her interest in said real property, and who are defendants in this suit ; Charles Roe, who died intestate, leaving him surviving his widow, Ethel Roe, and their children, Thomas Roe, Edwin Roe, and Marie Roe, his only heirs at law, said widow and children being defendants in this suit; Henry Roe, who died intestate, leaving AFFIDAVITS FOE APPOINTMENT OF EECEIVEB. 197 bim surviving his -widow, Victoria Roe, who is a defendant in this &tttt, and leaving him surviving no issue; and James Roe, who died intestate, pending this action, leaving him surviving George Roe, a defendant in this suit, his only heir at law. He left no widow him surviving. IV. That all of the said defendants, except the defendant Wil- liam Cole, whose time to answer has long since expired, have answered herein, raising no issue upon the allegations of the com- plaint except the defendants Richard Roe and Isabel Roe, his wife, who answered claiming that the said deceased William Roe and Florence Roe, his wife, conveyed the said premises to him, said Richard Roe, a short time prior to the death of said William Roe. V. That the issues in said action have been tried by a jury at a trial term of this court, and»a verdict rendered by said jury against the claim of said Richard Roe and Isabel Roe. VL That annexed hereto, marked " schedule A," is a full and true copy of said verdict. That said Richard Roe has appealed to the Appellate Division from an order denying his motion for a new trial upon the justice's minutes. VH. That said premises have been in the possession of the defendant Henry Stiles from the death of said Florence Roe to the present time, and that he has during all of this time collected the rents thereof and retained the same and continues to collect the rents of said premises and retain the same. Vlll. That demand has been made upon him that the said rents be shared among the tenants in common, with which de- mand he refuses to comply. That the rental value of said prem- ises, as near as deponent cam ascertain, is two thousand dollars per annum. That no other application for the order applied for hereon has been made to any other court or judge Sworn, etc. RICHARD FEPTN'. 198 FOEMS OF PLEADINGS AND PRECEDENTS. APFILAVIT FOE APPOINTMENT OF EECEIVEE AHD PBOOF OF SEBVICE OF OSDES TO SHOW CAUSE AND AEFEDATTTS. Supreme Coubt of 'Nsw YoEKi County of New Yoek. John Doe et al.. Plaintiffs, vs. Bichard Boe et al., Defendants. State of New Yoek, 1 County of New York, J Sydney Gray, being duly sworn, deposes and says that he has appeared herein for the defendants, George Eoe, Ethel Koe, indi- vidually, etc., Mary Roe Jones, Richard Eoe Cole, and Henry Stiles, Jr., and that this deponent desires that a receiver be ap- pointed for the said premises. That deponent's clients represent at least an one-half interest in said premises. Sworn, etc. SYDNEY GRAY. Endorse the order to show cause and the annexed affidavits as follows: Due service of the within order to show cause and the within affidavits of Richard Fenn and Sydney Gray is hereby admitted. Dated November 12, 1903. MILTON MORRIS, Attorney for Defendants, Richard Roe et al. SYDNEY GRAY, Attorney for Defendants, Mary Roe Jones et al. HORACE LAKE, Attorney for Defendants, Henry Stilea et al. ROGER LEE, Attorney for Defendant, Victoria Roe. CHARLES KENT, Guardian ad litem for Infant Defendants, Edwin Roe et al. OKDEE APPOINTING EECEIVEE 199 OBDEfi APPOINTING KECEIVEE. At a Special Term, Part — , of the Supreme Court of the State of New York, held in and for the county of New York, at the New York County- Court House, in the borough of Man- hattan, of the city of New York, on the 16th day of November, 1903. Present: Hon. James Beonson, Justice, John Doe et al., Plaintiffs, vs. ^ Order. Richard Roe et al.. Defendants. The order to show cause why a receiver should not be appointed in the above-entitled action coming regularly on to be heard upon due notice to all of the parties who have appeared herein, and after hearing Richard Fenn, of counsel for the plaintiffs, in favor of said motion, and in the presence of Charles Kent, Esq., guardian ad litem of the infant defendants, and of Horace Lake, Esq., attorney for the defendants, Henry Stiles and others, Sydney Gray, Esq., attorney for the defendants, Ethel Roe and others, and upon reading and filing the affidavits of Richard Fenn and Sydney Gray, sworn to herein on the eleventh day of Novem- ber, 1903, and due proof of the service of the said order to show cause and affidavits upon all the parties entitled thereto, and on motion of Richard Fenn, of counsel for the plaintiffs, it is Ordered, That James Clarke, counsellor at law of the borough of Manhattan, of the city of New York, be and he hereby is ap- pointed receiver in this cause to take charge of the premises in the complaint herein mentioned and described and to manage the same with power to let the same and every part thereof, to sue for, collect, and receive the rents, issues, and profits thereof and to do all things necessary for the proper care and management of said premises; and it is further Ordered, That the tenants occupying said premises and every part thereof attorn to and pay the rent due and to become due 200 FOEMS OF PLEADINGS AND PRECEDENTS. to the said receiver, and that out of the rents received by said receiver, he pay the taxes, assessments, if any, water rents which are due and unpaid and remain a lien upon said premises, if any such there be, without further order, and also any which shall fall due pending his receivership, and that he account for the moneys which he shall so receive unto this court, as the court shall direct; and it is further Oedeeed, That before entering upon his duties he execute and file with the clerk of this court the usual receiver's bond with sufficient surety for the faithful performances of his duties, to be approved by a justice of this court, in the penalty of two thousand dollars, and that the plaintiff have ten dollars costs of this motion, to be included in their bill of costs to be taxed herein. Enter, J. B., J. S. C. Please take notice that the foregoing is a copy of an order this day entered and filed in this action in the office of the clerk of the county of New York. Dated November 16, 1903. KICHAED FEJSTN, Plaintiffs' Attorney. To (Names of the attorneys and guardian ad litem for all the defendants.) Due service of the foregoing order and notice of the entry and of the filing thereof is hereby admitted. Dated November 16, 1903. (Signatures of the attorneys and guardian ad litem for all the defendants.) BOND OF BECEIVEB. Know all men by these presents, that we, James Clarke, of the borough of Manhattan, of the city of New York, State of New York, and James Doe, of the same place, and James Roe, of the same place, are held and firmly bound unto The People of the State of New York in the sum of two thousand dollars, lawful money of the United States of America, to be paid to tho BOND OF EECEIVER. 201 said The People of the State of New York ; for which payment, well and truly to be made, we and each of us bind ourselves respectively, and our respective heirs, executors, and adminis- trators jointly and severally, firmly by these presents. Sealed with our seals and dated the seventeenth day of Novem- bery 1903. Whereas by an order of the Special Term of the Supreme Court of the State of New York, held in the county of New York, at the County Court House in the borough of Manhattan, of the city of New York, on the sixteenth day of November, 1903, present, Hon. James Bronson, justice, in an action in said court wherein John Doe and Jeannette Doe are plaintiffs and Richard Roe and others are defendants, the said James Clarke was appointed a receiver of the rents and issues of the real property sought to be partitioned in said action. Now the condition of the above obligation is such that if the above bounden James Clarke shall duly and faithfully account for and pay what he shall receive of said rents and issues as the court shall direct, and shall in all things well and truly fulfil and discharge the duties of his said ofiice of receiver, then this obli- gation to be void; otherwise to remain in full force and virtue. JAMES CLARKE. [l. s.] JAMES DOE. [L.S.] JAMES ROE. [l. s.] Sealed and delivered ii;^ the presence of A. B. State, of New Yoek, \ County of New York,/ James Doe and James Roe, being severally duly sworn, say each for himself that he is a freeholder in the city and State of New York and is worth two thousand dollars and upwards over and above all of his debts and liabilities, exclusive of property exempt by law from execution. Svi^om to before me this seventeenth JAMES DOE. day of November, 1903. JAMES ROE. A. B., Notary, etc. ^.1 State of New Yobk, County of New York, I hereby certify that on this seventeenth day of November, 1903, before me personally came James Clarke, James Doe, and 202 FOBMS OF PLEADINGS AND PEECEDENTS. James Eoe above named, to me known and known to me to be tbe persona described in and who executed the above bond, and sever- ally acknowledged to me that they executed the same as their voluntary act and deed. A. B., Notary Public, etc. Endorsement. I approve the within bond as to its form and manner of execu- tion and as to the sufficiency of the sureties. Dated November 17, 1903. JAMES BEONSON, J. S. C. GRANT OF CUBTESY DT A SHABE OF TEE BEAL FB0PSB3T. SXTPEEME CotJET OF New YoBK. County of New Yoek. John Doe and Jeannette Doe, his wife. Plaintiffs, v$. Richard Eoe and Isabel Roe, hia wife, George Eoe, indi- vidually and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Eoe, Thomas Eoe, Marie Eoe, Ethel Eoe, widow of Charles Eoe and as sole ad- ministratrix of the goods, etc., of said Charles Eoe, de- ceased, and as general guardian of said Edwin Eoe, Thomas Eoe, and Marie Eoe, infant defendants, Mary Eoe Jones, Eichard Eoe Cole, William Cole, Henry Stiles, individually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased, Defendants. Deed. I, Henry Stiles, one of the defendants in the above entitled action, in consideration of seven hundred dollars lawful money of the United States, and of paternal affection for my said son, the defendant, Henry Stiles, Jr., do hereby grant and convey unto the said defendant, Henry Stiles, Jr., his heira and assigns forever, all and singular, my undivided share and interest in the real property mentioned and described in the complaint DEED GRANTING ESTATE OF CURTESY. 203 ierein as tenant by the curtesy of my deceased wife, Frances Koe Stiles, which real property may be more particularly described as follows: All that certain lot of land and premises situate in the borough of Manhattan of the city of New York, county and State of N'ew York, commencing at a point on the southerly side of Fennimoro street, distant easterly two hundred feet from the easterly side of Cooper avenue; thence running southerly parallel with Cooper avenue one hundred feet; thence running easterly parallel with Fennimore street fifty feet ; thence running northerly parallel with Cooper avenue one hundred feet to the southerly side of Fehiiimtore street ; thence running westerly along said southerly side of Fenni- more street fifty feet to the place of beginning. In witness whereof I have hereunto set my hand and seal this twentieth day of February, ninieteen hundred and four. HENEY STILES. [seal.]<'> Sealed and delivered in the presence of HORACE LAKE. State of New Yoek, ■}' New York County. On this twentieth day of February, 1904, before me personally came Henry Stiles to me known and known to me- to be the in- dividual described in and who executed the foregoing deed and acknowledged to me that he executed the same. DANIEL LANE, Notary Public, N. Y. Co., Take this grant to the office of the Register of the county and have it recorded. Afterwards produce and prove it before Edgar Carson, the referee, and file it or a certified copy, with the papers in the action, in the office of the clerk of thel county of New York; the grant having been made after the filing of the notice of the pendency of the action. (a) According to the rules of the Common Law relating to the transferring of an interest in real property from one person to another, Henry Stiles could not transmit his curtesy to his son, Henry Stiles, Jr., by a deed of release because Henry Stiles was in possession, and a release operated to convey an interest held by a person not in possession, to a person in possession; thus 204 FOEMS OF PLEADINGS AND PRECEDENTS. CONSENT TO RECEIVE A GROSS SUM IN SATISFACTION OF DOWER. StrPEEME COUET OF 'NsW YOEK. New York County. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Widow's consent >- to receive a gross sum. Eichard Eoe and Isabel Eoe, his wife, George Koe, indi- vidually, and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole ad- ministratrix of the goods, etc., of said Charles Roe deceased, and as general guardian of said Edwin Roe, Thomas Roe and Marie Roe, infant defendants, Mary Roe Jones, Richard Eoe Cole, "William Cole, Henry Stiles, individually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Eoe, deceased. Defendants. I, Ethel Roe, a defendant in the above entitled action and widow of said Charles Roe, deceased, do hereby consent to receive in satisfaction of my estate or right of dower in the undivided share or interest in the real property mentioned and described in the complaint herein, of which my said late husband died pos- sessed, a gross sum to be fixed according to the principles of law applicable to annuities. Sealed and delivered ETHEL ROE. [seal.] in the presence of fine of the modes of conveyance was » lease of the premises to the intended purchaser, who went into possession under the lease, and who was then in a position to take a release of the fee to himself, and thereupon a deed of release was made and delivered to him. This mode of conveyance was in use in the early history of this state also. Henry Stiles, being in possession could transmit his interest in the property to his son, the remainderman, by enfoeff- ment, which was a delivery of the possession, thereby putting the son in pos- session. By statute of this state, the word "grant" performs the oflSce of an enfoeffment and the conveyance by Henry Stiles of his curtesy to Henry Stiles, Jr., is by an instrument of grant and not by release. In the case of an inchoate right of dower, the husband being in possession, the wife releases her inchoate right of dower to him. AGKNOWLEIXJMENT AND PEOOF TAKEN IN ANOTHES STATE. 206 ACEJf OWLEDGKENT AND PROOF TAZEBT IS ANOTHER STATE. State of New Jersey. ~ss.: Morris County. }' Be it remembered, that on this day of ■ in the year nineteen hundred and four, before me, the subscriber, A. B., a commissioner of deeds in and for the county of Morris, State of New Jersey, personally appeared Ethel Roe, to me known and known to me to be the grantor in the foregoing instrument named and who executed the same, and I having first made known to her the contents thereof, she did thereupon acknowledge that she signed, sealed, and delivered the same as her voluntary act and deed. [seal.] a. B., Commissioner of Deeds, as aforesaid. State op New Jersey. Morris County. }' I, , clerk of the county of Morris and clerk of the Circuit Court and Court of Common Pleas of said county, said courts being courts of record, do hereby certify that A. B., whose name is subscribed to the proof or acknowledgment of the annexed instrument and thereon written was at the time of taking such proof or acknowledgment, a commissioner of deeds for said county and dwelling in said county, commissioned and sworn and authorized by the laws of this State to take and certify acknowl- edgments and proofs of deeds of conveyance for lands, tenements, and hereditaments to be recorded in this State, and further, that T am well acquainted with the handwriting of said commissioner of deeds and that I verily believe that the signature to said certifi- cate is genuine. In testimony whereof I have hereimto set my hand and affixed the seal of [seal.] said courts and county, this day of , 1904. Clerk.(»> (a) File this with the papers in the miction in the office of the clerk of the county of New York, Code | 1569. 206 IX^EMS OF PLEADINGS AND PRECEDENTS. CONSENT TO EECEIVE A GBOSS SUU IN SATISFACTION 07 DOW££. Supreme Court of New York. l^:EVf York County. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Widow't consent y to receive a gross sum. Richard Roe and Isabel Roe, his wife, George Roe, individually, and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as general guardian of said Edwin Roe, Thomas Roe, and Marie Roe, infant defendants, Mary Roe Jones, Richard Roe Cole, "William Cole, Henry Stiles, individually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased, Defendants. I, Victoria Roe, a defendant in the above entitled action and widow of said Henry Roe, deceased, do hereby consent to receive in satisfaction of my estate or right of dower, in the undivided share or interests in the real property mentioned and described in the complaint herein, of which my said late husband died pos- sessed a gross sum to be fixed according to the principles of law applicable to annuities. VICTORIA ROE. [seal.] Sealed and delivered in the presence of HORACE LAKE. State of New York, "l New York County. j On this day of , 1904, before me personally came Victoria Roe, to me known and known to me to BELEASE OF DOWEB BY A WIFE. 207 be the individual described in and who executed the foregoing deed and acknowledged to me that she executed the same. HORACE LAKE. Notary Public N. Y. Co.,<'> No. BET.EASE OF INCHOATE BIGHT OF DOWEB BY A WIFK SUPEEMB COUET OF NeW YoEK. New Yoek t)ouNTY. John Doe and Jeannette Doe, his wife, vs. Plaintiffs, Wife's y release ofdoieer. Eichard Roe and Isabel Roe, his wife, George Roe, in- dividually, and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as general guardian of said Edwin Roe, Thomas Roe, and Marie Roe, infant defendants, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased. Defendants. I, Jeannette Doe, wife of John Doe, a plaintiff in the above entitled action, do hereby release to John Doe, my husband, my inchoate right of dower in his undivided share of the real prop- erty mentioned and described in the complaint herein and which property is to be sold in this action for a partition and sale 1 hereof. JEANNETTE DOR [seai.] Sealed and delivered in the presence of HORACE LAKE. (a) File this -with the papers in the action in the office of the clerk of the coilnty of New York. Code § 1569. 208 FORMS OF PLEADINGS AND PEECEDENTS. State of New Yoek, New York County. Iss.." On this day of -, 1904, before me personally came Jeannette Doe, to me known and known to mo to be the individual described in and who executed the foregoing deed and acknowledged to me that she executed the same. HORACE LAKE,<'" Notary Public N. Y. Co., No. KOnCE OF MOTION FOB ORDER OF REFERENCE FRELIHI- NART TO INTERLOCUTORY JUDGMENT, (k) SupeeMe Couet of New Yoek. New York Ooontt. John Doe and Jeannette Doe, his wife, PlaintifFs, vs. J/otioe of motion. Richard Roe and Isabel Roe, his wife, George Roe, in- dividually, and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, and Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as general guardian of said Edwin Roe, Thomas Roe, and Marie Roe, infant defendants, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually, and as sole administrator of the goodsj etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased. Defendants. Please take notice, that upOn the annexed affidavit of Richard Fenn, the plaintiff's attorney, made on the tenth day of (a) File this with the papers in the action in the office of the clerk of the county of New York. Code § 1571. .<6) The remaining questions must be referred or tried by the court. Code, § 072. SrOTICB OF MOTION FOE OEDEfi OF HEFBEENCB. 209 FebrllAty, 1^04, the veMiet 6f the jtit^ herein certified to this court and ixpoH th6 ^leadihgS, paperS) tod proceedings herein, this court will be moved at a Special Term thereof, Part — , to be held at the New York Coimty Court House in the borough of Manhat- tan of the city of New York on the eighteenth day of February, 1904, at lb :30 o'clock in the forenoon or as soon thereafter as counsel can be heard for a I'eference to some suitable person to lake and state the accounts between the parties hereto of the rents of said real property and to ascertain whether there is any creditor not a party to this action who has a lien on said real property or on the undivided share or interest therein of any party to this action, and whether there is any person not k party to this action having a specific lien on said real property or on the un- divided share or interest thei-ein of any .t)arty to this action, ap- pearing of record at the time of thB filing of the notice, amended notice, or supplemental notice of the pendency of this action and whether the share of any of the parties to this actioti in said teal property is subject to a lien under the tax l&x>f felating to the taxable transferal of pireipeHy and to ihake an abstract of the con- veyance by which said real property is held and for such further or other order herein as mfey be meet. Dated, February 12, 1904. RICHAED FENN, Attorney for Plaintiffs. To Milton Morris, Esq., Attorney for Defendants, Ridiard Eoe and Isabel Roe. Sydney Gray, Esq., Attorney for Defendknts, Mary Roe Jones et al. Horace Lake, Ei^q., Attorney for Defendants, Henry Stiles, fet iH. Roger Lee, Esq., Attorney for Defendant, Victoria Roe. Charles Kent, fesq., Guardian ad litem for Infant Defendants, E(lwin Roft, Thomas Roe, and Mlarie Roe. > A-ffidamt. 210 FOKMS OF PXJIABINGS AND PEECEDENTS. AJKDAVIT ON MOTION FOR ORDER OF REFERENCE PRELIMINART TO INTERLOCTITORY JUDGMENT. Stjpeeme Court of New Yoek. New Yobk County. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Eoe, Isabel Roe, hia wife, and others, Defendants. County of New York. \ State of New Yobk, / Richard Fenn, the plaintiffs' attorney herein, being duly sworn, deposes and says that this action was brought for the partition of certain real property situated in the borough of Manhattan of the city of New York, more particularly described in the com- plaint. II. That all of the defendants have answered herein, except WUliam Roe, whose time to answer has expired, which answers did not take issue upon any of the facts alleged in the complaint as amended and the supplemental complaint, filed herein, except the answer of the defendants, Richard Roe, and Isabel Roe, his wife, who, in their answer claim to own said real property in fee simple absolute under an alleged conveyance thereof by the said William Roe and Florence Roe, his wife, being the common an- cestors of the parties hereto which claim was denied by the reply of the said plaintiffs and by the answers thereto of the several adult defendants and that the issues of fact raised upon the plead- ings in this action were tried by the court and a jury at a Trial Term of this court, Part 2nd, held at the New York County Court House on the ninth day of November, 1903, and a verdict rendered therein that said jury found against the said Ricliard Roe and the said Isabel Roe on all the issues submitted to them and in favor of the plaintiffs and determined the persons who were en- titled to said real property and the interest therein of the several AFBTDAVIT OW M0T102T FOE OBDBB OF KEXFEKBXCB. 211 parties and the jury also found as fact that the said defendant, Henry Stiles had possessed the said real property and collected the rents thereof since the death of said Florence Eoe on the first day of July, 1901, and that he collected said rents for the use and benefit of the several parties hereto according to their re- spective interests in the rents of said real property, which verdict was by the clerk certified to this court at a Special Term thereof for its information in the further proceedings in this action. III. That the said Richard Roe moved the court at said Trial Term upon the justice's minutes for a new trial which motion the taid justice denied to which denial the said defendants, Richard Roe and Isabel Roe excepted, and appealed from the order, deny- ing said motion to the Appellate Division of this court, where said order after argument was affirmed by an order of said Appellate Division, made and entered therein on the ninth day of February, 1904, and a certified copy of which order of affirmance was on the same day remitted to the clerk of the county of New York and filed in this action in his office and that no further proceed- ings have been had in this action. That a copy of said verdict, order denying said motion for a new trial, and the order of affirmation of the Appellate Division as aforesaid are hereunto annexed. That there has been no reference for an accounting between the parties and no reference under Section 1561 of the Code, nor has the court dispensed with the reference required by •aid Section 1561 of the Code. IV. That no other application has been made for the order of reference applied for hereon to any other court or judge. 8wom, etc. RICHARD FEIW. Annex a copy of the verdict and a copy of the order denying the motion for a new trial and of the order of affirmance with the endorsements thereon. 212 SOEiks OF pleAdings 1ni> pk^jedbnts. Due siBrvice of the iibtice of which the fofiegom'g is a co/pf, ilaA oi the affidavit therein mentioned with a copy of said verdici iiikk order is hereby admitted. Dated, February 10, I9d4. itILTOK MDHBIS, Attdriifey iov Defendants Eichaid Bcfe aidd Isabel Eoe. SYDNEr GEAt, Attortiey for Defendants Miiy litde J^dkes et al. HOEACi: LAKE, Attdi^ey for Defetidahts HeEry Stffi^ et al. EbGEELEE, Attorney for Defendant Victoria BoiA. GHAELES KEK"T, Guardian dd litem for Defdndaiitii Ednflft Eoe, Thomas Eoe, and Marie Btfe. OSDEB OF IlEFEBEirCE FEELmOirABY TO IHTEBXOCTrroBT JUDGMENT. At a Special Term; Part — pf th6 Su- preme Court of tiieSta,te of New Yo*, held at the New York County Court House in the borough of Manhattan, of the city of New York, on the eifht^^ day of Febi-uai^, 1904. Present : Hon. JameS BEdNSOw, Justice. John Doe and Jeannette Doe, his wife. Plaintiffs, "'• }■ Order of Reference. Bichard Eoe, et al.. Defendants. A motion on behalf of the plaintiffs for a reference herein to take and state the accounts between the parties hereto of the KKFEBENCE PBELIMINAEy TO INTEPLpCpTOEY JUDGMENT. 