S7V (Jnrnf U Slam ^rljinnl ICibraty Cornell University Library KFN5068.B74 Bostwick's lawyer's manual :a desk book 3 1924 021 898 543 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924021898543 BOSTWICK'S LAWYER'S MANUAL A DESK BOOK For Lawyers, Law Clerks and Law Students Containing Handy Forms,, Hints on Appeal Procedure, Suggestions, Letters, Checks for Closings, Memoranda, Tables, Reminders, Etc., Etc. A Mechanical Aid to the Busy Practitioner by ^c- V'o CHARLES F. BOSTWICK of the New York Bar THE LAWYER'S CO-OPERATIVE PUBLISHING CO, NEW YORK, N. Y. m/o COFYRIGHT 1907 BY CHARLES F. BOSTWICK PREFACE. I have been led to write this book by the knowledge, impressed upon me many, many times in my experience as a lawyer, that if such a book had been available to me I could have saved an im- mense amount of time and insured myself against many costly mistakes. My book is not intended merely or mainly as a form-book, but as a mechanical aid in routine work, and only common forms, such as every lawyer's experience soon requires him to become very familiar with, are to be found here. Forms are not infrequently as misleading as they are helpful, and the value of many of those that I have printed here lies in their approved accuracy, and their thorough detail; the value of others lies in their suggestiveness in regard to details intended to aid in the dictation of similar papers. To the students of law, to clerks in a law office and especially to the busy practitioner, who does not want to spend any unneces- sary time on matters relating to practice and who does want to feel that any suggestions he may accept out of the experience of another, have been thoroughly considered and are well advised, I submit these results of many years of practical work, and much careful study, believing that the book will be really and generally useful. Acknowledgment is made for the aid given me by Richard K. McGonigal of the New York Bar. CHARLES F. BOSTWICK. October 1, 1907. Mutual Life Buildings. Note. — G. P. R. indicates General Practice Rules or General Rules of Practice. Many of the " checks " may be typewritten and taken to closings with advantage. Late authorities should be posted in the book without delay and thus the Manual can be kept up, to date. Reference to Special Term decisions, many of which are never reported specially should be so inserted. Interleaved copies of the book are best suited for this purpose. Suggestions from the users of this book, that will promote its usefulness along the lines indicated are especially requested. TABLE OF CONTENTS. PAKT I. SUGGESTIONS AND EEMINDEES. I. INFORMATION TO OBTAIN FROM CLIENTS : Page. 1. On fiist interview (useful general questions) 1 2. When about to bring an action for personal injuries 3 3. When about to file a notice of mechanic's lien 5 4. When about to draw a deed 7 5. When about to draw a mortgage 9 6. From vendor of real property before signing contract to sell . . 12 7. From purchaser of real property before signing contract to buy. 15 8. When about to draw a cirtificate of incorporation 18 II. HINTS: 9. For organization of. a corporation 21 10. For drawing a partnership agreement 23 III. SUGGESTIONS: 11. For preparation for trial 25 12. For conducting an examination in supplementary proceedings. . 26 13. For determination of a person's residence 32 14. For examination of witness as to mental capacity 34 15. For foreclosure of real estate mortgage ( no infants or absentees ) 36 PAET II. HINTS ON APPEAL PEOCEDUEE. 1. To Appellate Division: I. From judgment entered on verdict of a jury and order denying motion for a new trial 38 II. From judgment entered on findings and decision of judge or report of referee 67 III. From interlocutory judgment on demurrer 71 IV. From orders 79 V. From final order or decree of Surrogate's Court, New York County 84 2. To the Supreme Court, Appellate Term, from the City Court of the City of New York: VI. From judgment entered on verdict of a jury and order deny- ing motion for a new trial 106 VII. From judgment entered on findings and decision of judge. . . 115 VIII. From order 118 [V] vi Table Of Contents. PAET III. LETTEES TO CLIEIv^TS. Page. 1. Letter of instructions to a newly formed corporation, appending 120 1. Letter to debtors of a former partnership 124 2. Form of corporate acknowledgment 125 3. General form of resolution 125 4. Certificate of secretary as to resolution 126 2. To general guardian of infant under 14 127 3. Letter of instructions to executor 129 4. Guide for executor's attorney 133 5.- Letter of instruction to administrator 130 6. Guide for administrator's attorney 139 7. To a. general assignee for the benefiit of creditors, appending 141 (a) Letter to debtors of assignor , 146 (b) Letter to banks carrying assignor's accounts 146 8. Guide for assignee's attorney , 147 9. To temporary receiver 150 10. To vendor of real property •. 155 11. To a surviving partner 156 12. To a widow as to her rights in husband's property 159 13. To a widower as to his rights in wife's property 160 14. To owner of mortgage, by mortgagor, to foreclose 161 PAET IV. CHECKS ON CLOSINGS. 1. For a vendor of real estate 162 2. For a purchaser of real estate . ^ 166 3. For a mortgagor 170 4. For a mortgagee I74 PAET V. COMMON PEACTICE FOEMS. ATTACHMENT: Form number. 1. Warrant of I'jg 2. Undertaking on jyg Affidavit to procure: contents of, note 181 3. ground, non-residence of defendant 182 4. ground, defendant a foreign corporation 183 5. by assignee of chose in action on papers used in similar application 185 Table Of Contents. vii ATTACHMENT— (Contirmed) : Form number. Page. 6. ground, departure of defendant in a similar application . . 186 7. of comparison and correctness of copies 188 8. by assignee of chose in action 189 9. by an agent 190 10. by an agent (another form) 192 11. ground — debtor's false statement to secure credit 193 ARREST: 12. Order of arrest 198 13. Undertaking on 199 Note 201 Affidavits to procure: 14. ground, removal of goods vpith intent to defraud creditors . 202 15. in support of same 204 16. ground — fraudulent misrepresentations 205 NOTICLS BEFORE ACTION: 17. To municipal corporation, of claim for personal injuries 208 18. Of proposed action against village '. 210 19. Of injury under Employer's Liability Act 211 20. To Comptroller of New York City on contract claim 211 SUMMONS : 21. Form of 212 Note as to endorsements in matrimonial and statutory actions. 212 22. Notice of object of action (and of no personal claim) 214 NOTICE OF PENDENCY OF ACTION: Note 215 23. In foreclosure 215 24. Generally 216 NOTICE OF APPEARANCE: 25. General with demand ,. 218 26. Special 219 27. In foreclosure 220 COMPLAINTS : 28. For goods sold and delivered, agreed price 221 29. For goods sold and delivered, no agreed price 222 Note as to such complaints 223 30. For goods sold and delivered (combining counts) 223 31. For goods sold and delivered by foreign corporation 224 32. For services rendered 225 33. For money had and received 227 34. For instalment of rent on a lease 228 35. By administrator, for negligently causing death 229 36. For personal injuries, against employer 231 37. For negligence, against railroad' 233 Note . . ..: 235 38. Against municipality for personal injuries 235 39. Against hotel for loss of baggage 237 viii Table Of Contents. COMPLAINTS— (Continued) : Form number. Page. 40. Upon an accQUnt stated ^^^ 41. Upon a promisory note, payee against maKer 240 42. Upon a promissory note setting forth copy of note 241 43. Upon a promissory note, payee vs. maker and indorser 242 'Note on protest 243 44. In foreclosure ( long form ) 243 45. In foreclosure ( short form ) 249 46. In action to recover a chattel 251 47. In action to recover a chattel, unlawful detention 253 48. In action to recover a chattel, wrongful taking 254 49. In action to recover a chattel 255 50. Afl&davit and requisition in replevin action 257 51. Undertaking in replevin action *■ 259 VERIFICATION: Note • 261 52. By party 262 Individual executor, administrator, trustee, receiver, assignee for benefit of creditors, etc 262 53. By one of several parties 262 54. By officer of domestic corporation 263 55. By attorney for a foreign corporation 263 56. By attorneyXtwwing sources of information (foreign corpora- tion) 264 57. By foreign corporation — answer 265 58. By agent, party without the county 265 Note ' 266 59. By attorney, party without county — attdrney non-resident... 266 60. By agent, party incapable 267 61. By attorney, on written instrument in his possession 268 62. By attorney, all material facts within his personal knowledge. 268 Note 269 63. Defective, notice as to 269 SECURITY FOR COSTS: Note 270 64. Order requiring security for costs, non-resident 270 65. Affidavit to obtain same 271 AFFIDAVITS OF MERITS: 66. By party 273 67. By counsel 274 EXTENSION OF TIME TO PLEAD: 68. Stipulation extending time 275 "Note 275 69. Affidavit to secure from court 276 70. Affidavit to secure from court 277 71. Order extending time 278 Note 279 Table Of Contents. ix MOTIONS RELATING TO PLEADINGS: Form number. Page. 'Note 279 72. Order to show cause why matter should not be stricken out as irrelevant 279 73. Affidavit on motion to strike out irrelevant matter 281 74. Order striking out allegations as irrelevant '. 283 75. Notice of motion to strike out redundant matter 285 76. Affidavit on motion to strike out redundant matter 286 77. Order striking out matter as redundant and irrelevant 287 78. Notice of motion to make answer more definite and certain and to strike out 288 79. Order directing answer to be. made more definite and certain and striking out 289 80. Notice of motion to make complaint more definite and certain. 291 liote 292 DEMLTIIIERS TO COMPLAINTS: Note 293 81. Ground, no jurisdiction of person of defendant 293 82. Ground, no jurisdiction of subject matter 294 83. Ground, plaintiff has no legal capacity to sue 294 84. Ground, another action pending 295 85. Ground, misjoinder of parties, plaintiff 29(5 86. Ground, defect in parties, plaintiff or defendant 297 87. Ground, improper joinder of actions 298 88. Ground, improper joinder of actions 299 89. Ground, improper joinder of actions 300 90. Ground, facts stated not suflicient to constitute a cause of action 301 91. Upon several grounds 302 DEMURRERS TO ANSWERS: 'Note . . . 304 92. To several defenses ( no affirmative relief demanded ) 305 93. To defense and counterclaim (no affirmative relief demanded) . 305 94. To counterclaim. Grounds: 1. Lack of jurisdiction. 2. Another action pending. 3. Not of character specified in section 501, Code 306 95. To counterclaim. Ground: Lac!; of legal capacity to recover on same 307 DEMURRERS TO REPLY: 96. Form 308 ANSWERS : Note 309 97. General denial 309 98. General denial upon information and belief 310 99. Denial of knowledge or information sufficient to form a belief. . 311 100. Mixed denials and admissions 312 X Table Of Contents. ANSWERS — {Contmued) : number. ^^^^^ 101. Pleading payment ^^^ 102. Pleading accord and satisfaction "'■^ 103. Pleading usury ^^^ 104. Pleading Statute of Limitations ^^^ 105. Pleading Statute of Frauds ,, ^^^ 106. Pleading Statute of Frauds 31^ 107. Pleading general release °^" AFFIDAVITS OF SERVICE: • 108. Of summons 320 109. Of summons and complaint 321 110. Of summons and complaint (divorce) 322 111. On corporation 323 112. Of summons on infant under 14 324 113. Of papers other than summons 325 114. Of judges' order — exhibiting signature 326 115. Of court order — • leaving copj' 327 IIG. On attorney, when office closed 328 117. On attorney, during absence, no person present 329 118. On attorney, during absence, on person in charge 330 119. On attorney, by mail 331 ACCOUNT: 120. Demand for copy of 332 121. Copy of account 333 BILLS OF PARTICULARS: Note . . 334 122. Demand for 335 123. Demand for, negligence action 3'36 124. Demand for, negligence action 338 125. -Order to show cause on motion for, action for goods sold 339 126. Affidavit on motion for, action for goods sold 340 127. Affidavit on motion for, action for goods sold 342 128. Order directing service of, action for goods sold 344 129. Notice of motion for, actioh for services 345 ^130. NtStfce of motion for, action fOr personal injuries 347 V 131. Affidavit on motion, action for services 349 > 132. Affidavit on motion, action for personal injuries 352 133. Order directing service of 355 134. Bill of particulars, goods sold 35(j DEPOSITIONS: Note 358 135. Affidavit on motion for issuance of commission 358 136. Order directing issuance of commission 360 137. Notice of settlement of interrogatories 361 138. Interrogatories 362 139. Commission ; 363 Table Of Contents. xi EXAMINATION BEFORE TRIAL: Form number. Page. 'Mote 364 140. Affidavit to obtain examination of adverse party 367 141. Affidavit in support of same 370 142. Order for examination of adverse party 371 143. Order for examination of adverse party (defendant a corpora- tion) ^ 372 144. Affidavit of party for (defendant a corporation) 373 145. Order for, defendant a corporation 376 146. Affidavit on motion for, defendant a corporation 379 147. Order to show cause why order for examination should not be vacated 387 148. Affidavit to obtain order to show cause 388 149. Examination of witness (affidavit to obtain) 390 150. Examination of witness (order of reference) 392 151. Order for examination of witness 393 152. Examination of witness (notice of examination) 394 DISCOVERY AND INSPECTION: Note 395 153. Petition .' 395 154. Order 398 PHYSICAL EXAMINATION BEFORE TRIAL: 155. Order 400 156. Affidavit 402 NOTICE OF TRIAL: Motes 405, 422 157. Plaintiff's Trial Term 405 158. Defendant's Trial Term 406 159. Plaintiff's Special Term 407 160. Defendant's Special Term 408 REVIVAL OF ACTION: 161. Order entered on consent 409 162. Notice of motion 410 163. Affidavit on motion -. 411 164. Order 412 165. Order to show cause 413 166. Affidavit on motion 414 167. Order 415 SUBSTITUTION OF ATTORNEYS: 168. Stipulatipn, consenting to 416 169. Order 417 170. Order, on consent (outside N. Y. Co.) 418 171. Stipulation, consenting to 418 172. Order on consent (N. Y. Co.) 419 173. Order on consent (outside N. Y. Co.) 420 xii Table Op Contents. NOTE OF ISSUE: Form number. Page. 174. Of fact to be tried by jury 421 175. Of law 422 Note 422 176. Motion 424 CALENDAR PRACTICE: Note 425 177. Order restoring case on consent 425 178. Notice of motion to restore to call calendar 426 179. Affidavit of motion to restore to call calendar 427 180. Order restoring case to call calendar 428 181. Notice of motion to restore after jury disagrees 429 182. Affidavit on motion to restore after jury disagrees 430 183. Order restoring case after jury disagrees 431 184. Notice of motion to restore after withdravpal of juror 432 185. Affidavit on motion to restore after withdrawal of juror 433 186. Order restoring case after withdrawal of juror 434 187. Consent to restore ease, " reserved generally " 435 188. Notice of motion to put case on calendar after reversal 430 189. Affidavit on motion to put case on calendar after reversal 437 190. Order restoring case on calendar after reversal 43S 191. Consent to restore casg to calendar after reversal 439 192. Consent to reserve case generally 440 PREFERENCES: Note 440 193. Notice of claim for 442 194. Notice of claim for and notice of trial 443 195. Order granting 444 Over issues of prior terms: 196. Notice of claim for and notice of trial 445 197. Affidavit 446 198. Order 447 Under sub. 2, Rule V, First District : 199. Notice of motion for 448 200. Affidavit " 449 201. Order 451 Under Rule 36, G. P. R. : 202. Notice of claim for and notice of trial 452 203.' Affidavit 453 204. Order 454 Short causes: Note 455 205. Notice of motion for 455 206. Affidavit 456 207. Affidavit in opposition 458 208. Affidavit in opposition 459 209. Order 461 210. Affidavit to open default on motion 462 Table Of Contents. xiii DISMISSAL FOR FAILURE TO PROSECUTE: Form number. Page. 211. Notice of motion 463 212. Affidavit on motion 464 213. Order dismissing complaint 465 DEFAULT: 214. Order opening and setting aside judgment 466 215. Order to show cause to open 467 216. Affidavit on motion to open 468 217. Order to shovsr cause to open where complaint dismissed 470 218. Affidavit on motion to open 471 219. Order opening default 472 ADJOURNMENT OF TRIAL: Affidavit to obtain: 220. ground, absence of counsel 474 221. ground, illness of party 475 222. ground, illness of party 476 223. ground, engagement of counsel 477 SUBPOENA: 224. To attend trial 478 225. Duces tecum 479 226. To attend before referee 480 227. Affidavit of service of 481 228. Affidavit of service of, in case of several witnesses 482 NOTICE TO PRODUCE: 229. General form 483 Reminder for drawing 484 MOTIONS AND ORDERS (general form) : 230. Notice of motion 485 231. Order to show cause 486 232. Notice of settlement of order 487 233. Captions for court order 488 234. Caption for judge's order 489 235. Notice of resettlement 489 236. Notice of entry 490 SURETIES : 237. Notice of exception to 491 238. Notice of justification of 492 DECISIONS AND JUDGMENTS ON 'DEMURRER: Note : 493 239. Decision overruling 493 240. Interlocutory judgment overruling 494 241. Interlocutory judgment sustaining «.«..»c«<>.... 495 xiv Table Of Contents. DECISIONS AND JUDGMENTS ON DEMURBER— (Continued) : Form number. , I'age, 242. Decision overruling, to counterclaim ^"° 243. Interlocutory judgment overruling to counterclaim 498 244. Interlocutory judgment sustaining, to defence 49* 245. Interlocutory judgment sustaining, to counterclaim 600 Note 50O APPLICATIONS FOR ALLOWANCES: 246. Notice of motion for 502 247. Affidavit 503 248. Affidavit 505 DECISIONS : 'Note 307 249. After trial without a jury 507 250. Dismissing complaint on merits, Trial Term 508 251. Dismissing complaint. Special Term 511 JUDGMENTS (including confessions of judgment) : 252. Statement and confession of '. 512 253. Judgment entered on confession with bill of costs 519 254. Judgment on default with bill of costs .^^^,|. . . ■ . 515 255. Judgment for a sum of money 517 256. Judgment dismissing complaint, Trial Term 518 257. Judgment dismissing complaint. Special Term 519 258. Judgment dismissing complaint on merits 520 COSTS, DISBURSEMENTS AND FEES: Table of amounts of 521 259. Objections to bill of 528 260. Affidavit in support of bill of 529 261. Notice of motion for retaxation of 531 262. Affidavit on retaxation 532 263. Order retaxiug 534 264. Order allowing cost of minutes as disbursement 535 MOTION FOR NEW TRIAL: 265. Order denying 536 266. Order denying 537 EXECUTION: 267. Against property 539 SATISFACTION OF JUDGMENT: 268. Release of judgment, one of several defendants jointly liable.. 540 269. By attorney, one of firm 541 270. More than two years after entry 542 SUPPLEMENTARY PROCEEDINGS : 271. Affidavit to obtain examination of judgment debtor 544 272. Order for examination of judgment debtor 545 273. Order appointing receiver in 547 See suggestion for p. 26. Table Of Contents. xv EXECUTION AGAINST INCOME: Form number. . Page. Note 549 274. Notice of application 549 275. Affidavit to obtain 550 276. Affidavit in support 552 277. Order directing issue of execution 553 278. Execution 555 NOTICE OF EXCEPTIONS: 279. To decision and findings 556 280. Notice of exceptions 557 NOTICE OP APPEAL: 281. To the Appellate Division from judgment, Trial Term 559 282. To the Appellate Division from judgment, Special Term 560 283. To the Appellate Division from judgment, dismissing complaint 561 284. To the Appellate Division from order 562 285. To the Appellate Division from part of order 563 286. To the Appellate Division from decree of Surrogate 564 287. To the Appellate Division from order of Surrogate 565 288. To the Appellate Division from interlocutory judgment 566 289. To the Appellate Term from judgment of City Court (N. Y.) . 56V UNDERTAKING TO STAY EXECUTION ON APPEAL: 290. From judgment 568 291. Notice of exception to sureties 570 292. Notice of justification of sureties 571 293. Notice of approval of, upon justification 572 NOTICE OF ARGUMENT: 294. Court of Appeals 573 295. Appellate Division 574 FORECLOSURE OF MORTGAGE: Outline of action 36 44. Complaint, long form 243 45. Complaint, short form 24.? Note on reference to compute 575 296. Notice of motion for appointment of referee to compute 575 EEFEBENCE TO COMPUTE: 297. Affidavit on same 577 298. Order of reference to compute 570 2913. Oath of referee to compute 580 300. Report of referee to compute 581 APPUCATION FOR JUDGMENT: Note on application for final judgment 582 301. Notice of filing of report of referee to compute, and of applica- tion for judgment of foreclosure and sale 584 302. AflSdavit on 585 xvi Table Op Contents. FORECLOSURE OF MORTGAGE— {Continued) : APPLICATION FOE JUDGMENT — (Continued) : Form • p . number. J^o 303. Judgment of foreclosure and sale ]Vote on notice of sale 304. Terms of sale ^^^ 305. Referee's report of sale "^"^ SALE: 306. Notice of filing of referee's report of sale 597 SURPLUS MONEY PROCEEDINGS: Note 598 307. Notice of claim to surplus money 598 308. Affidavit on application for reference to determine 599 309. Order appointing referee to determine 601 310. Report of referee 602 311. Order confirming report 605 DIVORCE : 312. Interlocutory decree 606 313. Notice of motion for final decree 608 314. Affidavit on motion for final decree 609 315. Clerk's certificate for final decree 610 316. Final decree 610 317. Final decree 612 PROBATE OF WILL: Kole 614 318. Petition for 615 319. Oath of executor 617 320. Affidavit as to estimated value of estate 618 321. Waiver of citation 619 322. Citation to 620 323. Affidavit of service of citation 621 LETTERS OF ADMINISTRATION: 324. Petition for 623 325. Renunciation of 625 326. Citation to show cause why letters should not be granted 625 LETTERS OF GUARDIANSHIP: General : Note , 627 327. Petition (infant undei: 14) 627 328. Petition (infant over 14) 630 329. General guardian's account 632 Special : 330. Petition ( infant over 14) 635 331. Consent of proposed . guardian g3y 332. Affidavit of proposed guardian 638 333. Affidavit of parent 639 334. Order appointing 640 Table Of Contents. xvii EXECUTOR'S ACCOUNTING: Form number. Page, 335. Petition for voluntary account 041 336. Account 643 337. Bill of costs 649 ADOPTION OF INFANT (under 14) : Kote 651 338. Petition for 652 339. Agreement of foster parents (consent) 654 340. Proof of custody 656 341. Surrender of child 657 342. Order allowing 658 TRANSFER TAX : 343. Petition for appointment of appraiser 660 344. Order designating appraiser 661 345. Affidavit for appraisal 662 346. Order fixing tax (on appraiser's report) 665 347. Petition for appointment of appraiser nonresident 600 348. Order designating appraiser, nonresident 608 349. Notice of appeal to surrogate 669 350. Notice remitting, after reversal 671 351. Notice of motion to have penalty remitted 672 352. Affidavit on motion to have penalty remitted 673 353. Notice of settlement of proposed order 676 354. Order remitting penalty 677 BANKRUPTCY: 355. Proof of secured debt by corporation ." 678 356. Proof of debt on judgment by attorney 679 357. Proof of debt unsecured by individual 681 358. Proof of debt and power of attorney 682 MECHANIC'S LIEN: Note 687 Notice of: 359. For materials by partnership supplied to owner 688 360. For materials by domestic corporation to owner, a domestic corporation 690 361. For materials by individual to contractor an individual 692 362. For materials by domestic corporation against owner and part- nership contractors 694 363. For labor and materials by domestic corporation against owner, individual 696 364. For labor and material by domestic corporation against in- dividual owner and co-partnership contractors 698 365. For labor and materials by an individual against owner, individual 700 366. For materials by foreign corporation against contractor domes- tic corporation 702 xviii . Table Of Contents. MECHANIC'S LIEN— (Continued) : ^"•k" Page number. -rBgc. 367. For materials by agent of corporation supplying materials to sub-contractor against corporation '^^'^ 368. For labor individual against corporation 706 369. On account of public improvement 707 370. On account of public improvement 709 Coniinuation of: 371. Affidavit for 711 372. Order 712 373. Order 714 PART VI. COMMON FOEMS OF IJ^STEUMENTS. ACKNOWLEDGMENTS AND PROOF OF INSTRUMENTS: tiote ■. 716 374. By individual 716 375. By individual not known to officer 716 376. By two individuals 717 377. By one of several individuals 717 3Y8. By two individuals, one known and one not known to officer. . . 718 379. By attorney in fact 718 380. Proof, subscribing witness 719 381. By subscribing witness unknown to officer 719 382. By a corporation 720 383. By a corporation 721 384. By husband and wife known to officer 722 385. By firm by one partner 722 386. By wife in separate certificate 723 387. By trustee 723 388. By an executor - \ 724 389. By an administrator 724 390. For several states 724 AFFIDAVIT OF TITLE: 391. Form of 726 AGREEMENTS: Tiote on execution of instruments 729 392. Corporation " in testimonium clause " 730 399. Of retainer 73I 394. Of service and hiring 73I 395. Of executor with creditor, to refer disputed claim 732 396. Party wall agreement 733 397. To indemnify person paying lost bill of exchange 735 398. For the construction of a building 736 399. Composition agreement 739 Table Of Contents. xix AGREEMENTS— (Continued) : Form number. Page. 400. Marriage agreement (Dom. Rel. Law) 741 401. To share expense of a law-suit 742 402. For sale of real property 744 403. For exchange of real property 746 404. Of guaranty (continuing) 748 ASSIGNMENTS : Note 749 405. Short form — for endorsement 749 406. Short form — for endorsement, with power to sue 749 407. Of account 750 408. Of account, as security for an endorsement 751 409. Of judgment 752 410. Of lease 753 411. Of lease (undivided one-half) 754 412. Of mortgage, without recourse 755 413. Of mortgage, with covenant of amount due 757 414. Of patent 758 415. Patent before letters are granted 760 416. Patent grant of territorial interest 761 417. Patent ( license ) 762 BILL OF SALE: 418. Stock in trade and good will 763 Note as to sale in bulk 764 BONDS : 419. For sum of money secured by mortgage, 30- and 90-day clause. 765 420. For sum of money secured by mortgage, 30- and 30-day clause . 766 421. For sum of money secured by second mortgage 767 422. For faithful performance of a contract 769 423. Of indemnity (with surety) against claim 770 424. Of indemnity 772 CHATTEL MORTGAGE: 425. General form 773 426. Renewal, statement for 775 Note on renewal of 776 PARTNERSHIP: 427. Certificate of formation of, limited 777 428. Certificate to renew, limited 778 429. Certificate of continuation of name 783 430. Certificate of, doing business under assumed name 785 ESTOPPEL CERTIFICATE: 431. Form of 785 CERTIFICATE OF PROTEST: 432. Form of 786 XX Table Of Contents. DEEDS: Form _ number. Page. 433. Short form, warranty ' °°^ 434. Quit-claim 789 435. Referee's deed in foreclosure 790 EXTENSION OF MORTGAGE: 436. Form of •. 793 GENERAL ASSIGNMENT FOR BENEFIT OP CREDITORS: fforDEE RtnLB 41. This proceeding was commenced by the filing of a peti- tion asking for the revocation of letters testamentary Suekogate's Deceee. 101 Printing Case. issued to William Smith, as executor of the estate of James Smith, deceased, by Eliza Smith, petitioner, in the office of the Clerk of the Surrogates' Court, New York County, on March 6, 1905. The original parties to this proceeding were the petitioner, Eliza Smith, who ap- peared by George O. Johns, Esq., her attorney; and the respondent, William Smith, who appeared by Thomas Johnston, Esq., his attorney. The answer of William Smith was served on April 3, 1905. By an order bearing date April 26, 1905, the matter was referred to Theodore Thompson, as referee. Upon May 6, 1905, an order to show cause was issued out of this court returnable on May 10, 1905, for leave to amend the petition herein, and upon the return of said order an order was entered granting leave to amend the petition and referring the same to Theodore Thompson, as referee. The answer of William Smith to the amendatory petition herein was served on May 15, 1905. On December 1, 1905, Theodore Thomp- son, referee, filed his report, together with his opinion thereon, and on January 5, 1906, a decree was entered herein revoking the letters testamentary to William Smith. By an order entered herein on May 9, 1905, Messrs. Dunston & Wilcox were substituted for George O. Johns, as attorneys for the petitioner. There has been no change of parties or attorneys herein except as above stated. The hearings were held before Theodore Thompson, referee, beginning April 28, 1905, and continued down to the date of the filing of said referee's report. Notice of Appeal. . Pleadings, and all papers on file with judgment roU, i, e.: Citations. Petitions. Answers, etc. It is impossible to give here in detail the papers which should be included in the printed case in the order in which they should appear, but as a useful general rule 102 Sukkogate's Deceee. stipulation Settling Case. and guide the following is suggested. As to order, see 105 App. Div. 476. Index. Statement under Rule 41. Notice of Appeal. The various papers that go to make up the judgment roll in chronological order, including any exhibits attached thereto : Appellant's requests to find. Findings of fact and conclusions of law. Exceptions thereto. Report of referee. Opinion of referee. Bill of costs and affidavits opposing taxation (if material to any question raised on appeal). Decree appealed from. Case with statement contained therein, that it con- tains all the evidence. Exhibits. Opinion of Surrogate or affidavit of no opinion, or stipulation settling case. Order settling case and ordering it on file. Stipulation waiving certification on certificate of clerk. Order filing printed record in Appellate Division. (Form.) Stipulation Settling Case. IT IS HEREBY STIPULATED that the foregoing case on appeal contains all the evidence taken and proceed- ings had upon the trial of this proceeding and that the same be settled, signed and ordered to be filed and annexed to the decree, and the papers upon which said decree was entered in this proceeding. Dated {New YorJc, September 1, 1907.) (BUDD & BUDD,) Attorneys for petitioners. (JAMES IRVING,) Attorney for respondent. Sxjeeogate's Deceee. 103 Order Settling Case. (Form.) Order Settling Case. Upon the foregoing stipulation -it is hereby ordered, that the foregoing printed case which contains all the evidence given and proceedings had upon the trial of this proceed- ing be settled and filed herein as the original case on ap- peal, and annexed to the decree entered in this proceeding and to the paperis upon which said decree was entered. Dated, (New Yorh, Sept. 15, 1906.) (FRANK T. FITZGERALD,) Surrogate. Where there is no case made and settled, the above stipu- lation and order do not apply and are not necessary. In such case the only requirement to be fulfilled is to have a stipulation of waiver of certification or a cer- tificate of the clerk. As to the use of italics in case, see 12 N. Y. 8upp. 870. (Form.) Stipulation Waiving Certification. (Where Case Made.) Pursuant to section 2567 of the Code of Civil Procedure, . IT IS HEKEBY STIPULATED that the foregoing consists of true and correct copies of the notice of appeal, the decree, the papers upon which said decree was entered, and the case and exceptions as settled, and all the papers and testimony upon which the surrogate acted in making the decree appealed from,* and the whole thereof, now on file in the office of the Clerk of the Surrogate's Court of the County of (New Yorh,) and the certification thereof by the Clerk of said Court is hereby waived. Dated (New Yorh, Septemher 1, 1907.) (BOWNE & DOWNE,) Attorneys for Petitioner. (ROUND & BOUND,) Attorneys for (E. H. Ames,) Eespondent. * " Decision, proposed findings of fact and conclusions of law, exceptions to findings and decisions, referee's report and opinion " and any other papers printed and upon which the decree was not entered. 104: Sueeogate's Deceee. Stipulation Waiving Certification. (Form.) Stipulation Waiving Certification. (Where No Case Made.) Pursuant to section 2567 of the Code of Civil Procedure, it is hereby stipulated that the foregoing consists of true and correct copies of the notice of appeal, the order ap- pealed from and all the papers and proceedings upon which the Surrogate acted in making said order, and the whole thereof, now on file in the office of the Clerk of the Surrogate's Court of the County of {New York) and cer- tification thereof by the Clerk of said Court is hereby waived. Dated {New York, September 1, 1907.) {BOWNE & DOWNE,) Attorneys for Petitioner. {ROUND & BOUND,) Attorneys for {E. H. Ames,) respondent. Order Filing Record in Appellate Division. Pursuant to section 1353 of the Code of Civil Pro- cedure, and to the stipulation of the parties, it is hereby ORDERED that the foregoing printed record be filed in the office of the Clerk of the Appellate Division of the Supreme Court in the {First) Judicial Department. Dated {New York, September 1, 1906.) {FRANK T. FITZGERALD,) Surrogate. 51. Send papers to printer. Keep in mind the last day to serve and file the printed appeal book. 52. Receive proof of appeal book. 53. Submit same to opposing counsel for correction. 54. Receive proof with objections. 55. Agree upon changes. 56. When changes agreed upon, have case printed. Thirty copies are usually ordered (unless intention is to appeal to Court of Appeals, when 60 copies are ordered Surrogate's Decree. 105 Filing Printed Record. unless there are three or more attorneys to be served when 70 or more copies may be needed) . Blanks are usually left in three copies for signatures to stipulations and orders in case, and the names printed im the remaining copies. 57. Receive printed case on appeal from printer. 58. Within ten days after settlement) or before expiration of time as extended, have stipulations settling case, waiving cer- tification and consenting to filing of printed copy with clerk of the Surrogate's Court in three copies signed by attorney for respondent. 59. If respondent declines to sign such stipulations, comply at once with Rule 35 by filing the original (typewritten) case and amendments as they came from the surrogate, and an engrossed copy of the case as settled with the clerk of the Surrogate's Court, and have printed case certified by the clerk, or obtain order extending time to file case from the court. (Rules 35 and 41, G. P. R. ; § 1353, Code; 26 How. 375.) It is very unusual for attorneys to require certification of the case, and where such a refusal to assent to the usual stipulations is met after the case is printed, cer- tain changes in the printed case become necessary. The clerk's certificate must be added, and the orders settling the case and ordering it on file must be changed as follows: Instead of "on the annexed stipulation, etc.," must be inserted " upon the annexed certificate of the clerk of this court that the foregoing is a true copy of the case and exceptions, the judgment roll and all other papers on file herein, etc." 60. Have the orders settling case and ordering it on file in the three copies with blanks signed by the Surrogate. 61. File one signed copy of the printed case with the clerk of the Surrogate's Coifrt. 62. Within 20 days after settlement serve three copies of printed case on attorney for respondent, and make aifidavit of such service. (Rule 41, G. P. R., and see Rule 6, 1st Dept. Rules; in 2d Dept., see also Enum. Cal. Rule, 2d Dept. Rules. ) 63 and 64 of Appeals from Judgments I, page 59, may now be followed. HINTS ON APPEAL PROCEDUEE. VI. From Judgments. City Court of the City of New York to Supreme Court, Appellate Term. From judgment entered on verdict of a jury and order denying motion for a new trial. 1. As soon as the verdict has been rendered and carefully scru- tinized, the next duty of the defeated counsel is to move to set aside the verdict and for a new trial, and he must make up his mind whether he will make the motion then and there or wait until some future time to make it. He has, under § 999 of the Code, the rest of the term in which to move. If it is merely made as a formal motion for securing the right to have facts reviewed at the Appel- late Term, it is best to make it then and there, but if the attorney feels that there is any hope of having a new trial on the ground that the verdict is excessive or insuffi- cient in damages or otherwise contrary to the evidence, it is better to obtain leave to submit briefs and make motion at later day in same term. 2. When verdict rendered, move to set aside verdict and for new trial upon all the grounds stated in § 999 of the Code, and upon any special grounds that exist. Must be made at same time; and before the same judge. (§ 999, Code; see Rule 31, G. R. P.) The court usually denies this motion, in which event — 3. Move for stay of execution and additional time to make a case. The court usually grants this motion, and gives 20 to 30 days stay of execution and from 30 to 60 days in which to make a case. (§ 1351, Code.) 4. Order- copy of stenographer's minutes of trial. 5. Get exhibits. 6. Get extract from clerk's minutes. (§ 1237, Code.) If decision is reserved on motion for new trial, the ex- hibits and extract from minutes cannot be obtained until the trial judge decides the motion. [106] Judgments, N. Y. City Court. 107 Taking Appeal. 7. Enter in diary when stay expires. The stay begins to run from date of entry of judgment. 8. Receive copy of judgment with notice of entry. 9. Enter in diary last day of appeal. Ten days after service of a copy of the judgment, with notice of entry. (§ 3190, Code.) 10. Enter in diary last day to serve proposed case and also last day to serve notice of application for extension to serve case, which is two days before last day to serve case. Last day to serve proposed case is 30 days after service of copy of judgment with notice of entry unless further time granted by court. (Rule III, Appellate Term Eules, and Rule 32, G. P. R.) 11. Receive order denying motion for new trial with notice of entry. 12. Enter in diary when time to appeal therefrom expires. Ten days from service of a copy with notice of entry. (§ 3190, Code.) The usual practice is to serve a copy of the order denying motion for new trial with the copy of the judgment. This is not always done, however. 13. If copy of order denying motion for new trial is not served by adversary, draw and enter same if you wish to review the questions of fact in the case. (See Form No. 265, p. 536, supra.) 14. Serve copy with notice of entry on adversary. 15. Draw notice of appeal. (See Form Iso. 289, p. 567, §§ 1300- 1301, and 1355, Code. Notice of appeal cannot be amended after time to appeal has expired where the effect of the amendment will be to extend the time to appeal. 16. File notice of appeal with clerk of City Court. (§ 1300, Code.) The undertaking and notice of appeal are usually filed together. 108 Judgments, N. Y. City Coubt. staying Execution. 17. Draw undertaking on appeal. An undertaking is not necessary to perfect the appeal, but except where it is especially provided by law it is neces- sary to stay execution. (See Form No. 290, p. 568, §§ 810, 811, 812, 813, 819, Code; Eule 5, G. P. E.) Security may be waived. (§ 1305, Code.) Deposit in lieu of undertaking. (§ 1306, Code.) As to dispensing with, see § 1312, Code ; see also §§ 1326, 1327, 1334, 1335, 1351, and 1352, Code. In action to recover chattel, draw affidavit and order fixing amount of bond. 'Need not be approved. (§ 1335.) See note under 17, Appeals from Judgments, I, page 40, supra. 18. Before stay expires and before time to appeal expires, file undertaking with clerk of city court. (§§ 3192, 1307- 1334, Code; Rule 4, G. P. R.) The undertaking and notice of appeal are usually filed together. 19. Serve notice of appeal and copy of undertaking with notice of filing. (§§ 1300, 1302, 1326, 1334, 796 and 797, Code.) 20. Enter in diary last day for respondent to serve notice of ex- ception to sureties. Ten days after service of undertaking with notice of filing notice of exception must he served. (§ 1335, Code.) 21. Wait for notice of exception to sufficiency of sureties. 22. Receive notice of exception to sufficiency of sureties. 23. Enter in diary last day for sureties to justify. Within 10 days after service of notice of exception. (§ 1335, Code.) 24. Enter in diary last day to serve notice of justification. At least 5 days' notice of justification must be given. (§ 1335, Code.) 25. Draw and serve notice of justification of sureties. (See Form ISTo. 292, p. 571.) Five days' notice must he given, and date of justificcdion must he within 10 days after service of notice of ex- ception. JtTDGMENTS, N. Y. CiTY COUKT. 109 Justification. 26. Enter in diary to notify sureties to justify and date of justifi- cation. 27. Notify sureties when and where to justify. 28. Attend on justification. 29. Have sureties justify, and undertaking approved and endorsed by judge : " I hereby find the sureties on the within undertaking sufficient and hereby allow them and each of them." (Date) (Signature) 30. Serve notice of approval of sureties. (§ 1335, Code.) See Form IsTo. 293, p. 572. 31. If extension of time to make and serve case needed or if extension by stipulation has been had and further time is needed, ask adversary to stipulate for same three days before time to serve case expires. This is very important as the court rules provide that " no order extending the time to serve a case or the time within which the amendments thereto may be served, shall be made, unless the party applying for such order serve a notice of two days upon the adverse parties of his intention to apply therefor, stating the time and place of making such application." (See Kules 32 and 33, G. P. E.) 32. If extension by stipulation refused, apply to court at Special Term for same on two days' notice. (Rule 32, G. P. R. ; §§ 781, 783, Code. See 25 How. Pr. 438.) 33. Obtain order extending time to serve same with notice of entry. 34. Get opinion or memorandum of judge, if one filed, or make affidavit that none was given, or if given that copy cannot be procured. Receive stenographer's minutes of trial. (Rule 41, G. P. R.) 35. Prepare proposed case before time to do so expires. (See JSTo. 35 under Appeals from Judgments I, Supreme Court, page 42, supra.) Thirty days after service of judgment with notice of entry. (Rule III, Appellate Term Rules, and Rule 32, G. P. R.) 110 Judgments, N. Y. City Court. Proposed Case — Settlement. 36. Serve proposed case on respondent before time to do so expires. Thirty days after service of judgment with notice of entry. (Rule III, Appellate Term Rules and Rule 32, G. P. R.) 37. Enter in diary last day to receive amendments. (Rule III, Appellate Term Rules, and Rule 32, G. P. R.) 38. Receive proposed amendments. (See form under No. 38, o£ Appeals from Judgments, Supreme Court, I. page 47, supra. ) Bear in mind tliat if respondent applies to you on last day to serve proposed amendments for an extension of time therefor it is too late for him to obtain such extension from the court if you deny same, as two days' notice is required. {See Rules 32 and 33, G. P. B.) 39. Enter in diary last day to serve notice of settlement. Within 4 days after service of proposed amendments. (Rule 32, G. P. R.) 40. If proposed amendments are served, mark them " allowed " or " disallowed." 41. Draw notice of settlement of case and exceptions before the judge who tried the action and serve within four days from service of proposed amendments. The date of settlement stated therein must not be less than four nor more than ten days after service of notice. (Rule 32, G. P. R. ; § 997, Code. See Form on p. 49, supra.) 42. Enter in diary date of settlement. 43. Prepare memorandum for court on settlement and see that amendments contain references to pages of stenographer's minutes. (Rule 32, G. P. R.) 44. Settlement. (Rules 32 and 34, G. P. R. ; § 99'7, Code.) Submit to judge on settlement : 1. Proposed case. 2. Proposed amendments. 3. Stenographer's minutes of trial. Judgments, N. Y. City Court. Ill Printing Case. 4. Exhibits or models. 5. Memorandum as to settlement. Tlie settlement itself is usually informal. Affidavits may be presented. The judge's recollection, assisted by the stenographer's minutes, controls. But if there is a dispute, see 34 Hun, 547 ; 112 N. Y. 542 ; 40 App. Div. 86. After appeal completed it is too late to move for resettle- ment. On resettlement, see 112 N. Y. 592 ; 113 N. Y. 633 ; 34 Hun, 547 ; 7 N. Y. Supp. 321 ; 7 N. Y. Supp. 69. 45. See that judge signs order settling the case and ordering it on file. (§ 1353, Code.) This order is usually endorsed on the original proposed case submitted to the judge. 46. Enter in diary last day to file case with clerk of City Court. Ten days after settlement. (Eule 35, G. P. K. See note under Nos. 46 and 47, Appeals from Judgments I, Su- preme Court, page 50, supra.) 47. Enter in diary last day to file with clerk of Appellate Term the printed return and affidavit of service of three copies and note of issue. Ten days from date of settlement. (Eule III, Appellate Term Kules.) 48. Enter in diary last day to serve notice of argument. Five days before commencement of term for which cause is noticed. (Rule II, Appellate Term Eules.) 49. Prepare papers for printed case. (See § 796, Code; Eule III, Appellate Term Eules; Eule 43, G. P. E., and see No. 49, Appeals from Judgments I, Supreme Court, page 53, supra.) 50. Eeceive proof of appeal book. 51. Submit same to opposing counsel for correction. 52. Eeceive proof with objections. 112 Judgments, N. Y. City Couet. Certifying Return. 53. Agree upon changes. 54. When changes agreed upon have case printed. Thirty copies are usually ordered. Blanks are usually left in three copies for signatures to stipulations and orders in the case, and the names printed in the remaining copies. 55. Eeceive printed case on appeal from printer. 56. Within ten days after settlement have stipulations settling case, waiving certification,* and consenting to filing of printed copy with clerk of City Court in three copies signed by attorney for respondent. (Eules 35 and 41, G. P. R. 3194A, Code.) 57. If respondent declines to sign stipulation, comply at once with Rule 35 by filing the original (typewritten) case and amendments as settled by the judge with the clerk, of the City Court and have printed case certified by him or obtain extension of time to file case by order from the court, (Rule 35, G. P. R. ; § 3194-A, Code.) It is very unusual for attorneys to require certification of the case, and where such a refusal to assent to the usual stipulations is met after the case is printed, certain changes in the printed case become necessary. The clerk's certificate must be added, and the orders settling the case and ordering it on file must be changed as fol- lows : instead of " on the annexed stipulation, etc.," must be inserted " upon the annexed certificate of the clerk of this court that the foregoing is a true copy of the case and exceptions, the judgment roll and all other papers on file herein." 58. Have the orders settling case and ordering it on file signed by trial judge in the three copies containing blanks. * " The duty of the appellant where an appeal is taken to the Appellate Term from the City Court is prescribed in Rules 2 and 3 of the Appeal Term Rules of the first district. Section 3301 of the Code, providing that the stipu- lations of the attorneys for the parties to an action may take the place of the clerk's certificate to a copy of a paper thereof a certified copy is required, does not alter the effect of the provision of section 1315 requiring a return lo the appellate court to be certified by the, clerk of the court from which the appeal is taken (citing cases). In Woolsey v. Lasher, 108, 110, it was held that if the printed record does not contain the certificates required by law the question should be raised by a. motion to dismiss." (Seabury's City Court Practice, 894. But see § 3194(a), Code, added in 1904.) Judgments, N. Y. City Court. 113 Filing Return — Points — Arguments. 59. File one signed copy of the printed case with clerk of City Court and direct him to make return. 60. Within ten days after settlement and at least eight days before first day of term serve three copies of printed return on respondent. (Rules II and III, Appellate Term Eules.) 61. Make and file afiidavit of such service V7ith clerk of Appellate Term and file note of issue. 62. Have points printed. (See Eules 40 and 43, G. P. E. ; Eule II, Appellate Term Eules.) 63. Prepare notice of argument. 64. At least five days before first day of term serve same and get admission of service. (Eule II, Appellate Term Eules.) 65. Enter in diary last day to file with clerk of Appellate Term notice of argument with proof of due and timely service. Four days hefore first day of term. (Eule II, Appellate Term Rules.) Last day to serve three copies of points. Four days hefore first day of term. (Same Eule.) 66. At least four days before first day of term serve one copy of points on respondent; and file with clerk of Appellate Term notice of argument with aifidavit of due and timely service of same and due and timely service of three copies of points. (Eule V, Appellate Term Eules.) Pile with clerk of Appellate Term 10 copies of printed case and 10 copies of points. 67. On day of argument before argument receive a copy of re- spondent's points. (Eule V, Appellate Term Eules.) 68. Argument: There is nothing for counsel to do on the day of argument but to answer the case on the call of the calendar and submit the case when called or argue it when reached. itiTot more than one counsel shall be heard on each side unless court otherwise orders and not more than thirty minutes will be allowed for argument to each side except by special permission, which is seldom granted. The number of counsel engaged does not extend time. (Eule 47, G. P. E. ;'Eule V, Appellate Term Eules.) 8 114 Judgments, N. Y. City Coubt. Argument. No brief or memorandum will be received after argument, except by special permission, which is rarely granted. (Kule V, Appellate Term.) Counsel for the appellant argues first. Then counsel for respondent and the court usually permits a few minutes to appellant to close. HINTS ON APPEAL PROCEDURE. VII. From Judgments. City Court of the City of New York, Trial Term, to Supreme Court, Appellate Term. From judgment entered on decision of judge. 1. If any memorandum or opinion given by judge, secure copy of same. 2. Order copy of stenographer's minutes. 3. Get exhibits. 4. Prepare your proposed decision, findings of fact and conclu- sions of law for submission on settlement of decree. (§ 2022, Code. See note under 4, Appeals from Judg- ments II, p. 67, supra.) 6. Submit same to judge upon settlement of decree. (See note under 5 of ilSTo. II, page 68, supra.) 6. If usual stay of execution and additional time to make a case not granted in opinion or memorandum given by judge, apply for same on settlement of judgment or move, on notice, for same before judge who tried case. 7. See that judgment contains stay of execution and additional time to make and serve a case, or if obtained on motion, draw and enter order granting stay and additional time to make case. Serve same with notice of entry on adversary. 8. When decision signed and copy thereof served with notice of entry, together with a copy of the judgment entered thereon with notice of entry, enter in diary: 1. Last day to serve and file notice of exceptions. Ten days after service of judgment with notice of entry. (§ 994, Code, and § 1351, Code.) 2. Last day to appeal and to serve proposed case. Ten days after service of judgment with notice of entry unless longer time granted. (§3190, Code.) 3. When stay expires. [115] 116 Judgments, N. Y. City Court — Decision. Case On Appeal. 9. Prepare notice of exceptions to decision and findings. This notice must state specifically what portion of the ■ decision e. g. which findings of facts and conclusions of law are excepted to, and which refusals to find as requested are excepted to; (see Forms No. 279, 280, pp. 556—7,) and Appeals from Judgments II, Supreme Court, p. 67, supra. 10. Within 10 days after receipt of judgment with notice of entry, file exceptions with clerk of court and serve same on attorney for adversary. (§ 994, Code.) 11. ityTumbers 15 to 68 of Appeals from Judgments VI, p. 107, above, may now be followed, but in making up the case on appeal the following papers constitute the case (see § 997) : Statement under Kule 41 as to order, see 105 A-pp. Div. 476. Notice of Appeal. Pleadings and all papers on file with the judgment roll, viz. : Summons. Complaint. Answer. Demurrer or Eeply. Order of reference (if any). Report of referee (if any). Decision. Judgment. Notice of exceptions, And any other papers used. Case: Evidence. Exhibits. If questions of fact are to be raised, the case must also contain a state- ment that it contains all the evidence taken upon the trial of the action. Stipulation settling case. Order settling case. Judgments, N. Y. City Coxjet — Decision. 117 Case On Appeal. Stipulation waiving certification,* or The certificate of the clerk of the court. Opinion of the court or affidavit of no opinion. Order filing record in Appellate Term. This order is only necessary in appeals heard on case and exceptions. (§ 997, Code.) * See note, under 58, p. 59, supra. HINTS ON APPEAL PROCEDURE. vni. From Orders. City Court of New York, Special Term, to Supreme Court Appellate Term. 1. Receive copy of order with notice of entry. If all the papers used before the court are not recited in the order, move for a resettlement. 2. Consult §§ 1346-7-8, Code as to whether appeal lies. 3. Enter in diary last day to appeal and last day to file return. Ten days from service of copy of order with notice of entry (§ 3190, Code), and at least 8 days before first day of term for which cause can be noticed. (Rule III, Appellate Term Rules.) 4. Draw notice of appeal. (See Forms Nos. 284, 285, pp. 562-3, and §§ 1300-1301, Code.) 5. Serve notice of appeal. 6. Eile notice of appeal with clerk of City Court of City of !N^ew York. 7. Prepare papers on appeal. (See notes under 8 of Appeals from Orders, IV, p. 79, supra.) 8. Send papers on appeal to printer and receive proof. 9. Submit proof to attorney for respondent for corrections. 10. Receive proof with adversary's corrections. 11. Have papers on appeal printed. (See Rule 43, G. P. R.) 12. Submit three copies of printed papers to attorney for re- spondent, and have stipulation waiving certification signed. 13. If respondent's attorney refuses to so stipulate have papers certified by the clerk. 14. Not more than 10 days after service of notice of appeal, and at least eight days before first day of term for which appeal is noticed, serve three copies of printed return on attorney for respondent, and make affidavit of service. (Rule III, Appellate Term Rules.) 15. File one signed copy of the printed papers with clerk of City Court and direct him to make return. [118] Orders, N. Y. City Court. 119 Printed Papers — Points. 16. See that return is filed with the clerk of the Appellate Term by the clerk of the City Court, at least eight days before the first day of the term for which the case is noticed. lY. Enter in diary: Last day to file affidavit of service of three copies of printed papers on appeal. Eight days hefore first day of term for which appeal is noticed. (Rule II, Appellate Term Rules.) Last day to serve and file notice of argument. Six days hefore first day of term. Last day to serve and file appellant's points. Pour days hefore first day of term. (Rule V, Appel- late Term Rules.) 18. Prepare notice of argument. 19. At least eight days before first day of term file with clerk of the Appellate Term affidavit of service of three copies of printed papers on appeal. (Rule II, Appellate Term Rules. ) 20. At least six days before first day of term, serve notice of argument and obtain admission of service. 21. Within same time file with clerk of Appellate Term notice of argument with proof of service by affidavit. (Rule V, Appellate Term Rules.) 22. Prepare and print points. (See Rule 40 and 43, G. P. R.) ■ Must have calendar number on first page. (Rule V, Ap- pellate Term Rules.) 23. At least four days before first day of term serve a copy of appellant's points on respondent; and file with clerk of Appellate Term 10 copies of printed papers on appeal and 10 copies of points with proof of timely service of one copy. (Rule V, Appellate Term Rules.) 24. On day of argument, before argument, receive three copies of respondent's points. PART III. LETTERS TO CLIENTS. Tbe following, although in the form of letters, are mainly checks for attorneys rather than to be used in extenso in letters to clients. They may, however, suggest many terms and by omitting those not pertinent may be used as a basis for such letters. I. LETTER TO NEW CORPORATION. To GEasTTLBMEOsr : — Now that your firm has been turned into a cor- poration by certificate of incorporation filed in the office of the Secretary of the State of ITew York at Albany on the day of ,19 , and in the office of the clerk of the County of New York, on the day of , 19 , we desire to call to your attention a few of the matters you might otherwise overlook. This is a general letter and the instructions and suggestions must be viewed subject to the circumstances of your company. Money in bank should be transferred by check to the corpora- tion. It is wise to notify debtors to large amount that moneys that are due the firm have been assigned to the corporation, and that payment should be made to it. To relieve the firm partners of future liability, actual personal notice of the dissolution should be brought home to every person with whom the old firm has dealt, and as to those with whom the firm has not dealt, notice should be given of the dissolution by advertising in the newspapers. (Commercial expediency some- times malces this unwise.) It is customary to send out a letter in the following form. (See Form I, hereto annexed.) [120] Letters To Clients. 121 To New Corporation. You should see that the patents and copyrights belonging to the old firm are duly assigned by instruments such as required to be made, filed, or recorded in various public offices. Assignment of United States patents must be recorded within three months after execution, and in other countries filed or re- corded in prescribed time. In the event of your holding stocks or bonds standing in the name of the old firm they should be transferred on the books of the respective companies to the name of the new corporation. The lease of the premises occupied by the corporation, if as- signed to it, should have an endorsement of consent of lessors placed thereupon. Assignments of mortgages should have been taken on separate blanks, so that same may be properly recorded. Deeds of real estate should have been taken in separate instru- ments, properly acknowledged, so that they may be recorded in the proper places of record. Policies of fire, casualty, or employers' liability insurance in the name of the old firm should be assigned to the corporation and the consent of the insuring companies to such transfer should be endorsed on the policiee. Where the firm has important contracts, the consent of the other contracting parties should have been secured before incor- poration, and after incorporation their consent to the assignment of the contract should be obtained, so that in case of breach of contract, proper action could be maintained by the corporation. The old books of account should be closed and new books of the corporation should be opened at once. Be very careful in signing any documents on behalf of the corporation to see that the name of the corporation appeal's as the signer and as a party to all instruments, and then add " By as its president, and by as its secretary" (or treasurer, as the case may be). You will constantly need a corporate acknowledgment and a form is hereto annexed, and marked " Form 2." Whenever an important contract is made by your company, a copy of the authorization by resolution of the board of directors should be annexed and a form for that purpose is hereto annexed, marked " Form 3." You should realize that if there is any State in which you are to do much business, you should ascertain whether, under the laws 122 Letters To Clients. To New Corporation. of that State any requirement exists for the filing or recording of any papers in that State, and what the effect is, in case you fail to file such papers. In most of the States you are prohibited from suing therein if you are doing business in that State without filing a certificate, but if you are engaged in interstate commerce, perhaps to such extent this requirement, if it exists, would not apply. Tour company should keep copies of all tax or other reports or certificates rendered or made to any public officer, either with the minutes or spread at length thereupon. In preparing to hold any meeting the minutes of the previous meeting should be examined, so that the minutes of the contem- plated meeting will show compliance with any directions of the previous meetings. Should any resolution be passed which is intended to be of a permanent character it should not be passed in the form of a motion, but should be an amendment or addition to the by-laws, and if any amendments are made to the by-laws you should see that they are at once entered in the by-laws themselves; that is, in the copy used by the company, so that they may be relied upon at all times as fully revised. When persons holding stock in your company as executors, ad- ministrators, guardians, trustees, or in any other representative or fiduciary capacity, desire to vote at your meetings it is cus- tomary to ask for proof of their right so to do, and such proof should be filed with the secretary of the company. Your company should not buy or become the holder of any of ita own stock under any circumstances, without first consulting counsel. Neither a stockholder nor director can vote by telephone, tele- graph or mail. If your company holds stock in any other company and desires to vote upon it, see that one of your officers is given a proxy authorized by resolution of your board of directors. Remember that when one-half of your capital stock is paid in, a certificate must be made of such fact within thirty days there- after. Remember that you cannot divide, withdraw by dividend, or in any way pay to the stockholders, or any of them, any' part of the capital of your corporation, or reduce your capital stock without proceedings at law, nor can you loan moneys to any Letters To Clients. 123 To New Corporation. stockholder therein, and it is also provided that you shall not as a company, or any oifioer thereof, discount any note of any stock- holder to enable any stockholder to withdraw any of the money paid in by him on his stock. Consult the corporate calendar which is hereto annexed once each month. You cannot issue your stock or bonds except for money, labor done, or property actually received for the use and lawful pur- poses of your corporation. 'So stock can be issued for less than its par value. You can have no subscription to your stock made conditionally. It is also very important to know that if your corporation should refuse to pay any of its obligations when due, you cannot in any way make a transfer of your property or safely do any act thereafter without first consulting counsel. It is always unwise to make any tax reports or other reports to the authorities without consulting counsel. You should notify safe deposit companies and have name of the vault changed to that of the corporation. You should, in all cases, where you desire the company to be unquestionably bound, affix the seal of the corporation to its docu- ments, although a seal is not always necessary. Your company should take actual and tangible possession of all assets and property transferred to it immediately after your right to do so exists. In case you own real property cause a certified copy of your certificate of incorporation to be recorded in the office of the county clerk of the county in which the same is situated if ad- visable. The corporation should be very careful to make a full and complete inventory of all the property and assets with which it commences business, or which is paid into the company's treasury upon each issue of stock in the first instance. You should have at least one or two certified copies of certifi- cate of incorporation always on hand. ISTew letter books should be started for the corporation. ^ Prepare statement for newspapers as to matter you desire pub- lished in reference to the new corporation. Eemember that in most foreign States in which you do business, if you have property situated therein, the same is subject to attachment on the sole ground that you are a foreign corporation. 124 Letters To Clients. Proposal To New Corporation. See that your new cable name and address is given to the cable companies. Provide yourself vrith extra copies of tbe by-lavre, signed by the secretary, stating " The above is an exact and correct copy of the by-laws copied from the records of the corporation and revised up to date. Secretary." As many public officers will require copies to be filed as a condi- jtion precedent to their doing official acts. Eemember that upon the dissolution of the old concern all contracts with employees terminate and sometimes it is wise to have that fact clearly understood between the corporation and the employees retained and a new contract made between the cor- poration and such employees. Consult counsel as to regulations of factory, labor and other laws which may affect your industry. (Form 1.) (Date) To GEiNTLEMEa;^ : — We desire to inform you that the firm composed of and doing business in the city of New York at has been dissolved by mutual agreement, and that the property and assets formerly belonging to the old firm have been transferred to the Company, a corporation incor- porated under the laws of the State of New York, formed to carry on the business formerly carried on by the said firm, and that said corporation has assumed the indebtedness of the old firm.* We hope that the new company may enjoy the pleasant busi- ness relations that existed in the past with the old firm, and we believe that with increased facilities, the business entrusted to our care will receive prompt and careful attention. Yours truly, ( Signed by members of the old firm and the corporation. ) * Insert statement that one or more members of the old firm will continue to take an active interest in or direction over the new company and that the business will be conducted on the old lines. Letters To Clients. 125 Corporate Acknowledgment — Resolution. (Form 2.) New Yoek Keal Peopeety LaWj Sec. 258. The acknowledgment of a conveyance or other instrument by a corporation must be made by some officer thereof, authorized to execute the same by the board of directors of said corporation. The certificate of acknowledgment must be in substantially the following form, the blanks being properly filled: " State of New York, County of ss.: On the I. . day of , in the year before me personally came to me known, who, being by me duly sworn, did depose and say that he resided in that he is the of the Company, the corporation de- scribed in and which executed the above instrument; that he knew the seal of said corporation; that the seal affixed to said instru- ment was such corporate seal ; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order." (Signature and office of officer taking acknowledgment.) If such corporation have no seal, that fact must be stated in place of the statements required respecting the seal. (Form 3.) At a meeting of the board of directors of the Company, a corporation duly incorporated and organized under and by virtue of the laws of the State of New York, and having its principal office and place of business located in the Borough of Manhattan, City, County and State of New York, duly convened at the office of said company in New York city, pursuant to the by-laws of said company, held on the day of the following resolution was duly moved, seconded and adopted and ordered to be en- tered upon the minutes of the proceedings of said meeting by the secretary thereof. 126 Lettees To Clients. Certificate Of Secretary. (Form 4.) KESOLVED, (take in resolution.) The undersigned, the secretary of the company above named, has compared the foregoing resolution with the original thereof as recorded in the minute book of said company, and hereby cer- tifies the same to be a correct and true transcript therefrom and the whole of said original resolution. WITNESS the seal of this company, attested by me. Dated Attest : Secretary. (Corporate seal.) n. LETTER OF INSTRUCTION TO GENERAL GUARDIAN OF INFANT. Dear Sir: We desire to advise you that letters of guardianship, dated the day of , 19 . . , have been issued to you upon the estate of an infant under the age of 14 years. These letters were issued by the Hon one of the Surrogates of the County of , upon the petition filed by you on the day of , 19 . . , and as you now actually enter upon your duties as Guardian, we desire to inform you in a general way as to your duties and responsibilities and to maJje some suggestions that may be useful to you in your representative capacity: You should 1. Make and file with the Surrogate an accurate inventory of the infant's property. It is wise to have the property ap- praised. 2. Open a separate account in your representative capacity with some bank of good repute or a trust company pre^ ferably, and deposit therein all trust funds as soon as received, until invested, to credit of yourself as guardian, at agreed rate of interest, if possible. 3. If the funds of the ward are not invested, invest them as soon as it can reasonably be done, and so far as possible keep the same and the income thereof invested till your ward becomes 21 years of age, or until by reason of his death or other cause, you are sooner called upon to ac- count and pay over the fimds to others. t. Procure a book and devote it exclusively to matters pertain- ing to the guardianship, and in it set down at the time of its occurrence every item of incom© and expenditure on behalf of the ward intended to be a credit or a charge against yourself. 6. Take receipts for all expenditures, except for trifling sums, in duplicate, and preserve them until the final accounting. . [127] 128 Letters To Clients. Instructions to General Guardian. 6. Expend no more than the income of the ward for his sup- port and education, without an order of the court for that purpose. Section 2846 of the Code provides as follows; " Upon the petition of the general guardian of an infant's person or property, or of the infant, or of any relative or other person in his behalf the Surrogate, upon such notice to such persons, if any, as he thinks proper to notify, may makei an order, directing the application by the guardian of the infant's property to the support and education of the infant of such sums as to the Surro- gate seems proper out of the income of the infant's prop- erty, or, where the income is inadequate for that purpose, out of the principal." Y. Keep constantly a list of the articles of property in your custody as guardian. 8. Keep a record of the disposing of any piece of property and how disposed of, to whom and for what. 9. Keep an account of each item of disbursement, and of amount and nature of each investment of money. 10. Under no circumstances use funds of ward for your own use. You should not loan the m.oney of your ward upon personal security, for if you do so, and the maker of such securities subsequently becomes insolvent, you may be compelled to make good the loss to the estate, and in addition may be compelled to bear the expense of litigation made neces- sary to collect the funds thus improperly invested. The courts have generally held that trustees must invest in loans on real estate, in the bonds of the State, or the United States, and that neither good faith, care, nor diligence will protect them in the event of loss, where this rule is departed from. ITo loan should be made upon real estate for more than half its value, and in every mstanee there should be an official search showing a clear title to the land. If satisfactory securities cannot be obtained after reasonable efforts to do so, the money should be de- posited in some trust company or savings bank, where it will draw interest until securities can be obtained. (See Laws 1906, chap. 581.) See 4 iV. Y. Suppl. 472, and Laws 1907, chap. 669. ni. LETTEB TO EXECUTOR. Dear Sir: We desire to advise you that letters testamentary, dated the day of , 190 . . , have been issued to you and on the estate of late of , who died on the day of at These letters vs^ere issued by the Hon , one of the Surrogates of the County of JSTev? York, the will having been proved on the day of and petition for probate having been filed on the day of As you now actually enter upon the discharge of your duties as executor, we desire to inform you in a general way as to your duties and to make some suggestions to you in your representa- tive capacity. It is your duty, in addition to giving attention to those matters included in the enclosed memorandum which have not already been attended to: 1. To open separate bank account in your representative capacity. Pay bills with checks upon this account. Where surety company is on bond checks will have to be counter- signed by the company. 2. To reduce to possession as far as possible all the personal property, tangible and intangible. (See instructions and law on back of letters, if any.) 3. To notify banks, trust and safe deposit companies, and cor- porations in which decedent held stock, by leaving cer- tificate with them, if desired. These institutions usually require waivers from the State Comptroller before parting with securities or money of the decedent, and usually de- cline to permit decedent's safe deposit box to be opened, prior to the obtaining of such waiver, except in the presence of a representative of the State Comptroller. Counsel should be consulted for the purpose of obtaining such waivers. 9 [129] 130 Lbttees To Clients. Instructions To Executor. 4. To notify all life insurance companies, benefit orders, and mutual societies, by leaving certilicates with them; obtain forms for proofs of death and file with respective com- panies, and if payable to estate, collect insurance and bene- fit moneys. 5. To notify all debtors of your appointment by printed notice and demand payment of account and collect all out- standings. 6. To take all property and papers of decedent into your pos- session and make full inventory of all personal property in duplicates in presence of counsel or other witness. If the affairs of the deceased are at all complicated or there is the slightest anticipation of misunderstanding, consult counsel and have appraisal made by appraisers appointed by the court instead of relying on private inventory. If you find that any of the assets of the estate are in the hands of third parties who refuse to deliver them, at once notify counsel so that discovery proceedings can be had. 7. If there is a large sum of money in your hands at any time, to place same at interest in some trust company. 8. To keep accurate account of receipts and disbursements, and to this end you can obtain executors and adminis- trators' account book, or get copy of final account blank for form. 9. To obtain blank forms of proof of claim, have vouchers printed and obtain other necessary stationer^', etc., of form to be most used, according to nature of estate. 10. To always insist upon sworn proof of claim, and always take receipt for disbursements in duplicate, mth waiver of citation upon account. 11. To examine all leases and contracts to which decedent was a party, and ascertain decedent's rights thereunder. 12. Any business deceased was engaged in alone you* may pro- ceed to wind up, but if he had partners, it would be wise to consult counsel before doing so.* 13. To turn all personal property into cash unless parties in- terested, or who have appeared, consent in writing to re- tention in kind, or unless sale would cause a loss to parties entitled to property. Unless the will otherwise directs, sale should be at public auction and notice given to all parties interested. * See Letter to Surviving Partner page 156. Lettees To Clients. 131 Instructions To Executor. 14. If any property is found in which others are supposed to have or claim any interest do not part with the property, and if any packages are found among decedent's efEects, sealed or indorsed, do not open or disturb same without legal advice, since the order in which these documents lie may be of importance. 15. Obtain blank book and keep a memorandum as to every- thing that is done and record every important transaction or conversation therein. 16. It is usual to pay witnesses to the will a small amount for their attendance upon probate, as for example, five, ten, or fifteen dollars, according to amount of estate. 17. Pay funeral expenses and expenses of probate, but make no other payments without consulting counsel, and when pay- ing a legacy take waiver of citation of accounting pro- ceedings, and get receipt and release. If in your opinion the bill for funeral expenses is excessive viewed from the station in life of the decedent, do not pay without consult- ing counsel. 18. Notify fire insurance companies of death and change of ownership of property and obtain binders, and have in- surance policies held by testator transferred to estate. 19. Do not compromise a debt without leave of court. 20. Promptly reject any claim not known or reasonably believed to be valid. 21. Obtain advice of coimsel before making any payment or apportionment to widow in lieu of dower. 22. Your signature to an instrument as one of two executors will bind the estate, but as to all matters wherein you act as trustee under the will the signature of your co-trustee is necessary to make the instrument valid. 23. As an executor you cannot account and proceed to distribute the estate until one year from your qualification as executor has elapsed. See Laws 1907, chap. 669. As executor it may be generally stated that you only administer upon the personal property, and have nothing to do with the real estate so long as there is sufficient personalty to pay decedent's debts. Make no investments without consulting counsel. Your commissions, to be divided between you, will be 5 per cent, on the first $1,000, 2^ per cent, on the next $10,000, and 132 Letters To Clients. Instructions To Executor. 1 per cent, on the balance of all sums received and paid out by you, unless the estate is over $100,000 personalty, above debts, in which case separate commission will be allowed, Avhen there is more than one executor, to each if not more than three. These commissions are not subject to use by you until your accounts are settled by the surrogate. A short method of computing commissions where the estate is over $10,000 is to take 1 per cent, of the total and add $190. IV. GUIDE FOR EXECUTOR'S ATTORNEY. The following to be typewritten and filled in and checked off in each matter: Estate of Names of executors Address of executors Date of death of decedent Date of filing petition for probate Date of granting of letters Who qualified Check off each item as it is attended to and insert date and other remarks for future reference. I. Probate of Will (No Infants). 1. Have copies of will made. 2. Ascertain names and addresses of all persons interested with degree of kinship by making family tree. 3. Draw, verify, and file petition for probate with original will, and two copies thereof. (§ 2614, Code.) 4. File affidavit of estimated value of real and personal property. (§ 18, ch. 399, Laws 1892.) 5. Citation issues and service thereof made (unless waivers are obtained). (§ 2615, Code.) 6. Notify witnesses to will of date and place of probate. 7. Prepare affidavits of witnesses and oath of executors. 8. Obtain and file and record renunciations. (§ 2639, Code.) 9. Hearing before probate clerk. Executors take oath. (§ 2620, Code.) 10. Will admitted, date Letters are issued date Liber page 11. If decedent non-resident, file certified copy of will and letters within ten days. (§ 2503, Code.) 12. Obtain original letters and many certificates that letters have been granted. 13. File and record will in counties and foreign jurisdictions in which decedent owned real estate. [133] 134 Guide For Executor's Attorney. Claims — Transfer Tax — Accounting. Claims. 14. Petition for order to advertise for claims. 15. Order or direction is made to advertise for creditors. 16. Publish advertisement for creditors in papers designated in order. 17. Obtain affidavit of publication of notice to creditors. 18. After thirty days after probate obtain order compelling ex- ecutor to qualify, or be excluded, if such person haa not renounced or accepted the executorship. 19. Order of exclusion upon expiration of time to qualify if it has been required. Transfer Tax. 20. Draw and file petition for appointment of appraiser for trans- fer tax. 21. Order is made appointing appraiser. 22. Draw and file affidavit of debts and expenses and taxes of estate and copies of will with appraiser. 23. Have appraisement. 24. Appraiser make duplicate reports, one filed in surrogate's office and other with State Comptroller by the appraiser. 25. Decree entered fixing and assessing tax. 26. Surrogate gives notice of taxation. 27. Obtain certified copy of decree fixing and settling transfer tax. 28. Serve copies of certified copy of order on attorneys for parties interested. 29. Pay tax and obtain duplicate receipts from Com,ptroiler, file one with and have other countersigned by Comptroller. Distribution and Accounting. 30. Obtain waiver of citation on accounting upon payment of any legacy before decree. 31. Submit to attorneys for parties interested, the proposed de- cree, and the notices of appearance, waivers of service of citation and bill of costs, copy of will and affidavit of time spent on accounting. Obtain consents, acknowledgments and waivers, and file same with petition, aeccimt, proposed decree, transfer tax receipt countersigned, vouchers and affidavit of publication. 32. Citation on accounting issues if waivers are not obtained from all. Guide Fob Executoe's Attoeney. 135 Distribution. 33. Serve citation and copy of account on surety company, or personal sureties, and all others interested. 34. Obtain decree. 35. Distribute according to terms of decree and take acknowledged receipts in duplicate. 36. File receipts and acknowledgments with surrogate. Note. — Personal property not disposed of by will passes according to the Statute of Distributions to be found in New York Code of Civil Procedure, §§ 2732, 2733 and 2734. See also Rollins v. McClure, 100 N. Y. 328. Keal estate not disposed of by will descends according to the Statute of Descents, Laws of 1896, ch. 547, art. ix., p. 618. (Birdseye's R. S. (3d ed.), p. 3078.) See Hiles v. Fischer, 144 N. Y. 306, and University Law Review, vol. I, page 113 et seq. LETTER OF INSTRUCTION TO ADMINISTRATOR. Dear Sir: We desire to advise you that letters of administration, dated the day of have been issued to , on the estate of , late of , who died on the day of. , at These letters were issued by the Hon , one of the surrogates of the county of , upon the petition for same filed on the day of ; and as j ou now actually enter upon the discharge of your duties as the adminis- trator, we desire to inform you in a general way as to your duties, and to make some suggestions to you in your representative capacity. It is your duty, in addition to giving attention to those matters included in the inclosed list, which have not already been at- tended to: To open a separate bank account in your representative capacity and pay bills with checks upon this account. Where surety company is on bond checks will have to be countersigned by the company. To reduce to possession as far as possible all the personal property, tangible and intangible (see instructions and law on back of letters, if any). To notify banks, trust, and safe deposit companies, find any corporations in which deceased had stock, by leaving cer- tificate with them if desired. These institutions usually require a waiver from the State Comptroller before parting with securities or money of the decedent, and usually decline to permit the opening of safe deposits boxes prior to the obtaining of such waiver except in the presence of a representative of the State Comptroller. Counsel should be consulted for the purpose of obtaining such waivers. To notify all life insurance companies and benefit societies by leaving certificates with them; obtain forms for proofs of death and file with respective companies, and if payable to estate, collect insurance and benefit moneys. [136] Letters To Clients. 