213 rejite of said real property, and to ascertain and report whether there is any creditor no^ a party to this action, who has a lien 05 sftid real property or on the nndiyided share or interest thereih of any party to this action, an,d y^bether there is any person not w party ^o this action, having ^ specific lien upon said real prop- erty or on the undivided share or interest therein of any party to ^18 action appearing of record ^t the time of the filing of the i^>ti^, ainended notice, or supplemental notice of the pendency of this action, and whether the share of any of the parties to this aetio^ in saic^ real property is suhject to a lien under the Tax La^ of this State relating to the Taxable Transfers of property aod |p report an abstracf of the ponveyance under which said rci»l property is held and for sucn further order as the court should d0p^ meet, coming regularly on to be heard upon due notice to all of the (defendants who have appeared hereip, upon reading and ^ling ^he notipe of this motion and due proof o;£ the service thereof ^d of the service of the sai(^ affidavit of Richard Fenn, the plaintiffs' attorney and exhibits thereto annexed and it ap- pearing to the court upon this application that the issues of fact raised ijpon the pleadings herein were tried iii this action at a Tri^l Tprpi of this court at said county of New York on the ninth flj^y of Jfovember, 1903, before the Hon. Thomas Sargeant and a jury, aiid a verdict tbereiu r(endprpd by said jury which verdict wi^ its findings of fact was by the clerk at said Trial Term, cer- ti^ed tp ^hig court at a Special Term thereof for its information £(p^ further proceedings in this action ; that the said jury found ^g^in^t said Richard Roe and Isabel Roe on all of the questions stiji^piitted to thiepi and in favor of the plaintiffs, and that said jury alsq found as matter of fact that said defendant, Henry fStiJes bad possessed said real property and had received the rents ibprpof for himself and the other parties to this action who were entitled to share in said rents, since the death of said Florence : Rqe, pame^y, July 1, 1901 ; that the said Richard Roe and Isabel Eqe pioved the court at said Trial Term upon said justice's min- xites for a new trial, which motion said justice denied and to which denial said defendants, Richard Roe and Isabel Roe ex- eepte^j and froin the order denying said motion, said Richard Roe and Isabel Roe appealed to the Appellate Division of this coprt yirhere said orde^ was affirmed, and the order of affirmance was duly entered and a certified copy thereof was remitted to ibp clerk of the county of 'New York and filed in this action in his office and that no further procppdipgs in tjiis action have been 214 FORMS OB PLEADINGS AND PEJECEDBNT8. had now, on motion of Eichard Fenn, Esq., of counsel for the plaintiffs, no one appearing in opposition, it is Oedeeed, That it be referred to Edgar Carson, Esq., of the borough of Manhattan of the city of New York aforesaid, counsellor at law, to take and state an accounting of the rents and issues of the real property described in the complaint herein since the death of said Florence Roe, July 1, 1901, to the time of the appointment of the receiver herein between the parties to this action on the sixteenth day of November, 1903, and to ascertain whether there is any creditor not a party to this action who has a lien on said real property or on the undivided share or interest therein of any party to this action, and whether there is any person not a party to this action, having a specific lien on said real property or on the undivided share or interest therein, of any party to this action, appearing of record at the time of the filing of the notice, amended notice, or supplemental notice of the pendency of this action; and whether the share of any of the parties to this action in said real property is subject to a lien under the Tax Law of this State relating to the Taxable Transfers of property and to make the necessary searches and an abstract of the conveyance by which said real property is held, and that pursuant to Sections 1561 and 1562 of the Cbde of Civil Procedure he cause a notice to be published once in each week for six successive weeks in I%e New York Law Journal^ a news- paper published in the county of New York, and also in the New York Lantern, a newspaper also published in the county of New York, the only county wherein said real property or any part thereof is situated and the county designated for the place of trial of this action,*"* requiring each person not a party to this action, who had a lien upon said real property described in the complaint herein, or upon an undivided share or, interest therein at the date of this order to appear before him at a speci- fied place and on or before a specified time to be therein fixed and prove his lien and the true amount due or to become due to him by reason thereof and to specify the nature and extent of any («) The court must designate in this order the newspaper in which to adver- tise the notice, in the county wherein the place of trial is designated, and where the place designated for the trial and location of the real property is in the same county, one newspaper is sufficient. Code, § 1562. Doremus t. Doremus, 66 Hun, 111. The referee must also advertise the notice in a news- paper published in each county wherein the property is situated. Code, | 1562. The notice must contain the name of every party to the action in order to bar claims against every party. Doremus v. Doremus, 66 Hun, 111. BEFEEENCE PEELIMINAEY TO INTEELOOUTOEY JUDGMENT. 215 such lien/*^ giving a brief description of said real property in said notice, so as to identify the same to all persons reading said notice and to cause a search to be made to ascertain if any person having a specific lien appearing of record, at the time of the filing of the notice, amended notice, or supplemental notice of the pendency of this action, upon the real property mentioned and described in the complaint or upon any share or interest therein, has not been made a party to this action ; and to make an abstract of the conveyance by which said real property is held, and that he proceed herein in all things according to the statutes and the rules and practice of this court and that he report thereon to this court, including all testimony (not documentary), taken by him, his searches and said abstract, and copy of the notice to creditors aforesaid with proof of the due publication thereof. Enter, J. B., J. S. 0. (o)The validity, priority, and amount of specific liens on undivided share* may be litigated and tried either by jury or referee and should be determined in the interlocutory judgment. Winfield v. Stacom, 40 App. Div. 95. Inter- locutory judgment must direct the share chargeable with the debt to be paid into court by the referee making the sale, after deducting its due portion of the coS'ts and expenses. Code, § 1563. TTie direction to pay the debt of the ancestor, which is a lien on the entire property, must be in the final judg- ment. Ck>de, i 1539. 216 POEMS OF PLEADIHGS AITO PEJBOEDENTS. EEPPET OF Ei;FEBEi: PBEUMUrABy TQ DTTEBJWKnrPOET JJTDGWEDST. Supreme Oouet of ifEw Yoek. New Ydek Qounty. John Doe and Jeannette Doe, kis wife, vs. Piainti^Fs, Richard IJoe and Isabel Eoe, his wife, George fioe, in- dividually and as sole administrator of the goods, etc, of James Eoe, deceased, Edwin Roe, Thomas Roe, itarie Roe, Ethel Roe, widow of Charles Eoe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as general guardian of said Edwin Roe, Thomas Eoe, and Marie Roe, infant defendants, Mary Eoe Jones, Eichard Eoe Cole, William Cole, Henry Stiles, individually, and as sole admipistr^tor qf the goods, etc., of Frances Eoe Stileje, deceased, Henry Stiles, Jr., and Victoria Eoe, widow of Henry Eoe, deceased, Defendants. Referee's ^Report. To the Supreme Court of the State of New York: I. I, Edgar Carson, the referee to whom by an order of this court bearing date the eighteenth day of February, 1904, and duly filed herein, it was referred to take and state an account of the rents and issues of the real property mentioned and de- scribed in the complaint herein since the death of said Florence Eoe, July 1, 1901, to the time of the appointment of the receiver herein, between the parties to this action, and to ascertain whether there was any creditor not a party to this action who had a lien on the said real property or upon the undivided share or interest therein of any party to this action at the date of said order and whether there was any person not a party to this action, having a specific lien upon said real property or upon the undivided share or interest therein of any party to this action appearing of record at the time of the filing of the notice, amended notice, or supple- mental notice of the pendency of this action, and whether the share of any of the parties to this action in said real property was subject to a lien under the Tax Law of this State relating HEFEEEES EEPOET PEEUMINAEY TO INTEELOCUTOEY JUDGm't. 217 to the Taxable Transfers of property and to make the necessary searches and an abstract of the conveyance under which s^id real propeitty was held, and to proceed on gaid reference in all things according to law and the rules and practice of this court and to report thereon to this court including all testimony (not docu- mentary), taken by me, including the searches and abstract afore- said and a copy of the notice to creditors published pursuant to Section 1562 of the Oode, with proof of du9 publicatioii therepf, do respectfully report: II. That before entering upon the performance of my dutiea as referee herein, I took and subscribed the oath required by law which is hereto annexed; that due proof was made before me of the due service of said order of reference and of the nptice of hearing before me upon all of the parties who have appeared in the action. That I was attended on such reference by Richard Fenn, Esq., Attorney and of Counsel for the Plaintiffs; Milton Morris, Esq., Attorney and oi Counsel for the Defendants, Richard Roe and Isabel Roe ; Sydney Gray, Esq., Attorney and of Counsel for tiie Defendants, Mary Roe Jones and others ; Horace Lake, Esq., At- torney and of counsel for the Defendants, Henry Stiles and Wil- liam Cole; Roger Lee, Esq., Attorney and of Counsel for the Defendant, Victoria Roe ; Charles Kent, Esq., Guardian ad litem of ^e Infant Defendants, Edwin Roe, Thomas Roe, and Marie Roe. III. That I took all of the testimony and proofs of the plain- tiffs and of the defendants offered and the testimony hereto an- nexed is all of such testimony and proofs offered before me and taken except such as were documentary. IV. That in pursuance of Sections 1561 and 1562 of the Code ■ of Civil Procedure, I caused a notice to be published once in each week for six successive weeks commencing on the twentieth day of February, 1904, in The New York Law Journal and in the New York Lantern, two newspapei^s published in the county of New York and designated by the court in said order of the eighteenth day of February, 1904, and the county wherein the property sought to be partitioned herein is situated and the county where the place of trial of this action is designated, requiring each person not a party to this action, who, on said eighteenth day of February, 1904, the date of said order, had a lien upon the real property sought to be partitioned in this action or upon 218 FOEMS OF PLEADINGS AND PRECEDENTS. any undivided share or interest therein to appear before me at my office, 'So. 1 Main street in the borough of Manhattan of the city of iN'ew York, county and State of New York, on or before the fourth day of April, 1904, and prove his lien and the true amount due or to become due to him by reason thereof and to specify the nature and extent and the date thereof. V. That I caused the requisite official searches to be made for specific liens upon said real property or upon any undivided share or interest therein appearing of record at the time of the filing of the notice, amended notice, and supplemental notice of the pendency of this action. VI. That no creditor appeared before me to make any claim of a lien, upon the said real property or upon the undivided share or interest therein of any party to this action; and that there did not appear upon said official searches any specific lien on said real property or on any undivided share or interest therein exist- ing at the time of the filing of either the notice, amended no- tice, or supplemental notice of the pendency of this action in favor of any person not a party to this action. VII. That the sharQ and interest of the said Helen Roe Cole, deceased, in said real property described in the complaint was devised by her to her only child Richard Hoe Cole, and that said transfer of property from the said Helen Koe Cole, upon her death March 2, 1898, to her said son, Richard Roe Cole, was not taxable under the Tax Law of this State relating to the tax- able transfers of property and that said Richard Roe Cole's in- terest in said real property under the will of his said mother is free from any lien under the Tax Law relating to taxable trans- fers of property. VIII. That the share and interest of said James Roe, de- ceased, in said real property descended at his death to his only issue and only child and heir at law, the defendant Greorge Roe. That said James Roe died at the borough of Manhattan of the city of New York, coxmty of IsTew York aforesaid, on the thirtieth day of July, 1903. IX. That the defendant, George Roe, as administrator, etc., of said James Roe, deceased, who died as aforesaid, subsequent to the sixteenth day of March, 1903, produced and proved before me the order of the Surrogate's Court of the coimty of New York of the twenty-seventh day of November, 1903, adjudging that the share and interest in said real property of the said James Roe, KEFEEEES EEPOET PEELIMINAET TO INTEELOCUTOEY JUDGm't. 219 deceased, intestate, which was inherited at his death bj the said defendant, George Roe, was exempt from any lien under the Tax Law relating to taxable transfers of property, said estate, real and personal, not amounting in value to ten thousand dollars, and I find that said transfer of the share and interest of said James Roe, deceased, in said real property to his said son, Oeorge Roe, was free from any lien under the Tax Law of this State relating to taxable transfers of property. (A certified copy of said last named order is among the other exhibits filed here- with), and I find as fact that the share of said George Roe in- herited from his said father, is free from any lien under the law relating to the taxable transfers of property. X. That said Henry Roe died at Melbourne in the colony of Victoria, Australia, where he resided, on the third day of Janu- ary, 1903, intestate and without issue and that his share and in- terest in said real property upon his death descended to his sur- viving brothers and sister, and the descendants of his deceased brothers and sisters, as his only heirs at law, subject to the dower therein of his widow, said defendant, Victoria Roe, and that his estate real and personal in this State is not above the sum of three thousand dollars at most and is less than ten thousand dol- lars. XI. That so much of the interest of said Henry Roe, deceased, in said real property, as descended to his brothers and sisters passed without being subject to any tax under the Tax Law of this State relating to the Taxable Transfers of property, but that so much of the interest of said Henry Roe, deceased, in said real property as passed to the children of his deceased brothers and sisters aforesaid, being the plaintiff, John Doe and the said de- fendants, Henry Stiles, Jr., Richard Roe Cole, Edwin Roe, Thomas Roe and Marie Roe passed subject to a tax thereon under the statutes of this State relating to the taxable transfers of property.*"* XII. The said plaintiff, John Doe, and the defendants, Henry Stiles, Jr., Richard Roe Cole, and said defendant, Ethel Roe as (a) Heal estate descending to a child of a deceased brother or sister is not exempt from taxation under the statutes relating to the taxable transfer of property. In re Miller, 46 Hun 244. Where there is a question to be settled as to the liability of any share to pay to the State a tax under the Tax Law re- lating to the taxable transfer of property, or when the amount of such lien is to be ascertained or paid, the People of tiie State may be made a party defend- .ant. The People of the State may be made a party defendant in an action for partition in the same manner as a private person, and the summons must be served upon the Attorney-General. Code, S 1594. 220 FpBJtS PF PLEADINGS AND PBBCEDENTS. gppe?^ guardian of the person and estate pf said defendants^ Edwin Jipe, Thomas Bpe a^d Marie Eoe, proved before me thp diip pajflaenf to the State pf said transfer tax producing be- fore pie the receipt pf th^ Gomptroller of the State of ISTew York duly signed, and duly sealed and countersigned by the State Treas- |irer, cjsrtifyjng to the payment thereof on the seventh day of September, 1.9Q3, and I .find that the interest which was pf said Jljenry Epe, dsK^ased, in said real property and every part thereof is free from any lien thereof under the Tax Laws of this State relating tP the taxable transfers pf prpperty. And th^t four jieays apd wprp baying elapsed since the death of said Helen Roe Cole and no proceedpgs hayiog been taken in this State to sub- ject bPF S3,id interest in said reial property to the payment of any jjjefct QX fiineral expenses ]>y any creditor, executor, or adminis- Jfajpj, bgj- ghjarp and interest in said real property is susceptible fif a jsgle free from the d^bts of her unsecured creditors and her mvp^i)} fwneral expenses if any such there be.^?> XIII. 'Th,ai from the death of said William Eoe to the death pf bw widow, Florence Eoe, July 1, lj901, said real property wa.* j.n her possession And she received the rents thereof to her own use ; and that from the death of said Florence Eoe to the time of the appointment of James Clarke as receiver herein, said real pjrpperty ws,8 ip the possession of said defendant, Henry Stiles, (jpad that -he r.eceiyed the cents and issues thereof for himself and tbe pther p&rties to his action according to their respective in- fce;fgsts in tbe rents i^nd issues of said real property. XIY. Th^it the amount of rents received by the said Henry Sljles for him^f and such other parties to this action as are j&jtttjtjjed tQ share therein according to their respective interest in i»,aijd real property over and above tbe disbursements and oommis- ejpns jsllpwed iP him is the sum of seven hundred dollars ($T00), jjnd .tb^t such parties to this action are also entitled to the rents which shall have been received by the receiver heretofore ap- ppinter interest of any owner thetfeiin. XVIII. That the said prerfaises ^re occupied each by A ifeiitot having a lease thereof ending on the fii^t day of May next at Ithe annual rental of nine! hundred dollars, payable in mdrithly in- stallments of seventy-five dollars on the first day df each ffidnth during said term. XIX. That annexed hereto and fdrmiag part hereof 4hd marked Schedule "A" is an abstract of the conveyance by which the real property described in the complaini is held and a survey thereof submitted to me, together with the official searches afore- said to ascertain if there were any person not a party to this action having a specific lien upon said real property or upon the undivided share or interest therein of any party to this action appearing of recoi-d as aforesaid and a copy of said notice to creditors published as aforesaid, together with proof of the due publication thereof, and certified copies of the orders of the surrogate aforesaid and the other evidence taken by me at the hearings under this order. Dated April 5th, 1904. EDGAR CARSON", Referee. 222 . POEMS OF PLEADINGS AND PBBCEDBNT8. OATH OF BEFEBEE. SUPBEMB Co^BT OF NeW YoRK. County of New Yoek. John Doe et al.^ vs. Eichard Boe et al., Plaintiffs, Defendants. ► Oath of Referee. State of New Yoek, County of New York, I, Edgar Carson, the referee appointed by the order of this court in the above entitled action, bearing date the eighteenth day of February, 1904, and duly entered and filed herein in the oiSce of the clerk of said county of New York, do solemnly swear that T will faithfully and fairly try the issues and determine the ques- tions referred to me in the above entitled action, and will make a just and true report, according to the best of my understanding. Sworn, etc., March 5, 1904. EDGAR CAESON, Eeferee.*"' (a) Code, §§ 842, 1016. NOTICE OF HEAEING BEFOEE EBFEEEB. 223 NOTICE OF HEARING BEFORE REFEREE. 81JFHEME CouET OF New Yoek. Nkw Yoek County. John Doe and Jeannette Doe, his ■wife, Plaintiffs, vs. Biehard Boe, et al., Defendants. >■ Notice of hearing. Please take notice that this matter will be brought to a hear- ing before Edgar Carson, Esq., the referee herein, at his office, No. 7 Main street, in the borough of Manhattan of the city of Hew York, county and State of New York, on the fifth day of March, 1904, at ten o'clock in the forenoon of that day. Dated February 19, 1904. EICHAED FENN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants Richard Eoe et al. Sydney Gray, Esq., Attorney for Defendants Mary Roe Jones et al. Horace Lake, Esq., Attorney for Defendants Henry Stiles et al. Roger Lee, Esq., Attorney for Defendant Yictoria Roe. Charles Kent, Esq., Guardian ad litem for Infant Defendants Edwin Roe et al. Due service of the within notice of hearing is hereby admitted. MILTON MORRIS, Attorney for Defendants Richard Roe et al. SYDNEY GRAY, Attorney for Defendants George Roe et al. HORACE LAKE, Attorney for Defendants Henry Stiles et al. 224 FOBMS OF PLEADINGS ANI> PBBCEDBNT3. EOGER liEE) Attorney for Defendant Victoria Roe. CHARLES T^MT, Guardian ad litem fdr Trdhii tfef^S- aiita Edwin Roe et al. NOTICE TO dttbttdiS HOT PARTIES TO P&ESENT CLAIMB TO BEFEBEE. SUPBEMB COTTET OF NeW Yoitft. CouHTY OF New Yobk. John Do6 and Jeannette Doe, his wife, Piaitoti£fe> I vs. Richard Roe and Isabel Roe, his wife, Greofge Roe, in- dividually and as 86le adininistrator of the goods, etc., of James RdB, dec"igased, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole admioistratrii of the goods^ etc., of said Chftrlea Roe, deceased, and as general guardian of said Edwin Roe, Thoflaas Roe, and Marie Roe, infant defendtots, Mary Roe Jones, Richard Roe Cole, William Cote> Henry Stiles, iridividually and as sole admiuistfator of the goods, etc., of Frances Roe Stiles, deceased^ Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased, Defendants. To each and every person not a party to the above entitled action who had a lien upon any undivided share or interest iii tlie real property belonging to any of the persons above named on the eighteenth day of February, 1904. Please take notice, that I, the undersigned duly appointed referee in the above entitled action by an order of this court made, eiitered, and filed herein on ike eighteenth day of February, 1904, in the office of the clerk of the county of New York, do, in ;ptfrsuance of said order, give notice that you are required by befeeee's notice to ceeditoks. 225 said order to appear before me, the undersigned, at my office. No. 7 Main street, in the borough of Manhattan of the city of New York, coimty and State of New York, on or before the fourth day of April, 1904, to prove your lien and the true amount due or to become due to you by reason thereof, and if you fail so to do, your lien will be forever barred by the final judgment to be entered in said action. Dated February 18, 1904. EDGAE CAKSON, Eeferee. The real property to be sold in this action is described in the complaint which was filed herein in the office of the clerk of said coTinty of New York on the thirteenth day of April, 1903, aa follows : All that certain lot of land and premises situate in the borough of Manhattan of the city of New York, county and State of New York. Commencing at a point on the southerly side of Fennimore street, distant easterly two hundred feet from the easterly side of Cooper avenue, thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block; thence running easterly along said center line of the block and parallel with said Fennimore street fifty feet; thence running northerly parallel with said Cooper avenue one hundred feet to the southerly side of Fennimore street; thence westerly along said southerly side of Fennimore street fifty feet to the place of beginning. EDGAR OAESON, Referee. Richard Fenn, Plaintiffs' Attorney, No. 1 Main street, borough of Man- hattan, city of New York, N. Y. FTTBUSHEB'S AFFIDAVIT. Statu of New Yobk, \ CotTNTT OF New Yoek./ E. F., of the borough of Manhattan of the city of New York, county and State of New York, being duly ^**<'^ sworn, deposes and says that he is the publisher of The Slip. New York Law Journal, a daily newspaper printed and published in the borough of Manhattan of the city of New York, county aforesaid, and that the notice of which IK 226 FOBMS OF FL£AJ>INOS AND VSECEDENTS. the annexed ia a printed copy was regularly published in the said, The New York Law Journal, once in each week for six weeks successively, commencing on the twentieth day of February, 1904. Sworn, etc. K F. Annex affidavit of the publisher of the New York Lantern with printed slip attached similar to above. ABSTKACT OF TITLE. Supreme Couet of New Yobk. New York County. John Doe and Jeannette Doe, hia wife. Plaintiffs, vs. Richard Roe and Isabel Roe, his wife, George Roe, indi- vidually and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as general guardian of said Edwin Roe, Thomas Roe and Marie Roe, infant defendants, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased. Defendants. Ahttract of title Robert B. Cameron, to William Roe. Warrantee Deed. Dated June 15, 1863. Recorded in. thei office of the Register of the County of New York, in Liber , of Convey- ances, page ■. Conveys the premises mentioned and described in the complaint herein in fee simple absolute without incumbrance with covenant of warranty, etc. ABSTEAOT OF TITLE. 