137 Instructions To Administiator. To notify all debtors of your appointment by printed notice and demand payment of account and collect all outstand- ings. To take all property and papers of decedent Into your pos- session and make full inventory of all personal property in duplicate. If the affairs of the decedent are at all com- plicated, or if there is the slightest anticipation of misun- derstanding, consult counsel and have appraisal of estate made by appraisers appointed by the court, instead of re- lying on a private inventory. If any property is found in which others are supposed to have any interest do not part with the property, and if any packages are found among decedent's effects, sealed or in- dorsed, do not open or disturb same without legal advice, since the order in which these documents lie may be of importance. If there is a large sum of money in your hands at any time, to place same at interest in some trust company. To keep accurate account of receipts and disbursements, and to this end you can obtain executors' and administrators' account books, or get copy of final account blank for form. To obtain blank forms of proof of claim, have vouchers printed and obtain other necessaiy stationery, etc., of foi-m to be most used, according to nature of estate. To always insist upon sworn proof of claim, and always take receipt for disbursements in duplicate. To examine all leases and contracts to which deceased was a party, and ascertain decedent's rights thereunder. If deceased was engaged in business alone you may proceed to wind up same, but if he had partners it would be wise to consult counsel before doing so.* The business must bo wound up within a reasonable time. To turn all personal property into cash unless parties intei- ested, and who have appeared, consent in writing to some other disposition, or sale would cause a loss to parties en- titled to property. Sales should be at public auction, and notice given to all parties interested. To obtain blank book and keep a memorandum as to every- thing that is done, and record every import-ant transaction or conversation therein. * See Letter to Surviving Partner page 156. 138 Letteks To Clients. Instructions To Administrator. To pay funeral expenses and expenses of obtaining letters, but maie no otber payments without consulting counsel. If, in your opinion, the bill for funeral expenses is excessive, viewed from the station in life occupied by decedent, do not pay without consulting counsel. You should not make partial distribution until the time is up for presentation of claims by creditors, unless to your own knowledge, the estate is amply solvent. No partial dis- tribution should be made where any of the parties inter- ested are infants, without consulting counsel. If you find that any of the assets of the decedent are in the hands of third parties, who refuse to deliver them at once notify counsel so that discovery proceedings can be insti- tuted. To notify fire insurance companies of your appointment. See Laws 1907, chap. 669. Note. — It may be stated in general terms that as ad- ministrator you only administer upon the personal prop- erty, and provided there is sufficient personalty to pay funeral expenses and debts, you have nothing to do with the real estate. Your commissions to be divided between you will be 5 per cent, on first $1,000, 2^ per cent, on next $10,000 and 1 per cent, on balance of all sums received and paid out by you, unless the estate is over $100,000, personalty above debts, in which case separate commission will be allowed each administrator up to three. A short method of computing commissions where the estate amounts to more than $10,000 is to take 1 per cent, of the total and add $190. VI. GUIDE FOR ADMINISTRATORS' ATTORNEY. The following to he typewritten and filled in and checked ofi in each matter: Estate of Late of Died ; at Administrators tetters granted Date of publication for creditors Date of last publication for creditors Who entitled to letters of administrators. (§§ ^660, 2661, 2662, 2663, Code.) Duties of Administrators. 1. Look for will. Appointment and Qualification,. 2. File petition for appointment and affidavit of estimated value of real and personal property. (§ 18, ch. 399, L. 1892.) 3. Unless waivers are obtained for all parties, citation must be issued. 4. Serve citation unless waivers are obtained. 5. Prepare bond, and file oath of administrator, unless same ' was filed with petition. 6. On return-day attend with bondsmen and administrator. Have sureties justify and file bond. 7. Obtain letters and certificates of appointment Transfer Tax. 8. Petition for appointment of appraiser on transfer tax. 9. When order is made appointing transfer tax ap]3raiser, draw afiidavit of debts and expenses of estate to reduce taxable amount. 10. Appraisement. 11. Draw order fixing and settling transfer tax. 12. Obtain certified copies of order and serve copies on attorneys for parties interested. 13. Pay tax as soon as possible. 14. Obtain duplicate receipts. 15. Have same countersigned by Comptroller, State of I^ew York, [139] 140 Guide Foe Administeatob's Attoeney. Claims — Accounting — Distribution. Claims. 16. Petition for order to advertise for creditors. 17. Advertise for claims in papers specified in order. 18. Obtain affidavit of publication of notice to creditors. Distribidion and Accounting. 19. Submit to attorneys for parties interested the proposed decree and the accounts with vouchers and receipts for transfer tax, affidavit of publication for creditors, waivers, bill of costs. Obtain consents and waivers, and file same with petition for final accounting. 20. Obtain citation to accounting. 26. Sen^e citation unless waivers of service of same are obtained. 27. Decree entered. 28. Distribution. 29. File receipts from distributives under decree, acknowledged. Note. — Personal property not disposed of by the will pass according to the Statute of Distributions to be found in Xew York Code Civil Procedure, §§ 2732, 2733 and 2734. See also Bobbins v. McClure, 100 N. Y. 328. Real estate not disposed of by will descends according to the Statute of Descents, Laws 1896, ch. 547, art. ix., p. 618. (Birds- eye's R S. (3d ed.), p. 3078.) See liiles v. Fischer, 144 iV. Y.. 306, and University Law Review, vol. I, p. 113 et seq. VII. LETTER TO ASSIGNEE FOR BENEFIT OF CREDITORS. (Address to assignee.) Dear Sir: As you are assignee of , under a general as- signment for the benefit of creditors, we beg to hand to you the following letter of general information as to your duties which we believe will greatly assist you : Take actual and tangible possession of the office, store, factory, and property (including cash on hand), of the assignor imme- diately after delivery of assignment to you. Cause the general assignment to be recorded in the county clerk's office, in the county where the assignor resided, or carried on business at the date of the assignment, and obtain certified copies. If co-partnership, cause to be recorded in county wiiere principal business of such co-partners is situated. When real property is part of the property assigned, and is situated in a county other than the one in which the original assignment is required to be recorded, obtain certified copies of assignment, and cause same to be filed and recorded in each county where sucli property is situated. Where property is situated outside of State, see local counsel as to where to file same. Make inventory of each paper or document and security found in the safe or desk of assignor, and of all books of account. Have several extra copies of assignment made and certified. J^otify immediately each bank in which assignor has funds, and as soon as possible serve them with certified copy of assign- ment and draw funds out of such banks. Also notify safe deposit companies and corporations in which assignor held stock. Retain local counsel in places where assignor owns and has property. Do not accept, any goods after assignment without consulting counsel. Open bank account with any cash found, and leave copy of general assignment with such bank and pay all bills solely by cheek on this account. [141] 142 Letters To Clients. Instructions To Assignee For Creditors. Do not mingle funds of assignor with your own funds. Examine leases, contracts, and any other papers that might require immediate attention and notice to be given. Open and keep separate and distinct and accurate books of account as assignee. Examine fire insurance policies and life insurance policies col- lectible by assignee, and notify companies of change of owner- ship and arrange as to insurance. Remember that you cannot carry on business or continue busi- ness in any way except with the consent of the creditors. If the majority of the creditors will assume the risks, it is sometimes es- sential that business be carried on for a short time in order to realize better prices. Distinction should be made between a re- tail and wholesale business. The court will not countenance a long continuance of the business. See Levy's Accounting, 1 Abh. N. 0. 577. Take steps to preserve perishable property. Put watchman in i.nmediate charge of places requiring same. Order combination to be changed on safe. Notify principal creditors by letter, of assignment. File order with post office to have mail sent to assignee. Prepare statement for newpapers as to matter you desire pub- lished. Make arrangements with lessor as to temporarily continuing in possession of premises. The assig-nee should immediately after taking possession of the property, ascertain whether the lease or leasehold has any value, and whether it can be sold for profit. If it has no value, the assignee should at once disaffirm it as far as he is concerned and make the arrangements as suggested. The assignee has a reasonable time to determine whether he shall ac- cept or reject the lease. If he occupies the premises for any length of time he may possibly render himself personally liable for the rent. Notify banks in which you have moneys deposited that same is to be drawn upon countersignature of surety company, and notify surety company that banks have been so notified. Order rubber stamps (a) for indorsements of checks and (h) one with name of assignee and " assignee of (insert name of assignor) for benefit of creditors." (c) Eecelved payment. 190. (Name of assignee) assignee for the benefi.t of creditors of " name of assignor." Letters To Clients. 143 Instructions To Assignee For Creditors. Order letter paper, also envelopes with memorandum on out- . side in comer as follows: " If not called for in ten days, post- master will please return to (insert name of assignee) Assignee, St., New York City." Kemember that your assignor may be put into bankruptcy at any time within four months from the making of assignment, in which case assignment becomes void. Assignee is not entitled to any commissions or any allowance for counsel fee, but will be allowed, in. an action for an accounting brought by the tlnistee in bankruptcy, compensation for such services as he may have ren- dered which have proven beneficial to the estate, and which the trustee in bankruptcy might have himself performed out of which he is supposed to pay for his counsel. (Examine Bankruptcy Law.) Make arrangements in regard to temporary use of telephone, motor, and such other services as the assignor may be enjoying imder contract. Make no payments whatever, excepting for preser%'ation of perishable property, nor sales, until after your bond has been approved and filed, and after bond is filed pay employees as here- inafter provided. But if there is perishable property which must be quickly sold and it is imperatively necessary to make other sales before the inventory has been made and the bond filed, it is well to apply to the court for a provisional bond. Eeject unprofitable property and contracts. Make up schedules and inventory as required by law, remem- bering that assignor has twenty days in which to file same, and if he fails to do so within twenty days, assignee should file a pro- visional bond (although this is not usual), but in all events has ten days additional to make up schedules and inventory, and when schedules and inventory are filed by assignee be careful to have afiidavit of disinterested experts as to value of various classes of property included among assets of assignor. In making up the inventory carefully note in separate columns the nominal and actual values of the personal property, and in case of real prop- erty the assignee should state its full and true value, taking into consideration the actual sales during the previous year. There should also be a recapitulation in the following manner : Debts and liabilities amount to $ Assets, nominal value $ Assets, actual value $ 144 Lbttbks To Clients. Instructions To Assignee For Creditors. Carefully state in a separate sheet any contingent liabilities that the debtor may owe. Prepare proof of claim for wages and salaries actually due and owing to employees at date of assignment within one year past, with receipt at bottom. Also draft and have printed notices to debtors and send same out. Keduce to possession as soop as and as far as possible all the personal property, tangible and intangible. While piaking up schedules and inventory make arrangements with surety company to obtain bond. If possible make three co]>ies of schedules and inventory at same time. Property held in trust by a debtor does not necessarily pass to the beneficiary. It may be transferred to a new trustee on ac- count of the trustee's insolvency. The terms of the trust may not allow it to be transferred to the beneficiary, as he may only be entitled to the income, rents or profits. Equity will follow the trust funds through any number of transmutations, and give it to the beneficiary so long as it can be identified in specie, and perhaps sometimes will go even farther. As to money in bank, it passes to assignee, and he has all the rights which the depositor had, and bank has no lien for amount of notes discounted by bank if they have not yet matured. Money in transit to assignor not due to him does not pass to assignee. Be careful to note in schedules and inventory dower Hghta of wife of assignor in real estate. TTie assignee has no power to perform contracts made by the assignor. If contracts are not completed, it may be advisable for the assignee to complete them; but before doing so he should call a meeting of creditors and get their consent 'and thereby allow the creditors to assume the risk. It is sometimes necessary that contracts be completed by the assignee in order to produce divi- dends from- the assigned estate. When in doubt as to what course to take, remember you can ask tilie cotirt for instructions. By virtue of the provisions of the Act of 1858, eh. 314, an assignee for the benefit of creditors is authorized to disaffirm, treat as void and resist all acts done, transfers and agreements made, in fraud of the rights of any creditoi* interested in the estate held by the assignee. Under this statute the assignee ac- quires all the rights of a judgment creditor to reach property Letters To Clients. 145 Instructions To Assignee For Creditors. fraudulently transferred by the assignor, and he can maintain an action to reach such property before the recovery of a judgment against the assignor. Since the assignee has the exclusive right of action, it follows "that he will be liable for a negligent omission to assail fraudulent transfers made by the assignor prior to the assignment. He may ask for instructions from the creditors and for indemnity if they desire him to proceed with such actions. Creditors have the right to examine books of the assignor as well as those of assignee. All property must be turned into money. The assignee cannot sell on credit nor at retail, but may sell at public or private sales as may appear to be most for the interest of creditors. If by auction the assignee must sell by ten days' notice and by printed catalogue in parcels and file a copy of the catalogue with tlie pricea obtained with his final account ; twenty days' notice of advertise- ment in case of real estate. Sales on credit should only be made with leave of the court. If there is a large sum of money in your hands at any time, place same at interest in some trust company. Neither the assignee nor his attorney can purchase at the sale. Do not compromise any claim due the estate without leave of court. If any claim is presented which you have reason to believe to be improper in any way, reject it under advice of counsel. A secured creditor is entitled to prove his debt and have divi- dend upon the full amount of his claim irrespective of the securi- ties held by him. Never pay without obtaining proof of claim and a voucher, unless the account amounts to less than $20. In the distribution of assets, wages, or salaries actually owing to the employees at the date of assignment for services rendered within one year prior thereto are preferred before any other debt whether or not the assignment so provides, but do not pay any person more than $300, because the bankrupt law gives preferences to this amount only, and if the assignor be thrown into bank- ruptcy any payment over $300 may be disallowed. The assignee is entitled as commissions to 5 per cent, on the whole sum of money which comes into his hands only after the court has approved his account and has not found him delinquent. 10 146 Letters To Clients. Forms Of Notices. Letter to Debtor of Assignors. (Name of Assignors.) (Name of Assignee), Assignee. (Business address of Assignee.) Date Dear Sir: I beg to notify you that on the (date of assignment), (name of assignors) of (insert place), doing business under the name of (insert name), made a general assignment for the benefit of cred- itors to me. I find upon .the books of the firm that you are indebted to him in the sum of $ , a statement of which is herein ■ in- closed. Will you kindly send me check for this amoimt in order that the estate may be closed as soon as possible. Yours truly, (Name of Assignee), Assignee of (name of Assignor). Office and P. O. address, (Address of Assignee.) Form of letter to Be Sent to Banks in Which Assignor Has Account. New York, ,190 . The National Bank, City. Gentlemen : I hereby notify you that Mr , doing busi- ness under the name of , having an account in your bank, made a general assignment, for the benefit. of his creditors, dated , 190. ., end filed and recorded this day to me, and that funds are to be paid out upon my order only. Yours truly, (Signed) As assignee of : for the benefit of the Creditors. 147 VIII. GUIDE FOB, GENERAL ASSIGNEE FOR THE BENEFIT OF CREDITORS. The following to be typewritten and filled in and checked off in each case. Name. Residence. Name of assignors. Name under which assignors did business. Principal place of business at date of assignment. Name of assignee. Residence. Business address of assignee. Business of assignors. Business of assignee. Date of assignment. Date of acknowledgment. Corporation, individual, or co-partnership. With or without preferences. Recorded in City and County of New York on tho day of , 190. . Also recorded in the County of , on the day of , 190. ., be- cause of real estate owned by assignors in such county. Preferences in assignment. Schedules and inventory filed by on the day of , 190.. Total: Direct. Liabilities of assignor, $ Contingent. Nominal assets, $ Actual assets, $ Bond ordered by Judge for $ .- on the day of , 190. .. Bond of Company of , presented and approved by Judge and filed in the office of the Clerk of the City and County of New York on the day of , 190. . Petition for order to advertise for creditors verified , 190.. [147] 148 Guide Fob Assignee For Cbeditoes. Eeeord Of Proceedings. Order, dated , 190 .. , made by Hon , Judge of the N. Y. Supreme Coui't Papers designated, and : For what period of time. First publication commenced. Publication ends. Last day to present claims. Obtain copies of advertisement. Obtain a£B.davit of names of creditors appearing upon books of assignor. Last day to mail printed notices to creditors (which date is thirty days before last day to present claim). Notices to present claims mailed to each of the creditors whose names appear on the books of assignors by date , 190. ., Affidavit of mailing made by Sworn to , 190. . Notices returned. Obtain proof of publication of advertisement to present claims. Sworn to 190 . . , by Received proof of claims duly verified, showing name, address, amount due, and when due and what for. Make up account and petition for citation. Account and petition filed , 190 . • Date — Account verified , 190. . Date — Petition verified , 190. . Summary of account. Dr. Inventory of stock. Inventory of accounts. Increased by ,., Cr. Decrease. Expenses. Dividend paid to Balance . , Order for citation made by Hon , on the day of , 190.. Guide Foe Assignee Foe Ceeditoes. 149 Record Of Proceedings. Papers designated. Citation issued , 190. . Date returnable , 190. . Serve citation upon : Assignor. Assignee. Sureties. Creditors. Mailed citation , 190. . Draw proof of mailing. Affidavit of service by dated , 190.. Obtain proof of publication of citation by dated , 190. . Who appeared upon return of citation. Were objections filed to account? If so, by what parties ? Order of reference by Judge. Date , 190.. Name of referee. Address of referee. Hearing set for , 190 . . Notice served on assignor, assignee, sureties, and Who appeared at reference (with name and address of counsel). Amount realized from sales, $ Amount realized from collections, $ Amount paid out of expenses, $ Amount paid wages (preferred), $ Dear Sir: IX. lETTER TO RECEIVEH IN BANXRUPTCY. (New York, Dec. 15, 1906.) We desire to advise you that you were appointed temporary receiver of the estate and property of (Samuel Drummond,) of (the Borough of Manhattan, City of Neiu York,) on the (9th) day of (December, 1906) by Hon. (George C. Holt), Judge of the Dis- trict Court of the United States for the Southern District of New York. As you are now to actually enter upon the discharge of your duties as such receiver, we desire to inform you in a general way as to your duties and make some suggestions to you in your representative capacity. You should first obtain several certified copies of the appointing order to be filed with banks, post office, and left with keeper in charge of premises. Examine order as to conditions and restrain- ing clauses, procure a bond and qualify as receiver. In addition to giving attention to these matters, you should: 1. Arrange to be represented by attorney. By Rule 34 receivers in bankruptcy in the southern district of New York are directed not to retain as their attorney or counsel the at- torney or counsel of the bankrupt, of the petitioning cred- itor, of the person applying for the appointment of a re- ceiver or of any creditor, unless a special order authoriz- ing such retainer is obtained. This order is usually granted. 2. Arrange with a surety company for receiver's bond. Have your attorney send same to United States District Court for approval. See that bond of petitioning creditors is filed, if same is necessary, and do not file receiver's bond until creditor's bond has been filed unless immediate action is necessary. 3. Have your attorney obtain forthwith an order for the examina- tion of the bankrupt, bookkeeper, and such other persons as might know about the affairs of the bankrupt, under and pursuant to section 21 of the Bankruptcy Act, and examine said parties forthwith as to all the property and property rights of the bankrupt. If there is any property [150] Letters To Clients. 151 Instructions' To Receiver. in the hands of the sheriff, or any official, belonging to the bankrupt, which may have been seized on execution, or a replevin, get injunction restraining the said official from disposing of same, or interfering with same, pend- ing the election and qualification of a trustee in bank- ruptcy. Then the trustee can obtain possession of such property by summary order; otherwise, a suit would be necessary, and the property lost. Obtain similar injunc- tions against any person, or parties, having property which the estate may be entitled to, or may have an interest therein. Find out all details relative to mortgages against the bankrupt's property, and have your attorney get injunc- tions from the United States Court restraining any fore- closure proceedings pending the election and qualification of a trustee. 4. Go to bankrupt's premises with yotir attorney or his repre- sentative, and with an assistant, who can remain in charge, if necessary, and take immediate and actual possession of all the property found therein. 5. Reduce to possession, as far as possible, all property, tangi- ble and intangible; to do this you should take actual and immediate possession of such property, and if it is under lock and key, secure the key. 6. Take possession of all money, valuables, books of account, check-books, bank-books, return vouchers, and all papers which may in any way tend to disclose the bankrupt's finan- cial condition or the condition of his business and at the earliest possible moment make a memorandum or inven- tory of all articles in the premises and particularly those of a special value, including the details of all books of ac- count found. It is often advisable to have bankrupt's books examined by an expert accountant. 7. Obtain all keys to premises, have safe opened and change combination if its; contents are of value. Change lock on premises, unless you are positive there are no duplicate keys out. 8. If the size of the premises and the value of the stock warrant, put a keeper in possession at once, and if specially val- uable, arrange for night watchman, or with a protective company for same purpose. See that certified copy of sTinointment order is on the premises at all times. 152 Letters To Clients. Instructions To Receiver. 9. It is the duty of the bankrupt to give you all information relative to his affairs. Have an interview with him for that purpose with your attorney, and demand from him all keys, books, leases, contracts, insurance policies, docu- ments and papers of any value, combination to safe, etc., and consult with him as to condition of business generally and any matters that need immediate attention. Give him a receipt and keep a duplicate. 10. Examine insurance policies, have bankrupt transfer his in- terest in same to receiver and have the bankrupt or the broker who placed the insurance transfer the interest of bankrupt to receiver. Some companies consider that a transfer to the receiver is affected by operation of law, and that no transfer is necessary. If he will not do so, take out new insurance at once and have insurance run to bank- rupt and receiver as their interests may appear. 11. Post notice in a conspicuous place, of the receiver's appoint- ment and his possession, his address, and that of his attorneys. 12. Make list of employees; positions; how long employed, and place of residence. 13. Arrange with owner of premises for amicable occupation, if possible, by receiver, so long as it is desired to occupy premises. The receiver is entitled to a reasonable time to dispose of the property, paying for the use and occupa- tion during the time so occupied, and the landlord may be restrained from interfering with such occupancy. 14. Have your attorney prepare several certified copies of ap- pointing order. 15. Notify banks, trust and safe deposit companies of your ap- pointment by serving upon them certified copies of the order appointing you temporary receiver. 16. Notify superintendent of general delivery at post office tb deliver bankrupt's mail to receiver, sending him certified copy of appointing order with written request. 17. Notify banks in which bankrupt had account, and serve them with a certified copy of appointing order. Have bank book balanced and draw check on bank for balance. 18. Notify telephone, gas, and electric light companies, etc., of receivership, and arrange with them if you wish service continued. Lettees To Clients. 153 Instructions To Receiver. 19. Keep a detailed record of whatever you do relating to the estate, which will show all moneys received and paid out, letters written, acts done, and a summary of any im- portant conversations. In general, confine your acts to getting possession of the property and assets of the bank- rupt estate, and take no part in controversies between the various creditors, save as the same may tend to uncover further property. If proofs of claim are filed with you, you should return them or forward them to the referee. 20. If bankrupt removed goods prior to bankruptcy, inquire of employees or neighbors for any facts which may subse- quently be of value, should you wish to locate same. 21. Give notice of the receivership by letter, and personally if the matter is of sufficient importance, to &11 debtors on bankrupt's books, etc., and demand payment, and make utmost effort to collect. If immediate suit is necessary, apply to court promptly for authority. 22. If receiver is to continue business, examine into salary list and expenses, including rent, and expected income. 23. Make general and complete inventory of stock and fixtures. .24. Open a receiver's account with one of the authorized trust companies and see that interest is allowed on account. 25. If stock is perishable receiver should sell at once at the best price he can get. If season is such that an early sale is best for the estate, apply to the court for appoint- ment of appraisers, and permission to sell; if otherwise, leave such matters to the trustee to be subsequently elected. Appraisers should know of cost of goods; how same will sell at public auction ; and at least one of them is usually nominated by the court. 26. You should have bankrupt's assets appraised following closely the courses here outlined. (a) Have order for appraisement and sale in one order. (b) Notify appraisers designated and arrange date and notify bankrupt to be present and aid in the ap- praisement. (c) Have, appraiser's oath and statement prepared and a typewritten copy of your inventory. (d) Have appraisers take oath, make appraisal, and statement signed by all. It need not be sworn to but must be filed. 154 Letters To Clients. Instructions To Receiver. A sale on the bankrupt's place of business will usu- ally give the best results. The value of the lease of the bankrupt's premises must be investigated. It is frequently the only asset of value. Be present in person at the sale. 27. In arranging for sale the following method will be found convenient. (a) Note first what the order requires to be sold. (&) Arrange with auctioneer for time and place of sale, removal of goods if sale not to be had at bank- rupt's place of business and time for cataloguing. There is a United States official auctioneer, who is the only one authorized under the rules of the Southern District of New York, to sell the property of bankrupts at auction. Each district makes its own rules relative thereto. (c) Arrange for advertising sale, securing enough notices to send to all creditors and people in same trade as bankrupt. The notice must be sent out at least five days before day of sale and must be published on day of sale. Mail the notice of sale to all creditors, to the ap- praisers, the bankrupt, the attorneys for the peti- tioning creditors. In the Southern District of New York, Rule 27 to 33 of the Bankruptcy Eules, S. D. N. Y., should be consulted and closely followed. (d) File appraisement before the sale. 28. If conditions warrant a temporary continuation of the busi- ness, apply to the court for that power, unless the order already so authorizes, and compromise and adjust no claims and give no releases or acquittances unless on ap- plication to the court. 29. On vacating premises, Avhich should be done as soon as pos- sible in order to keep down expenses, see that the keys and premises are properly surrendered to landlord or his agents. 30. Have your attorney attend to all legal matters, such as peti- tions, orders, dispossess, .reclamation proceedings, etc., and Letters To Clients. 155 Letter To Vendor Of Real Property. have certified copies made of such important orders, etc., as may be necessary. There is no charge by the clerk of court for such certification for receiver. 31. Attend the examination of the bankrupt and other witnesses before the commissioner or referee as you may thereby dis- cover assets and obtain valuable information. 32. Attend first meeting of creditors before referee as creditors may wish information that you, as receiver, possess. 33. File your account as receiver and petition for allowance with the clerk of the court promptly after the election of a trus- tee, and turn over all assets and property to trustee as soon as your accounts are passed upon and the order discharging receiver entered. 34. Have your bank book balanced after all payments as a final check on the estate. 35. See that your bond is cancelled and a letter noting that fact is sent to you by the surety company on your bond. 36. Bear in mind in the performance of your duties that a bank- rupt is a person against whom a petition is filed even though not adjudicated. X. LETTER TO VENDOR OF REAL PROPERTY. Dear Sir: Please call at this office on the day of , 1905, for the ijurpose of signing your contract of sale of property No. street, and kindly bring with you the following : Deed of premises to you. Policy of title insurance. Policies of fire insurance. Tax and water bills (receipted). Eeceipted fire insurance premium bills. Abstract of title. Survey. Receipts for interest on mortgage, and all other papers which you have concerning this property or this transaction. See pages 7, 12. XI. LETTER TO SURVIVING PARTNER. June 2, 1904. Dear Sir: In accordance with your request that we advise you concerning your rights and obligations in consequence of the death of your partner, Mr , we desire to state as follows : The partnership was dissolved and ceased to exist on the day of your partner's death, and you should not do any more business, nor make any new contracts for the old firm, except such as are absolutely necessary to wind up its business. It is your duty to close up the affairs of the firm, collect the assets as speedily and with as little loss as possible, complete the outstanding contracts, ascertain the debts and pay the sam-i out of the personalty of the firm. In regard to the real estate owned by the partnership, the title to one undivided half of it is in you, the title to the one undivided other half of it descends to the heirs-at-law of your late partner, if he has not disposed of the same by will, or to his devisees, if he has disposed of it by will, subject, however, to be taken by order of a court of equity to pay partnership debts, in case there is an insufficiency of personalty for that purpose; your late part- ner's widow is entitled to dower in his one undivided half of the real estate, subject however, as above, to the right of a court of equity to take the- real estate so far as it may be necessary, for the payment of partnership debts. Although the courts say you can use the realty so far as it may be necessary for the payment of debts, it would be unwise for you to make a contract to sell any of the firm real estate without having it done through a receiver or a judgment of a court of equity, since you might make a contract in your own najtne, and if you did not succeed in having the devisees or heirs join, you would then be subject to such expense and annoyance as might follow a rejection of the title. As to the personal property of the firm, you, as the surviving partner, become vested with the legal title and are entitled to the sole and exclusive possession of the same, and neither the executor, administrator or the personal representatives of your deceased partner have any right to interfere with your possession or legal ownership, provided, however, that you use the partnership assets, [156] Letters To Clients. 157 Advice To Siirviving Partner. which have thus come to you, for the payment of the partnership debts, and all of it, if necessary ; should all of it be not required, then the balance that may remain in your hands belongs equally to you and to the personal representative of the deceased, or to those to whom he may have bequeathed it by will, but it is not until after the debts have been ascertained and paid, and the accounts balanced, that the personal representative of the deceased have any rights in the personalty. in disposing of the personal property, it is your privilege to dispose of it in any way that you thinlc is for the best interests of the estate ; you can sell it at auction or at private sale, in fact, you could dispose of all the property by general assignment, for the benefit of creditors, if you found the firm insolvent, and so far as the State laws are concerned, you could even prefer one creditor over another, and the representatives of the deceased partner would have no right to interfere in the matter, so long as you were applying the assets of the partnership to partnership debts, even in your own way. In regard to the outstanding contracts, as a general rule (and unless there are some extraordinary circumstances which you have not mentioned to me), it is your duty not to sell these partially performed contracts, but to proceed to perform them and receive whatever profit can be made out of the same, and then to divide the profits equally between yourself and the representative of the deceased. You are not entitled to any compensation for so doing, and although this may seem to you inequitable, if you had predeceased your partner, he would have had to do the same. In regard to such contracts as hiring, or for services, as exist between the employees of the firm and yourself, these were ter- minated by the dissolution of the partnership, which .occurred upon the death of your partner, and it would be wise to make new arrangements at once Avith such of the employees.of the old concern as you desire to retain in your employ. Business expediency may dictate that you do not bring this matter to their attention at the present time. You should at once notify all persons with whom you have in- surance of the death of your deceased partner. Your lease is not terminated by the death of your partner, and you will be obliged to look out for this obligation. If it is more valuable than when the lease was made, you can dispose of it as an asset; on the other hand, if it is not as valuable as when made, 158 Letters To Clients. Advice To Surviving Partner. whicli I understand to be the fact, you should try and maJie ar- rangements with the landlord either for a surrender or cancellation. In regard to the name of the old partnership, the firm name remains with you, as survivor, subject, of course, to any qualifica- tions of this principle in the articles of co-partnership, and subject, also, to the restrictions imposed by the statute on the use of firm names representing persons not partners ; in other words, you have the right to continue the use of the name by complying with statute of the State, to wit, filing of proper papers drawn and exe- cuted under the advice of counsel. The books and evidences of debt remain with you, as surviving partner. * * * It should be borne in mind that in winding up a firm's affairs, and distributing the assets, the value of its good will is almost entirely destroyed ; moreover, unless the business is continued with- out interruption, the earning capacity of the firm as a going con- cern is destroyed; both of these things are often of considerable value. We would suggest, in order to preserve them, that you consider, the advisability of buying out the interest of your deceased partner; for that purpose, you should have the representatives of his estate assist you in determining the value of the assets, i. e., stock, out- standing contracts, etc., and also have the liabilities of the firm as- certained ; an appraisement should then be made of the value of the interest of the deceased partner, and upon this basis you can purchase his interest. Of course, the appraised valuation will determine very largely what price you should offer; at the same time, there is nothing to prevent the estate of your deceased partner from refusing your offer, should they deem it insufficient. If this plan is followed, you would keep the firm going, take new business, and avoid the very serious loss that always occurs when a partnership is wound up. In the event oi the failure of the representatives of your de- ceased partner and yourself agreeing upon terms, or if you are desirous that the business be continued with them in it, we would suggest for your consideration the formation of a stock company to continue it. These instructions are of the most general character, and if further information concerning your particular estate is desired, we should be pleased to advise you. Yours truly, xn. LETTER TO WIDOW AS TO HER RIGHTS IN HUSBAND'S PROPERTY. ISTew York, January 5, 1906. Dear Madam : Eeplying to your inquiry as to your rights in your husband's property, he having died leaving'no will, we beg to advise you in a general way as follows : Your only interest in your husband's real estate is a dower right; that is, you have the right during your life to use or to receive the income from one-third of his real estate. The property itself will be divided equally among his children subject to your right of dower. •- The personal property, after the payment of your husband'? debts and the expenses of the administration of the estate, will go to yourself and his children; you receiving one-third, and the re- maining two-thirds being equally divided among the children. You have a prior right to appointment as administratrix of your husband's estate, and should apply for such letters promptly. As administratrix it will be your duty to take possession of all your husband's personal property and proceed to convert same into money, and apply it to the payment of your husband's debts. You should notify any insurance companies or associations in which your husband was insured, of his death, using for that purpose the blank form which they will furnish you on application. We will give you more detailed information as to your rights and duties as administratrix, in the near future. Yours very truly, [159] xin. LETTER TO WIDOWER AS TO HIS RIGHTS IN PROPERTY OP DECEASED WIFE. New York, January 5/ 1906. Dear Sir: Eeplying to your inquiry as to your rights in your wife's prop- , erty, she having died leaving no will, in a general way we would advise you as follows : Your wife's real property will he equally divided among her children, subject, however, to your right of curtesy. Since thete are children bom of this marriage, the law gives you the right to the use of all your wife's real property during your life (your curtesy), but you have no further interest in the real property. The personal property, after the payment of the debts of your wife and the expenses of the administration of the estate, will go to yourself and her children, one-third to you and two-thirds to be equally divided among them.* You have a prior right to letters of administration upon your wife's estate and should apply for such letters promptly. You should also notify any companies or associations in which your wife was insured, of her death, using for that purpose the blanks which they will furnish upon application. As soon as you are appointed administrator it will be your duty to take possession of all your wife's personal property and proceed to convert the same into money and apply it to the payment of her debts. We will advise you more fully as to your rights and duties as administrator as soon as you are appointed. Yours very truly, * If no children husband takes all the personal property. [160] XIV. NOTICE TO BE GIVEN BY MOETGAGOR, (WHO HAS PARTED WITH TITIE), TO OWNER OF MORTGAGE, TO FORECLOSE. Date, {October 4, 1907.) To (Franklin Irwin,) Mortgagee, (or holder of mortgage on premises No. 371 West 70th Street, N. Y. City.) Please take notice that the principal of the bond and mortgage covering premises {give description or street number) made by the undersigned and dated {March 3, 1903) has become due, and that unless you proceed forthwith, to collect the same either from the prefc-ent owner of the said property, or out of the said premises covered by said mortgage, by foreclosure and sale of said premises, the undersigned, the maker of said bond and mortgage will not be liable for any deficiency which may hereafter arise by reason of your delay, in proceeding to realize upon such security at the pres- ent time, in. accordance with the provisions of said bond and mort- gage. (JAMES F. THOMSON",) (See Gottschalh v. Jungmann, 78 App. Div. 171.) 11 [161] PART IV. CHECKS ON CLOSING OF TITLE. MEMORAlirDUM FOR CLOSING WEen Acting for Vendor Have abstract of title and policy of title insurance. Is vendor a citizen, of full age and competent ? Have deed, and compare description, which should be same as last deed, unless change has taken place in street name or line. (Full consideration should be expressed in deed by person conveying in representative capacity.) Have special clauses provided for in contract of sale been inserted in the deed ? If mortgages on premises, is deed to read " subject to mort- gages " or are the mortgages to be " assumed by " pur- chaser in the deed ? Signature of vendor and vendor's vsrife, acknowledgment of vendor and vendor's wife and deed sealed. Has notary signed in Register office ? Is vendor's wife of full age and competent ? If vendor, a corporation, have certified copy of resolution and certificate of officers. If deed executed outside of the county have county clerk's certificate. Inquire whether vendor has married since signing contract of sale. Ascertain whether any of the parties have been divorced. Have the Foiixowing: Tax, water and assessment bills with interest computed to day after closing and memorandum for apportionment. Have water meter read as of day of closing. Transcripts of judgments. [162] Memobandtjm For Closing Title. 163 Vendor. Assignments of judgments (if any to be drawn). *Satisfaction of mortgages (if any to be drawn), and arrange to have bond and mortgage in readiness for closing. Eeceipts for last payment of interest on mortgages. Estoppel certificates from mortgagee, showing amount due, and date of last payment of interest or principal, properly executed for recording. Memorandum for apportionment of interest on mortgages. Subordination agreement if called for in contract. If there are mechanics' liens, have satisfaction pieces for closing. Consents and orders cancelling lis pendens (if any to be drawn). Insurance policies and premium bills, fire, plate glass and indemnity, and memorandum for apportionment. Receipt for insurance policies. Authorization to agent to receive money if vendor not to receive money at closing. Authorization to vendee to pay taxes, assessments, water bills, judgments and mechanic's and other liens (if any to be allowed on closing). Assignment of awards (if any to be given). List of rents paid and unpaid, and assignment of rents. Receipt for last payment of rent and memorandum for appor- tionment of same. Inquire whether any rent has been paid to vendor in advance. Letters to tenants to pay rent to vendee. Afiidavit of title as to ownership, citizenship, age, marriage identity of wife, judgments, etc. Powers of attorney, if agent acts for vendor on closing, and proof that principal is alive and that power has not been revoked. Bill of sale of household articles, if any to be drawn : Shov- els, pulleys, tools, brooms, mops, pails, gas fixtures and globes, electric light bulbs, ash cans, keys. Furnishings: Carpets, shades, awnings, hat racks, grills, hall seats, window seats, mirrors, heating apparatus. Contract of sale. Last deed of premises. You may need other old deeds and papers. Bill for client for services. * See note, vase 873. 164 Memorandum Foe Closing Title. Vendor. The Following Matters Mat N'bed Attention: Are there any chattel mortgages on material or fixtures or any such purchased by conditional sale ? Examine leases and assignments of leases, and ask if any deposits have been made by tenants or security for rent given. Inquire whether there are any restrictions in the title. Inquire who is in possession, nature and extent of his ten- ancy; any open and notorious easements; are there any overhanging eaves or shutters ? Any beams of adjoining property in walls, or vice versa. Any foundation extensions, easements, party wall agreements, sewer and drain rights. Unsafe building liens. Agreements for power from adjoining premises. Have tenement-house, fire, health, building and other depart- ment violations been removed ? Look into vault space permits. Look out for survey variations. How old is building, and compare date with survey ? For what purposes premises are used. (Civil Damage Act; TJ. S. Distillery Laws, etc.) If partially constructed building on premises see that union workmen and members of Allied Building Trades Associa- tion have been paid. Inquire as to age of children of previous owners to see if any born after making of will. Inquire as to posthumous children. Inquire if property acquired from a deceased person within three years ; if so, have all debts of deceased been paid ? Have collateral inheritance taxes been paid ? Inquire if there are any proposed widenings of streets. Has any change taken place in street lines or names ? Has any change in condemnation or assessments situation taken place since- the making of the contract ? Provide for adjustment of rights against abutting railroad, elevated, subway, or surface. Arrange for agreements with telephone^ telegraph companies, and leases for sign boards. Adjust charge and liability for electric light, gas, steam and power service, and deposits for same. Memorandum For Closing Title. 165 Vendor. Give attention to the following items: Wages of janitor, ele- vator operator, hall boys, and other employees. Don't forget charge for recording deeds, satisfaction pieces, releases, and any other papers (satisfaction pieces, $2.50 each), and collect for drawing purchase-money mortgage and recording same. Look out for mortgage recording tax. Remember it is dangerous to take check (even when certified) with indorsements of third parties thereon. Inquire who is to pay brokerage and amount. If purchase-money mortgage to be taken back, see that release ■ clause is favorable to mortgagee. See memorandiim as to mortgages, page 9. Taxes in New York city become a lien on first Monday of, October. Section 914 Greater New York Charter. MEMORANDUM FOR CLOSING n. When Acting for Vendee. Abstract showing clear title, or policy of title insurance. Ex- amine and approve deed, full covenant and warranty. Compare description, which should convey as much as owner has and not less than that called for by contract. Same description as in last deed usually preferred unless there has been change in street names and lines. Full consideration should be expressed in deed by person con- veying in representative capacity. Are the special clauses provided for in contract of sale in the deed ? If mortgages on premises, does deed read " subject to them," or does vendee " assume " same ? Is vendor a citizen of full age and competent ? Signature of vendor and vendor's wife. Is vendor's wife of full age and competent ? Acknowledgment by parties. Has notary signed in Register's oifice ? Is deed sealed ? If vendor a corporation, obtain certified copy of resolution and certificate of ofiicers. If deed executed outside of county, see that county clerk's certificate is attached. Has vendor married since signing of contract of sale ? Have any of the parties been divorced ? Be careful taking a deed to vendee " as trustee." OBTAiiq" OE Check the roLLOWiiTG Tax, water and assessment bills with interest computed to day after closing and memorandum for apportionment. Has water meter been read as of day of closing ? List of judgments unsatisfied and transcripts of same. Assignments of judgments (if any to be delivered). Satisfactions of judgments (if any to be delivered). List of mortgages unsatisfied. [166] Memoeanditm Fob Closing Title, 167 Vendee. Assignments of mortgages (if any to be delivered). * Satisfaction of mortgages, and obtain bond and mortgages in hand before closing. Receipts for last payment of interest on mortgages. Estoppel certificates from mortgagees, showing amount due and date of last payment of interest or principal, properly executed for recording. Subordination agreement if called for in contract. Memorandum for apportionment of interest on mortgages. Satisfaction pieces of mechanics' liens (if any to be de- livered) . Consents and orders cancelling lis pendens (if any to be delivered). Obtain insurance policies and premium bills, fire, plate glass and indemnity and memorandum for apportionment. Give receipt for insurance policies. Get details to have policies changed at once. Obtain authorization to receive money if vendee not present at closing. Eetain sufficient fimds to pay unpaid taxes, assessments, water rates, judgments, mechanics' liens, and other charges to be allowed. Obtain authorization to pay taxes, assessments, water rates, judgments and mechanics' and other liens. Obtain assignment of awards (if any to be delivered). List of rents paid and unpaid and assignment of rents unpaid, and if any deposits or security held by vendor obtain same. Receipt for last payment of rent and memorandum for appor- tionment of rents. Inquire whether any rent has been paid to vendor in advance. Obtain letters to tenants to pay rent to vendee. Affidavit of title as to ownership, citizenship, age, marriage, identity of wife, judgments, etc. If agent acts for vendor, get power of attorney properly exe- cuted for recording and proof that vendor is alive, and that power has not been revoked. Get bill of sale of household articles (if any to be delivered) : Shovels, pulleys, tools, brooms, mops, pails, gas fixtures and globes, electric light bulbs, ash cans, keys. Furnish- ings : Carpets, shades, awnings, hat racks, grills, hall seats, mirrors, heating apparatus. * See note, page 873. 168 Memoeandum Foe Closing Title. Vendee. Have contract of sale. Obtain last deed to premises and old deeds. See that there are no chattel mortgages on materials or fix- tures, or any materials in premises purchased on conditional sale. Examine leases and assignments of leases. Inspect premises and inquire who is in possession, nature and extent of tenancy, and whether person in possession claims any easements. Any open or notorious easements ; are there any overhanging eaves or shutters. Look out for beams of adjoining property in walls or vice versa. Foundation extension, easements and party-wall agreements, sewer and drain rights. Unsafe building liens. Power agreements. Have tenement-house, fire, health, building, and other depart- ment violations been removed ? Look into vault space permits. Look out for survey variations. How old is building and compare date with survey ; any build- ing erected since survey made ? For what purpose are premises used? (Civil Damage Act; TJ. S. Distillery Laws, etc.) If partially constructed building on premises, see that union workmen have been paid; also Allied Building Trades Association workmen have been paid. If property acquired through will, inquire as to age of chil- dren of previous ovraers to see if any born after making of will. Inquire as to posthumous children. Inquire if property acquired from a deceased person within three years ; if so, have all his debts been paid ? Has collateral inheritance tax been paid ? Inquire if there are any proposed widenings of streets. Has any change taken place in street lines or names ? Any change taken place in condemnation or assessment situation ? Provide for adjustment of rights against abutting railroads, surface, elevated or subway. Arrange for agreements with telephone, telegraph companies and leases of sign boards (if any). Memoeaktdum Foe Closing Title. 169 Vendee. Adjust charge and liability for electric light, gas, steam and power service, and arrange as to deposits with such companies. Give attention to the following items: Wages of janitor, ele- vator operators, hall boys, and other employees. Don't forget charge for recording deeds, satisfaction pieces, releases, and any other papers. (Satisfaction pieces, $2.50 each.) Look out for mortgage tax. Who is to pay brokerage and amount? If purchase-money mortgage to be given back, see memoran- dum as to mortgages, page 9. Have certified check to order of self, and if vendor not pres- ent obtain authorization of agent to receive money. Bill for searching and services. Taxes in New York city become a lien on first Monday of October. (Section 914 Greater :^ew York Charter.) Atter Closing: Elecord papers. Have insurance policies changed at once. Notify tenants of change of ownership and that rent is to be paid to vendee. Notify mortgagees. MEMORANDUM FOR QLOSING III. When Acting for Mortgagor. Have bond. Have mortgage executed by mortgagor and wife; acknowl- edged and sealed by mortgagor and wife. Has notary signed in Register's office? Are mortgagor and wife citizens and full age and competent ? If executed outside of the county have county clerk's certifi- cate attached. Compare description: Should be same as last deed unless change has taken place in street, name or line. If mortgagor, a corporation, have certified copy of resolution and certificate of officers. Inquire whether mortgagor has married recently. Ascertain whether any of the parties have been divorced. Have special clauses been inserted, e. g.: Is default clause to be on demand, sixty days or ninety days ; gold clause ; payment of future tax ; receiver clause ; allowing part pay- , ments; allowing payments before maturity; releasing clause; violation clause; provisions as to indorsements on bond and production of same when payments made ; niaking second mortgage due upon default in any payment of in- terest for ten days on any prior mortgage; making inter- est, taxes,' assessments or other charges paid by mortgagees upon mortgagor's default, part of the principal secured by the mortgage ; subordination clause. If mortgagor desires to sell off portion of mortgaged premises see that mortgage contains clause enabling mortgagor to sell lots from time to time by payment of a proportionate part of the lien of the mortgage on each block, lot or parcel generally one-third more than the lien of the mortgage, and provide who shall pay for the release and amount thereof. Is this a purchase-money mortgage ? Submit bond and mortgage to attorney for mortgagee and have same approved. [170] Memoeandum For Closing Title. 171 Mortgagor. Have the Following; Deed to mortgagor. Tax, water and assessment bills with interest computed to day after closing. Have water meter read as of day of closing. Transcripts of judgments against mortgagor. Assignments of judgments, if any to be drawn. Satisfaction pieces of judgments, if any to be drawn. List of mortgages. Assignments of mortgages, if any to be drawn. * Satisfaction of mortgages, if any to be drawn, and arrange to have the bonds and mortgages satisfied at the closing. Receipts for last payment of interest on prior mortgages. Estoppel certificates from mortgages showing amount due and date of last payment of interest or principal properly executed for recording. Subordination agreement, if any to be drawn. Gatisfaction pieces of mechanics' liens, if any. Consents and order cancelling lis pendens, if any to be drawn. Insurance policies and premium bills. Receipt for insurance policies. Details so that mortgagee can have bills changed at once. Authorization of agent of mortgagor to receive money, if mort- gagor not to be at closing. Authorization to mortgagee to pay taxes, assessments, water bills, judgments and mechanic and other liens, if they are to be reserved on closing. Assignment of awards, if any to be given. List of rents paid and unpaid. Inquire whether any rent has been paid to mortgagor in advance. Affidavit of title as to ownership, citizenship, age, marriage, identity of wife, judgments, etc. Power of attorney, if agent to act for mortgagor on closing, and proof that principal is alive and that power has not been revoked. Bill for client for services. The Following Mattees Mat Need Attention : Are there any chattel mortgages and material or fixtures, or any such purchased by conditional sale ? » See note, page 873. 172 Memoeandxjm For Closing Title. Mortgagor. Examine leases and assignments of leases, and clauses sub- ordinating them to future mortgages, if any. Inquire whether there are any restrictions in the title. Inquire who is in possession, nature and extent of his tenancy. Are there any open or notorious easements ? Are there any overhanging eaves or shutters ? Are there any beams of adjoining property in walls or vice versa? Any foundation extensions, easements, party wall agreements, sewer or drain rights, unsafe building liens, agreements for power from adjoining premises ? Have tenement-house, fire, health, building and other depart- ment violations been removed? Look into vault space permits. Look out for survey variations. How old is building ? Compare date with survey. For what purpose premises used? ' (Civil Damage Act; U. S. Distillery Laws, etc.) Have any new buildings been erected since survey ? If any partially constructed building, see that union work- men have been paid ; also members of the Allied Building Trades Associations. Has any change taken place in street lines or names ? Any proposed widenings of streets ? Has any change in condemnation or assessment situation taken place since the beginning of negotiations ? Is any security other than bond to be given? Inquire as to age of children of previous owners to see if any born after making of will of such owner. Look out for posthumous children. Inquire if property obtained from a deceased person within three years ; if so, have all debts of the deceased been paid ? Has collateral inheritance tax been paid ? Don't forget charge for recording mortgages, satisfaction pieces, releases and other papers. (Satisfaction pieces, $2.50 each.) Look out for mortgage recording tax. Remember it is dangerous to take check, even when certified, with indorsements of third parties thereon. "Who is to pay brokerage and amount ? Memorandum Foe Closing Title. 173 Mortgagor. Taxes in New Tork city become a lien on the first Monday of October. Section 914 Greater New York Charter. It is not wise to pay off any part of principal of a bond without having a receipt indorsed on the bond itself. Some- times by the terms of the bond such indorsements must be made and the borrower is entitled to require a production of the bond and to see the indorsements made. MoRTGAGOE EIeceives : Check or money. Iteceipt for money retained. Receipt for insurance policies and other papers delivered. MEMOBANDUM TOR CLOSING IV. When Acting for Mortgagee. Abstract showing clear title or policy of title insurance. Approve bond and mortgage. Signature and acknowledgment of mortgagor and wife. Has notary signed in Eegister's office ? Are mortgagor and wife citizens of full age and competent ? Eond and mortgage sealed. If executed outside of the county, have county clerk's certifi- cate attached. Compare description: Should be same as last deed unless change has taken place in street, name or line. If mortgagor, a corporation, have certified copy of resolution and certificate of officers. Has mortgagor married recently ? Have any of the parties been divorced ? Have special clauses been inserted, e. g.: Is default clause to be, on demand, sixty days or ninety days ; gold clause ; payment of future tax ; receiver clause ; allowing part pay- ments; allowing payments before maturity; releasing clause; violation clause; provisions as to indorsements on bond and production of same upon payments made; mak- ing second mortgage due upon default in any payment of interest for ten days on any prior mortgage; niaking interest, taxes, assessments or other charges paid by mort- gagee upon mortgagor's default, part of the principal se- cured by the mortgage; subordination clause; if release clause, see that it is favorable to mortgagee and provide who shall pay for drawing release and amount and terms, etc. Is this a purchase-money mortgage ? Check ob Ejeceive the Following: Beed to mortgagor. Tax, water and assessment bills with interest computed to day after closing. Have water meter read as of day of closing. [174] Memorandum Fob Closing Title. 175 Mortgagee. Transcripts of judgments against mortgagor. Assignments of judgments, if any to be delivered. Satisfaction pieces of judgments, if any to be delivered. List of mortgages. Assignment of mortgages, if any to be delivered. * Satisfaction of mortgages, if any to be delivered, and have the bond and mortgage in hand before closing. Receipts for last payment of interest on prior mortgages. Estoppel certificates of mortgagees showing amount due and date of last payment of interest or principal properly exe- cuted for recording. Subordination agreement, if any to be delivered. Satisfaction pieces of mechanics' liens, if any to be delivered. Consents and orders cancelling lis pendens^ if any to be delivered. Insurance policies and premium bills. Receipt for insurance policies. Details so that mortgagee can have policies changed at once. Authorization of agent of mortgagor to receive money, if mortgagor not to be at closing. Retain amount to cover unpaid taxes, assessments, water bills, judgments, mechanics' and other liens and charges to be reserved on closing. Authorization to mortgagee to pay taxes, assessments, water bills, judgments and mechanic and other liens, if they are to be reserved on closing. Assignment of awards, if any to be delivered, list of rents paid and unpaid. Inquire whether any rent has been paid to mortgagor in advance. Affidavit of title as to ownership, citizenship, age, marriage, identity of wife, judgments, etc. Examine powers of attorney, if agent to act for mortgagor on closing and proof that principal is alive, and that power has not been revoked. ThS; Following Matters Mat Need Attention. Are there any chattel mortgages on material or fixtures or any such purchased by conditional sale ? Examine leases and assignment of leases and clauses subordi- nating them to future mort gages, if any. * See note, page 873. 176 Memokandum Foe Closing Title. Mortgagee. Are there any restrictions in the title ? Inspect premises and inquire who is in possession, nature and extent of his tenancy, and if party in possession claims any easements. Are there any open or notorious easements ? Are there any overhanging eaves or shutters ? Are there any beams of adjoining property in walls or vice versa ? Any foundation extensions, easements, party wall agree- ments, sewer or drain rights, unsafe building liens, agree- ments for power from adjoining premises? Have tenement house, fire, health, building and other depart- ment violations been removed ? Look into vault space permits. Look out for survey variations. How old is building, and compare date with survey. For what purpose premises are used. (Civil Damage Act, U. S. Distillery Laws, etc.) Have any new buildings been erected since survey ? If any partially constructed building, see that union work- men have been paid ; also members of the Allied Building Trades Associations. Has any change in condemnation or easements situation taken place since the beginning of negotiations ? Is any security other than bond to be given ? Inquire as to age of children of previous ovmers to see if any born after making of will of such owner. Look out for posthumous children. Inquire if property obtained from a deceased person within three years ; if so have all debts of the deceased been paid ? Has collateral inheritance tax been paid ? Don't forget charge for recording mortgage, satisfaction pieces, releases and other papers. (Satisfaction pieces, $2.50 each.) Look out for mortgage recording tax. Kemember it is dangerous to take check (even when cer- tified) with indorsements of third parties thereon. Who is to pay brokerage and amount ? Taxes in E'ew York city, become a lien on the first Monday of October. Section 914 Greater New York Charter. Memorandum Foe Closing Title. 177 Mortgagee. It is not wise to pay off any part of principal of a bond with- out having a receipt indorsed on the bond itself. Sometimes by the terms of the bond such indorsements must be made and the borrower is entitled to require a production of the bond and to see the indorsements made. Have certified check payable to self. Bill for mortgagor for searching. After Closing: Record papers. Have insurance policies changed at once. Notify owner. 12 PART V. COMMON PRACTICE FORMS. ATTACHMENT. FORM No. 1. Warrant of Attachment. THE PEOPLE OF THE STATE OP NEW YOEK. To the Sheriff of the County of {New York), Greeting: WHEREAS, an application has been made to the judge grant' ing this warrant by (William Brown and George W. Davis), plain- tiffs, for a warrant of attachment against the property of (John T. Tdylor, Henry Johnson, and Charles W. Clark), defendants, in an action in the (City) Court of (the City of New York), and it appearing by aiSdavit to the satisfaction of the judge granting this warrant that one of the causes of action specified in section 635 of the Code of Civil Procedure exists against the defendant to re- cover a sum of money only to wit: the sum of (eight hundred and ninety-four ($894)) dollars as damages for breach of contract in (the non-payment of the purchase price of goods sold and deliv- ered), and the affidavit showing that the defendants have disposed of their property with intent to cheat and defraud their creditors, and the plaintiffs having also given the undertaking required by law; NOW YOU AEE HEREBY COMMANDED, to attach and safely keep so much of the property within your county which the defendants (John T. Taylor, Henry Johnson, and Charles W. Clark) have, or which they may have at any time before final judg- ment in the action, as will satisfy plaintiffs' demand of (eight hundred and ninety-four ($894)) dollars, together with costs and expenses, and that you proceed hereon in the manner required of you by law. [178] Attachment. 179 Undertaking. WITNESS* : Hon. (Edward F. O'Dwyer, Chief) Justice of the {City) Court (0/ the City of New York), at {its court house. No. 32 Chambers street) in {the Borough of Manhattan), city of {New York), this {24:th) day of {July), in the year one thou- sand nine hundred and {five). {EDWARD F. O'DWYER), {Chief Justice J City Court of the City of New York.) {VICTOR ROGERS), Plaintiffs' Attorney, (2Y Pine) street, {New York City). -EOHm No. 2. TTndertaking on Attachment. ISTEW YOEK SUPEEME COUKT, {New York) County. •i (JOHN OLIVER and FRANKLIN OLIVER,) Plaintiffs, against (LEONARD CALDWELL,) Defendant. The above-named plaintiffs having applied to one of the justices of this court for a warrant of attachment against the property of the above-named defendant under and by virtue of the Code of Civil Procedure, we, (John Lambert), of N'o. (418 Central Park West, in the Borough of Manhattan), city of (New York), and (Arthur Stevens), of Wo. (402 Washington avenus, in the borough of Brooklyn), city of (New York), do hereby jointly and severally undertake that if the defendant recovers judgment in this action, or if the warrant of attachment is vacated, plaintiffs above named will pay all costs that may be awarded to the above-named defend- * In the Supreme Court, First Judicial District usually attested- in the name of the Justice sitting at Special Term, Part II. 180 Attachment. Undertaking. ant, and all damages which the said defendant may sustain by reason of the said attachment, Hot exceeding the sum of (two, hundred and fifty dollars) . Dated {July 1, 1905.) (JOHN LAMBERT.) {ARTHUR STEVENS.) STATE or NEW YOKK, ) r SS ' County of (iVew Forfc), ) {John Lambert), being duly sworn, says: That he is a resident and a {freeholder) within the State of 'New York, and is worth double the sum specified in the above undertaking over and above all debts and liabilities which he owes or has incurred, exclusive of property exempt by law from levy and sale under an execution. {JOHN LAMBERT.) Sworn to before me this (Isi) day of {July, 1905). {JOHN JONES), ISTotary Public {N. Y.) County. STATE OF NEW YORK, ) ^^ _ County of (iVew ForA;), ) (ARTHUR STEVENS), being sworn, says, that he is a resi- dent and a householder within the State of New York, and worth double the sum specified in the above undertaking, over 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. {ARTHUR STEVENS). Sworn to before me this {1st) day of {July, 190'5). {JOHN JONES), Notary Public {N. F.) Co. STATE OF NEW YOEK, County of (Aew Forfc), ' I certify that on this {first) day of {July, 1905), before me per- sonally appeared {John Lambert and Arthur Stevens) to me known and known to me to be the' persons described in and who executed the foregoing undertaking, and severally duly acknowledged to me that they executed the same. {JOHN JONES), Notary Public, (New York) County. Attachment. 181 Affidavit. NOTE. An Affidavit to Obtain an Attachment Should Show in Substance : 1. That the cause of action is one of those specified in section 635 of the Code of Civil Procedure, arising out of the following facts : (here set forth proof of facts stated in complaint. ) 2. If the action is to recover damages for breach of contract, that the plaintiff is entitled to recover the sum stated over and above all counterclaims known to him. 3. The ground of attachment. 4. That the action has been commenced, or the summons issued and a copy annexed, and that the warrant is asked for to accompany the summons. 5. That no previous application has been made. Where cables, telegrams, letters, and other documents received are the grounds of deponent's belief, and the sources of his information, they should not only be referred to, but copies should be annexed to the papers, and a statement of deponent's possession and readiness to produce the original should be made. The mere averment of facts as upon personal knowl- edge is not sufficient unless circumstances are stated from which the inference can fairly be drawn that affiant has per- sonal knowledge of the facts which he avers, and where it is assumed that he has not personal knowledge, as for example : Where he is assignee of a claim and does not disclose means of knowledge, the papers will be deemed insufficient ; in other words, where the affiant, owing to his relations with the parties and to the cause of action, plainly speaks as an actor in the action, the courts usually accept his verified averment of facts, which may have come within his actual observation or personal action as satisfactory proof thereof; where, however, he does not speak as such a direct actor, but, in fact, speaks appa/rently as a stranger to the transaction, it matters not how positively, he asserts his personal knowledge of the facts averred, he must still furnish the evidence of such facts. In stating conversations received over the telephone, lie must show all the circumstances which prove that he knew the person speaking at the other end, as for example, that he called up that person, that he knew the voice of the person speaking, having often heard it before over the telephone, and any other fact which, proves that he knew the person to whom he was talking. 182 Attachment. Ground: Non-Resident Defendant. FORM No. 3. Affidavit to Obtain Attachment — Ground: Non-residence of Defendant. NEW YOEK SUPKEME COUKT. County of {New Yorh). {HENRY CURTIN,) Plaintiff, against {WILLIAM MORRIS,) Defendant. STATE OP NEW YOEK,) County of {New York), J {HENRY CURTIN), being duly sworn, says, that he is the plaintiff in this action. That a cause of action exists in favor of plaintiff and against the above-named defendant for the recovery of a sum of money only, as damages for a breach of contract (ex- press or implied) other than a contract to marry, and that said cause of action arose from and is based upon the following facts : At the {City of New Yorh), on or about the {1st) day of {July, 1907), plaintiff sold and delivered to defendant at defendant's special instance and request at prices agreed upon and on a credit of thirty days, certain goods, vjares, and merchandise, to wit: 400 cases of wine, a/mounting, in the aggregate at such agreed prices, to the sum of twenty-five hundred dollwrs ($2,500.00). That said term of credit has expired and said mum has not been paid nor any part thereof. That the plaintiff in this action is entitled to recover from de- fendant, on said cause of action, said sum of {twenty-five hundred) dollars ($2,500.00) with interest thereon from the {1st) day of {July, 1907), over and above all counterclaims known to plaintiff. That defendant is not a resident of the State of New York, but resides in the {City of Trenton) in the State of {New Jersey), this fact having been communicated by defendant to deponent on {August 1, 1907). That plaintiff has commenced this action to recover said sum of {twenty-five hundred) d'oUars ($2,500) with interest aa aforesaid Attachment. 183 Ground: Defendant Foreign Corporation. on the said cause of action, and the summons herein, a copy of \vhich is hereto annexed, has been duly issued. That no previous application has been made for a warrant of attachment herein. Sworn to before me, this \ (HENRY CUBTIN.) {6th) day of (August, 1907). [ (WILLIAM BLACK), Notary Public, (New York) County, (No. 17). PORM No. 4. Affidavit to Obtain Attachment — Ground: Defendant a Foreign Corporation. NEW YOKK SUPREME COURT. County of (New Yorh). (HENRY CURTIN,) Plaintiff, against (WILLIAM MORRIS COMPANY,) Defendant. STATE OF NEW YORK, _^ County of (New York), P*" (HENRY CURTIN,) being duly sworn, says: That he is the plaintiff in the above action ; that a cause of action exists in favor of the plaintiff and against the above-named de- fendant for the recovery of a sum of money only, as damages for a breach of express contract other than a contract to many, and that said cause of action arose from and is based upon the follow- ing facts: (At the city of New York, between the 1st day of June, 1904, and the 15th day of July, 1904, the plaintiff sold and. delivered to the defendant, at the special instance and request of the said de- fendant, and at prices agreed upon, good^ wares, and merchamdise 184 Attachment. Ground: Defendant Foreign Corporation. amounting in the aggregate, at such agreed prices, to the sum. of three thousand ($3,000) dollars, and the said sum has not been paid nor any part thereof;) That the plaintiff in this action is entitled to recover from the said defendant upon the said cause of action the sum of (three thousand ($3,000) dollars) with interest thereon from the {15th) day of (July, 1904,) over and above all counterclaims known to plaintiff. That the defendant, the (WILLIAM MORRIS COMPANY,) is a foreign corporation, created \>j and existing under the laws of the State of (New Jersey), as appears by the certificate of the Secretary of State of the State of New Jersey hereto attached, and that the plaintiff has commenced this action to recover the said sum of (three thousand ($3,000) dollars) with interest as aforesaid, upon the above cause of action and the summons herein, a copy of which is hereto annexed, has been duly issued and the warrant is asked for herein to accompany the same ; that no previous applica- tion has been made for a warrant of attachment herein. (EENBY CUBTIN.) Sworn to before me, this ) (11th) day of (August, 1904). j (WILLIAM BLACK,) Notary Public, (New York) County (No. 17.) Attachment. 185 On Papers In Another Action. FOKM No. 5. Affidavit to Obtain Attachment — By Assignee of Cause of Action. Attaching Copies of Papers on Which a Warrant Was Granted Against Same Defendant. SUPEEME COURT OF THE STATE OF NEW YORK, County of {New York). {ANDREW BATT,) Plaintiff, against {TEE COLUMBIA COMPANY,) Defendant STATE OF NEW YORK, ^^^ County of {New York), {ANDREW BATT,) being duly sworn, deposes and says that he is the plaintiff in the above-entitled action, and is a resident of this State. Deponent further says that the defendant is a foreign corporation, incorporated under the laws of the State of {Minne- sota), and between {January 2, 1904) and {February 3, 1904,) {Charles Dale), {Edward Fielder), and {George Handy) doing business under the firm name of {Dale & Company), sold and delivered to the said defendant {The Columbia Company), the following goods, at the agreed prices hereinafter stated, to wit: on {January 4, 3,400 baskets of grapes, making a total of ($1,200), which was the price said company promised and agreed to pay for the said grapes, but never has paid for the same or any part thereof, as appears by the aiSdavit of {Charles Dale), verified the {Uh) day of {September, 1904), hereto attached. The allega- tions as to the incorporation of the defendant and the allegations following next thereafter are made by this deponent upon informa- tion and belief, derived from two affidavits, upon which attach- ments were issued against the same defendant, both of which affidavits were filed in the office of the Clerk of the County of {New York) ; one made by {Andrew Brady), filed on the {IQth) day of {December, 1903), in an action of {Brady v. The Colum- bia Company), the other made by {David Coleman), of which copies are hereto annexed marked respectively A. & B., and such 186 Attachment. On Papers la Another Action. original affidavits are hereby produced for inspection by this court. Deponent further says that the cause of action hereinbefore set forth has been assigned to this deponent, and deponent is now the lawful owner and holder thereof and was such when this action was begun, and that the said sum of ($1,200) with interest from {February 3, 1904), is now due and owing to this deponent from the said defendant over and above all counterclaims known to deponent. The summons herein has been issued and no previous application for the present attachment has been made. {ANDREW BATT.) Sworn to before me, this ] (Sa) day of {September, 1904). ) {WILLIAM BLACK), Notary Public, {New York) County, No. (17.) FOEM No. 6. Affidavit to Obtain Attachment — Ground : Departure of Defendant in Similar Application. SUPREME COUET OF THE STATE OF JSTEW YOEK, County of {New York). {GENERAL SUPPLY CO.,) Plaintiff, against (LAWRENCE WEST,) Defendant. STATE OF ISTEW YOEK, County of {New York), (FREDERICK STOW), being duly sworn, says, that the plaintiff herein is a domestic corporation, organized and existing under the laws of the State of New York, and having its principal place of business at (No. 100 Broadway in the Borough of Marv- haitan, City of New York) . That deponent is an officer of plaintiff, to wit; (Treasurer) thereof, and was such (treasurer) at all of the times hereinafter Attaghmestt. 187 On Papers In Another Action. stated. That defendant as such (treasurer) now has, and at all of said times had, the general management, direction, and control of the business of said corporation. That a cause of action exists in favor of plaintiff and against defendant, for the recovery of a sum of money only, as damages for a breach of contract, other than a contract to marry, and that said cause of action arose out of and is based upon the following facts, to wit : (At the city of New York on or about the 1st day of (June, 1905), the defendant made his certain promissory note in writing, whereby he promised to pay to the order of plaintiff one month after date, twenty-five hundred dollars ($2,500.00), wiih interest, at No. 45 Liberty street. New York City, and delivered the same to plairdiff. That plaintiff is now the owner and holder of said promissory note, and the same has not been pcdd nor any part thereof.) That defendant was a resident of the State of New York on the (7th) day of (February, 1906), and that deponent is informed and verily believes that said defendant has departed from said State of New York with intent to defraud his creditors and to avoid the service of a summons. That the source of deponent's information and the grounds of his belief are the affidavits made in the case of (Jacob Low) against (Lawrence West), the above- named defendant, which action is now pending in this court, and which affidavits are respectively made by (Joseph Kee), verified the (%th) day of (February, 1906), and (Peter Lewis), verified the (2th) day of (February, 1906). That said affidavits were on the (10th) day of (February, 1898), presented to the Hon. (Ed- ward Patterson), one of the justices of this court, and were on that day ordered filed, and filed in the office of the clerk of the county of (New York). That copies of said affidavits are hereto annexed and deponent refers to said original affidavits as a part of this affidavit, and exhibits them to this court. That the plaintiff in this action is entitled to recover from the defendant on the cause of action above set forth, the sum of (twenty-five hundred dollars ($2,500.00)), with interest thereon, from the (1st) day of (July, 1906), over and above all counter- claims known to deponent or to plaintiff. That plaintiff has commenced this action to recover said sum of (twenty-five hundred dollars ($2,500.00)), with interest as afore- said, on said cause of action, and the summons herein has been duly issued, and a copy thereof is hereto annexed. 188 Attachment. Affidavit Of Correctness Of Copies. That no previous application has been made for a warrant of attachment herein. {FREDERICK STOW.) Sworn to before me, this ) (12th) day of (February, 1906). f (WILLIAM BLACK), Notary Public, (New York) County, No. (17.) FORM No. 7. Affidavit of Comparison and Correctness of Copies. SUPREME COTJET OF THE STATE OF NEW YOEK, County of (New York). (GENERAL SUPPLY COMPANY,) Plaintiff, against (LAWRENCE WEST,) Defendant STATE OF NEW YOEK,^^^ . County of (New York), (JAMES ROGERS), being duly sworn says, that he is a stenographer and typewriter. That on the (11th) day of (Feb- ruary, 1906), he made the annexed copies of the aflBdavits of (Joseph Kee) and (Peter Lewis), filed in the office of the clerk of the county of (New York) on the (10*) day of (February, 1906), and referred to in the affidavit of (Frederick Stow) hereto annexed. That he has carefully compared the annexed copies of said affidavits with the originals thereof, and that said copies are true and correct copies of said originals. (JAMES ROGERS.) Sworn to before me, this ) (12th) day of (February, 1906). ) (WILLIAM BLACK), Notary Public, (New York) County, No. (17.) Attachment. 189 On Assigned Cause Of Action. FORM No. 8. Affidavit to Obtain Attachment — Assigned Cause of Action. SUPEEME COURT OF THE STATE OF NEW YOEK, County of {New York). (ANDREW WILLIAMSON,) Plaintiff, against (FRIEND FRUIT COMPANY,) Defendant. STATE OF IsTEW YOEK, County of (New York), (ANDREW WILLIAMSON), being duly sworn, deposes and says : That he is the plaintiff in the above entitled action, and is a resident of this State. Deponent further says that the defendant is a foreign corporation, incorporated under the laws of the State of (Minnesota), and (behueen January 1st, 1899) and (March 2nd, 1899, Charles Dane, Edward Foy, George Harper, Isaac Jansen, and Frank Lessing, doing husiness under the -firm name of Harper and Company, sold and delivered to the said defendant. The Friend Fruit Company, the following goods at the agreed prices hereinafter stated, to wit: 4,000 baskets of grapes, for u'hich the defendant agreed to pay the sum of $1,200, but never has paid for the same or any part thereof) , which allegations as to the incorporation of the defendant and the sale and delivery of the said goods are made by this deponent upon information and belief, derived from the affidavit of (Phillip Adena), tipon which an attachment was issued against this same defendant, which affidavit was filed in the office of the clerk of the county of (New York), in an action entitled (Harper & Co. against Friend Fruit Com- pany), a copy of which affidavit is hereto annexed marked (" A "). The reason why deponent does not produce an affidavit by said (Phillip Aderm) is that said (Adena) resides in (Minnesota), and is not now in the State of (New York), and deponent is unable to procure from him an affidavit as to the facts; deptment further says tha;t the cause of action hereinbefore set forth has been as- signed to this deponent, and deponent is now the lawful owner and 190 Attachment. Affidavit By Agent. holder thereof and was such when this action was begun, and that the said sum of ($1,200), with interest, from the (2nd) day of (March, 1899) is now due and owing to this deponent from the said defendant over and above all counterclaims Imown to de- ponent. The summons herein has been issued and no previous application for the present attachment has been made, except that a prior attachment granted herein has been set aside by an order herein, and the action by said (Williamson) has been abandoned on the ground that this court has no jurisdiction to entertain the same. (ANDREW WILLIAMSON.) Sworn to before me, this (12th) day of (September, 1904). (WILLIAM BLACK), Notary Public, (New York) County, No. (17.) FORM No. 9. Affidavit to Obtain Attachment — By an Agent. NEW YOKK SUPKEME COUKT, County of (New York). (JOHN DOE,) Plaintiff, against (RICHARD ROE,) Defendant. STATE or NEW YOEK, , r SS. ' County of (New York), (ANTHONY BARLOW), being duly sworn, says he is the agent of the plaintiff herein (who resides in Great Britain), and deponent has sole charge of his business in the (city of New York). That the defendants are indebted to the plaintiffs in the sum of ($850.00) over and above all counterclaims and set-offs known to plaintiffs or deponent, which indebtedness arose as fol- lows: That at the (city of New York, and "between the (3rd) Attachment, 191 Affidavit By Agent. day of {July, 1899), and the (16th) day of (August, 1899), deponent on behalf of and as agent for the plaintiffs, sold and delivered to the defendants goods, wares, and merchandise amount- ing in value at prices agreed upon to the sum of ($850.00), no part of which has been paid, except the sum of ($200.00), leaving still due and owing the sum of ($650.00), with interest thereon from the (15th) day of (August, 1899), which is now unpaid. And this deponent further alleges on information and belief derived from the affidavit of (Charles Done) and (Edward Fare), verified this (20th) day of (August, 1900), and hereto attached, that the defendants have (^isposed of their property with intent to cheat and defraud their creditors. No previous application of this war- rant of attachment has been made. (ANTHONY BARLOW). Sworn to before me, this 1 (20th) day of (August, 1900). j (WILLIAM JAMESON), Notary Public, (New York) County (72.) 192 -Attachment. Afladavit By Agent. FORM No. 10. Affidavit to Obtain Attachment — By an Agent (another form). SUPKEME COUET OF THE STATE OE NEW YORK, County of {New York). (ANDREW BOTT,) Plaintiff, against {JOHN FRIEND and WILLIAM J0HAN80N,) Defendants. STATE OF NEW YOEK, ) r SS ' Covmij oi {New York), j (FRED FRENCH), of the {Borough of Mcmhattan), being duly sworn, says he is the agent of the plaintiff herein {who re- sides in Great Britain.), and deponent has sole charge of their business in the city of {New York). Tliat the defendants are indebted to the plaintiff in the sum of ($566.00) over and above all counterclaims and set-offs known to plaintiff or deponent, which indebtedness arose as follows: That at the city of {New York), and between the {2nd) day of {January, 1904), and the (3rd dxiuy of February, 1904), deponent, on behalf of and as agent for the plaintiff, sold and delivered to the defendants goods, wares, and merchandise, amounting in value at prices agreed upon to the sum of ($586.00), no part of which has been paid, except the sum of ($20.00), leaving still due and owing the sum of ($566.00), with interest thereon from the {3rd) day of {February, 1904), and the samie is now unpaid. And this deponent further alleges on information and belief derived from the affidavits of (Charles Dale and Edward Folk), hereto attached, tbat the defendants have disposed of their property with intent to cheat and defraud their creditors. No previous application for a warrant of attach- ment has been made. (FRED FRENCH.) Sworn to before me, this 1 . . (14^7i) day of (June, 1904).' j (WILLIAM BLACK), Notary Public, (New York) County, No. (17.) Attachment. 193 Ground: False Statement. FORM No. 11. Affidavit to Obtain Attachment — Ground: Debtor's False State- ment to Secure Credit. SUPKEME COURT OF THE STATE OF NEW YOEK, County of (New York). {NEW YORE COMMERCIAL COM- PANY,) Plaintiff, against (HENRY HARD,) Defendant. STATE OF NEW YORK, County of (New Yorlc), (JAMES FEET), being duly sworn, says that tlie plaintiff above named is a domestic corporation organized and existing under the laws of the State of New York, and having its principal place of business at (No. 82 West street), in the (Borough of Manhattan, city of New Yorlc). 1. That deponent is the (present) of said corporation, plain- tiff, and was such (president) at all of the times hereinafter stated. That as such (president), deponent now has, and at all of said times had the management, direction, and control of plaintiff's business. 2. That a cause of action exists in favor of the plaintiff and against the above named defendant for the recovery of a sum of money only, as damages for a breach of an express contract, other than a contract to marry, and that said cause of action grew out of, and is based upon, the following facts, to wit : 3. At the (city of New Yorlc), and on or about the (15th) day of (March, 1906), plaintiff sold and delivered to defendant at defendant's special instance and request, and at prices agreed upon, and on a credit of three months, certain goods, wares, and merchandise, to wit: (100 loxes of oranges), amounting in the aggregate at such agreed prices to the sum of ($274.97). That said term of credit has expired, and sadd sum has not been padd, nor any pa/rt thereof. 13 194 Attachment. Ground: False Statement. 4. That plaintiff is entitled to recover from defendant on said cause of action said sum of ($274.97), with interest thereon from said (15th) day of (June, 1906), over and above all counterclaims known to deponent or to plaintiff. 5. That plaintiff has commenced this action to recover said sum on said cause of action, and the summons herein has been duly- issued, and a copy thereof is hereto annexed. 6. That at- said (city of New York), and on or about said (15th) day of (March, 1906), the above-named defendant for the purpose of procuring credit from the plaintiff, made a statement in writing under his cwn hand or signature as to his financial responsibility or standing, which statement was false and known by him so to be false at the time of making same. That a copy of said statement is hereto annexed marked Exhibit "A," and made a part of this affidavit. 7. That the goods, wares, and merchandise above referred to were sold to defendant, and that the credit above referred to was given to defendant, by plaintiff, relying in good faith upon the said statement, and believing the same to be true. 8. That said term of credit, given to defendant by plaintiff expired on the (15th) day of (June, 1906), and that on or about the said (15th) day of (June) plaintiff received a written com- munication from defendant, whereby defendant declared himself to be insolvent, stating that his liabilities largely exceeded his assets and offered to allow any one interested to examine his books. That a copy of said communication is hereto annexed marked Exhibit " B," and made a part of this affidavit. That thereupon deponent had defendant's said books examined by one (Edwa/rd Cass), an expert bookkeeper, and the result of said examination appears from the affidavit of said (Edward Cass), which is hereto annexed. That no previous application has been made for a warrant of attachment (or order of arrest) in this action. (JAMES FEET.) Sworn to before me, this ) (20ih) day of (June, 1906). j (WILLIAM BLACK), Notary Public, (New York) County, No. (17.) Attachment. 195 Ground: False Statement. Exhibit "A." Written Statement made by Debtor. New York, (March lith, 1906)'.- Ki For the purpose of obtaining the credit this day granted me, and obtaining credit, which in the future may be granted me by (The New York Commercial Company), I make the following statement, which I know and declare to be true and correct, and I make it with the knowledge that the credit now or hereafter to be given me is given in reliance upon its truthfulness. This state- ment is made to apply to all future purchases, and is to be con- sidered as repeated and confirmed at the time of each subsequent purchase, unless the said (The New York Commercial Company) is notified by me in writing to the contrary before such subsequent purchase. In consideration of being granted said credit, I further agree that if after any purchase of merchandise from (The New York Conwnercial Company) on credit, any change occurs, diminishing my financial ability as below stated, to pay for said merchandise, I will within ten days after said change in my financial ability, notify in writing The 'New York Fruit Company of such change. Before purchasing more merchandise from (The New York Commercial Company), I will in writing make known to it such change in my financial ability. When any bill for merchandise shall be past due and unpaid after demand, I will allow (The New York Commercial Company) to examine all my books by a bookkeeper or accountant sleeted by it. City of New York. Street and No. (6 Washington St.) Business (fruits). Present style of firm (Henry Hard). Full names of partners (if any), (none). Assessed value of real estate belonging to (none). If mortgage, state amount of same (none). Eeferences (/. Crowley j Edward Taft). ASSETS. Mdse. cash value stock in hand — selling value. . . ($-300 00) Bills receivable, good and collectible when due, and not past due (None) 196 Attachment. Ground: False Statement. Assets — Continued. Accounts receivable, good and that are not three months past due ($300 00) Cash in (N. Y. National Bank) (state name of Bank) (300 00) Total ($900 00) Cash in safe (250 00) ($1,150 00) LIABILITIES. Bank accommodation (None) Borrowed money (None) Mdse. liabilities ($200 00) Other liabilities (None) Total ($200 00) Safe net surplus, insured for ($700 00) (HENRY HARD.) (THOS. McDUFF), Witness. Exhibit " B." Affidavit of Accountant. NEW YORK SUPEElilE COURT, (A^ew York) County. (NEW YORK COMMERCIAL COM- PANY.) Plaintiff, against (HENRY HARD,) Defendant. STATE OF XEW YORK, ) . County of (New York^ (EDWARD CASS^. k>iu^ duly sworn, says that he under- stands the art of bookkeeping and of a^wunts and is expert in the Attachment. 197 Ground: False Statement. same, and is in the employ as general bookkeeper of plaintiff herein and has been engaged in bookkeeping from time to time for (ten) years past. That on or about {June 11th, 1906), at the request of plaintiff, deponent went to the place of business of the defendant, and there examined his books together with the statement or balance sheet of defendant made {June IMh, 1906). {That the hoohs of defendant show that he was indebted on March lith, 1906, to the following parties in the amounts set opposite their names respectively: Jones £ Co , $167 38 Keep £ Co 55 00 B. May 255 00 Total $477 38 Whereas the statement of defendant made March liih shows his total indebtedness to be two hundred (200) dollars.) {EDWARD CASS), Sworn to before me, this {18th) day of {June, 1906). (WILLIAM TUCK), Notary Public, {New York) County, ISTo. (28). ARREST. ORDER OF ARREST. FORM No. 12. Order to Arrest and Hold to Bail. NEW YOKE SUPREME COUET, {New York) County. (THOMAS GVY, BURTON LAMB and WILLIAM LAMB, doing busi- ness as co-partners under the name and style of GUY, LAMB & CO.,) Plaintiffs, against {JOHN SHABPE,) Defendant. To the Sheriff of the County of (New York) : It having been made to appear to me by the affidavit of (Burton Lamb), verified the (5th) day of (September, 1904), that a suffi- cient cause of action exists against the defendant, (John Sharpe), and that the ease is one of those mentioned in article 1st, chapter 7, title 1, of the New York Code of Civil Procedure, and that the ground of arrest is (fraud and misrepresentation in inducing plain- tiffs to enter into a contract for the sale and delivery of mer-> chandise). YOU ARE REQUIRED forthvsrith to arrest (John Sharpe), the defendant in this action, if he be found within your county, and to hold him to bail in the sum of , and to return this order, with your proceedings thereunder, as prescribed by law. (Dated, September 1th, 1904.) (HENRY A. GILDERSLEEVE), Justice of the (Supreme) Court. NELSON DOW, Plaintiff's Attorney, 206 Broadway, New Yorh city. [198] Abeest. 199 Undertaking. FORM No. 13. Undertaking on Order of Arrest. NEW YOEK SUPREME COURT, (New York) County. (THOMAS GUY, BURTON LAMB and WILLIAM LAMB, doing busi- ness as GUY, LAMB & GO.,) Plaintiffs, against {JOHN SHARPS,) Defendants. WHEREAS, {Thomas Guy, Burton Lamb, and William Lamb), the plaintiffs above named, are about to make application to one of the justices of the above-named court for an order for the arrest of the above-named defendant, {John Sharpe), in the above-entitled action for {damages arising from the fraud and misrepresentation of said defendant, inducing the plaintiffs to enter into a contract for the sale and delivery of merchandise, and from breach of said contract.) NOW, THEREFORE, we, (Charles A. Brown, of No. 16 Madison avenue), in the (Borough of Manhattan), city of (New York), and (James Stillman), of (No. T2 West bUh street, in said city) and (Borough), do hereby, pursuant to the statute in such case made and provided, jointly and severally undertake, that if the defendant in said action recover judgment therein, or if it is. finally decided that the plaintiffs are not entitled to the order of arrest, the said plaintiffs in said action will pay all costs which may be awarded to the said defendant, and all damages which he may sustain by reason of the arrest in said action, not exceeding the sum of dollars (CHARLES A. BROWN.) (JAMES STILLMAN.) Dated, (September 5, 1904). 200 Abeest. Undertaking. STATE OF NEW YORK, County of (New York), (CHARLES A. BROWN), one of the subscribers and sureties above named, being duly sworn, says, that he is a resident ofj ai'd a /louseholder within the State of New York, and is worth the si;m of dollars over all the debts and liabilities whirli he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. (CHARLES A. BROWN.) Sworn to before me, this (5th) day of (September, 1904). (ALBERT BORDEN), itfotary Public, (N. Y.) Co. STATE OF NEW YORE, } r SS ' County oi (New York), ) (JAMES STILLMAN), one of the subscribers and sureties above named, being duly sworn, says, that he is a resident of and a freerholder within the State of New York, and is worth the sum of dollars over all the debts and liabilities which he owes or lias incurred, and exclusive of property exempt, by law from levy and sale under an execution. (JAMES STILLMAN.) Sworn to before me, this ) (5th) day of (September, 1904). j (ALBERT BORDEN), Notary Public, (N. Y.) Co. IK, I STATE OP NEW YORK, County of (New York), I CERTIFY, that on this (5th) day of (September, 1904), before me personally appeared (Charles A. Brown and James Stillman), to me known, and known to me to be the same persons described in and who executed the above undertaking, and they severally acknowledged to me that they had executed the same. (ALBERT BORDEN), Notary Public. Aekest. 201 Affidavit. 1 approve of the above undertaking as to form, and tlie suffi- ciency of the sureties therein named. Dated, {New York, September Y, 1904). HENRY A. 0ILDER8LEEVE, J. 8. C. Note. — An Affidavit to Obtain an Oedee of Aeeest Should Show : (A). When right is based on nature of action. 1. That one of the causes of action set forth in subdivision 1, 2, and 3 of section 549 of the Code of Civil Procedure exists in favor of the plaintiff. This must be shown by a statement of the facts out of which the cause of action arises. It is also well to state specifically the ground on which the arrest is claimed. 2. That an action has been commenced (and the status thereof), or that an action is about to be begun and a summons issued, and copy annexed. 3. That no previous application has been made. (B). Where the right to arrest depends upon extrinsic facts. 1. That a cause of action express or implied (other than a contract to marry) exists in favor of the plaintiff. 2. Further facts showing that one of the causes stated in sub- division 4 of section 549 exists. 3. That the judgment asked requires the performance by the defendant of an act, failure to perform which, may be punished as contempt, and that (a) Defendant is a non-resident or (6) A resident and intends to depart from the jurisdiction, and that the performance of the court's order or judgment will thereby be rendered ineffectual. As to manner of stating facts, see note on attachment, p. 181. 202 Arrest. Ground: Kemoval Of Goods. FOKM No. 14. Affidavit to Cbtain Order of Arrest — Ground: Removal of Goods with Intent to Defraud Creditors. (CITY COURT OF THE CITY OF NEW YORK.) (ANDREW OLWELL and HER- MAN L. KALTENBACK,) Plaintiffs, against (HARRY N. BRONSON, GEORGE E. 8EC0UR and JOHN S. POPE,) ' Defendants. STATE OF NEW YOEK, ) ^^ . County of (New York), ) (HERMAN L. KALTENBACK), being duly sworn, deposes and says : That he is one of the plaintiffs in the above-entitled action, and that they are doing business under the firm name of (Marshall, Olwell & Company), and the defendants above named are co- partners doing business in the (city of New York), under the firm name of (Bronson, Secour & Pope) ; that the defendants above named are indebted unto the plaintiffs in the sum of $1,399 34/100, ■which sum is due over and above all counterclaims and set-offs known to deponent or to these plaintiffs, and this action is brought to recover damages for breach of contract, other than a contract to marry, and arises as follows : Between, the 1st day of July, 1903, and the IQth day of August, 1904, this deponent's firm sold and delivered unto the defendants in their said firm namie, goods, ipares, and merchandise upon a credit and of the value and at the agieed price of $2,396 31/100, and defendants have paid on account thereof the sum of ($997 lY/lOO), leaving a balance due plaintiffs by the defendants of $1,399 34/100, which sum is now due the plain- tiffs as hereinbefore alleged. That deponent charges that the defendants have disposed of, and are about to dispose of their property with intent to cheat, hinder, Abeest. 203 Ground: Removal Of Goods. delay and defraud their creditors, among them this deponent's firm from personal knowledge of the facts hereinafter set forth. From the 1st day of December deponent repeatedly sent to the defendants for the money due luithout avail. On the 30th day of December, 1889, this deponent sent for Mr. Bronson one of the defendants, desiring to see him at his, deponent's office. Said Mr. Bronson called there and deponent stated to him in the presence of Mr. Olivell, his partner, that the moneys due to his firm rfiust be paid; that he had heard thai his Mr. Branson's firm were going behind and were insolvent, and could not possibly pay their debts in full. Mr. Bronson then said that Mr. Pope of his firm had severed his connections with the firm, and that he and Mr. Seconr were liquidating its liabilities j that they ivere insolvent, and could not pay, as the thing then stood, more than fifty cents on the dollar, providing the creditors woidd permit them to continue the business without molestation, but that if they were pressed several of the creditors had threatened to bring suit, and there would be nothing else left for them to do but to wind up. Deponent said, " How and when will we get our money and how much, if we take no proceedings against you?" Mr. Bron- son said, " I can't exactly tell. I have been in business a great many years, and I don't intend to go out and leave myself high and dry and unprovided for. If the creditors take proceedings against me I shall have to do sotnething to protect myself, and I certainly think it would be wiser for you to leave us alone and see witat will come out of it." Deponent said, " 'We don't intend to let you carry on this business while you aire insolvent, and thus eat up what little there is there." The defendant Bronson said, " You go ahead and you can do just as you please. If you sue us you will get vothing." Deponent has ascertained that Mr. Pope of the said firm is now in Europe, having gotten out of the firnu while they weri' insolvent, and that there is no chance of process being served upon him,. Deponent prays on behalf of the plaintiffs that an [attachment issue herein against the property of the defendants] order issue to the sheriff of the county of (Neiu York), directing Tn'm to arrest the said defendants, or any of them, and hold them to bail. 204 Arrest. Ground: Removal Of Goods. !No previous application has been made for the same to any other judge or court. {HERMAN L. KALTENBACK.) Sworn to before me, this (31sO day of {December, 1903). {OSCAR K. BROWNE), l^otary Public, {New York) Coimty, No. (64). FORM No. 15. Affidavit in Support of Same. {CITY COURT OF THE CITY OF NEW YORK.) {ANDREW OLWELL and HER- MAN L. KALTENBACK,) Plaintiffs, against {HARRY N. BR0N80N, GEORGE E. SEC OUR and JOHN S. POPE,) Defendants. STATE OF IfEW YORK, County of {New York), {ANDREW OLWELL), being duly sworn, deposes and says: He is one of the firm of {Marshall, Olwell & Co.), the plaintiffs in this action, and the defendants as co-partners are indebted to the plaintiffs in the sum of ($1,399.34) over and above all counter- claims and set-off known to deponent, which sum is for goods sold and delivered to the defendants. That on the {30th) day of {December, 190'3), he was present when {Mr. Bronson) came into the office ai the request of {Mr. Kaltenbach), and he overheard the conversation had between them and the statement alleged in the affidavit of {Mr. Kaltenbach) as Abbest. 205 Ground: Fraudulent Misrepresentation. to the conversation is correct as hetween said Kaltenback and said Mr, Branson. (ANDREW OLWELL.) Sworn to before me, this ) (31sO day of {December, 1903). ) {08CAB K. BROWNE), Notary Public, i^Netff York County), No. (64). FORM No. 16. Affidavit to Obtain Order of Arrest — Ground : Fraudulent Mis- representations. NEW YORK SUPREME COURT, (New York) County. (THOMAS GUY, BURTON LAMB, amd WILLIAM LAMB, doing busi- ness O/S co-partners under the name and style of GUY, LAMB & CO.,) Plaintiffs, against (JOHN SHARPS,) Defendant. STATE OF NEW YORK, ) ^ . Ooimty of (New York) , J " BURTON LAMB, being duly sworn, says : I. I am (a member of the firm of Guy, Lamb & Co., and) one of the plaintiffs above named. For a year past I had entire charge, of said firm's department of credit and accounts and am familiar with all transactions had by said firm with (John Sharpe), the defendant, during that time. 206 Akbest. Ground: Fraudulent Misrepresentation. II. A cause of action exists in favor of the plaintiffs above named and against the defendant, {John Sharpe), for damages arising from false and fraudulent misrepresentations made by the said (Sharpe) to the plaintiffs for the purpose of inducing plain- tiffs to sell goods to defendant upon credit and with intent to cheat and defraud plaintiffs out of the purchase price of said goods, and an action is about to be brought by plaintiffs against the defendant upon said cause of action, as more fully appears by the summons and complaint hereto annexed (or an action has been brought upon said cause of action and the summons therein served on the de- fendant on the tenth day of March, 1904. Defendant has not appeared in said action and the complaint has not yet laeen served). III. The facts constituting plaintiffs' cause of action are as follows : IV. Heretofore and on or about the 5th day of January, 1904, the defendant, (John Sharpe), ordered of the plaintiffs a bill of merchandise consisting of (silks and velvets) of the value of, and for which the defendant promised and agreed to pay (eighteen hun- dred) dollars upon a term of credit of (thirty) days. For the pur- pose of inducing the plaintiffs to sell said merchandise to him said defendant, who was engaged in business as (retail dealer in dry goods, at Middletown, New York), stated and represented to the plaintiffs, among other things, that he had a stock of goods worth at least ($7,000.00,) ($1,500.00) in good and collectible accounts, and was worth over all debts and liabilities which he owed or had incurred at least the sum of ($10,000.00) based on the assets and liabilities of his business. Said defendant further stated and represented to the plaintiffs that his liabilities did not exceed $2,000.00, which was for merchandise only and that at that time he was owing no borrowed capital or money, all of which state- ments were false and made by said (John Sharpe), knowingly ani with intent to deceive and defraud the plaintiffs. V. Plaintiffs relying on said statements and believing them to be true, were induced solely by reason of said statements and repre- sentations, to sell and deliver, and did sell and deliver, to the defendant the bill of merchandise above mentioned, on or about the (10th) day of (January, 1904). No part of the sum of (eighteen hundred) dollars, which the defendant promised and agreed to pay within (thirty) days after the delivery of said goods, has been paid. Aeeest. 207 Ground: Fraudulent Misrepresentation. VL On or about {January 11, 1904), I was informed by {Henry Nason), a member of the firm of {Douglass, Nason & Co.), that said firm had sold and delivered to the defendant, {John Sharpe), prior to {January 5, 1904), the date on which the defendant made the statements and representations as above set forth, bills of merchandise amounting to ($2,500) on credit of (sixty) days, no part of which had yet been paid. An affidavit of said {Henry Nason), verified the (fifth) day of (February, 1904), is hereto annexed. VII. On January 15, 1904, I visited defendant's place of busi- ness and made an examination of the stock therein and found that more than three-fourths of said stock consisted of old goods that could not be readily marketed except at a great sacrifice. In my opinion the present value of the whole of said stock, aside from the goods purchased from (Douglass, Nason £ Co.), referred to, does not exceed (two thousand dollars). VIII. On or about (January 25, 1904), the defendant confessed judgment in the Supreme Court in favor of (Henrietta Sharpe), his wife, by a statement and confession of judgment duly verified and filed in the ofiice of the Clerk of the County of (Westchester) on that day for the sum of (four thousand) dollars. Said state- ment and confession of judgment states that the same was made for money loaned by said (Henrietta Sharpe) to the defendant at various times between (March 1, 1903), and (December 15, 1903), and that there was then due and unpaid from the defendant to said {Henrietta Sharpe) the sum of ($4,000), as by reference to said confession of judgment filed in said County Clerk's office, to which deponent begs leave to refer, and by the certified copy thereof hereto annexed will more fully appear. I therefore state to the court that the representations and state- ments made by defendant to the plaintiffs on the {5th) day of (January, 1904), were false and were knowingly and deliberately made for the purpose of defrauding plaintiffs. No previous application for an order of arrest has been made. {BURTON LAMB.) Sworn to before me, this ) (lath) day of (March, 1904). j (FRANK WOOD), N^otary Public, {N. Y.) Co. NOTICE OF CLAIM. FOEM No. 17. Notice of Intention to Sue Municipal Corporation for Personal Injury.* In the Matter of the Claim of (ALICE SMITH,) against (THE CITY OF NEW YORK.) Gentlemen : PLEASE TAKE IS^OTICE that I, (Alice Smith,) the under- signed, pursuant to the statutes in such cases made and provided, do hereby claim and demand of and from the (City of New York) the sum of ($5,000) as and for damages sustained by reason of the injury caused me on the (2Sd) day of (March, 1907), by and through the negligence of (the City of New York,) its officials, agents and servants, in (permitting that portion of the sidewalk on the west side of Eighth Avenue in the City of New York between Twenty-fifth and Twenty-sixth Streets to he in an unsafe and un- passable condition so that I, the said Alice Smith, in passing on said sidewalk on or about the said 23d day of March, 1907, fell into a deep hole or depression in the sideivalk and was thereby severely injured.) You will please further take notice that I, the imdersigned, will claim, charge and maintain that the said injury was caused with- out any negligence on my part and wholly through the negligence of (the City of New York,) its officials, agents and servants, in negligently and improperly (suffering and permitting the said sideivalk on said street or avenue to remain in a dangerous con- * This notice is applicable only to actions for personal injuries. In actions for injuries to property arising from negligence or nuisance a verified state- ment in detail of the property and its value, as well the notice of intention to commence action and the presentation of the claim for adjustment. See note, p. 209. [208] Notice Of Claim. 209 Against Municipal Corporation — Personal Injury. dition and in permitting its use while in said condition without proper safeguards or other signals or warning.) You will further take notice that, in default of the (City of New Twk) to pay me the aforesaid sum of ($5,000',) within the time limited for compliance with this demand by the said (City) in such cases made and provided, I shall commence an action against the (City of New Yorlc) on the claim for ($5,000,) for damages for said injury. Dated, (New York, April 10, 1907.) Respectfully yours, (ALICE SMITH,) Claimant, (231 West 87ih Street,) (Borough of Manhattan,) (JAMES BURR,) (City of New York.) Atty. for (Alice Smith,) Claimant, (27 Pine Street,) . 606.) FORM No. 18. Notice of Proposed Action Against Village. To the Village Clerk of the Village of (Groton:) PKEASE TAXE NOTICE that (Arnold Bailey) has a claim against the village of (Groton) for damages for personal in- juries arising upon the following facts, (here insert time, place of accident, nature and extent of injury and the cause thereof) and that an action will be begun against said village to recover the sum of $5,000. Dated, the (23rf) day of (February, 1906.) (ARNOLD BAILEY.) STATE OF NEW YORK, ) County of (Tompkins,) |®*-- (Arnold Bailey,) being duly sworn, deposes and says that he is the claimant mentioned in and who executed the foregoing no- tice of claim; that the statements of fact therein contained are true to his own knowledge. Sworn to before me, this (23d) day of (February, 1906.) (CHARLES JOHNSON,) Notary Public (Tompkins) County. See Village Law, Laws of 1897, chap. 414, §§ 322 ; 83 App. Div. 581 ; 135 N. Y. 366. Notice Of Claim. 211 To Employer — To Comptroller, New York City. FORM No. 19. Notice of Injury under Employers' Liability Act. To (The Vapo Vapor Co.:) (Name of employer.) PLEASE TAKE NOTICE, that {ARCHER BARNES,) on the (12th) day of {March, 1907,) at (stating accurately the place of injury) was injured in the following manner (state as fully as possible the cause and the extent of the injury) (and that such injury resulted in the death of said {Archer Barnes,) on the {8th) day of {March, 1907.) Dated, the {22d) day of {April; 1907.) Yours, etc., {CHARLES DAMEN,) executor. Laws of 1902, chapter 600. Grasso V. Holbrooh, 102 App. Div. 49, but see Labor Law, Laws of 1897, chapter 415. Williams v. Rohlin, 94 App. Div. 177. FORM No. 20. Notice to Comptroller of New York City on Contract Claim. To {Herman A. Metz,) Comptroller of the City of New York: PLEASE TAKE NOTICE that I, {George Busse,) the under- signed, notify you, pursuant to the statute in such cases made and provided, that I claim and demand of and from the City of New York the sum of {five thousand, s&ven hundred ($5,700) dollars, by reason and on account of (here give a particular state- ment of the facts constituting the claim.) Please further take notice that, upon default of the said city to pay to me, the undersigned, the said sum of ($5,700,) withm the time limited by the statute in such cases made and provided, I will commence an action against said city to recover said sum of ($5,700) on account thereof. Dated, {New York,) the {l(Hh) day of {April, 1907.) ^ {GEORGE BUSSE.) (JAMES GORDON,) Attorney for (Claimant,) (27 Pine Street,) " (New Yorh City.) SUMMONS. FORM No. 21. Summons. SUPREME COUET OF THE STATE OE 2TEW YOEK, {JOHN JONES,) Plaintiff, against (JOHN DOE and RICHARD ROE,) Defendants. Tri&l desired m the county of (New York). To the above-named defendants and eacli of them: YOU AEE HEEEBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear, or answer, judgment will be taken against you by default for the relief demanded in the complaint Dated (June Uh, 1904). (WILLIAM REILLY,) Plaintiff's Attorney. Office and Post-Office Address, (No. 52 William Street,) (Borough of Manhattan,) (City of New York). NOTE. If the action is one mentioned in section 420, 0. C. P., and com- plaint does not accompany summons, it is desirable that a notice be served with the summons to the effect that in de- fault of appearance judgment for a specified amount will be taien. The giving of this notice expedites the entry of judg- ment upon default. The following is the form of notice : " Notice is hereby given you that upon your default to appear or answer the within summons judgment^^ill be taken against you . for the suin of (one thousand (1,000) dollars), with interest from [212] Summons. 213 Indorsements. the (1st) day of {February, 1904,) together with the costs of this action." (THEODORE WILLIAM^ Plaintiff's Attorney, (No. 11 Wall Street,) (Borough of Manhattan,) (New York City.) In matrimonial actions. If the action is for an absolute divorce, there should be written upon the face of the summons the words " Action foe a Divorce." If the action is one for a separation, there should be written upon the face of the summons the words " Action fob a Seipaeation." If the action is one to annul a marriage, there should be written upon the face of the summons the words " Action to Annul a Maeeiagel" In statutory action. If the action is one to recover a penalty, and the complaint is not served with the summons, a general reference to the statute must be indorsed upon the copy of the summons delivered to the defendant ; such notice should be in the following form : "According to the provisions of section (1), chapter (322), of the Laws of (1895) of the State of New York, entitled ('An Act to prevent burning of soft coal in factories in the city of Brooklyn')." As to summons generally and its form, see Abbott's Practice and Forms, Volume 1, page 622, and Nichols N. Y. Practice, Volume 1, section 696 et seq. 214 Notice Op Object Op Action. Foreclosure. FORM No. 22. Notice of Object of Action with Notice of No Personal Claim - Foreclosure. NEW YOEK SUPEEME COUET, (iVew York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE,) (RICHARD ROE) and (THOMAS WILLIAMS), Defendants. To the above-named defendant, (THOMAS WILLIAMS) : Pursuant to section 423 of the Code of Civil Procedure, TAKE NOTICE, that the object of this action, in which a summons is herewith served upon you,, is to foreclose a mortgage executed by (John Doe) to (John Jones), ^ated the (IsO ^^J o^ (J'>^y> 1901), and recorded in the office of the (Register) of the county of (New York), in Liber No. (2), of (Mortgages), page (450), on the (1st) day of (Felruary, 1901), at (9:30) o'clock (A.) M., to secure the payment of the sum of (one thousand (1,000)) dollars, with interest thereon from the (1st) day of (February, 1904). ' That there is now due and owing to this plaintiff on said bond and mortgage the sum of (one thousand (1,000)) dollars, with interest thereon from the (1st) day of (February, 1904) ; that the following is a description of the mortgaged premises (here insert description of premises as contained in the complaint) ; That no personal claim is made against you or any defendant, except the defendants. (John Doe) and (Richard Roe). Dated the (12th) day of (July, 1904). (ROBERT JENSEN,) Plaintiff's Attorney, (No. 11 Wall Street,) (Borough of Manhattan^ (City of New York.) LIS PENDENS. NOTE. This notice of pendency of action should be filed with the verified complaint. Section 1670, Code Civ. Proc. This notice and the complaint may be filed before the service of the summons, in which case, within sixty days after filing, the ser- vice of the summons must be made or publication thereof begun. Section 1670, Code of Civ. Proc, and see section 1631, See also Abbott Proc. and Forms, vol. I, p. 879. FORM No. 23. Notice of Pendency of Action — Foreclosure. NEW YOKK SUPEEME COUET, {New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE) and (RICHARD ROE), •Defendants. NOTICE IS HEEEBY GIVEN, that an action has been com- menced and is pending in this court upon a complaint of the above-named plaintiff against the above-named defendants for the foreclosure of a certain mortgage bearing date the (ith) day of (January, 1904), executed by (James Thompson) and (Edward French) of the (City, County and State of New Yorh), to (William Allen) of the (City of Newburgh, Orange) County, State of (New Yorh) and which has been duly assigned to the above-named plaintiff to secure the payment of the sum of (five thousand) dollars on the (8th) day of (January, 1905), with interest at the rate of (five) per cent, per annum, which mortgage was recorded in the office of the (Register of the City and County of New Yorlc) on the (9^^) day of (January, 1904), at (11 :30) o'clock in tbe (fore) noon, in Block Series (49) of Mortgages, [215] 216 Lis Pendens. Foreclosure. Section 5, Liber 178, page 470. Indexed under Block No. (1441) on the land map of the (City of New York.) That the premises affected by the said action were, at the time of the commencement thereof, and at the time of the filing of this notice, situate in the {12th Ward of the Borough of Manhattan, City and County of New York) , in the SLate ©f New York, and are described as follows, to wit: Beginning at a point on the {south- erly) side of (23rd) street, distant (200) feet from the (south- west) corner of (Sixth avenue) ; running thence (southerly) (100) feet, thence (ivesterly) (25) feet, thence (northerly) (100) feet, and thence (easterly) (25) feet to the^ point or place of he- ginning be the said several distances and dimensions, more or less, together with the building and appurtenances thereon. Dated, New York, (May 2d, 1904). (WILLIAM EEILLY,) Plaintiff's Attorney. Office and Post-Office Address, (52 William, Street, Borough of Mamhattan,) (New York City.) The clerk of the county of (Neiv York) is directed to index this notice to the names of the defendants. ( WILLIAM- BEILLY,) Plaintiff's Attorney. FORM No. 24. Notice of Pendency of Action. SUPKEME COUET OF THE STATE OF NEW YORK, (New York) County. (JOHN J0NE8,) Plaintiff, against (JOHN DOE) and (RICHARD ROE), Defendants. NOTICE IS HEREBY GIVEN, that an action has been com- menced and is pending in this court upon a complaint of the above-named plaintiff against the above-named defendants for Lis Pendens. 21,7 General Form. That the premises affected by the said action were, at the time of the commencement thereof, and at the time of the filing of this complaint, situated in the -(12th Ward) of the (City and County of New York in the State of New York) and are described as follows, to wit : be the said several distances or dimensions, more or less, together with the building and appurtenances thereon. Dated, (New York, May 2, 1904). (WILLIAM REILLY,) Plaintiff's Attorney. Office and Post-Office Address, (52 William Street), (New York City.) The Clerk of the County of (New York) is directed to index this notice to the names of the defendants. (WILLIAM REILLY,) Plaintiff's Attorney. NOTE. The above skeleton form of lis 'pendens is given so that the practitioner having many cases where lis pendens is filed may fill in blanks to suit his peculiar needs, thus having handy a complete form as a mechanical aid for use in his office. NOTICE OF APPEARANCE. FORm No. 25. General Notice of Appearance and Demand. IfEW YORK SUPREME COURT, {New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant. PLEASE TAKE ISTOTICE, that the defendant above named (John Doe) hereby appears in the above entitled action, and that T am retained as attorney for the said defendant in this actioii^ and hereby demand that a copy of the complaint and of all other papers in this action be served on me at my office (No. 15 William street), (Borough of Manhattan, City of New Yorh). Dated (May 12, 1904). Yours, etc., (EZRA WILLIAMS), Attorney for Defendant, Office and Post Office Address, (No. 15 William Street), (Borough of Manhattan), (City of New York). (WILLIAM BE ILLY), Esq., Attorney for Plaintiff, (No. 27 Pine Street), (New York City). [218] Notice Of Appearance. 219 Special. FOEIlI No. 26. Notice of Appearance (Special). NEW YORK SUPREME COURT, (New York) County. (JOHN DOE,) Plaintiff, against (.RICHARD ROE,) Defendant. Sir: PLEASE TAKE ISTOTICE that I appear on tehalf of {Richard Boe), as ]ais counsel, for the purpose and only for the purpose of {moving to set aside the service of the summons and complaint herein upon the said Richard Roe), and that the said {Richard Roe) does not appear generally in this action. Dated {August 31, 1904). {THEODORE CEASAR), Defendant's Attorney, Office and P. O. Address, {No. 15 William Street, Borough of Manhattmi, City of New York). To {WILLIAM REILLY), Esq., Attomgy for Plaintiff, Office and P. O. Address, •'* {No. 13 Wall Street, Borough of Manhattan, City of Nm York). 220 ' Notice Of Appeabance. Foreclosure. FORM No. 27. Notice of Appearance (Foreclosure). NEW YOKK SUPEEME COUKT, ' {New York) County. {JOHN DOE,) Plaintiff, against {RICHARD ROE,) Defendant. Sir: PLEASE TAKE ISTOTICE, that the defendant {Richard Roe) appears herein; that I am retained as attorney for him herein, and hereby waive service of all papers and of notices of all pro- ceedings herein, except notice of sale and of proceedings to obtain surplus moneys. Dated {August 31, 1904). {THEODORE CEA8AR), Defendant's Attorney, Office and P. O. Address, {No. 15 William Street, Borough of Manhattan, City of New Yorh). To {WILLIAM REILLY), Esq., Attorney for Plaintiff, « Office and P. 0. Address, {No. 13 Wall Street, Borough of Manhattan, City of New York). COMPLAINTS. FORM No. 28. For Goods Sold and Delivered (Agreed Price). {CITY COURT OF THE CITY OF NEW YORK). (JOHN JONES,) Plaintiff, against {JOHN DOE,) Defendant. The plaintiff above-named, by his attorney (William, Reilly), complains of the above-named defendant, and respectfully shc^HJBto this court: FIRST: That at the (city of New York), on or about fhe (first) day of (May, 1902), the plaintiff above named, at the special instance and request of the defendant above named, and at prices agreed upon, sold and delivered to said defendant goods, •' vfares, and merchandise, amounting in the aggregate at such agreed prices to the sum of (one tliousand dollars ($1,000)). SECOND: The said sum has not been paid, nor any part thereof, although payment thereof has been duly demanded. WHEREFOEE plaintiff demands judgment against the de- fendant for the sum of (one thousand dollars ($1,000)), with interest from the (second) day of (January, 1903), ^together with the eosts and disbursements of this action. ' , (WILLIAM REILLY), 'T Plaintiff's Attorney, (27 Pine Street), (Manhattan Borough), (New York City). • (Verification.) * Iiiterest,.*tm8 from demand. 222 Complaints, Goods Sold And Delivered — Reasonable Value. FORM No. 29. For Goods Sold and Delivered (No Agreed Price). (CITY COURT OF THE CITY OF NEW YORK). (JOHN JONES,) Plaintiff, •against (JOHN DOE,) Defendant. The plaintiff above named, by his attorney (William Eeilly), complains of the above-named defendant, and respectfully shows to this court : FIRST: That at the (city of New York), on or about the (first) day of (May, 1902), the plaintiff above named, at the special instance and request of the defendant above named, sold and delivered to said defendant goods, wares and merchandise of the reasonable value of (one thousand) dollars ($1,000). SECOND: The said sum has not been paid, nor any part thereof, although payment has been duly demanded. WHEREFORE plaintiff demands judgment against the de- fendant for the sum of (one thousand) dollars ($1,000), with interest from the (first) day of (January, 1903), together with the costs and disbursements of this action. (WILLIAM REILLY), Plaintiff's Attorney, (27 Pine. Street), (Manhattan Borough), y (New York City). (Verification.) Complaints. 227 Money Had And Received. FORM No. 33. Complaint for Money Had and Received.* SUPEEME COUKT OF THE STATE OE NEW YOKK, (New York) County. (ANN SHARP,) Plaintiff, against (GEORGE ROSE,) Defendants. The plaintiff complaining of the defendant above named by (James Kent) , her attorney, shows to the Court as follows : First: That on or about (May 8, 1904), the defendant above named received and collected to and for the tise and bsnefit of the said plaintiff from (the Mutual Life Insurance Company of New York) the srfm" of (fourteen thousand) dollars ($14,000) which said sum the defendant retains, and though duly demanded refuses to pay. WHEKEEOEE the plaintiff demands judgment against the de- fendant for the sum of (fourteen thousand) dollars ($14,000), with interest from (May 8, 1904), together with the costs of this action. (JAMES KElfT), Plaintiff's Attorney, (140 'Nassau Street), (New York City). (Yerification.) ^ AS^^ • See Sharp o. Eose, 20 N. Y. Sapp. 836 ; affi'd Ct. Appeals, 139-N. T. 653. Under this form of action it is) dollars, which by the terms and conditions of said bond and mortgage became due and payable on {January first, 1902, excepting only the sum of three thousand ($3,000) dollars on account of said principal sum paid on or about July 25, 1899.) That there is now justly due and owing to the plaintiff tipon the said bond and mortgage the sum of fifteen thousand dol- lars ($15,000), with interest thereon to be computed from Decem- ber 30, 1902, at the rate of six per centum per annum. Tenth: That plaintiff is still the lawful owner and holder of said bond and mortgage. Eleventh: That the defendants (Frederick Charles Dichinson and Arthur Henry Dichinson) are infants over the age of fourteen years and reside with their mother and testamentary guardian, the defendant, (Katharine D. McKee;) that all the other defend- ants are natural persons and of full age. Twelfth: That no proceedings have been had at law or other- wise, and that no action has been brought to the knowledge or belief of the plaintiff for the recovery of the said sum secured by the said bond and mortgage or for the recovery of said mortgage debt or any part thereof. Thirteenth: That the defendants and each of them have or claim to have some interest in or lien upon the said mortgaged premises or some part thereof, which interest or lien, if any, has 248 Complaints. In Foreclosure — Long Form. accrued subsequently to the lien of the mortgage to foreclose which this action is brought. WHEEEFOEE, the plaintiff demands judgment that the de- fendants and each of them and all persons claiming under them or either or any of them subsequent to the commencement of this action, and every person whose conveyance is subsequent or subse- quently recorded, may be barred and foreclosed of all right, title, claim, lien and equity of redemption in the said mortgaged prem- ises ; that the said mortgaged premises or so much thereof as may be sufficient to raise the amount due to the plaintiff for all sums paid for insurance, taxes and assessments, and also for principal, interest and costs, and which may b© sold in parcels without material injury to the parties, may be decreed to be sold according to law, and out of all the moneys arising from the sale thereof, the plaintiff may be paid the amount due on said bond and mortgage, with interest to the time of such payment, and costs and expenses of this action so far as the amount of such moneys properly ap- plicable thereto will pay the same ; that the officer making such sale be directed to pay from the proceeds thereof all taxes, assessments and water rates, which are liens on the property sold; that a re- ceiver of the said mortgaged premises be forthwith appointed for the benefit of the plaintiff with all the powers of receivers in such actions; that the defendant, John W. McKee, may be adjudged to pay any deficiency which may remain after applying all of said moneys so applicable thereto; and that the plaintiff may have such other and further relief or both in the premises as shall be just and equitable. (WHITE & CUBTIN,) Attorneys for Plaintiff, Office and Post Office Address, {No. 140 Broadway, Borough of Manhattan. New York City.) (Verification.) Complaints. 249 In Foreclosure — Short Form. rORM No. 45. Complaint for Foreclosure of a Mortgage — Short Form. SUPEEME COUET, County of {New York). {JOHN BROWN,) Plaintiff, against {JOHN JONES,) {EDWARD JEN- KINS) and {GEORGE THOMAS^ Defendants. The plaintiff by this complaint, respectfully states to this court upon information and belief, that the defendant {John Jones) for the purpose of securing the payment to {John Brown), the plaintiff, of the sum of {ten thousand ($10,000)) dollars, with in- terest thereon on or about the {first) day of {July) , one thousand nine hundred and {one), made, executed and delivered to said (John Brown,) the plaintiff, a bond bearing date on that day, sealed with {his) seal, whereby {he) bound {himself, his) heirs, executors and administrators in the penalty of {twenty thousand) ($20,000) dollars, upon condition that the same should be void if the said defendant, {his) heirs, executors or administrators should pay to the said {John Brown, his) heirs, executors, ad- ministrators or assigns the said sum of money first above men- tioned, as follows: ($10,000 on the first day of July, 1902, and the interest thereon to be computed from July 1, 1901, at the rate of 5^ per annum, and to he paid semi-annually until the aforesaid principal sum should be paid), and as collateral security for the payment of the said indebtedness, the said defendant {John Jones) on the same day, made, executed, duly acknowledged and delivered to the said plaintiff, {John Brown), a mortgage whereby {he) granted, bar- gained, and sold to the said plaintiff {John Brown) the following described premises, with the appurtenances thereto, that is to say : {Description.) with a proviso in substance the same as the condition of the said bond, and with power and authority in case of default in the pay- 250 Complaints. In Foreclosure — Short Form. inent of the said sum of money, or any part thereof, or of the in- terest thereon to the said plaintiff, {John Brown,) or assigns, to sell the said mortgaged premises in due form of law, and out of the moneys arising from the sale thereof, to pay the said sum of money and interest, with the costs and expenses of the proceed- ings thereupon, rendering the overplus, if any, to the said mortgagor. And the plaintiff further states that the said mortgage was duly recorded in the ofScce of the {Register) of the coimty of {New YorTc), on the (2c?) day of {July), one thousand nine hun- dred and (one), in Liber (23) of Mortgages, page (60), and in- dexed under {Block No. 3355) ; And the said plaintiff further states that the said defendant ha(s) failed to comply with the condition of the said bond and mortgage, by omitting to pay the sum of {ten thousand ($10,000) dollars, which became due and payable on the {1st) day of {July), one thousand nine hundred and {two), there is now justly due to the plaintiff upon the said bond and mortgage the sum of {ten thousand) dollars and interest from the-(lsf) day of {July, 1901), and the plaintiff further states that no other action or proceeding has been had at law or otherwise, to {his) knowledge or belief, for the recovery of the said sum secured by the said bond or mortgage or any part thereof. And the plaintiff further say(s) that {he) {is) informed and believes and therefore states that the defendants, {Edward Jen- kins, and George Thomas, or some of them), have or claim to have some interest in, or lien upon, the said mortgaged premises or some part thereof, which interest or lien, if any has accrued sub- sequently to the lien of the said mortgage, The plaintiff therefore demands that the defendants and all persons claiming under {them) subsequent to the filing of a notice of the pendency of this action, in the office of the clerk of the county in which the said mortgaged premises are situated, may be barred and foreclosed of all righ4;, claim, lien and equity of re- demption in the said mortgaged premises; that the said premises may be decreed, to be sold according to law ; that the moneys aris- ing from the sale may be brought into court ; that the plaintiff may be paid the amount due on the said bond and mortgage, with in- terest to the time of such payment, tfia expenses of the sale, and the costs and expenses of this action, so far as the amount of such moneys properly applicable thereto will pay the same; and that Complaints. 251 In Replevin. the defendant {John Jones) may be adjudged to pay any defi- ciency whioli may remain, after applying all of said moneys so applicable thereto; and that the plaintiff, may have such other or further relief or both, in the premises as shall be just and equitable. {DE FOREST BEYCE,) Plaintiff's Attorney, Office and Post Office address, (35 Nassau street,) (N. Y. City.) (Manhattan.) (Verification.) FOKM No. 46. Complaint — In Replevin. SUPEEMIE COUET OF THE STATE OP NEW YOEK, County of (New York). (HOFFMAN HOUSE, NEW YORK,) Plaintiff, against (MANHATTAN STORAGE AND 'warehouse COMPANY) and MARY MARTIN, impleaded. Defendants. • Plaintiff above named, complaining of the defendants, for a complaint, herein respectfully shows to this court and alleges : I. That the plaintiff is and at all times herein mentioned was (a. domestic corporation organized and existing under and hy virtue of the laws of the State of New Yprk, and upon information and belief that the defendant, the Manhattan Storage and Ware- house Company, is and at all the times herein mentioned was a domestic corporation organized and existing under and hy virtue of the laws of the State of Neiv Yorh). 252 Complaints. In Replevin. II. That the plaintiil is and at all times herein mentioned and at the time this action was commenced was the lawful owner of a certain chattel, to wit, {an oil painting entitled "Spring") of the value of about one thousand ($1,000) dollars, and is and at all the times herein mentioned and at the time of the commence- ment of this action was entitled to the immediate possession thereof. III. On information and belief that (the husiness of the defend- ant, the Manhattan Storage and Warehouse Company, is and at all the times herein mentioned was that of a storage and warehouse keeper, and that the said chattel, the property of the plaintiff, was placed in the possession of said defendant, the Manhattan Storage and Warehouse Company, and stored with it as a. storage and warehouse keeper by one. Mary Martin, or her agents or servants), and at the time of the commencement of this action, was wrong- fully kept and retained by the defendant (the Manhattan Storage and Warehouse Company), from the plaintiff herein as an agent or bailee of (said Mary Martin) or her agents and servants and as her or their property. On information and belief that said (Mary Martin) claims to be the owner of said chattel. IV. On information and belief that on or about the (IBth) day of (January, 1902), and previous to the commencement of this action, said chattel was duly demanded from said (Manhattan Storage and Warehouse Company), but said (Manhattan Storage and Warehouse Company) refused to deliver it to the plaintiff herein. Wherefore, plaintiff demands judgment against the defendants for the possession of said chattel and adjudging that the plaintiff is the owner and entitled to the possession thereof, and for such other and further relief as to the court may seem just and proper, together with the costs of this action. (ARNOLD GREEN), Attorney for Plaintiff, Office and Post Office Address, (170 Broadway), (Borough of Manhattan), (New York City, N. Y.) (Verification.) Complaints. 253 In Replevin — Unlawful Detention. FORM No. 47. Complaint in Replevin. Unlawful Detention. SUPEEME COUKT OF THE STATE OF JSTEW YOEK, (New York') County. {BURTON BROWN,) Plaintiff, against (RICHARD RICE,) Defendant. Plaintiff above named by his attorney (Henry Rogers), com- plaining of the defendant above named, alleges : I. That at the time of the commencement of this action and on or before the (5th) day of (December, 1904), plaintiff was and still is the owner of and entitled to the immediate possession of the article mentioned in Schedule " A " hereto annexed and made a part of this complaint; that said chattels were on the (5th) day of (December, 1906), and still are of the value of (two thousand) dollars. II. That the defendant has become possessed of and wrongfully detains from the plaintiff the articles mentioned in said Schedule " A." III. That before the commencement of this action plaintiff duly de- manded of the defendant that he return said chattels to plaintiff, but he has failed and refused to do so, to plaintiff's damage in the sum of (five hundred) dollars. WHEEEFOEE plaintiff demands judgment against the defend- ant for the possession of said articles mentioned in Schedule " A " hereto annexed or for the sum of (two thousand) dollars in case possession thereof cannot be given to plaintiff ; and for the further 254 Complaints. In Replevin — Wrongful Taking. sum of {five hundred) dollars damages, together with the costs of this action. {HEN BY ROGERS), Plaintiff's Attorney, Office and Post-Office Address, (16 John Street), {New York City). (Verification.) FORM No. 48. Complaint in Replevin. Wrongful Taking. SUPBEUE OOUET OF THE STATE OF NEW YORK, {New York) County. {JOHN JONES,) Plaintiff, against {JOHN DOE,) Defendant. Plaintiff above named, by his attorney {Roiert Simpson), com- plains of the defendant above named and alleges: I. That at the time of the commencement of this action and on or before the {2d day of May, 1905), plaintiff was the owner and entitled to the immediate possession of {Certificate No. 133 of the Powhattan Mining Company for one hundred shares of the preferred stock of said Company) of the {par) value of {ten thousand) dollars ($10,000) and the actual value of about {ten thousand) dollars ($10,000) and entitled to all the dividends thereon. II. Tha;t on or about the (2^^) day of {May, 1905), at the {City of Neiv York) the defendant wrongfully took the said {stock certifi- cate) from plaintiff's possession and wrongfully detains the same Complaints. 255 In Replevin. from him to plaintiff's damage in the sum of (iwo hundred and fifty) dollars ($250). WHEREFORE, plaintiff demands judgment against the de- fendant for the possession of the said {stock certificate) or the sum of (ten thousand) dollars ($10,000) in case possession thereof cannot be given to plaintiff, and for the sum of (two hundred and fifty) dollars ($250) damages, together with the costs of this action. (ROBERT SIMPSON), Plaintiff's Attorney, (60 Wall) Street, (Borough of Manhattan), (New York City). (Verification.) FORM No. 49. Complaint in Replevin.* SUPREME COURT, County of (New York.) (JOHN MARTIN,) Plaintiff, vs. (WILLIAM LEWIS,) ' Defendant. The plaintiff above named complains of the defendant and alleges : L The plaintiff, at all times hereinafter mentioned, was and still is the lawful owner and entitled to the immediate possession * " Where the complaint, in an action brought to recover possession of chattels, alleges that the defendant 'has concealed, removed or disposed of said chattels so that they cannot be found or taken by the sheriff under the requisition issued to him herein, and with intent that the same should not be so found or taken,' and such allegation is proved upon an inquest on the defendant's default, and is incorporated in the decision, an execution against the person of the defendant may be issued in the event of the return unsatis- fied of an execution against his property, notwithstanding that no order of arrest was granted in the action." — Lehman v. Mayer, 68 App. Div. 12. 256 Complaints. In Replevin. of (37 cases of leaf tobacco known as Connecticut leaf toiacco), of which an inventory is hereto annexed, marked Schedule " A," and forming part of this complaint. II. The said chattels were on (June 2, 1896), and still are of the value of ($8,000). III. That on and prior to (June 2, 1896), plaintifF, as such owner, stored the said chattels in the warehouse of Rush & Mason in the City of ISTew York, in his own name, and there- upon negotiable warehouse receipts therefor were delivered to plaintiff. The defendant wrongfully claimed to be the owner of said chattels, instructed the said Rush & Mason to refuse a de- livery of said tobacco to plaintiff, and on said June 2, 1896, and prior to the commencement of this action, plaintiff duly demanded from said Hush & Mason a return and delivery of said chattels, and said Rush & Mason, acting under said instructions of the defendant and as his agent, refused to deliver the said chattels to plaintiff. But thereupon the defendant wrongfully detained and caused to be wrongfully detained all of the said chattels, and that he does still wrongfiilly detain the same from plaintiff. IV. Thereafter the defendant surreptitiously and without notice to plaintiff took the said chattels into his actual possession, and said defendant has. concealed, removed or disposed of said chattels so that they cannot be found, or taken by the sheriff under the requisition issued to him herein, and with intent that the same should not be so found or taken. WHEREFORE, the plaintiff demands judgment against the defendant for the delivery of all of the aforesaid chattels, together with ($2,000) damages for the wrongful detention thereof, or if the delivery of said chattels cannot be made, for the sum of ($3,000), the value of said chattels, together with the sum of ($2,000) damages for the wrongful detention thereof, besides the 00"+° and disbursements of this action. (WERNER & ENGLAND), Attorneys for Plaintiff, (31 Liberty Street), (New York City). (Verification.) SCHEDTTLE "A." An inventory of thirty-seven cases of leaf tobacco, known as the Connecticut leaf tobacco, each case being designated by a ^ Eeplevin. 257 Affidavit. number marked on the outside thereof, and having the gross weight of the contents of the case and the tare also marked on the outside thereof, and having thereon the mark " M " in a diamond, the said cases being marked by number, gross weight and tare respectively, as follows : No. of Case. Gross Weight. Tare. 516 1455 194 517 1450 196 518 1418 185 FORM No. 50. Affidavit on Replevin and Requisition.* N"EW YORK SUPEEME COURT, (New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant. STATE OF NEW YORK, , r SS County of (New York), (JOHN JONES) , being duly sworn, says that he is the plain- tiff in this action ; that he is the owner of and lawfully entitled to the immediate possession of the following chattels claimed in this action, that is to say: two automobiles, touring cars, Panhard make, 1905 model, with Limousine body, 40-horse power and com- plete equipment. That the above-named plaintiff has brought this action in this court against the defendant by the issuance of a summons, a copy whereof is hereto annexed, to recover the possession of said chattels. That said summons has not yet been served, and this affidavit is made to accompany said summons. * Foregoing form is intended for a case where the affidavit is made at the. time of issuing the summons. 17 258 Eeplevin. Affidavit — Requisition. That the said chattels are wrongfully detained from the plaintiff by {John Doe), the defendant herein. That the alleged cause of the detention thereof, according to deponent's best knowledge, in- formation and belief, is as follows : {Defendant claims a lien upon said property hy reason of work done upon other chattels of the same kind heretofore plcuced in his hands hy plaintiff and since returned hy him, alleging thai the above-mentioned chattels were delivered to him under a single continuing contract, which allegation your deponent denies.) That the said chattels have not been taken by virtue of a warrant against the plaintiff, for the collection of a tax, assessment or fine, issued in pursuance of a statute of the ^tate or of the United States, nor have same been seized by virtue of an execution or war- rant of attachment against tbe property of the 2>laintiff, or of any person from or through whom the plaintiff had derived title to said chattels since the seizure thereof, and that the actual value of said property, according to the best knowledge and belief of deponent, ii {eight thousand) dollars ($8,000). {JOHN JONES.) Sworn to before me, this 1 {Mth day of {July, 1904). J {EDWARD SMITE,) Notary Public, New Yorh County, No. 20. To {Mitchell L. Erlanger), Esq., sheriff of the Comity of {New York) : You are hereby required to replevy the chattels described in the above affidavit. Dated, (New York, July 24, 1904). {WILLIAM SIMPSON), Attorney for Plaintiff, Office and Post-Office Address, (11 Wall Street), {New York City). Eeplbvin. 259 Undertaking. FORM No. 51. Undertaking in Action to Recover Chattel. NEW YOEK SITPEEME COUET, {New York) County. (JOHN JONjaS,) Plaintiff, against {JOHN DOE,) Defendant. WHEEEAS {John Jones) , the plaintiff in this action has made an affidavit that the defendant {John Doe) wrongfully detains certain personal property in said affidavit mentioned, of the value- of {eight thousand ($8,000)) dollars, and the plaintiff claims the immediate delivery of the said personal property to him, as pro- vided for by Chapter XIV of the Code of Civil Procedure. NOW, THEEEFGEE, in consideration of the taking of said property or any part thereof by the sheriff of the County of New Yorh, by virtue of the said affidavit and the requisition thereupon indorsed, we, the undersigned {John B. Taylor), of {No. 122 West First street. Borough of Manhattan, City of New York), and Charles T. Furman), of {No. 134- Easi Fourth street, Borough of Manhattan, City of New York), and {John Jones), of No. (116 West Seventieth street. Borough of Manhattan, City of Neiu York), do hereby jointly and severally undertake and become bound to the defendant in the sum of {sixteen thousand ($16,000) dollars) for the prosecution of the action by the plaintiff, in the {New York Supreme Court); against the defendant, for the re- turn to the defendant of the said property if possession thereof is adjudged to him, or if the action abates or is discontinued before the said property is returned to the said defendant, and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. Dated {New York, July 24, 1904). {JOHN B. TAYLOR.) {CHARLES T. FURMAN.) {JOHN JONES.) 260 Replevin. Undertaking. ), IN- STATE OF NEW YOEK, County of {New York), (JOHN B. TAYLOR), one of the sureties nanaed in and sub- scribers to the foregoing undertaking, being duly sworn, says : That he is a resident and free holder in this State, and is worth the sum of (thirty-two- thousand ($32,000)) dollars over 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. (JOHN B. TAYLOR.) Signed and sworn to before me, this (24:th) day of (July), 1904. (EDWARD SMITH), Notary Public, (New York) County, No. (20). STATE OF NEW YOEK, I County of (New York), j (CHARLES T. FURMAN), one of the sureties named in and subscribers to the foregoing undertaking, being duly sworn, says: That he is a resident and free holder in this State, and is worth the sum of (thirty-two thousand ($32,000)) dollars over 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. (CHARLES T. FURMAN.) Signed and sworn to before me, this 24:th day of July, 1904. (EDWARD SMITH), Notary Public, (New York) County, No. (20). VERIFICATION. NOTE. I. Where a pleading is verified, each subsequent pleading must be verified, except (generally speaking)- (1) A demurrer. (2) General ansvyer of an infant by his guardian ad litem. (3) Answer in libel or slander. (4) Answer in divoi*ce. (5) Where party pleading can be privileged from testi- fying, as a witness (this exception, however, does not extend to a fraud on creditors nor affect the property right of others). Pleading must be verified : II. Where it is desired to enter judgment by default without application to the court. -(Under section 1213, Code.) III. Service is by publication. rV. Where it is desired to use the pleading as an affidavit. V. (Answer) to prevent inquest- ior the want of an affidavit of merits. VI. Complaint against joint-debtors in an action under section 1938, Code. [261] 262 Verification. By Party — One Of Several Parties. FORM No. 52. Verification — By Party.* STATE OF NEW YORK, ) County of {New York), ) " (JOHN JONES), being duly sworn, deposes and says: That he is the (plaintiff) herein; that he has read and.kn,ows the contents of the foregoing (complaint), and thai the same is true to hi£Swn knowledge, except as to the matters 'therein stated to be alleged upon information and beliefj^nd as to those matters he believes it to be true. ■ (JOHN JONES.) Sworn to before me, this ) (fourth) day of (June, 1904). j . (FANNIE SCHULTZ), E"otary Public, No. (30), (New York) County. FORM No. 53. Verification — By One of Several Parties. STAIE OF NEW YORK, County of (Neiu York), (JOHN JONES), being duly sworn, says, that he is one of the (plaintiffs) herein; that he has read the foregoing (complaint) and knows the contents thereof; that the same is true to his own knowledge, except as to the matters therein stated to be alleged upon informatioij and belief, and as to those matters, he believes it to be true. ^ (JOHN JONES.) Sworn, to before me, this ] (ith) day of (June, 1904). f (FANNIE SCHULTZ), Notary Public, No.. (30), (New York) County. \ There is no difference in the form of a verification, whether the pwfty aking, act as an individual or in a representative capacity, as an executor, administrator, trustee, receiver, assignee for benefit of creditors, etc. Verification. 267 By Attorney Or Agent. not made by the (plaintiff) and is made by the deponent is that the said (plaintiff) is not within the County of (New York), the county where deponent has his office. (FRANK WILSON.) Sworn to before ipe, this ) (21sO day of (June, 1907). ) (ELI SMITH), Notary Public, No. (31), (New York) County. PORM No. 60. Verification — By Attorney or Agent — Beason: Party Incapable. STATE OF NEW YOEK, ) r ss * CovnAjoi (New York,) j (JOHN JONES), being duly sworn, says: That he is one of the attorneys of the (plaintiff) in this aetion,_ and resides at (No. 121 West 11th street, in the City and County of New York) ; that he has read and knows the contents of the foregoing (complaint), and that the same is true to the knowledge of the deponent, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. Deponent further says that the grounds of his belief as to all matters therein not stated upon his knowledge are as follows : (" That he has in his possession the promissory notes mentioned in the complaint, and letters from the plaintiff, and letters from defendant acknowledging the defendant's liability thereon, amd of the notarial c'ertificate of demand amd notice of protest ■^\yen to defendant upon the non-payment of said notes at maturity.") .^ Deponent further says that the reason why this verification is m ss. : County of (New York), (VERNON YERMILYEA, being duly sworn, says: That he is the defendant herein; that this action was com- menced against deponent by the service of a summons and com- plaint on the (lUh) day of (January, 1907,) and deponent has appeared herein by (LORILLARD LEWIS,) his attorney ; that deponent's time to answer herein vnll expire on the (21st) day of (January, 1907). 272 . Secubity Fob Costs. Affidavit. Deponent further says that at the time of the commencement of this action the plaintiff was and still is a non-resident of the State of l^ew York,and has no place for the regular transaction of busi- ness in the Boroughs of Manhattan and Bronx in the city of New York, but is a resident of the State of (New Jersey) ; that the plaintiff (has a house in Moniclcdr, N. J., where he has actually lived and had his residence for the past five years, and has during said time been employed as a traveling salesman hy the Excelsior Paint Company, whose place of business is at 9Q Water street, Borough of Manhattan, New York city; that said plaintiff has paid taxes on both real and personal property in Montclair, N. J., for the past five years, and has also been a registered voter in said village,) all of "which facts as to the residence of said plaintiff more fully appear by the affidavit of (Robert Reeves), verified the (17th) day of (March, 1907,) hereto attached. (VERNON VERMILYEA.) Sworn to before me, this (17^^) day of (March, 1907.) (DELPHIN D ALTON), l^otary Public, (N. Y.) County. AFFIDAVIT OF MERITS. FORM No. 66. Affidavit of Merits, by Party. NEW YOEK SUPREME COUET, {New York) County. {JOHN JONES,) Plaintiff, against {JOHN DOE,) Defendant STATE OF NEW YOEK, County of (New York), *" **' (JOHN DOE), being duly sworn, says: That he is the defendant in the above-entitled action; that he has fullj_and fairly stated the case to (Alexander Duffield), his counsel hereinl^vho resides at No. (203 East 190th) street, in the (Borough of Manhattan, city of New York), and that he has a good and substantial defense on the merits to the action, as he is advised by his said counsel after suoh statement and verily believes to be true. {JOHN DOE.) Sworn to before me, this ) (first) day of (May, 1902). j (RICHARD ROE), Notary Public, (New York) County (No. (2)). Note. — Affidavit by one of several parties is sufficient. [273] 18 274 Affidavit Of Merits. By Counsel. FORM No. 67. Affidavit of Uerits, by Counsel. NEW YOEK SUPKEME COUKT, {New York) County. (JOHN J0NE8,) Plaintiff, against (JOHN DOE,) Defendant. STAlTE OF NEW YORK, 1 rSS * County of (New York), j " f (ALEXANDER DVFFIELD), being duly sworn, deposes and says : That he is the attorney and counsel for the above-named de- fendant (John Doe), retained to defend this action, and resides at (58 Fifth avenue, Manhattan, New York City,) and that said defendant has<_^lly and fairly stated the facts of the case to deponent, and after such statement of the case in this action made to deponent by said defendant (John Doe), deponent verily be- lieves that defendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint. That the reason that this affidavit is not made by the defendant is that the defendant is at present in (Cleveland, Ohio), and it will be impossible to obtain in time, an affidavit from him. ^ (ALEXANDER DUFFIELD.) • Sworn to before me, this "1 (first) day of (May, 1902). J (RICHARD ROE), Notary Public, (New York) County (No. (2)). EXTENSION OF TIME. FORM No. 68. Stipulation Extending Time to Plead. NEW YOEK SUPREME CGUET, (New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant It is hereby stipulated that time for the defendant to answer,* demur or to make any motion with relation to the com- plaint in this action, be and hereby is extended to and including the (15^^) day of (May, 1904) (the issue of said action to date as if no extension had been granted.)*''^' Dated (May 2nd, 1904). (WILLIAM REILLY), Attorney for Plaintiff, 15 William. Street, Manhattan, New York City. * " To demur or make any motion with relation to the com- plaint " is sometimes ommitted. ** It has been held in the Eirst Department that a provision in such a stipulation to the effect that issue is to remain as if no extension had been granted is not binding on the court, and al- though this form is commonly used, it is a risk to give an exten- sion with this condition therein, as the opposing counsel may, in violation of his stipulation, move to strike the case from the calendar, after considerable lapse of time, and thus cause great delay. Note. — When the time to plead has been extended by stipula-^, tion or order for twenty days, two days notice of the application for an order extending time must be given to adverse party. Rule 24, Gen. Prac. Rules. L275] 276 Extension Of Time. To Plead — Affidavit. FORM No. 69. Affidavit to Obtain Extension of Time to Plead. NEW YOEK SITPKEME COUET, {New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOS,\ Defendant STATE OF NEW YOEE, ) CovjoXj oi (N ew Y orlc) , \ (JOHN DOR) , being duly sworn, says : • I. That he is the defendant in the above-entitled action. II. That he has fully and fairly stated the facts in this case to (THEODORE WILLI AilS), his counsel herein, who resides at No. (22 West 4:1st street), in the {Borough of Manhattan, City of New York ) , and that he has a ^od and suib^mntial defense on the merits as he is advised by his said counsel after^ such, statement and verily believes. v III. That th^ause of action set forth in the coniplaint is for breach of contract and the relief demanded is money damages. ^ IV. That he was compelled to leave the (City of New York), in which he resides, on business immediately after the service of the summons and complaint herein upon him on tbe (1st)- day of (July, 19^4) ; that he remained absent for (eighteen (l8) days), and since his return he has not4iad sufficient time to instruct his counsel concerning his answer in this case, and that (ten (10)) days further time is necessary therefor,; that the time to answer expires on the (20^^) day of (Julij, 1904), and no extension of such time has been had or applied for. Sworn to before me, this 1 (JOHN DOE.) (19th) day of (July, 1904). J (WILLIAM TYSON), Notary Public, (New Yo.'k) County, No. (28). Extension Of Time. 277 To Plead — Affidavit. FORM No. 70. Affidavit to Obtain Extension of Time to Plead. JSfEW YOEK SUPKEME COURT, (New York) County. (JOHN J ONE 8,) Plaintiff, against ^ (JOHN DOE,) Defendant. STATE OF ISTEW YORK, County of (New York), [. (THEODORE WILLIAMS), being duly sworuj says: I am one of the attorneys for the defendant in the above-entitled action, and I reside at -No. (8 East Qith street, Borough of Man- hattan, City of New York). The defendant above-named has fully and fairly stated the facts of the case to me, and after such state- ment to me made by said defendant, I verily believe that said de- fendant has a good and substantial defense upon the merits of the cause of action set forth in/the complaint.y^The afiklavit is made by me and not by the def Aidant, because said defendant (is now in Albany, N.'Y.), and his affidavit cannot be obtained in time. This action is brought to recover the sum of ($5,000) damages for breach of contract. The complaint herein was served on the defendant on (Decem- ber 1, 1906), and defendant has appeared by (Percy & Williams), his attorneys. (Mr. John' R. Percy, who has had charge of this case and has made a special investigation of the transactions and circumstances involved for the purpose of preparing an answer, has been actually engaged in court constantly for the past five days, and. by reason of such engagements and the press of other professional matters requiring his immediate attention will he unable to prepare and serve, an answer herein before December 21, 1906, when defendants time to answer expires. The facts and' ■ circumstances out of which this case arose cover transactions and 278 Extension Of Time. To Plead — Order. correspondence of a period of several years, and no one in my, office except Mr. Percy is sufficiently familiar with them to properly prepare an answer.) Ifo extension of time to answer has been obtained herein and no previous application has been made for such extension. Deponent therefore asks that the time of the defendant (John Doe) to demur, answer or otherwise move with relation to the complaint be extended 20 days from the (21st) day of (December, 1906). ^ {THEODORE WILLIAMS.) Sworn to before me, this / (IWi) day of (December, 1906). j (ARCHER DUNN), IN'otary Public. (New York) County. FORM No. 71. Order Extending Time to Plead. ¥EW YOEK SUPEEME COUET, (New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant On the annexed affidavit of (John Doe), it is.*''- - OEDEEED, that the defendant herein have (twenty (20)) days additional time in which to answer or to otherwise plead to the complaint herein, or make such ^notion as he may be advised. Dated (July 18, 1904). " / . (WILLIAM COLFAX), J^C. MOTIONS RELATING TO PLEADINGS. NOTE. Motions to strike out irrelevant, redundant or scandalous mat- ter must be made before demurring or answering the plead- ing, and within twenty days from the service thereof. And the time to make the motion cannot be extended unless at least two days' notice of the application therefor, stating the time and place thereof, be given the adverse party. The notice of motion must specify the precise parts which are to be stricken out and it is common practice to identify the matter by referring to the paragraph and by setting forth the objectionable part together with the words immediately preceding and immediately following. Procuring an order, extending time to answer, is a waiver of the right to move to strike out irrelevant matter, unless the right to make the motion is given by the order. And an answer, served after notice of motion to strike out irrelevant matter in the com- plaint, waives the motion. Such a motion cannot be combined with a motion for a bill of particulars even in the alternative. (118 App. Div. 830.) The motion should be determined on an inspection of the pleadings. FORM No. 72. Order to Show Cause Why Matter Should Not Be Stricken Out as Irrelevant. NEW YORK SUPEEME COURT, (New York) County. {RICHARD WILSON,) Plaintiff. against (ROBERT GRANT & OTHERS,) Defendants. On the summons and complaint herein, and on the annexed affidavit of (Roiert Grant,) sworn to (February 5, 1907,) and on all the proceedings herein, it is [279] 280 Iebelbvant, Eedtjndant Oe Scandalous Matter. Order To Show Cause. OEDEEED, that the plaintiff or his attorney show cause at a Special Term of this court, to be held at (Part I thereof) at the County Court House in the County of (New York) on (February 8, 1897) at (10:30) o'clock in the forenoon of said day, or as soon thereafter as counsel can be heard, why paragraphs " 8th," "9th," "10th" and "11th") and the following allegation in paragraph (" 12th ") : ("And was also heing pressed for an accounting as executor and trustee of his father's estate as aforesaid.") of the (complaint) herein should not be stricken out as. irrele- vant, pursuant to the provisions of section 545 of the Code of Civil Procedure, why the time of the defendant (Rohert Grant) to plead to the complaint herein, shall not be extended until (five) days after the hearing and determination of this motion, and the entry of the order thereupon, and why the defendant (Robert Grant) shall not have such other and further relief in the premises as to this court shall seem just and proper, including the costs of this motion, and special and sufBcient reasons ap- pearing therefor, it is FUETHEE O'EDEEED, that service of this order and of the said affidavit of (Robert Grant,) sworn to (February 5, 1907,) on the plaintiff's attorneys before (February 6, 1907,) shall be due and sufficient service thereof. Dated, (New York, February 6, 1907.) (SAMUEL GREENE AUM,) Justice of the Supreme Court of the State of New York. Steiking Out Irrelevant Matter. 