227 Said William Eoe died intestate on the first day of July, 1890, leaving as his only heirs at law the following children : Eichard Koe, James Eoe, Charles Eoe, Heniy Eoe, Mary Roe Jones, wife of Henry Jones, Helen Eoe Cole, wife of William Cole, and Frances Eoe Stiles, wife of Henry Stiles, and a grandchild, John Doe. That said Frances Eoe Stiles died intestate on the third day of May, 1895, leaving her surviving her husband, Henry Stiles, and her son, Henry Stiles, Jr., her only heir at law. That said Helen Eoe Cole died testate on the second day of March, 1898, at the city of Trenton, New Jersey, where she resided, leaving her surviving her husband and Eichard Eoe Cole her only child. That by her last will and testament which was admitted to probate by the surrogate of Mercer county, New Jersey, on the thirteenth day of March, 1898, she devised her share and interest in said real property to her said child Eichard Eoe Cole. The will was executed in conformity with the law of this State for the passing of title to real property by devise and which will was proved for record in this State and recorded in the county of New York in pursuance of an order of the Surrogate's Court of the county of New York, of the twenty- eighth day of May, 1903. That said Charles Eoe died intestate on the tenth day of April, 1901, leaving him surviving his widow Ethel Eoe and his three children, Edwin Eoe, Thomas Eoe, and Marie Eoe, as his only heirs at law, all three of whom are infants. That said Henry Eoe died intestate on the third day of January, 1903, leaving him surviving his widow, Victoria Eoe, and leaving him surviving no child bom, and none begotten, and leaving as his only heirs at law his surviving brothers and sister aforesaid and the said descendants of his deceased brother, Charles, and of his deceased sisters, Frances Eoe Stiles, Helen Roe Cole, and Euth Eoe Doe, the mother of John Doe aforesaid. That said James Eoe died intestate, pending this action, on the thirtieth day of July, 1903, leaving him surviving no widow and leaving his only child, George Eoe, as his only heir at law. Said William Eoe left him surviving his widow, Florence Roe. She died at said city of New York on the first day of July, 1901. EDGAR CAESON, Eeferee. Add the survey, the official searches, and certified copies of orders of surrogate together with the evidence^ other than exhibits, which haiie been marked and returned. 228 FOBMS OF PLEADINGS AND PRECEDENTS. NOTICE OF THE FILING OF THE EEFEREE'S REPORT PRELIMI- NARY TO INTERLOCUTORY JUDGMENT. SUPEEME COUET OF New YoEK. New Yoek Coxmrrr. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Richard Roe, Isabel Roe, his wife, and others. Defendants. Notice of Filmg Referee's Be-' port. Gentlemen. — Please take notice that the report of Edgar Car- son, Esq., referee herein, of which the annexed is a copy, was filed in the office of the clerk of the county of New York at the New York County Court House in the city of New York on the fifth day of April, ] 904. Dated, April 7, 1904. Yours, etc., RICHARD FENN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants, Richard Roe et al. Sydney Gray, Esq., Attorney for Defendants, Mary R. Jones et al. Horace Lake, Esq., Attorney for Defendants, Henry Stiles and William Cole. Roger Lee, Esq., Attorney for Defendant, Victoria Roe. Charles Kent, Esq., Guardian ad litem for Infant Defendants, Edwin Roe, Thomas Roe, and Marie Roe. Due service of a copy of the report in the above notice men- tioned and of the above notice is hereby admitted. Dated, April 7, 1904. MILTON MORRIS, Attorney for Defendants, Richard Roe et aL HOTICE OF MOTION FOE INTEBLOCUTOEY JUDGMENT. 229 SYDNEY GEAY, Attorney for Defendants, Maiy Koe Jones et al. ' HORACE LAKE, Attorney for Defendants, Henry Stiles and William Cole. ROGEE LEE, Attorney for Defendant, Victoria Roe. CHARLES KENT, Guardian ad litem for Infant Defend- anis herein. VOTICE OF MOTION FOB INTESLOCUTOET JTTSGHENT. New Yoek Stjpebme Couet. CoTJNTT OF New Yoek. John Doe and Jeannette Doe, his wife, vs. Richard Roe et al.. Plaintiffs, Defendants. Notice of motion. Please take notice that upon the report of Edgar Carson, Esq., filed herein, on the fifth day of April, 1904, in the office of the clerk of the county of New York, and upon the findings and verdict of the jury filed herein, in the office of the clerk of the county of New York, on the ninth day of November, 1903, and upon all other papers and proceedings in this action, I shall move the court at a Special Term thereof. Part — , on the twenty- fifth day of April, 1904, at the New York County Court House, in the borough of Manhattan, of the city of New York, for an interlocutory judgment and decree for a sale of the real property in this action, and for such further or other order, judgment and decree herein as shall be meet. Dated, April 16, 1904. Yours, etc., RICHARD FENN, Plaintiffs' Attorney. 230 FORMS OF PLEADINGS AND PRECEDENTS. To Milton Morris, Esq., Attorney for Defendants Eichard Koe et al. Sydney Gray, Esq., Attorney for Defendants, Mary Koe Jones et aL Horace Lake, Esq., Attorney for Defendants, Henry Stiles et al. Eoger Lee, Esq., Attorney for Defendant, Victoria Roe. Charles Kent, Esq., Guardian ad litem for Infant Defendants, Edwin Eoe et al. Due service of the foregoing notice of motion for interlocutory judgment is hereby admitted. Dated, April 16, 1904. MILTOJSr MOEEIS, Attorney for Defendants, Eichard Eoe et al. SYDNEY GEAY, Attorney for Defendants, Mary Eoe Jones et al. HOEACE LAKE, Attorney for Defendants, Henry Stiles et al. EOGEE LEE, Attorney for Defendant, Victoria Eoe. CHAELES KEiq^T, Guardian ad litem for Infant Defendants Edwin Eoe et al. OLEBK S CEETIFICATE THAT NO EXCEPTION FILED. 231 CIEEK'S CERTIFICATE THAT NO EXCEPTION HAS BEEN FILED. SuPEEME Court. County of New Yoek. John Doe et al., vs. Richard Roe et al., Plaintiffs, Defendants. "Clerk's Certificate. 1, T. L. H., clerk of the Supreme Court, do hereby certify that the report of Edgar Carson, Esq., referee in the above-entitled action, was filed in my office April 5, 1904, and that no exceptions thereto have been filed since the above date. Dated, New York, April 25, 1904. T. L. H., Clerk. 232 FORMS OF PLEADINGS AND PRECEDENTS. HfTEELOCUTORY JUDGMENT. At a Special Term, Part — , of the Supreme Court of the State of New York, held in and for the county of IsTew York, at the County Court House in the borough of Manhattan, of the city of New York, on the twenty-fifth day of April, 1904. Present: Hon. James Beonson, Justice. John Doe and Jeannette Doe, his wife, vs. Plaintiffs, Richard Koe and Isabel Koe, his wife, George Eoe, indi- vidually and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Koe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as general guardian of said Edwin Roe, Thomas Roe, and Marie Roe, infant defendants, Mary Roe Jones, Richard Roe Cole, William Cole, Henry Stiles, individually and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased, Defendants. Interlocutory r Judgment. I. This action having been brought on for further hearing at a Special Term of this Court, and a motion now being made upon due notice to all of the parties appearing herein, who are all now present before the court for the entry of an interlocutory judg- ment upon the pleadings and the proceedings in this action, and the court having read the pleadings and the papers filed in this action and inspected the records thereof, and it appearing to the court that this action was brought for the partition and sale of certain real property owned in common by the parties hereto situate in the borough of Manhattan, of the city of New York. INTEKLOCUTOET JUDGMENT. 233 II. And it further appearing to the court that the issues of fact raised upon the pleadings herein were tried hy a jury in this action at a trial term of this court, together with other questions of fact herein, submitted to the jury on the ninth day of Novem- ber, 1903, before the Hon. Thomas Sargeant, justice, and a jury, pursuant to an order of the court made at a special term thereof on the twelfth day of October, 1903, referring said issues to the trial term of this court for trial by jury for the November, 1903, term, commencing on the first Monday of November, 1903, to be disposed of in its regular order thereon, and that the jury ren- dered then and there their verdict and findings upon the ques- tions of facts submitted to them. III. And it further appearing to the court that the appeal herein by the defendants, Richard Roe and Isabel Roe, from the order of said Justice Thomas Sargeant, presiding at said trial term, denying their motion for a new trial upon said justice's minutes, to the Appellate Division of this court. First Department, has been heard, and that said order denying the motion for a new trial has been afiirmed on said appeal, and that the order of affirmance has been duly entered, and that a duly certified copy thereof has been remitted to and filed in this action in the office of the clerk of the county of New York. IV. And it further appearing to the court that said jury found as aforesaid, as follows: First. That said William Roe, deceased, was seized in fee simple absolute and possessed of the real property mentioned and described in the complaint herein at and prior to the fifteenth day of June, 1890. Second. That the said William Roe and Florence Roe, his wife, did not on the said fifteenth day of June, 1890, or at any time before or after that date, acknowledge their certain deed in writing conveying the said real property to their son, the defend- ant herein, Richard Roe. Third. That the said William Roe did not on the said fifteenth day of June, 1890, or at any time before or after that date, deliver to said Richard Roe a deed in writing conveying the said real property to the said defendant, Richard Roe. Fourth. That the said William Roe, on the first day of July, 1890, at the city of New York, county and State of New York, died intestate. Fifth. That the said William Roe on the said first day of July, 1890, at the city of New York, county and State of New York, 234 FOEMS OF PLEADINGS AND PRECEDENTS. died possessed of the said real property and seized thereof in fee simple absolute. Sixth. That the said WiUiam Roe died possessed of no othjr real property situated in the State of New York. Seventh. That the following named persons are the heirs, and the devisees of deceased heirs dying testate, and the heirs of deceased heirs dying intestate, of said William Roe; and the degree of relationship to him of each heir now living, and the de- gree of relationship to him of the ancestor where an heir of said William Roe has died leaving heirs or devisees, and the name of the wife or husband of any heir and of any devisee now married, and of the widow or surviving husband of any heir, devisor or devisee deceased leaving a husband or a wife still surviving: (a.) The plaintifiF, John Doe, who is a grandson of said William Roe, and the only child and the only heir at law of said William Roe's deceased daughter Ruth, who died a widow intestate prior to the death of said William Roe. (b.) The plaintiff, Jeannette Doe, is the wife of said John Doe. (c.) The defendant, Richard Roe, who is a son and heir at law of said William Roe. (d.) The defendant, Isabel Roe, is the wife of said Richard Roe. (e.) The defendants, Edwin Roe, Thomas Roe, and Marie Roe, who are grandchildren of said William Roe, and the only children and the only heirs at law of said William Roe's deceased son, Charles Roe, who was an heir at law of said William Roe, and who died intestate at the borough of Manhattan of the city of New York, said county and State of New York, on the tenth day of April, 1901. (f.) The defendant, Ethel Roe, is the -widow of said Charles Roe, deceased. (g.) The defendant, George Roe, who is a grandson of the said William Roe and the only child and the only heir at law of the said William Roe's son, James Roe, deceased, who was an heir at law of said William Roe, and who died pending this action at the borough of Manhattan of the city of New York, said county and State of New York, on the thirtieth day of July, 1903, intestate and a widower. Said Greorge Roe is unmarried. (h.) The defendant, Mary Roe Jones, who is a daughter and an heir at law of said William Roe. (i.) Henry Jones is the name of the husband of said Maiy Roe Jones. INTEELOCUTOBY JUDGMENT. 235 (j.) The defendant, Eichard Hoe Cole, who is a grandson of said William Eoe and the only child and only heir at law of said William Koe's deceased daughter, Helen Hoe Cole, who was an heir of said William Roe, and he is the only devisee of her interest in said real property. She died at the city of Trenton, Mercer county, New Jersey, where she resided, on the second day of March, 1898, leaving a last will and testament, whereby she de- vised her share and interest in said real property to her said son, Eichard Roe Cole, in manner and form as required by the stat- utes of this State to pass real property. Said last will and testa- ment was proved before the surrogate of the said county of Mercer on the thirteenth day of March, 1898, and her surviving husband, said William Cole, was thereupon appointed sole executor thereof by said surrogate. !N"o letters testamentary nor of administration has been granted upon her estate in this State, but said will haa been proved for record in this State and recorded therein pursuant to an order of the Surrogate's Court of said N"ew York county on the twenty-eighth day of May, 1903. (k.) The defendant, William Cole, is the name of the surviving husband of said Helen Roe Cole, deceased. (1.) The defendant, Henry Stiles, Jr., who is a grandson of said William Roe and the only son of and the only heir at law of said William Roe's deceased daughter, Frances Roe Stiles, who was an heir at law of said William Roe and who died intestate at jsaid city and county of New York on the third day of May, 1895. (m.) The defendant, Henry Stiles, is the name of the surviving husband of said Frances Roe Stiles, deceased. (n. ) The plaintiff, John Doe, and the defendants, Richard Roe, George Roe, Edwin Roe, Thomas Roe, Mary Roe Jones, Richard Roe Cole, and Henry Stiles, Jr., who are the brothers and sister, and the descendants of deceased brothers and sisters, and the only heirs at law of said William Roe's deceased son, Henry Roe, who was an heir at law of said William Roe and who died at his resi- dence at Melbourne, colony of Victoria, Australia, on the third day of January, 1903, intestate, married, but without issue bom or begotten. (o.) The defendant, Victoria Roe, is the name of the widow of said Henry Roe, deceased. He left no personal property within this State. Eighth. That the only letters, testamentary or of administra- tion, that have been granted in this State upon the estate of said 236 FOEMS OF PLEADINGS AND PItECEDBNTS. William Eoe, deceased, and upon any of the several estates of said deceased heirs of said William Eoe, are the following: (a.) Letters of administration of the goods, etc., of said William ' Roe, deceased, were granted unto Charles Doe of said city of New York pursuant to an order of the Surrogate's Court of the county of New York, made and filed therein on the first day of August, 1890. (b.) The defendant, Henry Stiles, was appointed sole admin- istrator of the estate of said Frances Roe Stiles by the Surrogate's Court of said county of New York, by an order thereof made and filed therein on the first day of June, 1897, and that he qualified as such on that day. (c.) The defendant, Ethel Roe, was appointed sole administra- trix of the estate of said Charles Roe, deceased, by the Surrogate's Court of said county of New York by a decree thereof made and filed therein on the twentieth day of May, 1901, and that she quali- fied as such on that day. (d.) The defendant, George Roe, was appointed sole adminis- trator of the estate of said James Roe, deceased, by the Surro- gate's Court of the said county of New York, by a decree thereof made and filed therein on the seventeenth day of August, 1903, and that he qualified as such on that day. The jury further say that no letters of administration has been granted in this State upon the estate of said Henry Roe, deceased, and no letters testamentary or of administration has been granted in this State upon the estate of said Helen Roe Cole, deceased. Ninth. That all of the parties to this action are of sound mind, and that they are all of full age except the defendants Edwin Roe, Thomas Roe, and Marie Roe, who are infants under the age of twenty-one years. That said Edwin Roe is an infant of the age of fifteen years and said Thomas Roe is an infant of the age of seventeen years and that said Marie Roe is of the age of seven years, and that paid infants reside with their said mother, Ethel Roe, in the bor- ough of Manhattan of the city of New York aforesaid, and that said Ethel Roe, their mother, has since the commencement of this action been appointed guardian of their person and estate by de- f-ree of the Surrogate's Court of the county of New York of the thirtieth day of July, 1903. Tenth. That Florence Roe, from the time of the death of Wil- liam Roe until her death, July 1, 1901, possessed said real prop- erty and received the rents thereof to her own use. INTEELOCUTOEY JUDGMENT. 237 That Henry Stiles has been in possession of said real property since the death of said Florence Roe, July 1, 1901, and he haa leceived the rents and issues thereof and of the rents therefrom, for himself and the other parties to this action according to their respective interests in the rents of said real property. Eleventh. That the property and every part thereof is so cir- cumstanced that a partition thereof cannot be made without great prejudice to the owners thereof. Twelfth. That the right, share, or interest of each party in said real property and the rights of the parties therein are as follows : .(a.) The plaintiff, John Doe, is entitled to an undivided one- eighth thereof as an heir at law of said William Roe, deceased, and to an one-sixty-fourth thereof as an heir at law of said Henry Roe, deceased, which said one-sixty-fourth is subject to the right of dower of defendant Victoria Roe, and the whole in- terest aforesaid of said John Doe is subject to the inchoate right of dower therein of his said wife, Jeannette Doe. (b.) The defendant, Richard Roe, is entitled to an undivided one-eighth thereof as an heir at law of said William Roe, deceased and to an one-sixty-fourth thereof as an heir at law of said Henry Roe, deceased, which said one-sixty-fourfch is subject to the right of dower of said defendant, Victoria Roe, and the whole interest and estate aforesaid of said defendant, Richard Roe, is subject to the inchoate right of dower therein of his wife, said defendant Isabel Roe. (c.) The defendant, Mary Roe Jones, ia entitled to an one- eighth thereof as an heir at law of William Roe, deceased, and to an one-sixty-fourth thereof as an heir at law of said Henry Roe, deceased, which said one-sixty-fourth is subject to the right of dower of said defendant Victoria Roe. (d.) The defendant, George Roe, is entitled to an undivided one-eighth thereof, which his said father, James Roe, inherited from said William Roe, deceased, and to an one-sixty-fourth thereof, which his said deceased father inherited from said Henry Roe, deceased, which one-sixty-fourth is subject to the right of dower therein of said defendant, Victoria Roe. (e.) The defendants, Edwin Roe, Thomas Roe, and Marie Roe, are each entitled to an one-twenty-fourth thereof, which their ■said father, Charles Roe, deceased, inherited from said William Roe, deceased, and also to an one-one-hundred-and-ninety-second, Tvhich they respectively inherited as an heir at law of said Henry Roe, deceased, which one-twenty-fourth aforesaid is subject to 238 FOKMS OF PLEADINGS AND PEECEDENTS. the dower therein of their said mother, Ethel Koe, and said one- one-hundred and-ninety-second is subject to the dower therein of said defendant, Victoria Roe. (f.) The defendant, Richard Roe Cole, is entitled to an undi- vided one-eighth thereof as the devisee of his mother, said Helen Roe Cole, deceased, who was an heir at law of said William Roe, deceased, and to an one-sixty-fourth thereof as an heir at law of said Henry Roe, deceased, which said one-sixty-fourth is subject to the dower therein of said defendant Victoria Roe. (g.) The defendant, Henry Stiles, Jr., is entitled in remainder to an undivided one-eighth thereof, which his said mother, Frances Roe Stiles, deceased, inherited from said William Roe, de- ceased, subject to the curtesy therein of his father, said defendant Henry Stiles, and also to an one-sixty-fourth thereof, as an heir at law of said Henry Roe, deceased, which one-sixty- fourth is subject to the dower therein of saij defendant Victoria Roe. (h.) The defendant, Henry Stiles, is seized of and entitled to a life estate in possession as tenant by the curtesy of his deceased wife, Frances Roe Stiles, in an undivided one-eighth thereof. (i.) The defendant, Ethel Roe, as the widow of Charles Roe, deceased, is entitled to dower in a twenty-one-one-sixty-eighth or an one-eighth thereof. (j.) The defendant, Victoria Roe, is entitled to dower in an un- divided one-eighth thereof as the widow of said Henry Roe, deceased, of which one-eighth said Henry Roe died seized. (k.) The said defendant, William Cole, the surviving husband of Helen Roe Cole, deceased testate, is not entitled to any right, share, or interest in said real property. Thirteenth. That there is no encumbrance upon the said real property, or upon any of the shares or interest therein, held by any party to this action other than the lien held upon the share of said Henry Stiles by the other parties entitled to share in the possession of said real property and in the rents and issues there from for their respective shares of the rents received by him therefrom. V. And the said verdict and findings of the jury aforesaid hav- ing been by the clerk duly entered and duly certified to the special term of this court as directed by said order of the twelfth day of October, 1903, and the said verdict, findings, certificate, and pro- ceedings having been duly filed in this action in the office of the clerk of this coTirt. INTEELOCUTOEY JUDGMENT. 239 VI. And it further appearing to the court that an order of this court was made and entered herein on the eighteenth day of Febru- ary, 1904, and filed in this action on the same day with the clerk of the county of New York aforesaid, referring it to Edgar Car- son, Esq., of the borough of Manhattan of the city of New York, county of New York aforesaid, counsellor at law to take and state an account of the rents of said real property be- tween the parties in this action entitled thereto and to ascer- tain in the manner provided by law and the rules and practice of this court whether there was any creditor not a party to this action who had a lien on the said real property or on the undivided share or interest therein of any party at the date of said order, and to cause searches to be made to ascertain whether there was any person having a specific lien appearing of record upon the said real property, or upon any share or interest therein, at the time of the filing of either the notice, amended notice, or supple- mental notice of the pendency of this action, who was not made a party to this action,*"* and to ascertain whether there was any lien under the Tax Law of this State relating to the taxable trans- fers of property upon the said real property, or upon any share or interest therein of any party to this action. And to make an abstract of the title by which said real property was held by said deceased William Eoe and to report thereon at a special term of this court with all convenient speed. VII. And it appearing that said referee has filed his report herein, including the testimony taken by him and a copy of the notice published by him requiring creditors not parties to this action to present their claims to him on or before the fourth day of April, 1904, with due proof of the publication thereof, and also the searches caused to be made by him as aforesaid, and an abstract of the title by which said real property was held by said William Roe, deceased, and from which report it appears that said referee first took the oath of ofiice required by law and pro- ceeded in the matter of said reference upon due notice to all of the parties who had appeared in this action; that he took all of the proofs and testimony ofFered before him, and that he duly advertised for each person not a party to this action who at the date of said order of reference had a lien upon said real property, or upon any undivided share or interest therein, to appear before («) A person having a specific lien appearing of record at the time of the filing of the notice of the pendency of the action, who is not made a party, is not affected by the judgment. Code, § 1578. 