281 Affidavit. FORM No. 73. Affidavit on Motion to Strike Out Irrelevant Matter. A NEW YORK SUPEEME COURT, (New York) County. (RICHARD WILSON,) Plaintiff, vs. (ROBERT GRANT) and OTHERS, Defendants. STATE OF NEW YORK, 1 County of (New York,) ) (Robert Grant,) being sworn, says : I am one of tlie defendants in the above-entitled action and reside at (202 West 12th street, in the County of New Yorlc.) This action was commenced to (set aside certain conveyances made hy me to the defendant Rebecca Grant as fraudulent as against my creditors for an accounting and for an injunction with respect to the real estate transferred) and for other relief. The summons and complaint in this action were personally served on me on (December 28, 1906) and on the defendant (Rebecca Grant) on (January 2, 190'7.) I duly appeared herein by (Lyman A. Bolton), my attorney, on (December 31, 1906) and the defendant (Rebecca Grant) duly appeared herein by (Robert Emerson), her attorney, on (January 19, 1907). A notice of pendency of this action was filed in the office of the clerk of the county of (New York) on (December 26, 1906). My answer has not been served as yet ; neither has the answer of the defendant, (Rebecca Grant). Mj time to answer, demur or move in relation to the complaint herein, has been extended by stipula- tion to and including (February 11, 1907). The time of the de- fendant (Rebecca Grant) to answer, demur or move in relation to the complaint herein has been extended by stipulation to and in- cluding (February 11, 1907). 282 Stkiking Out Ikeelevant Matter. Affidavit. ; X, I have fully and fairly stated the case herein to {Lyman A. Bolton), my counsel herein, who resides at No. (80 East Wash- ington Square in the Borough of Manhattan, City of New York), and after making such statement as aforesaid, I am advised by my said counsel and verily believe that I have a good and substantial defense upon the merits of the cause of action alleged in the plain- tiff's complaint or to some part thereof. I am advised by my said counsel that the matters alleged in paragraphs (8th, 9lh, 10th and 11th and the following allegation in paragraph 12, " and was also heing pressed for an accounting as executor and trustee of his father's estate as aforesaid," are redundant and irrelevant and tend to confuse the issue herein and render the complaint unduly voluminous, in that {the allega- tions referred to apparently state a separate and distinct cause of action involving parties other than myself who are not made parties to this action), that they are not germane to the issue and evidence thereunder will not be admissible upon the trial, and that I will be greatly prejudiced by the allegations if the same are- permitted to remain in the complaint in that (7 cannot prop- erly protect my rights in the premises in disproving said allega- tion in an action wherein the aforesaid persons are not parties.) I, therefore, respectfully pray this court for an order striking out paragraphs {'' Sth," "2th," "10th" and "Uth" and the following allegation in paragraph 12th: "and was also ieing pressed for an accounting as executor and trustee of his father's estate as aforesaid") of the complaint herein, as irrelevant, pur- suant to the provisions of section 545 of the Code of Civil Pro- cedure. *» An order to show cause why such relief shall not be granted, returnable in less than eight and in less than five days, is neces- sary for the reason that, imless an order to show cause be granted, this motion cannot be heard and determined prior to the expiration of my time to plead to the complaint herein and I am advised by my said counsel and verily believe that it will be necessary to have such motion heard and determined before I can properly plead to the complaint herein. No extension of time to answer, demur or otherwise move in relation to the complaint herein has been granted, by stipulation or order except as hereinbefore sta^d. Striking Out Ikkelevant Matter. 283 Order. "No previous application for the annexed order to show cause has been made to this court, or to any justice thereof. {ROBERT GRANT.) Sworn to before riie, this 1 ' {5th) day of {February, 1907.) J {R. F. HODGE), ITotary Public, {New York) County. FORM No. 74. Order Strikingf out Allegations as Irrelevant. At a Special Term of the Supreme Court of the State of ISTew York, held at {Part I) thereof, at the County Court House in the County of {New York) on {March- 7, 1907.) Present ' Hon. {SAMUEL GREENBAUM,) Justice. {RICHARD WILSON",) Plaintiff, vs. {ROBERT GRANT) and OTHERS, Defendants. A motion on behalf of the defendant, {Robert Grant,) striking out as irrelevant, paragraphs "eighth/' "ninth," "tenth," and "eleventh") and the following allegation of paragraph {"twelfth," "and was also being pressed for an accounting as executor and trustee of his father's estate as aforesaid") of the complaint herein, pursuant to the provisions of section 545 of the Code of Civil Procedure, and to extend the time of the defendant {Robert Grant) to plead to the complaint herein until {five) days after the hearing and determination of the motion and the entry of the order thereupon, coming on regularly to be heard upon an order — **-show cause, 284 Striking Out Ikeelevant Mattee. Order. NOW, upon reading and filing the said order to show cause, which bears date {February 6, 1907,) together with proof of due service thereof upon the attorneys for the plaintiff, the affidavit of {Robert Grant,) sworn to {February 5, 1907,) a copy of the complaint herein, read in support of said motion, and the said motion having been duly submitted by counsel for the respective parties, and due deliberation having been had thereupon, it is. On motion of {Lyman A. Bolton,) Esq., the attorney for the defendant, {Robert Grant,) OEDERED that the said motion be and the same hereby is granted to the extent of striking out paragraph {"ninth," {" tenth " and " eleventh ") of the complaint and the words "as aforesaid" at the conclusion of paragraph {"twelfth") of the complaint ; and it is further ORDERED that paragraphs {"ninth," "tenth" and "elev- enth") of the complaint and the words {"as aforesaid") at the conclusion of paragraph (" twelfth ") be and the same hereby are stricken out as irrelevant; and it is further ORDERED that the time of the defendant {Robert Grant) to plead to the complaint herein be and the same hereby is extended until {five) days after the hearing arid determination of this motion and the entry of the order thereupon ; and it is further ORDERED that the said motion otherwise be and the same hereby is denied. Enter (8. a..) J. s. c. Striking Out Eedundant Mattek. 285 Notice Of Motion. FORM No. 75. Notice of Motion to Strike Redundant Matter in Pleading. SUPEEME COURT, {New York) County. (EDWARD TINKEB,) Plaintiff, against (EVENING STAB PUBLISHING COMPANY,) Defendant. Sir: TAKE NOTICE that on the pleadings herein and the annexed affidavit of (Paul Lawrence), verified the (Qth) day of (Novem- her, 1903), we shall move this court at a Special Term (Part I) thereof to be held in and for the County ot (New York,) at the County Court House, in the City of (New York,) on the (11th) day of (November, 1903,) at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard, for an order striking out from the defendant's answer to the complaint the following por- tions thereof as redundant and irrelevant, to wit : (Paragraph I., the vjhole thereof.) (Paragraph V., the following allegation, viz. (quote) : Together with the costs of this motion. Dated (New York, November Qth, 1903.) Yours, etc., (PAUL LAWRENCE,) Attorney for Plaintiff, (31 Nassau street,) (Borough of Manhattan,) ''New York City.) To (Clan-ence Jones,) Attorney for Defendant. 286 Steiking Out Eedundant Matteb. Affidavit. FORM No. 76. Affidavit on llilotion to Strike Out Bedundant Hatter in Pleading. SUPEEME COURT, {New York) County. —^—^ — r— — — — ~— ^ {EDWARD TINKER,) Plaintiff, against {EVENING STAR PUBLISHING COMPANY,) Defendant. f-ss. : STATE OF l^EW YORK, County of {New York,) {Paul Lawrence,) being duly sworn, deposes and says: That he is the attorney for the plaintiff herein. That this action was commenced on the (14/^) day of {July, 190'3,) by the service of the summons and complaint, and that the time for the defendant to answer was extended by an order twenty days from the {3d) day of {August, 1903.) That said answer was served on the {14,th) day of {August, 1903.) That by order the time to serve an amended answer was ex- tended twenty days from the {5th) day of {October, 1903,) and on the {2&th) day of {Ovtoher, 1903,) said amended answer was served. That no previous application has been made for this order. Sworn to before me, this (6^^) day of {November, 1903.) {H. B. BRADLEY,) Notary Public, {Kings) County. Certificate filed in {New York) County. Stbiking Out Redundant Matter, 287 Order. FORM No. 77. Order Striking Out Matter as Redundant and Irrelevant. At a Special Term of the Supreme Court, {Part I.,) held in the County Court House, in the {Borough of Manhattan;) city of {New York,) on the {M) day of {December, 1903.) Preseistt : ""'^ Hon. {JOHN PROCTOR CLARKE,) Justice. • — _^ {EDWARD TINKER,) Plaintiff, against {EVENING STAR PUBLISHING COMPANY,) Defendant. A motion having been made by plaintiff for an order to strike out paragraphs {I., V., VI., VII., and IX.) of defendant's {amended) answer herein, on the ground that the allegations therein contained are irrelevant and redundant, and the motion having duly come on to be heard before me; upon reading and filing the notice of motion and affidavit of {Paul Lawrence,) verified {November 6th, 1903,) and the pleadings herein filed in support of said motion ; and after hearing {Paul Lawrence,) Esq., counsel for {plaintiff,) in favor of the motion, and {Clarence Jones,) Esq., counsel for the defendant, in opposition thereto, and due deliberation having been had thereon ; NOW, on motion of {Paul Lawrence,) attorney for the {plain- tiff,) it is ORDERED, that paragraphs (7. and VI.,) and paragraph {V.,) in so far as it reiterates the allegations in paragraph {I.,) with the exception of the denial that the publication was mali- cious,) be and the same hereby are stricken from said {amended) answer, and that within {ten) days after the service of a copy of this order on defendant's attorney, defendant serve its amended answer in conformity with this order. Enter, (/. P. 0.) J. s. c. 288 Making Moke Definite And Certain. Answer — Notice Of Motion. FORM No. 78. Notice of Motion to Make Answer More Definite and Certain and to Strike Out. JSTEW YORK SUPREME COURT, {New York) County. (JAMES JEBONS,) Plaintiff, against (NEW YORK INSURANCE COM- PANY,) Defendant. Sirs: PLEASE TAKE ISTOTICE that upon the (amended) com- plaint and (amended) answer in tie above entitled action, and on all the proceedings heretofore had herein, we shall move this court at a Special Term, (Part I, thereof,) to ba held at the County Court House in the County of (New Yorlc,) on the (^Qth) day of (February,) at (10:30) o'clock a. m., or as soon thereafter as counsel can be heard, for an order herein requiring the defendant to make more definite and certain Vie allegations constituting the so-cal|ed ("second further and separate defense,") in the de- fendants (amended) answer, to the (amended) complaint herein, by striking therefrom the allegations contained in the para- graph in said (amended) answer numbered (III,) and for such other ^nd- further relief as to the court shall seem just and proper in the premises. Dated, (New Yorlc, February 20, 1907.) Tours, etc., (CARR & ROOME,) Attorneys for Plaintiff, Office and Post Office Address, (59 Wall street,) (Borough of Manhattan,) To (New Yorlc City.) (JAMES HOOD,) Attorney for Defendant, (46 Broadway,) (Borough of Manhattan,) (New York City.) Making Mobe Dbtinite And Certain. 289 Answer — Qrder. FORM No. 79. Order Directing Answer to be Made More Definite and Certain and Striking Out. At a Special Term (Part I,) of the Supreme Court, held in the County Court House, in the County of (New YorJc) on the (11th) day of (March, 1907.) Peesent : Hon. (SAMUEL GREENE AUM,) Justice. (JAMES JEBONS.) Plaintiff, against (NEW YORK INSURANCE COM- PANY,) Defendant. Plaintiff having moved this court at a Special Term (Part I,^ thereof, held at the County Court House, in the County of (New Yark) on the (2Qth) day of (February, 1907,) for an order herein requiring the defendant to make more definite and certain the allegations constituting the so-called (" Second, Further and Separate Defense ") in the defendant's (amended) answer to the (amended) complaint herein by striking out therefrom the allega- tions contained in the paragraph to said (amended) answer num- bered (III,) and for such other and further relief as to the court might seem just and proper, and the said motion having duly come on to be heard. And upon reading said (amended) complaint herein, verifieJ^ the (7th) day of (Decemher, 1906,) and the said (amended) answer herein verified the (ISth) day of (February, 1907,) and upon reading and filing plaintiff's notice of said motion dated the (20th) day of (February, 1907,) read in support of the motion. And after hearing (Samuel Roome,) Esq., in support of the motion, and (James Hood,) Esq., in opposition thereto, and due 4eliberation having been had, 19 290 Making Moee Definite And Certain, Answer — Order. NOW on motion of {Carr <& Booms,) Esqs., attorneys for the plaintiff, it is OEDERED that the said motion be and the same hereby is granted; and it is further OEDEEED that the defendant make more definite and cer- tain the allegations constituting the so-called (" Second, Further and Separate Defense ") in its (amended) answer to the (amended) complaint herein by striking out therefrom the allega- tions contained in the paragraph of said amended answer num- bered (///) ; and it is further OEDEEED that the defendant have leave to serve an answer to the (amended) complaint herein, amended in conformity here- with within (ten (10)) days of the service of a copy of this order, with notice of entry thereof upon the defendant's attor- neys ; and it is further OEDEEED that the service of said amended answer be with- out prejudice to the proceedings heretofore had in this action and that the date of joinder of issue herein remain as of (^- vember 9, 1904.) Enter (S. O.,) Justice Supreme Court. Making Moke Definite And Ceetain. 291 Complaint — Notice Of Motion. FORM No. 80. Notice of Motion to Make Complaint More Definite and Certain. NEW YORK SUPREME COURT, {New York) County. (AMERICAN LIFE INSURANCE) COMPANY,) Plaintiff, against (JAMES D0B80N,) Defendant. Sir: YOU WILL PLEASE TAKE JSTOTIOE that on the complaint in the above-entitled action and the affidavit of (Charles Arnold,) verified the (^Uh) day of (September, 1906,) hereto annexed, a motion will be made by the defendant at a Special Term of this court to be held in (Part I) thereof, to be held in the County Court House in the County of New York on the (1st) day of (Oc- tober, 1906,) at lO'rSO o'clock in the forenoon, or as soon there- after as counsel can be heard, for an ordepfstriking out as irrele- vant and redundant certain matters hereinafter specified, con- tained in said complaint, and requiring that said complaint be made definite and certain by amendment in the particulars here- inafter specified/ and requiring that the statement of the facts constituting the several causes of action therein alleged be sepa- rately numbered, that is to say: I. That the complaint be made more definite and certain by amendment, so that it shall describe with common certainty^ (each of the payments, etc.,) * * * and further, so that it shall appear from the complaint with common certainty (which of the alternative allegations contained in said first and second causes of actions, etc.) And further, so that it shall appear from the complaint with common certainty, I whether the said first and second causes of action are for A- B. C. D. 292 Making Mobe Definite And Certain. Complaint — Notice Of Motion. That the statement of the facts constituting each such cause of action, upon which it is sought to hold the defendant responsible, be separate and numbered. II. That the matter contained in paragraphs (36 and 38) of the complaint be stricken out as irrelevant and redundant. And you will please further take notice that the defendant will then and there move for an extension of time to answer the complaint herein after the determination of this motion and the entry and service of an order thereon. And you will please further take notice that the defendant will then and there move for such other and further relief in the premises as to the court may seem just and proper, and for the costs of said motion. Yours, etc., (COURTLAND YANDINE.) (31 Liberty Street,) Office and P. 0. Address, Attorney for Defendant, (Borough of Manhattan,) (New Yorh City.) Dated, (New Yorh, September 23, 1906.) To (Paul Allen,) Attorney for Plaintiff. Note. — This affidavit should show the condition of the cause and when defendant's time to answer will expire. DEMURRERS. NOTE. A demurrer on the grounds stated in either subdivision 1, 2, 4 or 8 of section 488 of the Code is stated in the language of the Code, but if on the grounds mentioned in subdivision 3, 5, 6 or 7, the demurrer must point out specifically the particular defect relied upon. Before Demurring Consider Whether. 1. To move to make complaint more definite or certain. 2. To move to strike out irrelevant, redundant or scandalous matter in the complaint. 3. To move to elect between pleas. 4. To move to separately state causes of action. 5. To move for security for costs. 6. To move to transfer to United States Court. FORM No. 81. Ground: That the Court has no Jurisdiction of the Person of this Defendant. NEW YOEK SUPREME COURT, (iVew York) County. (WILLIAM WBIGHT^l Plaintiff, against (THOMAS BOOKER,) Defendant. The defendant above named, by his attorney (Theodore Cwser), demurs to the complaint herein upon the ground that it appears upon the face of the complaint, That the court has no jurisdiction of the person of this de- fendant. (THEODORE GMSER), Defendant's Attorney, (15 William Street, Borough of Mmhattan), (New York City). (aS3^ 294 Demukker To Complaint. No Jurisdiction Of Subject-Matter. FORM No. 32. Grounds: That the Court Has No Jurisdiction of the Subject-matter. NEW YORK SUPREME COURT, (New Yorlc) County. (WILLIAM WRIGHT,) Plaintiff, against (THOMAS BOOKER,) Defendant The defendant above named, by his attorney (Theodore Owser), demurs to the complaint herein upon the ground that it appears upon the face of the complaint That the court has uo jurisdiction of the subject of this action. (THEODORE GMSER), Defendant's Attorney, (15 William Street, Borough of Manhattan), (New York City). FORM No. 83. Ground: That the Plaintiff has not Legal Capacity to Sue. NEW YORK SUPREME COURT, (New Yorlc) County. (WILLIAM WEIGHT,) Plaintiff, against (THOMAS BOOKER,,) Defendant The defendant above named, by his attorney (Theodore Cesser), demurs to the complaint herein upon the ground that it appears upon the face of the complaint. Demukbee To Complaint, 295 Another Action Pending. That the plaintiff has not legal capacity to sue in that (add particular defect relied upon). {THEODORE C2E8EB), Defendant's Attorney, (15 William Street, Borough of Manhattan), (New York City). FOEM No. 84. Ground : That there is Another Cause of Action Pending Between the Same Parties for the Same Cause. NEW YORK SUPREME COURT, {New York) County. (WILLIAM WRIGHT,) Plaintiff, against (THOMAS BOOKER,) Defendant The defendant above named, by his attorney (Theodore Cmser), demurs to the complaint herein upon the ground that it appears upon the face of the complaint. That there is another action pending between the same parties for the same cause. (THEODORE C^SER), Defendant's Attorney, (15 William Street, Borough of Manhattan), (New York City). 296 Demukker To Complaustt. Misjoinder Of Parties. FOE]»[ No. 85. Ground : That there is a Msjoinder of Parties Plaintiff. NEW YOKK SUPKEME COUET, {New York) County. (WILLIAM WRIGHT) and (ED- WARD EA8T0N,) Plaintiffs, against (THOMAS BOOKER,) Defendant The defendant above named, by his attorney (Theodore Cwsar), demurs to complaint herein upon the ground that it appears upon the face of the complaint that there is a misjoinder of parties plaintiff in that it appears by the complaint that the plaintiffs are not united in interest in any demand or demands alleged in said complaint to exist against the defendants ; and that it appears by said complaint that the action is brought to recover upon alleged several demands, (one in favor of the plaintiff (William Wright) and the other in favor of the plaintiff (Edward Easton), in neither of which several demands, existing in favor of each said plaintiffs, is the other plaintiff interested). (THEODORE C^SAR), Defendant's Attorney, Oifiee and P. O. Address, (No. 15 William Street), (Borough of Manhattan, City of New Yorh). Demuekbr To Complaint, 297 Defect In Parties. FORM No. 86. Ground: Defect in Parties Plaintiff or Defendant. NEW YORK SUPREME COURT, {New Yorh) County. (WILLIAM WRIGHT,) Plaintiff, against (THOMAS BOOKER,) Defendant. The defendant above named, by his attorney (Theodore Cceser), demurs to the complaint herein upon the ground that it appears upon the face of the complaint : I. That there is a defect of parties defendant in that the per- sons described in paragraph 5 of the complaint as " Other devisees therein named " are necessary defendants in the action and are not made parties. II. That there is a defect of parties plaintiff or defendant, in that the persons described in paragraph 5 of the complaint as " Other devisees therein named " are necessary parties to the action, and are not made parties. III. That there is a defect of parties defendant in that (Charles B. Pierson), as trustee under the will of (Henry Pier- son), deceased, is a necessary defendant, and is not made a party. IV. That there is a defect of parties plaintiff in that the person seized of the balance or remainder of the premises mentioned in the complaint, other than the parts alleged to be held by the plaintiff, are necessary parties plaintiff, and are not made parties plaintiff in the action. V. That there is a defect of parties defendant in the omission as a party defendant of the person who purchased at the sale alleged in the said complaint. VI. That there is a defect of parties defendant in that the plaintiff has not made (Robert Made), who is a proper and neces- sary party to the cause of action alleged in said complaint, a party defendant herein. (THEODORE CM8ER), Defendant's Attorney, (15 William Sireet, Borough of Manhattan), (New Yorh City). 298 Demxjeeeb To Complaint. Misjoinder Of Actions. FORM No. 87. Ground: That Several Causes of Action hare been Improperly United. NEW YORK SUPEEME COURT, (New York) County. (WILLIAM WBIOHT,) Plaintiff, against {THOMAS BOOKER,) Defendant. The defendant above named, by his attorney {Theodore Cesser), demurs to the complaint herein upon the ground that it appears upon the face of the complaint : That several causes of action have been improperly united, one being a claim for damages because of certain injuries to the plain- tiff's person, and the second a claim to recover real property and damages for withholding the same. That it appears upon the face of the complaint that said causes of action so united are- inconsistent, do not belong to any one of subdivisions 1 to 9 of section 484 of the Code of Civil Procedure, and did not arise out of the same transaction or transactions con- nected with the same subject of action. {THEODORE C2E8ER), Defendant's Attorney, (15 William Street, Borough of Manhattan), {New York City). Demukkee To Complaint. 299 Misjoinder Of Actions. FORM So. 88. Demurrer — Ground: Misjoinder of Causes of Action. ISTEW YOKK SUPEEME COUET, {Kings) County. (FRANK ROBINSON,) Plaintiff, against {0 LITER BANGS) and (ALEX- ANDER JOHNSON,) Defendant. The defendant (Alexander Johnson) hereby demurs to the com- plaint herein upon the ground that it appears upon the face of the complaint that causes of action have been improperly united therein, in that the action has been brought against two persons who are not severally liable upon the same written instrument, to wit : against the lessee named in the lease annexed to the com- plaint for breaches of said lease and the covenants thereof, and against the surety upon a separate instrument, viz. : a guaranty also annexed to said complaint, and in that it further appears upon the face of the complaint that the causes of action so united are inconsistent, do not belong to any one of subdivisions 1 to 9 of section 484 of the Code of Civil Procedure, do not affect all the parties to the action, did not arise out of the same transaction or transactions connected with the same subject of action. (ROGERS RIVES), Attorney for defendant (Johnson). Office and Post-Office Address, (62 Broadway, New York City). 300 Demukker To Complaint. Misjoinder Of Actions. FOKM No. 89. Demurrer — Ground : Misjoinder of Causes of Action. NEW YOEK SUPREME COURT, {Tompkins) County. {CHARLES RUDY,) Plaintiff, against {GEORGE MORE) and {LEE SMITH,) Defendants. The defendant {George More), separately and for himself, demurs to the complaint herein, and for the grounds of his demurrer states that it appears upon the face of the complaint that causes of action have been improperly united in the com- plaint, in that a cause of action for {negligence in putting upon the market a gun constructed of such defective material and in such careless manner that it was unsafe for use) has been joined with a cause of action for {a breach of a warranty that said gun was properly constructed of good and safe material in every part, and would shoot black or nitro pow- der and not become loose), and in that a cause of action in tort is improperly united with a cause of action upon contract as above specifically stated and it appears upon the face of the complaint that said causes of- action are not consistent, do not both belong to any one of subdivisions 1 to 9 inclusive of sec- tion 484, Code of Civil Procedure, and did not arise from the same transaction or transaction connected with the same subject of action, and are not connected with the same subject of action. • {THOMPSON & COFF,) Attorneys for Defendant {More), {Gayuga Bank Building), {Ithaca, N. Y.). Demurrer To Complaint. 301 Qeneral. FORM No. 90. Oround : That the Complaint Does not State Fa:ct3 Sufficient to Consti- tute a Cause of Action. NEW YOKK SUPEEME COURT, (New York) County. (WILLIAM WRIGHT,) Plaintiff, against (THOMAS BOOKER.) Defendant. The defendant above named, by his attorney (Theodore Coeser), demurs to the complaint herein upon the ground that it appears upon the face of the complaint : That the complaint does not state facts sufficient to constitute a cause of action. (THEODORE CMSER), Defendant's Attorney, (15 William Street, Borough of Manhattan), (New York City). 302 Demueker To Complaint. Several Grounds. FORM No. 91. Upon Several Grounds. SUPEEME COURT, (New York) CoTinty. (JAMES T. ROGERS,) as adminis- trator of the estate, of (CHARLES A. SMITH,) deceased. Plaintiff, against (THE NATIONAL SUPPLY COM- PANY,) of the city of New York, David Mitchell, as executor of the will of Marian Joyce, deceased, amd individually, William- 8. Lamb, Cha/rles N. Bedell, and Jean L. Bur- nett, co-partners as Lamh, Bedell & Burnett, and James F. Smith, as sur- viving partner of the firm of Joyce and Smith, ami individually. Defendants. The defendant, (the National Supply Company of the City of New York), by its attorneys (Baker, Milton & Burns) demurs to the complaint herein upon the following grounds : I. Foe a First Geound op Demueeeb. That it appears upon the face of the complaint that the i>laintiff has not legal capacity to sue because : A. The cause of action against this defendant is founded upon the contract annexed to the complaird, which was made between the defendant, David Mitchell, as executor of the lasi will and testa/merd of Marum, Joyce, deceased, cmd the defendant, James F. Smith, surviving pa/rtner of Joyce and Smith, as parties of fhe first part, with this defendant, the National Supply Company of the city of New York, party of the second part, on or about July 12, 1890, at a time when the plaintiff's testator was dead, nor was Demurber To Complaint. 303 Several Grounds. the said Charles A. Smith, deceased, nor the plaintijf herein a party to said contract. B. The action is founded upon the said contract annexed to the complaint, which was made after the dissolution of said firm' of Joyce amd Smith, hy reason of the death of the said Marian Joyce, and hy reason of the death of the sadd Charles A. Smith. The contract was made by the said James F. Smith, sole surviving partner of said firm, in the process of the collection of the assets of said firm, amd was not a contract in. which said firm as such was interested, nor was the sadd Charles A. Smith, deceased, interested in said contract during his lifetime or during the existence of said firm, and neither he nor the plaintiff, as his administrator, has any inierest therein, nor has the plaintiff as such administrator any capacity to sue thereon as against this defendant. C. // it be assumed that the cause of action is founded upon a contract or firm obligation of said firm of Joyce amd Smith, that then the plaintiff, as administrator of said Charles A. Smith, de- ceased, a deceased partner, has no capacity to sioe this defendant thereon, hut that this suit can only he brought, if at all, hy the surviving partner, Ja/mes F. Smith, and it appears upon the face of the complaint thai said surviving partner ha^ brought a suit for similar relief, and that said suit has been settled by the giving of a release, as is alleged in the complaint, and it does not appear thai said release has been set aside or cancelled. • II. Fob a Second Gbound of Demubbeb. That it appears upon the face of the complaint that there is a defect of parties plaintiff. A. If said suit is brought upon the contract annexed to the com- plaint, the parties of the first part to said contract, to wit, the said James F. Smith, as surviving partner, amd the sadd David Mitchell, as execuior of Marian Joyce, should he added as plaintiffs, and it does not appear why the said David Mitchell, as such executor, is made a party defendant herein, instead of being joined as a party plaintiff. B. If said action is founded upon a partnership obligation of said firm of Joyce and Smith, it appears that the surviving pa^-tner of said firm, the said James F. Smith, should he added as a paHy plaintiff herein. 304 Demitekek To Complaint. Several Grounds. III. Foe a Third Geound of Demueeee. Ttat it appears upon the face of the complaint that causes of action have been improperly united, for the reason that A. A suit hy the present plaintiff, as administrato'y of a, deceased partner, for an accounting of partnership matters as against the surviving partner, James F. Smith, and ois against David Mitchell, the executor of Marian Joyce, another deceased partner, is joined with, — B. A suit against this defendant, The National Supply Com- pany, and against the defervdant, Charles N. Bedell, which suit is based upon the contract annexed to the complaint, which contract was made by said surviving partner after the dissolution of saM firm, and which contract relates to the collection of the assets thereof, and which coritraict was made after the death of the said Cha/rles A. Smith, deceased. IV. Foe a Foueth Geound op Demuekee. That it appears upon the face of the complaint that the com- plaint does not state facts sufficient to constitute a cause of action. (BAKEB, MILTON & BUBNS), Attorneys for Defendant, (^National Supply Company of the City of New York), ■ 27 William Street), (New York City). DEMTJEIIERS TO ANSWERS. When the answer demands affirmative relief the form of de- murrer must follow. Section 495 of the Code. Where no affirma- tive relief is demanded, the form of demurrer is under section 494 of the Code, on the ground of insufficiency in law. (1 App. Div. 222 ; 128 N. Y. 45.) The two following forms, Nos. 92 and 93, are to be used to de- mur to either new matter by way of defense, or a counterclaim where no affirmative relief is demanded. Demurkee To Defense. 305 Insufficient In Law. rORM No. 92. Demurrer to Several Defenses — No Affirmative Relief Demanded. NEW YOEK SUPEEME COUET, {New York) County. {JOHN JONES,) Plaintiff, vs. {WILLIAM SMITH,) Defendant. The plaintiff herein separately demurs to each of the several affirmative defences contained in the answer of the defendant herein and numbered respectively {first, second and third,) upon the ground that each of same is insufficient in law upon the face thereof. {WILLIAM ARNOLD), Attorney for Defendant. Office and Post-Office Address, (149 Broadway), {New York City). FORM No. 93. Demurrer to Defense and Counterclaim — No Affirmative Relief Demanded. l^^EW YOEK SUPEEME COUET, (iVe,w York) County. {JOHN JONES,) Plaintiff, vs. {WILLIAM SMITH,) Defendant. The plaintiff herein demurrers to the first and second separate defenses and to the counterclaim contained in the answer of the 20 306 Demukber To Counterclaim. Several Grounds. defendant upon the ground that each of them is insufficient in law upon the face thereof, and that the facts stated therein do not con- stitute a defense or a counterclaim herein. (WILLIAM ARNOLD,) Attorney for Defendant. Office and Post Office Address, (149 Broadway), (New York City). FORIS No. 94. Demurrer to Counterclaim — Grounds: 1. Lack of Jurisdiction. Another Action Fending'. 3. Not of Character Specified in Section 501, Code. NEW YOEK SUPKEME COUET, (iN'ew York) County. {HOWARD BATES,) Plaintiff, vs. (MANNING E. CAMPBELL,) Defendant. Plaintiff demurs to so much of the answer herein constituting a counterclaim for the reason that it appears on the face thereof : I. That the court has not jurisdiction of the subject thereof. II. That there is another action pending between plaintiff and defendant for the same cause of action therein set forth. III. That the counterclaim is not of the character specified in section 501 of the Code of Civil' Procedure. (WILLIAM ARNOLD), Attorney for Defendant. Office and Post-Office Address, (149 Broadway), (New Yorh City). Demurrer To Counterclaim. 307 Lack Of Capacity To Eeeover. rORM No. 95. Demurrer to Counterclaim — Ground: Lack of Legal Capacity to Becover on Same. NEW YORK SUPREME COURT, (New York) County. (BUFU8 B. WALKER,) Plaintiff, vs. (EBEN PARKER,) Defendant. The plaintiff demurs to the (first) alleged counterclaim con- tained in the answer herein on the ground that it appears upon the face of said counterclaim that defendant has not legal capacity to recover on the same, in that (here specify grounds). (WILLIAM ARNOLD), Attorney for Defendant. Office and Post-Office Address, (149 Broadway), (New Yorh City). 308 Demuekee To Eeply. Insufficient In Law. FOUM No. 96. Demurrer to Eeply. E-EW YOKK SUPEEME COUKT, (New York) County. (WALTER J. SARGENT,) Plaintiff, against HJOHN MEREDITH ELLI8,) Defendant. The defendant demurs to the reply herein (or, to the first de- fense contained in the reply herein) on the ground that it is in- sufficient in law upon the face thereof. (WILLIAM ARNOLD), Attorney for Defendant. Office and Post-Office Address, (149 Broadway), (New York City). ANSWERS. Note. — It should he noted that sometimes it is wiser to default than interpose an answer. E. g. Experience has shown that this is true in some tort actions, since plaintiff cannot have judgment except by assessment of damages by a sheriff's jury, and if it is thought that a sheriff's jury would give less than a petit jury, that course should be pursued. Another instance is where an action is brought for breach of contract for services before, or almost immediately after the com- mencement of the term of service ; in this case, as damages can only be recovered down to the date of assessment of damages, it might be wiser to default in the first instance. Before Answering Consider Whether. 1. To serve demand for change of venue. 2. To move to make complaint more definite and certain. 3. To move to strike out irrelevant, redundant or scandalous matter in the complaint. 4. To move to separately state causes of action. 5. To move to elect between pleas. 5. To move for security for costs. 7. To move to transfer to United States Court. FORM No. 97. General Denial. SUPREME COURT OF THE STATE OF NEW YORK, County of {New York). {WILLIAM THOMPSON,) Plaintiff, against {FREDERICK SMITH,) Defendant. The defendant above named, by {Ezra Williams), his attorney, answering the complaint of the plaintiff herein. Denies each and every allegation in said complaint contained. [309] 310 Answer. Denial — Information And Belief. WHEREFORE, the defendant demands that the complaint of the plaintiff herein be dismissed, with the costs and disbursements of this action. (EZRA WILLIAMS), Attorney for Defendant, Office and Post Office Address, (No. 15 William Street), (New York City). STATE OF NEW YOEK,\ rSS. ' County of (New York), J (FREDERICK SMITH), being duly sworn, says that he is the defendant herein ; that he has read the foregoing answer and knows the contents thereof ; that the same is true of his own knowl- edge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters he believes it to (FREDERICK SMITH.) Sworn to before me, this 1 (1st) day of (July, 1904). J (FANNIE SCHULTZ), Notary Public, (New York) County (No. (30)). FORltl No. 98. Denial Upon Information and Belief. SUPREME COURT OF THE STATE OF NEW YORK, (New York) County. (WILLIAM THOMPSON,) Plaintiff, against (FREDERICK SMITH,) Defendant. The defendant above named, by his attorney (Ezra Williams), answering the complaint of the plaintiff herein, Upon information and belief, denies each and every allegation in said complaint contained. Answer. 311 Denial Of Knowledge Or Information. WHEREFOEE, the defendant demands that the complaint' herein be dismissed, Avjtib thr ""°iH and disbursements of this action. (EZRA WILLIAMS), Attorney for Defendant, Office and Post Office Address, (No. 15 William Street), {New York City). (Verification. ) FORM No. 99. Denial of any Knowledge or Information Sufficient to Form a Belief. SUPEEME COURT OF THE STATE OF NEW YORK. County of (New York). {WILLIAM THOMPSON,) Plaintiff, against {FREDERICK SMITH,) Defendant The defendant above named, by (Ezra Williams), his attorney, answering the complaint of the plaintiff herein, . 1. Denies that he has any knowledge or information sufficient to form a belief as to the truth of any of the allegations contained in paragraphs 1, 2, and 3 of said complaint. 2. He admits that notice was served upon this defendant by the plaintiff herein, bu^denies any knowledge or information sufficient to form a belief as to the truth of any other of the allegations con- tained in paragraph 4 of said complaint. WHEREFORE, the defendant demands that the complaint herein be dismissed, with the costs and disbursements of this action. (EZRA WILLIAMS), Attorney for Defendant, Office and Post Office Address, (No. 15 William Street), (New York City). (Verification. ) 312 Answek. Mixed iJenials And Admissions. FORM No. 100. Mixed Denials and Admissions. SUPKEME COURT OE THE STATE OF NEW YOEK, County of {New Yorh). [WILLIAM THOMPSON,) Plaintiff, /. ^ against [FREDERICK SMITH,) Defendant. The defendant above named, by (Ezra Willimns), his attorney, answering the complaint of the plaintiff herein, 1. Denies the allegations contained in paragraph 1 of said com- plaint. 2. On information and belief denies the allegations contained in paragraph 2 of said complaint. 3. Denies that he has any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 4 of said complaint. 4. Admits the allegations contained in paragraph 5 of said complaint, that notice was served upon this defendant by plaintiff herein, but denies each and every other allegation in said para- graph contained. 5. Admits the allegations contained in paragraph 6 of said complaint. 6. He denies that at {No. 621 Fifth awenwe. Borough of Mcuw- hattan, City of New York), or at any other place, and on the (3rd) day of {October, 1903), or at any other time, this defendant made the promises set forth in the complaint. 7. Denies each and every allegation in said complaint con- tained, nof hereinbefore specifically admitted or controverted. WHEEEFOEE, the defendant demands that the complaint herein be dismissed, with costs and disbursements of this action. {EZRA WILLIAMS), Attorney for Defendant, Office and Post Office Address, {No. 15 William Street), {New York City). (Verification,) \ Answer. 313 Payment. i FORM No. 101. Alleging Payment. SUPEEME COUET OF THE STATE OF NEW YOEK, Counb^f {New York). (WILLIAM THOMPSON,) Plaintiff, against {FREDERICK SMITH,) Defendant. The defendant above named, by {Ezra Williams), his attorney, answering the complaint of the plaintiff herein alleges: That before the commencement of this action, and on or about the (lOWi) day of (IfarcA/ 1906),--the defendant satisfied and diSfekarged the plainti|f's alleged claim ~by a payment to him of the full amount thereof. ' WHEEEEOEE, tij^'defendant demands that the complaint herein be dismissed, together with the costs and disbursements of this action. {EZRA WILLIAMS), '- Attorney for Defendant, Office and Post Office Address, {No. 15 William Street), {New York City). (Verification.) ^i 314 Answer. Accord And Satisfaction. FORM No. 102. Answer Alleging an Accord and Satisfaction. l^EW YOEK SUPEEME COUET, (New YorJc) County. (FRANK WILBUR,) Plaintiff, against {TROY BRASS & COPPER COM- PANY,) Defendant. The defendant for answer to the complaint in the above-entitled action for a separate defense to the plaintiff's complaint herein, alleges that subsequently to the purchase of the said gas plant and blower by the defen(^nt from the plaintiff at the sum of ($2,590), and the engine at the sum of ($200), and in or about the month of (^August, 1904), the said arrangement respecting the pur- chase of the gas plant, blower and engine was altered in or about the month of {September, 1904), by an agreement in writing, executed by the plaintiff and delivered to the defendant providing for the immediate payment by the defendant for and on account of the plaintiff of the sum of ($600), and expressly altering and abrogating the original agreement hereinbefore re- ferred to, it being understood and agreed thereby in writing that upon the immediate payment of said sum of ($600), by the de- fendant for and on account of the plaintiff, the balance due plaintiff, from defendant was to be the sum of ($545.90) ; that this defendant, on or about {September 20, 1904), in accord- ance with said agreement, paid said sum of ($600), and subse- quently and on or about {October 10, 1904), the defendant paid to the plaintiff the said balance of $545.90 in full satisfaction and discharge of the claim of the plaintiff in the complaint mentionedj and in full of all demands to that date. WHEEEFOEE, defendant demands that the complaint herein be dismissed with costs. {JOHN LARKIN), Attorney for Defendant. Office and Post-Office Address, (Verification.) (Rome, N. Y.) Answer. 315 Usury. FORM No. 103. Alleging IJsury. SUPKEME COURT OF THE STATE OF NEW YORK, County of (New York). (WILLIAM THOMPSON,) Plaintiff, against (^FREDERICK SMITH,) Defendant The defendant above named, by (Ezra Williams), his attorney, answering the complaint of the plaintiff herein, alleges: First: That the defendant gave to the plaintiff the note meoi- tioned in the complaint herein, at {New York City), in pursuance •of an agreement made at such time and place, between the plaintiff and the defendant, that the plaintiff should lend the defendant the sum of ($500.00), from the (lUh) day of {June, 1902), until the {IMh) day of {June, 1903), upon interest at the rate of {ten) per cent, {per annum). Second: That the defendant received from the plaintiff ($450.00) only, as consideration for the said note; that the plain- tiff retained ($50.00) as interest thereon, according to the afore- said agreement, to receive interest at the rate of (ifen.) per cent. {per annum). Third : That the note mentioned in the complaint was made and delivered to the plaintiff at the {Borough of Manhattan, City of New York), upon the corrupt and usurious agreement, between the defendant and the plaintiff that the defendant should pay the plaintiff, and that the plaintiff should reserve and secure to him- self, for the loan of ($500.00) for {one) year, the sum of ($50.00) ; that the same is at the rate of more than the legal rate of interest of {six) per cent, per annum, to wit, at the rate of {ten) per cent, per annum. WHEREFORE, the defendant demands that the complaint herein be dismissed, with the cosis and disbursements of this action. {EZRA WILLIAMS), Attorney for Defendant, Office and Post-Office Address, {No. 15 William Street), C Verification.) {New York City). 316 Answer. statute Uf Limitations. FOBM No. 104. Pleading Statute of Limitations. SUPEEME COURT OF THE STATE OF NEW YOEK, County of (New York). (WILLIAM THOMPSON,) Plaintiff, against (FREDERICK SMITH,) Defendant. The defendant above named, by (Ezra Williams), his attorney, answering the complaint of the plaintiff herein, alleges: That the cause of action stated in the complaint did not accrue within (six) yearsjbefore the commencement of this action, and that said action is barred by the Statute of Limitations. WHEREFOEE, the defendant demands that the complaint herein be dismissed, with costs and disbursements of this action. (EZRA WILLIAMS), Attorney for Defendant, Office and Post-Office Address, (No. 15 William Street), (New York City). (Verification.) Answer. 317 statute Of Frauds. FORM No. 105. Setting Tip Statute of Frauds. SUPREME COUET OF THE STATE OF NEW YORK, County of (New York). (WILLIAM THOMPSON,) Plaintiff, against {FREDERICK SMITE,) Defendant. The defendant above named, by {Ezra Williams), bis attorney, answering tbe complaint herein, alleges : That the alleged agreement, as set forth in the complaint, by its terms was not to be performed within the space of one year from the making thereof; That neither the said agreement nor any memorandum thereof was ever made or exists in writing, and signed or subscribed by the said defendant who is sought to be charged thereby, or by his lawful agent, and that any such alleged agreement is, therefore, as defendant is informed and believes, void as against this defend- ant, pursuant to the statute in such case made and provided. WHEREFORE, the defendant demands that the complaint herein be dismissed, together with the costs and disbursements of this action. {EZRA WILLIAMS), Attorney for Defendant, Office and Post-Office Address, {No. 15 William Street), {New Yorlc City). (Verification.) 318 Answer. statute of Frauds. FORM No. 106. Setting TJp Statute of Frauds — Sale of Goods, Value Over $50, not in Writing. SUPEEME COURT OF THE STATE OF NEW YOKK, County of (New York). (WILLIAM THOMPSON,) Plaintiff, against (FREDERICK SMITH,) Defendant, The defendant above named, by (Ezra. Williams), his attorney, answering the complaint herein, alleges : That the said alleged agreement set forth in the complaint herein, was for the sale of goods, at an agreed price of more than $50.00; That neither said agreement, nor any note or memorandum thereof, was ever made or exists in writing, and signed or sub- scribed by the said defendant, who is sought to be charged thereby, or by his lawful agent; nor did the said purchaser accept or re- ceive any part of such goods ; nor did the said buyer pay any part of the purchase money; and that any such alleged agreement is, therefore, as defendant is informed and believes, void as against this defendant pursuant to the statute in such case made and pro- vided. WHEREFOKE, the defendant demands that the complaint of the plaintiff herein be dismissed, together with the costs and dis- bursements of this action. (EZRA WILLIAMS), Attorney for Defendant, Office and Post-Office Address, (No. 15 William Street), , (New York Gity). (Verification.) Answer. 319 General Release. FORM No. 107. Answer Setting Up General Release. NEW YOEK SUPEEME COURT, New York (County). (WILLIAM THOMPSON), Plaintiff, against (FREDERICK SMITH,) Defendant. The defendant above named, by (Ezra Williams), his attorney, answering the complaint herein, alleges : That on the (8^/i) day of (February, 1907), plaintiff, for a valuable consideration, executed and delivered to the defendant a release of the defendant of and from all liability to plaintiff for any and all claims of plaintiff against defendant, including the alleged cause of action set forth in the complaint, which ex- isted at the date of the execution of said release, or which might thereafter arise against the defendant for and on account of any- thing or things done by the defendant prior to the date of exe- cution of said release. WHEREFORE, defendant demands that the complaint herein be dismissed, together with the costs and disbursements of this action. (EZRA WILLIAMS), Attorney for Defendant. Office and Post-Office Address, (No. 15 William Street), (New York City). (Verification.) AFFIDAVITS OF SERVICE. FORM No. 108. Of Summons. NEW YOKK SUPEEME COURT, {New York) County. (JOHN JONES,) , Plaintiff, against (RICHARD ROE,) Defendant. STATE OF NEW YOEK, y ss County of (New York), (WILLIAM RICH), being duly sworn, says that on the (2nd) day of (March, 1903), at (No. 17 William street. Borough of Manhattan, New York City), deponent being then more than 21 years* of age, he served the annexed summons (and notice of judgment in case of default, or notice of no personal claim, or endorsement of reference to statute) personally in this action upon (Richard Roe), the defendant herein, personally, by delivering to and leaving with said defendant a true copy thereof. Deponent further says that he knows the person so served to be the person mentioned and described in said summons as (Richard Roe), the defendant herein. (WILLIAM RICH.) Sworn to before me, this 1 (2nd) day of (March, 1903). J (RICHARD ROGERS,) Notary Public, (New York) County, No. (2). * Or if under 21 years of age, must be stated. The server must be over 18 years old. [320] Affidavit Of Service. 321 Summons And Complaint. rORM No. 109. Of Summons and Complaint. NEW YORK SUPEEME COURT, . {New York) County. {JOHN JONES,) Plaintiff, against {JOHN DOE,) Defendants. RK, ) ), }"••■ STATE OF NEW YOEK, County of {New York), {WILLIAM PARKER), being duly sworn, deposes and says: That on the {second) day of {February , 1903), at No. (243 East 2Qth street, in the Borough of Manhattan, City of New York), deponent being then over 21 years of age, he served the 'annexed summons and complaint in this action personally on {John Doe), the defendant in this action, by delivering copies of the same to such defendant and leaving the same with him. He further says, that he knew the person served as aforesaid, to be the person mentioned and described in said summons as {John Doe), the defendant in this action. {WILLIAM PARKER.) Sworn to before me, this 1 {third) day of {Felrvxwy, 1903). J {RICHARD ROE), Notary Public, {New York) County, No. (2). 21 322 Affidavit Of Seevice, Summons — Divorce. FORM No. 110. Affidavit of Service — Of Summons, Divorce. NEW YOEK SUPKEME COUET, {New York) County. {RUPERT GREEN,) PlaintifF, against {ANNA GREEN,) Defendant. STATE OF NEW YOEK, 1 County of {New York.) J—" {HENRY ESMONDE), being duly sworn, deposes and says: That he resides at (30 West 10th) street, in {ihe Borough of Manhattan, City of New York). That on the (24ft) day of {June 1905) at about (11) o'clock in the forenoon on said day, deponent being then over 21 years of age, he served a copy of the annexed summons and complaint in the above-entitled action upon {Anna Green), the defendant named herein, by delivering to, and leaving with her personally, a true copy thereof. Deponent further says that he knew the person who was served as aforesaid to be the person named and described in said summons and complaint as the defendant in this action, and that the sources of deponent's knowledge, and the grounds of his belief as to the . identity of said person so served, are that he was accompanied at the time of making such service by _{Katherine Green), who, previous to such service, stated to deponent that she well knew said {Anna Green) and had been personally acquainted with her for (10) years, as. appears by the affidavit of said Katherine Green hereto annexed. And she then and there pointed out to the depon- ent the person so served as the said {Anna Green), and stated to the deponent that she was the person mentioned and described as the defendant in the said summons and complaint. At the time of making such service deponent asked the person so sorved by him if she was {Anna Green) and she stated to deponent that she was {Anna Green) . Affidavit. Of Sesvicb. 323 Summons — On Corporation. *Deponent further says that said summons served as aforesaid , had the words " action, for a divorce " legibly written upon the face thereof. ' (HENRY E8M0NDE.) Sworn to before me, this (24i;i,^ day of (June, 1905). (ARTHUR BENSON), Notary Public, (New York) County. FORM No. 111. Of Summons on Corporation. NEW YOKK SUPREME COURT, (New York) County. (JOHN JONES,) Plaintiff, against (BROWN MANUFACTURING COMPANY,) Defendant. STATE OF NEW YORK, r SS ' County of (New York), (WILLIAM RICH), being duly sworn, says that he is a clerk in the office of (Downs & Downs), the attorneys for the plaintiff, and tharahe (lUh) day of (March, 1907), at (60 Wall street, in the Bonmgh of Manhattan, City of New York), deponent being then 19 years of age, he served the annexed summonsQand com- plaint,/ personally, on the above-named (Brown Manufacturing Company), the defendant herein, by delivering copies thereof to (William Brown, of Neiu'York City), personally, and leaving the sume with him, and that he knew said (William Brown) to be a± *Last clause not necessary wliere the complaint is served with the summons within the State. 324 Affidavit Op Service. Sununons And Complaint — On Infant. that time the president of the said (Brown Manufacturing Com- pany), and knew the corporation so served to be the company mentioned and described in the said summons as the defendant in this action. (WILLIAM BICE.) Sworn to before me, this (2nd) day of (March, 1903). (OLIVEB JOHNSON), ^Notary Public, (New Yorle) County. Note. — As to service on a foijeign corporation see Grant v. C. C. C. Co., 117 Apf. Div. 576 ; 54 Misc. 49. FORM No. 112. *; Of Summons and Complaint on Infant (under 14). /*, SUPKEME COUET, /,'■ (New Yorh) County. * (JOHN JONES,) Plaintiff, against (BICHABD BOB) and (MABY BOE,) Defendants. STATE OF NEW YOKK, County of (New York), (WILLIAM MUBCH), being duly sworn, deposes and says that he is a clerk in the offieo^of (Johnson & Miller), attorneys for the plaintiff herein, and tha^^n the (l&th) day of (February, 1907), at (No. 85 Fifth Avenue, "^Dsrough of Manhattan, City of New Yorh), deponent then being more th^xi 21 years of age, he iserved the annexed summons and complaint upon (Mary Boe), an infant under 14 years of age, by delivering the,iopy thereof to her, Affidavit Of Sebvice. 325 Papers Other Than Summons. personally, and leaving the same with her, and at the same time and place deponent delivered a copy thereof to and left the same with (Richard Roe), the father* of the said (Mary Roe), then having the care and control of the said (Mary Roe) and with whom the said (Mary Roe) was then residing; that deponent knew the defendant (Mary Roe) so served to be the person men- tioned and described in the said summons as defendant herein and the said (Richard Roe) to be the father* of the said defendant. (WILLIAM MURCH.) Sworn to before me, this (2nd) day of (March, 1903). (OLIVER JOHNSON), Notary Public, 'No. — , ISTew York (County). FORM No. 113. Of Papers (Other than Summons). NEW YOEK SUPEEME COURT, (New York) County. (JOHN JONES,) *. Plaintiff, against (JOHN DOE,) , Defendant. STATE OE NEW YOEK, ) r SS. '* County of (New York), ) (WILLIAM JONES), being duly sworn, says: That on the (12th) day of (July, 1904), at (No. 202 East 12th street. Borough of Manhattan, City of New York), he served * Or mother or guardian or, if neither was within the State, the person, indi- cating relationship, if any, then having the care and control of said Mary Roe or with whom said Mary Roe was then residing or in whose service said Mary Roe was then employed, in either case adding facts as to parents and guard- ianship showing that he had none within this State. § 426, Sub-div. 1 of the Code of Civil Procedure. 326 Affidavit Of Sebvioe. Judge's Order. the annexed notice upon (John Doe) by delivering to and leaving with him a copy thereof. (WILLIAM JONES.) Sworn to before me, this ) (12th) day of (July, 1904). ( (RICHARD ROE), Notary Public, (New Yorh) County, No. (2). FORIti: No. 114. Of Judge's Order — Exhibiting Signature. NEW YOEK SUPEEME COURT, (New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant. STATE OF NEW YOEK, ^ County of (New York), (WILLIAM RICH), being duly sworn, says that he is a clerk in the office of (Higgins & Hughes), attorneys for the plaintiff herein, and that on the (12th) day of (July, 190T), at (22 West Fortieth street. Borough of Manhattan, City of New York), deponent then being over 21 years of age, he served upon (John Doe), the (defendant), '^e annexed order (and a copy of the annexed affidavit) by delivering said copy of (said affidavit, and a copy of) said order to said (John Doe) personally, and leaving same with him, and at the same time and place exhibiting to him the annexed original order, and the signature of (Charles F. Mac- Lean), justice, thereunto subscribed. And that he knew the said Affidavit Of Service. 327 CJourt Order. {John Doe) to be the individual mentioned and described in said affidavit and order. (WILLIAM RICH.) Sworn to before me, this {l^tJi) day of {July, 1907.) {BICHABD ROE), Notary Public, {New York) County, No. (2). FOEM No. 115. Of Court Order — Leaving Copy. NEW yoke: SUPEEME GOUKT, {New York) County. {JOEN JONES,) Plaintiff, against {JOHN DOE,) Defendant. STATE OF NEW YOEK, ) County of {New York), ) {WILLIAM RICH), being duly sworn, says that he is a clerk in the office of {Higgins & Hughes), atorneys for {the plaintiff) herein, and that on the {12th) day of {July, 1907), at (22 West 4:0th street. Borough of Manhattan, City of New York), deponent then being {over twenty-one years) of age, he served upon {John Doe), the defendant, the annexed order and copy of the annexed affidavit by delivering a copy of the said affidavit and a copy of the said order to said {John Doe), personally, and leaving the same with him. At the same time deponent exhibited to him a true copy of the said order duly certified at the foot thereof by 328 Affidavit Of Sekvice. On Attorney — Oflace Closed. {Peter J. Dooling), Clerk of the County of (New York), in whose office said order had been duly entered. (Signed) (WILLIAM BICE.) Sworn to before me, this (12^/0 day of (July, 1907), (RICHARD ROE), Notary Public, (New YorTc) County, 'Eo. (2). FORM No. 116. On Attorney When His Office is Closed. NEW YOEK SUPREME COURT, (New York) County. (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant. STATE 01' NEW YORK, ) V ss * County of (New York), J ( WILLIAM RICH) , being duly sworn, says that he is a clerk in the employ of (Brown & Mills), the attorneys for the (plaintiff) herein; that on the (12th) day of (March, 1903), at (2:30) o'clock (P M.,) he served the annexed order upon (Alexande"' Dufjield), attorney for (defendant), by depositing it, inclosed in a sealed wrapper directed to him, in his office letter box, at his office, No. 8 Pine street. New York city, which is the office address given by said attorney in the last paper served by him herein, said attor- ney being absent at the time of such service, and his office closed. (WILLIAM RICH.) Sworn to before me, this 1 (12th) day of (March, 1903). J (RICHARD ROE), Notary Public, (New York) County, No. (2). Affidavit Of Service. 329 On Attorney — During Absence. FORM No. 117. On Attorney During Absence (Office Open, no Person Present). NEW YOKK SUPKEME COURT, {New York) County. {JOHN JONES,) Plaintiff, against {JOHN DOE,) Defendant. STATE OF NEW YOEK, ) ^ , County of {New York), ) {WILLIAM RICH), being duly sworn, says that he is a clerk in the employ of {Brown & Mills), the attorneys for the {plaintiff) herein ; that on the {12th) day of {March, 1903), at (2 :45) o'clock (P.) M., he served the annexed order upon {Alexander DuffieU), attorney for {defendant), by leaving it in a conspicuous place in his office {No. 8 Pine street. New York City), which is the office address given by him on the last paper heretofore served by him herein, to wit: {on a large flat top desk in the outer office), said attorney being absent at the. time of such service, and there being no person in charge of his said office at such time. {WILLIAM RICH.) Sworn to before me, this I {lUh) day of {MoA-ch, 1903). J (^RICHARD ROE), Notary Public, {New York) County, No. (2)'. 330 Affidavit Of Service. On Attorney — Person In Charge. rOEM No. 118. Upon Person in Charge. ]N'EW YOEK SUPEEME COUET, (New York) County. (JOHN JONES,) Plamti:fif, against (JOHN DOE,) Defendant. STATE OF ]SrEW YOEK, ) > ss ' County of (New York), j (WILLIAM RICH), being duly sworn, says ttat he is a clerk in the employ of (John Elwell), the attorney for the (plaintiff) herein; that on the (12th) day of (March, 1903), at (2:45) o'clock (P.) M., he served the annexed order upon (Alexander Duffleld), attorney for (defendant) by delivering a copy thereof to and leaving it with a person in charge of his office, at (No. 8 Pine street, New York City), which is the office address desig- nated by him in the preceding paper herein; said attorney being absent at the time of such service. (WILLIAM RICH.) Sworn to before me, this 1 (12iA) day of (March, 1903). J (RICHARD ROE), Notary Public, (New York) County (ITo. (2)). Affidavit Of Sbevice. 331 On Attorney — By Mail. FORM No. 119. On Attorney — By Mail. NEW YOEK SUPKEME COUET, (New York) County. (JOHN JONES,) Plaintifl, against (JOHN DOE,) Defendant. STATE OF NEW YOEK, ss ' County of (iVew York), (WILLIAM RICH), being duly sworn, says that he is a clerk in the employ of (John Freeman), the attorney for the (plaintiff) herein; that on the (12th) day of (March, 1903), at (2:45) o'clock (P.) M.., he served the annexed order upon (Alexander Duffield), attorney for (defendant), by depositing it in the general post office, New York City (or in a post office hox, at 346 Broad- way, Borough of Manhattan, City of New York, the same being one of the regular post office boxes of the New York City post office), inclosed in a securely closed post-paid wrapper addressed to said attorney at his oiEce, No. (52 William) street, (Borough of Manhattan) City of (New York,) that being the address desig- nated by him in the last paper served by him herein. (WILLIAM RICH.) Sworn to before me, this (12th) day of (March, 1903). (RICHARD ROE), Notary Public, (New York) County, No. (2). ACCOUNTS AND BILLS OF PARTICULARS. FORM No. 120. Demand for Copy of Account. * SUPKEME COUET OF THE STATE OF NEW TOEK, County of {New York). (WILLIAM THOMPSON,) Plaintiff, against (FREDERICK SMITH,) Defendant. Sir: I hereby demand that you deliver to me within (ten) days from the date of the service of this demand, a verified copy of the account referred to in the complaint in this action. Dated (Ma^ 2nd, 1904). Yours, etc., (EZRA WILLIAMS), Attorney for Defendant, Office and Post-Office Address, (No. 15 William. Street), (New York City). To (WILLIAM RE ILLY), Attorney for Plaintiff, (No. 27 Pine Street), (New York City). * See note page 334. [332] Account. 333 Items. FORM No. 121. Copy of Account. SUPEEME COUET OF THE STATE OF NEW YOKK, County of {New York). {WILLIAM THOMPSON,) Plaintiff, against {FREDERICK SMITH,) Defendant. New York, April 2, 1904. Frederick Smith, Esq., To William Thompson. Jam/. 12, 1904, cask advanced $800 « 20 " " " ^^0 Mar. 15' " " " 1,400 $2,550 STATE OF NEW YORK, ^ , County of {New York), J {HENRY RUSSELL), being duly sworn, says that he is {general business manager for William Thompson), the plaintiff herein, and is familiar with all the transactions had by said plain- ii^ tiff with the defendant above named ; that he has read the fore- going account and knows the contents thereof, and that the. matters therein stated are true to deponent's knowledge. {HENRY RUSSELL.) Sworn to before me, this {12th) day of {May, 1904). {ARTHUR DENTON), Notary Public, {New York) County. 334 BiiiL Of Pabticulaes. In What Actions. Sir: Please Take Notice^ that the above is a copy of the account referred to in the complaint in this action, and demanded by you. Dated {May 12ih, 1904). Yours, etc., (WILLIAM BE ILLY), Attorney for Plaintiff, (No. 27 Pine Street), (New York City). To (EZRA WILLIAMS), Attorney for (Defendant), NOTE. There is no provision authorizing the service of a demand for a bill of particulars except in an action upon an account. A demand therefor in any other kind of action is a nullity and may be disregarded or may even, on motion, be stricken out. It is, however, common practice to serve a demand (in actions other than on an account) before making a motion for a bill of par- ticulars, although of no legal force, as it may have a bearing upon the court's exercise of discretion as to costs (88 App. Div. 237, 47 Misc. 5). In case of a failure to serve a copy of the account pursuant to the demand it is not suiBcient to rely upon the provisions of section 531 of the Code of Civil Procedure to exclude evidence of the items of the account. An order must be obtained at Special Term, before trial, for that purpose. (Gebhart v. Parher, 120 N. Y. 83.) Some practitioners upon obtaining an order for a bill of particu- lars prefer to have it in the alternative, i. e., prescribing a penalty for non-compliance, which usually, the court will provide, shall be the exclusion of evidence upon the trial of the matters regard- ing which particulars have been demanded. Other practitioners leave the matter of the penalty for non- compliance until the happening of the event, in other words, take an order simply directing a bill of particulars. When such an order is taken, if there be a non-compliance, the attorney may move either to strike out the pleading or to exclude the evidence on the trial or for a stay of proceedings. Bill Of Paetioulaes. 335 Demand. In a case wliere tlie bill is asked for after answer the order is usually in tlie alternative. If before answer the proceeding is usually commenced by an order to show cause and provision made in the order for extension of time to plead upon proper allegations in the affidavit. Bill of Particulars Before Answer. It is dangerous practice to ask for an extension of time from the court in the moving papers for a bill of particulars before answer, since the papers in that event must contain an affidavit of merits which may prove an insurmountable obstacle (65 App. Div. 29). It has even been held that such a motion before an- swer is premature and will be denied (45 Misc. 201, 95 App. Div. 162, 104 App. Div. 20, 118 App. Div. 91). But see {Zieg- ler V. Garvin, 84 App. Div. 281). In any event a motion for a bill of particulars, or in the alternative to make more definite and certain, should not be combined (118 App. Div. 830). It is better, if possible, to obtain the extension from the court (provided your adversary makes such course necessary) only after the motion for the bill has been made. FORM No. 122. Demand for Bill of Particulars. SUFREME COUET, {New York) County. {ALFRED D. ZEE,) Plaintiff, against '{CHARLES E. GAR) and another, Defendants. Sir: YOU WILL PLEASE TAKE l^OTICE that the defendant, {Charles E. Gar), hereby demands that the plaintiff serve upon 336 BiLij, Of Pakticulabs. Demand — Ne-gligence. the undersigned a bill of particulars of the items going to make up the plaintiff's alleged ,claim {together with the names of the persona whom the plaintiff alleges he procured to purchase de- fendants' paper and goods, and the dates, and the persons to whom such sales were made), as alleged in the (third) paragraph of the plaintiff's complaint. Dated, (January 10, 1903). Yours, etc., (HOWARD THORN), Attorney for Defendant (Charles E. Gar), (41 Third Street, Ne.wburgh, N. Y.). To (SIDNEY ROSEN BLUM), Esq., Attorney for Plaintiff, (22 William) Street, (New York City). FORM No. 123. Demand for Bill of Particulars. NEW YOEK SUPEEME COTJiiT, (New YotTc) Coimty. ' —^ (WILLIAM STONE,) Plaintiff, against (MANHATTAN PRINTING COM- PANY,) Defendant Sir: PLEASE TAKE XOTICE. that I hereby demand that you serve upon me within ten day? a (verified) bill of particulars of the plaintiff's claim for damages set forth in the complaint herein, showing: 1. The hour a»J the minute o* the day. as nearly as may he sftiied, at which tite a4rts eomplmned of irere committed. Bill Of Paeticxjlaes. 337 Demand — Negligence. 2. As nearly as may be the exact location of the linotype machine hy which plaintiff; mas injured; in. what respects the said machine was unsafe and defective in construction, and in what respects the said machine was carelessly, negligently, and unshillfully operated and maintained as alleged in the third paragraph of the complaint. 3. In what respects plaintiff was seriously injured, with a state- ment of each injury complained of, its nature, location and extent, in so far as the same has not been specifically set forth in the coynplaint. 4. An itemized statement of " the great expense " to which plaintiff was put for " medical and surgical attendance, appliances and medicines," as alleged in the fourth paragraph of the com- plaint. 5.' The number of weeks during which plaintijf " was confined to his bed," as alleged in the fourth paragraph of the complaint. Dated, New York, March 14, 1905. Yours, etc., (JOHN J. MAXWELL), Attorney for (Defendant), (26 Liberty) Street, (New York City). To (CHARLES W. CLINTON), Esq., Attorney for (Plaintiff), (32 Nassau Street), (New York City). 22 'S38 Bill Of Paetictjlaks. Demand — Negligence. FORM No. 124. Demand for Bill of Particulars — Specifying Negligence. SUPEEME COUET OF THE STATE OE NEW YOEK, County of (New York). (WILLIAM THOMPSON,) Plaintiff, against (FREDERICK SMITH,) Defendant. Sir: ~ I hereby demand that you deliver to me within ten (10) days from the date of the service of this demand, a (verified) bill of particulars specifying (the train on which deceased was em-ployed when he was hilled, and the other train mentioned in the complaint herein, and in what defendant's alleged negligence in operating them consist; ivhat locomMive killed decedent; at what places the irack was un- safe; what rules and regulations were insufficient, and what ap- pliances were un'safe and in what particular; where in the town of Yonkers the said train was being operated at the time of his death; what appliances, rolling stock and equipments were unsafe, and in what particular as alleged in the complaint.) Dated, (August 11, 1904.) Yours, etc., (EZRA WILLIAMS,) Attorney for (Defendant); Ofiice and P. O. Address, (No. 15 William) Street, (Borough of Manhattan), (City of New York). To ( WILLIAM 'REILLY) , Attorney for (Plaintiff), (No. 27 Pine Street), (New York City.) Bill Of Particulaes. 339 Order To Show Cause. FORM No. 125. Before Answer — Order to Show Cause.* SUPEEME COUET, {New York) County. {ALFRED D. ZEE), Plaintiff, against {CHARLES E. GAR) and another, Defendants. Upon the summons and complaint herein and the affidavits of {Charles E. Gar) and {Howard Thorn), verified {January 24:th, 1903), let the plaintiff or his attorney show cause at a Special Term, {Part I.), of this court, appointed to be held at the County Court House in the {City of New York, Borough of Manhattan) , on the {29th) day of {Janiiary, 1903), at the opening of the court on that day, why the plaintiff should not be required to serve upon the defendant {Charles E. Gar), or his attorney, the bill of par- ticulars asked for in the affidavit of said {Thorn), and why the said defendants' time to answer should not be extended for a period of twenty days after the service of said bill of particulars. In the meantime and until the determination of said order to show cause, let all proceedings on the part of the plaintiff be stayed. Service of a copy of this order and of said affidavits on the at- torney for the plaintiff on or before {January ^lih, 1903), will be deemed sufficient. .Dated, {January 26, 1903). {H. A. GILDER3LEEVE), Justice of the Supreme Court of the State of New York. * See (Ziegler v. Garvin, 84 App. Div. 281). 340 Bill Of Pabticulaes. * Affidavit. FORM No. 126. Motion for Bill of Particulars — Before Answer — Affidavit. SUPREME COUKT, {New York) County. {ALFRED D. ZEE,) Plaintiff, against (CHABLE8 E. GAR) and another, Defendants. STATE OF NEW YOEK, [ County of {Orange), j {HOWARD THORN), being duly sworn, deposes and says that he resides at (312 Oaies avenue) in the {City of Neivhurgh), in {said county), and is the attorney for the defendant {Charles E. Garr) ; that deponent was retained as attorney for said defend- ant in this action on {January 8th, 1903) ; that the summons and complaint herein were served on the {2nd) day of {Janu- ary, 1903), and that by reason of the shortness of time remaining deponent procured an order extending the de- fendant's time to answer for a period of twenty days from {January 22, 1903), and that the defendant's time to an- swer will therefore expire on {February 12th, 1903) ; and that the said defendant's time to answer has not been ex- tended either by stipulation or by order, except as above, and that no previous application for an order extending the time to answer herein from the time when it will now expire has been made. On {January 12, 1903), deponent sent a messenger*to {New York City) and served upon {Julius Bosenfeld, Esq), plaintiff's attorney, a copy of said order and a demand for a bill of particulars, a copy of which demand is hereto annexed; that the plaintiff's time to serve such bill of particulars expired on {January 23, 1903), but that the plaintiff has failed to serve the same as required by said demand ; that the cause of action as set forth in plaintiff's complaint alleges that {the plaintiff sold for the defendants or secured for the defendants the sales of a large quantity of paper, amounting to $200,000, on which he claims a Bill Of Paeticulabs. 341 Affidavit. commission of $10,000) ; that as appears by the affidavit of the defendant (Charles E. Garr), hereto annexed, the said de- fendant is utterly ignorant of (such sales or the persons to whom such sales were made) ; that in the opinion of deponent it is necessary that said defendant and this de- ponent should be informed of (^the names of the alleged purchasers of said paper, as well as the amounts sold said purchasers, and the dates of the sales to them), in order that the defendant may properly prepare his answer herein, and that without such information, which, as appears from the affidavit of the defendant {Charles E. Garr), is entirely within the knowledge of the plaintiff, the defendant cannot properly prepare his answer herein. Deponent therefore asks, in view of the fact that the time to answer will expire on (February 13, 1903), and the regular eight days' notice cannot be given, that an order may be made herein directing the plaintiff or his attorney to show cause at a Special Term of this court on (February 9th, 1903), why an order should not be made herein directing the plaintiff to serve within ten days thereafter a bill of particulars showing (the names of the person or persons to whom the sales alleged to have heen made in the. com- plaint, and the natnes of the persons whom, the plaintiff procured to purchase and to contract with the defendants to purchase, the defendants' paper and goods, and the dates when said sales were made, or such contracts were procured) , and that the defendant's time to answer may be extended for a period of twenty days after the receipt of such bill of particulars. Deponent further says that he is the attorney of the said defend- ant, but that owing to absence of deponent from the city, the said defendant has been unable to confer with deponent in relation to this action. That from an examination of the complaint and from the correspondence in connection with the matters referred to in the complaint, and from the fact that there are parties without the State with whom deponent must confer or correspond prior to preparing' an answer in this action, it will be impossible for the deponent to prepare such answer prior to the time limited, namely, (February IBth, 1903). That, as deponent verily believes the de- fendant has a good and substantial defense upon the merits to the cause of action set forth in the complaint, or some part thereof, such belief being founded upon statements of the case in the actiort' made to deponent by the defendant (Charles E. Oarr).". 342 Bill Of Pakticulabs. Affidavit. Deponent therefore applies for an order extending the time of the defendant, {Charles E. Garr), to answer, demur or take such other action with reference to the plaintiff's complaint as may be necessary for a period of twenty days. Deponent further says that no previous application has been made for an order such as is herein applied for. {HOWARD THORN.) Sworn to before me, this 1 {2Uh) day of {February, 1903). J (F. /. WYMAN), Notary Public, {Orange) County. FORM No. 127. Motion for Bill of Particulars — Before Answer — Afidavit. SUPEEME COUET, '^ ^^^~^ {New York) County. {ALFRED D. ZEE,) Plaintiff, against {CHARLES E. GAR) and another. Defendants. STATE OP ITEW YOEK, 1 County of {Orange), ] " ' {CHARLES E. GAR), being duly sworn, deposes and says, that he resides in the {town of New Windsor), in the County of {Orange) aforesaid, and that he is one of the defendants in this action; that this action was commenced on or about the {2,3rd) day of {December, 1902), by the service of a summons and com- plaint on deponent, and that the object of the action, as appears from said complaint, is {to recover commissions for services alleged to have been rendered by the plaintiff in selling paper manufac- tured by the defendants; that {Howard Thorn), of {the City of Bill Of Pakticulaks. 343 AflSdavit. Newhurgh, N. Y.), is the general attorney of deponent, and that deponent was unable to see his said attorney until about the {8th) day of (January, 1903), by reason of said attorney's absence from (Newburgh) and deponent's absence from his place of residence; that as soon as deponent was able to have a consultation with his attorney, he had such, and after such consultation deponent was advised by said attorney that he had a good and substantial de- fense to said action or some part thereof upon the merits, and that thereupon deponent directed his said attorney to take such action as might be necessary to protect deponent's interests in said action. Deponent further says that he has read the complaint in this action and knows the contents thereof, and that he is utterly ignorant of the facts and circumstances upon which the plaintiff bases his claim in this action ; that while it is true the plaintiff did sell or secure the sale of certain paper manufactured by fhese de- fendants, yet this defendant did not ever make any such contract as is alleged in the plaintiff's complaint, and deponent has no knowledge or information of any sales made by the plaintiff whereby he earned or became entitled to demand from these de- fendants the sum of ($10,000), as alleged in the complaint; that if sales of paper were made by the plaintiff which would entitle him to demand such a sum of money, the names of the person or persons to whom said sales were made, as well as the amount of such sales and the dates of said sales are wholly within the knowledge of the plaintiff, and this defendant has no way of in- forming himself thereof. Deponent further says, that the total amount of sales made or secured by the plaintiff for or on account of these defendants will not exceed ($3,208.31), (upon which the plaintiff wotild be en- titled to receive as and for his commissions the sum of $160.43), upon account of which these defendants have paid the sum of ($50), which amount these defendants have always been ready and are still ready and willing to pay. (CHARLES E. GAE.) Sworn to before me, this "1 (Mth) day of (January, 1903)./ (W. J. WYMAN), Notary Public, (Orange) County. 344 Bill Of Particulaes. Order. FORM No. 128. Order for Bill of Particulars — Extending Time to Answer. At a Special Term of the Supreme Court, {Part I), held at the County Court House, in the (City of New York, Borough of Manhattan), on the (2d) day of (April 1903). Present: HOl^. (CHARLES H. TBUAX), Justice. (ALFRED D. ZEE,) Plaintiff, against (CHARLES E. OAR and WIN- FIELD J. GAR, doing business under the firm name and title of OAR PAPER COMPANY), Defendants. An order having been made in the above-entitled action on (January 2Qth, 1903), by Mr. Justice (Oildersleeve) , requiring the plaintiff to show cause at a Special Term of this court in (Part I.), on (January 29th, 1903), why he should not furnish the attorney for the defendant with a bill of particulars as re- quested in the affidavit of said attorney, and why the time of the defendant (Charles E. Oar) should not be extended for a period of (twenty) days after the receipt of such bill of particulars, and said motion having duly come on to be heard, Now, on reading and filing the complaint in this action, the affidavits of (Charles E. Oar) and (Howard Thorn), both verified (January 24:th, 1903), and the notice of appearance and demand served upon plaintiff's attorney, all of which were read in support (if said motion, and on reading and filing the affidavits of (Sidney h'oNcnblum), verified the (30th) day of (January, 1903), and of (Alfred D. Zee), verified (February 3rd, 1903), in opposition to Hiiid motion, and after hearing (Howard Thorn), of counsel for lli(( (IcI'diKlimt (Charles E. Oar, and Sidney Rosenhlum), Esq., of coiinHcl I'or llio phiintiff, and On iniilidii of (Howard Thorn), attorney for the defendant {('harlM I'!. Oar), Bill Of Particxjlaes. 345 Notice Of Motion — Services. OKDEHED, that the plaintiff within {ten) days after the ser- vice of a copy of this order, with notice of entry thereof, on plain- tiff's attorney, serve upon the attorney for the defendant (Charles E. Gary a bill of particulars or statement showing (the party or parties to whom said goods were sold, and also the. time tvhen the goods were sold, and also the names of the party or parties whom the plaintiff procured to purchase goods from the defendants), as alleged in the complaint. And on like motion, it is FURTHEE. ORDEEED that the time of the defendant (Charles E. Gar) to answer the plaintiff's complaint herein be, and the same is hereby, extended for a period of (twenty) days after the service on the defendants' attorney of the bill of par- ticulars herein directed to be served. Ent., C. H. T., J. S. C. FORM No. 129. Notice of Motion for Bill of Particulars — Action for Services. SUPREME COURT, (New York) County. (JOEN AIBD,) Plaintiff, against (HIGHLAND TRACTION COM- PANY,) Defendant. Sir: PLEASE TAKE NOTICE, that upon the annexed affidavit of (William Sparrow,) verified the (Uh) day of (April, 1902,) and upon the pleadings herein, we shall move this court at a Special Term, (Part I,) to be held at (the County Court House in the Borough of Manhattan, City of New York), on the (lUh) day of (April, 1902), at the opening of court on that day, or as soon 346 Bill Of Pabticulaes. Notice Of Motion — Services. thereafter as counsel can be heard, for an order directing the plain- tiff to furnish a (verified) bill of particulars of his claim, which shall more specifically set forth the following matters, with refer- ence to the allegations contained in paragraph {III) of the com- plaint herein. 1. That plaintiff state {whether said alleged employment or retainer of the plaintiff by the defendant was in writing or oral; and state the terms thereof with time, place and circumstance of Tnahing, together with the names of the officers or other persons who, it is claimed, acted for or on hehalf of defendant at the time of the alleged engagement and retainer under the terms of which the professional services referred to were rendered). 2. That plaintiff furnish an itemized statement of {the profes- sional services alleged to have heen rendered between February 1, 1900, and December, 1, 1900, upon which the charge of $10,000 as set forth in the complaint is based, which statement shall show the precise nature and character of the services therein set forth with the dates thereof). 3. That plaintiff state {the. name of the officer or officers or other persons representing the defendami at whose " special instance and request" the services alleged to have been rendered were per- formed, if such request were in writing, and stating terms, to- gether with time, place and circumstances of making), and for such other and further relief as to the court may seem just in the premises. Dated, {New York, April 6, 1902). Tours, etc., {STOW & BAXTER), Attorneys for {Defendant), (5 Nassau Street, New York City). To {John Oliver), Esq., Attorney for {Plaintiff), (31 Nassau Street), {New York City). Bill Of Pakticulaes. 347 Notice Of Motion — Negligence. FORM No. 130. NotiM of Motion^or_Bill of Particulars — Action for Personal / \.^ ' Injuries. SljJPKElJtE COUKT, {New York) County, (WILLIAM STONE,) Plaintiff, against (MANHATTAN PBINTING COM- PANY,) Defendant. Sir: PLEASE TAKE NOTICE, that upon the annexed affidavit ^ . (Daniel Boone), verifi«i- That said defendant will be unable to properly or adequately prepare for trial of the issue as to whether (any engagement or retainer was entered into between the said defendants and the Bill Of Paetictjlaes. 351 Affidavit — Services. plmntijf for annf services rendered under said retainer, or at the instance and request of said defendant), unless the particulars asked for herein in relation thereto are furnished, and unless the nature and extent of the alleged services rendered are specifically stated and the names of the officer or officers of the defendant com- pany alleged to have authorized the performance of the same, and ; . have agreed in hehalf of the defendant (company) to the pay- ment therefor are furnished. Deponent, therefore, asks that the plaintiff shall be required to furnish to the defendant the following particulars and to specify therein the follQwing matters, to wit : 1. That the plaintiff state (whether said alleged " engagement, employment and retainer " of the plaintiff by the defendant, the Highland Manufacturing Company, was in writing or oral; if in writing, attach a copy thereof; if oral, state the terms thereof, the tirne and place and the circum,stance of making, with the names of the officers or other persons who plaintiff claims acted for or in behalf of the defendant at the time of such alleged engagement or retainer, under the terms of which this alleged professional service referred to was rendered) . 2. That plaintiff furnish an itemized statement of (the profes- sional services alleged to have been rendered between March 1, 1901, and December 31, 1904, upon which said charge of sixteen thousand dollars ($16,000) is based), vrhich statement shall show the precise nature and character of the service therein set forth with the dates of the rendering thereof. 3. That the plaintiff state (the name of the officer or officers or other persons representing the defendant at whose " special in- stance and request " the services alleged to have been rendered between March 1, 1901, and December 31, 1904, were performed, and whether said request was in writing, and if oral, state the terms and time and place and circumstance of making). 4. That the plaintiff state (the name of the officer or officers or other person re •presenting the defendant, who, it is alleged, have agreed to pay the plaintiff for the professional services alleged to have been rendered between those dates). On information and belief that on the (22nd) day of (March, 1905), a demand was made upon the plaintiff's attorney for the bill of particulars specified in the demands numbered 1 to 4 of the notice of motion hereto annexed, and that plaintiff has failed 352 Bill Of Paeticulaes. Affidavit — Negligence. to comply with such demand as appears by the affidavit of (George Morgan) thereto amiexed. (WILLIAM SPARROW.) Sworn to before me, this ) (Uh) day of (April, 1905). \ (ANNA R. ^EMP)/' '•^ Notary Public, (New York) Oomily. FORH No. 132. Affidavit to Secure — Action for Personal Injuriee. SUPEEME COUET, (New Yorh) County. (WILLIAM STONE,) Plaintiff, against (THE MANHATTAN PRINTING COMPANY), Defendant STATE OF NEW YOEK, [ Countj oi (New York), \ (DANIEL BOONE) , being duly sworn, says that he is an officer of the defendant (company) herein, (The Manhattan Prirding Con^pany) , to wit : (vice-president and treasurer), and that he is ac- quainted with all the pleadings and proceedings nad in this action ; that this action is brought to recover tbe sum of (fii'e thousand dol- lars ($5,000) damages for personal injuries alleged to have been sustained bv the plaintiff throu^ the negligence of this defendant, its; asxput.*, servants and employees, on or about the (7th) day of (October, at its hitilding. No. 45 Beckman street, in the Borough of Manhattan. City of Ntw Forjt), as appears more fuDy set forth in the complaint heiem. Bill Of Pabtiotjlaes. 353 Affidavit — Negligence. That the summons and verified complaint herein were served upon the defendant on the (21st) day of (December, 1904), and issue was joined by the service of the defendant's verified (amended) answer on the (8th) day of (Fehnuiry, 1905,) which answer (admitted defendant's incorporation, and that it operated a newspap&f and job printing establishment at the time and place mentioned in the first paragraph of the complaint), and alleged that it had no knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs num.- bered (//., III., IV. and V.) of the complaint, and therefore denied the samer And for a second further defense, it alleged tipon informatii>n and belief that whatever damages and injuries were sustained by the plaintiff at the time and place mentioned in the complaint, were due to the negligence of the plaintiff and were not the result of any negligence on the part of this defendant or of its agents, servants or employees. That on the (4:th) day of (March, 1905), the defendant served upon the attorney for the plaintiff a demand for a verified bill of particulars setting forth the particulars asked for in the demand numbered (one to five), inclusive, cont5,ined in the notice of motion hereto attached; that said attorney has paid no attention to the said demands and has absolutely failed to comply with them, although the time limited for him to do so has expired. That defendant intends in good faith to defend this action. The defendant asks for a statement of (the. hour at which the accident set forth in. the complaint occurred, and also the exact location of the machine which it is alleged occasioned the injuries complained of, And for the name of the employee of this defendant in charge of said machine at the time of the accident) ; that the reason why the defendant asks for the above information is that (deponent has made a request to the foreman and employees of this defendant concerning the accident complained of, and after careful inquiry and investigation made by a representative of this defend- ant, and instituted by the deponent, the defendcmt is unable to obtain any information whatever concerning the alleged accident). Your deponent further says to the court that by reason of the fact that (defendant operates two hundred linotype machines, of the hind mentioned in the complaint, in its building, it is difficult to obtain a statement from its employees of the particular machine, amd of the circumstances involved in the accident set forth in the 23 354 , Bill Of Pabticulabs. Affidavit — Negligence. complaiintj if only the date thereof is within the knowledge of the defendant) , and that if {the exact location of the machine is given the employees in charge of the. machines in that particular section of deponent's building may be more closely examined, and the al- leged negligence of any of said employees may be discovered) . The defendant is ignorant of the nature of the injuries alleged to have been sustained by the plaintiff for the reason that {no physical exa/mination of the plaintiff has been made on behalf of the defendant, and for the further reason that the allegations in the compladnt setting forth the injuries alleged to have been sustained by the plaintiff are general and do not particularly set forth the said injuries), and defendant asks that the plaintifE be directed to give a statement of each injury complained of, its nature, location and probable extent or duration, and a statement of which of the Injuries are claimed to be permanent. That defendant is entirely ignorant of the (" great expense ") to which plaintiff was put for (" medical and surgical attendance, appliances and medicines ") as alleged in the {fourth) paragraph of the complaint, and as the allegation of such expenses constitute an allegation of special damages, deponent respectfully submit that the defendant is entitled to full particulars thereof. The defendant is ignorant of the respects in which the (linotype machine) by which plaintiff claims to have been injured was (" un- safe and defective in construction," and was " neqligently main- tained and operated,") as set forth in the {fifth) paragraph of the complaint. That deponent is informed by defendant's attorney, {Henry A. Russell), and verily believes that it is necessary for the defendant in order to enable it to properly prepare for the trial of this action, to obtain a statement of each and every fact asked for in the notice of this motion. WHEKEFOEE, the defendant asks that an order be granted directing the attorney for the plaintitf to serve upon the attorney for the defendant within ten days after the service of the same a verified bill of particulars setting forth the facts asked for in the paragraphs {one to five, inclusive^ in the notice of motion hereto attached. The defendant further asks that the ordlfr stay the plaintiff and his attorneys from any and all proceedings in this action, except to review or vacate this order, until the service of a verified bill of particulars, and in the event of the failure to sen^e the same, that Bill Of Paeticulabs. 355 Order. the plaintiff be precluded from giving upon the trial any evidence in support of the facts, statement of which is now asked, and for such other and further relief as to the court may seem proper. No previous application for the relief herein sought has been made to any court or judge. (DANIEL BOONE.) Sworn to before me, this (16th) day of (March, 1905). (ARCHER PAN GEO RN), Notary Public, (No. 18), (New York) County. FORM No. 133. Order Directing Service of Bill of Particulars. At a Special Term of the Supreme Court, (Pari I.), held in and for the County of (New York), at the County Court House, in (the Borough of Man- hattan, City of New York), on the (l%th) day of Pkiseitt: (Marc\^1^5). Hon. (HENRY A. GILDER8LEEYE), Justice. ' ( WILLIAM STONE,) Plaintiff, against (MANHATTAN PRINTING COM- PANY,) Defendant. A motion having been made by the defendant herein for an order directing the plaintiff to serve upon the defendant a verified bill of particulars, setting forth the damages alleged in the complaint, and showing in detail: (Insert particulars jlemanded.) And the same having^regularly come on to be heard, ISTow, upon reading and filing the said notice of motion, and the affidavit of (Daniel Baone), verified the (leth) day of (March, 356 Bill Of Paeticulaes. Goods Sold. 1905), in support of said motion, and upon reading and filing the affidavit of {Leonard Johnson), verified the {12th) day of (March, 1905), in opposition thereto; upon reading the pleadings and upon all the proceedings already had, ^nd upon the de- mand for a verified bill of particulars heretofore served upon the plaintiff hereii} and after hearing 'Mr. '(5a?/ar(^ H. James), of counsel for (defendant) , in support of said motion, and Mr. (Leonard Johnson), of counsel for (plaintiff), in opposition thereto, and due deliberation having been had; on motion of (Henry A. Bussell), attorney for (defendant), it is ORDERED that the said motion be, and the same hereby is, in all respects granted, except * * * (insert any modifications imposed by. the court) * * *, and it is further ORDERED that the (plaintiff) within (twerlty) (20) days after the service upon his attorney of a copy of this order serve upon the defendant a verified bill of particulars setting foi;th the facts asked for in paragraphs numbered (" two " to "five "), in- clusive, of the notice of this motion, and it is further ORDERED that if the plaintiff fail to serve said bill of par- ticulars within the time above limited, the said plaintiff and his attorney be, and they hereby are, stayed from giving any evidence upon the trial of this action in support of the facts stated in said paragraphs numbered (" two " to " five "). EnteA. ^f» A. 0. Q, J^e*-*^ /. 8. 0. , FORM No. 134. Bill of Particulars — Goods Sold. SUPREME COURT OF THE STATE OF NEW YORK, County of (New Yorh). (WILLIAM THOMPSON,) Plaintiff, against (FBEDEBICK SMITH,) Defendant Plaintiff herein by bis attorney (William Eeilly), for a bill of particulars of his complaint herein, alleges : Bill Of Particxjlaes. 357 Goods Bold. I. That the account stated as set forth in the first cause of action in said complaint, took place between defendant, and plaintiff's agent {Lester Jones), on or about tlie said (15^ft) day of {May, 1904), at which time, a bill for (cigars), sold defendant by plain- tiff prior to the said date, amounting to ($100.00) was rendered to defendant, and who thereupon paid ($25.00) on account of the same. II. That the items amounting to ($100.00), and set forth in (paragraph lY. of the second cause of action in) the complaint herein are for (cigars) sold and delivered by plaintiff to defendant on the following days, in the following amounts and agreed prices : Date. Amounts. Prices. (November 18, 1903), (1 package, 500 cigars) ^.-^ ($25 00) (December 12, 1903), (1 " " " ) ( 25 00) ( " 29,1903), (1 " " " ) (25 00) (January 12, 1904), (1 " " " ) (| 25 00) Total ($100 00) Dated (May 29^/j,1904). Tours, eta, (WILLIAM EEILLY), Attorney for Plaintiff, Office and Post Office Address, (No. 27 Pine Street), (New York City). To (EZRA WILLIAMS), Esq., Attorney for Defendant, (No. 15 Willicm, Street), (Borov^h of Manhattan), (City of New York). (Verification.) DEPOSITIONS. Where, upon a motion for a commission to examine a non- resident witness, the allegations of the moving aflBdavits concern- ing the residence of the witness and his absence from this State are upon information and belief, the sources of such information and the grounds of such belief must be stated, and the reasons given why the affidavit of a person having personal knowledge of the matter is not produced; and, if the affidavit was made by the attorney for tjie moving party, the reason must be given why such affidavit was not made by the party himself. (53 Misc. 532.) FORM No. 135. Affidavit on Application for Commission to Take Deposition on Interrogatories. SUPEEME COURT, {New York) County. (THOMAS LAWSON), Plaintiff, against (WILLIAM WILSON), Defendant. STATE OF l^EW YOEK, 1 r SS ' County of (New York), J (THEODORE TILDEN), being duly sworn, says: That he is one of the attorneys for the plaintiff herein. That this action is brought (to recover damages for personal in-- juries received by the plaintiff by reason of the -negliffenr.e of the defendant and his agents), and issue was joined herein on the (10th) day of (March, 1904), by the service of the defendant's answer to the (amended) complaint. That (William Ransom), who resides at ISTo. (758 Drexel Boulevard), in the (City of Chicago,) in the State of (Illinois), is as deponent verily believes, a necessary and material witness upon the trial of this action on the question of (the nature and extent of the injuries received by the plaintiff and the time during which [358] Deposition. 359 Affidavit. he wus confined to his ied and receiving medical and surgical treatment,) because (said Ransom luas the only physician who at- tended the plaintiff at the time he received sadd injuries, and who examined and treated him for said injuries), and without his testi- mony it will be impossible to prove (the nature and extent of said injur ies -and their permanent effect on the physical condition of the plaintiff). That, as deponent is informed and believes, the said (William Ransom) is not within the State of ISTew York, but is in (the City of Chicago,) in the State of (Illinois), and is (a practicing physi- cian in that city), and cannot therefore be produced as a witness upon the trial of this action. The sources of deponent's informa- tion and the grounds of his belief are as follows: Deponent has (corresponded with said Ransom, and has received several letters written by him, dated at 758 Drexel Boulevard, Chicago, Illinois, inclosed in envelopes post-marhed Chicago, Illinois, copies of which are hereto attached, in which letters said Ransom states that he has leased a house at 758 Drexel Boulevard in that city, where he ia engaged in the practice of medicine, and that he intends to malce his permanent residence in said city). That defendant resides at (the Hotel Majestic, in the Borough of Manhattan, City of New York), and his attorneys in this action are (Carruth & Henderson), Esqs., whose office is at (15 William street, in the Borough of Manhattan, City of New York) . No previous application for this or any similar relief, has been made. (THEODORE T-ILDEN). Sworn to before me, this 1 (17th) day of (March, 1905). J (FATRICK KEEN AN), Notary Public, (New York) County. 360 Deposition. Order For Commission. FOKM No. 136. Order for Issuance of Commission. At a Special Term, (Part I.), 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, City of New YorTc), on the (18th) day of (March, 1905). Peesewt : Hon. (LEONARD A. GIEGEBICH), Justice. (THOMAS LAW SON,) Plaintiff, against (WILLIAM WILSON,) Defendant. On reading and filing the affidavit of (Theodore Tilden), veri- fied the (17th) day of (March, 1905), and the notice of motion for a commission to take the deposition of (William Ransom) herein on written interrogatories, with proof of due and timely service of each upon the attorneys for the defendant, after hearing (Henry James), Esq., on behalf of said motion, and no one ap- pearing in opposition thereto, and after due deliberation, now, on motion of (Tilden & James), attorneys for (plaintiff), it is OEDERED that a commission issue in this action directed to (Ballard Young) of (the city of Chicago, Illinois), to examine under oath on interrogatories thereto annexed ( William Ransom of said city of Chicago), a witness on behalf of the plaintiff, and that the defendant be at liberty to join in said commiscion; and it is further ORDEEED that ten dollars costs of this motion abide the event of the action. Enter : (L. A. G.), J. S. C. Deposition. 361 Settlement Of Interrogatories — Notice. FORM No. 137. Notice of Settlement of Interrogatories.* SUPREME COUET, {New York) County. (THOMAS LAW SON,) Plaintiff, against (WILLIAM WILSON,) Defendant Sirs: PLEASE TAKE XOTICE tbat the annexed interrogatories will be presented to Hon. (Leonard A. Giegerich), a justice of this court, at his chambers, in the County Court House, in the (Borough of Manhattan, City of New York), on the (29th) day of (March, 1905), at (2 :00 P.) M., to be annexed to the commission allo-ned herein by an order of this court, made and entered on the (18th) day of (March, 1905). (New York, March 27, 1905.) Yours, etc., (TILDEN £ JAMES), Attorneys for (Plaintiff), (30 Broad) Street, (Borough of Manhattan, City of New York). To (CABRUTH & HENDERSON), Esqs., Attorneys for (Defendant), (15 William) Street, (Borough of Manhattan, City of New York). * Should be served within two days after eross-interrogatories have been served or the time to serve same has expired. 362 Deposition. Interrogatories. FORM No. 138. Form of Interrogatories. SUPKEME COUET, {New York) County. (THOMAS LAW SON,) PlaintifE, against (WILLIAM WILSON,) Defendant Interrogatories to be administered to (William Ransom), of (Chicago, Illinois), to be examined under the annexed commission on behalf of the (plaintiff) : 1. What is your name, age, occupation or profession, and place of residence ? 2. How long have you been engaged in such occupation or pro- fession ? (Add questions showing experience as a physician and surgeon) . 3. Did you (treat Thomas Lawson, the plaintiff in this action, for injuries received hy him on or about January 2, 1905 ? If so describe said injuries and said Lawson s physical condition when you were called to attend him). 4. State in a general way (how long your treatment of said Lawson continued, and in what your treatment consisted, how long he was confined to his "bed hy reason of said injuries, and what permanent injuries, if any, he received at that time. If said injuries have produced any effect that is permanent or likely to become permanent on the physical condition, of said Lawson, describe the same fully). 5. What is the reasonable value (of the services rendered by you in the treatment of said Lawson for said injuries) ? 6. Do you know of anything concerning the matters in question that may tend to the benefit and advantage of the plaintiff? If you do, state the same fully and at length, as if you had been par- ticularly interrogated concerning 1he same. (TILDEN & JAMES), Attorneys for (Plaintiff), (30 Broad) Street, (Borough of Manhattan, City of New York). Deposition. 363 Commission. The interrogatories are usually settled by an indorsement on the back initialed by the judge as follows : " The within interrogatories and cross-interrogatories are hereby allowed and ordered annexed to the commission." {J. F.) J. S. C. FORM No. 139. Commission to Take Testimony. THE PEOPLE OF THE STATE OE NEW YOEK: To (Ballard Young), Esq., (Avditorium Building} , (Chicago, Illinois) : KISTOW YE, that we, with full faith in your prudence and com- petency, have appointed you commissioner, and by these presents do authorize you to examine (William Ransom), of (the city of Chicago, State of Illinois), as witness in an action pending in the Supreme Court of the State of New York, (New YorJc) county, in which (Thomas Lawson) is plaintiff and (William Wilson) is de- fendant on the part of the (plaintiff) on oath, upon the interroga- tories annexed to this commission, and to take and certify the depo- sitions of the witness and return the same and the commission ac- cording to the directions given in or with the commission, and hereunto annexed. The commission when executed is to be returned to the clerk of the Supreme Court, of the State of New York, County of (New York), at his oiEce in (the Borough of Manhattan, City of New York). WITNESS, Honorable (Leonard A. Giegerich), one of the justices of said court, at (the City of New York), the (ISth) day of (March), one thousand nine hundred and (five). (THOMAS L. HAMILTON), Clerk. Note.— Here must follow §§ 901 and 902 of the Code of Civil Procedure containing directions for the execution of the Com- mission. Additional instructions to the Commissioner should also be appended. Printed blanks containing these directions and in- structions are always used for this purpose. EXAMINATION BEFORE TRIAL. (After Action Commenced). The affidavit should be made by the party and on personal knowledge. But, when on information and belief, state : (a) Grounds of belief. (b) Sources of information. It is yery dangerous to have affidavit made by any one but party. As to when other than party can make affidavit, see Y4r App. Div. 404, and 87 App. Div. 425. (1) Title and venue. (2) Full name of affiant (being duly sworn says) : (3) Relation to cause. (4) Residence and business address (street and number) of af- fiant. (5) Full names and residence (street and number) of all the parties to the action. (6) All appearances. (7) Full names and office and post-office addresses (street and number) of any attorney who has appeared for any party and for whom he appears. (8) That this action was commenced by service of summons and complaint on defendant personally and giving date. (9) Issue joined by service of what pleading and date of such service. Change in attorney, note of issue filed and notice of trial, and now on calendar. (10) Nature of action in great detail, and substance of judgment demanded. (11) Refer to annexation of copies of pleadings and making them part of the affidavit. (12) Nature of the defense (interposed) to action. (13) Name and residence (street and number) of the person sought to be examined. (14) Allegations showing lack of exact information which is ma- terial and necessary to prepare for trial, e. g., plaintiff is ignorant of the fact whether (Jones and Smith) acted upon instructions, but is informed and believes [364] Examination Before Teial. 365 What Affidavit Should Show. (15) That deponent expects and desires to prove the above facts in detail by the testimony of party sought to be ex- amined. (16) Tacts in detail which show what testimony is desired, and expected, that person will give. (17) That deponent further alleges that he has fully and fairly stated the case in this action, and what deponent expects to prove as aforesaid at the examination of the said (Jones,) to the said (William Buell,) who is one of the counsel for the plaintiff in this action, and who resides at (72 Fifth avenue, in the Borough of Manhattan, City of New Torlc,) and that he is advised hj said counsel after such statement, so made, and verily believes that the ex- amination of said defendant is indispen- sably material and necessary to this deponent, this plaintiff, for the prosecution of this action, and that plaintiff cannot safely proceed to trial without such ex- amination of said defendant ....... (18) Facts to show that the testimony must necessarily be taken before rather than at the trial (although perhaps this is no longer necessary) in First Department. (Ill App. Div. 528.) (19) That the testimony is to be used upon the trial of the action, (20) That plaintiff cannot obtain the information sought from ' any source other than the testimony of said defendant; giving facts showing attempt to find other witnesses having knowledge and all such attempts and failures. (This now perhaps not necessary in First Department. McKeand v. Locke, 115 App. Div. 174 ; Hill v. McKane, Id., 537 ; Istoh v. Senderling, 118 App. Div. 162, hut see 53 Misc. 253.) (21) That the application is made in good faith. (22) Any other facts to show that the order should be granted. (23) That no other or previous application has been made herein to any court or judge for this or any similar order, wherefore this deponent prays for an order directing that the defendant appear and be examined pursuant to the provisions of sections 872-880 of the Code of Civil Procedure, and that the said defendant ap- pear and submit to an examination. 366 Examination Of Witness BefoBe Tbial. What Affidavit Should Show. (24) Signature of affiant. (25) Jurat. When party sought to be examined is a corporation, state in addition to above : (a) !N"ames of officers. (b) Names of directors, or any of them whose tes- timony is material and necessary, and (c) The books and papers of the corporation, the contents of which are required to be pro- duced to refresh the memory of witness. Examination of a Witness. Omit 20 and insert, in proper place : Facts to show witness is about to depart from the State, or Facts to show that witness is so sick or infirm as to afford rea- sonable ground to believe that he will not be able to attend the trial, or Facts to show that special circumstances exist which render it proper that he should be examined. Prior to the commencement of an action a party or a witness can be examined for the sole purpose of perpetuating testimony (105 App. Div. 115.) Examination Before Tkial. 367 Of Party — Affidavit. FORM No. 140. Affidavit to Obtain Examination of Adverse Party. NEW YORK SUPREME COURT, {New York) County. {JOHN DOE,) Plaintiff, against {RICHARD ROE,) Defendant. STATE OF NEW YORK, 1 Yss. : County of {New York), {JOHN DOE), being duly sworn, says: I am the plaintiff in the above-entitled action. I reside at {No. 128 East 22nd street), in the Borough of {Manhattan), city of {New York). My attor- neys are {Cole & Dunn), whose office and post-office address is {No. 203 Broadway), in said city. The defendant is {Richard Roe), who resides at (115 East 21st street). Borough of {Manr hattan. City of New York), and has his principal place of busi- ness at {No. 10 Warren street, Borough of Manhattan, City of New York), defendant has appeared by {S. Y. Meeks), his attor- ney, whose office and post-office address is {No. 13 Broadway, Borough of Manhattan, City of New York). The summons and complaint were served upon the defendant on the {20th) day of {December, 1903), and he served his answer on {December 29th, 1903), as deponent is informed by Richard Cole, one of his attor- neys herein, and verily believes. I desire to examine the defendant before the trial of this action in order to obtain proof which I may use at such trial for the allegations in my complaint. My reasons for such application are as follows. This action is brought to recover datnmges for personal injuries which I received while a tree vxis being removed from the premises {No. 126 East 22nd street. Borough of Manhattan, City of 368 Examination Before Teial. Of Party — Affidavit. (New York). The injuries I allege in m,y com'plaini were comsed by the carelessness and negligence of the defendant and of his servants, who were engaged in the removal of said tree. I further allege that at the time of the said accident, the defendant was the owner of and in possession and control of the aforesaid house No. 126 East 22nd street, Borough of Manhattan City of New York, and that workmen employed by and subject to his orders were engaged in removing the tree in question from the yard of said premises. Both of these allegations are made upon information and belief. I am informed by my attorneys that said defendant in his answer (admits that at the time of the aforesaid accident he was the owner of the premises 126 East 22nd street,' Borough of Man- hattan, City of New York,) but denies that (he was in possession or control thereof,) and further denies that (he employed the work- men who removed the tree from the yard of said premises,) or that he caused said tree to be removed,) or that (the workmen employed in and about said premises were in any way subject to his order or control. ) I am further informed by my said attorneys that it will be necessary for me to prove at the trial of this action the aforesaid allegations of my said complaint, and that I cannot reasonably and safely proceed to the trial of this action without proof (that the workmen who were engaged in removing said tree were employed by and subject to the orders of defendant.) I have no means of proving said fact except by the testimony of defendant. My com- plaint is drawn upon information and belief. Said information and belief being derived from the fact that I have been told that the said defendant (superintended such removal, gave orders to the workmen, and is in fact the owner of the said house.) I am informed by my attorney that these facts will not be sufficient on the trial of this action to entitle me to recover, but I must have positive proof that the defendant (was actually the employer of said workmen.) I have no means of knowing (who these ivorkmen are, or where they can-be found. I have caused inquiries to be made to obtain their names and addresses, hut I cannot obtain them.) I am further informed that (at the time of the accident said luorkmen refused to make any statement whatever as to the person under whose directions they were acting and refused to talk about the matter at all.) All the facts as to (the hiring of said workmen and as to the control of their actions, and as to who was in possession of the said ExAMiKATioN Befoee Teial. 369 Of Party— Affidavit. house) are entirely within the knowledge of the defendant, who has special and exclusive knowledge of these facts, which are not pos- sessed hy me and access to which is not open to me. {The premises upon which the tree in question stood adjoined in the rear the residence of defendant. Extensive alterations were hevng made to said premises at the time of the accident, one of which altera- tions wciis the removal of the tree in question, and I have seen a man who, I am told, is in his employ apparently assisting the workmen, and the worhmen home u^ed the property of the defend- ant through which to carry maierials for such alterations to said premises. From these facts and from the fact that {the defendant is the owner of said premises,) I verily believe that {he was the employer of said workmen,) but I have no means of proving it, and without the examination of defendant before trial I cannot obtain testimony which I may offer at the trial of this action in support of said belief. I further do not know whetlaer such testimony as said defendant can give will be siiffieient at the trial of the action without further proof from other sources, and for that reason it will not be safe, as I am informed by my counsel, for me to wait until the trial of this action before obtaining the examination of defendant. I further- more do not know whether it will be possible for me to obtain the presence of said defendant at the trial of this action by subpoena, inasmuch as I have no means of knowing whether he will be present within the State of New York when the action is reached in its ordinary course and called for trial. This application is made in good faith for the purpose of obtain- ing proof to use upon the trial of this action, and for no other purpose. I intend to use at the trial of this action the testimony elicited by the examination of said defendant, and shall then and there read or offer to read the same. No previous application has been made for the annexed order. (JOHN DOE.) Sworn to before me, this 1 {2nd) day of {January, 1904). J {PERCY L. WOBE), Notary Public, {New York) County {No. 64). 24 370 Examination Befoee Trial. of Party — Affidavit. FORM No. 141. Affidavit in Support of Same. NEW YORK SUPREME COURT, {New York) County. {JOHN DOE,) Plaintiff, against {RICHARD ROE,) Defendant. STATE OF ISTEW YORK, 1 County of (iVety yorfc), J {RICHARD 8. COLE), being duly sworn, says: I am one of the attorneys for the plaintiff herein. The summons and com- plaint were served upon the defendant on the {2MTi) day of {De- cemher, 1903), and issue was joined by the service of the defend- ^ ant's answer on the {29th) day of {December, 1903). The cause of action set out in the complaint is {to recover damages for per- sonal injuries sustained hy plaintiff, owing to the carelessness of defendant's servants in removing a tree from the yard of certain premises in the Borough of Manhattan, City of New York, belong- ing to him.) The answer admits {the injury to plaintiff,) denies that {the workmen who caused it were defendant's servants,) and alleges that {it was caused by plaintiff's own negligence.) No pro- ceedings have been taken herein since joinder of issue as aforesaid. I have not noticed the case for trial inasmuch as I have ad- vised plaintiff that it is not safe for him to proceed to trial before obtaining an examination of the defendant. This testimony is material and indispensably necessary for the proper prosecution by him of this action. This application is made in good faith and solely to substantiate the allegations in the complaint, which were made upon information and belief, and the reason of its being made is that such information while sufficient to enable me to draw a complaint upon plaintiff's behalf upon information and belief, is not sufficient to sustain said complaint upon the trial of the allegations. {I have examined the records in the office of the register of the County of New York, and it appears therefrom Examination Before Tbial. 371 Of Party — Order. thai defendamt owns the premises from which the tree, the fall of which injured the plaintiff, vms being removed, and that he has made no lease or conveyance thereof. (VfCHARD S COLE ) Sworn to before me, this 1 (3rd) day of (Januwry, 1904). J (PERCY L. WORK), Notary Public, (New York) County (No. 64). FORM No. 142. Order for Examination of Adverse Party Before Trial. IfEW YORK SUPREME COURT, (New Yorh) County. (JOHN DOE,) Plaintiff, • against (RICHARD ROE,) Defendant. Upon the annexed affidavits and upon the pleadings herein : ORDERED : That the defendant (Richard Roe), b© examined as an adverse party before trial ajid his deposition taken, pursuant to sections 870 to 873 of the Code of Civil Procedure, and that for that purpose he appear before me, a justice of this court, in and for the County of (New York) at (Special Term, Part II., in the County Court House, in the Borough of Manhattan, City of New York,) on the (9th) day of (January, 1904,) at (10 -.30) o'clock in the (/ore)noon, and submit to the examination concerning the matters set forth in said affidavit, and concerning the pleadings in this case, and IT IS FURTHER ORDERED that service of this order and of the accompanying affidavits, if made upon said defendant on or before (Janua/ry Uh, 1904), shall be sufficient. (HENRY BI8CH0FF), J. S. 0. Dated, (New York, January Srd, 1904). 372 Examination Befoeb Trial. Of Party — Order. FOBK No. 143. Order for Examination of Adverse Party Before Trial — Defendant a Corporation. NEW YORK SUPEEME COURT, County of {New York). '{GODFREY GOLDEN,) Plaintiff, against {UNITED GALVANIZING COM- PANY,) Defendant. On reading the annexed affidavit of {Godfrey Golden), sworn to herein on {January 9, 1906), and the pleadings thereto annexed, and on motion of {Steele & DeForest), attorneys for the above- named plaintiff, it is ORDERED that the above-named defendant, {United Galvan- izing Company,) be examined, and its deposition be taken, pur- suant to section 873 of the Code of Civil Procedure ; and for that purpose it is hereby ordered that {Louis Potter) as {president) of said company appear before me, at a Special Term of this Court to be held at the County Court House in {the Borough of Brooklyn, City of New York), on the {11th) day of {January, 1906), at {ten) o'clock in the forenoon, and submit to an exami- nation concerning the matters set forth in said affidavit. FIJRTHEE ORDERED that said {Potter) produce upon said examination the {order hooks, contract hooks, ledgers, hank hooks and check hooks) of said {defendant), and any other books or papers containing entries of the matters involved in this action; such production of the books being only for the purpose of re- freshing the recollection of ssid {Potter), and laiding his memory in the oral examination; such books not being produced for the purpose of examination or inspection by {plaintiff) or his counsel. Service of a copy of this order, and of the papers hereto an- nexed, upon said {Louis Potter) personally, on or before the {12th) day of {January, 1906), shall be sufficient service thereof. Dated, {January 10, 1906). {WILLIAM J. KELLY), Justice of the Supreme Court. Examination Befoee Trial. 373 Of Party — Affidavit. FORM No. 144. Affidavit of Party for Examination Before Trial — Defendant a Corporation. NEW YORK SUPREME COURT, County of (New York). (GODFREY GOLDEN,) Plaintiff, against (UNITED GALVANIZING COM- PANY,) Defendant. STATE OF ISTEW YORK, V ss* County of (New York), (GODFREY GOLDEN), being duly sworn, deposes and saya as follows : Deponent is the plaintiff in the above-entitled action, and re- sides at (No. 251 West One Hundred and Fourth street, in the Borough of Manhattan, City of New York). Defendant is a foreign corporation, organized and existing under the laws of (West Virginia), and has its factory and its principal oiHce for the transaction of business at (No. 1 Park avenue, in the Borough of Brooklyn, City and State of New York). This action was commenced on (April 14, 1904), by the personal service of the summons and a copy of the complaint herein upon the Secretary and Treasurer of the defendant. On (April 14, 1904), the said defendant appeared herein by its attorney, (Mortimer Fisher), Esq., of (No. 73 Pine street, in the Borough of Manhattan, City of New York), and on (April 30, 1904), served its answer to the complaint herein. This cause is now pending and is numbered (2606) on Calendar (No. Ill) of the Trial Term of this Court. The nature of the action, and the substance of the judgment de- manded, is as follows: This is an action brought to recover damages for (a ireach of a written contract of agency, dated September 13, 1900, wherein and whereby the defendant agreed to pay the plaintiff's assignors, Messrs. Steele & DeForest and 374 Examination Before Teial. Of Party — Affidavit. Prank E. HoUon, certain commissions on all royalties received by it from business obtained or introduced through the efforts of said assignors). The complaint alleges (three separate causes of action for commissions payable on royalties received by the de- fendant from the United States Navy Yards at Norfolk, Virginia, Boston, Massachusetts, and Philadelphia, Pennsylvania, respec- tively, on the granting of licenses to said Navy Yards by the de- fendant). Said complaint demands judgment for the sum of ($1,800). The nature of the defense is as follows: The answer of the defendant denies that (sales were made to the Navy Yards at Norfolk and Boston, but admits that a sale luas made to the Navy Yard at Philadelphia, without stating the terms of said sale.). Said answer also denies that (said sale, or any sale, was made through the efforts of the plaintiff's assignors). Copies of said complaint, answer and contract of employment are hereto annexed and made a part hereof. Deponent desires to examine (Louis Potter), the President of the defendant, who has a place for the regular transaction of busi- ness at the oiEce of the defendant, (No. 1 Park avenue, in the Borough of Brooklyn, City of New York), and who deponent is informed and believes resides at (No. 642 East Twenty-third street, in said Borough). The source of deponent's information as to the residence of said (Potter) is the (Directory of the Borough of Brooklyn for the year 1905). The testimony of said (Louis Potter) is material and necessary for deponent for the following reasons: The testimony necessary to establish on the trial (the actual making of the several sales) alleged in the com- plaint, and the exact terms thereof, can be obtained from but two sources : The defendant and the officials of the several Navy Yards in question. The attorneys for deponent have sought to obtain information in regard to the installation of the galvanizing plants of the defendant from the officials of the said Navy Yards. Such information was refused by said officials. The proof of said sales, and of the terms thereof, is peculiarly within the knowledge of the defendant; for, while the plaintiff's assignors can testify as to the introduction of the business and the negotiations had by them, the proof of the actual consummation of the several trans- actions, and the terms and conditions thereof, must come from the principals therein. The testimony of an officer of the defendant Examination Before Tbial. 375 Of Party — Affidavit. is material and necessary for the plaintiff to have upon the trial of this action, and the plaintiff intends in good faith to use such testimony upon said trial. In the verification of the answer herein, said (Potter) swears that he personally took part in negotiations with the several ITavy Yards, and is personally familiar with the matters involved in this action, and has in his possession the corre- spondence between the defendant and plaintiff's assignors, and between the defendant and the officials of the said Navy Yards. Deponent verily believes that said (Potter) is more familiar with the matters involved herein than any other officer of the defendant. If plaintiff were left until the trial of this action before having an opportunity to examine an officer of the defend- ant he would be unable to establish his case, should the officers of said defendant fail to appear at said trial, or should they evade the. service of the subpoena. Deponent, therefore, asks that an order be made herein directing said (Potter) to appear for examination in regard to the several matters referred to in this affidavit, and that upon said examination said (Potter) be directed to produce the order books, contract books, ledgers, bank books and check books of said defendant, and any other books or papers containing entries of the matters involved in this action; such production of the books being only for the purpose of refreshing the recollection of said (Potter), and aiding his memory in the oral examination, such books not being produced for the purpose of examination or inspection by plaintiff or his counsel. No previous application has been made for the order applied for hereon. ( GODFREY GOLDEN. ) Sworn to before me, this (9^^) day of (January, 1906). (JOHN PORTER), Notary Public, No. (192), (Kings) County. (Cert, filed in N. Y. Co.) 376 Examination Befoee Trial. Of Corporation — Order. FORM No. 145. Order for Examination of Corporation. NEW YOEK SUPEEME COUKT, County of (New York.) (JACOB SMITH) et al, vs. (MEXICAN COMPANY) et al. Upon the annexed affidavit of (Jacoh Smith), verified the (1st day of February, 1906), and upon reading the summons and the pleadings herein, and upon motion of (Nathan Budd), Esq., attorney for the plaintiffs, it is ORDEEED that the defendants (Mexican Com'pany), be ex- amined and its deposition be taken pursuant to sections 871, 872 and 873 of the Code of Civil Procedure, and that for that purpose (Henry Jones, its President, and Frank Voss, its Treasurer and Secretary) and each of them appear before me or one of the Justices of the Supreme Court of the State of New York, in and for the County of (New York), at Special Term, Part (II,) held in and for said county, at the County Court House in said county, on the (ISth) day of (February, 1906,) at (10:30) o'clock in the forenoon and submit to examination concerning the matters stated in said affidavit and relevant to the issues in this action; and it is further ORDEEED that at the same time, and in aid of said exami- nation, the said defendant, (Mexican Company,) produce the books and papers hereinafter described, to vsrit: 1. The mortgage executed hy the Mexican Company, to the New Trust Company upon its plantation at Pam, State of Vera Cruz, Mexico. 2. The contract between defendant Mexican Company and Adam Adams for the erection of a sugar refinery on the plan- tation of said Mexican Company at Pam, Mexico, and the speci- fications thereto annexed. Examination Before Trial. 377 Of Corporation — Order. 3. The letter of Sugar Company of New Jersey, addressed to John Boland as President of the Mexican Company and dated on or about November 29, 1902, notifying the Mexican Com- pany of the assignment to the Mexican Company of the lease theretofore made by the Mexican Company to Max Murry and John Boland and of the exercise of the option of renewal con- tained in said lease. 4. The Ledger or other book of account of the Mexican Com- pany containing entries of all transactions between said Mexican Company and the Sugar Company of New Jersey from April 1, 1902, to the present time. 5. The Ledger or other books of account of the Mexican Comr- panty, containing entries of the payment by it to the New Trust Company for the purpose of meeting the interest on its bonds and showing the payment by it of all taxes assessed upon its said plantation in Mexico during the period from April 1, 1902, to May 9, 1904. 6. The Stock Book and Stock Transfer Ledger of the Mexican Company. 7. The press copy book or books of the Mexican Company, containing copies of its letters from the 1st day of January, 1904, to June 1, 1904. 8. The Minute Book of the Mexican Company, from Novem- ber 1, 1900, to June 1, 1904. 9. Any proxies filed with the Mexican Company, and voted upon at the meeting of the Board of Directors at which a settle- ment was arrived at of the claim of the Mexican Company, against Adam Adams for damages for his failure to complete the refinery in accordance with his contract with said Mexican Company. 10. The Charter and By-Laws of the Mexican Company. 11. Any proxies filed with the Mexican Company upon which Oeorge Glass voted at any of the meetings of the Board of Direct- ors from October 2, 1903, to the present time. 12. Any proxies filed with the Mexican Company, and voted upon at any stockholders' meeting of said company in October, 1903. 13. Any letters directed by Henry Jones or Frank Voss to George Glass as to his voting at the meetings of the Board of Directors of the Mexican Company. 14. Any vouchers given to the Mexican Company for the pay- ment by it of $1,898.58 or any similar amount, to the represen- 378 Examination Before Teial. Of Corporation — Order. taiive of John Conroy for the proportionate premium for fire insurance on any buildings on the plantation of the Mexican Company, effected prior to June 10, 1903. 15. The check of the Mexican Company whereby it paid said amount of insurance. 16. Any written agreements between the Mexican Company and John Conroy or Adam Adams for the payment by said Com- pany of said amount of insurance. 17. Any letters from Adam Adams or John Conroy relating to the payment by the Mexican Company of said amount. 18. Any written agreement for the settlement of any disputed matters between the Mexican Company, on the one hand and Adam Adams and John Conroy, or both, on the other hand, relat- ing to the erection of the refinery on the plantation of said Com- pany at Vera Cruz. 19. The draft drawn by the insurance agents of the Mexican Company upon said Company and accepted by it and by the Sugar Company and honored by the Mexican Company, and de- scribed in the verified proof of claim filed by said Mexican Company, with the receiver of the Sugar Company. 20. The check of the Mexican Company, given by it in pay- ment of the draft described under the last number, or any voucher received by said company upon paying said draft. 21. Any letters of the insurance agents of the Mexican Com- pany, or any one else, relating to the payment of the draft re- ferred to under the last two numbers. 22. The proxies filed with the Mexican Company and voted upon at the meeting of the Board of Directors of that Company, at which the lease to the Sugar Company was canceled. 23. Any letters or telegrams from Henry Jones or Frank Voss or George Glass relating to the proposed or accomplished resolu- tion to cancel the lease. 24. Any communication from Henry Jones or Frank Voss or any officer of the Mexican Company to Harris Hunt or other agents of the Company relating to the cancellation of the lease and the change of possession of the plantation, or the acquisi- tion of any of the assets of the Sugar Company. 25. The check of the Mexican Company whereby it paid for the assets of the Sugar Company pledged by the latter to James Wood, and sold by him to the Mexican Company, and any bill of sale or other instrument of transfer executed and delivered to the Mexican Company relating to said assets. Examination Before Trial. 379 Of Corporation — Affidavit. 26. The certificates of indebtedness for $6,750 and $36,789.69 respectively, executed by the Mexican Company to the Sugar Company on or about April 25, 1904. 27. Any checks of the Mexican Company made payable to James Wood or Henry Jones and any drafts drawn upon the Sugar Company and now in possession of the Mexican Company. Let a copy of this order be served on each of said ofHcers of said (Mexican Company), to wit, on said (Henry Jones and said Frank Voss), within this State on or before the (7^^) day of (February, 1906). Dated (February 1st. 1906). (H. A. GILDER8LFEVE,) Justice of the Supreme Court of the State of i^ew York. FORM No. 146. Affidavit in Support of Order for Examination of Corporation. SUPEEME COURT, (New York) County. (JACOB SMITH) et al., Plaintiffs, against (MEXICAN COMPANY,) et al. Defendants. STATE OF ISTEW YORK, j^^^ . County of (New York), j (JACOB SMITH,) being duly sworn, deposes and says: First. — That he is one of the plaintiffs in the above entitled action and is acquainted %vith the facts of the case. That the plaintiffs in the above entitled action are the deponent, residing at (189 Second street in the Borough of Manhattan, City of New York,) and (Artur Jacobs, residing at No. 2 West 10th street in the Borough of Manhattan, City of New York.) That the de- 380 Examination Befoee Trial. Of Corporation — Affidavit. fendants are (^the Mexican Company, a corporation incorporated under the laws of the State of Louisiana, and the Sugar Company, a corporation organized under the laws of the State of New Jersey.) That the attorney for the plaintiffs is (Nathan Budd), Esq., whose office address is (134 Nassau street, Borough of Man- hattan, City of New York;) and the attorney for the defendants is (Austin Flack) whose office address is (No. 132 Liberty street. Borough of Manhattan, City of New York.) Second. — That this action was commenced by the service of the summons upon the defendant on or about the (18th day of May, 1904,) and that thereafter and on the (7th day of June, 1904,) said defendants appeared by their attorney, (Austin Flack,) Esq., and that on (July 14, 1904,) the complaint was duly served upon said attorney for the defendants. That the answer of the (Sugar Company) was served on or about the (23rd) day of (August, 1904), and that the answer of (the Mexican Company,) was served on the (21st) day of (June, 1905), since which time the action has been at issue as to both defendants; and that on (Sep- tember 18, 1905,) notice of trial was served on the part of the plaintiffs for the (October) term of the court. That the issues in this action have been placed upon the calendar of the (Special) Term of this court, (and that a stipulation has been entered into between the counsel for the respective parties adjourning the call of this case to the March call of the Special Term calendar.) (That this action is br. ight by the plaintiffs as stockholders of the defendant Sugar Company to set aside as fraudulent and void- an attempted cancellation by the Mexican Company of a lease of its sugar plantation in Mexico to the Sugar Company, on the ground that at the time of the attempted cancellation both said corporations were controlled by Henry Jones and Frank Voss; that they had a much larger interest in the Mexican Company, than in the Sugar Company, and that they by reason of their con- trol of both corporations and in violation of their duties as officers and directors of the Sugar Company, and for the purpose cf favor- ing their larger interest in the Mexican Company, brought about said cancellation for and on behalf and for the benefit of the Mexi- can Company. The nature of the defenses are: (1) a general de- nial of any fraud on the part of said Jones and Voss and of the Mexican Conmpany (2) Thai prior to the commencement of this action the plaintiffs commenced an action in the United States Circuit Court for the Third District of New Jersey against the Examination Befoee Trial. 381 Of Corporation — Affidavit. Sugar Company, fraying that it he daclared insolvent and that a receiver of its assets he appointed and the rights, liens and equities of all its creditors he ascertained and determined, and that said action was pending when this action ivas commenced; (3) that in said action in the United States Circuit Court the court made an order appointing a receiver of the assets of the Sugar Company, and that said receiver has qualified and that he is a necessary party to this action; (4) that the plaintiffs have a full and complete and adequate remedy at law ; and (5) that the court has not jwrisdic- tion of the suhject of the action.) Third. — {That the plaintiffs desire to take the testimony hefore trial of the Mexican Company, one of the defendants herein, for the purpose of perpetuating the same, and that they intend to read the same at the trial of this action. That the names of the officers of said Mexican Company whose testimony is necessary and mate- rial, as hereinafter fully set forth, are Henry Jones, president of said Company, who resides at No. 23 West I71st street in the City of New Yorh, and Frank Yoss, secretary and treasurer of said company, who resides at 21 West 9th street in the Borough of Manhattan, City of New York, hoth of whom, are also directors of said company.) Fourth. — That the testimony of said (Mexican Company,) and its said officers and directors^ is material and necessary for the plaintiffs by reason of the following circumstances : (1. That it is alleged in said complaint and denied hy the de- fendants that the lease, on account of the cancellation of which this action was brought, provides for the payment, in lieu of ren- tal, of the interest on certain bonds issued by said Mexican Com- pany, secured hy a mortgage executed hy the said Mexican Com- pany, upon its property, ivhich allegation is denied hy the de- fendants and that it is material and necessary for the plaintiffs to introduce in evidence at the trial the said mortgage, or to as- certain from said officers of said Mexican Company ichere the original mortgage is deposited. 2. That it is alleged in said complaint, and denied in the answers of the defendants, that the said lease executed by the Mexican Company and assigned to the Sugar Company, was extended by the exercise by the Sugar Company, of the option therein contained and that it is necessary and material for the plaintiffs to introduce in evidence at the trial a letter addressed 382 Examination Befobb Teial. Of Corporation — Aflidavit. hy the Sugar Company to said Mexican Company, or one of iti officers, notifying said company of the exercise of said option. 3. That it is alleged in the complaint, and denied by the de- fendants, that the Sugar Company advanced to the Mexican Com- pany the sum of upwards of $30,000, during the contirmance of the lease, to enable the said- Mexican Company to pay the interest upon the bonds of the latter company issued and outstanding under its said mortgage when the same came due, and that said Mexican Compariy is still indebted to said Sugar Company for said advances. That it is material and necessary for the plaintiffs to prove the receipt by the Mexican Company, of said advances, and the application of the same by it to the payment of the interest upon its bonds issued and outstanding, as alleged in the complaint. 4. That it is alleged in the complaint, and denied by the de- fendants, that Jones and Voss, since the surmner of 1903 owned or controlled a large majority of the stock of said Mexican Com- pany, and that through said control, coupled with their control of a majority of the stock of the Sugar Company, said Jones and Voss brought about the cancellation of said lease complained of in the complaint. That it is material and necessary for the plaintiffs to prove at the trial that said Jones and Voss did so control the stoch of the Mexican Company, and that it is material and necessary for them for that purpose to introduce in evidence the stocTc booh and stock transfer book of said Mexican Company. 5. That it is alleged in the complaint and denied by the de- fendants, that the refinery which in said lease the Mexican Com- pany agreed to complete upon its premises, according to its con- tract with one Adam Adams was not completed according to scdd contract, and that it is material and necessary for the plaintiffs to show such non-completion of the said refinery as one of the grounds why there was no rent due to the Mexican Company un- der its said lease at the time luhen it pretended to cancel the said lease for an alleged non-payment of rent. That neither the orig- inal nor a copy of the contract between the Mexican Company and said Adams for the erection of said refinery referred to in said lease is annexed to said lease, and that the facts relating to said contract and to the question whether the refinery was completed according to said contract, are entirely within the knowledge of the officers of said company, and that the papers and books of said company will show that said refinery rras not so completed. 6. That it is alleged in the complaint, and denied by the defendants, that the Sugar Company had a claim againsi the Examination Bbfobb Trial. 383 Of Corporation — AfiSdavit. Mexican Company for the latter s failure to complete the refinery according to the terms of said lease. That it is material and necessary for the plaintiffs to show that said Mexican Compaovy asserted a claim for and collected damages from said Adam Adams, who had contracted with said Mexican Company to erect said refinery for his faihire to complete the same according to his contract, and that the books and papers of said Mexican Company will show such to he the fact, as deponent has been informed by officers of said company. 7. That it is alleged in said complaint, and denied by the de- fendants, that said Jones and Voss controlled the Board of Di- rectors of the Mexican Company. That it is material and neces- sary for the plaintiffs to obtain the testimony of the Mexican Com- pany and its officers, and to introduce its records, to show such control. 8. That it is alleged in the complaint that the said lease was cancelled by said Mexican Company for an alleged non-payment of insurance premiums alleged to be due from said Sugar Company in lieu of rent under said lease, but that at the time of cancellation the rent thus claimed by said Mexican Company wa,s not due, which latter allegation is denied by the defendants. That it is material and necessary for the plaintiffs to prove at the trial that the insurance premiums alleged to have been paid by said Mexi- can Company, and repayment of which was claimed by it to be due from the Sugar Company were not such payments as the Sugar Company was by the terms of the lease required to refund to said Mexican Company, and that it is necessary and material for the plaintiffs for that purpose to introduce the testimony of said Mexican Company, and its officers; and certain of its records and papers hereinafter set forth. 9. That it is alleged in the complaint, and denied by defend- ants, that the cancellation of said lease was brought about by a resolution passed by Jones, Voss and Glass, the latter acting under the control of said Jones and Voss and that it was brought about in furtherance of the plan of said Jones and Voss to wrecTc said Sugar Company. That it is material and necessary for the plain- tiffs to show by the testimony of said Mexican Company and its officers, and from its records, the manner in luhich said resolution was passed, and the persons who voted therefor, and the manner in which such votes were cast. 10. That it is alleged in the complaint, and denied by the defendants that in final consummation of the plan of said Jones 384 Examination Before Trial. Of Corpora tion — Affidavit. and Voss to wrecTc the Sugar Company The Mexican Company tooh possession of the plantation covered hy said lease, and of all the property of the Sugar Company thereon situated. That it is material and necessary for the plaintiffs to show hy the testimony of the Sugar Company, and its officers, and from its records, that it did so taJce possession of said plantation and that it has come into possession of all the assets of said Sugar Company, and that it has since said cancellation operated said plantation and prop- erty at a large profit.) Fifth. — That the facts as to all the matters hereinbefore re- ferred to are either within the particular knowledge of said (Jones and Voss,) as officers of said (Mexican Company,) or that the evidence of the same is contained in the books, records and papers of said company hereinafter specified, and' that from his ac- quaintance with all the facts in this case, and from his knowledge of the affairs of the (Mexican Company of which deponent during all the times mentioned in the com^plaint was and now is a stoch- ■ holder, and of which, until Octoher, 1904, he loas a director, and from many personal dealings had hy deponent with said Jones and Yoss, and hy reason of his "knowledge that said Jones and Yoss have had charge of the management of the affairs of said Mexican Company during all the times mentioned in the com- plaint, deponent expects that said Jones and Voss will testify to the aforementioned facts, as alleged in the complaint, and that the records of said Mexican Company, so far as their production is required hy the order to which this affidavit is annexed, will suh- stantiate said allegations of the complaint.) Sixth. — That the following are the books and papers of the Mexican Company as to the contents of which, relating to the matters hereinabove set forth, an examination of said Mexican Company and its said officers with their production is desired : (1. The mortgage executed hy the Mexican Company, to the New Trust Company upon its plantation at Pam, State of Vera Cruz, Mexico. 2. The contract hetween defendant Mexican Company, and 'Adam Adams for the erection of a sugar refinery on the premises of said Mexican Company at Pam, Mexico, and the specifications thereto annexed. 3. The letter of Sugar Company of New Jersey addressed to John Poland as President of the Mexican Conipany and dated on or about November 29, 1902, notifying the Mexican Company Examination Before Trial. 385 Of Corporation — AfBdavit. of the assignment to the Sugar Company of the lease theretofore made by the Mexican Company to Max Murry and John Boland and of the exercise of the option of renewal contained in said lease.) (Etc., etc., continue as in order.) Seventh. — Tliat it will be unsafe for the plaintiffs to proceed to the trial of this action without the testimony of said (Mexican Company) and its said officers as to the matters hereinabove stated, which comprise almost all the material facts constituting the plaintiffs' cause of action, and without an examination before trial of said defendant and its said officers, in connection with the books, and papers hereinabove specified, because if the plaintiffs should be left until the trial before having an opportunity to examine the defendant and its officers, with production of said books and papers, as to the facts hereinabove set forth they would be seriously crippled in their effort to ascertain the facts at the trial and if the recollection of said officers of said defendants should happen to fail at the trial the plaintiffs by reason of their unfamiliarity with the books and papers of said company would be unable to establish their case. That, as defendant is informed and believes, through frequent dealings with the officers of said corporation, and particularly with the said (Voss) continued to the present time, the business of said corporation, other than the management of the actual operation of the plantation in Mexico, is carried on by (said Jones and Voss in the City of New York,) and that its books of account, minute book, stock book, and its most important papers are kept in the City of New York, (the said company not maintaining any regular office for the trans- action of business in the State of Louisiana, but merely maintain- ing a nominal office in the City of New Orleans to comply with the requirements of the law of Louisiana under which it is incor- porated.) (That the only officer of said corporation in the State of Jjouisiana is George Glass, the Assistant Secretary of said corpora- tion, who has taken no part whatsoever in the management of said corporation and has no knowledge whatsoever as to the details of its affairs, as deponent is informed and believes, his informant being his correspondent Money Keep, an attorney and counsellor- at-law, of the State of Louisiana, residing at New Orlearis, who has at various times in the past, sought information from said 25 386 Examination Before Trial. Of Corporation — Affidavit. Glass, hut has always encountered difficulty in locating any office of said corporation in New Orleans or elsewhere in the State of Louisiana, and has not been able to obtain any information what- soever from said Glass as to the affairs of the corporation. That the only business of said corporation consists of the opera- tion of the plantation in Mexico. That none of its business re- lating to said plantation is transacted in New Orleans, but that all the reports and other correspondence relating to the operation of said plantation are addressed by the resident manager on said plantation to said Jones and Voss at the City of New York and that all the affairs of said company are directed by said Jon^s and Voss at the City of New York, at their respective offices No. 32 Liberty street where they respectively transact business regularly. ) Eighth. — (That on or about the dlst- day of January, 1906, said Voss personally informed deponent that he expected to leave for Mexico on Friday, February 2, 1906, and to remain in that country for several months. - That deponent is informed by his counsel that this case will be reached for trial in the said month of March, and that according to Voss' statement to deponent it is entirely uncertain whether said Voss will be present at the trial of the issues in this action or within the jurisdiction of the court at that time. That said Voss is the Secretary and Treasurer of said Mexican Company, and more familiar with the matters herein- above set forth, and with the details of the management of said corporation, and with its books and papers, than said Jori,es, and that the plaintiffs cannot safely proceed to trial without the testi- mony of said Voss, as such officer of said Mexican Compar\ ss ' County of {New York), j {JOHN LITTLE), being duly sworn, says that he is the petitioner herein named; that he has read the foregoing petition and knows the contents thereof ; that the same is true to deponent's 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. {JOHN LITTLE.) Sworn to before me, this {10th) day of {July, 1907). {HENRY BENNETT), Notary Public, {New York) County. FORM No. 154. Order for Discovery of Books and Papers. NEW YOEK SUPREME COURT, {New York) County. {JOHN LITTLE,) Plaintiff, against {THE PUMP CONSTRUCTION COMPANY,) Defendant. Upon reading and filing the annexed petition of {John Little), the plaintiff herein, verified the {10th) day of {July, 1907), with the annexed copies of the pleadings and the annexed affidavit of {Oliver Hodge), verified the same day. Discovery And Inspection. 399 Order. l^OW, on motion of (Oliver Hodge), attorney for the plaintiff, IT IS OEDERED that the defendant herein, (The Pump Construction Company), be and it is hereby directed to produce and discover and to allow to the plaintiff an inspection and copy, or permission to take a copy of (such portion of all ledgers, sales hooks, material hooks, invoice and delivery hooks, contract regis- ters, accounts receivable and all other accounts, papers, hooks, coro- tracts and documents) possessed by or under the control of the defendant as will show all transactions involved in this action between (January 1, 1902, and January 1, 1907). Or in default thereof to show cause on the (18ifA) day of (July, 1907) at (10:30) o'clock in the (/ore)noon, at Special Term, (Part I) of this Court, to be held at the County Court House in the (Borough of Manhattan, City of New York), why the prayer of said petition should not be granted ; And it is further ordered that all proceedings on the part of the defendant be and hereby are stayed until the hearing and determination of this application. Dated, (New York, July 10th, 1907). (VICTOR J. BOWLING), (Justice of the Supreme Court). PHYSICAL EXAMINATION BEFORE TRIAL. FORM No. 155. Physical Examination Before Trial — Order. NEW YORK SUPREME COURT, (Kings) County. (PETER FVRMAN,) an infant by (Murray Furman, his Ouardian ad litem,) Plaintiff, against (METROPOLITAN RAILWAY COMPANY,) Defendant. Upon the pleadings and proceedings had herein, and upon the annexed affidavit of (Daniel Boone), verified the (29iA) day of (September, 1904), and it appearing to me that proper cause has been shown for an oral and physical examination of the plaintiff herein, as an adverse party before trial, NOW, on motion of (James Larrabee), Esq., attorney for the defendant, it is ORDERED that on the (5th) day of (October, 1904), at (10) o'clock in the (/ore)noon of that day (Peter Furman), of (161 East Eleventh street. Borough of Manhattan, City of New YorJc,) the plaintiff in this action, appear before (Bradford Forester), who is hereby appointed referee for the purpose, at (160 Broadway, Borough of Brooklyn), the office of the said referee, and that the plaintiff then and there be examined by the defendant herein as an adverse party before trial with reference to the manner, nature, location, extent and effect of the injuries alleged in the complaint herein to have been caused by the de- fendant, its agents, servants or employees. And it is FURTHER ORDERED that the said plaintiff appear before the said referee at the time and place mentioned above, and thaf he then and there submit in the presence of such referee and physician duly named and counsel for the respective parties herein to an oral examination with reference to the nature, extent and location and effect of the injuries alleged in the complaint herein [400] Physical JjiXAMiNATiON Before Tkial. 401 Order. to be made by (Bradford Forester), who is hereby appointed by the Court for the purpose of taking such oral examination, and in which oral examination counsel for the respective parties may participate. And it is FURTHER ORDERED that subsequent to such oral examina- tion by the said (Bradford Forester) and the aforesaid counsel, the plaintiff herein shall submit to an examination of his person to be made by the said {Roland Rome), M. D., with reference to his physical condition, and with respect to the location, extent and effect of the injuries alleged in the complaint to have been caused by the negligence of the defendant, its servants, agents or employees. Said physician, after making such examination of the person of the plaintiff shall report all findings of such ex- amination in writing to the said referee herein, and shall submit to an oral examination by the counsel for the respective parties with reference thereto, and the said referee shall then and there certify the testimony of the plaintiff, for the taking of which pro- vision is hereby made, and the testimony and findings of the said (Roland Rowe), M. D., to this Court. And it is FURTHER ORDERED that the plaintiff and his attorney be and they hereby are stayed from taking any further proceedings in this action except to review or vacate this order imtil the filing in this Court of the report of the referee aforesaid. It appearing that the reason that the defendant asks that this examination be held on the (5th) day of (October, 1904), and the service of a copy of this order upon the plaintiff or his attorney be made on or before 6 o'clock P. M. on the (30th) day. of (September, 1904), which is less than the five days' notice re- quired to be given by section 873 of the Code of Civil Procedure, is that the case is now on the calendar of this Court, and a motion for a preference herein and to designate a day certain during the •October Term upon which said case may be heard has been made in this case, and said case may be reached for trial before five days' notice required by said section of the Code shall have ex- pired, and Sufficient reason therefor appearing, let service of a copy of this order upon the plaintiff and his attorney on or before 6 o'clock P. M. on the (30th) day of (September, 1904), be sufficient. Dated, (Brooklyn, September 29th, 1904). (WILLIAM D. DICKEY), 26 Justice of the Supreme Court. 402 Physical Examination Before Trial.. Affidavit. FORK Ho. 156. Physical Examination Lefore Trial — Affidavit to Obtain. NEW YORK SUPREME COURT, (Kings) County. (PETER FURMAN,) an infant by (Murray Fur man, his Guardian ad litem,) Plaintiff, against (METROPOLITAN RAILWAY COMPANY,) Defendant. STATE OF NEW YORK, ) . V ss ' County of (New York), j (DANIEL BOONE), being duly sworn, deposes and says: That he is Vice-President and an officer of the (Metropolitan Railway Company), the corporation defendant in the above-enti- tled action; that the statements made in this affidavit are made upon information and belief, except vsrhere hereinafter expressly stated to be made upon deponent's ovsti knowledge ; that the sources of deponent's information and the grounds of his belief are books of record kept in the office of said corporation defendant, which books deponent believes to be correct; also reports made to deponent by officers, servants and employees of said corporation defendant with reference to this action, which reports deponent believes to be true. That this action is brought to recover the sum of (five thousand) ($5,000) dollars damages for physical injuries and consequential damages alleged to have been sustained by the plaintiff through the carelessness and negligence of the defendant, its agents, ser- vants or employees on or about the (Uh) day of (August, 1904), at (or near the intersection of Broadway and IMh street. Borough of Manhattan, City of New YorTe), as shown by the complaint herein. That this action was commenced by the service of a summons and complaint on the (12th) day of (August, 1904), upon which Physical Examination Before Tbial. 403 Affidavit. day the defendant duly served its notice of appearance, and that thereafter on the {1st) day of {September, 1904), issue was joined herein by due service of defendant's answer, which answer is substantially a general denial of all the material allegations contained in the complain. The plaintiff herein, (Peter Furman), resides at {No. 161 East Eleventh) street, {Borough of Manhattan, City of New York), and appeared in this action by (Martin T. Manton), Esq., attorney and counsellor at law, with offices at No. (375 Fulton)' street, (Borough of Brooklyn, City of New York), and the de- fendant, (Metropolitan Railway Company), having its offices and principal place of business at l^o. (62 Broadway, in the Borough of Manhattan, New York City), appeared herein by (James Larrabee), Esq., attorney and counsellor at law, who has an office at No. (21 Park Row, Borough of Manhattan, City of New York.) There has been no change of parties or attorneys herein. That no physical examination of this plaintiff has been had in the interest of the defendant, although the defendant has re- quested from (Martin T. Manton), Esq., the attorney for the plaintiff herein, a physical examination of the plaintiff, and said counsel has refused to allow the plaintiff to consent to submit to such physical examination. That the defendant has no informa- tion and cannot obtain any information in regard to the plaintiff's physical condition, nor of the nature, extent or effect of the in- juries alleged to have been sustained by the plaintiff, and only by an oral and physical examination, as provided by the Code of Civil Procedure can this defendant obtain sufficient information concerning the nature of the injuries sustained by the plaintiff, to enable the defendant to properly meet upon the trial of this action the allegations contained in the complaint. That the defendant herein intends in good faith to defend this action. That it is absolutely necessary for the defendant to have such physical examination and to have such testimony as it seeks through the order herein asked for, in order that it may learn the nature, extent and effect of the injuries alleged in the complaint to have been sustained by the plaintiff. That this testimony may be used at the trial, and that it is necessary to obtain this informa- tion now rather than at the trial, so that the defendant may know what the injuries are and be able to properly defend this action at the time of the trial. The defendant submits that the 404 Physical Examination Before Teial. AtUdavit. plaintiff is in a position to have knowledge as to the physical injuries alleged to have been sustained and which it is now necessary for the defendant to know in order that the defendant may safely proceed with the defense of this action. And the defendant having, through its officers, agents and employees, dili- gently endeavored to obtain this information, and being utterly un- able to obtain any definite information with regard thereto, now seeks a physical examination of the plaintiff , herein, in order to obtain a statement of the injuries and expert testimony as to the nature, extent and effect. That the reasons why the defendant asks this examination be held on the (3rd) day of {October, 1904), and that service of a copy of this order upon the plaintiff and his attorney be made on or before 6 o'clock P. M. on the (ZQtli) day of (September, 1904), which is less than five days' notice required to be given by section 873 of the Code of Civil Procedure, is that the case is now on the calendar of this Court and a motion for preference and to desig- nate a day certain during the (October) Term for the trial of this case has been made and said case may be reached for trial before the usual five days' notice as required by section 873 of the Code of Civil Procedure shall have elapsed. That no previous application for the relief herein sought has been made to any court or judge. WHEREFORE your deponent asks that an order be granted requiring the plaintiff herein to appear before a referee and then and there submit to an oral and physical examination in accord- ance with the provisions of the order hereto annexed, and further requiring that the plaintiff and his attorney be stayed from taking any and all proceedings in this action until the confirmation by this Court of the report of the referee herein. (DANIEL BOONE.) Sworn to before me, this -") (2Qth) day of (September, 1904). J (HENRY J. TURNER), Notary Public, (New York) County.' NOTICE OF TRIAL: SUBSTITUTION OF ATTORNEYS: REVIVAL OF ACTION: DISCONTINUANCE. NoTi;. — Bear in mind that by L. 1907, chap. 526 (in effect September 1, 1907), a new section has been added to the Code of Civil Procedure as follows : ^ " § 973. The court in its discretion, may order one or more issues to be separately tried prior to any trial of the other issues in the case." FORM No. 157. Plaintiff's Notice of Trial — Trial Term. NEW YOKK SUPKEME COUET, County of (New York). (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant. PLEASE TAKE NOTICE, that the issues of fact in this action will be brought to trial and an inquest taken therein, at a Trial Term of this court appointed to be 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 (first Mon)- day of (June, 1904), at 10:30 o'clock in the forenoon of that day. Dated, the (13^^) day of (May, 1904). (WILLIAM BE ILLY), Attorney for Plaintiff, (No. 27 Pine Street), (Borouffh of Manhattan), To ' (City of New Yor^,__^ (EZRA WILLIAMS), Esq., Attorney for Defendant, (No. 15 William Street), (New York City). [405] 406 Notice Of Tkial. Defendant, Trial Term. FORII No. 158. Sef^ant's Notice of Trial — Trial Term. NEW YOEK si PEEME COUKT, County (|f (New York). (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant. PLEASE TAKE ISTOTICE, that the issues of fact in this action will be brought to trial and a motion made to dismiss the complaint at a Trial Term of this court appointed to be held in and for the County of (New Yorlc), at the County Court House in the (Borough of Manhattan, City of New York,) on the- (first Mon- day) of (June, 1904), at 10 :30 o'clock in the forenoon of that day. Dated, the (13^) day of (May, 1904). Yours, etc., (EZRA WILLIAMS), Attorney for Defendant, (No. 15 William Street), (Borough of Manhattan), (City of New York). To (WILLIAM REILLY), Esq., Attorney for Plaintiff, (No. 27 Pine Street), (New York City). Notice Of Teial. 407 Plaintiif, Trial Term. FORM No. 159. Plaintiff's Notice of Trial — Special Term. NEW YORK SUPREME COURT, County of {New York). (JOHN JONES,) Plaintiff, against {JOHN DOE,) Defendant. PLEASE TO TAKE NOTICE, that the issues of fact and law in this action will be brought to trial and an inquest taken therein at a Special Term of this court appointed to be held in and for the County of New Tork, at the County Court House in said city on the (first Monday) of (May) next, at 10 :30 o'clock, in the forenoon of the same day. Dated, the (Idth) day of (April, 1904). Yours, etc., (WILLIAM BEILLY), Attorney for Plaintiff, (No. 27 Pine Street), (Borough of Manhattan), (City of New York). To (EZRA WILLIAMS), Esq., Attorney for Defendant, (No. 15 William Street), (New York City). 408 Notice Of Trial. Defendant, Special Term. FORM No. 160. Defendant's Notice of Trial — Special Term. :^rEW YOKK SUPREME COURT, County of (New York). (JOHN JONES,) Plaintiff, against (JOHN DOE,) Defendant. PLEASE TAKE NOTICE, that the issues of fact and law in this action will be brought to trial and a motion made to dismiss the complaint at a Special Term of this court appointed to be 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 (first Monday) of (May, 1904), at 10:30 o'clock in the forenoon of that day. Dated, the (13^^) day of (April, 1904). Yours, etc., (EZRA. WILLIAMS), Attorney for Defendant, (No. 15 William Street), (Borough of Manhattan), (City of New York). To (WILLIAM BEILLY), Esq., Attorney for Plaintiff, (No. 27 Pine Street), (New York City). Eevival Of Action. 