240 POBMS OF PLEADINGS AND PEBOEDKNTS. him at a specified place and on or before a specified day to prove his lien and the true amount due or to become due by reason thereof, and that no such person appeared to prove any claim and that he caused official searches to be made to ascertaia whether there was any specific lien appearing of record upon, said real property, or upon any share or interest therein, at the time of the filing of either the notice, amended notice, or supplemental notice of the pendency of this action held by any person not a party to this action; and that there did not appear of record any such specific lien; and that the lien under the statute relating to the taxable transfers of property upon the transfer, by operation of law, of certain shares and interests in said real property from said Henry Eoe, deceased intestate, to the children of his deceased brother Charles and sisters, Ruth, Helen and Frances, namely^ John Doe, Henry Stiles, Jr., Richard Eoe Cole, Edwin Roe, Thomas Roe, and Marie Roe, has been paid,^*' and that the estate, real and personal, of said James Roe, deceased, did not amount to ten thousand dollars ; and that it had been determined in regidar proceedings before the Surrogate's Court of the county of New York, upon proof made before him, that there was not any liea under the statutes relating to the taxable transfers of property upon the estate of said James Roe, deceased, and that said Helen Roe Cole, deceased, and Francis Roe Stiles, deceased, left no es- tate subject to taxation in this State under the statutes relating to the taxable transfers of property; and that there did not exist upon said real property, nor upon any share or interest therein, any lien under the Tax Law of this State relating to the taxable transfers of property. Vni. And that he stated an account of the said rents between the parties in this action entitled thereto and that there was due at the time of the filing of said referee's report from the defend- ant, Henry Stiles, the sum of seven hundred dollars, rents which he had collected and which he still held in his possession over and above all allowances for disbursements on said real property made to him, which seven hundred dollars rents should be charged against the said Heniy Stiles and paid to him and the other parties according to their respective interests in the rents of said real property. ■ — — — ^^^^^— ^^— ~^__^..^,^^„^ (o) The tax remains a lien until paid. Transfer Tax Law, S 222; Kitchingv. Shear, 26 Misc. 436. As to real estate in the hands of hona fide purchaser the Transfer Tax shall be presumed to be paid and cease to be a lien against such purchaser, after the expiration of six years from the day of accrual. Transfer Tax Law, i 282 ; Laws of 1899, chap. 737. INTEKLOCUTOEY JUDGMENT. 241 IX. And it appearing that due notice was given of the filing of said referee's report to all of the parties who have appeared herein on the seventh day of April, 1904. X. And it further a;^pearing to the court that by an order duly made and filed herein on the sixteenth day of November, 1903, James Clarke, Esq., of the borough of Manhattan of the city of New York, county of New York aforesaid, was appointed receiver of the said real property and of the rents and issues thereof, and that he thereupon duly qualified as such receiver, and it appear- ing by his affidavit on file herein that he thereupon took pos- session of said real property and has collected the rents and issues thereof. XI. And it further appearing to the court that the said defendant, Henry Stiles, has by his deed in writing, duly exe- cuted, acknowledged, and recorded in the office of the register of said county of New York, granted and conveyed his said interest as a tenant by the curtesy in said real property as the surviving husband of Frances Roe Stiles, deceased, intestate, to his son, said defendant, Henry Stiles, Jr., subject to the payment of seven hundred dollars rent, and that said grant has been ac- cepted by said Henry Stiles, Jr. XII. And that said defendant, Victoria Roe, has filed in the office of the clerk of this court her written consent, duly, executed and acknowledged by her and certified in like manner as a deed to be recorded, consenting to receive from the proceeds of sale a gross sum, to be fixed according to the principles of law appli- cable to annuities in satisfaction of her dower interest in said real property. XIII. And that the defendant, Ethel Roe, has filed in the office of the clerk of this court her written consent, duly executed and acknowledged by her and certified in like manner as a deed to be recorded, consenting to receive from the proceeds of sale a gross sum, to be fixed according to the principles of law applicable to annuities, in satisfaction of her dower interest in said real property. XIV. And that the plaintifF, Jeannette Doe, by a written in- strument duly acknowledged by her and certified as required by law with respect to the acknowledgment of a conveyance to bar her dower released to the plaintifF, John Doe, her husband, her inchoate right of dower in the property directed to be sold, which release has been duly filed with the clerk of this court. XV. And no objections having been filed, and none being now 16 242 FOKMS OF PLEADINGS AND PEECEDliNTS. made to said referee's report, and no reason appearing to the contrary/*^ in the presence of Richard Fenn, Esq., of counsel for the plaintiffs ; Milton Morris, Esq., of counsel for the defendants, Eichard Eoe and Isabel Eoe; Sydney Gray, Esq., of counsel for the defendants, George Eoe, individually and as sole adminis- trator of the goods, etc., of James Eoe, deceased, Ethel Eoe, individually and as sole administratrix of the goods, etc., of Charles Eoe, deceased, and as the general guardian of said infant defendants, Edwin Eoe, Thomas Eoe, and Marie Eoe; Mary Eoe Jones, Eichard Eoe Cole, and Henry Stiles, Jr. ; Horace Lake, Esq., of counsel for the defendants, Henry Stiles and William Cole ; and Eoger Lee, Esq., of counsel for the defendant, Victoria Eoe; and Charles Kent, Esq., guardian ad litem for the infant defendants, Edwin Eoe, Thomas Eoe and Marie Eoe, it is XVI. Ordered, adjudged and decreed, and the court doth hereby order, adjudge and decree: 1. That the report of the referee aforesaid be and the same is hereby in all things ratified and confirmed. 2. That the said findings of the jury at said Trial Term of this court in this action so certified to the Special Term of the court, as aforesaid be and the same are hereby made the findings of fact of the court upon the questions so found and certified. <*') XVII. And the court doth hereby further adjudge and decree : That the said William Eoe died, seized in fee simple absolute land possessed of the real property mentioned and described in the complaint herein, intestate, at the city, county, and State of New York on the first day of July, 1890, and that all persons who have any interest in said real property are parties to this action, and that said parties have no other real property held by them as tenants in common situate in the State of New York. XVIII. That the right, share, and inte(rest of each party in said real property and the rights of the parties therein are as follows : (a.) The plaintiff, John Doe, is entitled to an undivided one- eighth thereof as an heir at law of said William Eoe, deceased, and to an one-sixty-fourth thereof as an heir at law of said Henry Eoe, deceased, which said one-sixty-fourth is subject to the right of dower of said defendant, Victoria Roe. (o) Objection need not be filed, as the referee is not the deciding officer. Doremus v. Doremus, 76 Hun, 337. (6) In an equitable action the facts must be found by the court, though the questions be tried and determined by a reference or by a jury. INTEELOCUTOEY JUDGMENT. 243 (b.) The defendant, Richard Roe, is entitled to an undivided one-eighth thereof as an heir at law of said William Roe, de- ceased, and to an one-sixty-fourth thereof as an heir at law of said Henry Roe, deceased, which said one-sixty-fourth is subject to the right of dower of said defendant, Victoria Roe, and the whole interest and estate aforesaid of said defendant, Richard Roe, is subject to the inchoate right of dower therein of his wife, said defendant, Isabel Roe. (c.) The defendant, Mary Roe Jones, is entitled to an one- eighth thereof as an heir at law of said William Roe, deceased, and to an one-sixty-fourth thereof as an heir at law of said Henry Roe, deceased, which said one-sixty-fourth is subject to the right of dower of said defendant, Victoria Roe. (d.) The defendant, George Roe, is entitled to an undivided one-eighth thereof, which his said father, James Roe, inherited from said William Roe, deceased, and to an one-sixty-fourth thereof, which his said deceased father inherited from said Henry Roe, deceased, which one-sixty-fourth is subject to the right of dower therein of said defendant, Victoria Roe. (e.) The defendants, Edwin Roe, Thomas Roe, and Marie Roe, are each entitled to an one-twenty-fourth thereof, which their said father, Charles Roe, deceased, inherited from said William Roe, deceased, and also to an one-one-hundred-and-ninety-second which they respectively inherited as an heir at law of said Henry Roe, deceased, which one-twenty-fourth aforesaid is subject to the dower therein of their said mother, Ethel Roe, and said one-one hundred-and-ninety-second is subject to the dower therein of said defendant, Victoria Roe. (f.) The defendant, Richard Roe Cole, is entitled to an undi- vided one-eighth thereof as the devisee of his mother, said Helen Roe Cole, deceased, and to an one-sixty-fourth thereof as an heir at law of said Henry Roe, deceased, which said one-sixty-fourth is subject to the dower therein of said defendant, Victoria Roe. (g.) The defendant, Henry Stiles, Jr., is entitled to an one- eighth, which his said mother, Frances Roe Stiles, deceased, in- herited from said William Roe, deceased, subject to the payment of seven hundred dollars, being the amount of rents which his father, said Henry Stiles, received from said real property as aforesaid, which seven hundred dollars rents are to be paid to himself and the other parties to this action who are entitled to share therein in proportion to their respective interest in the rents of said real property; and to an one-sixty-fourth as an heir 244 FOEMS OF PLEADINGS AND PEECEDENTS. at law of said Henry Roe, deceased, which one-sixty-fonrth is subject to the dower therein of said defendant, Victoria Koe. (h.) The defendant, Victoria Eoe, is entitled to a gross sum to be fixed according to the principles of law applicable to annuities, to be ascertained by the ref ered appointed herein to sell the said real property, in an undivided one-eighth thereof and the rents therefrom as the widow of Henry Roe, deceased, who died seized of an undivided one-eighth thereof, and which sum, when it shall have been so fixed, shall be her dower interest in the proceeds of said real property and the rents thereof. (i.) The defendant, Ethel Roe, is entitled to a gross sum to be fixed according to the principles of law applicable to annuiti-as, to be ascertained by the referee appointed herein to sell said real property, in an undivided one-eighth thereof and the rents there- from as the widow of said Charles Roe, deceased, who died seized of an undivided one-eighth thereof, and which sum, when it shall have been so fixed, shall constitute her dower interest in the pro- ceeds of the sale of said real property and in the rents thereof. (j.) The defendant, Isabel Roe, has an inchoate right of dower in the undivided one-eighth and the undivided one-sixty-fqurth thereof of her said husband, the defendant, Richard Roe. (k.) The said defendant, "William Cole, the surviving husband of Helen Roe Cole, deceased testate, is not entitled to any right, share, or interest in said real property. XIX. And it is further adjudged and decreed, antil the court doth hereby adjudge and decree: XX. That there is no person who had a specific lien appearing of record upon said real property, or upon any share or interest therein, at the time of the filing of either said notice, amended notice, or supplemental notice of the pendency of this action, who was not made a party to this action, and that there is no creditor, not a party to this action, who had a lien on the said real prop- erty, or on the undivided share or interest therein, of any party on the eighteenth day of February, 1904, the date of the making, entering, and filing of said order of reference to said Edgar Carson. ^*^ (o) The direction to pay the debt of the common ancestor must be in the final judgment. Code, § 1538. If a claim be proved against an undivided share, the interlocutory judgment must direct that share to be paid into court after deducting its share of the costs and expenses. Code, § 1563. The validity, priority and amount of specific liens on an undivided share may be litigated and tried either by a jury or a referee and should be determine! i«. IHTEBLOCUTOEY JUDGMENT. 245 XXL That there is no lien under the Tax Law relating to the taxable transfers of property upon the said real property or upon the undivided share or interest of any owner therein. <») XXIL And the court doth hereby further order, adjudge, and decree that the said real property which is hereinafter particularly described be sold free from the lien of every debt of said dece- dents except debts which were a lien upon the premises before their respective deaths, at public auction at the New York Real Estate Salesroom, No. 161 Broadway, in the borough of Man- hattan, of the city of New York, county of New York, state of New York, where said real property is situated, by Edgar Carson, Esq., aforesaid, counsellor at law, residing in the borough of Man- hattan, city of New York aforesaid, who is hereby appointed re- feree for that purpose. XXIII. That said referee give public notice of the time and place of such sale according to law and the rules and practice of this court, and that any of the parties hereto may purchase at such sale. "** XXIV. The real property so to be sold is bounded and described as follows: All that certain parcel of land and premises situate in the bor- ough of Manhattan of the city of New York, county and State of New York. Commencing at a point on the southerly side of Fennimore street distant easterly two hundred feet from the easterly side of Cooper avenue; thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block; Mience running easterly along said center line of the block and parallel with said Eennimore street fifty feet; thence running the interlocutory judgment. Winfield v. Stacom, 40 App. Div. 95. And th« interlocutory judgment must direct that the share subject to a specific lien be paid into court. Code, § 1653. , <») If there be taxes due the State under the statutes relating to the taxable transfers of property, it will be necessary to make the State a party in order to sell the property free from lien of the taxes. In such a case the State must be made a party, and if the State be made a party the summons must be served upon the Attorney-General, who will appear in behalf of the People. Code, § 1594. The sovereign State cannot be made a party with- out its consent and that consent must be expressed in statutory form. Kitch- ing V. Shear, 26 Misc. 436. (W The sale must be advertised in a paper published, in the county where the sale is to take place and where the property is situated, or in a village partly situated in the county, if a paper be published in the county or such village; if no paper be published in the county or such village, then in the newspaper printed at Albany in which legal notices are published. In New York and Kings Counties the notice must be advertised in two daily newspapers. Code, §§ 1434, 1678. Judgment must be entered in the count? «»l>aTs tlin nronprtv is situated. Code. S 1677. 246 FOBMS OF PLEADINGS AND PEJEKJEDEyNTS. northerly parallel with said Cooper avenue one hundred feet to said southerly side of Fennimore street; thence running westerly along said southerly side of Fennimore street fifty feet to the place of beginning, together with the appurtenances and all the estate and rights of the parties hereto in and to said premises. XXV. That said real property be sold in parcels, the lot twenty- five feet wide by one hundred feet deep, known as No. 18 Fenni- more street, situate two hundred feet easterly from the easterly side of Cooper avenue, be sold in one parcel; and the other lot, twenty-five feet vsdde by one hundred feet deep, situate two hun- dred and twenty-five feet easterly from the easterly side of Cooper avenue, known as No. 20 Fennimore street, be sold in another parcel; that the said referee invest two thousand dollars of the share of said infant defendants, Edwin Eoe, Thomas Koe, and Marie Roe, upon a first purchase-money bond and mortgage upon either, one of said parcels, No. 18 or 20 Fennimore street, conditioned for the payment of the principal sum of two thousand dollars, three years from the date thereof, which will be the date of the delivery of the deed to the purchaser of the parcel purchased by him, with interest at the rate of four per cent, per annum, payable semi-annually, which bond and mortgage shall contain covenants and agreements that if default be made in the payment of the money secured by the said bond and mortgage, or of any part thereof, the party of the second part shall have power to sell the premises therein described, according to law ; that the party of the first part will keep the buildings on the said premises insured against loss by fire, for the benefit of the mortgagee, in default whereof the party of the second part may effect such insurance and add the premium paid to the principal debt to be secured by said bond and mortgage to be repaid on demand with interest at the rate of six per cent, per annum; that the whole of the principal sum and interest thereon shall becrane due, at the option of the party of the second part, after default in the payment of interest for thirty days, or after default in the payment of any tax or assessment, water rent or other municipal charge for sixty days after the same shall have become payable; that the said party of the first part will execute any further necessary assurance of the title to the mortgaged premises; and that the said party of the second part shall have the right forthwith, after any such default, to enter upon and take possession of the mortgaged premises, and receive the rents, issues and profits thereof, and apply the same, after navmBnt nf INTEELOCUTOEY JUDGMENT. 247 all necessary charges and expenses, on account of the principal and interest of the mortgage and the bond accompanying the same and insurance premium if any; and that the said obligee and her legal representatives or assigns shall be at liberty and have the right immediately after any such default, upon a com- plaint filed, or any other legal proceedings commenced for the foreclosure of the mortgage, to apply for, and shall be entitled as a matter of right, and without regard to the value of the premises, or the solvency or insolvency of said obligor or of any owner of the mortgaged premises, and on five days notice to said obligor, his heirs and assigns, in any court of competent juris- diction, to have granted a receiver of the rents, issues and profits of the mortgaged premises, with power to lease said premises for a term to be approved by the court, with power to pay taxes and assessments and water rents which are or may become a lien on the mortgaged premises, and keep the same insured, and with power to take proceedings to dispossess tenants, and make all necessary repairs, and with the usual powers of receivers in such cases who, after deducting all charges and expenses attending the execution of the said trust as receiver, shall apply the residue of the rents and profits to the payment and satisfaction of the mortgage and the bond accompanying the same, or to any de- ficiency which may arise after applying the net proceeds of the sale of said premises to the amount due, including interest and costs, and expenses of the foreclosure and sale, if the purchaser of either of said parcels shall be willing to give such a bond and mortgage as part of the purchase money, ^^^ in which case the said bond and mortgage shall be made to Ethel Eoe, as gen- eral guardian of said infants upon her giving bond to such infants in the penal sum of four thousand dollars with two sureties to be approved by the court, otherwise said share of said infants to bo brought into court to be disposed of by the final judgment in this action. XXVI. That when said referee shall have made said sale, that he immediately file with the clerk of this court his report thereof under oath containing a description of each parcel sold, the name of the purchaser thereof and the price at which it was sold,^*) and that he take receipts for all payments made by him and file them with his said report of sale. (a) This direction must be in the interlocutory judgment. Code, § 1573. (») Code, f 1S76. 24:8 FOEMS OF PLEADINGS AND PKBCEDENTS. XXVII. It is further ordered, adjudged and decreed and the court doth hereby order, adjudge and decree that each party to this' action on demand of the purchaser or purchasers of said real property deliver to such purchaser or purchasers, all title, deeds or writings under the control of such party that relate wholly to the premises bought by such purchaser or purchasers or to any part thereof. XXVIII. That the purchaser and purchasers of said premises upon said sale be let into possession and that each party and other person upon whom this judgment is binding who may be in possession of the premises purchased or of any part thereof is hereby required and directed to deliver possession of the same to the purchaser or purchasers on production of the referee's deed.<°> XXIX. That when the said real property shall have been sold and the possession thereof delivered to the purchaser or purchas- ers, the receiver herein, James Clarke, Esq., settle his accounts of the moneys which he shall have received from the said real prop- erty as such receiver, before said referee, and pay over to him the balance found due in his hands belonging to the parties in this action, after his accounts, as settled, shall have been con- firmed by the court and the amount determined which the receiver shall pay over to the parties interested in the rents of said real property. XXX. That said referee ascertain and fix a sum in gross ac- cording to the principles of law applicable to annuities to be paid to the said defendant, Victoria Roe, in satisfaction of her dower interest in an undivided one-eighth thereof. XXXI. That said referee ascertain and fix a sum in gross according to the principles of law applicable to annuities to be paid to the said defendant, Ethel Roe, in satisfaction of her dower interest in an undivided one-eighth thereof. XXXII. That all further questions including the matter of costs and allowances be reserved until final judgment in this action. XXXIII. Any party to this action may apply to the court at the end of this judgment' for further direction or relief in the premises.^' Enter, J. B., J. S. C. (o) This direction must be in the judgment which orders the sale of the real property. Oode, § 1675. (b)Exception8 to the findings by the court may be filed, and an appeal be taken from the judgment. Exceptions can only be taken to the determinii. EKLEASE OF INCHOATE EIGHT OF DO WEB. RELEASE OF BOWER OF ISABEL BOB. 24» SUPKBME COUET OF NeW YoEK. New Yoek County. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Release C. of Inchoate Right of Dower. Richard Roe and Isabel Roe, his wife, George Roe, in- dividually and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, Marie Roe, Ethel Roe, widow of Charles Roe, and as sole administratrix of the goods, etc., of said Charles Roe, deceased, and as gejieral guardian of said Edwin Roe, Thomas Roe and Marie Roe, infant defendants, Mary Roe Jones, Richa;rd Roe Cole, William Cole, Henry Stiles, individually, and as sole administrator of the goods, etc., of Frances Roe Stiles, deceased, Henry Stiles, Jr., and Victoria Roe, widow of Henry Roe, deceased, Defendants. I, Isabel Roe, wife of Richard Roe, defendants in the above entitled action, do hereby release to Richard Roe, my husband, my inchoate right of dower in his undivided share of the real prop- erty mentioned and described in the complaint herein and which property is to be sold in this action for the partition and sale thereof. Signed, sealed and delivered ISABEL ROE. [seal.] in the presence of HORACE LAKE. tion of a court or an oflScer having power to decide the question. Where the referee only takes the testimony and reports to the Special Term the court de- cides. Where there has been a trial by jury the court is bound by the find- ings of the jury; therefore, exceptions must be taken on the trial before the jury to be considered on appeal from the judgment or on a motion for a new trial. No exception can be taken to the court's finding of a fact in accordance with the verdict. Jones v. Jones, 120 N. Y. 589. An appeal from an interlocu- tory judgment cannot be carried to the Court of Appeals. To go to the Court of Appeals the appeal must be from the final judgment, which would include exceptions taken to the interlocutory judgment and at the trial before the jury. Tilton V. Vail, 117 N. Y. 520. Costs cannot be awarded in the interlocutory judgment. They can be awarded only in the final judgment. Flynn v. Ken- nedy, 62 Hun, 26. The referee cannot incur extra expense in advertising ■ the property and deduct it from the purchase price. Stewart v. Paton, 23 Civ. Proo. Rep. 286. The court cannot authorize such expenditure. Baldwin v. 250 foems of pleadings ash pbboisdeifts. State of New York, T New York County, J On this thirtieth day of April, 1904, before me personally came Isabel Roe, to me known and known to me to be the individual described in and who executed the foregoing deed and acknowl- edged to me that she executed the same. HOEACE LAKE, Endorsed. Notary Public, N. Y. Ca, N. Y. Filed April 30, 1904. Clerk. BEFEBEE'S BEPOBT OF SALE. SUFBEME CoiTET OF New YoEK. County of New Yoek. John Doe et al., vs. Richard Koe et al., Plaintiffs, Defendants. >- Referees Report of Sale. To the Supreme Court of the State of New York: The undersigned, Edgar Carson, the referee appointed by the interlocutory judgment herein, filed on the twenty-fifth day of April, 1904, to make sale of the real property therein and in the complaint herein described at public auction to the highest bidder, do report: IL That I caused a notice of the time and place of the sale of said real property, containing an accurate description and diagram of each parcel, showing the distance to the nearest cross street, and stating the street numbers thereof, as required by the statute of this State and the rules and practice of this court, to be published twice in each week for the three successive weeks immediately preceding such sale in two public newspapers printed and pub- lished in the county of New York, where said real property is situated and where it was sold, to wit: The New York Law Journal and the New York Lantern, advertiainp' said re»l nmn- eefeeee's kepobt of sale. 251 erty for sale on the nineteenth day of May, 1904, at twelve o'clock noon at the Jfew York Keal Estate Salesroom, No. 161 Broadway, borough of Manhattan, city of New York, county of New York, proof of which publishing together with a copy of said notice is hereto annexed, marked Schedule " A," and that on the nineteenth day of May, 1904, at twelve o'clock noon, I. did attend at the place specified in said notice for the sale, and exposed each parcel of said real property for sale at public auction separately as in said judg- ment directed, according to the terms of sale, which were reduced to writing publicly announced and made known previous to the commencement of said sale to all persons attending there, and which terms of sale are herewith submitted for the information of the court III. And I further report that the first parcel, being the premises known as No. 18 Fennimore street, was struck off to Charles Le Dow of the said borough of Manhattan, for the sum of ten thousand five hundred and fifty dollars, that sum being the highest sum bidden for the same. Said purchaser elected to pay all cash. IV. That the remaining parcel, being the premises known as No. 20 Fennimore street, was struck off to Clarence Cooper of the city of Albany, county of Albany, this State, for the sum of ten thousand nine hundred and seventy-five dollars, that sum being the highest sum bidden therefor, and that said last named pur- chaser elected to give the mortgage of two thousand dollars, men- tioned in said terms of sale as a part of said purchase money. V. I further report that each of said purchasers signed the written condition of sale, reading as follows, the blank space being first property filled in with the name of the purchaser and the amount of the purchase money before signing : Memorandum of Sale. have this nineteenth day of May, 1904, pur- chased the premises described in the above annexed printed ad- vertisement of sale and knovm as No. — Fennimore street for the sum of $ , and hereby promise and agree to comply with the terms and conditions of the sale of said premises aa above mentioned and set forth. Dated, New York, May 19, 1904. Purchaser. 252 FOBMS OF PLEADINGS AND PBEOBDENTS. And paid said ten per cent, of the purchase money and complied with the terms of said sale to date; and that I gave to each pur- chaser a receipt for the ten per cent, of the purchase money for the property sold to him, reading as follows, inserting therein the name of each purchaser and the ten per cent, paid by him respectively before signing. Received from , the sum of dol- lars, being ten per cent of the anoiount bid by him for projierty sold by me under the interlocutory judgment in this cause. » , Dated, ^ew York, May 19, 1904. Eeferee.. VI. I further report that the a^regate of said sales amount to the sum of twenty-one thousand five hundred and twenty-five dollars. All of which is respectfully submitted. Dated, May 20, 1904. EDGAR CAESON, Eeferee. State of New Yoek,T County of New York J Edgar Carson, the referee herein above named being duly sworn, deposes and says, that he has read the foregoing report and knows the contents thereof and that the same is true of his own knowledge. Sworn, etc. EDGAE CAESO]Sr.'"> (a) The purchaser makes his bid upon the implied warranty that the title is a marketable title or will be made so ( Fleming v. Bumham, 100 N. Y. 1 ; Shriver v. Shriver, 86 N. Y. 575; Mead v. Mead, 24 N. Y. St. Rep. 455; Orouter v. Crouter, 133 N. Y. 55). If the purchaser refuse to take title and the plaintiff take proceedings to compel him so to do, the court has no juris- diction to make an order directing the " iferee to pay the costs of such pro- ceeding, though the plaintiff succeed. Xhe rights of the parties have been determined by the judgments in the action (Roarty v. McDermott, 89 Hun, 511). If there be liens on the real pr perty they must be stated at the time of sale, and if there be two houses or separate lots they must be sold separately unless judgment order otherwise (Code, § 1679). The referee must out of the proceeds, pay all taxes, assessments and water rates which are liens on the property sold, and redeem the property sold from any sales for any unpaid taxes, assessments or water rates which have not apparently become absolute. The sums necessary for these pur}>oses are deemed expenses of the sale (Code,. TEEMS OF SALE. ^^'■^ TEKKES OF SALE. SUPEEME COUET OF ITew YoEK. County of New Yoek. John Doe and Jeannette. Doe, Plaintiffs, Richard Eoe et al.. Defendants. >- Terms of Bale. The premises described in the annexed advertisement of sale will be sold under the direction of Edgar Carson, Referee, upon the following terms: Dated, New York, May 19, 1904. First. Ten per cent, of the purchase money of said premises will be required to be paid to the said referee at the time and place of sale, and for which his receipt will be given. Two thousand dollars of the purchase price of said premises may remain on bond and purchase money mortgage at the election of the purchaser, for a period of three years from the date of the delivery of the deed, with interest at the rate of four per cent, per annum, payable semi-annually, with covenants and agreements contained in said bond and mortgage that if default be made in the payment of the money secured by said bond and mortgage or of any part thereof, the party of the second part shall have power to sell the premises therein describedj according to law. That the party of the first part will keep the buildings on the mortgaged premises insured against loss by fire, for the benefit of the mortgagee, in default whereof the party of the second part may effect such insurance and add the premium paid to the principal debt to be secured by said bond and mortgage and to be repaid on demand with interest at the rate of six per cent, per annum. That the whole of the principal sum and interest thereon shall become § 1676). The referee's fees are prescribed in the Code, § 3297. The decedent's real property is liable to be sold to pay debts at any time within three years after the appointment of an executor or administrator (Code, §§ 2749, 2750). But if four years have elapsed since the decedent's death and no appointment made of an executor or administrator, the property may be conveyed or mort- fjaged free from the decedent's debts to a purchaser or mortgagee for value and in good faith (Code, § 2777). 254 FOEMS OF PLEADINGS AND PEECEDENTS. due, at the option of the party of the second part, after default in the payment of interest for thirty days, or after default in the payment of any tax or assessment, water rent or other municipal charge for sixty days after the same shall have become payable. That the said party of the first part -will execute any further necessary assurance of the title to the mortgaged premises. And that the party of the second part shall have the right forthwith, after any such default, to enter upon and take possession of the mortgaged premises, and receive the rents, issues and profits thereof, and apply the same, after payment of all necessary charges and expenses, on account of the principal and interest of the mort- gage and the bond accompanying the same; and insurance premium, if any, and that the obligee and her l^al representatives or assigns be at liberty and shall have the right immediately after any such default, upon a complaint filed, or any other legal pro- ceedings commenced for the foreclosure of the mortgage, to apply for, and shall be entitled as a matter of right, and without regard to the value of the premises, or the solvency or insolvency of the obligor or of any owner of the mortgaged premises, and on five days notice to said obligor his heirs and assigns, in any .court of competent jurisdiction, to have granted a receiver of the rents, issues and profits of the mortgaged premises, with power to lease said premises for a term to be approved by the court, with power to pay taxes and assessments and water rents which are or may become a lien on the mortgaged premises, and keep the same insured, and with power to take proceedings to dispossess tenants, and make all necessary repairs, and with the usual powers of receivers in such cases who, after deducting all charges and ex- penses attending the execution of the said trust as receiver, shall apply the residue of the rents and profits to the payment and satis- faction of the mortgage and the bond accompanying the same, or to any deficiency which may arise after applying the net proceeds of the sale of the premises to the amount due, including interest and costs, and expenses of the foreclosure and sale. Second. The residue of said purchase money will be required to be paid to the said referee, at his office, No. 7 Main street, in the borough of Manhattan, of the city of E^ew York, on the twentieth day of June, 1904, at ten o'clock A. M., when the referee's deed will be ready for delivery. Third. The referee is not required to send any notice to the purchaser; and if he neglects to call at the time and place above TEBMS OF SALE. 255 specified to receive his deed, he will be charged with interest there- fifter on the whole amount of his purchase, unless the referee shall deem it proper to extend the time for the completion of said pur- chase. Fourth. All taxes and assessments, which on the day of sale are liens or incumbrances upon said premises, will be allowed by the referee out of the purchase money, provided the purchaser fahall, previous to the delivery of the deed, produce to the referee proof of such liens, and duplicate receipts for the payment thereof. Fifth. The purchaser of said premises, or any portion thereof, will, at the time and place of sale, sign a memorandum of his purchase, and pay, in addition to the purchase money, the auction- eer's fee of fifteen dollars for each lot sold, and the exchange ealesroom fee of two dollars for each knock down. Sixth. The biddings will be kept open after the property is struck down ; and in case any purchaser shall fail to comply with any of the above conditions of sale, the premises so struck down to him will be again put up for sale under the direction of said referee, under these same terms of sale, without application to the court, unless the plaintiff's attorney shall elect to make such application; and such purchaser will be held liable for any de- ficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the resale, and also for any costs or expenses occurring on such resale. 256 FOKMS OF PLEADINGS AiSD PJiOECBDBNTS. NOTICE OF SALE. SUPEBME COUET OF NeW YoEK. New Yoek CoxrarY. John Doe and Jeannette Doe, his wife, Plantiffs, vs. Richard Eoe and Isabel Roe, his wife, George Eoe, indi- vidually and as sole administrator of the goods, etc., of James Eoe, deceased, Edwin Eoe, Thomas Eoe, Marie Eoe, Ethel Eoe, widow of Charles Eoe, and as sole administratrix of the goods, etc., of said Charles Eoe, deceased, and as general guardian of said Edwin Eoe, Thomas Eoe, and Marie Eoe, infant defendants, Mary Eoe Jones, Eichard Eoe Cole, "William Cole, Henry Stiles, individually and as sole administrator of the goods, etc., of Frances Eoe Stiles, deceased, Henry Stiles, Jr., and Victoria Eoe, widow of Henry Eoe, deceased, Defendants.^"'. y Scheduh ±, In pursuance of an interlocutory judgment in the above-en- titled action for the partition of real property by the sale thereof, entered and filed in the office of the clerk of the county of New York on the twenty-fifth day of April, 1904, I, the undersigned referee in said judgment appointed to sell said real property, do hereby give notice that I will sell the same in two parcels at public auction at the New York Eeal Estate Salesroom, No. 161 Broad- way,"" in the borough of Manhattan, of the city of New Yoii, county of New York aforesaid, on Thursday, the nineteenth day of May, 1904, at 12 o'clock noon. The real property in said judgment directed to be sold is therein described, as follows: First parcel known as No. 18 Eennimore street: All that certain parcel of land and premises, situate in the borough of Manhattan, of the city of New York, county and State of New York, com- (o) The name? of all of the parties to the action should be in the notice of Bale advertised. (*) Since changed to Nos. 14 and 16 Vesey street. NOTICE OF SALE OF EBAL PEOPEETY. 257 mencing at a point on the southerly side of Fennimore street, distant easterly two hundred feet from the easterly side of Cooper avenue ; thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block ; thence running easterly along said center line of the block and parallel with said Fennimore street twenty-five feet ; thence 'running northerly parallel with said Cooper avenue one hundred feet to said south- erly side of Fennimore street ; thence running westerly along said southerly side of Fennimore street twenty-five feet to the place of beginning. The second parcel known as No. 20 Fennimore street : All that certain parcel of land and premises, situate in the borough of Manhattan of the city of New York, county and State of New York, commencing at a point on the southerly side of Fennimore street distant easterly two hundred and twenty-five feet from the easterly side of Cooper avenue; thence running southerly parallel with said Cooper avenue one hundred feet to the center line of the block; thence running easterly along said center line of the block and parallel with said Fennimore street twenty-five feet ; thence running northerly parallel with said Cooper avenue one hundred feet to said southerly side of Fennimore street; thence running westerly along said southerly side of Fennimore street twenty-five feet to the place of beginning. Dated, April 26, 1904. EDGAE CAESON, EICHARD FENN, Eeferee.<»> Attorney for Plaintiffs, No. 1 Main street, borough of Manhattan, city of New York. MILTON MOEEIS, Attorney for Defendants, Eichard Eoe and Isabel Eoe, No. 3 Main street, borough of Manhattan, city of New York. SYDNEY GEAY, Attorney for Defendant, Mary Eoe Jones and others. No. 7 Main street, borough of Manhattan, city of New York. HOEACE LAKE, Attorney for Defendants, Henry Stiles, individually, etc., and William Cole, No. 1 Broadway, borough of Manhattan, city of New York. (o) Code, §§ 1435, 1678. 258 FOEMS OF PLEADINGS AND PRECEDENTS. EOGEK LEE, Attorney for Defendant, Victoria Eoe, iSTo. 3 Main street, borough of Manhattan, city of iN^ew York. CHAELES KENT, Guardian ad litem for Infant Defendants, Edwin Eoe, Thomas Eoe and Marie Eoe, No. 1 Broadway, borough of Manhattan, city of New York. The following is a diagram of the property to be sold known as Nos. 18 and 20 Fennimore street. Fennimnre Street. W 200 s 25 4 1 25 25 25 There are no unpaid taxes, assessments, water rents or other liens on said property. Dated, New York, April 26, 1904. EDGAE CAESON, - Eeferee. AFFIDAVITS OF PUBLISHERS OF NOTICE OF SALE. State of New Yoek, County of New York. Ysa. D. S. O., being duly sworn, deposes and says that he is the principal clerk of the publisher of The New York Attach jjdy; Journal, a daily newspaper printed and published gUp_ in the borough of Manhattan of the city of New York, county aforesaid; that the advertisement hereto annexed has been regularly published in the said The New York Law Jourrud twice in each week for three successive weeks NOTICE OF MOTION FOR FINAL JUDGMENT. 259 commencing on the twenty-seventh day of April, 1904, and also on May nineteenth, 1904. Sworn, etc. D. S. O. State of New York, ") County of New York, J J. K., being duly sworn, deposes and says that he is the publisher of the New York Lantern a daily news- paper printed and published in the borough of Manhat- Printed *^^ ^^ *^® ^^^^ °^ ^^ York, county aforesaid; that the Slip, advertisement hereunto attached has been regularly pub- lished in the said, the New York Lantern, twice in each week for three successive weeks commencing on the twenty-seventh day of April, 1904, and also on May nine- teenth, 1904. Sworn, etc. J. K. WOTICE OF FILING EEFEREE'S KEPOET OF SUB AND OF MOTION FOR FINAL JTJDGMENT. John Doe et al., vs. Eichard Roe et al.. Plaintiffs, Defendants. >■ Notice. Please take notice that the report of sale of Edgar Carson, the referee herein, bearing date the twentieth day of May, 1904, of which the annexed is a true copy, was filed in the office of the clerk of the county of New York on the twentieth day of May, 1904; also please take notice that I shall move this court at a Special Term, Part — , to be held at the New York County Court House in the borough of Manhattan of the city of New York on Tuesday, the thirty-first day of May, 1904, at the opening of the court on that day, namely, 10:16 o'clock in the forenoon, or as 260 FOEJMS OF PLEADINGS AND PEECEDENTS. soon thereafter as counsel can be heard, for an order confirming said report and for final judgment herein and for an extra allow- ance to the plaintiffs or their attorneys herein, to be inserted in their bill of costs and disbursements to be taxed by the clerk of the court. Dated, May 21, 1904, EIOHAKD FEITN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants, Richard Roe et al. Sydney Gray, Esq., Attorney for Defendants, Mary Koe Jones et al. Horace Lake, Esq., Attorney for Defendants, Henry Stiles et al. Roger Lee, Esq., Attorney for Victoria Roe. Charles Kent, Esq., Guardian ad litem for Infant Defendants, Edwin Roe, Thomas Roe and Marie Roe. ADHISSION OF DUE SEBVICE OF NOTICE OF FIUNa SEFEEEE'S BEFORT OF SALE OF A COPY THEREOF AND OF NOTICE OF MOTION FOR CONFIRMATION AND FINAL JUDG- MENT. Due service of the foregoing notice of the filing of the referee's report of sale and a copy of said report and notice of motion for the confirmation thereof and for final judgment is hereby ad- mitted. Dated, May 21, 1904. MILTOlf MORRIS, Attorney for Defendants, Richard Roe et al. SYDNEY GRAY, Attorney for Defendants, Mary Roe Jones et al. HORACE LAKE, Attorney for Defendants, Henry Stiles et al. cleek's ceetificate that no exceptions filed. 261 ROGEK LEE, Attorney for Defendant, Victoria Eoe. CHARLES KENT, Guardian ad litem for Infant Defendants Edwin Eoe, Thomas Eoe, and Marie Eoe. CLERK'S CERTIFICATE THAT NO EXCEPTION HAS BEEN FILED. New Toek Supeeme Couet. CoirwTY OF New Yoek. John Doe and Jeannette Doe, his wife, vs. Richard Roe et al.. Plaintiffs, Defendants. - Clerk's Certificate. I, T. L. H., clerk of the Supreme Court, do herety certify that the referee's report of sale in the above entitled action was filed in my office May 20, 1904, and that no exceptions to the report of sale have been filed since the above date. Dated, May 31, 1904. T. L. H., Clerk, 262 FOEMS OF PLEADINGS AND PKBCEDEJ^TTS. EECEIVER'S NOTICE OF SETTLEMENT OF HIS ACCOUNTS BEFORE HEFEBEE. SUPEEME COUET OF New YoEK. JSTew Toek County. John Doe and Jeannette Doe, his wife, Plaintiffs, 1}S. L Receiver's Notice of Settlement. Richard Koe et al., Defendants. Please take notice that James Clarke, the receiver herein ■will present his receiver's accounts for settlement to the referee herein, as provided in the interlocutory judgment herein, on the sixteenth day of May, 1904, at the said referee's oiSce, No. 7 Main street, in the borough of Manhattan, of the city of New York, county and State of New York, at ten o'clock in the forenoon, when and where you may attend the settlement thereof if you so desire. Dated, May 2, 1904. A. B., Attorney for Receiver aforesaid. To Richard Fenn, Esq., Plaintiffs' Attorney. Milton Morris, Esq., Attorney for Defendants, Richard Roe et al. Sydney Gray, Esq., Attorney for Defendants, Mary Roe Jones et al. Horace Lake, Esq., Attorney for Defendants, Henry Stiles et al. Roger Lee, Esq., Attorney for Defendant, Victoria Roe. iCharles Kent, Esq., Guardian ad litem for Infant Defendants, Edwin Roe et al. EECEIVEE S EEPOKT OP HIS ACCOUNTS. 263 Due service of the within notice of hearing is hereby admitted. EIOHAKD FENN, Attorney for Plaintiffs. MILTON MOEEIS, Attorney for Defendants, Richard Eoe et al. SYDNEY GEAY, Attorney for Defendants, George Eoe et al. HOEACE LAKE, Attorney for Defendant, Henry Stiles et al. EOGEE LEE, Attorney for Defendant, Victoria Eoe. CHAELES KENT, Guardian ad litem for Infant Defendants, Edwin Eoe et al. RECEIVER'S REPORT OF HIS ACCOUNTS TO REFEREE. Supreme Couet of New Yoek. New Yoek County. John Doe and Jeannette Doe, his wife. vs. Eiehard Eoe et al.. Plaintiffs, Defendants. ^ Receiver's Report. To the Supreme Court of the State of New York : The report of James Clarke, the receiver herein, respectfully shows : That by an order of this court made herein by the Honorable James Bronson, one of the justices of this court, entered and filed herein on the sixteenth day of November, 1903, the undersigned was appointed receiver in this cause, to take charge of the premises described in the complaint herein, namely, 18 and 20 Fennimore 264 FOEMS OF PLEADINGS AND PEECEDiaTTS. street, in the borough of Manhattan, of the city of New York, county and State of New York, to manage the same and to let the same, with power to sue for, collect and receive the rents, issues and profits thereof, and to do all things necessary for the proper care and management of said premises. That he filed the bond required to be filed by him as receiver and thereupon took upon himself the powers and duties of receiver, as aforesaid. That he has faithfully performed his duties as required by said order and has collected the rents of said premises that were due and uncollected at the time of his appointment and which have since become due ; that he has had the premises insured and that he has paid the taxes assessed upon said real property for the year 1903. That he has received twelve hundred dollars. That he has paid out as premium for the insurance of said prem- ises for the period of one year, said premises not being in- , sured, fifteen dollars, and that he has paid out for taxes as afore- said, two hundred and twenty dollars, leaving a balance on hand of nine hundred and sixty five dollars. All of which is respect- fully submitted. Dated, May 16, 1904 JAMES CLAEKE, Keceiver. State of New York, ', I County of New York, ;}' James Clarke, of the borough of Manhattan aforesaid, being duly sworn, deposes and says that he is the receiver in the above- entitled action ahd that the foregoing account is in all respects just and true. Sworn, etc. JAMES CLAEKE. EECEIVEE S AFFIDAVIT OF HIS PEOCEEDINGS. 265 RECEIVER'S AFFIDAVIT OF HIS PROCEEDINGS. Supreme Cotjet of New Yoek. Neiw Yoek Couis'ty. John Doe and Jeannette Doe, his wife, vs. Richard Roe et al.. Plaintiffs, Defendants. "Receiver's Affidavit. State of New Yoek, County of New York ih James Clarke, of the borough of Manhattan, of the city of New York aforesaid, being duly sworn, deposes and says that he was appointed receiver herein of the premises described in the com- plaint herein by order of this court filed herein on the sixteenth day of November, 1903, made by the Honorable James Bronson, one of the justices of this court ; that he filed his bond, approved by one of the justices of this court, with the clerk of this court, as required by said order, on the seventeenth day of November, 1903, that he thereupon took possession of said premises ; that he found the same to be two dwelling-houses with the appurtenances, already occupied by tenants under an annual lease thereof, expir- ing on the first day of May, 1904, at the annual rental of nine hundred dollars, payable in monthly installments of seventy-five dollars each. That at the time of deponent's appointment the rental of Nos. 18 and 20 Fennimore street due on the first day of October, 1903, had not been paid; that deponent collected the same and all of the rent subsequently falling due; that he found the premises were not insured, the insurance having expired a few days prior to deponent's appointment. Deponent thereupon in- sured them in the London and Lancashire Fire Insurance Com- pany for the sum of eight thousand dollars each, that being the amount of the previous insurance; that on the day of November, 1903, he paid the annual taxes assessed on said promises for said year 1903 ; that since the first day of May said tenants have continued in the possession of said prem- 266 POEMS OF PLEADINGS AND PEECEDENTS. ises at the said rental, tke lease to expire June first, 1904, and have paid the rent to the date last aforesaid in advance. {State further facts going to show what should he a proper allowance for the receiver and for his attorney.) Sworn, etc. JAMES CLAEKE. REFEREE'S REPORT ON RECEIVER'S ACCOUNT. StrPEEME COTJET OF NeW YoEK. New Yoek County. John Doe and Jeanette Doe, his wife, vs. Richard Roe et al., PlaintiflFs, Defendants. Referee's Report on Receiver's " Account. To the Supreme Court of the State of New York : In pursuance of paragraph XXIX, of the Interlocutory Judg- ment in this action, I, the undersigned referee, do report as follows : II. That in obedience to said provision of said judgment, James Clarke, Esq., the receiver mentioned therein, did appear before me as referee as aforesaid on the sixteenth day of May, instant, and made and rendered an accounting of his proceedings as re- ceiver herein, whereby it appears that said receiver has had and received of the rents of the property described in the complaint herein twelve hundred dollars. III. That he has paid out for sundry and necessary expenses, including insurance and taxes on said real property, the sum of two hundred and thirty-five dollars; that there remains in his hands an unexpended balance of nine hundred and sixty-five dollars. That annexed hereto is the account of said re- ceiver and his afBdavit of the character and extent of the services performed by him and the vouchers for money expended by him. All of which is respectfully submitted. Dated, May 17, 1904. EDGAR CARSON, Referee. NOTICE OF MOTION TO CONFIBM EEFEBEe's EEPOET. 