409 Order On Consent. FORM No. 161. Order Reviving Action — Entered on Consent. At a Special Term (Part I) of the Supreme Court, held in and for the County of {New York), at the County Court House in (the Borough of Manhattan), in said county, on (7th) day of (February, 1907). Present : Hon. (LEONARD A. GIEGBICH), Justice. (WILLIAM HILDEBBAND), Plaintiff, against (HARRIET ENGEL,) Defendant. On reading and filing the ajffidavits of (Arthur Kenney) and (Marian Hildebrand) showing the death of (William Hilde- brand), the plaintiff in the above entitled action and the granting of letters testamentary pursuant to and by virtue of his last v^ill and testament to (Margaret Hildebrand) and (William Kenney) by the Surrogate of (New York) County, and on motion of (Thaddeus Browne), attorney for said (Margaret Hildebrand) and (William Kenney), the attorney for the defendant herein- consenting thereto : OEtDERED, that this action be and the same hereby is con- tinued in the name of said (Margaret Hildebrand) and (William Kenney) executors of the last will and testament of the said (William Hildebrand) , deceased, and ORDERED, that such continuance and substitution be without prejudice to any proceedings heretofore undertaken in this action. Enter, (L. A. G.) J. S. C. I hereby consent to the entry of the above order and the sub- stitution therein made. (HENRY HALFF), Attorney for (Defendant). Dated (New York, February 5, 1907.) ' 410 Revival Op Action. Notice Of Motion. FORM No. 162. Notice of Motion for Substitution of Party Plaintiff and Continuance of Action. SUPEEME COUET, {New York) County. {WILLIAM HARRIS,) Plaintiff, against {PHILIP MOON,) Defendant. Sir: TAKE ISTOTICE that upon the affidavit of {Oliver Harris), hereto annexed, and upon the pleadings in this action and upon the proceedings therein the undersigned will move this court at a Special Term, {Part I) thereof, to be held at the County Court House, in the County of {New York), on the {"lih) day of {March, 1907), at 10:30 o'clock in the forenoon or as soon thereafter as counsel can be heard for an order directing the substitution of {Oliver Harris), as executor of ( William Harris), deceased, plain- tiff herein, in the place of said deceased plaintiff, the continuance of this action in the name of said {Oliver Harris), as executor of {William Harris), deceased, as plaintiff herein; that such sub- stitution and continuance be without prejudice to any proceedings heretofore undertaken in this action and for such other and fur- ther relief as may appear just. Dated {February 25, 1907). (MILTON J. SAVAGE), Attorney for {Oliver Harris), Executor of {William Harris), Deceased, (27 William street. Borough of Manhattan,, To City of New York). {THOMAS MULRY), Esq., Attorney for {Defendant), (141 Broadway, Borough of Manhattan, City, of New York) . Eevival, Op Action. " 411 Affidavit. FORM No. 163. Affidavit on Motion for Substitution of Party Plaintiff and Continu- ance of Action. SUPREME COURT, {New Yorh) County. {WILLIAM HARRIS,) Plaintiff, against {PHILIP MOON,) Defendant. County and }■ State of New York, '"*®' {Oliver Harris), being duly sworn, says: I. That he is the executor under the last will and testament of {William Harris), plaintiff in this action, now deceased, II. That this action was commenced by the service of a sum- mons and complaint upon defendant herein on or about the (10th) day of {November, 1906), to foreclose a mortgage upon the property of {Philip Moon,) the defendant, consisting of real property in the {City and) County of {New Yorh,) III. That on or about the {30th) day of {November, 1906,) issue was joined herein by the service of an answer, and there- after, on or about the {16th) daj of {December, 1906) this cause was duly noticed for trial by plaintiff and duly placed upon the calendar of this court and is still pending, and that the next term at which it could be tried is to be held on the {1st) day of {April) next; IV. That thereafter, on or about the {18th) day of {December, 1906), as deponent is informed and believes, said plaintiff, being then the sole plaintiff herein, died, leaving a will, by which he appointed deponent, residing in {New York) County, his executor. That said will was admitted to probate on or about the {18th) day of {January, 1907), by the Surrogate of the County of {New York), and that letters testamentary thereon have been issued to said executor by said Surrogate, and he has undertaken the execution thereof, and now is such executor. Sworn to before me, this 1 {OLIVER HARRIS.) (24:th) day of {February, 1901). 1 (WILLIAM J. KUNZ), Notary Public, {New York) Co. 412 Revival Of Action. Order. FOKM No. 164. Order of Substitution of Party Plaintiff and Continuance of Action. At a Special Term (Part I) of the Supreme Court, held in and for the County of (New York,) at the County Court House in the (Borough nf Manhattan) in said county, on the (25th) day of (February, 1907.) Peesent : Hon. (JOHN FORD,) Justice. (WILLIAM HARRIS,) Plaintiif, against (PHILIP MOON,) Defendant. On reading and filing the notice of motion of (Oliver Harris,) as executor of CWilliam Harris,) deceased, plaintiff herein, dated the (25 {SARAH MORGAN,) Plaintiff, vs. {MARTHA JANEWAY,) Defendant. 'SS.: STATE OF NEW YORK, County of {New York), {Warren S. Bird), being duly sworn, says that he is a clerk in the office of {Williams & Jackson), attorneys for the {plaintiff) herein; that the {■plaintiff) intends to prosecute the action in good faith and that the failure to answer said case upon the call of the calendar was not intentional, but was due to inad- vertence and an oversight upon the part of deponent ; that among other things it is deponent's duty to look over the calendars of this court to ascertain whether any of the cases in which said 13 rm of {Williams & Jackson) are interested are on the calendar; that the above case appeared on the Friday Call Calendar No. (2) of this court on the (18^A.) day of {January, 1907), and 428 Eestoeing To Calendab. Order. deponent in looking over the cases on said calendar failed to dis- cover tbe above case and to attend on the call of said calendar, and the case was, therefore, marked " off." Deponent, therefore, respectfully asks that the above-entitled action be put on the next call calendar foUovsfing, and that it be set for trial for a certain day. (WABBEN 8. BIBD.) Sworn to before me, this \ (18fA) day of {February, 1907). J {OLIYEB BEN DEB), Notary Public, {N. Y.) County. FORM No. 180. Order Eestoring Case to Gall Calendar. IS^EW YORK SUPREME COURT, {New York) County. {SAB AH MOBGAN,) Plaintiff, vs. y {MABTHA J ANEW AY,) Defendant Cal. No. (696). on Cal. ISTo. (2.) A motion having been made to restore this cause No. (696), on Trial Term, Calendar No. (2) of this court to the Friday Call Calendar, and said motion duly coming on to be heard, now, upon reading and filing the notice of motion herein, dated the (18efendant. A judgment having heretofore been entered in this action on the (1th) day of (May, 1907,) in favor of the plaintiff and against the defendant by default for want of an answer, and a motion having been made by the defendant to open said default and set aside said judgment, and said motion having duly come on to be heard, now, on reading and filing the order to show cause, dated (May 9, 1907,) and the affidavit of (Thomas Parsons,) verified the (9th) day of (May, 1907,) and the proposed verified answer of the defendant herein in support of said motion, and the affidavit of (William Cohen,) verified the (12th) day of (May, 1907,) in opposition thereto, and after hearing Mr. (Ralph Carson,) of counsel for the plaintiff in support of said motion, and Mr. (William Cohen,) of counsel for the defendant in oppo- sition thereto, and due deliberation having been had, it is, on motion of (Ralph Carson,) attorney for the defendant, ORDERED, that upon payment by the defendant to plaintiff's attorney of $26 costs, said motion be and the same hereby is in all respects granted, and the default of the defendant, (Thomas Parsons,) in failing to serve an answer herein be opened, and it is further Default In Pleading. 467 Opening — Order To Show Cause. ORDERED, that the judgment heretofore entered on the (1th) day of {May, 190l7,) in favor of the plaintiff and against the defendant for the sum of ($797.60,) be, and the same hereby is vacated and set aside; and it is further ORDERED, that the defendant, (Thomas Parsons,) within (ten) days after the service of a copy of this order with a notice of entry, comply with the terms of this order, serve upon the plaintiff's attarney a copy of his answer herein, and in default thereof that said judgment continue in full force and effect. Enter, (/. A. B.,) J. S. C. FORM No. 215. Order to Show Cause. Motion to Open Default. SUPREME COURT, (New York,) County. (FRANK} VERNON,) Plaintiff, against (THOMAS PARSONS,) Defendant. Upon the annexed affidavit of (Thomas Parsons,) sworn to the (10th) day of (May, 1907,) and the proposed verified answer of (Thomas Parsons,) the defendant above named, and on all the pro- ceedings had herein, let the plaintiff or his attorney show cause be- fore the justice of this court, sitting at Special Term, (Part I., thereof,) to be held at the County Court House in the (Borough of Manhattan, City of New York), on the (13th) day of (May, 1907,) at the opening of court on that day, or as soon thereafter as counsel can be heard, why an order should not be made, opening the default of the defendant and setting aside the judgment en- tered herein in favor of the plaintiff and against the defendant on the (6th) day of (May, 1907,) and why leave should not be granted to the defendant to serve an answer herein, and why 468 Default In Pleading. Opening — Affidavit. such other and further relief should not be granted as may be just in the premises. Pending the hearing and determination of this motion and the entry of order thereon, let all proceedings on the part of the plaintiff, his attorneys and agents and the sheriff of the county of {New York,) for the enforcement of the said judgment, be stayed, and sufficient cause therefor to me appearing, let service of a copy of this order, together with the annexed affidavit and proposed verified answer on the plaintiff's attorney on or before {May 11, 1907,) be sufficient. Dated, {New YorJc, May 10, 1907.) {JOHN W. GOFF,) Justice Supreme Court. FORM No. 216. Motion to Open Default — Affidavit. SUPREME COURT, {New York) County. (FRANK VERNON,) Plaintiff, against (THOMAS PARSONS,) Defendant. STATE OF NEW YORK, 1 County of (iVew ForA;,) J {Thomas Parsons,) being duly sworn, says that he is the de- fendant in the above entitled action ; that the summons and veri- fied complaint herein were served on him on the {20th) day of (April, 1907;) that on the {22d) day of (April, 1907,) depon- ent (was notified hy telegraph that the warehouse of Calhoun, Parsons & Company, in the City of Chicago, of lohich firm deponent is a member, had been destroyed hy fire, and that his presence ivas imperatively needed to look after the interests of said firm in connection with the adjustment and settlernent of l^EFAULT In Pleading. 469 Opening — ■ Affidavit. said loss) and that deponent (left for the City of Chicago on the 2Bd day of April and luas compelled to remain in said city until the 8th day of May, 1907, for the purpose of securing an ad- justment and settlement of the said loss) and that, by reason of these facts and through inadvertence, he neglected to place the summons and complaint which had been served on him in the hands of his attorney until the (9th) day of (May, 1907,) which day, as he is advised by his said attorney, was later than the twenty days within which deponent was required by law to serve his answer. Deponent further says that he has fully and fairly stated the facts of the case to (Ralph Carson,) his counsel herein, who re- sides at (728 West End Avenue, Borough of Manhattan, City of New York,) and that he has a good and substantial defense thereto upon the merits, as he is advised by his said counsel after such statement and verily believes. Deponent further says that this action is brought to (recover the sum, of $780, alleged to be due to the plaintiff from the de- fendant as a balance upon account for goods sold and delivered and services rendered at the special instance and request of de- fendant,) but that deponent has a complete defense to said alleged claim, as he is advised, (in a written accord and satisfaction had between the parties) as more particularly appears by para- graphs (III., IV. and V.) of the proposed verified answer hereto attached: and that it is deponent's intention to defend this action in good faith. Deponent therefore asks that his default for want of an answer be opened and that the judgment entered against him in favor of the plaintiff on the (7th) day of (May, 1907,) be vacated and set aside and that he be granted leave to serve a copy of the an- nexed verified answer on the plaintiff's attorney within (ten) days of an entry of an order upon this application, and that all proceedings on the part of the plaintiff for the enforcement of said judgment be stayed pending the hearing and determination of this application and the entry of an order thereon, and for such other and further relief as may be just in the premises. (THOMAS P ARSONS.) Sworn to before me this (9/^) day of (May, 1907.) (FRANK BENDER,) Notary Public, (New York) County. No. (lOa.y 470 Default On Trial. ^ Opening — Order To Show Cause. FORM No. 217. Order to Show Cause Why Default Should Not be Opened (Com- plaint Dismissed). SUPREME COUET, (New York) County. (SAMUEL SARD,) Plaintiff, against (JOHN CROSBY et al.,) Defendants. "Upon the annexed affidavit, upon the pleadings herein, and all other papers and proceedings had in this action, Let the defendants or their attorneys show cause before this court at Special Term, (Part I.,) thereof, at the County Court House, in the (Borough of Manhattan, City of New York,) on the (18th) day of (December, 1906,) at 10:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why an order should not be made vacating and setting aside the dismissal of the complaint and opening the default of the plaintiff herein, and why this case should not be restored to the calendar of this court for trial, and why the plaintiff should not have such other and further relief as to this court may seem just and proper in the premises. In the meantime, and until the hearing and final determination of this motion and the entry of an order thereon, let all -pro- ceedings on the part of the defendants, their attorneys and agents and the sheriff of the county of (New YorJc) be stayed. Reasons appearing therefor, let service hereof this day before (3 P. M.) he deemed sufficient. Dated, (New York, December 17, 1906.) (/. A. O'GORMAN,) Jiistice Supreme Court. Default On Tkial. 471 Opening — Affidavit. FORm No. 218. Affidavit Used in Support of Motion. SUPKEME COUET, {New York) County. (SAMUEL SARD,) Plaintiff, against {JOHN CROSBY and JAMES BROWN,) Defendants. >-ss. : STATE OF NEW YOEK, City and County of {New York,) (HENRY FOOTE,) being duly sworn, deposes and says: I am managing attorney for Messrs. (Storms & Hoff,) the attorneys for the plaintifF in the above entitled action. This action was commenced by the plaintiff to recover of the defendants the sum of ($9,Y34.66,) for * * * (Set forth nature of action.) After the defendants served their answer this case was regularly placed upon the calendar of this court, and appeared in its order on the (Friday Call) Calendar. It then appeared at Trial Term, Part (X) of this court, and was on such Day Calendar of Trial Term, Part (10) on the (12th and 13th) days of (December, 1906,) and on several days prior to that time. On the morning of the (12th) of (December, 1906,) (Here state facts why default should not have been taken with account of case appearing on the day calendar and its being sent to a part for trial.) I again stated these facts to Mr. (Justice Leventritt,) who pre- sided in the part to which this cause had been sent for trial and he stated that in view of the fact that the case had been sent to him for trial, the case would have to go to trial, and owing to the fact that we could not proceed because * * * (State reasons.) thi^ case was marked " dismissed." I believe that this action has been brought in good faith, and plaintiff desires to prosecute the same in good faith, and I be- 472 Default On Trial. Order Opening. lieve from what I know of the facts that he has a good and meri- torious cause of action against the defendants. I make the pleadings in this case part of this affidavit, and beg leave to submit the same upon this motion. Up to the present time no judgment of dismissal has been entered, and I ask for an order vacating and setting aside said dismissal and opening the plaintiff's default, and restoring this case to the day calendar of this court. I also ask for an order to show cause, so that a stay ' of proceedings may be granted, that this motion may be heard before the entry of judgment, or the enforcement of any judgment which may be entered. No previous application has been made for the relief herein asked. (HENRY FOOTB.) Sworn to before me, this (lltli) day of (December, 1906.) (JAMES TAYLOR,) (Commissioner of Deeds,) (New York City.) FORM No. 219. Order Opening Default (Where Complaint Dismissed). At a Special Term of the Supreme Court of New York, held at (Part I.) in the County Court House in the County of (New York,) on the (24^/!) day of (December, 1906.) Present : Hon. (EDWARD E. iVcCALL,) Justice. (SAMUEL SARD,) Plaintiff, against (JOHN CROSBY et al.,) Defendants. The plaintiff herein having moved this court by an order to show cause granted by Hon. (James A. O'Gorman,) justice, re- turnable (December 18, 1906,) for an order vacating and setting Default On Teial. 473 Order Opening. aside the dismissal of the complaint, and opening the default of the plaintiff herein, and restoring this case to the calendar of this court for trial. Now, on reading and filing said order to show cause, dated (December 17, 1906,) and the affidavits of (Henry Foote,) veri- fied {December 17, 1906,) and the complaint and answer herein in support of said motion, and on reading and filing the affidavit of {Edwin Thomas,) verified {December 17, 1906,) and of {John French,) verified {December 18, 1906,) in opposition thereto, now after hearing {Henry A. Foote,) Esq., of counsel for plain- tiff, in support of said motion, and {Edwin Thomas,)- Esq., of counsel for defendants, in opposition thereto, and due delibera- tion having been had. On motion of {White d- Rice,) attorneys for the defend- ants, it is ORDERED, that upon the payment of {forty) ($40) dollars costs, within five days after service of a copy of this order with notice of entry, said motion be and the same hereby is in all re- spects granted, and ORDERED, that the default taken against the plaintiff for failure to appear upon the call of this cause for trial, be and hereby is opened, and it is further ORDERED, that the order heretofore made herein on the {l&th) day of {December, 1906,) dismissing the complaint with costs, and proceedings founded thereon, be and the same hereby is vacated and set aside, and further ORDERED, that this cause be restored to the {TYial Term,) calendar, {No. 3,) of this court and placed upon the next call calendar of said calendar {No. 3,) and the clerk is directed to set this cause down accordingly, and it is further ORDERED, that in case of failure of the plaintiff to comply with the terms of this order, judgment may be entered dismissing the complaint herein, with the costs of the action and $10 costs of this motion. Enter, {E. E. McO.y J. S. C. ADJOURNMENT OF TRIAL FORM No. 220. Affidavit to Secure. Reason: Absence of Counsel.* SUPREME COURT, County of {New York), (JOHN JONES,) Plaintiff, against (JOFIN DOE,) Defendant. STATE OF (NEW YORK), ]^ County of {New Yorlc), J {WILLIAM RICH), being duly sworn, says that he is an attor- ney and counsellor-at-law and managing clerk in the office of {Theodore Ryan), the attorney for the {plaintiff) in the above- entitled action. That deponent is informed and believes that said (Theodore Ryan) expects to try this case when reached, and that he has prepared the ease and is ready for trial. Deponent further says that said (Theodore Ryan) left New York on Monday morning last, on an important business engage- ment at (Dushore, Pennsylvania), and has been absent from the city of New York ever since. That he was eixpected to return to his office to-day, but has not yet returned and deponent does not know positively whether or not he will return to-morrow. That, if the above cause is reached for trial on the (^Qth) instant, deponent asks that the same may be passed until Monday next to await the return of said (Theodore Ryan) to try the same. That there is no one else in the office who has sufficient knowledge of the case to enable him to try the same, and that the same cannot be tried on behalf of the plaintiff until said (Theodore Ryam.) returns.. (WILLIAM RICH.) Sworn to before me, this (19th) day of (May, 1907). (WILLIAM REACH), Notary Public, (New York) County (No. (3)). * But see Rule VII, Trial Term Rules, First Dist. [474] Adjournment Op Trial. 475 Illness Of Party. FORM No. 221. Affidavit to Secure. Reason: Illness of Party. NEW YOEK SUPREME COURT, {New York) County. {JOHN J ONES,) Plaintiff, vs. {WILLIAM JAMES.) Defendant. STATE OF NEW YORK, 1 r SS ' County of {New York), J {WILLIAM HENDERSON), being duly sworn, deposes and says: That lie is the attorney for the defendant {William James), in the above-entitled action, on information and belief derived from the affidavit of {Dr. William Smith) hereto annexed, that the defendant is now ill and confined to his bed with {the grippe), at his residence, {No. 211 W. 4Sth street. New York City,) and that he is now unable to leave his house to testify in this case, and that it would be dangerous to his life to attend as a witness herein or now be examined at any other place. To deponent's knowledge, defendant's evidence is necessary and material in support of his defense herein and no other person can give such testimony. That deponent is informed and verily be- lieves that defendant will not be sufficiently well to leave his house or to testify herein inside of {two) weeks. {WILLIAM HENDERSON,) Sworn to before me, this \ {11th) day of {March, 1901). J {JOHN DANIELS), Notary Public, (New York) County {No. 236)'. 476 Adjouknment Of Teial. Illness Of Party. FOR]y[ No. 222. Affidavit to Secure — Illness of Party. NEW YQKK SUPREME COURT, {New York) County. {JOHN JONES,) Plaintiff, vs. {WILLIAM JAMES.) Defendant. STATE OF NEW YORK, 1 County of {New York),] { WILLIAM SMITH) , being duly sworn, deposes and says, that I am a physician duly and regularly licensed to practice medicine in the State of New York; that I visited {William James), at his home, (211 W. iSth street, in the City of New York), on the {llth day of March, 1907), as his physician, and know his con- dition to be serious ; that he is now confined to his bed suffering from an attack of {the grippe), the same being accompanied with {high temperature and weak heart) ; that in my judgment as his physician it would be dangerous for the said {William James) to leave his house, and that he is unable to transact any business, or to attend as a witness and is unable to give testimony in this case; that in the opinion of deponent the said {William James) will not be able to leave his house for a period of {tivo weeks.) {WILLIAM SMITH.) Sworn to before me, this {11th) day of (March, 1907). {JOHN DANIELS), Notary Public, {New York) County {No. 236)'. Adjournment Op Tkial. 477 Engagepient Of Counsel. FORM No. 223. Affidavit to Secure. Reason : Engagement of Counsel. SUPKEME COURT, (New York) County. {JOHN JONES,) Plaintiff, against {JOHN DOE,) Defendant. J STATE OE (NEW YORI{), . County of (iVew YorJc), (WILLIAM RICH), being duly sworn, deposes and says: I am an attorney and oounsellor-at-la\v, with offices at (No. 76 William street, Borough of Manhattan, City of New York), and I am associated with (Thonias Oaks), who has been retained as counsel for the defendant in this action; that the said (Oaks) has prepared this action and is ready for trial, and expects to try the same when reached. That I am acquainted with all of said (Oaks's) professional engagements; that the said (Oaks) is now actually engaged, as coimsel for the plaintiff, in the trial of the case of (Williams) against (Reilly), before (Hon. Justice Sea- hury), in the (City Court of the City of New York, Part V.) and that the said trial of (Williams) against (Reilly) will probably continue during all of (Friday, May 20th, 1907). WHEEEEORE, I respectfully request that the ease of (Jones) against (Doe) be passed for the day. (WILLIAM RICH.) Sworn to before me, this (20th) day of (May, 1907). (THEODORE UPSOM), ISTotary Public, (New York) Coimty (No. (12)). SUBP(ENAS — NOTICE TO PRODUCE. FOEM No. 224. Subpoena. THE PEOPLE OF THE STATE OF JSTEW YOKK, To (WILLIAM RICH). GREETING : WE COMMAND YOU, that all and singular business and excuses being laid aside, you and each of you appear and attend before one of the justices of our Supreme Court, at a Trial Term, {Part XIV) thereof to be held in and for the county of New York, at the County Court House, in the said county on the (Qth) day of {June, 1904), at (10:15) o'clock in the forenoon, to testify and give evidence in a certain action now pending in the Supreme Court, then and there to be tried between {John Jones), plaintiff, and {John Doe), defendant, on the part of the {plaintiff); and for a failure to attend you will be deemed guilty of a contempt of courts and liable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit fifty dollars in addition thereto. WITNESS, Honorable {Jolin W. Goff),'' one of the justices of our Supreme Court at the County Court House in the County of {New York,) the (ith) day of (June), in the year one thousand nine hundred and {seven). {PETER J. DOOLING), Clerk. {WILLIAM RE ILLY), Attorney for {pladrdiff), {No. 52 William Street), (sEiAL.) {New York City). * In the First District insert name of justice sitting at Special Term, Part II. It is safest practice to have the subpcena signed by the clerk and the seal of the court affixed. [478] Subpoena. 479 Duces Tecum. FOEM No. 225. Subpoena Duces Tecum. THE PEOPLE OF THE STATE OF NEW TOEK, To {WILLIAM RICH), Esq., GEEETmG: WE COMMAND YOU, that all the business and excuses being laid aside you appear and attend before one of the justices of our Supreme Court, at a Trial Term, (Part XIV) thereof, to be held in and for the county of New York, at the County Court House in said county, on the (Qth) day of (June, 1904), at (10 :15) o'clock in the (/ore)noon, to testify and give evidence in a certain action now pending undetermined in the said court between (John Jones), plaintiff, and (John Doe), defendant, on the part of the (pUuintiff), and that you bring with you, and produce at the time and place aforesaid, a certain (agreement made by John Doe, as party of the first part, and William Rich, as party of the second part, bearing date January 12th, 1904, relating to the distribution of profits arising out of the sale of certain real estate therein men- tioned), now in your custody, and all other deeds, evidences and writings which you have in your custody or power, concerning the premises. And for a failure to attend, you will be deemed guilty of a contempt of court, and liable to pay all loss and damages sus- tained thereby to the party aggrieved, and forfeit fifty dollars in addition thereto. WITNESS, (Hon. Charles H. Truax),* one of the justices of our said Supreme Court, at the County Court House, in said county of New York on the (I'ith) day of (June, 1907). (PETER J. DOOLING), Clerk. (WILLIAM RE ILLY), Plaintiff's Attorney, (No. 52 William Street), (seal.) (New York City). * la the First District insert name of judge sitting at Special Term, Part II. In the case of a corporation a. subpoena diices tecum should be directed to the president or the officer in charge of the books or papers. 480 Subpoena. To Testify — Before Referee. FORM No. 226. Subpoena to Attend Before Referee. SUPREME COURT, {New York) County. {COMMERCE NATIONAL BANK,) Plaintiff, against {JOHN W. McKEE) and others, Defendants. By virtue of an order made in the above action by the Special Term of the Supreme Court, Special Term, {Part I., thereof) entered herein on the {^rd) day of {October, 1906, I, Edward. E. McCall), the referee appointed in this action, do hereby summon you to appear at my office No. (346 Broadway, in the Borough of Manhattan, Ciiy of New York) on the (7^^) day of {October, 1906), at {eleven) o'clock in the (/o»-e)noon to attend a hearing of the matters in said action referred to me as such referee, pursuant to said order. And hereof fail not at your peril. Dated {October 3, 1906). {EDWARD E. McCALL), Referee. To {William J. Kimball). Subpoena. 481 Affidavit Of Service. rORM No. 227. ** Affidavit of Service of Subpoena. SUPKEME COURT, ^^ {New York) County. '^ {EENBY FOLMER,) Plaintiff, against {SAMUEL SEELEY,) Defendant. STATE OF NEW YORK, 1 County of {New York), J {JAMES 81NC0E), being duly sworn, says that on the (26i/i) day of {February, 190i7), he served the annexed subpoena per- sonally on {Edward Fairchild), the person therein named as wit- ness, by then and there exhibiting to him the said original sub- poena, and delivering to him a copy thereof and paying to him, at the same time and place {one dollar and thirty cents), as and for his fees for traveling. from (29 West 155th St., Bormvgh of Manhattan, City of New York), which then was the residence of the said {Edward Fairchild), to the placSS ' County of {New York.) f {Charles W. Ralston,) being duly sworn, deposes and says; that he is an attorney-at-law and one of the firm of {Ralston & Rice,) having an office at (32 Liberty street. Borough of Man- hattan, New York City;) that the said firm represents in this action the defendant {Walter Johnson and did represent his wife, Sarah, until the day of her death.) This action was brought to {partition certain' real estate situated in the city of New York and left by Robert Wilson.) The action was begun in {January, 1906,) and said firm appeared on {February 1, 1906,) for the above-named defendants. That in many respects the services rendered in this action were not ordinary routine services. That various motions had to be made and argued and various lengthy consultations had and efforts made to obtain adjournment of sale, and that there were many questions of law involved. That de- ponent's firm was engaged substantially {forty (40) days) in work on this suit. That {prior to February 1st said firm examined the summons and complaint herein, and the will of Robert Wilson, and questions of law arising therefrom. That on February Ist we drew the notice of appearance for both defendants and served the same, and> on July 17, 1907, we received and examined a notice of motion for the reference returnable July 2Sd.) On August 9th 506 Allowance To Attoeney. AfTidavit. a copy of the order appointing the referee and notice of entry were served upon us and examined. We received a notice of hearing before the referee for August 2i8th, at 10 :30 a. m. On the 2Sth of August we attended the same. The hearing was adjourned to September 6th, and again adjourned to Sep- tember 1th, and again adjourned to the 11th of September. On the nth of September ive attended the hearing and the same luas closed. On November 12th we received and examined a copy of the referee's report and notice of filing. On November 20th we received notice of exceptions to the report and examined the same. On November 23d we received notice of motion for judgment returnable on November 28th. On November 21st one of the defendants Mary T. Rogers died. On February 28th motion for judgment was adjourned to the SOth of Novem- ber and on November 30th the said motion was withdrawn. On December 1st deponent's firm drew and served notice of motion to open the reference for December Qth and filed a note of issue of the motion. The same was adjourned to December 7th and new note of issue filed. On December 7, 1906, we attended before Mr. Justice Davis and argued the motion to re- open the reference. Mr. Justice Davis handed down a decision on December 17th. On January 2, 1907, we received a pro- posed order and notice of settlement returnable January 4:th. On January Mh the order was signed by Mr. Justice Davis. On January 5th we received and examined the order and notice of its entry. On March 25th we received and examined notice of motion to substitute the German Trust Company as adminis- trator, c. t. a. of William French and Martha French and examined the same. On March 30th we received and ex- amined copy of the order substituting the said German Trust Company and notice of entry, and on April 11th we received and examined the papers on the motion for judgment. On April 16th the motion for judgment was submitted and on April 20th Mr. Justice Laughlin at Special Term Fart III, handed down a lengthy decision. On June 11th we received the proposed interlocutory decree and notice of settlement for June 13th and exam,ined the same. On June 13th inter- locutory decree ivas submitted to Mr. Justice Leventritt, and the next day the interlocutory judgment was signed hy him,. On June 21st we received copy of the interlocutory judgment and notice of entry and examined the same. On July 6fh we re- Decisions. 507 Trial Without Jury. ceived notice of sale for July 17th and subsequently had many consultations in regard to the adjournment of the sale. The sale was adjourned hy consent to July 29th by agreement with the attorneys for the plaintiffs, but the referee refused to adjourn the same and the sale tooh -place on July 17th and the property in question was sold by the referee in three separate pa/rcels for the aggregate sum of $400,000. The share of Walter Johnson is one-fifth and in view of the amount involved and the labor expended, deponent believes that the sum of ($500!) is a reasonable allowance in addition to the costs, and therefore, asks for such ad- ditional allowance. (CHARLES W. RALSTON.) Sworn to before me, this (29^) day of (July, 1907.) (EDWARD W. WILCOX,) Comm. of Deeds, (New York City.) DECISIONS. NOTE. All findings must be embraced in the decision of the Court or the report of the referee if they are to be considered by the Ap- pellate Court for any purpose. (117 App. Div. 519.) FORM No. 249. Decision of Judge — After Trial Without a Jury. NEW YORK SUPEEME COURT, (New York) County. (JAN. MACPHERSON,) Plaintiff, against {DOUGLAS FINLAN80N,) Defendant. This action having regularly come on for trial and been heard before Hon. (James A.- O'Oorman,) one of the justices of this 508 Decision. Dismissing Ck>mplaint On Merits — Trial Term. court, without a jury at Special Term, {Part III) of. this court, held on the (7i/i) day of (April, 1907,) upon the pleadings and proceedings herein, the plaintiff having appeared hy {Richard K. Golden,) his attorney, and the defendant having appeared by {Hugh MacLean,) his attorney, and the proofs of both parties having been adduced and their respective counsel heard, and due deliberation having been had thereon, I do decide and find as follows : Findings of Fact. I. II. III. and do further decide as Conclusions of Law. I. II. III. IV. That the {plaintiff) is entitled to judgment * * * Dated, {JAMES A. O'GORMAN,) J. S. C. FORM No. 250. Decision — By the Court — Dismissing Complaint on the Uerits. {CITY COURT OF THE CITY OF NEW YORE,) {THE McVIGKAR COMPANY,) Plaintiff, against {MARKET NATIONAL BANK OF NEW YORK,) Defendant. J The issues in this action duly coming on to be tried before the undersigned, one of the justices of this court, and a jury at a Trial Term thereof, held on the {15th) day of {February, 1905,) Decision. 509 Dismissing Complaint On Merits — Trial Term. at the court house thereof, (No. 32 Chambers street, in the Borough of Manhattan, City of New Yorh,) and the issues having been duly tried on said day, and the allegations and evidence of the parties having been heard, and the plaintiff and the defendant having thereupon at the close of the evidence each moved for a direction of a verdict, and the court having thereupon, by consent of all parties, duly given in open court and entered in the minutes, discharged the jury and reserved its decision on said motions ; now, after hearing (Burton WilliamSj) of counsel for the plaintiff, and (Charles Ferguson,) of counsel for the defendant, and due deliberation having been had, I decide and find as folLvvs: Findings of Fact. I. That the plaintiff is a domestic corporation created by, exist- ing and doing business under the laws of the State of l^ew York, having its principal place of business in the Borough of Manhat- tan, City of New Yorh, and was at all the times hereinafter men- tioned the owner in fee of the premises known as 3 Park Place, in the Borough of Manhattan, in the City of Neiu York. II. That the defendant is a domestic corporation created by and existing under the laws of the United States of America, having been duly organized as such under the National Bank Act, and -having its principal place of business in ISTew York city. III. That the defendant was heretofore engaged in business as a national bank in the Borough of Manhattan, in the City of Ne;v York, and was so engaged from June 2nd, 1901, until the month of February, 1905, when a receiver of said hank was appointed by the Comptroller of the Currency pursuMrd to said National Bank Ad. IV. That the certificate of organization of the defendant was filed with the Comptroller of the Currency on the IQth day of May, 1904. V. That its incorporators met and organized on the 27th of May, 1904, by electing Thomas Wilson, president, and John Peters, cashier. VI. That the certificate of the Comptroller of the Currency authorizing the defendant to commence the business of banking was issued on the 2nd day of June, 1904, and authorized the defendant to commence the business of banking on said 2nd day of 510 Decision. Dismissing Complaint On Merits — Trial Term. June, 1904, and that the defendant had no authority to engage in or transact business prior to the said 2nc? day of June, 1904. VTI. That on the ^Ith day of May, 1904, the plaintiff and the defendant entered into a lease in writing, dated the 1st day of May, 1904, whereby plaintiff leased and demised to the defendant a portion of the ground floor of the premise:, 3 Park Place, in the Borough of Manhattan, in the city of New York, for use as a banking office; that said letting was for a term of five years to commence on the 1st day of May, 1904, and was upon the yearly rent of $9,000, payable in equal monthly instalments of $Y50 each on the 1st day of each month in advance. VIII. That the defendant entered into possession and enjoy- ment of the demised premises under said lease on or about the 10th day of May, 1904, and continued in the actual occupation thereof until the month of Fehrvmry, 1905. IX. That the plaintiff executed said lease prior to the 2^th day of May, 1904, and delivered the same to the defendant for execution; that on the 27^^ day of Ma/y, 1902, the said defendant by its president and cashier executed said lease and deliv^^red the same to the defendant corporation on said day, and the said lease was thereupon accepted and retained by the plaintiff. X. The defendant paid the rent of the said premises for the month of May, 1904, and for each and every month thereafter to January, 1905, in advance as required by the terms of said lease. --- Conclusions of Law. I. That the defendant in this action was not at the time of the execution and delivery of the lease set forth in the complaint authorized by the Comptroller of the Currency to commence the business of banking. II. That the execution of the leas© set forth in the complaint by the defendant was not incidental and necessarily preliminary to its organization and to its entering upon the business of banking. III. That the defendant corporation not being authorized to commence business, had no authority to execute and deliver the lease set forth in the complaint on the 27th day of May, 1904, or to legally bind the defendant corporation thereby ; that the act of the officers in executing and delivering said lease on said day was null and void. Decision. 511 Dismissing Complaint On Merits — Special Term. IV. That the defendaxit is entitled to judgment dismissing tke complaint of the plaintiff on the merits, with costs, which are hereby awarded to the defendant and against the plaintiff to be taxed, and I hereby direct judgment accordingly. Dated, New York, February 24ft, 1905. (F. B. DELEEANTY,) Justice of the (^City Court of the city of New York.) FORM No. 251. Decision Dismissing Complaint — Special Term. SUPREME COURT, {New Yorh) County, {CLARENCE D. BALDWIN,) Plaintiff, against {JOHN J. McGBATH, Impleaded with TERENCE McDONNELL,) Defendants. This action having come on for trial by the court at a Special Term held by the undersigned without a jury on the {lUh) day of {January, 1906,) and the defendant {John J. McGrath,) by his counsel, having moved for judgment on the pleadings, and after hearing {Charles F. Brown,) Esq., counsel for said de- fendant, in support of said motion, and {Lucius H. Beers,) Esq., counsel for plaintiff, in opposition, and upon due deliberation I find and decide that the complaint {and supplemental complaint) herein {do) not state facts sufScient to constitute a cause of action, and I accordingly direct judgment to be entered herein dismissing the complaint {and the supplemental complaint,) with costs to said defendant to be taxed. (/. A. O'OORMAN,) Justice of the Supreme Court of the State of New York. JUDGMENTS. FORM No. 252. Statement and Confession of Jud^eut. NEW YOEK SUPEEME COUET, (New Yorh) County. (RALPH HAYNES,) Plaintiff, against (WILLIAM JOHNSON and HOW- ARD BROWN,) Defendants. The undersigned, one of the defendants above named, hereby confesses judgment in this action in favor of (Ralph Haynes), plaintiff above named, for the sum of (three hundred and fifty ($350') dollars, and hereby authorizes him, his heirs, adminis- trators -or assigns, to enter judgment therefor against him on or after (October 15, 1906). This confession of judgment is for a debt justly to hecome due to the plaintiff on (October 1, 1906), arising upon the following facts : On the first day of September, 1904, the undersigned made and delivered to the plaintiff his promissory note, of which the follow- ing is a copy: $350.00. New Yorh, Sept. 1, 1906. Thirty days after date I prom.ise to pay to the order of Ralph Haynes Three hundred and fifty ($350) dollars. Yalue received. (WILLIAM JOHNSON.) The consideration of said note was professional services rerir dered by plaintiff to the undersigned as his attorney in an action in the Supreme Court, county of Westchester, brought against under- signed by Arthur Morton and others, which action the plaintiff was retained to defend for the agreed sum of three hundred and fifty ($350) dollars. (WILLIAM JOHNSON.) [512] Judgment. 513 statement For, On Confession. STATE OF NEW YOKK, 1 rSS * County of (New York), J (WILLIAM JOHNSON,) one of the defendants above named, being duly sworn, says that he is the defendant making the above statement and confession of judgment, and that the matters of fact therein set forth, are true. (WILLIAM JOHNSON.) Sworn to before me, this ] 25th day of September, 1906. j" (WILLIAM BARBER,) !N^otary Public, (New York) Co. FORM No. 253. Judgment Entered on Confession — With Bill of Costs.* NEW YOEK SUPEEME COUET, (New YorJc) County. (RALPH HAYNES,) Plaintiff, against (WILLIAM JOHNSON and HOW- ARD BROWN,) Defendants. Statement for Judgment. * Upon Entey of Judgment by Confession. Costs by statute (§ 1275, Code) $15 00 For each additional defendant served, $2. (§ 3251, subd. 1, Par. 2), each 2 GO Affidavits. (§ 3298, Code) , each 12 Transcript of judgment and filing. i§ 3301, Code, Pars. 7 and 8) . . 18 For serving summons and complaint. (§ 3307, subd. 1. Code) 1 00 Clerk's, fees on entering judgment. (§ 3307, Par. 3, Cod^ 50 Postage. (§ 3256, Code) 00 Sheriff's fee on execution. (§ 3307, subds. 6 and 10, Code), and mile- age, 10 cents a mile one way, in addition to fee 1 75 Satisfaction and filing. (§ 3304, subd. 9, Code). 37 33 514 Judgment. On Confession — Costs Thereon. Amount confessed • $350 00 Interest Costs by statute $15 00 Affidavits 24 Transcripts and docketing 18 Clerk's fees entering judgment 50 Postage Sheriff's fees on execution 2 25 Satisfaction piece 25 18 42 Total $368 42 ?•}' STATE OF ISTEW YOEK, County of New York (JOSEPH KERN AN,) being duly sworn, says, that he is man- aging clerk for the plaintiff's attorney in the above action; that the disbursements above mentioned have been made in said action or will be necessarily made or incurred therein, asi he verily be- lieves. (JOSEPH KEEN AN.) Sworn to before me, this "I lUh day of October, 1904, J (FRANK WHITE,) Notary Public (N. Y.) Co. JUDGMENT. On filing the statement and confession of judgment hereto an- nexed it is hereby adjudged that Ralph Haynes, the plaintiff, do recover of Willia/m Johnson, one of the defendants, the sum of three hundred and fifty ($350) dollars, the amount claimed and interest, with eighteen and 42/100 ($18.42) dollars costs and disbursements, amounting in the whole to the sum of three hun- dred and sixty-eight and 42/100 ($368.42) dollars, and that said plaintiff have execution therefor. (THOMAS L. HAMILTON,) Clerk. Judgment. 515 statement For, On Default. FOEM No. 254. Statement and Judgment on Default.'" (CITY COURT OF THE CITY OF NEW YORK). (JOHN JONES,) Plaintiff, against (JOHN DOE and RICHARD ROE,) Defendants. 'Statement for judgment. Amount claimed in (summons) ($1,000 00) Interest ".' (30 00) ($1,030 00) Costs by statute. ($15 00) Defendants served with process, $2 each (2 00) Affidavits (2), (12ic each) (25) Transcripts and docketing, (always same) ., (12) Serving complaint and summons. . . .-. • (3 00) Clerk's fee entering judgment (City- Court, $1) ,:. (1 00) Postage Satisfaction piece (25) *EsrTET OF Judgment by Default. Costs by statute. (§ 3251, Subd. 1, Par. 1, Code) $15 00 For each additional defendant served, $2. (? 3251, Subd. 1, Par. 2) each 2 00 Affidavits. (§ 3298, Code), each 12 Transcript of judgment and filing. (§ 3301, Code, Pars. 7 and 8).. . 18 For serving summons and complaint. (§ 3307, Subd. 1, Code) 1 00 Clerk's fees on entering judgment. (§ 3307, Par. 3, Code) 50 Postage. (§ 3256, Code). 00 Sheriff's fee on execution. (§ 3307, Subds. 6 and 10, Code) 1 75 Mileage, a mile, one way, in addition to fee 10 Satisfaction and filing. ( § 3304, Subd. 9, Code) 37 516 Judgment. On Default In Pleading. Sheriff's fees on execution ($1.Y5, and mileage, 10c a mile) ($2 05) ($24 40) ($1,054 40) STATE OF NEW YORK, 1 County of (New York),] (EZRA WILLIAMS), being duly sworn, says, that he is the plaintiff's attorney in the above-entitled action ; that the disburse- ments above mentioned, have been made in said action, or will be necessarily made or incurred therein; that the time for the de- fendant to appear, answer or demur herein has expired, and that said defendant has not appeared or answered or demurred herein, except (EZRA WILLIAMS.) Sworn to before me, this (12^) day of (May, 1904). (THEODORE RYAN), IsTotary Public, (New York) County, No. (326). JUDGMENT. Entered (May 12, 1904.) The summons (and complaint) in this action having been personally served on (John Doe and Richard Roe), the defendants on the (5th) day of (May, 1904), and the time for said defendants to appear, answer or demur herein having fully expired and said defendants not having ap- peared or answered or demurred herein except NOW ON MOTION of (Ezra Williams), plaintiff's attorney, it is hereby adjudged that (John Jones), the plaintiff, do recover of (John Doe and Richard Roe), the defendants, the sum of (ten hundred and thirty dollars) ($1,030.00), the amount claimed and interest, with (twenty-four and 45/100 dollars ($24.45)) costs and disbursements, amounting in the whole to the sum of (ten hundred fifty-four and 45/100 dollars ($1,054.45)), and that said plaintiff have execution therefor, ( THOMAS F. SMITH) , (seal. ) Clerk. Judgment. ,517 Tor Sum Of Money. FORM No. 255. Judgment for Sum of Honey. {CITY COURT OF THE CITY OF NEW. YORE.) ^^ {HENRY MANN,) Plaintiff, against {JOHN ANDERSON,) Defendant. The issues in tihe above-entitled action having come on for trial before Honorable {Francis B. Delahanty) and a jury at Trial Term, Pari V., of this court, and the jury having returned a verdict in favor of the {plaintiff) and against the {defendarit) for the sum of {three hundred dollars ($300), and the costs of the plaintiff having been taxed at {one hundred and five and 02/100 ($105.02) dollars. NOW, on motion of {Charles H. Clinton,) attorney for plain- tiff, IT IS ADJUDGED, that the {plaintiff, Henry Mann,) do re- cover of the {defendant, John Anderson,) the sum of {three hundred ($300) dollars, together with {one hundred and five and 02/100 ($105.02) dollars costs as taxed, making in all the sum of {four hundred and five and 02/100 ($405.0'2) dollars, and that said plaintiff have execution therefor. Dated, {October 15, 1904.) {THOMAS F. SMITH.) Clerk. 518 J UDGMBNT. Dismissing Complaint — Trial Term. FORM No. 256. Judgment Dismissing Complaint — Trial Term, SUPREME COUET, County of (New York). CATHERINE DE WOLF,) Plaintiff, against (SIMEON FOBMAN and SAMUEL T. SHAWMAN,) Defendants. ^Judgment. Judgment, (November 16, 1906.) The summons herein having been personally served- on the defendants, who appeared by (John C. Gulich) as their attor- ney, and the complaint having thereupon been served and the de- fendants having served their answer, and the issues thus raised having come on for trial on the (lHh) day of (November, 1906,) at a Trial Term of this Court, (Part X) before Mr. Justice (Charles H. Truax), and a jury, and the defendants having moved on the pleadings to dismiss the complaint and the same having been dismissed, and the defendants' costs having been duly adjusted on notice at the sum of (One hundred and four- teen and 32-100) dollars, now on the summons and pleadings herein, and on reading and filing a certified copy of the clerk's minutes, showing such dismissal, and on motion of (John C. Gulich), defendants' attorney, it is ADJUDGED, that this action be and the same is hereby dis- missed, and that the defendants, (Simeon Forman and Samuel T. Shawman,) recover of the Plaintiff, (Catherine De Wolf,) the sum of (One hundred and fourteen and 32-100) dollars costs as taxed, and have execution therefor. (PETEB J. DOOLING.) Clerk. (seal.) Judgment. 519 Dismissing Complaint — Special Term. FORU No. 257. Judgment Dismissing Complaint — Special Term. At a Special Term, (Part III,) of the Supreme Court, held in and for the County of (New Yorh,) at the County Court House, in said County, on the (Zrd) day of (February, 1906.) Peesent : Hon. (JAMES A. O'GOBMAN,) Justice. (CLARENCE D. BALDWIN,) Plaintiff, against (JOHN. J. McGRATH, impleaded with TEBBENCE McDONNELL,) Defendants. This action having duly come on for trial before Mr. Justice (James O'Gorman,) at a Special Term, (PoA-t III,) of this Court, held on the (l%th) day of (January, 1906,) at the County Court House in the County of (New York,) and the defendant (McGrath) having moved for judgment on the pleadings, and the court having heard the parties thereon, and after due de- liberation having made and filed on the (2nd) day of (February, 1906,) a decision in favor of the defendant, (McGrath,) and against the plaintiif, directing judgment as hereinafter stated, ■with costs to said defendant against the plaintiff, to be taxed, NOW, on motion of (Sol. A. Cohn,) Esq., attorney for said defendant (McGrath,) it is ADJUDGED, that the complaint (and supplemental com- plaint) of the plaintiff be and the same hereby (are) dismissed, and that said defendant (McGraih) recover of the plaintiff his costs, as taxed, amounting to the sum of (Three hundred, twenty- nine and 66/100 dollars ($329.66,) and that he have execution therefor. Judgment signed and entered this (^rd) day of (February, 1906.) (/. A. O'GOBMAN,) J. S. C. (PETEB J. DOOLING,) Clerk. 520 Judgment. Dismissing Complaint On Merits -— Trial Term. FORM No. 258. Judgment Dismissing Complaint Upon the Merits. SUPREME COUET OF THE STATE OF JSTEW YOEK, {New York) County. {JOHN R. BAKER,) Plaintiff, against {CHARLES J. PRANKARD,) Defendant. J The issues in this action having been brought on for trial before Mr. Justice {David Leventritt) and a jury at a Trial Term, {Part III.,) of this court, held on the {15th) day of {February, 190i7,) at the County Court House in the {Borough of Manhattan,,) City of {New Yorh,) and the issues having been duly tried, and the plaintiff and the defendant having thereupon at the close of all of the evidence each moved for a direction of a verdict ; and the court having thereupon, by consent of all the parties, duly given in open court and entered in the minutes, discharged the jury, and reserved its decision on the said motions; and the court having, after due deliberation, duly directed judgment in favor of the defendant, and against the plaintiff, dismissing the plaintiff's complaint upon the merits, with costs, and having thereafter, on the (24 532 Costs. Motion to Eetax — AfiSdavit. FORM No. 262. Motion for Retaxation — Affidavit. SUPREME COURT, (Onondaga) Comity. (THOMAS PARKER,) Plaintiff-respondent, vs. (THE NEW YORK RAILROAD COMPANY,) Defendant-appellant. STATE or NEW YORK, County of (Onondaga),. (Peter Coley), being duly sworn, deposes and says, that he is one of the attorneys for the (plaintiff) herein, and is familiar with all the proceedings in the above-entitled action; that herebefore, and on the (26th) day of (November, 1900), the (plaintiff's) costs upon appeal herein were taxed by the Clerk of the County of (Onondaga) at the sum of ($226.01), and a copy of which bill of costs and notice of adjustment thereof was duly served upon (defendant) and appellant's attorney on that day with a notice of readjustment for the (28th) of (November, 1900), at (10) o'clock A. M. That the readjustment of said costs was duly postponed to (November 28, at 2 p. m.) That at such date and time deponent appeared on the part of the (plaintiff-respondent) upon the re- taxation of his costs herein; that the (defendant-appellant) ap- peared and objected to the allowance of certain of the items con- tained in said bill of costs. That the (defendant) filed written objections thereto; that the (defendant) objected to the item of ($110) for (copy of stenog- rapher's minutes) on the ground that it was not a taxable cost or disbursement, that thereupon the Clerk sustained said objection and struck said item of ($110) for (stenographer's minutes) from the bill of costs as taxed. That the objections to said item appear more fiilly by the written objections which were filed by the (defendant-appellant) herein. Costs. 533 Motion to iietax — Affidavit. That on said (28th) day of (November, 1900,) the said Clerk of (Onondaga) Cotmty sustained said objection made by defend- ant to the fees for a copy of stenographer's minutes and struck out the said item above mentioned in his retaxation of (plaintiffs- respondents) costs upon appeal herein, and that the costs and dis- bursements herein were retaxed on said (28th) of (Novernber, 1906) in the sum of ($106.01) ; that deponent duly presented said item above mentioned for retaxation and opposed the sus- taining of the said Clerk of the objections thereto; that the (plaintiff) is desirous of having such retaxation reviewed and of having said costs and disbursements again taxed by the County Clerk, and of having the item so stricken out allowed and included in said bill of costs ; That no previous application for the relief asked for herein has been made to any court or judge. (PETEB COLEY.) Sworn to before me this (30^^) day of (November, 1900'.) (FRANK C. JOHNSON,) Notary Public, (Onondaga) County, E". Y. 534 Costs. Order Eetaxing. FORK No. 263. Order Eetaxing Costs, At a Special Term of the Supreme Court, held in and for the County of {Onondaga,) at tho Court House, in the City of {Syracuse,) on PttESENT: the {'^th) day of {December, 1906.) Hon. {W. 8. ANDREWS,) Justice. {THOMAS PARKER,) Plaintiff-respondent, against {NEW YORE RAILROAD COMPANY,) Defendant-appellant. A motion having been made by the above named {plaintiff- respondent,) to review a taxation of costs made herein by the Clerk of {Onondaga) County on the {2,8th) day of {Novemher, 1906,) in so far as the Clerk upon said taxation struck out and disallovsred from said bill of costs of the {plaintiffs-respondents) the item of ($110) paid for {a copy of the stenographer's min- utes,) of the trial hereof, obtained by {plaintiff-respondent) to prepare amendments to the case and exceptions upon appeal herein. NOW, upon reading and filing the affidavit of {Peter Coley,) verified the {SOth) day of {November, 1906,) the notice of mo- tion thereto attached, with proof of due service thereof, together with the papers referred to in said notice of motion, and after hearing {James & Mann) in favor of said motion, and {Cowen & Jones,) opposed, it is ORDEREI>, that a retaxation of {plaintiff-respondents) costs upon the appeal of the {defendant-appellant) to the Appellate Division of the Supreme Court is hereby ordered, and the Clerk of {Onondaga) County is hereby directed to allow the item of ($110) stricken out from the {plaintiff's) bill of costs as a tax- able disbursement of the {plaintiff-respondent) herein, and {plain- tiff) is hereby allowed $10 costs of this motion. {W. 8. A..) J. s. a Costs. 535 Costs Of Minutes Allowed As Disbursements. FOBiyi No. 264. Order Allowing Costs of Minutes as a Disbursement. At a (Special Term, Part V.) of the Supreme Court of the State of New York, held in and for the County of (New Yorh,) at the County Court House in (the Borough of Manhattan, City of New Yorh,) on the (18^A.) of (March, 1907.) Peesent : Hon. (EDWARD S. CLINCH,} Justice. (RICHARD WATSON,) Plaintiff, against (8HERWIN HOLMES,) Defendant. The minutes of the testimony herein having been duly written out by the direction of the court, because necessary to enable the court to duly hear and determine the same, ORDERED', that the expense of attending and taking the tes- timony and furnishing the same to the court which was paid and incurred by the (plaintiff) be paid to the (plaintiff) , and that the same be taxed as a disbursement herein by the Clerk of the court. Enter, (E. S. C) J. S. C. MOTION FOR NEW TRIAL— EXECUTION. FORM No. 265. Order Denying Motion for New Trial. At a Trial Term of the Supreme Court, held in and for the County of (Westchester,) at the Court House in the (Town of White Plains,) on the (22ncZ) day of {October, 1903.) Peesent : Hon. {WILLIAM J. GAYNOB,) Justice. {JOHN NICHOLSON,) Plaintiff, against {THE CITY OF NEW BOCH- ELLE,) Defendant. ' The issues in this action having come regularly on for trial before the Hon. {William J. Gaynor) and a jury, ^t a Trial Term of this court, on the {20th) day of {October, 1903,) and the same having been duly tried, and the jury having rendered a verdict in favor of the {Plaintiff) and against the {Defendant) for the sum of ($2,500,) and the {defendant) having moved to set aside the verdict and for a new trial upon the ground that the same was against the weight of evidence and contrary to law, and on all the grounds as specified in Section 999 of the Code of Civil Procedure; After hearing Mr. (/. Base, Bossiter,) of counsel for the de- fendant, and in favor of the motion, and Mr. {John Thompson,) of counsel for the plaintiff, in opposition thereto ; ISTOW, on motion of {William Davis,) attorney for the de- fendant, it is OEDERED, that the said motion be and the same hereby is denied. {W. J. GAYNOB,) [536] J. S. 0. Motion Foe New Trial. 537 Ofaer Denying. POEM No. 266. Order Denying Motion for New Trial. At a Trial Term, {Part XII,) of tHe Supreme Court of the State of New York, held at the County Court House, in the County of (New York,) on the (10th) day of (February, 1904.) (Hon. (FBANCIS M. SCOTT,) Justice. (AUGUSTUS K. ARM AN,) Plaintiif, against (THE UNITED SURETY COM- PANY,) Defendant. This action having been tried before the Court and a jury, at a Trial Term of this Court, held in and for the County of (New York,) at the County Court House, in the (Borough of Man- hattan, City of New York,) on the (9th, 10th and 11th) days of (November, 1903,) and the allegations and proofs on the part of the plaintiff having been heard and the defendant having moved to dismiss the complaint on the ground that the plaintiff had failed to sustain the cause of action set forth in the complaint, and had failed to sustain any cause of action set forth in the complaint, and had failed to sustain any cause of action, and (the Court having suggested that it proceed to hear defendants allegations and proofs and the defendant's allegations and proofs having been heard, and thereafter the defendant having reneived his motion to dismiss, and having at that time also moved that a verdict in its favor be directed hy the court, and the court hav- ing submitted the following questions to the jury. 1. Did the plaintiff, on August 5, 1898, take actual, open and public possession of the chattels pledged to him by the Busy Manufacturing Company? 538 Motion Fok New Trial. Order Denying. 2. If the plaintiff did take such actual, open and public pos- session of the chattels, did he retain such possession openly and continuously until the Sheriff took possession of the chattels ? 3. What damage did the pla/intiff suffer, if he was owner of the property, through its taking by the Sheriff?) And the Court having reserved decision on the motion to dismiss the complaint (until the coming in of the verdict of the jury thereon, and the jury having answered "yes," to the first and second questions, and in answer to the third question having assessed the plaintiff's damage at $4,611.20 and it having been stipulated in open court that the jury might be discharged and that upon the hearing of the motion to dismiss the complaint a general verdict be entered upon the miivutes as if the jury were actually present,) and thereafter such argument having been had and the court after due deliberation having by an order entered herewith on the 29th day of January, 1904, nonsuited the plaintiff, and plaintiff having duly excepted thereto, and a motion having been made by the plaintiff on the minutes of the judge who presided at the trial to set aside the direction nonsuiting the plaintiff and grant a new trial on the exceptions and Mr. (Chauncey S. Truman,) of coun- sel for plaintiff, having been heard in support of the motion, and Mr. (William J. Griffith,) of counsel for the defendant, in oppo- sition thereto, it is Ordered, that the said motion be and the same is hereby denied. It is further ordered, that the plaintiff have sixty days after the entry of the judgment and service of notice thereof upon him or his attorneys in which to make and serve his case on appeal and that the plaintiff have sixty days stay of execution from such entry, and service of such notice. It is further ordered, that the plaintiff's exception to said non- suit be entered on the minutes of the trial by the Clerk at said Trial Term, Part XII. Enter (F. M. SCOTT.) J. S. C. Execution, 539 Against Property. FORM No. 267. Execution Against Property. THE PEOPLE or THE STATE OE NEW YOEK, To the Sheriff of the County of {New York,) Greeting: WHEREAS, judgment was rendered on the {IQiK) day of {March) one thousand {nine) hundred and {five,) in an' action in the {Supreme) Court {New York County) between {Witliam As- tor,) plaintiff and {Mitchell Randolph,) defendant, in favor of the said {William Asicr) against the said {Mitchell Randolph,) for the sum of {fifteen hundred and sixty) dollars ($1,560!), as ap- pears to us by the judgment roll, filed in the office of the Clerk of the {Supreme Court,) County of {New York;) AND WHEREAS, the said judgment was docketed in the office of the Clerk of your County on the {2nd) day of {April,) in the year one thousand nine hundred and {five,) and the sum of {fif- teen hundred and sixty) dollars is now actually due thereon ; THEREEORE, WE COMMAND YOU, that you satisfy the said judgment out of the personal property of the said judgment debtor within your County ; or if sufficient personal property can- not be found, then out of the real property in your County belong- . ing to such judgment debtor at the time when the said judgment was so docke^d in the office of the Clerk of your County, or at any time thereafter, in whose hands soever the same may be, and return this execution, within sixty days after its receipt by you, to the Clerk of the {Supreme Court) County of {New York.) WITNESS, Honorable {James A. -Blanchard,) one of the jus- tices, of said court, at the {City of New York,) the {third) day of {April,) one thousand nine hundred and {five.) (JAMES J. MAXWELL,) Attorney for Plaintiff, (32 Liberty Street,) {Borough of Manhattan,) {New York Oity.y^ SATISFACTION OF JUDGMENT. FORM No. 268. Eelease of Judgment — One of Several Defendants Jointly Liable.* SUPEEME COUET OF THE STATE OF NEW YORK, (Rensselaer) County. (WALTER WING,) Plaintiff, against (WILLIAM' HENRY, JOSEPH FENN, and THOMAS BENSON,) Defendants. Judgment entered (May 17th, 1901) for ($1,000) in favor of (plaintiff.) JUDGMENT docketed and entered in tlie judgment book of the Clerk of the County of (Rensselaer,) on the (seventeenth) day of (May,) one thousand nine hundred and (one) for the sum of (one thousand) dollars damages and costs, in favor of the above-named plaintiff, and against the above-named defendants. In consideration of (one dollar,) to (me) in hand paid, the re^- ceipt virhereof is hereby acknowledged, by (Thomas Benson,) one of the defendants against vsrhom judgment was recovered, as afore- said, in the above-entitled action, does hereby release and discharge the said (Thomas Benson) from all and singular the above judg- ment, and the lien thereof, and all liability on account thereof, but without affecting the said judgment, or the liability thereon of the other defendants, or their right of action against any other joint debtor, or the right to take proceedings against such defendants, and I request the clerk of the court to release and discharge the said judgment of record as to the said defendant, (Thomas Ben- son) only, according to and as provided by sections 1942, 1943 and 1944 of the Code of Civil Procedure. (WALTER WING.) STATE OF NEW YORK, 1 rSS. ! County of (New Yorlc,) | On this (tenth day of March, in the year of our Lord one thou- sand nine hundred and (five) before me the undersigned per- * Sec note on release of debt by partner, page 808. [540] Satisfaction Of Judgment. 541 By Attorney, One Of Firm. sonally came and appeared {Walter Wing,) to me personally known and known to me to be the individual described in and who executed the foregoing instrument, and {he) acknowledged tome that he exvicuted the same. {JOHN DOW,) Notary Public, New York -County. FORM No. 269. Satisfaction of Judgment — By Attorney, One of the Firm.* SUPKEME OOUET, {Kings) County. {PEOPLE OF THE STATE OF NEW YORK, upon the relation of ANTHONY COLERIDGE,) Plaintiff, against {WILLIAM RET G. AEL H. SAMUEL W. GOODRICH, GAR- GARRETSON, MICH- HIRSCHBERG, and T. MADDOX,) Defendants. Judgment entered {De- cember 31, 1903,) for [ the sum of ($950) in favor of {Samuel T. Maddox.) STATE OF NEW YORK, County of {Kings,) ss. WHEEEAS, a judgment was on the (31sf) day of {December) in the year nineteen hundred and {three) recovered by {Samuel T. Maddox,) one of the defendants, against {Anthony Coleridge arid the People of the State of New Yorh,) plaintiffs in the above-en- titled action, for the sum of ($950) which judgment was entered on the (31s^) day of {December, 190i3,) in the judgment book, in the office of the clerk of said court, and said judgment has been wholly paid; *See sect. 1260, Code. 542 Satisfaction Of Judgment. More Than Two Years After Entry. THEREFOEE, satisfaction of said judgment is hereby ac- knowledged, and the clerk of said court is hereby authorized and directed to cancel and discharge the same. (BUBB & WILSON,) Attorneys for Defendant. By {James Wilson.) STATE OF NEW YOREA . County of {Kings,) } " On this {seventeenth) day of {March, 1905,) before me person- ally came {James Wilson,) one of the members of the firm of {Burr & Wilson,) to me known and known to me to be one of the attorneys for the {defendant, Maddox,) in the above-entitled ac- tion, and to be the individual mentioned in and who executed the above satisfaction of judgment, and he acknowledged to me that he executed the same as and for the act and deed of said firm. (BICHABD REED,) iN'otary Public, {Kings) County. FORM No. 270. Satisfaction of Judgment — More Than Two Years After Entry. SUPEEME COURT, (New York) County. {STEPHEN ANSON,) Plaintiff, against (JOHN C. BALDWIN.) Defendant STATE OE NEW YORK,' ^ss County of {New Yo'rk,) WHEREAS, a judgment was on the {twenty-sixth) day of {April, 1900,) recovered by the plaintiff against the defendant in the above-entitled action for the sum of {four hundred) dollars, Satisfaction Of Judgment. 543 More Than Two Years After Entry. which judgment was on the (26th) day of (April, 1900,) duly entered in the judgment book, in the office of the clerk of the above-named court, and the said judgment has been wholly paid ; THEREFORE, satisfaction of said judgment is hereby ac- knowledged, and the clerk of said court is authorized and directed to cancel and discharge the same. (STEPHEN ANSON.) STATE OF NEW YORK, ~1 County of (New York,) J On the (27th) day of (March, 1905,) before me personally came (Stephen Anson,) to me known and known to me to be the (plaintiff) in the above-entitled action, and to be the same person described in and who executed the within satisfaction, and acknowledged to me that he executed the same. (MOBBIS CUMMINS,) Notary Public, (New Torh) Gounty. SUPPLEMENTARY PROCEEDINGS * FORM No. 271. Affidavit to Obtain Order for Examination of Judgment Debtor. {CITY COURT OF THE CITY OF NEW YORK). In the Matter of Supplementary Proceedings. (JOHN JONES,) Judgment creditor, against {RICHARD ROE,) Judgment debtor. STATE OF NEW YORK,| County of {New Yorh,) J {Ezra Williams), being duly sworn, says, that he is {the attor- ney for) the above-named {plaintiff), the judgment creditor in this proceeding; that judgment was recovered in this action against the above-named {defendant), the judgment debtor herein in the {City Court of the City of New York) on the {12th) day of {May, 1904), for ($1,054.40) damages and costs after the per- sonal service of the summons upon said judgment debtor; that the said judgment was for more than twenty-five dollars; that the judgment roll in this action was filed in the office of the Clerk of {the City Court of the City of New York) on the {12th) day of {May, 1904) ; that a transcript of said judgment was duly filed, and said judgment was duly docketed in the office of the Clerk of the County of {New York) on the {12th) day of {July, 1904) ; that thereafter an execution upon said judgment against the prop- erty of the said judgment debtor was on the {12th) day of {July, 1904), duly issued out of the {City Court of the City of New York), which is a court of record, to the Sheriff of the County of {Neit; York), where said judgment debtor {then resided and still * See suggestions, p. 26. [544] Supplementary Proceedings. 545 Order For Examination. resides) ; tliat the said sheriff has returned said execution {wholly^ unsatisfied, and that the said judgment remains {wholly) unpaid, and that no previous application has been made for this order. Sworn to before me, this {20th) day of {June. 1904) } {EZRA WILLIAMS.) {THEODORE RYAN), Notary Public, {New York) County, No. (326). FORM No. 272. Order for Examination of Judgment Debtor. {OITY COURT OF THE CITY OF NEW YORK). In the Matter of Supplementary Proceedings. {JOHN JONES.) {Plaintiff) and judgment creditor, against {RICHARD ROE.) {Defendant) and judgment debtor. It appearing to my satisfaction, by the above affidavit of {Ezra Williamhs), the attorney for the {plaintiff), the judg- ment creditor in this proceeding, that judgment has been recov- ered in this action in the {City Court of the City of New York) against the above-named {Richard Roe), the judg- ment debtor herein on the {1.2th) day of {May, 1904), for the sum of ($1,054.40) ; that said judgment was rendered upon a personal service of the summons herein upon the said judgment debtor; that the said judgment was for more than twenty-five dollars ; that the judgment roll was filed in the office of the Clerk 35 546 SUPPLEMENTABY PROCEEDINGS. Order For Examination. of the (City Court of the City of New Yorh), on the (12^^) day of {May, 1904) ; that a transcript Of said judgment was duly filed, and said judgment was duly docketed in the office of the Clerk of the County of {New Yorh) on the {mh) day of {May, 1904) ; that thereafter an execution upon said judgment against the prop- erty of the said judgment debtor was on the (12^/i) day of {July, 1904), duly issued out of the {City Court of the City of New Yorh), which is a court of record, to the Sheriff of the County of {New Yorh), -^yhere said judgment debtor {then resided and still resides), and that such execution has been returned {wholly) un- satisfied, and that said judgment remains {wholly) unpaid, and that no previous application has been made for this order; I do hereby order and require {Richard Roe), the jud,2:ment debtor, to appear before me or one of the justices of this court,* at a Special Term {to be held at chambers), to be held wt the {Brouni Stone) court house, {City Hall Parh, Borough of Manhattan, City of New Yorh), on the {26th) day of {June, 1904), at (10) o'clock in the (/ore)noon, and on such further days as the court or referee duly appointed shall name, to make discovery on oath concerning {his) property. And the said judgment debtor is liereby forbidden to transfer or make any other disposition of the property belonging to {him) not exempt by law from execution, or in any manner to interfere therewith, until further order in the premises. I>ated at {Borough of Manhattan, City of New Yorh), on the {20th) day of {June, 1904). {WILLIAM ESSEX), Justice. *[0r Arthur Jones, Esq., Referee, hereby appointed for such examination at his office No. 20 Park Row, New York City.] V SUPPLEMENTAEY PeOCEEDINGS. 547 Order Appointing Receiver. FORM No. 273. Order Appointing Receiver in Supplementary Proceedings. {CITY COURT OF THE CITY OF NEW YORK.) In the Matter of Supple- mentary Proceedings. (AUGUST R. ASTON,) Judgment creditor, against (JO^HN McSWEENEY,) Judgment debtor. Supplementary proceedings having been instituted upon the judgment in this action against (John McSweeney,) the judgment debtor in the above-entitled action, by an order made on the (10th) day of (July, 1905,) by Mr. Justice (Conlan,) directing the said (John McSweeney) to appear before him, or any judge of this court sitting at Special Term; and the said (John McSweeney) having been examined therein on oath concerning his property in pursuance of said order, ITOW, on filing the aiRdavit and order of examination herein and the evidence taken thereon ; and a motion for the appointment of a receiver of the property of the said judgment debtor having been made at the close of the said examination in the presence of the said judgment debtor by (Charles Colson,) counsel for the judgment creditor, (August R. Aston,) I hereby ORDER that (Williard FisJce,) Esq., be, and he hereby is, ap- pointed receiver of all the debts, property, equitable interest, rights and interest in any action of the said (John McSweeney,) judgment debtor, that such receiver before he enter upon the execution of the said trust execute to the People of the State of 'New York a bond, with sufficient sureties, to be approved by me in the penalty of (two hundred) dollars, conditioned that he will faithfully discharge the duties of said trust, and file the said bond and this order with the Clerk of the (City Court of the City of New York,) as required by law, and that the said receiver upon 548 SUPPLEMENTABY PROCEEDINGS. Order Appointing Receiver. filing such bond be invested with all rights and powers as receiver according to law. And I also order that the plaintifP, (August B. Aston,) recover the sum of (thirty) dollars costs and (five) dollars, his disburse- ments in these proceedings to be paid out of any money which has come or may come into his hands as receiver. Dated, (New York, July 26, 1905.) (THEO. F. HA8CALL.) J. 0. C. EXECUTION UNDER SEC. 1391, CODE OF CIVIL PROCEDURE. Execution Against Income. NOTE. — As a basis for the right to issue an execution under section 1391, two essential facts must be made to appear. 1. That the judgment was recovered wholly for necessaries sold. 2. That no execution issued pursuant to this section is outstanding. All applications under this section must be made upon regular notice to the judgment debtor, and where execution against the income of a trust fund is sought, to the trustee of such fund also. Such execution cannot be had upon a judgment wholly for necessaries obtained in another state. (Newman v. Mortimer^ 98 App. Div. 64.) It may be had on judgments obtained prior to the amendment of the section. (Myers r. Moran, 113 App. Div. 427.) F0R3\I No. 274. Notice of Application (Tinder Sec. 1391). (CITY COURT OF THE CITY OF NEW YORK.) (ARTHUR C. EA8T0N,) Plaintiff, against (WILLIAM 8. COOK,) Defendant. Sir: PLEASE TAKE NOTICE, that upon the judgment roll in this action and upon the annexed affidavits of (Herbert C. Mor- ton,) verified the (lOth) day of (June, 1906,) and of (Samuel Heyward,) verified the lOth day of June, 1906, and all the pro- ceedings heretofore had herein, the undersigned, will apply at a Special Term of this court to be held at its Court House, (No. 32 Chambers street, in the Borough of MamJiattam,, City of New Yorlc) on the (18th) day of (June, 1906,) for an order directing that execution against ten per cent, of the wasres, salary, debts, income from trust funds or profits due and owing or hereafter to become [549] 550 Execution Against Income. Affidavit. due and owing from {the Merchants' National Bank of New York) to {William 8. Cook,) the above-named defendant, and further directing that said execution remain a lien and a con- tinuing levy on such vpages, salary, earnings, debts, income from trust funds or profits until such execution and the expenses thereof shall be fully paid and satisfied, or until the same is modified, and for such other and further relief as may to the court seem just. Dated, New York, June 10, 190'6. Yours, etc., {LINDSAY & PALME B,) Plaintiff's Attorneys. (30' Broad Street,) {New York City.) To {WILLIAM S. COOK,) Attorney for Defendant {Merchants' National Bank.) FORM No. 275. Affidavit on Application for Execution (Sec. 1391, Code). {CITY COURT OF THE CITY OF NEW YORK.) {ARTHUR C. EASTON,) Plaintiff, against {WILLIAM S. COOK,) Defendant. STATE OF NEW YOEK, } . County of {New York,) J {HERBERT C. MORTON,) being duly sworn, says, that he is a counsellor-at-law associated with the attorneys for the plaintiff herein, and is familiar with this action. That on the {eighth) day of {May, 1906,) a judgment was re- covered in favor of the plaintiff and against the defendant for the Execution Against Income. 551 Affidavit. sum of (two hundred and twenty-seven and 54/100) dollars in this action, whicli judgment was on the (10th) day of (May, 1906,) duly entered and docketed in the office of the Clerk of the (City Court of the City of New YorJcj) and on the same day an execution on said judgment issued out of the (City Court of the City of New York, directed to the Sheriff of the County of New Torlc, and the same was thereafter returned wholly unsatisfied, and the said judgment now remains wholly unpaid. Deponent says that said judgment was wholly for necessaries sold to the defendant by the plaintiff, to wit, (the rent of an apart- ment, in the apartment house known as No. 40 Morningside ave- nue, in the Borough of Manhattan, city of New York, for t%e months of October and November, 1904, during -which months the said apartment was leased hy defendant from the plaintiff, and xvas actually used and occupied hy defendant, William 8. Cook, and his family,) as more fully appears by the affidavit of (Samuel Hey ward,) hereto attached. Deponent further says that the defendant, (William 8. Cook,) is employed as a (paying teller) by the (Merchants' National Bank of New York,) doing business at (299 Broadway, in the Borough of Manhattan, City of New York,) and receives a salary from said hank at the rate of ($3,000 per annum.) That said (William 8. Cook) is entitled to receive, and there be- comes due to the said (Cook) from the said (Merchants' National Bank of New York) each week in the way of salary, wages, debts, earnings or profits a sum in excess of twelve dollars, to wit, the sum of (sixty ($60) dollars, and deponent avers that said (Cook) will receive a like sum each week from said (hank) as long as he remains in (its) employ. The source of deponent's knowledge as to the earnings, salary, wages, etc., of the said (Cook) is (state- ments made hy William 8. Cook, in an examination relating thereto in proceedings supplementary to execution had herein pur- suant to an order of this court, dated January 4, 1904, to which examination deponent refers.) Deponent submits that ten per cent, of the salary, wages, earn- ings, debts or income from trust funds or profits due and owing or which may hereafter become due and owing from the said (Merchants' National Bank of New York) to said (William 8. Cook,) the judgment debtor, is properly applicable under section 1391 of the Code of Civil Procedure to the payment of the judg- ment above described; and deponent asks that an order be made 552 Execution Against Income. Affidavit. herein directing that an execution issue against ten per cent, of said wages, salary, earnings, debts, income from trust funds or profits due and owing or hereafter to become due and owing from said {Merchants' National Bank of New York to William 8. Cook,) and further directing that said execution remain a lien and a continuing levy on such wages, salary, earnings, etc., until said execution and the expenses thereof shall become fully satisfied and paid, or until the same is modified. ISTo previous application has been made for this or any similar relief, and no execution under section 1391 of the Code of Civil Procedure remains unsatisfied or outstanding against said (William S. Cook,) as deponent is informed by said Cook and verily believes. {HERBERT MORTON.) Sworn to before me, this {llth) day of June, 1906. ;.} {WILLIAM WALKER,) iNotary Public, {New York) Co. PORK No. 276. Supporting Affidavit. {CITY COURT OF THE CITY OF NEW YORK.) {ARTHUR C. EASTON,) Plaintiff, against {WILLIAM 8. COOK,) Defendant. STATE OF NEW YORK, "I rSS ' County of (New York,) ) {8AMUEL HEYWARD,) being duly sworn, says, that he now is {and during the months of October and November, 1904, was employed by Arthur C. Easton, the plaintiff above named, as super- Execution Against Income. 553 Order. intendent of the apartment house. No. 40 Morningside Avenue, in the Borough of Manhattan, City of New York. That on or about September 25, 1904, William S. Cook leased from the plaintiff, through deponent as his agent, apartment No. 6, on the sixth floor of said apartment house for a term of one year, and the said Will'ima S. Cook, and his famiily lived in and occupied the said iapwrtment as a home amd residence during the months of' October and November, 1904.) (SAMUEL HEYWAED.) Sworn to before me, this (10th) day of (June, 1906.) (WILLIAM WALKER,) Notary Public, (New York) County. FORM No. 277. Order Directing Issue of Execution Against Earnings. At a Special Term of the (City Court of the City of New York,) held at (its Court House, No. 32 Chambers Street,) in (the Borough of Manhattan, City of New York,) on the (IMh) day of (June, 1906.) Peesbnt: Honorable (WILLIAM WADRAMS,) Justice. (ARTHUR C. EASTON,) Plaintiff, against (WILLIAM S. COOK,) Defendant. It appearing to my satisfaction from the annexed affidavits of (Herbert Morton,) sworn to the (17th) day of (June, 1906,) and of (Samuel Heyward,) sworn to the (10th) day of (June, 1906,) that a judgment was entered and docketed in the office of the clerk of this court on the (10th) day of (May, 1906,) in favor of the plaintiff and against the defendant for the 554 Execution Against Income. Order. sum of (two hundred twenty-seven and 54/100) dollars; that said judgment was wholly for necessaries sold to the defendant, to wit, ' (the rent of an apartment used as a dwelling hy defendant and his family;) that execution was duly issued on said judgment, directed to the Sheriff of the County of (New York,) and that said execu- tion has been returned wholly unsatisfied; and that said judgment remains wholly unpaid; and it fi;rther appearing that the judg- ment debtor, (William S. Cook,) is employed by (the Merchants' National Bank of New York,) doing business at (299 Broad- way, in the Borough of Manhattan, City of New York,) and that the wages, salary, earnings, debts, or profits paid by said (Mer- chants' National Bank) to said (William 8. Cook) amount to more than twelve dollars a week, to wit, the sum of (sixty ($60) dollars a week; and that no execution for the attachment of the wages, salary, earnings, income, etc., of said (Cook) over twelve dollars a week, pursuant to section 1391 of the Code of Civil Pro- cedure, remains unsatisfied or outstanding; NOW, on motion of (Lindsey & Palmer,) attorneys for the plaintiff, and after hearing, (Yemen Clark,) Esq., of counsel for the said judgment debtor, it is ORDERED, that an execution issue herein directed to the Sheriff of the County of (New York) against the wages, salary, earnings, debts or profits now due and owing or hereafter to be- come due and owing to said (William S. Cook) by the said (Merchants' National Bank of New York;) and it is further ORDERED, that on presentation of such execution by said sheriff to the said (Merchants' National Bank of New York,) said execution shall become a lien and a continuing levy upon ten per cent, of the amount due and owing, or which may hereafter become due and owing in the way of wages!, salary, earnings, debts, income from trust funds or profits to the said judgment debtor, and said levy shall be a continuing levy thereon until said execution and the expenses thereof shall be fully paid and satisfied, or until the same is modified ; and it is further ORDERED, that said (Merchants' National Bank of New York) shall pay over to said sheriff under said execution, for the benefit of the plaintiff herein, ten per cent, of the whole sum due and owing, or which may hereafter become due and owing to said judgment debtor if the whole sum due and owing shall be more than twelve dollars a week. Enter, (W. W.,) J. C. C. ExEoxJxiON Against Income. 555 Execution. FORM No. 278. Execution Against Earnings (Sec. 1391, Code). THE PEOPLE OF THE STATE OF NEW YORK, To the Sheriff of the County of (New York,) Greeting : WHEKEAS, a judgment was rendered on the (eighth) day of (May, 1906,) in an action in the (City Court of the City of New York,) between (Arthur C. Easton,) plaintiff, and (William 8. Cook,) defendant, in favor of the said (Arthur C. Easton,) and against the said (William 8. Cook,) for the sum of (two hundred twenty-seven and 54/100) dollars as appears to us by the judg- ment roll, filed in the office of the clerk of the ( City Court of the City of New York,) which judgment was wholly for necessaries sold, to wit, (for the rent of an apartment used as a dwelling hy the defendant and his family,) and WHEEEAS, the said judgment was docketed in the office of the clerk of the County of (New York,) on the (10th) day of (May, 1906,) and the sum of ($22Y 54/100) is now actually due thereon, and it appearing that (the Merchants' National Bank of New York) employs the said judgment debtor at' a weekly salary of (sixty) dollars, THEREFOEE, pursuant to the order of this court herein dated (June 17, 1906,) we command you that you satisfy the said judgment out of the wages, earnings, salary, debts or profits due and owing or become due and owing, or which may hereafter be- come due and owing to said judgment debtor from said (Mer- chants' National Bank of New York,) by levying on an amount equal to ten per cent, of such wages, salary, earnings, debts or profits if the same shall amount to more than twelve dollars a week; this execution to be a continuing levy until this execution and the expenses thereof are fully satisfied and paid or until the same is modified. WITISTESS, the Honorable (William Wadhams,) one of the justices of this court at (the Borough of ManJiattan, City of New York) on the (18^^) day of (June, 1906.) (WILLIAM WADHAM8,) Justice. NOTICE OF EXCEPTIONS. form: No. 279. Notice of Exceptions to Decision (or Beport of Referee). SUPKEME COUET, {New York) County. (PRANCES ELLIOTT HOLT,) Plaintiff, against (ELLEN A. ABBOT and FRANKLIN ABBOT,) Defendants. Sirs: PLEASE TAKE NOTICE that the plaintiff herein excepts to the decision and findings (or to the report of Franklin B. Thomas, referee), filed herein in the office of the Clerk of (the County of New York,) on the (25^/i) day of (February, 1906,) as follows: Eirst: Said plaintiff excepts to the rulings and findings con- tained in (the fourth alleged finding of fact and to every 'pari thereof.^ Second : Said plaintiff excepts to the rulings and findings con- tained in (the sixth alleged finding of fact as follows, to wit: That the judgment therein referred to hearing date the 2%th day of September, 1903, was " duly made and entered," and also that the covenant therein referred to was inserted in th^ deed therein referred to " for the purpose of establishing a uniform plan of restriction limiting the use of lots on 'T^nd street to private dwellings.") Third: Said plaintiff excepts to so much of the rulings and findings contained in (the fourth alleged conclusion of law as is set [556] Exceptions. 557 Notice Of. forth under subdivisions 3 and 4 thereof, and to each and every "part of said subdivisions.) Dated, {New York, May 29, 1906.) (EVAN 0. ANDERSON,) Attorney for (Plaintiff,) (25 Broad Street,) To (Manhattan, New York City.) (JOHN K. RICHARDSON,) Esq., Attorney for (Defendant,) To (43 Bond Street,) (PETER J. DOOLING,) (Troy, New York.) Clerk of the County of (New York.) FORM No. 280. Notice of Exceptions To Decision, SUPEEME COUET, (New York) County. (JOHN DOE,) PZam^tj^-Eespondent. vs. (RICHARD ROE,) Defendant- Appellant. Sir: TAKE NOTICE that the (defendant, Richa/rd Roe,) ex- cepts to the decision of the court filed in the above entitled action on the (SOth) day of (June, 1906,) to the findings of fact and conclusions of law made by the court in the pro- posed decision prepared by the plaintiff ; to the refusal of the court to find facts and conclusions of law as requested by defendant in the following particulars : I. To so much of the tenth finding of fact as finds that . . . on the ground that there is no evidence to sup- port same. 558 Exceptions. Notice Of. II. To the eleventh finding of fact upon the ground that there is no evidence to support same. III. To the first conclusion of law upon the ground that there is no evidence to support same, and that it is contrary to and against the weight of evidence. IV. To the seventh conclusion of law upon the ground that there is no evidence in the case upon which to base such a conclusion of law. v. To the refusal of the court to find as requested in the proposed findings of fact and conclusions of law sub- mitted by the defendant, Eichard Eoe, as follows : VI. The refusal to find as requested in paragraph III of the findings of fact submitted by him. VII. The refusal to find as requested in paragraph IV. of the findings of facts submitted by him. VIII. Said defendant also excepts to the refusal of the court to make the conclusions of law as requested by~ para- graph I of the conclusions of law submitted by him to the court. IX. Said defendant further excepts to the conclusions of law contained in the decision and to the decision itself on the grounds that facts have not been found to support said decision and conclusions of law. Dated, {July 6, 1906,) {E. SMITH,) Attorney for {Defendant.) To {PETER J. DOOLINO,) Clerk of the Supreme Court, {New Yorh) Comity. {JAMES ROLLINS,) Attorney for {Plaintiff.) NOTICES OF APPEAL FORM No. 281. Notice of Appeal to Appellate Division — From Judgment, Trial Term. SUPREME COURT, {New York) Comity. {HARBISON GRAVES,) Plaintiff, against {NATIONAL SOAP COMPANY,) Defendants. Sirs: PLEASE TAKE NOTICE that the {defendant) in the above entitled action hereby appeals to the Appellate Division of the Su- preme Court, {First) Judicial Department, from the judgment of the Supreme Court, {New York) Count;-, entered in the office of the Clerk of the Coimty of {New, York,) on the {13th) day of {October, 1906,) in favor of the {plaintiff) and against the {defendant) for the sum of {one thousand and eighty-three dollars and seveniy-eight cents) and from each and every part of said judgment, and also from an order entered in said Clerk's office on the {24:th) day of {October, 1906,) denying a motion to set aside the verdict and for a new trial of' the said action, and from each and every part of said order. Dated, New York, {October 31, 1906.) {ALBERT CHESTER,) Attorney for {defendant,) (2938 Broadway, To New York City.) {PAUL STARR,) Esq., Attorney for {plaintiff). {THOMAS L. HAMILTON,) Esq., Clerk {New York) County. [559] 560 Notice Of Appeal, EYom Judgment ■!— Special Term. FORM No. 282. Notice of Appeal to Appellate Division — From Judgment, Special SUPKEME COUBT, ^«™-* {New York) County. — ^ {EMMA G. WELLS, individually and as Executrix and Trustee under the last ^Yill and Testament of Fred Wells, deceased, Harry B. Wells, and Albert H. Ehrich,) Plaintiffs, against {EDWARD W. WILLIAMS, indi- vidually and as Executor and Trustee under the last Will and Testament of Fred Wells, deceased. The Fred Wells Company, James Thomas, Frank Luding, and Joseph Hirsch,) Defendants. Sirs: PLEASE TAKE NOTICE, that the {defendamts, Edward W. Williams, individually and as executor and trustee under the last Will and Testament of Fred Wells, deceased, and Frank Luding,) hereby appeal to the Appellate Division of the Supreme Court, in and for the {First) Department, from the judgment or decree entered herein in the office of the Clerk of the County of {New York) on the {30th) day of {December, 1905,) and from each and every part thereof. Dated, {New York, January 12, 1906.) Yours, etc., {JOHN DOOLITTLE,) Attorney for {Edward W. Williams, Individually, etc.. To 25 William Street, New York City.) Messrs. {JAMES, BOSWORTH & COLE,) Attorneys for {Plaintiffs,) (32 Liberty Street, New York City.) {PETER J. DOOLING,) Esq., Clerk of (New York) County. * When a party desires to appeal from a part only of the judgment, he must specify the part appealed from. An appeal brings up for review only such portions of the judgment as are specified in the notice of appeal. Notice Of Appeal. 561 From Judgment Dismissing Complaint. FOBJ/E Ho. 283. Notice of Appeal to Appellate DiTision — From Judgment Dismiss- ing Complaint. SUPREME COURT, {New York) Coiinty. (THE BANE OF NEW YORK,) Plaintiffs, against (JOHN HOWELL and WALTER READ.) Defendants. Sirs: PLEASE TAKE NOTICE, that tlie above-named plaintiff hereby appeals to the Appellate Division of the Supreme Court of the State of New York for the (First) Department, from the decision herein, dated the (1st) day of (July, 1903,) and entered in the office of the clerk of this court on the (30th) day of (October, 1903,) and from the judgment entered herein on the (30th) day of (October, 1903,) in the office of the Clerk of the County of (New Yorh,) dismissing the complaint of the plaintiff herein and for (two hundred and sixty and 96/100 ($260.96)) dollars costs, and from the whole and each and every part of said decision and judgment. Dated, (New York, November, 28th. 1903.) Yours, etc., (STEIN & RUSHTON,) Attorneys for Plaintiff, (40 Wall Street, New York City.) To Messrs. (B08W0RTH, MERRALL & YATES,) Attorneys for Defendants. (THOMAS L. HAMILTON,) Esq., Clerk of the County of (New York.) 36 562 Notice Of Appeal. From Order. FORM No. 284. Notice of Appeal to Appellate Division — From Order. SUPREME COURT, County of {New York.) {RICHARD WILSON and ANNA WILSON,) Plaintiffs, against {RANDOLPH PERRY, KARL HATCH, THE NEW COAL^COM- PANY and FREDERICK CARR.) Defendants. Sirs: YOU WILL PLEASE TAKE NOTICE, tliat the {plaintiffs) above-named hereby appeal to the Supreme Court, Appellate Division, {First) Department, from the order made and entered in the above-entitled action bearing date the {9th) day of {Feb- riuiry, 1905,) and signed by the Hon. {Francis M. Scott,) Jus- tice, which said order was filed in the office of the Clerk of the County of {New York) on the {9th) day of {Fehrucury, 1905,) and this appeal is taken from each and every part of said order. Dated, {March 3, 1905.) Yours, etc., {JAMES & WEEKS,) Attorneys for {Plaintiffs,) (32 Liberty Street,) {New York City.) To {DAVIS PIERCE,) {Attorney for Defendants Randolph Perry, Karl Hatch, The New Coal Company, and Frederick Carr.) {THOMAS L. HAMILTON,) Esq., Clerk of the County of {New York.) Notice Of Appeal. 563 From Part Of Order. FORM No. 285. Notice of Appeal to Appellate Division — From Part of Order. NEW YOEK SUPEEME COURT, {New York) County. {EDWARD LEE and FRANK LAWRENCE,) Plaintiffs, against {THE AMERICAN HAT COM- PANY,) Defendants. Sirs: PLEASE TAKE NOTICE, that the {plaintiffs) in the above- entitled action hereby appeal to the Appellate Division of the Supreme Court of the State of New York in the {First) Depart- ment from that part of the order made in the above-entitled action and entered in the office of the Clerk of the County of {Neiv York,) on the {28th) day of {February, 1906,) which {vacates so much of the order made herein by Hon. Henry A. Gildersleeve, one of the Justices of this Court, on the 1st day of February, 1906, as required the defendant The American Hat Company, and its President, to be examined before trial, and the deposition of said Henry Jones to be taken and the books and papers of said American Hat Company, specified in said order, to he produced at such examination.) Dated, {Ma/rch 5, 1906.) Yours, etc., {NATHAN BUDD,) Attorney for (PZamft^s)-Appellants. To {AUSTIN BLOCK,) Esq., Attorney for (Pe/en^^anis) -Respondents. {PETER J. DOOLING,) Esq., Clerk of the County of {New York.) 564 Notice Op Appeai,. From Surrogate's Decree. TO-RM No. 286. Notice of Appeal to Appellate Division — From a Decree of the Surrogate's Court. SUKROGATE'S COURT, (New York) County. (IN THE MATTER of The estate of THOMAS P. CARD, deceased.) Sirs: PLEASE TAKE NOTICE, that the (Respondent William Watson) hereby appeals to the Appellate Division of the Supreme Court, (First) Department from the order and decree herein, (revoking the letters testamentary isstied to respondent and re- moving him as trustee,) which order and decree -was made and entered herein in the office of the Clerk of this Court on the (9th) day of (February, 1907;) and that said (respondent) appeals from the whole and every part thereof. PLEASE TAKE FURTHER NOTICE, that the respondent also appeals to the Appellate Division of the Supreme Court (First) Department from (the order of injunction made and entered herein in the office of the Clerk of this Court on Septem- ber 6, 1906,) and from each and every part of said order. PLEASE TAKE FURTHER NOTICE, that the respondent also appeals to the Appellate Division of the Supreme Court, (First) Department from the order (of reference) made and entered herein in the office of the Clerk of this Court on (Decem- ber 8, 1906,) and from each and every part of said order. Dated, (April 6, 1907.) Yours, etc., (FRANCIS ACKERMAN,) Attorney for (respondent,) (3 B'way, New York City.) To Messrs. (RALSTON <& RICE,) Attorneys for (petitioners.) DANIEL J. DOWDNEY, Clerk of the Surrogate's Court, (N. Y. Co.) Notice Of Appeal. 565 From Surrogate's Order. FORM No. 287. Notice of Appeal to Appellate Division — From Surrogate's Order. SUEEOGATE'S COUET, {New York) County. In the Matter of (The Probate of a Paper Alleged to he the last Will and Testament of DAVID GOLDSTEIN.) Sirs: YOU WILL PLEASE TAKE ISTOTICE that (Alexander Brown) hereby appeals to the Appellate Division of the Supreme Court, (First) Department, from the order made and entered in the above-entitled matter by the Hon. (Ahner C. Thomas,) Surro- gate, and bearing date the (loth) day of (October, 1906,) which order (substituted Messrs. Park & Jones in the place and stead of Alexander Brown as attorneys, for Louis Goldstein and Martin Goldstein) and this appeal is taken from each and every part of said order. Dated, (November lUh, 1906.) Yours, etc., (JAMES, BOSWOETH & COLE,) Attorneys for (Appellant,) (32 Liberty Street, New York City.) To Messrs. (PARK & JONES,) Attorneys for (LOUIS and MARTIN GOLDSTEIN,) (52 Broadway, New York City.) (DANIEL J. DOWDNEY,) Clerk of the Surrogate's Court, County of (New Yorh.) 566 Notice Of Appeal. From Interlocutory Judgment. ' FORM No. 288. Notice of Appeal from Interlocutory Judgment. NEW YORK SUPREME COURT, (New York) County. (ALBERT JAMES,) Plaintiff, against (WILLIAM SMITH,) Defendant. Sir: YOU WILL PLEASE TAKE NOTICE that the (defendant) above named hereby appeals to the Appellate Division of the Su- preme Court of the State of New York in and for the (First) Department, from the interlocutory judgment made and entered in the above entitled action in the office of the Clerk of the County of (New York) on the (Srd) day of (December), 1906 (overrul- ing) the demurrer interposed by (plaintiffs) to the (counterclaim set forth in the answer of the defendant) ; and this appeal is taken- from each and every part of said judgment. Dated (New York, December 4, 1906.) Yours, etc., (FRANK WILSON,) Attorney for (plaintiff,)' Office and P. O. Address, (3 Wall) Street, (New York City.) To (JAMES HOLT,) Esq., Attorney for (defendant,) (4 Broadway, New York City.) (PETER J. DOOLING,) Clerk of the County of (New York.) Notice Of Appeal. 567 To Appellate Term From N. Y. City Court. FORM No. 289. Notice of Appeal to Supreme Court, Appellate Term — From Judg- ment of the City Court. CITY COUET OF THE CITY OF NEW YOKK. {JAMES GEI8T,) Plaintiff- {Respondent,) vs. (FRANCIS BATES,) T>eienda,nt-{ Appellant.) Sir: PLEASE TAKE NOTICE, that the (defendant) in the above-entitled action hereby appeals to the Appellate Term of the Supreme Court of the State of New York in the First Depart- ment, from the judgment entered herein in the office of the Clerk of the City Court of the City of New York on the (lOth) day (December, 1906,) in favor of the (plaintiff) and against the (defendant) for the sum of (eight hundred and seventy-six 24/100) dollars ($876.24), and from the whole of said judgment, and each and every part thereof. Dated, (New York, December 22, 1906.) (ELMER VANDERBILT,) Attorney for (Defendant), O. & P. 0. Address, (32 Liberty Street, New York City.) To (WILLIAM RUSSELL, Esq.,) Attorney for (Plaintiff) (10 Wall Street, . N. Y. City:) (THOMAS F. SMITH, Esq.,) Clerk of the City Court of the City of New York. 568 Appeal, Undertaking. FORM No. 290. Undertaking on Appeal from Judgment to Stay Execution. NEW YOKK SUPREME COUET, (Dutchess) Coionty. (ANDREW FRENCH,) PlaintiS-Respondent, against (THEODORE DAVIS,) Defendant- A ppellcmt. WHEREAS, on the (15*) day of (January, 1905,) in the (Supreme) Court of (the State of New York, Dutchess) County, the above-named respondent recovered a judgment against the above-named appellant for (eleven thousand two hundred ($11,200) dollars damages and costs; And the above-named appellant feeling aggrieved thereby in- tends to appeal therefrom to the (Supreme Court of the State of New Yorh, Appellate Division, Second Department:) ISrOW, THEREFORE, we, (James Conlan,) residing at (315 West 5\st street,) in (the Borough of Manhattan, City of New York,) and (Joseph Murphy,) residing at (259 West QSth street), in (the Borough of Manhattan, City of New York,) do hereby jointly and severally undertake that if the said judgment so ap- pealed from, or any part thereof, is affirmed, or the appeal is dis- missed, the appellant will pay the sum recovered or directed to be paid by the said judgment or the part thereof as to which it is affirmed; and that the said appellant will pay all costs and dam- ages which may be awarded against him on the appeal, not to exceed the sum of five hundred (500) dollars. Dated, (June 15th, 1905.) Signed and sealed by: (JAMES CONLAN,) {JOSEPH MURPHY.) Appeal. 569 Undertaking. STATE OF NEW YORK, 1 County of (New York,) J "' (JAMES CONLAN,) being duly sworn, says, that he is a resi- dent of and a (householder) within the State of New York, and is worth the sum of (twenty thousand) ($25,000) dollars over 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. (JAMES CONLAN.) Sworn to before me, this "I (Ibth) day of (June, 1905.) J (ROBERT JOHNSON,) Notary Public, (New York) County. STATE OF NEW YORK, ] County of (New York,) j " (JOSEPH MURPHY,) being duly sworn, says, that he is a resident of and a (freeholder) within the State of New York, and is worth the sum of (twenty thousand) ($25,000) dollars over all the debts and liabilities which he owes or has incurred and exclu- sive of property exempt by law from levy and sale under an execution. (JOSEPH MURPHY.) Sworn to before me, this "1 (15th) day of (June, 190'5.) J (ROBERT JOHNSON,) Notary Public, (New York) County. STATE OF NEW YORK, ] r SS ' Count J of (New York,) f I certify that on this (15th) day of (June, 1905,) before me personally appeared (James Conlan and Joseph Murphy,) to me known and known to me to be the individuals described in, and who executed the foregoing undertaking, and they severally duly- acknowledged to me that they executed the same. (ROBERT JOHNSON,) Notary Public, (New York) County. 570 Exception To Sureties. Notice. FOmiJE No. 291. Notice of Exception to Sureties. SUPKEME COUKT, {New York) Coimty. (WALTER WILSON,) Plaintiff, against (THOMAS JOHNSON,) Defendant. Sir: PLEASE TAKE ISTOTICE that the {plaintiff) excepts to the sufficiency of the {sureties) in the undertaking on appeal to the Appellate Division herein filed in the office of the Clerk of the County of {New York) on. the {^nd) day of {January, 1907,) and further he excepts to the form and sufficiency of the under- taking. Dated, (New York, February 11, 1907.) {RALSTON & RICE,) (Plaintiff's) Attorneys, (32 Liberty street, Neiv York.) To (FRANCIS ACKERMAN,) Attorney for (Defendant,) (No. 3 Broadway, New York City.) Exception To Sureties. 571 Notice Of Justification. WBX. No. !i92. Notice of Justification of Sureties in Undertaking on Appeal. SUPEEME COURT, {New York) County. (WALTER WILSON,) Plaintiff, against (THOMAS JOHNSON,) Defendant. Sir: PLEASE TAKE ISTOTICE, that the sureties upon the under- taking given by the (appellant) on his appeal to the Appellate Division from the judgment entered in the above entitled action, which was filed in the oiEce of the clerk of the County of (New Yorh) on the (M) day of (January, 1907,) will justify before one of the justices of this court, 'sitting at (Part 2,) Special Term thereof, County Court House, (Borough of Manhattan, City of New York,) on the (9th) day of (Felruary, 1907,) at (11) o'clock in the forenoon of that day. Dated, (New York, Felruary 13, 1907.) (FRANCIS ACKERMAN,) Attorney for (Defendant.) (No. 3 Broadway, New York.) To (RALSTON & RICE,) Attorneys for (Plaintiff,) (32 Liberty street. New York.') 572 ExcEFTiON To Sureties, Notice Of Approval. FORM No. 293. Notice of Approval of Undertaking upon Justification of Sureties upon Appeal. SUPEEME COURT, {New York) County. {WALTER WILSON,) Plaintiff/ against {THOMAS JOHNSON,) Defendant. Sir: PLEASE TAKE N'OTICE, that the sureties in the undertak- ing on appeal to the Appellate Division herein, filed herein on {January 29, 1907,) to whose sufiiciency and to the sufficiency of which undertaking the plaintiff excepted, have justified and the said undertaking was this day approved by the Hon. {Edivard B. Amend,) upon said justification hefore him at . {Part 2,) Special Term of this court, and as so approved was this day filed in the office of the Clerk of the County of {New Yorh.) Dated, {February 19, 1907.) {FRANCIS ACKERMAN,) Attorney for {Defendant,) {No. 3 Broadway, New YorTe.) To Messrs. {RALSTON & RICE,) Attorneys for {Plaintiff,) (32 Liberty street. New YorTe.) Notice Of Argument. 573 Court Of Appeals. FOItJiI No. 294. Notice of Argument — Court of Appeals, COUKT or APPEALS OF THE STATE OF NEW YOKK. {JOHN J0NE8,) Plaintiff- (AppeZZaui) , against {JOHN DOE,) Defendant-(i2esponden^). Sir: PLEASE TO TAKE NOTICE, that the appeal in the above action will be brought on for argument before the judges of this Court, at a term thereof, to be held on the {lOih) day of {October, 1906,) at the Court Room, in the Capitol, in the'City of Albany, at the opening of the court on that day, or as soon thereafter as counsel can be heard. Dated, the {12ih) day of {October, 1906). Yours, etc., {WILLIAM RE ILLY), Attorney for {Plamtiff-Appellami), {No. 27 Pine Street), {Borough of Manhattan), {City of New York). To {EZRA WILLIAMS), Esq., Attorney for {Defendant-Respondent), {No. 15 William Street), {New York City). 574 Notice Of Argument. Appellate Division. FORM No. 295. Notice of Argument — Appellate Division. SUPREME COURT — Appellate Division, (First) Department. (JOHN JONES,) Plaintiff- ( Appe llant), against (JOHN DOE,) 'De{eniiin.t-(Respondent) . Sir: PLEASE TAKE NOTICE, that the appeal in the above-en- titled action will be brought on for argument before this court, at a term thereof to be held at its Court House, in the (Borough of Manhattan, City of New York), on the (6th) day of (June, 1906), at the opening of the court on that day, or as soon thereafter as counsel can be heard. Dated, the (20^^) day of (May, 1906). Tours, etc., (WILLIAM REILLY), Attorney for (Plaintiff -Appellant) , (No. 27 Piw Street), (Borough of Manhattan), (City of New York), To (EZBA WILLIAMS), Esq., (No. 15 William Street), (Borough of Manhattan), (City of New York). MORTGAGE FORECLOSURE. Note. - See •» (Notice. ., Form JSTo. 22, p. 214.) - (Summons Form No. 21, p. 212.) ^ (Lis pendens Form No. 23, p. 215.) ^ (Complaints Forms Nos. 44, 45, pp. 243, 249.) ~- (Outline of action to foreclose mortgage, p. 36.) In preparing a motion for the referee to compute the amount due, the attorney should be careful to ascertain whether his property is to be sold in one parcel or not. If there is any reason why the property should be particularly sold either in one parcel or in separate parcels, mention of that fact should be made in his affidavit upon application for an order of reference, and that the order of reference oontain, after the usual clauses in reference to computing the amount due, the following: "That the referee report as to whether the premises can or should be sold in one parcel (or otherwise as the particular case may require)." FORM No. 296. Notice of Motion for Appointment of Referee to Compute. SUPEEME COUET, {New York) County. (COMMEBCE BANK,) Plaintiff, against (JOHN W. McKEE) and others. Defendants. Sirs: PLEASE TAKE NOTICE, that on the (third) day of (Octo- her, 1901,) at the opening of court, or as soon thereafter as coun- sel can be heard, we shall apply to this court at a Special Term, [575] 576 Befebence To Compute. Notice Of Motion. {Part I.) thereof, to be held at the County Court House in (the Borough of Manhattan, City of New Yorh,) for an order referring it to some suitable person as referee to ascertain and compute the amount due the plaintiff upon the bond and mortgage to foreclose which this action is brought [and to take proof of the fgcts and circumstances stated in the complaint and to examine the plaintiff or its agent on oath as to any payments which may have been made, and to compute the amount due on said mortgage] pre- paratory to the application for judgment of foreclosure and sale. (Bracketed portion to be inserted when there are infants or absent defendants). (When fictitious parties have been named in pleadings, add) And for an order amending the summons, complaint, notice- of pendency of action and all other papers heretofore served or filed herein by striking from each of said papers the names of John Doe and Richard Roe, parties defendant. Yours, etc., {WHITE & CURTIN,) Attorneys for Plaintiff, (120 Broadway,) {New Yorh City.) To {WILLIAM KIMBALL,) Esq., Attorney for Defendants, (66 Broadway,) {New. Yorh City.) Refeeence To Compute. 577 Affidavit. FORM No. 297. Affidavit on Motion for Appointment of Referee to Compute (Affi- davit of Regularity). N'EW YOEK SUPEEME COUET, County of (New Yorle.) {COMMERCE BANK OF NEW: YORK,)- Plaintiff, against {JOHN W. McEEE) and others, Defendants. STATE OF NEW YOEK, County of {New York), {WILLIAM HUDSON ,) being duly sworn, says, that he is an attorney at law, associated with {White c& Curtin,) attorneys for the plaintiff in the above-entitled action, and that he has charge of the conduct of said action; that the complaint in said action was filed in the office of the clerk of the County of {New York,) on the {9,th) day of {June, 1903). That this action is brought to foreclose a mortgage upon real property situate in the {City) and County of {New York,) executed by defendant, {John W. McKee,) and {Katherine D. McKee, his wife,) to the {Commerce Bank of New York,) to secure the princi- pal sum of {eighteen thousand ($18,000) ) dollars, of which there is now due the sum of {fifteen thousand ($15,000)) dollars, together with interest thereon from {December 30, 1902,) at the rate of {six) per centum per annum; that the said mortgage is dated on the {27th) day of {August, 1897,) and was recorded in the office of the {Register) of the County of {New York,) on the {Qth) day of {October, 1897,) at {one) o'clock (20) minutes (P.) M., iia Liber (206) of Mortgages, {Section 10) page 285. That on the (8^^) day of {June, 1903,) a notice of the pendency of this action, containing the names of the parties thereto, the object of the action, a description of the property in that county affected thereby, the date of the mortgage, and the purpose thereof, and the time and place of recording the same was 37 578 Eefekence To Compute. Affidavit. filed in the office of the Clerk of the County of (New York,) that being the county in which the mortgaged premises are situated, and that since the filing of said notice the complaint in this action has not been amended by making any change in the parties to the action, nor so as to affect their property not described in the original complaint, nor so as to extend the claim of the plaintiff against the mortgaged premises. That all of said defendants are of full age, and none of the de- fendants "who have not appeared are absentees. That the defendant (John W. McKee) is not a necessary party in this action, said (John W. McKee) having been named in the summons and complaint as a party defendant for the reason that he v^as a judgment creditor whose lien was prior, and the said judgment in favor of said (McKee) having been satisfied and dis- charged of record on June 15, 1903, subsequent to the commence- ment of this action, and that plaintiff requests that an order be entered striking his name as a party hereto from the summons and complaint and notice of pendency of this action. Deponent further says that more than twenty days have elapsed since the due service of the summons and complaint herein on all the defendants, as aforesaid except the said (John W. McKee) as appears by the affidavit of service and admission of service thereof and notices of appearance hereto annexed.* That all the defendants named in the summons have appeared except the said (John W. McKee,) and all said defendants have waived the service of all papers herein except notice of sale and proceedings to obtain surplus moneys as appears by their notices of appearance hereto attached. That the time to answer or demur to the complaint has expired as to all the defendants, and that no answer or demurrer has been received. No previous application has been made for the relief herein asked for. (WILLIAM HUDSON.) Sworn to before me, this "I {20th day of (July, 1903.) J (RICHARD WHITE,) Notary Public (N. Y.} Co. * Some practitioners specify which of the defendants have been served, which have served notices of appearance and by what attorney or attorneys they appeared, and on what date each notice of appearance was served. Where there are a large number of defendants this practice is advisable as a matter of convenience. Refebence To Compute. 579 Order. FOIIM No. 298. Order of Beference to Compute Amount Due. At a Special Term of the Supreme Court held at the County Court House, in (the Borough of Manhat- tan, City of New York,) on the (21st) day of (April, 1905.) PEESETf T : Hon. (GEO. C. BARRETT,) Justice. (THE EMIGRANTS' INDUSTRIAL SAVINGS BANK,) Plaintiff, against (EMILE RAMEL and HENRIETTA RAM EL,) his wife, and others, Defendants. On the summons and verified complaint already on file herein, and on reading and filing the proofs of service, and notices of appearance hereto annexed, showing that the whole amount secured by the mortgage described in the complaint has become due, and that all the defendants have been duly personally served with the summons and complaint herein within this State or have voluntarily appeared herein more than twenty days since, and on reading and filing the affidavit of (Charles B. HawTces) veri- fied the (11th) day of (April, 1901,) also hereto annexed, show- ing that none of the defendants are infants or absentees, and that none of them has answered or demurred to the complaint herein, and that the time for all of them to do so has expired ; that a notice of the pendency of this action was duly filed in the office of the Clerk of the County of (New YorJc,) the county in which the mortgaged premises are situated more than twenty days since, and at or after the time of filing the complaint as required by law and that since the filing of said notice, the summons and complaint herein have not been amended by making new parties to the action or so as to affect premises not described in said notice, and on all the pleadings and proceedings herein and on motion of (William C. Orr,) Attorney for the plaintiff, it is 580 BbfebJ;ncb To Compute. Oath. " ORDERED, that the plaintiff have judgment for the relief de- manded in the complaint. IT IS FUETHER ORDERED, that this action be referred to (John Jones,) Esq., counsellor at law, to* compute the amount due to the plaintiff on the bond and mortgage mentioned in the complaint, fend that on the coming in of the referee's report, the plaintiff have the usual judgment of foreclosure and sale and for costs and an extra'allowance without further notice. FORM No. 299. Oath of Referee. SUPREME COURT, County of (New York.) (THE EMIGRANTS' INDUSTRIAL SAVINGS BANK,) Plaintiff, against (EMILE RAMEL) and others, Defendants. STATE OF NEW YORK, 1 County of (New York,) J I, (John Jones,) the referee, appointed by an order of this court, made and entered in the above-entitled action, and bfeafiHg date the (eleventh) day of (April, 1905,) to ascertain and compute the amount due to the plaintiff upon the bond and mortgage lipbn which this action was brought, do solemnly swear that I will faithfully and fairly determine the question so referred to tiie, and make a just and true report thereon according to the l^est of my understanding. (JOHN JONES.) Sworn to before me, this (12th) "1 day of (April, 1905.) J (JOHN SMITH,) iHotsLtj Public, (New York) County. * Note. — If any defendants are infants or absentees the order should read : " To take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent on oath as to any payments Which have been made and to, etc." Uefebejice To COMPITTp. ^81 Bepprt Of Eeferee. FORM No. 300. Beport of Referee to Compute. SUPREME COURT, Gounty of {New York.) {THE EM I GB ANTS' INDUSTRIAL SAVINGS BANK,) Plaintiff, against (EMILE RAMEL,) and others. Defendants. To the Supreme Court: In pursuance of an order of this court, made and entered in the above-entitled action and dated the (11th) day of (April, 1905,) whereby it was referred to the undersigned as referee to ascertain and compute the amount due to the plaintiff upon and by virtue of the bond and mortgage upon which this action was brought, I, (John Jones,) the referee in the said order named, "do report, tliat before proceeding to hear the testimony I was first duly sworn faithfully and fairly to determine the question re- ferred to me, and to make a just and true report thereon, accord- ing to the best of my understanding, that I have computed and ascertained the amount due to the plaintiff upon and by virtue of the said bond and mortgage, and that I find and accordingly report that there is due to the plaintiff for principal and interest on the said bond and mortgage,* at the date of this my report, the sum of (fifteen thousand five hundred and twenty-height 75/100) dollars. Schedule A., hereunto annexed, contains a schedule of the documentary evidence introduced before me, and shov^^s the amoiints due for principal and interest respectively, the period of the computation of the interest and its rate. Dated, (April 12, 1905.). (JOHN JONES,) Eeferee. * If anything is due for taxes, insurance, assessments, etc., this should also he included as follows: "and for taxes, assessments and insurance due and unpaid." unless by the terms of the mortgages on default in payment thereof these are ' made a part of the principal and secured by the mortgage lien. 582 Eefekence To Compute. Report Of Eeferee. Schedule A. Abstract of Documentary Evidence. One bond bearing date the {first) day of June, 1900, made and executed by (Emile Ramel) to the {Emigrants' Industrial Savings Bank) in the penal sum of {thirty thousand) dollars, to secure the payment of the sum of {fifteen thousand) dollars, on the first day of January, 1905, with interest at the rate of 5 per cent, per annum. Marked Exhibit A. One mortgage of even date with said bond, made and executed by {Emile Ramel) and {Clara, his wife,) to {The Emigrants' In- dustrial Savings Bank) as collateral security for the payment of the amount mentioned in the condition of the said bond, acknowl- edged the {first) day of {June, 1904,) and recorded in the office of the {Register) of {the City and) County of {New York,) in Liber No. (2132) of Mortgages, at page 167, on the {first) day of {June, 1900,) Marked Exhibit B. (Note. — Any other documentary evidence should follow here, as assignments of mortgage, policies of insurance, etc.) Statement. Principal of bond and mortgage unpaid $15,000 00 Interest thereon from {January 1, 190'5, to April 12, 1905,) 3 months and 12 days at rate of 5 per cent, per annum Taxes, assessment and insurance Total Dated, {April 12ih, 1905.) {JOHN JONES,) Eeferee. {Note. — Any testimony taken before the referee should be attached to this report.) Note. — The report of the referee to compute is usually de- livered to the attorney for the plaintiff. He should see that it is filed with the equity clerk in the county clerk's office, and give all parties entitled thereto, notice of filintv of the report, together with notice of application for final judgment of foreclosure and sale. It is deemed by some safer practice to attach a copy of the report to this notice. Reference To Compute. 583 Report Of Referee. At the expiration of not less than eight days after the notice :>£ filing has heen given and before the application for final judg- ment comes on, a certiiicate should be obtained from the equity clerk that no exceptions to the report of the referee have been filed. And although the rule seems to permit the granting of final judg- ment "without the filing of the usual note of issue, it is deemed safer to have a note of issue filed and the motion brought on in the usual way. The certificate of the clerk tliat no exceptions have been filed should be attached to the moving papers. In drawing the final judgment these blanks are left; one for the amount of costs, one for the amount of extra allowance, and one for the name of the referee. The cost of searches made by a title company may be taxed as a disbursement provided the orig- inal searches are produced at taxation and filed with the judg- ment roll. A direction is necessary to sell in one parcel or in separate parcels, and if such application has not been made upon the original motion for a reference to compute, it must be supported by affidavits upon application for final judgment. The exact course of procedure is somewhat indefinite in reference to the sale of property, and a number of courses are open. It is safer, however, to insert in the order of reference, and especially in the final judgment, that the property should be sold in a particular way. If the property consists of more ihan one parcel, and if it has not been made a part of the order of reference, the question can be raised by affidavits on application for judgment of foreclosure and sale, and the judgment of fore- closure and sale drawn up accordingly, to sell as desired. If, however, it has been ascertained at the last moment, and after the judgment of foreclosure has been obtained and the decree entered, the course to pursue is to make a motion to amend the final decree and insert the proper directions to the referee as to the manner in which the property should be sold. When a second mortgage is being foreclosed and a blanket mortgage is ahead of you, of course, it is absolutely necessary to sell in one parcel, direction should be inserted in the final decree, accordingly. (Insert in Order of Reference.) " It is further ordered that the referee examine into the ques- tion and report as to whether the property can be sold in parcels (or should be sold in one parcel)." 584 Judgment Of Fokbclostjke. Notice Of Application. On motions for final judgment, in actions of foreclosure, and partition where there have been papers printed or extra stenog- raphers' work, it is wise to move that these be allowed as dis- bursements, and if allowed in the final judgment, may be taxed as part of the bill of costs. FORM Wo. 301. Notice of Filing of Referee's Report and of Applicatioa for Judgment of Foreclosure and Sale. SUPEEME COUET, {New York) County. (COMMERCE BANK OF NEW. YORK,) Plaintiff, against (JOHN W. McKEE) and others, Defendants. Sir: PLEASE TAKE NOTICE, that the report of (Edward E. Mc- Call,) the referee appointed to compute the amount due on the bond and mortgage set forth in the complaint in the above-entitled action* [and to take proof of the facts and circumstances stated in the complaint and to examine the plaintiff or its agent on oath, as to any payments vsshich have been made], has been filed in the office of the Clerk of the County of (New York) on the (Qth) day of (October, 1903.) PLEASE TAKE NOTICE EURTHEE, that, upon the summons and complaint herein filed in the office of the Clerk of the County of (New York,) on the ' (8th) day of (June, 1903,) and on the affidavit of (William Hudson,) verified the (Qth) day of (October, 1903,) and on- the affi- davits of service, admissions of service, notices of appear- ance of and on the order of reference made herein on (3rd) day of (October, 190^3,) with proof of service of copies and notice of entry thereof, and on the report of the referee therein named filed. herein on the (6^^) day of (October, 1903,) *Portion in brackets inserted when siime defendants are infants or absentees. Judgment Of ^'obeclosube. 585 Aifidavit On Application. and upon the annexed aiEdavit of (William Hudson,) verified the (20th) day of (July, 1903,) and on all the papers and proceedings herein, a motion will be made at a Special Term of this court, (Pari I.,) to be held at the County Court House, in the (Borough of Manhattan,) City of (New York,) on the (tenth) day of (Oc- ioher,19QZ,) at 10 :30 o'clock in the (/o?'e)noon,or as soon thereafter as counsel can be heard, to confirm the said referee's report and for judgment of foreclosure and sale as prayed for in the com- plaint, with costs, and for an extra allowance in addition to costs under section 3253 of the Code of Civil Procedure, and for such other and further relief as may be just and proper. Dated, (New York, October 6, 1903.) Yours, etc., (WHITE AND CVRTIN,) Attorneys for Plaintiff, (149 Broadway, To New York City.) (WILLIAM J. KIMBALL,) (256 Broadway, New York City.) FORM No. 302. Affidavit on Application for Judgment of Foreclosure and Sale. 3SrEW yOEK SUPREME COUET, County of (New York.) (COMMERCE BANK OF NEW YORK,) Plaintiff, against (JOHN W. McKEE and others,) Defendants. STATE OE NEW TORK,\ J ss.; County of (New York.) (WILLIAM HUDSON,) being duly sworn, says that he is (an attorney at law, associated with White (& Curtin,) attorneys, for the plaintiff in the above-entitled action, and that he has charge of 586 Judgment Of Foreclosxjke. AfiSdavit On Application. the conduct of said action ; that the complaint in said action was filed in the office of the Clerk of the County of {New York) on the {8th) day of {June, 1903.) That this action is brought to foreclose a mortgage upon real property situate in the {City) and County of {New York,) executed by defendant {John W. McKee and Katherine D. McKee, his wife,) to the {Commerce Bank of New York,) to secure the prin- cipal sum of {eighteen thousand) ($18,000) dollars, of which there is now due the sum of {fifteen thousand) ($15,000) dollars, together with interest thereon from {December 30, 1902,) at the rate of {six) per centum per annum; that the said mortgage is dated on the {27th) day of {August, 1897,) and was recorded in the office of the {Register) of the County of {New York) on the {6th) day of {October, 1897,) at {one) o'clock (20) minutes (P.) M., in Liber (206) of Mortgages, {section 10.) page (285.) That on the {8th) day of {June, 1903,) a notice of the pendency of this action, containing the names of the parties thereto, the object of the action, a description of the property in that county affected thereby, the date of the mortgage and the purpose thereof, and the time and place of recording the same was filed in the office of the Clerk of the County of {New York,) that being the county in which the mortgaged premises are situated, and that since the filing of said notice the complaint in this action has not been amended by making any change in the parties to the action, nor so as to affect their property not described in the original com- plaint, nor as to extend the claim of the plaintiff against tho mort- gaged premises. That all of said defendants are of full age, except the de- fendants {Frederick Charles Dickenson) and {Arthur Henry Dickenson,) who are infants over the age of fourteen years, and have appeared by {William J. Kimball,) their guardian ad litem, and that none of the defendants who have not appeared are absentees. Deponent further says that more than twenty days have elapsed since the due service of the summons herein on all the defendants as appears by the affidavit of service and admission of service thereof and notices of appearance hereto annexed, except {John W. McKee,) the party herein above mentioned, whose name was stricken from the summons and complaint and notice of pendency of this action by an order entered herein on the {3rd) day of {Oc- tober, 1903.) Judgment Op Fokeclosuke. 587 Affidavit On Application. That the time to answer or demur to the complaint has expired as to all the defendants and that no answer or demurrer has been received, and that none of the defendants have appeared in this action excepting the defendant (Charles A. Langwell,) who has appeared herein by his attorney, (Harris Clayton,) and waived service of all papers in this action, except notice of sale' and of proceedings to obtain surplus moneys, and the defendants (Fred- erick Charles Dickenson) and (Arthur Henry Dickenson,) who have appeared herein by (William J. Kimball,) their guardian ad litem and demanded copies of all papers and notice of all pro- ceedings herein. That heretofore and on the (Srd) day of (October, 1903,) an order was entered herein striking the name of (John W. McKee) as a party defendant herein, from the summons, complaint and notice of pendency of this action, without prejudice to the proceed- ings already had herein, and directing that the action proceed as if the above-named (John W. McKee) had never been made a party thereto, and also referring it to (Edward E. McCall,) Esq., to compute the amount due to the plaintiff for principal and in- terest on the bond and mortgage set forth in the complaint in this action* [and also to take proof of the facts and circumstances stated in the complaint and to examine the plaintiff or its agent on oath as to any payments that ha"e been made] ; that a copy of said order and report was duly served on (William, J. Kimball,) the guardian ad litem of the infant defendants above named ; that the report of said referee was duly filed in the office of the Clerk of the County o£(New York,)on the(6i^)day oi (October, IdOd.) and due notice of such filing has been served on the attorneys for all defendants who have appeared in this action and demanded service of all papers. (WILLIAM HUDSON.) Sworn to before me, this (6th) day of (October, lOOo.) (MABEL C. LAKEY,) Notary Public, (New York) County. * Portion in brackets added when there are defendants who are infanti or absentees. 588 FoEECLosuRE And Sale. Judgment. FORM No. 303. Judgment of Foreclosure and Sale. At a Special Term of the Supreme Court held at tJie County Court House in the {Borough of Manhat- tan, City of New York,) on the (^Oth) day of (April, 1905.) Peesent : Hon. (GEO. C. BARRETT,) Justice. (THE EMIGRANTS' INDUSTRIAL SAVINGS BANK,) Plaintiff, against (EMILE RAM EL and HENRIETTA BAMEL,) his wife, and others, Defendants; On the summons and verified complaint and the proofs of service and notices of appearance already on file herein showing that each and all of the defendants have been duly personally served with the summons and verified complaint within this State or have voluntarily appeared hereinj more than twenty days since; and on the affidavit of (Charles B. Hawhes,) the managing clerk in ^e office of the attorney for the plaintiff, verified the (llffe) day of (April, 1905,) and already on file herein showing that none of the defendants are infants or absentees, that none of the;m have an- swered or demurred to the complaint herein and that the time for all of them to do so has expired, and that a notice of the pendency of this action was duly filed in the office of the Clerk of the County of (New Yorh,) the county in which the mortgaged premises are situated more than twenty days since and at or after the time qf filing the complaint as required by law, and that since the filing of such notice the summons and complaint herein hay© not l?een amended by making new parties to the action or so as to affect premises not described in said notice; and an order of reference having been made to compute the amount due to the plaintiff upon the bond and mortgage set forth in the complaint ; and on reading and filing the report of (John. J ones,) the referee named in the or- der of reference, by which report bearing date the (twelfth) day of (April, 1905,) it appears that the sum of (fifteen thousand five FoKHCLosuEE And Sale. 589 Judgment. hnmdred and twenty-eight) dollars aUd (seventy- five) cents was due thereon at the date of the said report, and on motion of {Wil- liam C. Orr,) attorney for the plaintiff, IT IS OEDEEED, that the said report be, and the eame is hereby in all respects confirmed, and on like motion it is ad- judged that the mortgaged premises described in the complaint in this action, as hereinafter set forth, or so much thereof as may be sufficient to raise the amount due to the plaintiff for principal, interest, costs, taxes, assessments, insurance, and expenses of sale, and which may be sold separately without material in- jury to the parties interested, be sold at public auction, at {^the New York Real Estate Salesroom,) number (149 Broad- way,) in the city of (New York,)* by or under the direction of (John Jones,) Esquire, counsellor at law, who is hereby appointed referee for that purpose ; that the said referee give public notice of the time and place of such sale, according to law, and the practice of this court; that either or any of the parties to this action may purchase at such sale; that the said referee execute to the pur- chaser or purchasers a deed or deeds of the premises sold; that out of the moneys arising from such sale, aftei" deducting the amount of his fees and expenses on said sale, and any lien or liens upon said prfemises so sold, at the time of such sale, for taxes or assessments, the said referee pay to the plaintiff or its attorney, the Slim of (one hundred and sixty-two 41/100) dollars, adjudged to the plaintiff for costs and charges in this action tOgethet -w^ith an additional allowance of (two hundred) dollars, with interest thereon from the date hereof, and also the amount so reported due as aforesaid, together with the legal interest thereon, from the date of the said report, or so much thereof as the purchase money of the mortgaged premises will pay of the same, take a receipt there- fbr, and file it with his report of sale ; that he deposit the surplus moneys (if any), with the (Chamberlain of the City of New York) to the credit of this action within five days after he receives the same, to be drawn only on the order of the court, signed by the clerk and a judge of the court, and that he make a report of such sale, and file it with the clerk of this court with all convenient speed; that if the proceeds of such sale be insufficient to pay the amount so reported due the plaintiff with the interest and costs as aforesaid, the said referee specify the amount of such deficiency in his report of sale, and that the defendant, (Emile Ramel,) pay • Now at 14-16 Vesey street. 590 FoBECLosxJKE And Sale. Notice Of Sale. the same to the plaintiff, and that the defendant have execution therefor ; and that the purchaser or purchasers at such sale be let into possession on production of the referee's deed. AND IT IS FUETHER ADJUDGED, that the defendants and all persons claiming under them, or any or either of them, after the filing of such notice of pendency of this action, be for- ever barred and foreclosed of all right, title, interest and equity of redemption in the said mortgaged premises so sold or any part thereof. The following is a description of the mortgaged premises herein- before mentioned. (Description.) Enter, (GEO. C. BARRETT,) J. S. C. Note. — A copy of the judgment of foreclosure and sale ehould l>e served on all parties interested. Notice of sale must then begin by publication of advertisement twice a week for three successive weeks, and in this connection the requirement of Rule 14 of the General Rules of Practice that a diagram of the property and the street number must be inserted in the advertisement, must be kept in mind. JSTotice of sale is also given to all parties who have appeared in the action and demanded same, bj personal service of a copy of the notice of sale upon their attom':'ys. FosECLOsuRE And Sale. 591 Terms Of Sale. SUPEEME COUKT, {New York) County. FORM No. 304. Terms of Sale. (CHABLES ELLEBSLEY DODGE.) Plaintiff, against (DENISON OLIVEB) and others, Defendants. The premises described in the annexed advertisement cf sale, will be sold under the direction of (WilUam Hammond,) referee, upon the following terms: Dated, (New Yorlc, November 17, 1906. ) 1st. {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 the said referee's receipt will be given. 2d. The residue of said purchase money will be required to be paid to the said referee, at his office. No. (Ill Broadway,) in the City of {New York,) on the {second) day of {December, 1906,) when the said referee's deed will be ready for delivery. 3d. The referee is not required to send any notice to the pur- chaser; and if he neglects to call at the time and place above specified to receive his deed, he will be charged with interest there- after 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. 4th. All taxes, assessments and other incumbrances, which, at the time of sale, are liens or incumbrances upon said premises, will be allowed by the referee oiit of the purchase money, provided the purchaser shall, previous to the delivery of his deed, produce to the referee proof of such liens, and duplicate receipts for the pay- ment thereof. 5th. The purchaser of said premises, or any portion thereof, will at the time and place of sale, sign a memorandum of iiis pur- chase, and {pay in addition to the purchase money, the auctioneer's fee of fifteen doUa/rs for each parcel separately sold, and the Exchange Salesroom fee of two dollars for each knock down.) / 592 FoBECLOsuEE And Sale. Tefms Of Sale. 6 th. 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 direction of said referee, under the same terms of sale, without application to the court, unless plaintiff's attorney shall elect to make such application, and such purchaser will be held liable for any deficiency there may ba between the sums for which said premises shall be Struck down upon the sale, and that for which they may be purchased on the re-sale, and also for any costs or expenses occurring on such re- sale. 7th. (The premises will be sold subject to a first mortgage for $10,000 now a lien thereon, with interest from December 30, 1899, at 5 per cent, per annum, amounting to $438.70' to date.) (WILLIAM HAMMOND,) Referee. Memoeandum of Sale. have this day of , 190.., pur- chased the premises in the above annexed printed advertisement of sale, for the sum of , and hereby promise and agree to comply with the terms and conditions of the sale of said premises, as above mentioned and set forth. Dated, New York, , 190 . . . New York, , 190. .. Eeceived from , the sum of , being ten per cent, on the amount bid by for property sold by me under the order in this cause. Sale In Fobeclosuke. 593 Referee's Report. PORM No. 305. Beferee's Report of Sale. SUPEEME COURT, County of {New York.) {THE EMIGRANTS' INDUSTRIAL SAVIN&S BANE,) Plaintiff, against {EMILE RAMEL) and others, Defendants. To the Supreme Court: I, {John Jones,) the referee appointed by the judgment made and entered in this action bearing date the {fourteenth) day of {April, 1905,) to make the sale of the mortgaged lands and prem- ises therein particularly described, do respectfully report as follows : Eirst. That I caused due notice of the sale of the said lands and premises on the (9rOTE. The petition for the appointment of a general guardian must show: 1. Whether the father or mother are known to be alive and if living their last known residence. 2. The names of the nearest relatives of the minor resident in the county. 3. When either father or mother is living, and the petition asks for the appointment of some other person, circumstances which render the appointment of another person expedient must be stated, and the petition must ask that a citation be issued to either the father or mother, or both, to show cause why such other person should not be appointed. FORM No. 327. Petition for Appointment of General Guardian — Infant Under 14. SUREOGATE'S COURT, (New York) County. In the Matter of the Application for Letters of Guardianship for (MYBA A. MURRAY,) Infant. To the Surrogate's Coiirt of the County of (New York:) THE PETITIOK of (Catherine Bergen,) of the County of (New York,) residing at (No. 16 West IQfh street, in the Borough of Manhattan, City of New York,) respectfully showeth: That your petitioner is (the maternal grandmother of Myra A. Murray,) a minor, who resides with petitioner, and that neither the father nor the mother of the said minor is living. That said minor is a resident of the County of (New York,) and is under fourteen years of age. That said minor was (ten) years of age on the (third) day of (November) last past, [627] 628 General Guardian. Petition — Infant Under 14. That the nearest relatives of said minor residing in the County ■of {New York) are (a brother, William A. Murray,) who resides at (78 Parh Avenue, in the Borough of Manhattan, City of New Yorh, whose consent to the appointment of your petitioner is hereto annexed and your petitioner.) That said minor is entitled to personal property to the value of about {one thousand) dollars, as your petitioner is informed and verily believes, and that the same consists of {stocks and bonds.) That said minor is entitled to the income from certain real estate amounting annually to the sum of (no) dollars. And that to protect and preserve the legal rights of said minor it is necessary that some proper person should be duly appointed the guardian of {her) person and estate, said minor having now no general or testamentary guardian to the knowledge and belief of your petitioner. Your petitioner, therefore, prays * that you issue a decree nomi- nating and appointing {your petitioner, Catherine Bergen,) the guardian of the person and estate of said minor, until {she) arrives at fourteen years of age, and until another guardian shall be ap- jjointed. And your petitioner will ever pray. {CATHERINE BERGEN.) STATE OF NEW YORE, \ iSS ' QouTxty oi {New York,) J {CATHERINE BERGEN,) the above-named petitioner, being duly sworn, deposes and says, that {she) has read the foregoing petition subscribed by {her,) and knows the contents thereof, and that the same is true to {her) ovm knowledge, except as to the mat- ters therein stated to be alleged on information and belief, and as to those matters {she) believes it to be true. {CATHERINE BERGEN.) Subscribed and sworn to before me, this {bth) day of {December, 1904.) {THOMAS OLIPHANT,) N'otary Public, {New York) County. * Where there are relatives entitled to notice of the application for letters ■within the County of New York, whose consents to the appointment praved for cannot be submitted with the petition, the petition should ask that a citation issue directed to such persons to show cause on a certain day why letters of guardianship should not be granted to the person named in the petition. Genebal Gxtaedian. 629 Consent — Oath. (CDnsent.) I, (CATHERINE BERGEN,) do hereby consent to become the guardian of the above-mentioned minor, pursuant to the prayer of the foregoing petitioner. (CATHERINE BERGEN.) STATE OF NEW TOEK, 1 rSS ' County of (New Yorh,) J On this (first) day of (December, 1904,) before me came (Catherine Bergen,) to me known to be the individual described in and who executed the within consent, and acknowledged that (she) executed the same. (NATHAN MAUXON,) IN"otary Public, (New Yorh) County. '\ss. (Oath.) STATE OF NEW YOEK, County of (New Yorh,) I, (CATHERINE BERGEN,) residing at (16 West IGth street, in the Borough of Manhattan, City of New Yorh,) do solemnly swear and declare that (I) will well, honestly and faith- fully discharge the duties of general guardian of the person and estate of (Myra A. Murray,) a minor, according to law. S-wom to before me, this 1 (1st) day of (December, 1904.) J (NATHAN MAUXON,) Notary Public, (New Yorh) County. 630 GrENEEAL Guardian. Petition — Infant Over 14. FORK No. 328. Petition for Appointment of General Guardian — Infant Over 14. SUEKOGATE'S COURT, {New York) County. In the Matter of the Application for Letters of Guardian- ship for (ANDREW -BBADY,) Infant. To the Surrogate's Court of the County of (New York:) THE PETITIGlSr of (^Andrew Brady,) of the County of (New York,) residing at (729 Lexington avenue, in the Borough, of Man- hattan, City of New York,) respectfully showeth : That your petitioner is a resident of the County of (New York,) and is a minor over fourteen years of age, and was (sixteen) years of age on the (twenty-first) day of (September,) last past; that (Thomas Brady,) the father of your petitioner and (Eleanor Brady,) his mother, are hoth deceased and the nearest relative of your petitioner residing in the County of (New York or else- where) is (Peter Brady, the brother of your petitioner's father with whom your petitioner has resided and by whom he has been supported and educated for the past eight years;) that your peti- tioner is entitled to certain property and estate, and that to protect and preserve the legal rights of your petitioner, it is necessary that some proper person should be duly appointed the guardian of (his) person and estates during (his) minority, your petitioner having now no general or testamentary guardian to (his) knowledge or belief. Your petitioner therefore prays that you will issue a decree appointing (Peter Brady, an uncle of your petitioner,) re- siding at (Y29 Lexington Ave., in the Borough of Manhattan, City of New York,) as such guardian. And your petitioner will ever pray. (ANDREW BRADY.) Dated, (New York, the tenth) day of (October, 1904.) STATE OF NEW YOEK, 1 County of (New York,) J (Andrew Brady,) the petitioner named in the foregoing peti- tion, being duly sworn, deposes and says that he has read the GrBNEKAL GrUAEDIAN. 631 Consent. foregoing petition subscribed by (Mm) and knows the contents thereof, and that the same is true to (Ids) 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. {ANDREW BRADY.) Subscribed and sworn this {10th) day of (October, 1904.) (JAMES OLIVER,) Notary Public, (New York) County. (Consent.) I, (Peter Brady,) do hereby consent to be appointed the guardian of the person and estate of the above-named minor during (his) minority. (PETER BRADY.) STATE OF NEW YORK, 1 County of (New York,) J On this (fifth) day of (Odoher, 1904,) before me came (Peter Brady,) to me known to be the individual described in and who ■executed the within consent, and acknowledged that he executed the same. (JAMES OLIVER,) Notary Public, (New York) County. STATE OF NEW YOEK, 1 County of (New York,)r^-- (Peter Brady,) being duly sworn, deposes and says, that he is acqu,ainted with the property and estate of the above-named minor, and that the same consists of real and personal estate ; and that the personal estate of said minor does not exceed the sum of (one thousartd) dollars, or thereabouts; and that the annual rents ■of the real estate of said minor do not exceed the sum of (fifteen .hundred) dollars, or thereabouts. (PETER BRADY.) Sworn to this (5th) day of (October, 1904,) before me, (JAMES OLIVER,) Notary Public, (New York) County. 632 Genbeail Gptjabdian. Inventory And Account. (Oath.) STATE OF NEW YOEK, ] . County of {New York,) J 1, (Peter Brady,) residing at (729 Lexington Ave., in the Borough of Manhattan, City of New Yorh,) do solemnly swear and declare that I will well, honestly and faithfully discharge the duties of general guardian of the person and estate of (Andrew- Brady,) minor, according to law. (PETER BRADY.) Sworn to before me, this (5th) "1 day of (October, 1904.) j (JAMES OLIVER,) Notary Public, (New York) County. TOBM No. 329. Inventory and Account of General Guardian. SUEEOGATE'S COUET, County of (New York.) In the matter of the Judicial' Settle- ment of the Account of Proceedings of (JOHN DOE,) General Guardian, of (RICHARD ROE and MARY ROE,) Infants. To the Slwrogate's Court of the County of (New York:) I, (John Doe,) residing at (210 Halsey street,) in (tJie Bormigh of Brooklyn, City of New York,) do hereby rend'er the following account of my proceedings as general guardian of (Richard Roe and Mary Roe,) infants. On the (5th) day of (April, 1903;,) letters of guardi-afflship on the estate of said infants were granted tOf me by this court. On the (tenth) day of (April, 1903,) I caused to be filed in the office of the Surrogate of this county, a true and full inventory and account General Gtuabdian. 633 Inventory And Account. of each article or item of personal property belonging to said in- fants, pursuant to sections 2842 and 2843 of the Code of Civil Procedure ; and annually thereafter, to wit, on the (second) day of (April, 1904,) I caused to be filed in the office of said Surrogate annual inventories and accounts of the personal property of said infants, as prescribed by the sections of the Code of Civil Pro- cedure above specified; the last of which said inventories and accounts was so filed on the (second) day of (April, 1904,) and the value of the personal property of said infants then remaining in my hands amounted to the sum of (eighteen thousand) dollars. Schedule "A" hereto annexed contains a statement of all property belonging to my wards which came into my hands upon assuming the office of general guardian. Schedule " B " hereto annexed contains a statement of all prop- erty which has come into my hands since said (second) day of (April, 1904,) together with a statement of all debts due said wards collected by me, and also of all moneys and interest received by me for which I am legally accountable. Schedule " C " hereto annexed contains a statement of all prop- erty of said wiards now remaining in my hands, and a full and true description of the amount and nature of each investment made by me since my appointment Schedule " D " hereto annexed contains a statement of all prop- erty changed in schedules "A" and " B " not now remaining in my hands, together with a statement of the manner and purposes of its disposal. Schedule " E " hereto annexed contains a statement in form ot debit and" credit of all moneys received and disbursed by me on account of said wards since the said (second) day of (April, 1904,) and distinctly states the balance now remaining in my hands. Schedule "F" hereto annexed contains the names, ages and places of residence of the wards for whom I have acted as general guardian. Schedule " G " hereto annexed contains a statement of all other facts affecting my administration as such general guardian. I charge myself as follows : With amount of property as per schedule "A" $ With amount of increase as per schedule " B ". . . : $ Total ~l 634 Genekal Guabdian. Inventory And Account. I credit myself as follows : With amount as per schedule " D " $ . . . . With amount of disbursements as per schedule " E " $. . . . Total $. Leaving a balance of (fourteen thousand and fifty) dollars to be distributed to said wards, subject to the amount of my commission and the expenses of this accounting. The said schedules which are severally signed by me are a part of this account. (JOHN DOE,) General Guardian of (Richard Boe and Mary Roe,) Infants. STATE OF NEW YORK, 1 County of (Kings,) J I, (John Doe,) the general guardian of (Richard Roe and Mary Roe,) infants, being duly sworn, do depose and say, that the fore- going account and schedules contain to the best of my knowledge and belief a full and true statement of all my receipts and dis- bursements on account of said wards, and of all money and other personal property of the said wards which have come to my hands or have been received by any other person by my order or authority or for my use since my appointment ; and of the value of all such property, together with a full and true statement and account of the manner in which I have disposed of the same, and of all the property remaining in my hands at the present time, and a full and true description of the amount and nature of each invest- ment made by me since my appointment; and I do not know of any error or omission in the foregoing account and schedule to the prejudice of said wards. (JOHN DOE,) General Guardian. Sworn to before me, this (Uh) day of (A'pril, 1905.) (WILLIAM WILCOX,y Notary Public, (N. Y.) Co. SPECIAL GUARDIANS. FORM No. 330. Petition of Infant Over Fourteen for Special Guardian.* SUEKOGATE'S COURT, (New York) County. In the Matter of the Application oi (WILLIAM TAYLOR and JOHN ASTOR), as Trustees under the Last Will and Testament of (WIL- LIAM ASTOR), Deceased, for Leave to Resign Testamentary Trusts under Section 2814 of the Code of Civil Procedure, and for Leave to Have their Accounts as Such Testamentary Trustees Judici- ally Settled. To the Surrogate's Court of the County of (New Yorh) : The petition of (Charles Astor), at present residing at (621 Fifth Avenue, in the Borough of Manhattan, City of New York,) respectfully showeth: First. That your petitioner is a resident of the county of (New York,) is an infant over the age of fourteen years, to-wit: of the ^ge of (twenty) years on the (l%th) day of (July, 1906) ; that his father is dead and that he at the present time resides with his mother (Sarah Astor), at the ahove address; that his said mother (Sarah Astor), is his general guardian. Second. That your petitioner is one of the parties to the above- entitled proceeding and is informed and verily believes that he is entitled to certain property and, estate, and that his interest therein arises out of the fact that he is one of the beneficiaries under the will of (William Astor), deceased who was his (father, hut that * Petition made after service of citation on infant. [635] 636 Special Guabdian. Petition — Infant Over 14. said interest will not vest in possession in him until he arrives at the age of thirty-five years.). Third. That at the City of New Yorh on February 9, 1907), your petitioner was served personally with a (supplemental) cita- tion in this proceeding, which (supplemental) citation is return- able on the (19th) day of (February, 1907). Fourth. That your petitioner desires to appear herein by a special guardian to protect and preserve the rights and interests which he may have in this proceeding; that he has informed his mother and general guardian of his desire to appear by special guardian other than through her and his said mother has made no objection to this application but, on the contrary, approves the same, as appears by her affidavit hereto annexed. Fifth. That your petitioner is informed and verily believes that (George Kent), a counsellor-at-law, residing at (25 ParTc Place, in the Borough of BrooMyn, City of New York,) and having an office at (132 Liberty Street in the Borough of Man- hattan), is a competent and proper person to protect the interests of your petitioner herein ; and that he has no interest whatever in this proceeding, and is not connected in business with the attorney or counsel of or any party to the proceeding. WHEREFORE, your petitioner prays that an order may be made herein appointing the said (Geoorge Kent), special guardian to appear herein, and protect the rights and interests of your petitioner. And your petitioner will ever pray. Dated (New York, January 18, 1907.) STATE OF NEW YORK, V . {CHARLES ASTOR.) County of (New York), f (CHARLES ASTOR), being duly sworn deposes and says, that he is the petitioner above-named; that he has read the fore- going petition, and knows the contents thereof, and that the same is true to his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters believes it to be true. (CHARLES ASTOR.) Sworn to before me, this' (tSth) day of (January, 1907)- (EDWARD JAMES), N^otary Public; (N. Y.) Co., m. (2»6). Special Guajrdian. 637 Consent. FORM No. 331. Consent of Proposed Guardian. SUEEiOGATE'S COURT, {New York) County. In the Matter of the Application of (WILLIAM TAYLOR and JOHN ASTOR), as Trustees under the last Will and Testament of {WILLIAM ASTOR), Deceased, for Leave to Resign Testamentary Trusts under Section 2814 of the Code of Civil Procedure, and for Leave ■ to Have their Accounts as such Testamentary Trustees Judicially Settled. I, {GEORGE KENT), an attorney and counsellor^at-law, re- siding at (25 Park Place, in the Borough of Brooklyn, City of New York), having an office at (132 Liberty street, in the Borough cf Manhattan), do hereby consent to become special guardian for {Charles Astor), an infant, and one of the parties to the above- ■entitled proceeding. Dated {Felruary 19, 1907). {GEORGE KENT.) STATE OF KEW YORK, 1 County of {New York), J**" On this {19th) day of {February, 1907), before me personally appeared {George Kent), to me known and known to me to be the person mentioned in and who executed the foregoing consent and he did acknowledge to me that he executed the same. {EDWARD JAMES), N'otary Public, {N. Y.) Co. (296). 638 Special Gxjabdian. AflSdavit Of Proposed Guardian. FORK No. 332. Affidavit of Proposed Special Guardian. SimHOGATE'S COURT, (^New York) County. In the Matter of the Application of (WILLIAM TAYLOR and JOHN AST OR), as Trustees under the last Will and Testament of (WILLIAM ASTOR), Deceased, for Leave to Resign Testamentary Trusts under Section 2814 of the Code of Civil Procedure, and for Leave to Have their Accounts as such Testamentary Trustees Judicially Settled. STATE OF NEW YORK, County of (New York), (GEORGE KENT), heing duly sworn says: That he is the person mentioned in the consent hereto annexed ; that he is in all respects competent to protect whatever rights the petitioner (Charles Astor) may have in the above-entitled proceeding; that he has no interests adverse to those of the said infant nor has he had any interest whatever herein; that he is not connected in business with the attorney or counsel of any party to this pro- ceeding. (GEORGE KENT.) Sworn to hefore me, this (19th) day of (February, 1907). (EDWARD JAMES), l^otary Public, (N. Y.) Co. (296). Special Guaedian. 639 Affidavit Of Parent. FORM No. 333. Affidavit of Parent of Infant. SURROGATE'S COURT, {New York) County. In the Matter of the Application of (WILLIAM TAYLOR and JOHN A8T0R), as Trustees under the last Will and Testament of (WILLIAM AST OR), Deceased, for Leave to Eesign Testamentary Trusts under Section 2814 of the Code of Civil Procedure, and for Leave to Have their Accounts as such Testamentary Trustees Judicially Settled. STATE OF ISTEW YOEX, County of (New York), (SARAH ASTOR), being duly sworn, says : I am the (mother) of (Charles Astor), the petitioner herein, and am also his general guardian. Said petitioner resides with me at the present time at (No. 621 Fifth Avenue, in the Borough of MO'i^hattan, City of New York). Said petitioner has informed me that he desires to apply to this court for the appointment of (George Kent), as his special guardian in this proceeding; and I approve such application. I have not influenced the said petitioner in any way in the choice of a guardian, but his selection was his own act. (SARAH ASTOR.) Sworn to before me, this (18^^) day of (February, 1907). (EDWARD JAMES), ISTotary Public, (N.'y.) Co. (296). 640 Special Guabdian. Order. FORM No. 334. Order Appointing Special Guardian (Infant Over Fourteen). At a Term of the Surrogate's Court, held in and for the County of (New York), at {the Court-room in the Hall of Records), on the {25th) day of (February, 1907). Present : Hon. (ABNEB C. THOMAS.) In the Matter of the Application of (WILLIAM^ TAYLOR and JOHN ASTOR), as Trustees under the last Will and Testament of (WILLIAM ASTOR), Deceased, for Leave to Resign Testamentary Trusts under Section 2814 of the Code of Civil Pl-ocedure, and for Leave to Have their Accounts as such Testamentary Trustees Judicially Settled. On reading and filing the petition of (Charles Astor), verified the (18^^) day of (February, 1907) ; the consent of (George Kent), verified the (19^^) day of (February, 1907) ; together with the affidavit of (Sarah Astor), verified the (ISth) day of (February, 1907), it is ORDERED that (George Kent), counsellor-at-law, be, and he hereby is, appointed special guardian for (Charles Astor), in the above-entitled proceedings and authorized and directed to appear therein and take such steps as he may deem proper for the pro- tection of the interests of said infant. (ABNER O. THOMAS), Surrogate, (N. Y.) Co. ACCOUNTS. FORM No. 335. Petition for Voluntary Accounting of Executor. SURROGATE'S COURT, {New York) County. In the Matter of the Judicial Settlenient of the Account of {JOHN T. DALTON,) as Executor of the last Will and Testa- ment of {JAMES REID,) Deceased. To the Surrogate's Court of the County of {New York') : The petition of {John T. Dalton,) residing at (!N"o. 200 East Nineteenth street. Borough of Manhattan, City of New York,) respectfully shows: That letters testamentary, under the last will and testament of {James Reid,) late of the County of {New York,) deceased, who died possessed of personal property located in the County of {New York,) were granted by this court to your petitioner on the {lUh) day of {May, 1904;) that the only persons interested in the estate of said decedent as creditors, or persons claiming to be creditors, or as widow, next of kin, legatees, or otherwise, together with their places of residence, are, to the best of your petitioner's knowledge, information and belief, as follows, to wit : {Marie Daniels,) widow of deceased, who resides at {Hotel Imperial, New York City.) {Isabel Reid,) a daughter of deceased, who resides at {The Hague, Holland.) {Theresa Johnson,) a legatee of deceased, who resides at (538 West Forty-seventh street. Borough of Manhattan, New York City.) That all of the above persons are of full age and of sound mind. That the only persons interested in the estate of said decedent as creditors, or persons claiming to be creditors of the estate, are the following: [641] r^ 41 642 Executob's Accoitnt. Petition. Comptroller of the State of {New Yorh) . The Receiver of Taxes of the {Borough of Manhattan) . (Names.) (Addresses.) That no bonds were given or required. That more than one year has elapsed since the issuance of said letters testamentary. Tour petitioner, therefore, prays that his account may be ju- dicially settled, and that the persons above mentioned may be cited to attend the settlement. Dated, (New York, October 20, 1905.) (JOHN T. DALTON,) Petitioner. STATE OF KEW Y0RK,1 Qovjiij ,oi (New Yorh), J (John T. Dalton,) being duly sv^orn, says that he is the peti- tioner herein; that he has read the foregoing petition and knows the contents thereof, and that the same is true of his own knowl- edge, except -as to the matters therein stated to be alleged on in- formation and belief, and that as to those matters he believes it to be true. (JOHN T. DALTON.) Sworn to before me, this (2Qth) day of (October, 190i5.) (WABBEN ELLIS,) Notary Public, (N. Y.) County. Executor's Account. 643 Account And Schedules. FORM No. 336. Executor's Account. SUEROGATE'S COURT, (New York) County. In the Matter of the Judicial Settlement of the Account of (JOHN T. DALTON,) as Executor of the last Will and Testa- ment of (JAMES BEID,) Deceased. To the Surrogate's Court- of the County of (New York) : 1, (John T. Dalton,) of the (Borough of Manhattan, City of New York,) do render the following account of my proceedings as executor of the last will and testament of (James Beid,) late of the County of (New York,) deceased. On the (IQth) day of (May, 1905,) testamentary letters were issued to me as executor, by the Surrogate's Court of the County of (New York.) On the (^th) day of (November, 1905,) I caused an inventory of the personal estate of the deceased to be filed in this ofiice, which personal estate therein set forth, amounts by appraisement of the appraisers duly appointed to (twenty-nine thousand, nine hundred forty-four and 14/100) dollars ($29,944.14.) Schedule A, hereto annexed, contains a statement of all the property contained in said inventory, which property consists solely of money on deposit; it also contains a statement of all debts due the said estate, and mentioned in said inventory which had been collected, and also of all interest or moneys received by me for which I am legally accountable. Schedule B, hereto annexed, contains a statement that there were no debts owing to the said decedent or his estate, and no articles of personal property other than the moneys on deposit ' set forth in Schedule A. No other assets than those in said in- ventory, or herein set forth, have come into my possession or knowledge, and all the increase or decrease in the value of any assets of said deceased is allowed or charged in said Schedules A and B. 644 Executor's Account. Account And Schedules. Scliedule C, hereto annexed, contains a statement of all moneys paid by me- for funeral and other necessary expenses for said es- tate, together with the reasons and object of such expenditure. Schedule D, hereto annexed, contains a statement of all the claims of creditors presented to and allowed by me, or disputed by me, and for which judgment or decree has been rendered against me, together with the names of the claimants, the gen- eral nature of the claim, its amount, and the time of the rendi- tion of the judgment; it also contains a statement of all moneys paid by me to the creditors of the deceased and their names and the time of such payment. Schedule E, hereto annexed, contains a statement of all moneys paid to the legatees, widow, or next of kin of the decedent. Schedule F, hereto annexed, contains the names of all persons entitled as widow, legatee, or next of kin of the deceased, to a share of his estate, with their places of residence, degree of rela- tionship and a statement of which of them are minors, and whether they have any general guardian, and if so, their names and places of residence, to the best of my knowledge, information and belief. Schedule G, hereto annexed, contains a statement of all other facts affecting my administration of said estate, my rights and those of others interested therein. I charge myself as follows : With amount of inventory ($29,944 14) With amount of increase as shown by Schedule A (1,923 43) ($31,867 57) With amount of expenditures set forth in Schedule C ($1,115 51) With amount of expenditures set forth in Schedule D (1,722 85) With amount of payments set forth in Schedule E (28,543 67) (31,382 03) Leaving a balance of ($485 54) to be distributed to those entitled thereto, subject to the deduction of the amotmt of my commissions and the expense of this account- ing. The said schedules, which are severally signed by me, are part of this account. {JOHN T. D ALTON.) Executoe's Account. 645 Schedules. Schedule A. (1903.) {Dec. 31. Amount of inventory) , ($'29,944 14) (1904.) {Feh. 19. Draft per collection on G. Amsy & Company) (400 00) (May 26. Interest to date) (711 46) 1905. (May 1. Interest to date) (635 51) (Oct. 15. Interest to date) (176 46) ($31,867 57) (JOHN T. DALTON.) Schedule B. Fo debts and no personal property other than the amount on deposit, as per Schedule A. Schedule C. •^^*?*- Voucher Xo. Jan. 11. Funeral expenses $330 qo (1\ 12. City Hospital, hospital expenses. . 50 51 (2) 15. Frederick Mortimer, M. D., bal- ance professional services 50 00 (3") May 24. Charles Keep, professional ser- vices . J „ ^ ""'""'• 100 00 (4) June 9. Irene J. Jessup, professional ser- vices 9^ flft fK\ Sept. 22. Charles Keep, professional ser- „^ , f'^' 100 00 (6') 27. John T. Dalton, executor, account 1905 ^"'^^^^^'o^ 250 00 (7) Fel. 3. Charles Keep, professional ser- '''''' 210 00 (8) $1,115 51 (JOHN T. DALTON.) 646 Executor's Account. Schedules. 1904. Schedule D. Voucher No. Nov. 1. Receiver of Taxes, taxes on lots in Mapleton, L.I $64 06 (9) 15. Morrison & Co., paints, etc , $11 00 15. John W. Masury, & Son, paints, oils, etc 8 50 19 50 (10) 18. Marine insurance on monument. . 4 50 (11) Dec. 20. State Comptroller, transfer tax. . 290 24 (12) 31. H. Anderson, monument 1,057 50 (13) 1905. Jan. 3. Hiram Cohn, provisions, $10 31 S. H. A. S chafer, pro- visions , 2 50 12 81 (14) Oct. 4. Receiver of taxes, tax on personal estate 274 24 (15) $1,722 85 (JOEN T. DALTON.) 1904. Schedule E. Voucher No. May 17. Mrs. Isabel Reid $7,000 00 (16) 1905. Aug. 1. Mrs. Isabel Reid 19,143 67 (17) 30. Mrs. M. R. Reid 2,400 00 (18) $28,543 67 (JOHN T. DALTON.) Schedule F. All persons who are entitled as widow, legatee or next of kin of the deceased to a share of his estate, their places of residence, degree of relationship, and whether they are adults or minors, are as follows: (Marie Daniels, widow) of deceased, who resides at (the Hotel Imperial, New Yorh Citu.') Executor's Acooxjnt. 