267 NOTICE OF FILING REFEREE'S REPORT ON RECEIVER'S ACCOUITTING AND OF NOTICE OF MOTION TO CONFIRM SAME AND FOR ALLOWANCE. SUPEEME CoITET OF l^EW YoEK. New Yoek County. ■ John Doe and Jeannette Doe, his wife, vs. Eichard Eoe et al., Plaintiffs, Defendants. ■ Notice of Motion. Please take notice that the report of Edgar Carson, Esq., the referee herein, upon the account of James Clarke, Esq., the re- ceiver herein, bearing date the seventeenth day of May, 1904, has this day been filed, and that the undersigned, as attorney for said receiver, will move this court at a Special Term thereof, Part — , to be held at the JSTew York County Court House, in the borough of Manhattan, of the city of New York, State of New York, on the twenty-seventh day of May, 1904, at 10:30 o'clock in the forenoon, upon the accompanying affidavit of A. B. the re- ceiver's attorney, in addition to said report and the papers filed therewith, or as soon thereafter as counsel can be heard for an order confirming said report and for an allowance to said referee for stating the accounts of said receiver and for an allow- ance to the said receiver and to his counsel herein and that the said receiver be discharged from his trust and for such further or other order as the court shall deem meet. Dated, May 17, 1904. A. B., Attorney for Receiver. Office and Post-office Address, etc. To Richard Fenn, Esq., Attorney for Plaintiffs. Milton Morris, Esq., Attorney for Defendants, Richard Roe et al. Sydney Gray, Esq., Attorney for Defendants, George Roe et al. 268 FORMS OF PLEADINGS AND PEJICEDENTS. Horace Lake, Esq., Attorney for Defendants, Henry Stiles et al. Koger Lee, Esq., Attorney for Defendant, Victoria Roe. ■Charles Kent, Esq., Guardian ad litem for Infant Defendants. Due service of the notice of the filing of the referee's report upon the accounts of the receiver herein on the seventeenth day of May, 1904, and a copy of said report and of the within notice of a motion to confirm the same and for an allovsrance to said re- ceiver and his counsel, and to said referee for the stating of said accounts, and the accompanying affidavit of A. B. the receiver's attorney, is hereby admitted. Dated, May 17, 1904. EICHARD EENN, Attorney for the Plaintiffs. MILTON MOERIS, Attorney for the Defendants, Bichard Roe et al. SYDNEY GEAY, Attorney for the Defendants, Gkorge Roe et al. HORACE LAKE, Attorney for Defendants, Henry Stiles et al. ROGER LEE, Attorney for Defendant, Victoria Roe. CHARLES KENT, Guardian ad litem for Infant Defendants. ATTOENEy's affidavit on EECEIVEe's ACCOUNTIISrG. 269 AFFIDAVIT OF ATTORNEY FOR RECEIVER ON MOTION TO CONFIRM REFEREE'S REPORT SETTLING THE RECEIVER'S ACCOUNT AND FOR AN ALLOWANCE. SUPEEME COUET OF NeW YoEK. New Yoek County. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Eichard Eoe, Isabel Boe, his wife et al.. Defendants. ^ Affida/vit. State of New Yoek, 1 County of New York, J A. B., being duly sworn, deposes and says: That he is the attorney for the receiver herein. (State any facts tending to show what would be a proper allowance for the receiver and for his attorney.) A. B. Sworn, etc. CLERK'S CERTIFICATE THAT NO EXCEPTION HAS BEEN TILED. SuPEEME CoTJET OF NeW YoEK. New Yoek County. John Doe and Jeannette Doe et al. Plaintiffsj vs. Eichard Eoe et al.. Defendants. > Clerk's Certificate. -, clerk of the Supreme Court, do hereby I.- certify that the referee's report upon the accounting of James 270 FOEMS OF PLEADINGS AND PEECKDENTS. Clarke, Esq., the receiver herein was filed in my office June 17,. 1904, and that no exceptions to the said report have been filed since the above date. Dated, May 27, 1904. T. H. L., Clerk. OEDER CONFIRMING REFEREE'S REPORT SETTLING. RECEIVER'S ACCOUNT. At a Special Term, Part — , of the Su- preme Court of the State of J'^ew York, held at the New York County Court House, in the borough of Manhattan of the city of New York, on the twenty- seventh day of May, 1904. Present : Hon. Jambs Beonson, Justice. John Doe and Jeannette Doe, his wife. vs. Kichard Roe et al.. Plaintiffs, Defendants. Order Confirming Referees Re- port. This cause coming on to be heard upon the interlocutorj"^ judgment of sale entered herein, on the twenty-fifth day of April, 1904, whereby it was among other things ordered that said James Clarke, Esq., the receiver, do account to the said referee for the rents which he shall have received up to the sale and delivery of the deed of such premises, in order that his said account be examined, adjusted and reported iipon to this court, and that a suitable allowance be made to said receiver and the net rents distributed as aforesaid ; and upon the OKDEE cojStfiem'g eepeeee's eep't settl'ng eeceivee's acc't. 271 report of sale of said referee herein of the twentieth day of May, 1904, duly filed herein, and on the papers and proceedings in this action and the verified account of the said receiver presented to, , considered by and passed upon by Edgar Carson, Esq., the said referee ; and the report of said referee thereon of the seventeenth day of June, 1904, duly filed herein ; whereby it appears that there is in the hands of said receiver a net sum of $ rents of the said land and premises sold herein in partition, and that the said account is in all respects just and true, and that no exceptions thereto have been filed, and due notice that a copy thereof and notice of the filing thereof has been served upon all parties who have appeared herein; it is, on motion of , Esq., of counsel for the receiver herein, upon due notice to all the parties appearing herein, no one appearing to oppose, Oedeeed, That the said report of Edgar Carson, Esq., referee upon the account of the said receiver, be and the same hereby is in all respects confirmed, and that the said referee be allowed the sum of $ for taking and stating the account of said receiver, and that the said receiver be allowed the sum of $ for his services as receiver herein, and that his attorney and counsel be allowed the sum of $ for his services to the receiver, and that the said receiver, upon paying over to the said referee herein said net balance and filing the referee's receipt therefor, be relieved and discharged from his trust as receiver herein without further order. Enter, J. B., J. S. 0. 2T2 roEMs OF pleadings and peecedents. FINAL JUDGMENT. At a Special Term Part"— of the Su- preme Court of the State of New York, held at the JSTew York County Court House in the borough of Manhattan of the city of New York, on the thirty- first day of May, 1904. Present : Hon. James Beonson, Justice. John Doe and Jeannette Doe, his wife. Plaintiffs, vs. Kichard Koe and Isabel Eoe, his wife, George Eoe, in- dividually and as sole administrator of the goods, etc., of James Eoe, deceased, Edwin Eoe, Thomas Eoe, Marie Eoe, Ethel Eoe, widow of Charles Eoe, and as sole administratrix of the goods, etc., of said Charles I Final Eoe, deceased, and as general guardian of said Edwin ment' Eoe, Thomas Eoe and Marie Eoe, infant defendants, Mary Eoe Jones, Eichard Eoe Cole, William Cole, Henry Stiles, individually and as sole administrator of the goods, etc., of Frances Eoe Stiles, deceased, Henry Stiles, Jr., and Victoria Eoe, widow of Henry Eoe, deceased. Defendants. An interlocutory judgment of partition and sale having been made and filed herein bearing date the twenty-fifth day of April, 1904, adjudging among other things the right, share and interest of each party hereto in the real property described therein, and in the said complaint and ordering and decreeing among other things, that the said real property, together with the appurten- ances and all the estate and rights of all of the parties to this action and of all parties in interest therein, be sold at public auction in the borough of Manhattan of the city of New York, county and State of New York, where said real property is situ- ated, by Edgar Carson, Esq., counsellor at law, who was thereby appointed referee for that purpose. The said referee to give public notice of the time and place of such sale, accord- ing to law and the rules and practice of this court, and the said FINAL JUDGMENT. 273 referee, having sold said real property on the nineteenth day of May, 1904, and having duly filed his report of the sale thereof on the twentieth day of May, 1904, pursuant to the directions of said interlocutory judgment, whereby it appears that said referee caused due notice of the time and place of the sale of said real property containing a brief description thereof to be published twice a week for three successive weeks immediately preceding the sale thereof in two of the public newspapers printed and published in said borough of Manhattan of the city of New York, county of New York, to wit : The New Yorh Law Journal and the New York Lantern, the proof of which, together with a copy of the said notice, is annexed to said report of sale and that in pursuance of said notice, he did at the time and place specified in said notice, to wit: on the nineteenth day of May, 1904, at 12 o'clock noon, attend at the New York Real Estate Salesroom, No. 161 Broadway in the said borough, of Manhattan of the city of New York, and expose said real property for sale at public auction to the highest bidder as directed in said interlocutory judg- ment, and that said real property was fairly struck off upon such sale to the several parties hereinafter named, that is to say, the premises known as No. 18 Fennimore street to Charles Le Dow of the borough of Manhattan of the city of New York, county and State of New York for the sum of ten thousand five hundred and fifty dollars, that being the highest sum bidden for the same, and that the said purchaser thereupon duly signed a memorandum contract of sale and complied with the terms thereof; the second or remaining parcel of said real property, knovsTi as No. 20 Fennimore street, to Clarence Cooper, of the city of Albany, county of Albany, State of New York, for the sum of ten thousand nine hundred and seventy-five dollars, that being the highest sum bidden for the same, and that the said last named purchaser thereupon duly signed a memo- randum contract of the sale and complied with the terms thereof. And it further appearing that a copy of said report of sale and no- tice of the filing thereof has been duly served on all of the defend- ants, who have appeared herein, as appears by the admissions of service thereof of their respective attorneys, and that eight days and more have elapsed since the filing of said report, the .service of a copy, and of the notice of the filing, thereof, and that no exceptions have been filed thereto, and said plaintiffs, having moved this court upon due notice to all of said parties defendants who have appeared herein to confirm the said report of sale of said real nroTifirt.v. and for -fiTifll inrlfrmoTit herein, and for an extra allow- 274 FOBMS OF PLEADINGS AND PEECEDENTS. ance and for such further or other order or relief as may be meet in the premises. Now, on reading the said referee's report of sale aind inspecting the said interlocutory judgment and the other papers filed herein and proof of the due service of notice of this motion upon the attorneys for all of the parties, who have ap- peared in this action, to wit, upon Milton Morris, Esq., attorney for the defendants, Richard Koe and Isabel Ex)e ; Sydney Gray, Esq., attorney for the defendants, George Eoe, individually and as sole administrator, etc., of said James Eoe, deceased, Ethel Eoe, individually and as sole administratrix, etc., and as general guardian, etc., Mary Eoe Jones, Eichard Eoe Cole and Henry Stiles, Jr. ; Horace Lake, Esq., attorney for Henry Stiles, in- dividually and as sole administrator, etc., of Frances Eoe Stiles, deceased, and William Cole; Eoger Lee, Esq., attorney for Vic- toria Eoe ; Charles Kent, Esq., guardian, ad litem for the infant defendants, Edwin Eoe, Thomas Eoe and Marie Eoe, and no one opposing the confirmation of said report; and after hearing Eichard Fenn, Esq., of counsel for the plaintiffs, and Milton Morris, Esq., of counsel for the defendants, Eichard Eoe and Isabel Eoe; Sydney Gray, Esq., of counsel for the defend- ants, George Eoe, individually and as sole administrator, etc., Ethel Eoe, individually and as sole administratrix, etc., and as •general guardian, etc., Mary Eoe Jones, Eichard Eoe Cole and Henry Stiles, Jr. ; Horace Lake, Esq., of counsel for the defend- ants, Henry Stiles and William Cole; Eager Lee, Esq., of coun- sel for the defendant, Victoria Eoe; Charles Kent, Esq., guardian ad litem for the infant defendants, Edwin Eoe, Thomas Eoe and Marie Eoe, on the question of costs and allowances. And the plaintiffs having produced to the court and filed with the other papers herein the certificate of the surrogate of the county of New York, showing that three years and more have elapsed since the issuing of letters of administration upon the es- tate of the said William Eoe, deceased, and that no proceedings for the mortgage, lease, or sale of the real property of said William Eoe, deceased, for the payment of his debts or funeral ixpenses, or both is pending, and also the certificate of the clerk of the county of New York aforesaid, showing that no notice pro- vided for in Section 2751 of the Code of Civil Procedure has been filed in his oflice affecting the real property described in the complaint herein. And the plaintiffs having produced to the court and filed with the other papers herein the certificate of the surrogate of the county of New York, showing that three years and more have FINAL JUDGMENT. 275 elapsed since the issuing of letters of administration upon the es- tate of the said Frances Roe Stiles, deceased, and that no proceed- ings for the inortgage, lease, or sale of the real property of said Frances Eoe Stiles, deceased, for the payment of her debts or funeral expenses, or hoth is pending, and also the certificate of the clerk of the county of New York aforesaid, showing that no notice provided for in Section 2751 of the Code of procedure has been been filed in his office affecting her interest in the real property de- scribed in the complaint herein. And the plaintiff having produced to the court and filed with the other papers herein, the certificate of the surrogate of the county of New York, showing that three years and more have elapsed since the issuing of letters of administration upon the estate of the said Charles Roe, deceased, and that no proceedings for the mortgage, lease or sale of the real property of said Charles Roe, deceased, for the payment of his debts or funeral expenses, or both is pending, and also the certificate of the clerk of the county of New York aforesaid, showing that no notice provided for in Section 2751 of the Code of Civil Procedure has been filed in his office affecting the interest which was of said Charles Roe, deceased, in the real property described in the complaint herein. And it appearing to the court among the other papers filed herein, that the defendant, Isabel Roe, by a written instrument duly acknowledged by her and certified as required by law with respect to the acknowledgment of a conveyance to bar her dower, has released to her husband, the defendant, Richard Roe, her inchoate right of dower in said real property sold as aforesaid, which release was duly filed with the clerk of this court after the filing of said interlocutory judgment and prior to the filing of said report of sale, to wit: on the fifth day of May, 1904. Now, on motion of Richard Fenn, Esq., of counsel for the plaintiffs, it is Ordered, adjudged and decreed and the court doth hereby order, adjudge and decree : I. That the said referee's report of sale, dated the twentieth day of May, 1904, be and the same is hereby in all respects and things approved, ratified and confirmed. II. That said referee complete said sale and execute and de- liver deeds to the said several purchasers, and take the proper security from said purchaser, Clarence Cooper, pursuant to the terms of sale, upon their respectively complying with the condi- tions and terms upon which said sales were made to them re- 276 POEMS OF PLEADINGS AND PRBCEDIilNTS. spectively, as directed by the said interlocutory judgment of the twenty-fifth day of April, 1904. III. That said referee out of the proceeds of said sale deduct his fees, costs and disbursements of said sale, and an allowance to him of dollars on the reference to him of the eighteenth day of February, 1904, to take, state and report an accounting herein of the rents of said real property and to ascer- tain whether there was any creditor, not a party, who had a lien on the undivided share or interest of any party, and to ascertain if there were any person having a specific lien appearing of record at the time of the filing of either the notice, amended notice, or supplemental notice of the pendency of this action, who was not made a party, and whether the State had a lien under the statutes relating to the taxable transfers of property upon said real prop- erty, or upon any undivided share or interest therein, and also deduct his disbursements on said reference for advertising said notice and the making of said searches. IV. That said referee, out of the proceeds of said sale and the moneys which shall have been paid to him by the receiver herein for distribution among the parties in interest in said real estate, pursuant to the order of the court filed in this action, pay to the said plaintiffs' attorney, Richard Fenn, Esq., the costs and dis- bursements of the plaintiffs herein, except their costs and dis- bursements on said trial by jury and on said appeal to the Appellate Division, which are hereby charged upon the separate share of Richard Roe, to be taxed on notice, and also the further sum of dollars, hereby allowed to the plaintiffs in addition to their taxable costs herein.*** That he pay out of the same to Milton Morris, Esq., attorney for the defendants, Richard Roe and Isabel Roe, the costs and disbursements of said defendants to be taxed on notice, and also the further sum of dollars, hereby allowed said defendants in addi- tion to their costs herein. That he pay out of the same to Sydney Gray, Esq., attorney for the defendants, George Roe, individually and as sole admin- istrator, etc., Ethel Roe, individually and as sole administratrix, etc., and as general guardian, etc., Mary Roe Jones, Richard Roe Cole, and Henry Stiles, Jr., the costs and disbursements of said defendants to be taxed on notice, and also the further sum of — ■ dollars, hereby allowed said defendants in addi- tion to their taxable costs herein. (a) Costs must be awarded in the final judgment, not in the interlocutory judgment. Flynn v. Kennedy, 62 FINAL JUDGMENT. 277 That he pay out of the same to Horace Lake, Esq., attorney for the defendants, Henry Stiles and William Cole, the costs and dis- bursements of said defendants to be taxed on notice, and also the further sum of dollars, hereby allowed said defend- ants in addition to their taxable costs herein. That he pay out of the same to Charles Kent, Esq., guardian ad litem for the infant defendants, Edwin Eoe, Thomas Eoe, and Marie Roe, the sum of dollars, hereby allowed him as guardian ad litem of said infant defendants.^*' That he pay out of the same to Roger Lee, Esq., attorney for the defendant, Victoria Eoe, the costs and disbursements of said defendant to be taxed on notice, and also the further sum of dollars, hereby allowed said defendant in addi- tion to her taxable costs herein. V. That the said referee, after making the payments aforesaid, divide the residue among the parties entitled thereto, according to their respective interests therein, as adjudged in said interlocu- tory judgment of April 25, 1904, except that he pay to said Rich- ard Roe his share free from the right of dower of his wife, Isabel Roe, and charge said Richard Roe's share with the aforesaid costs of the plaintiffs of said trial by jury and appeal to be taxed, to wit : (a) That he pay to the plaintiff, John Doe, an one-eighth thereof.*'" (b) That he pay to the defendant, Mary Roe Jones, an one- eighth thereof. (c) That he pay to the defendant, Richard Roe Cole, an one- eighth, thereof, less the plaintiffs' costs and disbursements in said jury trial and said appeal to be taxed by the clerk of this court, and which are hereby allowed to the plaintiffs. (d) That he pay to the defendant, Henry Stiles, Jr., an one- eighth thereof, first deducting therefrom said seven hundred dol- lars rents which the said Henry Stiles, Jr., now has in his hands, and distribute said rents among the parties entitled thereto, as adjudged in said interlocutory judgment. (e) That out of the one-eighth share thereof descending to tho heirs of said Charles Roe, deceased, he pay to the defendant, Ethel Roe, the widow of said Charles Roe, deceased, the sum Avhich he shall have fixed in pursuance of the direction contained in said interlocutory judgment of sale in satisfaction of her dower (a) Costs are not awarded to the guardian ad litem of an infant defendant. His compensation rests in the discretion of the court. (6) The balance due the parties after deducting the taxed costs and allow- ances must be paid to them and not to their attorneys. Code, § 1580 ; McKenna V. Duflfy, 64 Hun. 597. 278 FOKMS OF P5,EAI>INGS AND PEECEDENTS. in said one-eighth; and that he pay the remainder of the one- eighth last aforesaid to her as general guardian of the infant defendants, Edwin Eoe, Thomas Eoe, and Marie Eoe, including in said one-eighth the amount of the bond and mortgage upon said premises known as ISTo. 20 Fennimore street, which bond and mortgage was given by the purchaser, Clarence Cooper, to the said Ethel Eoe, as general guardian of said infants, as part of the purchase price of said premises, and which is to be reckoned as part of the proceeds of said sale, upon her executing to said infants a bond with two sureties approved by the court. *^' (f) That out of an one-eighth share thereof descending to the heirs of said Henry Eoe, deceased, he pay to the defendant, Victoria Eoe, the widow of said Henry Eoe, deceased, the sum which he shall have fixed in pursuance of the direction contained in said interlocutory judgment in satisfaction of her dower in said one-eighth, and that he pay the remainder of said last-named one-eighth into court by depositing the same with the Chamber- lain of the city of New York, to await the further order of the court in the premises.*''* (g) That the share of the proceeds of such sale which would have belonged to said Helen Eoe Cole, deceased, if living, be paid into court by said referee by depositing the same with the Chamberlain of the city of New York, to await the further order of the court in the premises.*"* (h) That the share of the proceeds of such sale which would have belonged to James Eoe, deceased, if living, be paid into court by said referee by depositing the same with the Chamberlain of the city of New York, to await the further order of the court in the premises. That said referee take receipts for all moneys which he shall pay under and in pursuance of a judgment or decree herein sub- (o) Code, § 1581. (6) This directioni to deposit the money with the City Chamberlain or a County Treasurer in the final judgment and not in the interlocutory judgment, is provided for in Section 1538 of the Code. The time during which the share of said Charles Eoe, deceased, was liable to be mortgaged or sold to pay funeral expenses or debts having expired before final judgment, without any proceedings having been commenced to mortgage, lease or sell the same, the final judgment directs the payment of his share direct to his heirs, although the time had not expired at the commencement of the action, nor at the time of the entering of the interlocutory judgment. (c) In the case of Helen Eoe Cole, it seems that this share must be paid into court under Section 1538, because no letters testamentary or of administra- tion upon her estate have been taken out in this State, although under Section 2777 of the Code, after four years shall have elapsed since the death of the ancestor, without any such proceedings being taken to mortgage, lease or sell real property and no executor or administrator has been appointed, the real property may be sold free of the lien. NOTICE OF FILIH-Q FINAL JUDGMENT. 279 sequent to the confirmation of his report of sale and file the same with his report of the proceedings herein. Enter, J. B., J. S. 0. NOTICE OF FILING FINAL JUDGMENT. !New York Supkeme Couet. County of New Yoek. Notice. John Doe et al., Plaintiffs, vs. Richard Eoe et al., Defendants. Gentlemen. — Please take notice that the final judgment herein, dated May 31, 1904, a copy of which is herewith served upon you, was duly entered and filed herein in the office of the clerk of said county of New York, at the New York County Court House, on the thirty-first day of May, 1904. Dated May 31, 1904. Yours, etc., RICHARD FENN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants, Richard Roe et al. Sydney Gray, Esq., Attorney for Defendants, Mary Roe Jones et al. Horace Lake, Esq., Attorney for Defendants, Henry Stiles et al. Roger Lee, Esq., Attorney for Defendant, Victoria Roe. Charles Kent, Esq., Guardian ad litem for Infant Defendants, Edwin Roe et al. Due service of the aforesaid notice of filing the said final judg- ment herein and a copy of the same is hereby admitted. Dated May 31, 1904. MILTON MORRIS, Attorney for Defendants, Richard Roe et al. 280 FOEMS OF PLEADINGS AND PEBCEDBNTS. SYDI^EY GKAT, Attorney for Defendants, Mary Koe Jones et al. HOEACE LAKE, Attornev for Defendants, Henry Stiles et al. EOGEE LEE, Attorney for Defendant, Victoria Eoe. CHAELES KENT, Guardian ad litem for Infant Defendants, Edwin Eoe et al. REFEREE'S REPORT OF DISTRIBUTION, INew York Supeeme Couet. County op New Yoek. John Doe et al., vs. Eichard Eoe et al.. Plaintiffs, Defendants. > Report of Distribution. To the Supreme Court of the State of New York : In pursuance of an order and the judgment of this court made in the above-entitled action, bearing date the thirty-first day of May, 1904, and filed in the office of the clerk 'of the county of New York on the said thirty-first day of May, 1904, I, the sub- scriber, the referee in said judgment named, do report : I. That in obedience to the direction contained in said judg- ment, I have executed, acknowledged, and delivered to Charles Le Dow, the purchaser of the said premises, known as No. 18 Een- nimore street, a deed of the said premises on receiving from him the sum of ten thousand five hundred and fifty dollars, the price for which the said parcel was sold to him, as mentioned in my report of sale heretofore made herein, he having complied with all of the conditions upon which the said deed was to be delivered. eefeeee's eepoet of disteibutiok. 281 II. That I have likewise executed, acknowledged, and delivered to Clarence Cooper, the purchaser of the premises knovm as 'No. 20 Fennimore street, a deed of the said premises upon receiving from him in cash the sum of eight thousand nine hundred and seventy- five dollars, and his bond and mortgage for two thousand dollars of the purchase money, making together the price for which the said parcel was sold to him, as mentioned in my report of sale aforesaid, and which bond and mortgage were made by said Clarence Cooper to said Ethel Koe, as general guardian of said infant defendants, Edwin Eoe, Thomas Roe, and Marie Eoe, he having complied with all of the provisions of the interlocutory judgment herein and the terms of sale reported and filed herein and on which the said deed was to be delivered, and that I have let said purchasers into the possession of the premises purchased by them respectively. III. I further report that James Clarke, the receiver herein has paid over to me the sum of seven hundred and seventy-five dollars, rents of said real property, which remained in his hands for distribution among the parties herein entitled thereto, as determined by the court settling his accounts, made, entered, and filed herein May 27, 1904, and which sum he was directed to pay over to me for such distribution by the interlocutory judg- ment of sale herein. IV. I further report that I have taken the proofs and found the facts necessary to fix the sum in gross according to the prin- ciples of law applicable to annuities, payable to said defendant, Victoria Koe, in satisfaction of her dower interest in said real property and that I found the same to be five hundred and sixty- four dollars and thirty-two cents. V. And that I have taken the proofs and found the facts neces- sary to fix the sum in gross according to the principles of law applicable to annuities, payable to said defendant, Ethel Eoe, in satisfaction of her said dower interest in said premises and that I found said sum to be four hundred and eighty-four dollars and sixty-four cents. VI. I further report that I have paid to Eichard Eenn, Esq., the plaintiffs' attorney, the sum of , awarded the plain" tiffs for their costs, disbursements, and allowances taxed in this action as taxed by the clerk and that his receipt therefor is hereto annexed, and that I have also paid to him the plaintiffs' costs in the trial herein before the Trial Term of this court and on the appeal from the findings of the jury thereon, as taxed by the clerk of this court, and that his receipt therefor is hereto annexed. 282 FOBMS OF PLEADINGS AND PBECEDENTS. VII. That I have paid to Milton Morris, Esq., the attorney for the defendants, Richard Roe and Isabel Hoe, the sum of awarded said defendants for their costs, disbursements, and al- lowances in this action as taxed by the clerk and that his receipt for is hereto annexed. VIII. That I have paid to Sydney Gray, Esq., attorney for the defendants, George Roe, individually and as sole administrator, etc., of James Eoe, deceased, Ethel Roe, individually and as sole administratrix, etc., of Charles Roe, deceased, and as general guardian, etc., Mary Roe Jones, Richard Roe Cole, and Henry Stiles, Jr., the sum of , awarded said defendants for their costs, disbursements, and allowances in this action as taxed by the clerk and that his receipt therefor is hereto annexed. IX. That I have paid to Horace Lake, Esq., the attorney for the defendants, Henry Stiles, individually and as sole adminis- trator, etc., and William Cole, the sum of , awarded said defendants for their costs, disbursements, and allowances in this action as taxed by the clerk and that his receipt therefor is hereto annexed. X. That I have paid to Roger Lee, Esq., attorney for the de- fendant, Victoria Roe, the sum of , awarded to her for her costs, disbursements, and allowances in this action as taxed by the clerk and that his receipt therefor is hereto annexed. XL That I have paid to Charles Kent, Esq., guardian ad litem for the infant defendants, Edwin Roe, Thomas Roe, and Marie Roe, the sum of , allowed him as their guardian ad litem in this action and that his receipt therefor is hereto annexed. XII. I further report that I have retained from the proceeds of said sale the sum of dollars, allowed and directed to be paid to me in the final judgment herein as and for my fees on the reference to ascertain and report whether any creditor not a party to this action had a lien on the undivided share or interest of a party to this action, etc., and the taking and stating of the accounts of said rents, and the further sum of , for my fees upon said sale and the receipt and distribution of the proceeds thereof. XIII. That I have paid out of said proceeds fifty dollars for advertising said sale in The New York Law Journal, fifty dol- lars for advertising said sale in the New York Lantern, fifty- dollars for advertising said notice to creditors not parties to this action in The New York Law Journal and fifty dollars for adver- eefeeee's eepoet of disteibution. 283 tising said notice to creditors in the New York Lantern, and one hundred dollars for said official searches, receipts for all of which are hereto attached. XIV. I further report that the net proceeds for distribution among the several parties hereto was the sum of twenty thousand four hundred dollars. XV. That I have disposed of the same as follows : One-eightli thereof, being twenty-five hundred and fifty dollars, I have paid to the plaintiff, John Doe, and that his receipt therefor is hereto annexed. XVI. A further one-eighth thereof, being dollars, less the said costs of the Trial Term and of the Appellate Division, as taxed by the clerk, I have paid to said defendant, Eichard Koe, and that his receipt therefor is hereto annexed. XVII. A further one-eighth thereof, being dollars, I have paid to the defendant, Mary Eoe Jones, and her receipt therefor is hereto annexed. XVIII. A further one-eighth thereof, being dollars, I have paid to Henry Stiles, Jr., having first deducted therefrom seven hundred dollars which was chargeable upon his share and that his receipt therefor is hereto annexed. XIX. A further one-eighth, being dollars, the share of the proceeds of such sale which would have belonged to James Roe, deceased, if living, I have paid into court to the credit of this action by depositing the same with the chamberlain of the city of K^ew York, to await the further order in the premises. XX. A further one-eighth thereof, being dollars, which would have belonged to said Helen Koe Cole, if living, I have paid into court to the credit of this action by depositing the same with the Chamberlain of the city of ITew York to await the further order in the premises.**' XXI. From a further one-eighth, I have deducted the sum of four hundred and eighty-four dollars and sixty-four cents, being the amount fixed according to the principles of law applicable to annuities for the dower of Ethel Roe therein, according to the directions of said interlocutory judgment, and that I have paid said sum to her, said Ethel Eoe, as directed by said final judg- ment and her receipt therefor is hereto annexed, and the re- (a) Though more than three years have elapsed since the death of Helen Eoe Cole, yet as no letters testamentary or of administration have been taken out in this State upon her estate, it seems the money must be paid into court. Code, § 1538. 284 FOEMS OF PLEADIirGS AND PEECEI>EiNTS. mainder of said one-eighth thereof, being the one-eighth which would have belonged to said Charles Roe, deceased, were he living, I have paid to said Ethel Eoe, as general guardian of said infant defendants, Edwin Eoe, Thomas Eoe and Marie Eoe, pursuant to the directions of said final judgment, she having executed the bond with two sufficient sureties, owners of improved unencum- bered real property situated in this State, approved by the court, and filed the same herein according to the rules and practice of this court, delivering to her as part thereof said purchase money, bond, and mortgage of two thousand dollars, and her receipt there- for is hereto annexed. XXII. Erom the final one-eighth, which would have belonged to said Henry Eoe, deceased, if living, I have deducted the sum of five hundred sixty-four dollars and thirty-two cents, being the amount fixed according to the principles of law applicable to an- nuities for the dower of Victoria Eoe therein, according to the directions of said interlocutory judgment, and that I have paid said sum to her as directed by said final judgment and her re- ceipt therefor is hereto annexed, and the remainder of said final one-eighth I have paid into court to the credit of this action by de- positing the same with the Chamberlain of the city of New York to await the further order in the premises. All of which is respectfully submitted. Dated, ISTew York, June 30, 1904. EDGAE CAESON, Eeferee. State of New Yoek, ss ' County of New York, Edgar Carson, the referee above named, being duly sworn, deposes and says that the foregoing report made by him is in all respects just and true. Sworn, etc. EDGAE CAESON. NOTICE TO CONFIRM KEFEEEe's EEPOET OF DISTEIBTJTION. 285 NOTICE OF FILING KEFEEEE'S REPORT OF DISTRIBUHON AND OF NOTICE TO CONFIRM IT. SUPEEME OOITET OF ISTeW YoEK. County of New Yoek. John Doe and Jeannette Doe, his wife, Plaintiffs, vs. Eichard Eoe et al., Defendants. "Notice of motion. Please take notice that the referee's report of distribution herein, bearing date the thirtieth day of June, 1904, a copy of which is herewith served^ was filed herein in the ofiice of the clerk of the county of New York, on the thirtieth day of June, 1904; and also Please take notice that I shall move the court, at a Special Term thereof to be held at the New York County Court House, on the eleventh day of July, 1904, at 10 :30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order con- firming the said report, and for such further or other order in the premises as the court shall deem meet. Dated Jun'e 30, 1904. EICHAKD PENN, Plaintiffs' Attorney. To Milton Morris, Esq., Attorney for Defendants, Eichard Eoe et al. Sydney Gray, Esq., Attorney for Defendants, Mary Eoe Jones et al. Horace Lake, Esq., Attorney for Defendants, Henry Stiles et al. Eoger Lee, Esq., Attorney for Defendant, Victoria Eoe. Charles Kent, Esq., Guardian ad litem for Infant Defendants, Edwin Eoe et al. 286 FORMS OF PLEADINGS AND PRECEDENTS. Due service of notice of the filing of the referee's report of dis- tribution herein, and a copy thereof, and of the notice of motion for the order confirming the said report is hereby admitted. Dated June 30, 1904. MILTON MORKIS, Attorney for Defendants, Eichard Roe et al. SYDNEY GRAY, Attorney for Defendants, Mary Roe Jones et al. HORACE LAKE, Attorney for Defendants, Henry Stiles et al. ROGER LEE, Attorney for Defendant, Victoria Roe. CHARLES KENT, Guardian ad litem for Infant Defendants, Edwin Roe et al. CLERK'S CEETIFICATE THAT NO EXCEPTION HAS BEEN FILED. SUPEEME COUET OF NeW YoBK. County of New York. John Doe et al., vs. Richard Roe et al.. Plaintiffs, Defendants. >■ Clerk's Certificate. I, T. L. H., clerk of the Supreme Court, do hereby certify that the referee's report of distribution in the above-entitled action was filed in my office June 30, 1904, and that no exceptions to the report of distribution have been filed since the above date. Dated New York, July 11, 1904. T. L. H., Clerk. OEDER COITFIEMING EEFEEEe's KEPOET OF DISTEIBUTION. 287 ORDER CONHRMING REPORT OF DISTRIBUTION. At a Special Term, Part — , of the Su- preme Court of the State of New York, held in and for the county of New York, at the New York County Court House in the borough of Man- hattan, of the city of New York, on the eleventh day of July, 1904. Present: Hon. James Beowsow, Justice. John Doe et al., Plaintiffs, Richard Roe et al., Defendants. . Order Confirming Report of Distribution. On reading the report of distribution of the proceeds of sale herein of Edgar Carson, Esq., the referee, bearing date the thirtieth day of June, 1904, and filed herein on the thirtieth day of June, 1904, in the office of the clerk of the county of New York, reporting that the said referee had delivered deeds of the real property and premises sold by him as aforesaid to the respective purchasers thereof at the sale thereof, and that he received the pur- chase money thereof, and the bond and mortgage made by the pur- chaser of No. 20 Fennimore street, Clarence Cooper, to said Ethel Roe, as general guardian of said infant defendants, Edwin Roe, Thomas Roe, and Marie Roe, to secure two thousand dollars, a part of the purchase money thereof, and that he has retained the sum of $ allowed him as referee and for his disburse- ments under said order of reference of February 18, 1904, and that he has paid the expenses of the said sale, including his fee on said sale, the costs, disbursements, and allowances of the attorneys herein as taxed, and that he has received the moneys ordered by this court to be paid over to him by the receiver of the rents of said real property from said receiver, and that he has distributed the whole surplus remaining in his hands among the parties 288 FOEMS OF PLEADINGS AND PEECBDENTS. entitled thereto in the proportions decreed in the interlocutory judgment herein and as directed by the final judgment confirm- ing the report of sale herein, delivering to said Ethel Eoe, as gen- eral guardian aforesaid, said bond and mortgage, of two thousand dollars, part of the one-eighth share of said infant defendant, she having given and filed the bond with sureties approved as afore- said, and as particularly specified in said report, to which are an- nexed the receipts of all of the several payments, including the receipts of the several attorneys herein for the several payments made to them and of the several parties to whom the several dis- tributive shares have been paid, and on reading and filing proof of the due service of notice of the filing of said report of distribution, together with a copy thereof, and notice of the application for this order and proof of the due service thereof upon Milton Morris, Esq., attorney for the said defendants, Eichard Roe and Isabel Eoe; Sydney Gray, Esq., attorney for the defendants, Ethel Eoe, individually, as sole administratrix, etc., and as gen- eral guardian, etc., George Eoe, individually and as sole ad- ministrator, etc., Mary Eoe Jones, Henry Stiles, Jr., and Eichard E. Cole; and upon Horace Lake, Esq., attorney for the defend- ants, Henry Stiles, individually and as sole administrator, etc., and William Cole; and upon Eoger Lee, Esq., attorney for the defendant, Victoria Eoe ; and upon Charles Kent, Esq., guardian ad litem for the infant defendants, Edwin Eoe, Thomas Eoe, and Marie Eoe, more than eight days since, and no one appearing to oppose, and no exception to said report having been filed, and due deliberation having been had, it is, on motion of Eichard Eenn, Esq., of counsel for the plaintiffs, Oedeeed, That the said final report of Edgar Carson, the referee herein, dated and filed as aforesaid on the thirtieth day of June, 1904, be and the same hereby is in all respects ratified and confirmed. Enter, J. B., J. S. C. BOSTD OF PURCHASER TO GEKERAL GUARDIAN. 289 BOND or PUECHASER TO GENERAL GUARDIAN. Know all men by these presents, That I, Clarence Cooper of the city of Albany, county of Albany, and State of New York, am held and firmly bound unto Ethel Eoe, as general guardian of Edwin Roe, Thomas Roe, and Marie Roe, infants, of the borough of Manhattan, of the city of New York, county of New York, and State of New York, in the penal sum of four thousand dollars, lawful money of the United States of America, to be paid to the said Ethel Roe as general guardian as aforesaid, her successors, or assigns: Eor 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 twentieth day of June, in the year one thousand nine hundred and four. The condition of the above obligation is such that if the above bounden Clarence Cooper, his heirs, executors, or administrators, shall well and truly pay or cause to be paid unto the above named Ethel Roe, her successors or assigns, the just and full sum of two thousand dollars, on the twentieth day of June^ in the year A. D., nineteen hundred and seven, with interest thereon, at and after the rate of four per cent, per annum, payable semi-annually on the twentieth days of each December and June, ensuing the date hereof, without any fraud or other delay, then the above obligation to be void, otherwise to remain in full force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of the said interest or any part thereof, on any day whereon the same is made payable as above expressed, and should the same remain unpaid and in arrear for the space of thirty days, or should any default be made by the said Clarence Cooper, his heirs, executors, administrators, or assigns, in keep- ing the covenants contained in the indenture of mortgage reciting this bond, and bearing even date and delivered simultaneously herewith as collateral security for the payment of the money afore- said, or in keeping any one of said covenants, then, and from thenceforth, that is to say, after the lapse of the said thirty days, or upon the failure to keep said covenants, and each and every one of them, on the part of said Clarence Cooper, his heirs, executors, administrators, or assigns, the principal sum of two thousand dollars, with all the arrearages of interest thereon, and moneys due under said mortgage, at the option of said party of the second part, shall become and be due and payable immediately 19 290 FOEMS OF PLEADINGS AND PKECEDEJSTTS. thereafter, although the period first above limited for the payment thereof may not then have expired, anything hereinbefore con- tained to the contrary thereof in anywise notwithstanding. OLAEENCE COOPER [seal.] Sealed and delivered in the presence of DANIEL LANE. ss. State of New Yoek, New York County, On this twentieth day of June, nineteen hundred and four, be- fore me personally came Clarence Cooper, to me known and known to me to be the individual described in and who executed the foregoing instrument and acknowledged to me that he executed the same. DANIEL LANE, Notary Public, etc. MORTGAGE OF PURCHASER TO GENERAL GUARDIAN. This indentube, made the twentieth day of June, in the year nineteen hundred and four, between Clarence Cooper, of the city of Albany, county of Albany, and State of New York, party of the first part; and Ethel Eoe, as general guardian of Edwin Eoe, Thomas Eoe, and Marie Eoe, infants, of the borough of Man- hattan, of the city of New York, county of New York, and State of New York, party of the second part ; Wheeeas, the said Clarence Cooper is justly indebted to the said party of the second part, in the sum of two thousand dollars, lawful money of the United States, secured to be paid by his certain bond or obligation bearing even date herewith, conditioned for the payment of the said sum of two thousand dollars, on the twentieth day of June, nineteen hundred and seven, and the interest thereon, to be computed from the date thereof at the rate of four per cent per annum, and to be paid semi-annually. It being theeeby expeesslt ageeed that the whole of the said principal sum shall become due after default in the payment of interest, taxes, or assessments, as hereinafter provided. MOETGAGE OP PUECIIASEK TO GEKEEAL GUAEDIAN. 291 IsTow THIS INDENTURE WITNESSETH, That the Said party of the first part, for the better securing the payment of the said sum of money mentioned in the condition of the said bond or obligation, with interest thereon, and also for and in consideration of one dollar, paid by the said party of the second part, the receipt whereof is hereby acknowledged, doth hereby grant and release unto the said party of the second part, and to her successors, and assigns and their heirs forever, all that certain lot, piece or par- eel of land, situate, lying, and being in the borough of Manhattan of the city of New York, county of New York, State of ISevf York, and more particularly described as follows: Commencing at a point on the southerly side of Fennimore street, distant east- erly from the easterly side of Cooper avenue, two hundred and twenty-five feet; thence running southerly, parallel with said Cooper avenue, one hundred feet to the center line of the block; thence running easterly along said center line of the block parallel with said Fennimore street, twenty-five feet ; thence running northerly, parallel with said Cooper avenue, one hundred feet to said southerly side of Fennimore street; thence running westerly along said southerly side of Fennimore street, twenty-five feet, to the place of beginning. Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises. To HAVE AND TO HOLD the abovo granted premises unto the said party of the second part, her successors, and assigns, and their heirs forever. Peovided always, that if the said party of the first part, his heirs, executors, or administrators shall pay unto the said party of the second part, her successors or assigns, the said sum of money mentioned in the condition of the said bond or obligation and the interest thereon, at the time and in the manner mentioned in the said condition, that then these presents and the estate hereby granted shall cease, determine, and be void. And the said party of the first part, covenants with the said party of the second part as follows : First. That the said party of the first part, will pay the in- debtedness as hereinbefore provided, and if default be made in the payment of any part thereof, the said party of the second part shall have power to sell the premises therein described, according to law. 292 roEMs OF pleadings and peecedents. Second. That the said party of the first part, will keep the buildings on the said premises insured against loss by fire, for the benefit of the mortgagee, in default whereof said party of the second part may effect such insurance, and the premium paid shall be added to said principal debt and be secured hereby, and be repaid on demand with interest at the rate of six per cent, per annum. Third. And it is hereby expressly agreed, that the whole of said principal sum shall become due, at the option of the said party of the second part, after default in the payment of interest for thirty days, or after default in the payment of any tax or assess- ment, water rent or other municipal charge for sixty days after the same shall have become due and payable. And that the said party of the first part will execute any further necessary assurance of the title to the mortgaged premises. And the said party of the second part shall have the right forth- Vi'ith, after any such default, to enter upon and take possession of the said mortgaged premises, and receive the rents, issues, and profits thereof, and apply the same, after payment of all neces- sary charges and -expenses, on account of the principal and in- terest of this mortgage and the bond accompanying the same ; and the said obligee and her legal representatives or assigns shall be at liberty and have the right immediately after any such default, upon a complaint filed, or any other legal proceedings commenced for the foreclosure of this mortgage, to apply for, and shall be entitled as a matter of right, and without regard to the value of the premises, or the solvency or insolvency of said obligor or of any owner of the mortgaged premises, and on five days notice to said obligor, his heirs and assigns, in any court of competent jurisdiction, to have granted a receiver of the rents, issues, and profits of the said mortgaged premises, with power to lease said premises for a term to be approved by the court, with poAver to pay taxes and assessments and water rents which are or may be- come a lien on said premises, and keep the same insured, and with power to take proceedings to dispossess tenants, and make all necessary repairs, and with such other powers as may be deemed necessary and are usual powers of receivers in such cases, who, after deducting all charges and expenses attending the execu- tion of the said trust as receiver, shall apply the residue of said rents and profits to the payment and satisfaction of this mortgage and the bond accompanying the same, or to any deficiency which eeferee's deed to pueohasek. 293 may arise after applying the net proceeds of the sale of said premises to the amount due, including interest and costs, and ex- penses of the foreclosure and sale. This mortgage is given by the purchaser of the above described land and premises to secure a part of the purchase money thereof at the same time as the delivery to him of the deed thereof by Edgar Carson, referee. Ii^ wiTisrEss WHEEEOF, the said party of the first part hath hereunto set his hand and seal the day and year first above written. CLAKEifCE COOPEE. [seal.J Sealed and delivered in the presence of DANIEL LANE. State op New Yoek, ) New York County, \ On the twentieth day of June, in the year nineteen hundred and four, before me personally came Clarence Cooper, to me known and known to me to be the individual described in, and who executed the foregoing instrument and acknowledged to me that he executed the same. DANIEL LANE, Notary Public, etc. The land affected by the within instrument lies in section , block , on the land map of the city of New York. EEFEKEE'S DEED TO PURCHASER. This indeittuee, made the twentieth day of June, in the yea* of our Lord, one thousand nine hundred and four. Between Edgar Carson, counsellor at law of the borough of Manhattan, of the city of New York, county of New Yorkj and State of New York, as referee in an action pending in the Supreme Court of the State of New York, held in and for the county of New York, entitled John Doe and Jeannette Doe, hid wife, plaintiffs, against Richard Hoe and Isabel Hoe, his wife, George Roe, individually and as sole administrator of the goods, etc., of James Roe, deceased, Edwin Roe, Thomas Roe, Marie Roe, 294 rOEMS OF PLEADINGS AKD PEECEBENTS. Ethel Koe, -widow of Charles Eoe, and as sole administratrix of the goods etc., of said Charles Roe, deceased, and as general guardian of said Edwin Eoe,. Thomas Eoe, and Marie Eoe, infant defend- ants, Mary Eoe Jones, Eichard Eoe Cole, William Cole, Henry Stiles, individually and as sole administrator of the goods, etc., of Fbrances Eoe Stiles, deceased, Henry Stiles, Jr., and Victoria Eoe, widow of Henry Eoe, deceased, defendants; party of the first part, and Clarence Cooper, of the city of Albany, in the county of Albany, and State of New York, party of the second part. WiTH-ESSETH, that, whorcas at a Special Term of the Su- preme Court of the State of New York, held at the New York County Court House, in the borough of Manhattan, of the city of New York, on the twenty-fifth day of April, one thousand nine hundred and four, an interlocutory judgment was made in the above-entitled action and entered and filed on the same day in the office of the clerk of said county of New York, whereby it was among other things ordered, adjudged, and decreed by the said court, that the real property hereinafter particularly de- scribed, together with the appurtenances and all the estate and rights of all of the parties to this action and of all parties in interest therein, be sold at public auction at the New York Eeal Estate Salesroom, No. 161 Broadway, in the borough of Manhat- tan, county and State of New York, where such real property was situated, by Edgar Carson, said party of the first part hereto, who was thereby appointed referee to make said sale; that the said referee give public notice of such sale, according to law, and the rules and practice of this court, and that any party to the action might be a purchaser at said sale, and that, when the said referee should have made such sale, that he report the same at a Special Term of the said court; and that each party to the said action, on demand of the purchaser of said real property, deliver to such purchaser all title-deeds or writings, under the control of such party relating wholly to the premises bought by the purchaser, or any part thereof, at such sale, and that the purchaser of said real property upon said sale, be let into posses- sion thereof, and that each party and every person, upon whom the said judgment was binding, who might be in possession of said real property, or any part thereof, deliver possession of the same to the purchaser on production of the referee's deed, and whereas, the said party of the first part by virtue and in pursuance of said interlocutory judgment did, on the nineteenth EEPEIIEE^S DEED TO PUBCHASEE. 295 day of May, one thousand nine hundred and four, sell at public auction at the said New York Eeal Estate Salesroom, No. 161 Broadway, in the borough of Manhattan, of the city of New York, county of New York, the real property in the said interlocutory judgment mentioned, in parcels, as hereinafter mentioned, notice of the time and place of such sale having been given in conform- ity with the provisions of said interlocutory judgment, at which sale the said real property hereinafter described, was struck off to the said party of the second part for the sum of ten thousand nine hundred and seventy-five dollars, that being the highest sum bidden for the same, and whereas, the said party of the first part hereto, referee aforesaid, thereupon, on the twentieth day of May, one thousand nine hundred and four, reported the said sale at a Special Term of the said Supreme Court, held at the New York County Court House, in the borough of Manhattan, of the city of New York, and duly filed his said report on that day in the office of the clerk of the county of New York, with the papers in the said action. And whereas, the said court, at a Special Term thereof, held at the New York County Court House, in the borough of Manhattan, of the city of New York aforesaid, on the thirty-first day of May, one thousand nine hun- dred and four, among other things did confirm the said sale, and did order, adjudge, and decree that the said referee's report of sale be, in all respects, approved, ratified, and confirmed, and that the said referee complete said sale and execute and deliver a deed to the purchaser, said party of the second part hereto, of the said real property hereinafter particularly described, upon his complying with the conditions and terms of the said sale, and whereas the said party of the second part has complied with the conditions and terms of the said sale, and paid the said purchase price; Now this Indenture Witnesseth: that I, Edgar Carson, as referee as aforesaid, under and by virtue of the interlocutory judgment aforesaid, and in execution of the power and trust in me reposed, and in consideration of the premises and of the said sum of ten thousand nine hundred and seventy-five dollars, law- ful money of the United States, to me in hand paid by the said party of the second part, as aforesaid, do hereby grant and re- lease unto the said party of the second part and to his heirs and assigns forever All that certain lot, tract, or parcel of land and premises situate, lying, and being in the borough of Manhattan, of the city of 296 FOEMS OF PLEADINGS AND PEECEDENTS. New York, county and State of New York, more particularly de- scribed as follows : Commencing at a point on the southerly side of Fennimore street, distant easterly two hundred and twenty- five feet from the easterly side of Cooper avenue and from thence running southerly parallel with the said Cooper avenue, one hundred feet to the center line of the block, thence running easterly along said center line of the block parallel with said Fennimore street, twenty-five feet, thence running northerly parallel with said Cooper avenue, one hundred feet to said southerly side of Fennimore street, thence running westerly along said southerly side of Fennimore street, twenty-five feet to the place of be- ginning. Together with the appurtenances and all of the estate and rights of the party of the first part and of the parties to the said action in and to the said real property and premises, to have and to hold the above granted premises ur^to the said party of the second part, and to his heirs and assigns forever. In witness whekeof the said party of the first part has here- unto set his hand and seal the day and year first above written. EDGAE OAESON, [seal.J Referee, as aforesaid. Sealed and delivered in the presence of [Add certificate of achnowledgmerii.'] (Endorsed.) The land affected by the within instrument lies in section . in block . on the land map of the city of New York. BOND OF GENERAL GTJARDIAN OF INFANT DEFENDANTS. Know all men by these peesents. That we, Ethel Eoe of No. 22 Cooper avenue in the borough of Manhattan, of the city of New York, State of New York, and John Belnor, of No. 1 Neptune avenue, in the borough of Manhattan aforesaid, and Milton Locke, of No. 1 Prospect street, of the borough of Kings, of the city of New York, State of New York, are held and firmly bound unto Edwin Eoe, Thomas Eoe, infants over fourteen years gtjaedian's bond to infant. 297 of age, and Marie Roe, an infant under fourteen years of age, all of said borough of Manhattan, of the city of New York, jointly and severally in the sum of four thousand and five hundred dol- lars lawful money of the United States of America, to be paid to the said infants or to their respective attorney, executors, admin- istrators, or assigjis. 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 and dated the twentieth day of June, nineteen hundred and four. Whereas, Ethel Koe, above named, was appointed the general guardian of the above named infants by an order and decree of the Surrogate's Court of the county of JSTew York aforesaid, made and filed on the thirtieth day of July, nineteen hundred and three ; and Wheeeas, by a final judgment of the Supreme Court of the State of New York, at a Special'Term thereof held at the County Court House, of the County of New York, in the borough of Man- hattan, of the city of New York, on the thirty-first day of May, nineteen hundred and four, present Hon. James Bronson, justice, in an action pending in said court for the partition and sale of certain real property situated in said county of New York, wherein John Doe and Jeannette Doe, his wife, were plaintiffs and Richard Roe and others, including said infants, were defendants, it v/r.i among other things ordered and decreed that the shares of said infants defendants in the proceeds of the sale of said real property which had then been sold in said action by Edgar Carson, Esq., referee, should be paid to said Ethel Roe, as the general guardian of said infant defendants by said referee, upon her executing to said infants a bond with two sureties approved by the court ; and Whereas, there is in the hands of said referee, belonging to said infant defendants, the sum of dollars, as their several shares of the proceeds of said sale, Now, THEREFORE, the Condition of this obligation is such that if the above bounden Ethel Roe, shall in all things faithfully dis- charge the trust reposed in her, as guardian of the said infants and obey all lawful directions of the Supreme Court of the State of New York, touching the trust, and shall, in all respects, render a just and true account of the said sum of money and the applica- tion thereof whenever she is required so to do, by a court of com- 298 POEMS OF PLEADINGS AND PEECBDENTS. petent jurisdiction, then this obligation to be void, else to remain in full force and virtue. ETHEL ROE, [seal.] JOHJSr BELlSrOE [seal.] MILTON LOCKE, [seal.] Sealed and delivered in the presence of DANIEL LANE. State op New Yoek,"! County of New York,/ John Belnor, of No. 1 Neptune avenue, in the borough of Man- hattan, of the city of New York, county aforesaid, a surety named in the foregoing bond, being duly sworn, deposes and says that he owns in his own right real property in the State of New York, among which is the lot of land and the building thereon erected, known as No. 3 Main street, in the borough of Manhattan, of the city of New York, county aforesaid, and that the same is of the value of not less than ten thousand dollars, and that it is not subject to any encumbrances, and that there is no unsatisfied judgment or decree against him, and that he is not under any recognizance, and that he is worth in good property, exclusive of such as is exempt by law from execution, not less than eighteen thousand dollars over and above all debts, liabilities, and lawful claims against him, and all liens, encumbrances, and lawful claims upon his property. JOHN BELNOE. Sworn to before me, this 20th day of June, 1904. DANIEL LANE, Notary Public, New York County No. — State of New York, , ■}' County of New York Milton Locke, of No. 1 Prospect street, in the borough of Kings, of the city of New York, county aforesaid, a surety named in the foregoing bond, being duly sworn, deposes and says that he owns in his own right real property in the State of New York, being the lot of laud and the buildings thereon erected known as No. 1 JUSTIFICATION OF SURETIES. 299 Prospect street, in the borough of Kings, of the city of l^ew York, county aforesaid, and that the same is of the value of not less than five thousand dollars, and that it is not suhject to any en- cumbrance, and that there is no unsatisfied judgment or decree against him, and that he is not under any recognizance, and that he is worth in good property, exclusive of such as is exempt by law from execution, not less than ten thousand dollars over and above all debts, liabilities, and lawful claims against him and all liens, encumbrances, and lawful claims upon his property. MILTON LOCKE. Sworn to before me this twentieth day of June, 1904. DANIEL LANE, Notary Public, etc.- State of New York.) r SS ' County of New York, ) On this twentieth day of June, 1904, before me personally came Ethel Eoe, John Belnor, and Milton Locke, to me known and known to me to be the persons named in and who executed the foregoing bond, and severally acknowledged to me that they executed the same as their voluntary act and deed. DANIEL LANE, Notary Public, New York County, No. — . 300 rOEMS OF PLEADINGS AND PRECEDEiNTS. ENDORSED. New Toek Supeeme Oouet. County of ISTew Yoek. John Doe et al.. Plaintiffs, vs. Kichard Eoe et al.. Defendants. Bond of general guardian of in- fant defendants in partition suit. I approve the within bond as to its form and manner of execution and as to the sufficiency of the sureties. Dated June 20, 1904. JAMES BKONSON", J. S. C. Filed June 20, 1904. Clerk. INDEX. Acknowledgment taken in the State page. of consent to act by a proposed guardian ad litem 52, 70 of consent to receive a gross sum in lieu of dower 206 of retainer by a defendant 72 taken out of the State for use in the State of consent to receive a gross sum in lieu of an inchoate right of dower 205 of retainer by a nonresident defendant , 81 Affidavit taken in the State of age of infant under fourteen years of age 67 that petition was read over to and signed by infant petitioner over fourteen years of age 52 of service upon infant defendant under fourteen years of age and her mother of petition affidavits and notice of motion for appointment of guardian ad litem 68 of competency by guardian ad litem 53, 71 of service of summons personally on adult defendant 18- of service of summons personally on infant defendant under fourteen years of age 66 on motion for order to serve summons on unknown defend- ants . .' 36, 41 of mailing summons, notice, copy order, and complaint 35 on motion for order to serve summons on nonresident defend- ants 20, 33 of publication of summons and notice 34 on motion for order to amend summons complaint and other papers 93 on motion for order giving leave to file supplemental complaint 128 on motion to put cause on preferred calendar for trinl by jury lOG for order of reference preliminary to interlocutory judgment. . 210 for appointment of receiver 196, 198 of receiver to his accounts ■ 265 of attorney for receiver on application for an allowance 269 of assets and debts to be submitted to appraiser under the tax- able transfer of property acts 151 of publication of notice of sale 258, 259 taken out of the State for use in the State of service of summons personally on nonresident defendant. . 31 on motion for order of publication on unknown defendants. ... 21 301 302 INDEX. PAGE. Amended complaint ^^^ Amended notice of the pendency of the action HO Answer of defendant answering singly 118 of defendants answering jointly 113 of infant defendant 111> H^ of administrator 123, 124 of defendant charged with receiving the rents IIT of defendants claiming title to the property 114 of defendant brought in by supplemental summons 146 Appearance notice of by an attorney of an adult defendant 72 notice of by a guardian ad litem for an infant defendant 77 notice of by a defendant on a co-defendant 144 Appraisement of the value of an interest in real property for the assess- ment of a tax under the taxable transfer. of property acts petition to the surrogate for the appointment of an appraiser 148 order of the surrogate appointing an appraiser 150 appraisement of the value of the real property by an expert to be submitted to the appraiser 153 affidavit of assets and of liabilities to be submitted to the appraiser 151 appraiser's notice of hearing 154 minutes of hearing before appraiser 155 appraiser's notice of filing his report 158 appraiser's report to the surrogate 155 order of surrogate assessing tax 159 receipt of State comptroller and treasurer for payment of tax 160 Bond of general guardian of infant defendants 296 of guardian ad Utem 55 of purchaser of property to general guardian of infant defend- ants 289 of receiver of rents 200 Certificate of secretary of State to an affidavit taken before a New York commissioner in a foreign country 4I of county clerk in another State to an affidavit taken in the other State for use in this State 22 32 of an acknowledgment in another State for use in this State 81, 205 of county clerk in another State to acknowledgment taken in the other State for use in this State 205 INDEX. 303 Certificate — Contirmed page. of surrogate in another State to a will proved and of proofs taken before him 88, 89 of governor of another State, to surrogate's certificate of that State, certifying to will and proofs there, for record in this State 89 of county clerk that no exceptions have been filed to referee's report 231, 261, 269, 286 Complaint 7 Consent of proposed guardian ad litem acknowledged 52, 70 of widow to receive a gross sum in satisfaction of dower. .204, 206 of wife that husband receive his share free of her inchoate right of dower 207 Curtesy grant of 202 Decree of surrogate admitting will proved in another State to record in this State 92 Deed of surviving husband of his curtesy in his deceased wife's real property 202 of referee to purchaser of real property 293 Findings of jury certified to special term by clerk of trial term 179 of referee preliminary to interlocutory judgment 216 Final judgment 272 Foreign will proof of, for record in this State petition to Surrogate's Court in this State 90 copy will and proofs certified by ofiicer before whom proved 84, 85, 86, 87, 88, 89 certificate of officer having custody of great seal of State to certificate of officer before whom will proved 89 order of surrogate admitting will to record in this State 92 Guardian ad litem petition for the appointment of by a minor within twenty days after the service of summons 50 after twenty days from the serving of summons 59 petition for the appointment of, by the plaintiff for a, minor under fourteen years of age 64 consent acknowledged of 52, 61, 70 affidavit of competency and responsibility of 53, 62 order appointing 54, 62, 69 bond pf 55 304 INDEX. Guardian ad Utem — Continued ^^*^ notice of appearance by '' answer of to complaint ^'■^ answer o^ to answer of co-defendant 125 History of the action Infant defendant petition for the appointment of a guardian ad Utem by infant within twenty days after service of summons 50 by infant after twenty days from service of summons 59 by plaintiff for infant under fourteen years of age 64 orders appointing guardians ad litem 54, 62, 69 answer to complaint m answer to answer of co-defendants 125 bond of general guardian to 296 Interlocutory judgment 232 Mortgage of purchaser to general guardian of infant 290 Note of issue for trial term 175 Notes relating to practise on appeal from jury trial 189 Notice of the pendency of the action 14 amended notice of the pendency of the action 110 supplemental notice of the pendency of the action 138 subjoined to summons served personally out of the State 29 subjoined to summons served by publication 34 subjoined to summons served on unknown defendants 47 of appearance for an adult defendant 72, 74, 79, 82, 83 of appearance by a guardian ad litem 77 of appearance served on co-defendant 144 of motion for appointment of guardian ad litem for infant under fourteen years of age 67 of motion for order requiring plaintiffs to reply to answer of defendants claiming title to the premises and that co- defendants answer thereto 119 of motion for leave to file supplemental complaint 126 of motion for order declaring estate not liable to the payment of a transfer tax 163 of motion to put cause on preferred calendar for trial by jury 165 of trial for trial term 168 of motion for new trial 186 of settlement of order of appellate division 192 of motion for reference preliminary to interlocutory judgment 208 of hearing before referee 223 to creditors not parties to present their claims 224 INDEX. 305 Notice — Continued page. of filing referee's report preliminary to interlocutory judgment 228 of motion for interlocutory judgment ,. . . 229 of sale 256 of filing report of sale and of motion for final judgment 259 of filing referee's report on receiver's accounting and of motion to confirm same and for an allowance 267 of entry of final judgment 279 of filing referee's report of distribution and of notice to con- firm it 285 of hearing by appraiser under the taxable transfer of prop- erty acts 154 by appraiser under taxable transfer of property acts of filing his report 158 Oath of referee 222 Order for service of summons out of the State on defendants known 25 on defendants unknown 43 for appointment of guardians ad Utem on infant's petition within twenty days after service of sum- mons 54 after twenty days from service of summons 62 on plaintiff's petition for infant under fourteen years of age. . 69 to show cause why summons complaint and other papers should not be amended 98 that summons, complaint, and other papers be amended 100 that plaintiffs reply and co-defendants answer the answer of co- defendant 120 giving leave to file supplemental complaint and supplemental notice of the peiidency of the action and to issue supplemental summons 136 sending cause to trial term for trial by jury 170 of court at trial term settling f e issues to be submitted to the jury 176 of trial term denying motion for a new trial 187 of appellate division of afiirmance 191, 193 to show cause why receiver of rents should not be appointed 195 appointing receiver of rents 199 of reference preliminary to interlocutory judgment 212 confirming referee's report settling receiver's accounts 270 confirming referee's report of distribution 287 of surrogate admitting will proved in another State to record in this State 92 designating an appraiser under the taxable transfers of prop- erty acts 150 assessing the amount of tax 159 adjudging an estate not liable to a transfer of property tax. . 164 20 306 INDEX. Petition page. for appointment of guardian ad litem by infant defendant within twenty days after service of summons 50 after twenty days from service of summons 59 by plaintiffs after twenty days from the service of summons on infant under fourteen years of age 64 to Surrogate Court for order admitting foreign will to record in this State 90 for order designating an appraiser under the acts relating to the taxable transfer of property 148 for an order adjudging an estate not subject to the payment of a transfer tax 161 Proposed findings to be submitted to a jury 167 Proofs of will proved in another State for record in this State 84, 86 of an affidavit taken in another State for use in this State 22, 31 of an acknowledgment taken in another State for use in this State. . 81 of an affidavit taken in a foreign country for use in this State. .40, 41 Publisher's affidavit of publication of summons and notice to absent defendants 34, 35 of summons and notice to unknown defendants 48, 49 of notice to creditors not parties to present claims 225 of notice of sale of real property 258, 259 Receiver order appointing 199 bond of 200 affidavit to his accounts and of his proceedings 2P5 report of his accounts to referee 263 notice of settlement of his accounts before referee 262 Referee oath of 222 notice to creditors not parties to present their claims 224 report preliminary to interlocutory judgment 216 of sale 250 on receiver's accounts 266 of distribution 280 deed to purchaser 293 Release by wife of inchoate right of dower -.207 249 Replication of plaintiffs 2^21 Retainer and acknowledgment thereof by adult resident defendant 71, 74, 75, 78, 83, 141, 142 by an adult nonresident defendant 8q INDEX. 307 Summons page proof of service of on adult resident defendant personally 18 on adult nonresident defendants personally 30 on adult nonresident defendants by publication 34, 35 on unknown defendants by publication 48, 49 on infant defendants resident over fourteen years of age 18 under fourteen years of age 18 Supplemental summons , 140 complaint 132 notice of the pendency of the action 138 Widow's consent to receive a gross sum in satisfaction of dower, , . ,204, 206 f