647 Schedules. Isabel Beid, a daughter') of deceased, -who resides at {The Hague, Holland.) {Theresa Johnson, a legatee) of deceased, who resides at (538 West Forty-seventh street. Borough of Manhattan, New York City.) The persons above mentioned are all of full age and sound mind. {JOHN T. D ALTON.) Schedule G. After the payment of the expenses, debts and lega- cies above set forth in Schedules " C," " J} " and ." E," there remains in my hands a balance of. . ($485 54) The total amount of money actually paid by me in administering the affairs of the estate was. . .,. . (31,867 57) Upon which my commissions as executor amount to (508 67) I have credited myself in the foregoing schedule with ($250,) on account of my commissions, leaving a balance due me for commissions of . . . (248 67) After the payment of my commissions in full there will remain to the credit of the estate (to be ap- plied to the payment of the expenses of the accounting and distributed to the persons entitled thereto (236 gf) SURROGATE'S COURT, {New York) County. In the Matter of the Judicial Settlement of the Account of {JOHN T. D ALTON,) as Executor of the last Will and Testa- ment of {JAMES BEID,) Deceased. STATE or ISTEW YORK,\ County of {New York,) I, {John T. Dalton,) of the {Borough of Brooklyn, City of New York,) being duly sworn, say, that the charges made in the lox^oing account of proceedings in schedules annexed for moneys 648 Executor's Account. Verification. paid by me to the creditors, legatees and next of kin, and for neces- sary expenses, are true ; that I have been charged therein with all the interest for moneys received by me and embraced in said account, for which I am legally accountable; that the charges therein for the increase or decrease in value of any assets are correctly made; and that I do not know of any error in said account or anything omitted therefrom which may in any wise prejudice the rights of any party interested in the said estate. I further say that the sums under (twenty) dollars ($20.00) charged in the said accoimt, for which no vouchers or other evi- dence of payment are produced', or for which I may not be able to produce vouchers or other evidences of payment, have actually been paid and disbursed by me as charged; ani that said account contains, to the best of my knowledge and belief, a full and true statement of all my rights and disbursements on account of the estate of said decedent, and of all moneys and other property be- longing to said estate which have come into my hands, or which have been received by any other person by my order or authority, for my use, and that I do not know of any error or omission in the account to the prejudice of any creditor or other person inter- ested in the estate of said decedent. (JOHN T. DALTON.) Sworn to before me this (20/^) day of (October, 1905.) (WARREN ELLIS,) !N"otary Public, (N. Y.) County. Accounting. 649 BUls Of Cbsts. FORM No. 337. Bill of Costs on Accounting. SUEEOGATE'S COURT, County of {New York.) In the Matter of the Judicial Settle- ment of the Aceount of (RICHARD ROE,) as Executor of the last Will and Testament of {JOHN DOE,) Deceased. 1 N. B.— See sections 2561 and 2562 of the Code of C'v. Proe., and in New York County Eule 22 of the Sunx^te's Q)iirt. COSTS. Costs pursuant to section 2561 of the Code of Civil Procedure ^ Contest No contest Days occupied in the trial or hearing, less two, and less adjournments. Motions for 'New Trial Allowance to accounting party under section 2662, Code of Civil Procedure, viz. : Days occupied in trial or hearing, less adjourn- menis Days necessarily occupied in preparing ac- count Days necessarily occupied in otherwise prepar- ing for trial Total Costs and Allowance. DiSBUESEMENTS Total 650 Accounting. Affidavit As To Disbursements. DlSBUESEMEaSTTS. For Serving Citation on parties " Publication Citation, New York Law Journal. " Referee's Fees " Appraiser's Fees " Stenographer's Fees " Affidavits and Acknowledgments " Postage " Certified Copies " Certified Copy Decree " Satisfactions of Decree " Certificate of Filing Satisfactions " Necessary Copies of Papers, as follows: " Attendance of Witnesses STATE OF NEW YORK, I County of (New York, , being duly sworn, says, that he is the' attorney and counsel for in the above entitled proceeding; that the foregoing disbursements have been actually made or will be necessarily incurred therein, by or in behalf of the said . That such disbursements are correctly stated, and are for reasonable and necessary expenses in this proceeding. Deponent further says that the time stated in the foregoing bill of costs as having been occupied as therein specified, was actually, substantially and necessarily so occupied and employed in this matter by deponent, and that the time occupied on each day in the rendition of the services aforesaid, and their nature and ex- tent in detail, are, as hereinafter set forth, opposite the date of the rendition of the services and under the appropriate head of partic- ular class of services rendered in the above entitled proceeding. That no compensation has been paid or given out of the funds of the estate of the said deceased, for or on account of the services specified herein. (Statement of cmwuni of time engaged should be attached.) Sworn to before me, this 1 day of J ADOPTION. NOTE. I. Consent is necessary : (a) Of the minor if ke is over twelve. (&) Of the foster parents, husband and wife, unless 1. They are living separate. 2. Adoption is joint. (c) Of parents or surviving parent of a legitimate child, except 1. Of parent who has abandoned child. 2. Of parent deprived of civil rights. 3. Of parent divorced for adultery or cruelty. 4. Of parent adjudged insane or habitual dnmkard- 5. Of parent judicially deprived of custody of child. (5) Of person having legal custody of child : 1. If the parents are not living. 2. In case the parent's consent is not required. II. Proceedings: The following papers should be presented: (a) The necessary consents. (6) An agreement of the foster parents to adopt minor and treat him as their own lawful child. (c) Petition, showing: 1. Age of minor as nearly as may be. 2. Pacts relating to custody. 3. Pacts upon which adoption is sought {d) When the legal custodian (society or otherwise) resides without the county, his or their written and acknowledged consent, or that of the proper of- ficer (if a society), certified as required in case of a deed. (e) — 1. All persons whose consent is necessary must ap- pear before the surrogate, except in {d) mipra. 2. The necessary consent and agreements must be severally acknowledged by the necessary pergona before the surrogate and signed by them. [651] 652 ' Adoption. Petition. III. Order and filing: Granted' if satisfied that adoption will promote best interests of child. Order : 1. Recites {a) the reasons (and if no father or mother living, or no person taving legal cus- tody, facts to be stated) . (a) The proceedings : 2. Allows and confirms the adoption. 3. Directs that the minor shall " thenceforth be re- garded and treated in all respects as the child of the foster parent or parents. All the papers must be filed in the office of the county clerJfc. FORM No. 338. Adoption of Infant — Petition Where Child in Custody of Society. SUEEOGATE'S COUET, {New Yorh) County. In the Matter of the Adoption of {JOHN HEMP,) a minor, by George Hengsten and Elizabeth Hengsten, foster parents. To the Surrogate's Court of the County of {New York) : The petition of {George Hengsten) and {Elizabeth Hengsten) respectfully shows to this court as follows : I. That the above-named {John Hemp) is a minor, born the {7th) day of {July, 1898,) and is now of about the age of {four) (4) years and {seven) (7) months. II. That said {John Hemp) is an indigent child and was under the care of the {State Charities Aid Association of the City of New York,) a corporation organized and existing under the laws of the State of ISTew York, and having power to place children for adoption. Adoption. 653 Petition. III. That your petitioners are adults and lawfully married, and reside at (No. 382 West Fourth) street, in the {Borough of Brooklyn, City and State of New Yorh,) and both consented to this adoption. IV. That annexed hereto and made a part hereof, is the con- sents of your petitioners, {George Hengsten) and (Elizabeth Hengsten,) as foster parents, and the (State Charities Aid Asso- ciation of the City of New York.) V. That the said foster parents and said minor are present in court. VI. Annexed hereto and made a part hereof, is also an agree- ment on the part of your petitioners as such foster parents to adopt and treat the said (John Hemp) as their lawful child. WHEREFORE, your petitioners pray for an order of this honorable court, directing that the said (John Hemp) shall hence- forth be regarded and treated in all respects as the child of your petitioners, (George Hengsten) and (Elizabeth Hengsten,) as such foster parents. (GEORGE HENGSTEN.) (ELIZAJETH HENGSTEN.) STATE OF NEW YORK, \ County of (New York,) J*®"' (George Hengsten) and (Elizabeth Hengsten,) his wife, being duly sworn depose and say, that they are the petitioners in the above entitled proceeding; that they have read the foregoing peti- tion and know the contents thereof to be true of their own knowl- edge, except as to the matters therein stated to be aUeged on information and belief, and as to those matters they believe it to be true. (GEORGE HENGSTEN ) (ELIZABETH HENGSTEN.) bworn to before me, this (26th) \ day of (February, 1903.) J (ABNER C. THOMAS,) Surrogate. 654 Adoption. Agreement. FORM No. 339. Adoption of Infant — Agreement and Consent. SUEROGATE'S COUET, {New York) County. In the Matter of the Adoption of JOHN HEMP, a minor, by George Hengsten and Elizabeth Hengsten, foster parents. ' AGEEEMEl^T, made the (21sO day of {February, 1903,) by and between {George Hengsten,) residing at {'Eo. 382 West Fourth street, in the Borough of Brooklyn, City of New York,) and {Elizabeth Hengsten,') residing at {the same place,) parties of the first part, hereinafter called foster parents, and the {State Charities Aid Association of the City of New York,) party of the second part. WHEEEAS, the said foster parents are desirous of adopting, pursuant to the provisions of the Domestic Eelations Law of the State of ISTew York, a male child of the age of {four) (4) years and {seven) (7) months, and to treat such child as their own law- ful child, and to extend to such child all benefits, privileges and rights contemplated by such statute; and WHEEEAS, said party of the second part approves of and consents to said contemplated adoption of said minor; NOW, in consideration of the premises, the said parties hereby mutually covenant, agree and consent aa follows, that is to say: I. That said foster parents hereby consent, covenant and agree, and each of them for himself and herself covenants and agrees, to adopt and treat {John Hemp,) the said minor, as their own lawful child, hereby extending and assuring to such minor all rights, benefits and privileges incident to such relation, and hereby severally assume and engage to fill all responsibilities and duties of parents in respect to such minor. II. And the said party of the second part hereby consents to such adoption and covenants and agrees to acquiesce therein and Adoption. 655 Agreement. to refrain from doing or causing to be done any act or thing what- soever inconsistent or in any way interfering with the rights, privileges or duties of such child -when adopted. {STATE CHARITIES AID ASSQCIATION.) (By G. T. Canfield, (Seal.) President.) (GEORGE HENGSTEN,) {ELIZABETH HENGSTEN.) STATE OF NEW YORK, County of {New York,) On this {26ih) day of {February, 1903,) before me personally appeared {George Hengsten and Elizabeth Hengsien,) proven by the oath of {Lewis J. Smith, an attorney at law,) to be the indi- viduals described in and who executed the foregoing instrument, and they duly severally acknowledged to me that they executed the same. {ABNER C. THOMAS,) Surrogate. STATE OF NEW YORK,' County of {New York,) On the {21st) day of {February, 1903,) before me personally came (George F. Canfield,) to me known, who being duly sworn, did depose and say, that he resided in the City of (New York;) that he is an officer of the corporation described in and which executed the within agreement and consent ; that he knew the seal of said corporation and the seal affixed to said instrument was such corporate seal ; that it was so affixed by order of the said corpora- tion, and that he signed his name thereto by like order. (JOHN BERRY) Notary Public, (New York) County. 656 Adoption. Proof Of Custody. FORM No. 340. Adoption of Infant — Proof of Custody. SUEEOGATE'S COUET, {New York) County. In the Matter of the Adoption of (JOHN HEMP,) a minor, by George Hengsten and Elizabeth Hengsten, foster parents. STATE OF NEW YORK, County of {New York,) (George F. Canfield,) being duly sworn, deposes and says, that he is an officer of the (State Charities Aid Association of the City of New York,) to wit: (president.) That on the (26th) day of (June, 1901, John Hemp,) then about the age of (two) (2) years and (eleven) (11) months, was surrendered to the care and cus- tody of the said (Association,) by (Frank Hemp,) his father, the only living parent of said child. That on the said date the said (Frank Hemp) executed an instrument surrendering said child, in pursuance of section 1, chapter 438, of the laws of 1884, and that a copy of said instrument is hereto annexed. Deponent further says that the (State Charities Aid Associa- tion) is a corporation organized and existing under the laws of the State of New York and is duly authorized by law to place for adoption children left to its care. (GEORGE F. CANFIELD.) Sworn to before me this (21st) 1 day of (February, 1903.) J JOHN BERRY,) Notary Public, (New York) Co. Adoption. 657 Surrender Of Child. FORK No. 341. Surrender of Child. {New Yorh, June 26th, 1901.) I, (Frank Hemp,) do hereby certify that I am the (father) of the child named (John Hemp,) aged (two) (2) years, now stay- ing at (ISTo. 115 Ten Eych street, Brooklyn;) that the mother of said child is (Annie Hemp,) deceased, and that no parent, guard- ian or relative of said child is able to support and properly train said child. For these reasons, I, (Frank Hemp,) do hereby voluntarily and unconditionally surrender the said child (John Hemp,) under the provisions of section 1 of chapter 438 of the laws of 1884, to the care and custody of the (State Charities Aid Association for the Care of Destitute Children,) and I hereby pledge myself not to interfere, directly or indirectly, with the custody or manage- ment of said child in any way. (Signature) (FRANK HEMP.) Witnesses: (HENRY 8CHULZ.) (GERTRUDE CLARK SON.) ''\ss: STATE OF NEW YORK, County of (Kings,) On the (2%th) day of (June, A. D. 1901,) before me person- ally appeared (Frank Hemp,) 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. ' (HENRY SCHULZ,) (Seal.) l^otary Public, (Kings) Co. 42 658 Adoption. Order. FOKM No. 342. Adoption of Infant — Order Allowing and Confirming Adoption. SUEEOGATE'S COUET, {New York) County. In the Matter of the Adoption of {JOHN HEMP,) a minor by George Hengsten and Elizabeth Hengsten, foster p'arents.. The above-named {George Hengsten) and {Elizabeth Heng- sten) having presented their duly verified petition for the adopt- tion by them of the above-named {John Hemp,) a minor under the age of twelve (12) years, and said {George Hengsten) and {Elizabeth Hengsten) having appeared personally before me on the {26th) day of {February, 1903,) and been examined; and WHEEEAS, from said petition and examination it appears to my satisfaction that the said minor had been abandoned by its father, the only living parent of said minor, and that said minor was a ward of the {State Charities Aid Association of the City of New York,) and that said child is now in the custody of the peti- tioners, and that said child is under the age of twelve (12) years ; and WHEEEAS, it further appears to my satisfaction that said {George Hengsten) and {Elizabeth Hengsten,) are husband and wife, and that the moral and temporal interests of said child will be promoted by his adoption by the petitioners, and that they have duly executed the consent and agreement required by the statute to adopt said {John Hemp) and have acknowledged the same be- fore me ; and WHEEEAS, it appears that the {State Charities Aid Associa- tion of the City of New York) has consented to such adoption ; NOW, upon reading and filing said petition and consent and agreement, and upon motion of (Lewis J. Smith,) attorney for petitioner, it is OEDEEED, that the said adoption of the said {John Hemp,) a minor under the age of twelve (12) years, by the petitioners, Adoption. 659 Order. (George Hengsten and Elizabeth Hengsten,) his wife, be, and the same hereby is, allowed and confirmed; and it is further OEDEKED, that the said minor be henceforth regarded and treated in all respects as the child of the petitioners, the said (George Hengsten) and (Elizabeth Hengsten,) his wife. ORDEEED that this order be filed and recorded in the office of the Clerk of the County of (New Yorh.) Dated, (February 26, 1903.) (ABNEB 0. THOMAS,) Surrogate. TRANSFER TAX. FORX No. 343. Petition for Appointment of Appraiser — Resident. SURKOGATE'S COURT, County of (New York.) In the Matter of the Transfer Tax upon the Estate of (JACOB WALSH,) Deceased. To the Surrogate's Court of the County of (New York:) The petition of (John L. Walsh) respectfully shows : Eirst. That your petitioner is (one of the executors of the last will of Jacob Walsh,) deceased, and as such a person interested in the estate of the said deceased. Second. That the said decedent departed this life on the (2ith) day of (March, 1902,) at (211 West 4:8th street. Borough of Man- hattan, City of New York,) that the said deceased was at the time of his death a resident of (the said Borough, City, County) and State of New York. Third. That the said decedent left a last will and testament which was on the (fifteenth) day of (April, 1903,) duly admitted to probate by the above-named court and that letters (testamen- tary) on the estate of said deceased were, on the (fifteenth) day of (April, 1903,) issued to your petitioner by the Surrogate's Court of the County of (New York,) and that petitioner's post-office address is (52 Broadway, New York City.) Eourth. That, as your petitioner is informed and believes, the property of said decedent passing by said will or some portion thereof or some interest therein, is or may be subject to the pay- ment of the tax imposed by the law in relation to taxable transfers of property. Eifth. That all persons who are interested in said estate and who are entitled to notice of all proceedings herein, and their post- office addresses, are as follows: [660] Tbansfee Tax. 661 Petition For Appraiser — Resident. The Comptroller of the State of New York. {Jane Walsh^ Sidney/ Delaware county, iV. Y,) (Charles 8. Walsh, 12 Portland Place, Broohlyn, N. Y.) {Maud Sumner, 41 Amsterdam avenue, New York City.) That all the above named are of full age and sound mind, ex- cept {Maud Sumner,) who is {sixteen years of age.) WHEREFORE your petitioner prays that you will appoint one of the persons designated as appraisers in the County of {New York,) as provided by law, as appraiser. Dated, {New York, August 6th, 1903.) {JOHN L. WALSH,) Petitioner. ( Verification. ) FORM No. 344. Transfer Tax — Order Designating Appraiser — Resident. At a Surrogate's Court, held in and for the County of {New York,) at the {Hall of Records,) in the County of {New York) on the (20tt) day of {September, 1903.) Peesent : Hon. {ABNEB C. THOMAS,) Surrogate. In the Matter of the Transfer Tax upon the Estate of {JACOB WALSH,) Deceased. On reading and filing the petition of {John L. Walsh, one of the executors) of said decedent, I do hereby, pursuant to the re- quirement of chapter 658 of the Laws of 1900, direct {William Hatpin,) Esq., one of the appraisers appointed by the State Comp- troller under said statute, to fix the fair market value of the 662 Teansfee Tax. Affidavit For Appraisal. 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 supple- mental thereto. (ABNEB 0. THOMAS,) Surrogate. FORM No. 345. Transfer Tax — AfSdavit for Appraisal. SUREOGATE'S COURT, (New York) County. In the Matter of the Transfer Tax upon the Estate of (JACOB WALSH,) Deceased. STATE OF NEW YOEK, County of (New York.) (JOHN L. WALSH,) being duly sworn, says that he resides at (200 East 19th street) in the (Borough of Manhattan,' City of New York.) That he is the executor of the last will and testa- ment of the above-named decedent, and letters testamentary were duly issued to him by the Surrogate's Court of the County of (New York) on the (15th) day of (April, 1903.) That said decedent at the time of his death, was a resident of the (Borough of Manhattan, City, County and State of New York,) and de- parted this life on the (24:th) day of (March, 1902,) at the (Bor- ough of Manhattan, City of New York. ) That the following is a statement of all the personal property owned by decedent and located in the State of New Tork at tho time of his death, together with the value thereof. Cash on deposit with (Messrs. Bliss & Bliss $29,944 14) Transfer Tax. 663 Affidavit For Appraisal. Tliat decedent left a last will and testament, a true copy of which is hereto annexed, which will was admitted to probate in the Surrogate's Court in the County of {New York) on the (15i/i) day of {April, 1903,) on which day letters testamentary were isued to deponent, who duly qualified. That decedent did not die possessed of any silverware, jewelry, household furniture, personal effects, statuary, works of art, paintings, pictures, books, bric-a-brac, horses, carriages, except as set forth in the inventory and appraisement herein and -which was set aside by the appraiser for his widow under § 2713 of the Code of Civil Procedure; nor was he possessed of any mort- gages, promissory notes or deposits in trust companies or savings banks other than as herein specified. That deponent knows of no life insurance or interest in any estate in the State of New York. That deponent knows of no reversion that fell in by reason of decedent's death. That the following is a statement of all the real property within the State of New York owned by decedent at the time of his death : {Four (4) lots in Mapleton, Borough of BrooMyn, New York, That said lots are worth $125.00 each as appears by the appraisal of William P. Rae, hereto annexed.) That deponent knows of no transfer or conveyance of real or personal property made by decedent prior to his death, in the con- templation of death or to take effect at or after his death. That deponent knows of no power of disposition given to dece- dent of property by the will of another. That deponent has made diligent search for property of every kind, nature and description left by the decedent, and he has been unable to discover any except that mentioned in this affidavit, and deponent verily believes that the property above set forth is all the property, real and personal, possessed by the decedent within the State of New York at the time of his death. That the liabilities of the decedent's estate, funeral expenses, legal expenses, administration expenses, commission of executors and necessary disbursements as far as they can be ascertained are as follows: {Amount of note owing to First National Bank) . . ($10,000 00) {Amount paid to Long Island City Hospital for expenses incurred while decedent was an irwnate of said hospital) (30 51) 664 Tbansfee Tax. Affidavit For Appraisal. (Amount paid for funeral expenses and monu- ment) . .- ($1,330 00) (Amount paid to Dr. Harry S. Norton for profes- sional services) ; (50 00) (Administration expenses) (estimated) (500 00) (Legal expenses) (estimated) (1,000 00) (Commissions of executors) (844 44) Total ($13,754 95) That the above debts were due at the time of decedent's death and said debts and expenses above set forth except those estimated have been paid. That the names of the beneficiaries, their relation to the de- cedent and the amount of each legacy or distributive share, are as follows : (JANE WALSH, widow) $8,284 59 (CHARLES 8. WALSH, son) 4,142 29 (MAUD SUMNER, grand-daughter) 4,142 30 That all of said beneficiaries are of full age and sound mind. (JOHN L. WALSH.) Sworn to before me, this "1 (28th) day of (September, 1903.) J (WILLIAM SHIRDEN,) Notary Public (Kings) County. Cert, filed in (New York) County. Teansfek Tax. 665 Order Fixing Tax. FORM No. 346. Transfer Tax — Order Fixing Amount of Tax (on Report of Ap- praiser) . At a Surrogate's Court, held in and for the County of {New York,) at (the Hall of Records,) in the County of (New York,) on the (16th) day of (De- cember, 1906.) Present : Hon. (ABNER C. THOMAS,) Surrogate. In the Matter of the Transfer Tax upon the Estate of (MARCUS DALRYMPLE,) Deceased. On reading the report of (John Doe,) Esq., the appraiser, filed herein on the (14:th) day of (December, 1906,) and on motion of (James J. Maxwell,) attorney for the (State Comp- troller) herein, it is OEDEEED AND ADJUDGED, that tie cash value of the property referred 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 : Benepiciakt. (Margaret P. Dalrymple) (widow) (Margaret D. Brown) (daughter) . (Marcus Dalrymple, Jr.) (son) . . Cash Value OP Intuest. Per Cent. Tax As- sessed Thereon $500,000 200,000 1 1 $5,000 2,000 100,000 1 1,000 (ABNER C. THOMAS,) Surrogate. 666 Transfer Tax. Petition For Appraiser — Non-resident. FORM No. 347. Transfer Tax — Petition for Appointment of Appraiser — Non- resident. SUEKOGATE'S OOUKT, County of (New York.) In the Matter of the Appraisal, under the Act in relation to Taxable Trans- fers of property, of the Property of (DAVID WOLF,) Deceased. To the Surrogate's Court of the County of (New YorJc:) The petition of (Florence Wolf) and (David Wolf) respect- fully shows: First: (David Wolf), the above-named decedent, died on the (first) day of (May, 1900). At the time of his death he was a resident of (Boston, Mass.). He left a will which on the (twelfth) day of (June, 1905,) was admitted to probate by this court as the will of a resident of the State of (Massachusetts,) and on the same day letters testamentary thereon were duly issued by this court to your petitioners as executors thereof. Your petitioners are also trustees and beneficiaries under the said will. Second: As your petitioners are informed and believe, some portion of the property belonging to the said decedent at the time of his death is claimed to be, or may be, subject to the tax im- posed by the laws of the State of New York, in certain cases upon gifts, legacies, inheritances and transfers. Third: That as your petitioners are informed and believe, all the persons who are interested in the estate of the said decedent and who are entitled to notice of proceedings herein are, together with their respective places of residence and post-office addresses, as follows, to-wit: Your petitioner (Florence Wolf), who is the widow of the said decedent, and who resides at, and whose postoffice address is (Boston, Mass.). Your petitioner, (David Wolf), who is a son of the said decedent, and who resides at, and whose postoffice address is, (Bos- ton, Mass.). Tbansfer Tax. 667 Petition For Appraiser — Non-resident. {Martin Glynn), as Comptroller of the State of New York, whose office for the transaction of business as such Comptroller is at, and whose postoffice address is, Albany, New York.* (Thomas Biley,) who is a beneficiary under the said will, and who resides at, and whose postoffice address is, ISTo. (9 East Twenty- fourth street. Borough of Manhattan, New York City, New YorJc.) {Delia Biley,) who is {the wife of said Thomas Biley) and a beneficiary under the said will, and who resides at, and whose postoffice address is, {No. 9 East Twenty-fourth street. Borough of Manhattan, New York City, New York.) In addition to the foregoing are the issue of the said {Thomas Biley,) who are referred to in the said will. Their names are un- known to your petitioners, and they, or some of them, are infants. In addition to. the foreging are the following, who are named in said will as beneficiaries upon certain contingencies therein referred to, viz. ; {Saint Luke's Hospital, which is situxited at, and the postoffice address of which is. Cathedral Heights, llMh street and Amster- dam avenue. Borough of Manhattan, New York City, New York. The Catherine Mission, which is situated at, and the postoffice address of which is. No. 201 South street. Borough of Manhattan, New York City, New York.) All of the persons above enumerated are of sound mind and all of full age except as above stated. WHEREFORE, your petitioners pray for an order appointing some competent person as appraiser of such portion, if any, of the property of the said decedent which belonged to him at the time of his death as is subject to the tax above referred to, and of the several estates and interests, if any, in the said property which are subject to the said tax; and directing such appraiser to give such notice of such appraisement to those entitled thereto as to this court may seem proper, and for such other further relief as may be just. {SHEPABD & SHEPABD,) Attorneys for Petitioners, (ISTo. 271 Broadway, New York City.) Dated, (New York, January 23, 1907.) * Service upon the State Comptroller in proceedings in New York, Kings and Queens counties may be made upon his attorneys in fact in these counties. The name and address of the attorney in fact may be obtained from the clerk of the Surrogate's Court. 668 Transfer Tax. Order Designating Appraiser. STATE OF NEW YORK, T ?-SS * County of {New York.) J {DAY ID WOLF,) being duly sworn, says: That I am one of the petitioners herein. I have read the foregoing petition and know its contents. It is true of my own knowledge, except as to the matters therein stated to be alleged upon information and be- lief, and as to those matters I believe it to be true. {DAYID WOLF.) Sworn to before me this {2Zd) day of {January, 1907.)^ {WILLIAM E. CABMIGHAEL,) Notary Public, (22) {N. Y.) Co. FORM No. 348. Transfer Tax — Order Designating Appraiser — Nonresident. At a Surrogate's Court, held in and for the County of {New York,) at the {Hall of Records,) in the Borough of Mankattam, i:i the City of New York, on the (6^^) day of {February, 1907.) Pkesent : Hon. {ABNEB C. THOMAS,) Surrogate. In the Matter of the Appraisal, under the Act in relation to Taxable Trans- fers of property of the property of {DAVID WOLF,) Deceased. Upon reading and filing the petition of {Florence Wolf and David Wolf,) sworn to the (23rd) day of {January, 1907,) I do hereby, pursuant to the requirement of chapter 658 of the Laws of 1900, direct {John Doe,) Esq., one of the appraisers ap- pointed by the State Comptroller under the said statute, to fix the Transfer Tax. 669 Notice Of Appeal To Surrogate. fair market value at the time of the transfer of the property which was of the above-named decedent, and which is subject to the payment of any tax imposed by article 10, chapter 908 of the Laws of 1896, and the acts amendatory thereof and supple- mental thereto. (ABNEB 0. THOMAS,) Surrogate. FORM No. 349. Notice of Appeal to Surrogate from Report of Appraiser. SUEEOGATE'S COUET, (New York) County. In the Matter of the Appraisal under the Act in Eelation to Taxable Trans- fers of Property, of the Property of {J 081 AH QVINCY,) Deceased. Sirs: _ PLEASE TAKE IsTOTICE, that {Margaret P. Quincy,) indi- vidually and as executrix of the last will and testament of (Josiah Quincy,) deceased, (Josiah Quincy, Jr.) and (Mary Quincy Gerard) are dissatisfied with the appraisal herein of the prop- erty of the said (Josiah Quincy,) deceased, and hereby object to the report of the appraiser filed herein on the (4th) day of (De- cember, 1904,) and to the order or decree made thereon assessing and determining the transfer tax in respect to the property of the said decedent entered herein on the (7th) day of (December, 1904,) and hereby appeal to the Surrogate from the said ap- praisal and said assessment and determination of said taxation and from the said order or decree. The appellants appeal from such parts of the aforesaid report and of the order entered thereon on the (7th) day of (December, 1904,) as adjudged that (three hundred thousand dollars in said report stated to be " cash on deposit in the National Commercial Bank of New York,. special account") is subject to taxation under 670 Transfer Tax. Notice Of Appeal To Surrogate. article 10^ chapter 908, of the laws of 1896, and assessed tax on the transfer of same. The grounds upon which said appeal are taken are: First: That (the decedent was not at the time of his death a resident of the State of New York, hut was at that tvme a resident of the State of Connecticut, and that such residence fixes the legal situs of said asset.) Second: That (the said asset j from the taxation of which these appellants appeal, did not, at the date of decedent's death, have a legal situs within the State of New York.) Third : That (if such asset may for any purpose he deemed to have heen at the date of decedent's death property within, the State of New York, ih^ same was only casually, transitorily, arid tem- porarily within the State of New York, the same heing withvti this State 'Only hecause it was delivered to one Ernest Tompson while decedent was traveling through the State of New York on his way from the State of Connecticut to the State of California, and was stricken ill and departed this life before he was ahle to leave the State of New York; and hecause hetween the time the said asset was delivered to the sadd Ernest Tompson and the time of the decedent's death, decedent was physically unahle to trcmsckct amy business in respect of said asset or in respect of any other matters whatsoever. That the said asset was so delivered in paryment of an indebtedness due to decedent from one William^ Strong and that decedent never authorized, had knowledge of, or consented to the receipt of such payment, and that the said " special account " was opened and said alleged moneys were deposited therein without the authority, knowledge or consent of the decedent.) (FLOWER & SANDERS,) Attorneys for Appellants, (31 Nassau Street, New York City.) To (JAMES J. MAXWELL,) Esq., Attorney for State Comptroller, (32 Liberty Street, New York.) (THOMAS F. DONNELLY,) Esq., Clerk of the Surrogate's Court of the County of (New York.) Tbansfee Tax. 671 Order Remitting To Appraiser. FORM No. 350. Order Eemitting to Appraiser After Reversal. At a Surrogate's Court, held in and for the County of {New York,) at the Hall of Kecords'in {the Bor- ough of Manhattan, City of New York,) on the {20th) day of {February, 1905.) Pbesewt : Honorable {ABNEB C. THOMAS,) Surrogate. In the Matter of the Appraisal under the Act in Relation to Taxable Transfer of Property, of the Prop- erty of {J08IAH QUINCY,) Deceased. An appeal to the {Appellate Division of the Supreme Court, in the First Judicial Department) having been taken by {the Comp- troller of the State of New York,) from an order heretofore made herein and entered in the office of {the Surrogate of the County of New York) on the {7th) day of {January, 1904,) in so far as said order adjudged that an appeal by {Margaret P. Quincy, Josiah Quincy, Jr., and Mary Quincy Gerard from the order fixing the tax herein, entered in the Surrogate's Court on the &th day of December, 1903, was sustained,) and in so far as said order of {February 7, 1904,) adjudged that said order {fixing the tax) be vacated and set aside and the report of the appraiser herein be remitted to him for further consideration and report and an order upon the said appeal having been thereafter duly made by the said ( Appellate Division of the Supreme Court) and duly entered in the office of the clerk of said court on the {8th) day of {February, 1905,) whereby the order so appealed from was, so far as^ appealed from, {reversed) with {ten dollars) ($10) costs to the said {Comptroller of the State of New York) and disbursements to be taxed, and a certified copy of the said order, together with the original case or papers upon which said appeal was heard, hereto annexed, having been filed in the office of the Surrogate of the County of {New York) on the {9th) day of {February, 1905 ) 672 Teansfbr Tax. Kemission Of Penalty — Notice Of Motion. and the said costs and disbursements having been duly taxed at the sum of (two hundred and forty-two and 62/100) ($242.62) dollars : itrOW, on motion of (James J. Maxwell ,) attorney for {the State Comptroller,) it is ordered and decreed that the said order of the said (Appellate Division of the Supreme' Court) he, and it hereby is, made the order and decree of this court, and that the said (Comptroller of the State of New Yorh) recover of (Mar- garet P. Quincy, Jodah Quincy, Jr., and Mary Quincy Gerard,) the sum of (two hundred and forty-two and 62/100 ($242.62) dollars, and that he have execution therefor. (ABNEB C. THOMAS,) Surrogate. Proceedings to Have Penalty for Nonpayment of Transfer Tax Remitted. FORM No. 351. Notice of Motion. SUEEOGATE'S COUET, (New Yorh) County. In the Matter of the Transfer Tax Upon the Estate of (WALTEB CABTEB,) Deceased. Sirs: PLEASE TAKE NOTICE that on all the papers and pro- ceedings herein and on the affidavit of (George Turk,) verified the (lUh) day of (February, 190Y,) we will move this court at Chambers thereof to bo held at (the Hall of Becords,) in the County of (New York,) on the (19th) day of (February, 1907), at (10:30) o'clock in the forenoon of that day or as soon there- after as counsel can be heard, for an order remitting the penalty of ten per cent, upon the tax heretofore fixed upon the estate of the above-named decedent by order of the Surrogate of said County Tbansfee Tax. 673 Eemission Of Penalty — Affidavit. of (New YorJc,) made and entered on the (1st) day of (Feb- ruary, 1907,) to interest at the rate of six per cent, per annum from the date of the accrual of the said tax, to wit: the date of the death of the decedent, which occurred on the (ISth) day of (July, 1901,) to the date of payment of said tax, provided said payment he made within twenty days after the entry of the order ■of said surrogate to be made upon this application. Dated (New York, February lUh, 1907.) (COLE & ADAM8,) Attorneys for (Caroline Carter, Executrix,) (32 Liberty Street,) (Borough of Manhattan,) (New York City.) To Hon. (MARTIN H. GLYNN.) State Comptroller, "New York. (JOHN SEELEY,) Esq., Attorney for State Comptroller, (56 Broadway, New York City.) FORM No. 352. Affidavit in Support of Motion to Have Penalty Eemitted. SURROGATE'S COURT, (New York) County. In the Matter of the Transfer Tax Upon the Estate of (WALTEB CARTER,) Deceased. STATE OF NEW YORK, 1 County of (New York,) J**'" (GEORGE TURK,) being duly sworn, deposes and says, that he IS an attorney-at-law and a member of the firm of (Cole & Adams,) attorneys for (Caroline Carter,) as executrix of the last 43 674 Transfer Tax. Remission Of Penalty — Affidavit. will and testament of (Walter Carter,) deceased, in the above- entitled proceeding. That the said decedent died on the (13^^) day of (July, 1901 ;) that proceedings have been had herein for a determination of the transfer tax upon the estate of the said decedent as follows : On the (20th) day of (November, 1903,) on the petition of (John Frame) and (Caroline Carter,) executor and executrix of the last will and testament of the decedent, an order was made and filed herein, designating (William Halpin,) Esq., appraiser to fix the market value of decedent's estate subject to the payment of a transfer tax. That, at the time of the issuance of the letters testamentary herein, (John Frame,) the executor of the will of said decedent, (took unto himself the actual control of the estate of the testator and the possession of all of the assets of the said estate and con- tinued in such sole control and possession until about February 1, 1906 ; that the said Frame mismanaged the said estate, and in October, 1904, proceedings were begun to revoke the letters testamentary issued to him as such executor,- said proceedings were contested and did not conclude until January 19, 1906, on which date an order was made and filed, revoking said letters tes- tamentary ; deponent asks leave to refer to the petition, answer, amended petition and answer thereto and the said order, and the proceedings upon which same is based, as part of this affidavit with the same effect as if they were a part hereof. During the pendency of such litigations, said (Frame) failed to take any steps to conclude these proceedings and the executrix, not having the books and papers and assets of said estate in her possession, could take no steps towards that end. Shortly after said order was made (Caroline Carter,) the executrix of the said will, obtained from the said (Frame) the papers pertaining to and the assets of the said estate ; shortly after she obtained the posses- sion of said papers and assets she took immediate steps to conclude the proceedings to fix the transfer tax and has since prosecuted the same expeditiously, (because of her unfamiliarity with the affairs of said estate as well as that of her counsel, considerable difficulty was experienced in preparing the papers required by the appraiser herein. An affidavit of considerable length was prepared and filed, but a further affidavit was required and, in August, 1906, same vms filed; that thereafter numerous conferences be- tween said appraiser and the counsel to the State Comptroller and Tkansfeb Tax. 675 Bemission Of Penalty — Affidavit. this deponent, respecting these proceedings, were had, and on the 12th day of January, 1907, the report of the appraiser herein was filed and the tax fixed by order of this court made and filed on the 1st day of February, 1907. That more than eighteen months have elapsed since the date of the death of the said decedent and a penalty of ten per centum per annum from the date of the death of decedent to the date of pay- ment as provided by the statute is due because of the non-payment of this tax. That by reason of (the mismanagement of the affairs of the estate aforesaid and the litigations between the beneficiaries under the said will and the said executor,) there has been unavoidable delay on the part of the executrix herein ; that the delay has been because of no act of hers nor of the beneficial ovmers of the said estate ; deponent is informed and believes that because of the acts of the said (Frame, the estate has been largely wasted and de- pleted so that there is now but a small part of the original estate left for distribution among the beneficiaries; practically all the cash and other assets of said estate, with the exception of 2,000 shares of the capital stock of the American Can Company, a manufacturing corporation which has no marleet value left after the payment of debts were used by said Frame and lost in specu- lation,) and the beneficiaries have suffered great hardship because of the acts of said (Frame;) and it is submitted on their behalf, the penalty necessarily coming out of the residue, that the pay- ment of the said penalty will be an unnecessary hardship. That the executrix is desirous that this tax be paid and, in order to obtain a proper final receipt therefor from the State Comptroller, makes this application pursuant to the provisions of the said act for the remission of the penalty incurred by rea- son of the non-payment of such tax vrithin eighteen months after the date of the death of the said decedent from 10 per cent, to interest at 6 per cent. That no previous application for this order has been made. WHEREEORE, deponent prays that an order be made, re- mitting the penalty upon the tax heretofore fixed herein from 10 per centum to 6 per centum, to be charged upon said tax upon the accrual thereof, to-wit: From the date of the death of the said decedent, (July 13, 1901,) to the date of payment, pro- vided such payment be made within twenty days after the date of 676 Transfer Tax. Notice Of Settlement. the entry of the order of the Surrogate upon this application ; and for such other and further relief as to the court may seem just and proper. {QEOBGE TUBE.) Sworn to before me this (14<^) day of {Febraury, 1907.) {EDWARD WOOD,) Commissioner of Deeds, / {New York City.) FORM No. 353. Notice of Settlement of Proposed Order. SURROGATE'S COURT, (New York) County. In the Matter of the Transfer Tax upon the Estate of (WALTER CARTER,) Deceased. Sir: TAKE NOTICE that the within is a copy of an order in the -within entitled proceeding, which we shall present to Hon. {Ahner C. Thomas,) at the Surrogate's Office in the '(Hall of Records,) in the County of (New York,) on the (28th) ■day of (February, 1907,) at 10:30 o'clock in the forenoon of that day for settlement and signature. Dated, (New York, February 26, 1907.) Yours, etc., (COLE & ADAMS,) Attorneys for (Executrix,) (32 Liberty Street,) (New York City.) To Hon. (MARTIN H. GLYNN,) State Comptroller, (Albany, N. Y.) Tbansfee Tax. 677 Order Eemitting Penalty. FOBH No. 354. Order Bemitting Penalty. At a Surrogate's Court held in and for the County of (New York,) at the (Hall of Records, New York) County, on the (1st) day of (March, 1907.) Peesent : Hon. (ABNER 0. THOMAS,) Surrogate, In the Matter of the Transfer Tax upon the Estate of (WALTER CARTER,) Deceased. Upon reading and filing the affidavit of (George Turk,) duly verified the (14^) day of (February, 1907,) whereby it appears that the payment of the transfer tax as heretofore fixed has be- come unavoidably delayed, and good cause having been shown for such nonpayment, and due notice of motion having been given to Hon. (Martin H. Glynn,) State Comptroller, NOW, on motion of (Cole & Adams,) attorneys for (Caroline Carter,) executrix of the last will and testament of the above named deceased herein, it is OEBERED, AISTD ADJUDGED, that the penalty of 10 per centum upon said tax be remitted, and that the interest be charged thereupon at the rate of 6 per centum from the date of accrual of said tax, to wit, the (13th) day of (July, 1901,) the date of dedth of said decedent, to the date of payment thereof, provided that payment be made within twenty days after the entry of this order. (ABNER C. THOMAS,) Surrogate. PROOF OF DEBT — BANKRUPTCY. FORM No. 355. Bankruptcy — Proof of Secured Debt by Corporation. IN THE DISTRICT COURT OF THE UNITED STATES, EOR THE (Southern) DISTRICT OF (New York.) In the Matter of (CHARLES P. LAW SON,) Bankrupt. UNITED STATES OF AMERICA, 1 ^ . (Eastern) District of (Pennsylvania,) J At (Philadelphia, in the County of Philadelphia,) in said (Eastern) District of (Pennsylvania,) on the (eighth) day of (May, 1905,) came (Charles P. Hughes) of said (City of Phila- delphia,) in said (Eastern) District of (Pennsylvania,) and made oath and says that he is (treasurer) of the (Western Manufactur- ing Company,) a corporation incorporated by and under the laws of the State of (New Jersey,) and carrying on business at ZSTo. (176 Bank) street, in the (City of Philadelphia,) in the County of (Philadelphia) and State of (Pennsylvania,) and that he is duly authorized to make this proof, and says further that the said (Charles P. Lawson,) the person against whom a petition for ad- judication of bankruptcy has been filed was, at and before the fil- ing of said petition and still is justly and truly indebted to said corporation in the sum of (fifteen hundred) ($1,500) dollars; that the said debt exists upon (an account for $600 for goods sold and delivered, and upon a promissory note for $900 made by said bankrupt, hearing date January 2, 1905, and payable ninety days after date to the order of the Western Manufacturing Company,) of which copies are hereto annexed ; that the consideration of said debt is ' as follows: (For the said account, goods sold and delivered by the Western Ma/nufactunng Compamy between January 1, 1905, and March 11, 1905, as shown by the annexed account) marked Exhibit A, and made a part hereof (for the said note a balance due on account for goods sold and delivered to said bankrupt prior to January 1, 1905 ;) that the said debt is now due and owing; that no note has been received for the said debt, nor any judgment rendered thereon except as aforesaid ; that no part [678] Bankruptcy. 679 Proof Of Debt — On Judgment. o£ the said debt has been paid (except fifty dollars on account of said merchandise account j) that there are no set-offs or counter- claims to the same, and that said corporation has not nor has finy Ijerson by its order, or to the knowledge or belief of deponent for its use had or received any manner of security for said debt what- ever, except the following, which is the only security held for the said debt. A chattel mortgage on the stock of the said bankrupt contained in the store lately occupied by him at (No. 11 Bridge street. Borough of Broohlyn, City of New Yorh.) Dated, (January 2, 1905.) (CHARLES P. HUGHES,) (Treasurer of Western Manufacturing Co.) Subscribed and sworn to before me, this (8th) .day of (May, 1905.) (RICHARD FIELD,) Notary Public, (Philadelphia) Co. FORM No. 356. Bankruptcy — Proof of Debt on a Judgment by Agent or Attorney in Fact. m THE DISTRICT COURT OF THE UNTED STATES EOR THE (Southern) DISTRICT OF (New Yorh.) ' In Bankruptcy.; In the Matter of (THE FRANKLIN PUBLISHING COMPANY,) a corporation. Bankrupt. UNITED STATES OF AMERICA, \ (Eastern) District of (New York,) P^- ' At (the Borough of Brooklyn, City of New York. County of Kings,) in said (Eastern) District of (New York,) on the (fifth) day of (January, 1905,) came (Perry Nichols of 680 Bankbuptcy. Proof Of Debt — On Judgment. the Borough of Brooklyn,) m the County of (Kings,) and State of (New York,) agent (or attorney in fact) of (King, Richards & Company,) of the (City of New York,) in the County of (New York) and State of (New York) and made oath, and says that (The Franklin Publishing Company,) the corporation by which a petition for adjudication of bankruptcy has been filed, was, at and before the filing of said petition and still is, justly and truly indebted to the said (King, Richards & Company) in the sum of (three hundred and twenty-seven and 50/100) ($327.50) dollars; that the consideration of said debt is as follows: (work done and material furnished in printing and binding 20,000 cata- logues for the said bankrupt of the reasonable value and agreed price of $300.00,) for which sum, together with ($27.50) costs,, a judgment was recovered by (King, Richards & Company) against the said bankrupt in the (Circuit) Court of (Cook county, Illinois,) and docketed in the office of the clerk of said county on (Decem- ber 10, 1904;) a transcript of which is hereto annexed, that said debt is now due, and that no part thereof has been paid ; that no note has been received for, nor any judgment rendered upon the said debt, except as aforesaid, and that this deponent has not, nor has any person by his order, or to this deponent's knowl- edge or belief, for his use or for the use of said (King, Richards & Company) had or received any manner of security for said debt whatever. And this deponent further says that the reason why this de- position is made by deponent and not by a member of said firm is because all of the members of said firm are at present sojourn- ing without the United States,* and that he is duly authorized by said firm to make this affidavit, and that it is within hia knowledge that the aforesaid debt was incurred and for the con- sideration above stated, and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied. (PERRY NICHOLS.) Subscribed and sworn to Ijefore me, this (5th) day of (January, 1905.) } (RICHARD FIELD,) Notary Public, (New York) County. *It has been held that being absent from the country is not alone a suf- ficient reason. Bankruptcy. 681 Proof Of Debt — Individual. FORM No. 357. Bankruptcy — Proof of Debt (TTnsecured) by Individual. IN THE DISTRICT COURT OF THE UNITED STATES, FOR THE (Southern) DISTRICT OF (New York.) In the Matter of (CHARLES P. LAW 8 ON,) Bankrupt. In Bankruptcy. ss. UNITED STATES OF AMERICA, (Southern) District of (New Yorh,) At (the Borough of Manhattan, City and County of New Yorh,) in said (Southern) District of (New Yorh,) on the (20tth) day of (Decemher, A. D. 19t)4,) came (Freder- ick Lawson,) of No. (76 Broadway, Borough of Manhattan, City of New Yorh) and State of (New Yorh,) in said (Southern) District of (New Yorh,) and made oath, and says that the said (Charles P. Lawson,) the person against whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said deponent in the sum of (one hundred) ($100) dol- lars ; that the consideration of said debt is as follows : (professional services rendered the said hanhrupt as his physician during the month of August, 1904, of the reasonable value and agreed price of $100;) that the said debt became due on (September 1, 1904,)* and that no note has been received for the said debt nor any judgment rendered thereon; that no part of said debt has been paid except (twenty-five dollars paid on account thereof on October 1, 1904;) that there are no set-offs or counter- claims to the same ; that deponent has not, nor has any person by his order or to his knowledge or belief, for his use, had or received any manner of security for said debt whatever. (FREDERICK LAWSON,) Subscribed and sworn to before me, this 1 (20th) day of (December, 1904.) J (RICHARD FIELD,) Notary Public, (New Yorh) Co. 682 BANKBtrPTCY. Proof Of Debt — General Form. 'FOmiL No. 358. Another Form of Proof of Debt in Bankruptcy and Power of Attorney. In the Disteict Court oif the- United States. Foe the. Disteict op In the Matter of Bankrupt. In Bankruptcy No. STATE OF County of , At in the District of on the day of , 190 . . , came . . . ., of in the county of , in said district of and made oath : (1) That he is the authorized agent of . ., of , in the county of and state of (2) That he is one of the partnership firm of consisting of himself and of (3) That he is the treasurer of the . . . ., a corporation incorporated by and under the laws of the state of and carrying on business at in the county of and state of and that he is duly authorized to make this proof. (4) That the said the person ......... whom a petition for adjudication of bankruptcy has been filed, was, at or before the filing of said petition and still is, justly and duly indebted to said (Name of Creditor.) in the sum of dollars ($ ) (5) That the consideration of said debt is as follows : Bakkruptcy. 683 Letter Of Attorney. (5a) That tlie date of maturity of said debt is (5b) That no note has been received nor judgment recovered therefor \_except (6) That no part of said debt has been paid \_except (7) That there are no set-offs or counter claims to the same [except (8) That said creditor has not, nor has any person by order of said creditor, or to the knowledge or belief of said deponent for the use of said creditor, received any manner of security for said debt whatever, [^except the following which are the only securi- ties held hy said creditor for said debt (9) That this deposition is not made by the claimant [nor if it has been hereinbefore stated to be a corporation by its treasurer] in person because - • ' i and that deponent is duly authorized by his principal to make this deposition and that it is within his knowledge that the debt hereinbefore mentioned was incurred as and for the considera- tion, and said creditor is constituted as, hereinabove stated. (10) LETTER OF ATTORNEY to Attomey-at-Law. You are hereby authorized by said creditor by the person making the foregoing deposition who is duly au- thorized thereto, to appear for and represent said creditor and vote for said creditor in any proceedings, or meetings, which may be had or called in the above entitled proceeding, in court, before the referee in bankruptcy or elsewhere and particularly to vote for said creditor in the choice of a trustee of said bankrupt whenever such election is held, to accept, or in your discretion oppose confirmation of, any composition offered by or in behalf of said bankrupt, and to receive and receipt for any and all moneys which may be or may become payable to said creditor therein or for or on account of said debt. 684 Bankruptcy. Proof Of Debt — Instructions. In witness whereof said creditor has hereunto signed name and affixed seal, when signing the deposition pre- ceding, the ........ day of 190. . [L.S.] Creditor, CL.S.] Creditor, By Subscribed, sworn to and acknowledged before me this day of 190 . . Notary Public. INSTRUCTIONS. This form combines with some slight* verbal changes the Official Forms Nos. 31, 32, 33, 34, 35, 36, besides a general letter of attorney, abbreviated and modified from official form No. 20', and has been approved by prominent referees in bankruptcy, as suit- able for all ordinary proofs of debt under the Bankruptcy Act of 1898. Claims arising after the filing of the petition, or un- liquidated damages or for contingent liability only are not prov- able in bankruptcy. The clauses are numbered for convenience of reference only. It will be noticed that the introductory clause and those numbered 4, 5, 6, 7, 8, must be used in every proof, while circumstances determine when to use the others. As to clauses 1, 2, 3, 9, see instructions B, C, D, E'. (The Orders and Official Forms do not expressly authorize proof by agent in case of debt to partnership or corporation nor when required to be made by assignor but it is thought that the act itself does so by fair construction.) F, G, H, refer to certain uses of clause 5, F to clauses 5a and 5b, I to clause 10', and A, J, K, L, to every proof. Extra space in any clause may be secured by attaching paper. (A) In every proof, those who may make proofs are the own- ers of the debts respectively at the time of the proof (except in the case of claims assigned after the filing of the petition and then the owners at that time,) and their agents or officers who can make the statements required according to the circumstances as pointed out in the Instructions where sufficient reason why it should not be made by the owner (or the designated officer, if a Bankruptcy. 685 Proof Of Debt — Instructions. corporation,) is made to appear. Being out of the country i-^ not alone a sufficient reason. The name of the court and bankrupt should be filled in at the top. The number may be supplied later. Also fill in the blank spaces shown by the dotted lines, according to the facts in the introductory clause, and in the clause marked i. In proof made by the assignor, strike out clause 10, and " and still is" in clause 4, and the fact of the as- signment and the name of the assignee may be given in any space not otherwise used. In filling in clause 5 observe F, Gt, or H, if the claim be of the kind there italicized. In clauses 6, 7, 8, if the printed part be true without exception strike out the word " except " and what follows. Strike out all the clauses, parts and words inapplicable or not intended to be used, and observe instructions J, K, L, as to execution, etc. Immaterial errors will be disregarded or corrected. (B) For proof of debt to individual by himself strike out clauses 1, 2, 3, 9. (C) For proof of debt by agent all of clauses 1 and 9 are nec- essary. Fill them in and strike out clauses 2, 3. In clause 1 it is better to add a statement showing, if the creditor be a firm, that fact and the names of its members, and if a corporation that fact and the state in which incorporated. (D) For proof of debt to partnership by a member fill in clause 2 and strike out clauses 1, 3, 9. (E) For proof of debt to corporation by its treasurer fill in clause 3 and strike out clauses 1, 2, 9. No other officer is author- ized to make proof of claim of a corporation, unless there be no treasurer. In that case it may be made by the officer whose duties most nearly correspond to those of a treasurer, and he should use clause 9, stating those facts there on the dotted lines, also properly change the word " treasurer " in clause 3, and strike out clauses 1, 2 and all of clause 9 below the dotted lines. (.F) Clauses 5a and 5b are not required to be used except for debts founded on open account, when they are required and the date required to be inserted in clause 5 a in case of an account of several items is the " average due date." There is no general rule requiring a statement of account to be furnished but it is generally advisable to attach an itemized statement to proof of debt if practicable, referring to it in clause 5 as, for instance " goods sold per statement attached." (G) In proving on note or other instrument in writing, the original note or other instrument must be attached, or if lost or 686 Bankruptcy. Proof Of Debt — Instructions. destroyed that fact and the circumstances must be stated in clause 5. Originals will be returned after allowance or disallowance of claim, if copies be supplied. Hence, attach copies also. (H) In proving debt founded on judgment, clause 5 should in- clude a full description of the judgment, with the date and place of entry, or a transcript may be attached and there referred to, as for instance, " judgment of which transcript is attached." If the judgment was recovered after the filing of the petition in bankruptcy, the transcript of proof should show the damages and costs separately, and the proof the amount of costs " incurred in good faith " before such filing. (I) To use clause 10, letter of attorney, insert name of attor- ney or firm of attorneys if not already done, also date, and strike out any provision not desired, to suit circumstances. A letter of attorney is not essential to the proof of the debt. One is printed on this blank for use before those courts and referees which require attorneys to show written authority, but it would seem that an attorney of the United States District Courts under a general retainer which may be unwritten, needs no letter of attorney to act for a creditor in a bankruptcy proceeding. See 1 Am. B. K 205, and Re Grasser, 5 Am. B. Rep. 32. (J) In Signing, the person executing should sign his individual name on the first signature line in every case. If he be the in- dividual creditor and clause 10 is used write " L. S." or attach seal after his name. In case of a firm or corporation the firm or corporate name should be written on second signature line, and if clause 10 is used add " L. S." or attach a seal for the firm or imprint the corporate seal for the corporation and let the person signing again write his own name on the last line adding in case of a corporation " its treasurer " if he be such. (K) After signing, the proof may be sworn to and letter of at- torney acknowledged before a referee in bankruptcy, any officer authorized to administer oaths in United States Courts, any United States diplomatic or consular officer in a foreign country, or any officer authorized to administer oaths under the law of the state where made, and the latter need not use seal except in the states whose laws require it on other affidavits generally for use there. " County clerk's certificates " are not necessary. If clause 10 be omitted strike out " and acknowledged." (L) On the outside make suitable changes when debt is secured, or general letter of attorney is not used. The addrest of the creditor should be given to insure the proper direction of notices of proceedings. MECHANIC'S LIEN NOTICES. NOTE. In complying with subdivision 4 of section 9, which requires a statement of " the labor performed and to be performed, or thn materials furnished or to be furnished and the agreed price or value thereof," a close adherence to the language of the statute is dangerous. Statements in the alternative form such as: " The labor performed or to be performed ; " " The materials furnished or to be furnished ; " " The agreed price or value ; " or " The amount unpaid for such labor and materials furnished : " or " The time when such labor and materials were furnished ; " " The materials furnished and to he furnished," should be carefully avoided, as there is grave danger that the notice may leave uncertain and equivocal the information which the statute requires shall be stated specifically. It is safer to state separately where necessary the amount of labor performed and the amount to be performed; the material furnished and the material to be furnished ; the agreed price of each or the value of each. See Bradley v. Patchetan, 71 App. Div. 148; New Jersey Steel Co. V. Bobinson, 85 App. Div. 512; Armstrong v. Chisholm, 100 App. Div. 440. Note. Subdivision 1 of section 9 of the Lien Law, as amended by chapter 96, Laws of 1905, now require the notice to state: " The name and residence of the lienor ; and if the lienor is a partnership or a corporation the business address of such firm or corporation, and if a foreign corporation its principal place of business in this State." ElLING OF NoTica The notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or within ninety days after the completion of the contract, or the final performance [687] 688 Mechanic's Lien. Notice — By Partnership — Materials. of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished. The notice of lien must be filed in the clerk's office of the county where the property is situated. If such property is situated in two or more counties, the notice of lien shall be filed in the office of the clerk of each of such counties. FORM No. 359. Notice of Mechanic's Lien — For Materials by Partnership Supply- ing Materials to Owner. To the Clerk of the County of (New Yorlc) and to all others whom it may concern : PLEASE TAKE NOTICE, that (Paul Pfotenhauer,) re- siding at (100 West 118th street, Manhattan, New York City) and (William H. Neshit,) residing at (841 West End avenue, Manhattan, New Yorh City,) co-partners composing the firm of (Pfotenhauer & Neshit,) with business address and principal place of business at (1133 Broadway, Manhattan, New Yorh City,) Have and claim a lien for the principal and interest of the value and agreed price of the materials hereinafter mentioned, upon the real property hereinafter described and upon the im- provement, pursuant to the provisions of article 1 of chapter XLIX., of the General Laws of the State of New York, known as the Lien Law, and being chapter 418 of the Laws of 1897, and all the acts and laws amending and extending the same; or in force in said county in reference to mechanics' liens, and hereby state: The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor are (Schumar & Kaufman,) and (John Doe, the name " John Doe " being fictitious, his true name heing unknown to lienor,) owners of the fee. The- name of the persons by whom the lienors were employed and to whom they furnished such materials and with whom the contract was made are (Schumar & Kaufman.) The material furnished and the agreed price and value thereof are. as follows : (front brick) of the price and value of ($298.60) for which a lien is claimed. The amount unpaid to the lienor for such materials is ($298.60,) for which amount a lien is claimed. Mechanic's Lien. 689 Notice — By Partnership — Materials. The time when the first and last items of materials were fur- nished is as follows: First item of materials: (April 11, 1906.) Last item of materials: (April 11, 1906.) The property subject to the lien is situated in (the City of New York, Borough of Manhattan, on the north side of 152nd street, about 150 feet west of Broadway, being about 100 feet wide, front and rear, hy about 100 feet deep, on each side and its street number being unknown to lienors, being two five-story brick and stone tenement houses.) That all the materials for which this lien is claimed have been actually furnished. That said materials were furnished for and used in the im- provement of the real property hereinbefore described. That ninety days have not elapsed dating from the last item of materials furnished, nor since the completion of the contract, nor since the final furnishing of the materials, for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. Dated, (May 17, 1906.) (PFOTENHAUER & NESBIT,) By (Frank W. Avery,) as Agent. STATE OF NEW TOEK, -| (City and) County of (Neiv York,) >ss.: (Borough of Manhattan,) J (Frank W. Avery,) being duly sworn, says that he is the agent of the lienor mentioned in the foregoing notice of lien; that he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (FRANK W. AVERY.) Sworn to before me, this (11th) day of (May, 1906.) (FREEMAN C. 0RI8W0LD,) ]!^otary Public, (New York) County. 44 690 Mechanic's Lien. Notice — By Domestic Corporation — Materials. FORM No. 360. Notice of Mechanic's lien — For Materials "by Domestic Corporation for Material Supplied to Owner, a Domestic Corporation. To the Clerk of the County of (New Yorh,) and to all others whom it may concern: PLEASE TAKE ISTOTICE, that {Atlantic Cement Company,) a domestic corporation residing at and with business address and principal place of business at (5 East 4:2nd street, Manhattan, New York City,) Has and claims a lien for the principal and interest of the value and agreed price of the materials hereinafter mentioned, upon the real property hereinafter described, and upon the improvement, pursuant to the provisions of article 1 of chapter XLIX., of the General Laws of the State of New York, known as the Lien Law, and being chapter 418 of the Laws of 1897, and all. the acts and laws amending and extending the same ; or in force in said county in reference to mechanics' liens, and hereby states : The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor are {The 14:Qth Street Company, The Lawrence Building Company) and John Doe, said name " John Doe " being fictitious, his true name being unknown to lienor, owners of the fee. The name of the person by whom the lienor was employed and to whom it furnished such materials and with whom the contract was made is {the l^Qth Street Company,) acting for itself and the owners. The material furnished and the agreed price and value thereof are as follows: {brick, lime, cement and general "building ma- terials) of the price and value of ($2,000, the said amount not having been included in the lien heretofore and on the 19th day of March, 1906, filed hy said Atlantic Cement Company owing to erroneous statements, leaving a balance unpaid stated in said lien.) The amount unpaid to the lienor for such materials is ($2,000,) for which amount the lien is claimed {with interest from, March 2, 1906.) The time when the first and last items of materials were fur- nished is as -follows : First item of materials: {October 21, 1905.) Mechanic's Lien. 691 Notice — By Domestic Corporation — Materials. Last item of materials: {March 2, 1906.) The property subject to the lien is situated in {the City of New York, Borough of Manhattan, on the north side of lZ2th street, and on the south side of l^Qth street, about 16 feet west of Broad- way, being about 125 feet wide, front and rear, by about 200 feet deep, on each side, its street numbers being unknown to lienor being 5 five-story bricTc and stone tenements.') That all the materials for which this lien is claimed have been actually furnished. That said materials -were furnished for and used in the im- provement of the real property hereinbefore described. That ninety days have not elapsed dating from the last item of materials furnished, nor since the completion of the contract, nor since the final furnishing of the materials, for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. Dated, {April 25, 1906.) {ATLANTIC CEMENT COMPANY,) By {William J. Cox,) as Agent. STATE OF NEW YORK, 1 {City and) County of {New Yorhi) yss.: {Borough of Manhattan,) J {William J. Cox,) being duly sworn, says that he is the agent of the lienor mentioned in the foregoing notice of lien ; that he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. {WILLIAM J. cox;) Sworn to before me, this (25^^) day of {April, 1906.) {FREEMAN C. 0BI8W0LD,) itfotary Public, {N. Y.) Co. 692 Mechanic's Lien. Notice — By Individual — Materials. FORM No. 361. Notice of Mechanic's Lien — For Material by an Individual for Material Supplied to Contractor, an Individual. To the Clerk of the County of {New York,) and to all others whom it may concern: PLEASE TAKE NOTICE, that {Henry G. Sillech, Jr.,) re- siding at {southeast corner of QZrd street and Fifth avenue, Man- hattan, New York City,) Has and claims a lien for the principal and interest of the value and agreed price of the materials hereinafter mentioned, upon the real property hereinafter described, and upon the improvement, pursuant to the provisions of article 1 of chapter XLIX., of the General Laws of the State of ISTew York, known as the Lien Law, and being chapter 418 of the Laws of 189^ and all the acts and laws amending and extending the same ; or in force in said county in reference to mechanics' liens, and hereby state : The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor are {B. Emil Robitzek) and John Doe, said name " John Doe " being fictitious, his true name being unknown to the lienor, owners of the fee. The name of the person by whom the lienor was employed and to whom he furnished such materials and with whom the contract was made is {William Guggolz.) The material furnished and the agreed price and value thereof are as follows: {lumber and timber) of the price and value of ($107.28.) The amount unpaid to the lienor for such materials is ($107.28,) for which amount the lien is claimed. The time when the first and last items of materials were fur- nished is as follows: First item of materials: {March 2, 1906.) Last item of materials: {March 2, 190'6.) The property subject to the lien is situated in {the Oity of New York, Borough of Bronx, on the north side of Freeman street, about 132 feet west of Southern Boulevard, being about 125 feet wide, front and rear, by about 100 feet deep, on each side, and its street numbers believed to be 1133-1135-1137-1139-1141 and being 4 five-story brick and stone tenements.) Mechanic's Lien. 693 Notice — By Individual — Materials. That all the materials for which this lien is claimed have been actually furnished. That said materials were furnished for and used in the improve- ment of the real property hereinbefore described. That ninety days have not elapsed dating from the last item of materials furnished, nor since the completion of the contract, nor since the final furnishing of the materials, for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. Dated, (April 20, 1906.) (HENRY G. 8ILLECK, JR.,) By (WILLIAM J. COX,) as Agent. STATE OF NEW TOEK, ^ (City and) County of (New York,) yss.: (Borough of Manhattan,) J (William J. Cox,) being duly sworn, says that he is the agent of the lienor mentioned in the foregoing notice of lien ; that he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (WILLIAM J. COX.) Sworn to before me, this (20th) day of (April, 1906.) (FREEMAN C. ORI8W0LD,) itfotary Public, (New Yorh) County. 694 Mechanic's Lien, Notice — By Domestic Corporation — Materials. FORM Ho. 362. Notice of Mechanic's Lien — For Materials by Domestic Corporation Against Owner and Partnership Contractors for Materials Sup- plied to Contractors. To the Clerk of the County of (New York,) and to all others whom it may concern : PLEASE TAKE NOTICE, that {The Empire Brick and Supply Company,) a domestic corporation residing at and with business address and principal place of business at (874 Broad- way, Manhattan, New York City,) Has and claims a lien for the principal and interest of the value and agreed price of the materials hereinafter mentioned, upon the real property hereinafter described, and upon the improvement, pursuant to the provisions of article 1 of chapter XLIX., of the General Laws of the State of New York, known as the Lien Law, and being chapter 418 of the Laws of 1897, and all the acts and laws amending and extending the same ; or in force in said county, in reference to mechanics' liens, and hereby states : The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor are {Rosenthal & Levy,) and John Doe, said name " John Doe " being fictitious, his true name being un- known to the lienor ovsmers of the fee. The name of the person by whom the lienor was employed and to whom it furnished such materials, and with whom the contract was made is {Joseph Rosenthal,) acting for himself and the owners. The materials furnished and the agreed price and value thereof are as follows: {hrick, lime, cement and general masons' ma- terials,) of the price and value of ($22,271.75) of which the sum of ($21,142,05) has been paid on account, leaving a balance un- paid of ($1,129.70.) The amount unpaid to the lienor for said materials is ($1,129.70,) for which amount a lien is claimed, with interest from {January 18, 1906.) The time when the first and last items of materials were fur-, nished is as follows: First item of materials: {June 30, 1905.) Last item of materials: {January 8, 1906.) Mechanic's Lien. Notice — By Domestic Corporation — Materials. The property subject to the lien is situated in (the City of New York, Borough of Manhattan, on the south side of lS4:th street, about 100 feet west of Amsterdam avenue, being about 293 feet wide, front and rear, by about 100 feet deep, on each side, and its street numbers being unknown to lienor, being 7 five-story brick and stone tenements.) That all the materials for which this lien is claimed have been actually furnished. That said materials were furnished for, and used in the im- provement of the real property hereinbefore described. That ninety days have not elapsed, dating from the last item of materials furnished, nor since the completion of the contract, nor since the final furnishing of the materials, for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. Bated, (Afril 7, 1906.) {EMPIRE BRICK & SUPPLY COMPANY,) By (WILLIAM J. COX,) as Agent. STATE OF NEW YORK, >| (City and) County of (New York,) yss,: (Borough of Manhattan.) J (William J. Cox,) being duly sworn, says that he is the agent of the lienor mentioned in the foregoing notice of hen. That he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge, except as to the maters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (WILLIAM J. COX.) Sworn to before me this (7th) day of (April, 1906.) (FREEMAN 0. 0RI8W0LD,) Notary Pliblic, (New York) County. 696 Mechanic's Lien. NoBce — By Domestic Corporation — Labor And Materials. FOEM No. 363. Notice of Mechanic's Lien — For Labor and Materials by Domestic Corporation Against Owner, Individual, for Materials and Labor Furnished to Owner. To the Clerk of the County of {New York,) and to all others whom it may concern : PLEASE TAKE NOTICE, that {Maresca Walsh Tile & Marhle WorJcSj) a domestic corporation residing at and with busi- ness address and principal place of business at (31 East One Hundred and Thirty-fifth Street, Manhattan, New York City,) Has and claims a lien for principal and interest of the value and agreed price of the labor and materials hereinafter mentioned, upon the real property hereinafter described, and upon the im- provement, pursuant to the provisions of article 1, chapter XLIX., of the General Laws of the State of New York, known as the Lien Law, and being chapter 418 of the Laws of 1897, and of the acts and laws amending and extending the same, or in force in said county in reference to mechanics' liens, and hereby states : The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor, are (Louis Lewenhof,) and John Doe, said name " John Doe," being fictitious, his true name being unknown to the lienor, owners of the fee. The name of the person by whom the lienor was employed and to whom it furnished such labor and materials, and with whom the contract was made, is (Louis Lewenhof.') The labor performed and the materials furnished and the agreed price and value thereof are as follows: (Marhle and tile and labor in placing and setting same,) of the price and value of ($875) and extra materials, consisting of (two marhle steps and labor in placing and setting same under stairs,) of the price and value of ($10,) in all ($885,) of which the sum of ($600) has been paid on account, leaving a balance unpaid of ($285.) The amount unpaid to the lienor for such labor and materials is ($285) for which amount a lien is claimed. The time when the first and last items of work were performed and materials were furnished is as follows: First item of work and extra work, (December 22, 1905.) Last item of work and extra work (March 24, 1906.) First item of materials and extra Mechanic's Lien, 697 Notice — By Domestic Corporation — Labor And Materials. materials, (December 22, 1905.) Last item of materials and extra materials, (March 24, 1906.) The property subject to the lien is situated in (the City of New Yorh, Borough of Manhattan, on the south side of One Hun- dred and Twenty-seventh Street, about 64 feet west of Lexington Avenue, being about 36 feet wide, front and rear, by about 100 feet deep on each side, and its street numbers being unknown to lienor, being one six-story brick and stone apartment.) That all the materials and labor for which this lien is claimed have been actually furnished and performed. That said labor and materials were performed and furnished for and used in the improvement of the real property hereinbefore described. That ninety days have not elapsed, dating from the last item of work performed, and dating from the last item of materials fur- nished, nor since the completion of the contract, nor since the final performance of the work, nor since the final furnishing of the materials for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. Dated, (April 2, 1906.) (MABESCA WALSH TILE AND MABBLE WOBES.) By (WILLIAM J. COX,) as Agent. STATE OF NEW YORK, ^ (City and) County of (New York,) '>-ss.: (Borough of Manhattan,) J (William J. Cox,) being duly sworn, says that he is the agent of the lienor mentioned in the foregoing notice of lien. That he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge, ex- cept as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to' be true. (WILLIAM J. COX.) Sworn to before me this (2rid) day of (April, 1906.) (FBEEMAN C. GBISWOLD,) Notary Public, (New York) County. 698 Mechanic's Lien. Notice — By Domestic Corporation — Labor And Materials. FORM No. 364. Notice of Mechanic's Lien — For Labor and Materials by Domestic Corporation Ag^ainst Individual Owner and Copartnership Con- tractor for Labor and Materials Fnmished to Contractor. To the Clerk of the County of {New York,) and to all others ■whom it may concern: PLEASE TAKE NOTICE, that (Maresca Walsh Tile & Marble WorJcs,) a domestic corporation residing at and with business address and with principal place of business at (31 Easi 135th Street, Borough of Manhattan, New York City,) Has and claims a lien for principal and interest of the value and agreed price of the labor and materials hereinafter mentioned, upon the real property hereinafter described, and upon the im- provement, pursuant to the provisions of article 1, chapter XLIX., of the General Laws of the State of i^Tew York, known as the Lien Law and being chapter 418 of the Laws of 1897, and all the acts and laws amending and extending the same, or in force in said county in reference to mechanics' liens, and hereby state: The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor, are (Louis Weinstein) and (Harris Sachs and Philip Mandel, Sacks & Mandel,) and John Doe, the name " John Doe " being fictitious, his true name being unknown to the lienor, owners of the fee. The name of the persons by whom the lienor was employed and to whom it furnished such labor and materials and with whom the contract was made are (Sachs & Mandel,) acting for themselves and the owners. The labor performed and the materials furnished and the agreed ' price and value thereof, are as follows: materials consisting of (tile and the labor in placing and setting the same) of the price and value of ($637.50) of which the sum of ($496.00,) has been paid on account, leaving a balance of ($141.00) unpaid. The amount unpaid to the lienor for such labor and materials is ($141.00,) for which amoimt the lien is claimed. The time when the first and last items of work were performed and materials were furnished is as follows: First item of work -(/an. 10/0'6,) last item of work (April 25/06,) first item of materials (Jan. 10/06,) last item of ma- terials (April 12/06.) Mechanic's Lien. 699 Notice — By Domestic Corporation — Labor And Materials. The property subject to the lien is situated in (the City of New Yorh, Borough of Bronx, on the west side of Prospect Avenue, about 500 feet north of l?>2nd Street, being about 63 feet wide, front and rear, by about 100 feet deep, on each side, and its street number being 152 Prospect Avenue, being two five-story bricTc tenements.') That all the materials and labor for which this lien is claimed have been actually furnished and performed. That said labor and materials were performed and furnished for and used in the improvement of the real property hereinbefore described. That ninety days have not elapsed dating from last item of work performed, and dating from last item of materials furnished, nor since the completion of the contract, nor since the final per- formance of the work, nor since the final furnishing of the ma- terials for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. {MAEESCA WALSH TILE & MARBLE WORKS,) By {William J. Cox,) as Agent. Dated {May 3, 1906.) STATE OF NEW YORK, ^ {City and) County of {New York,) Vss,: {Borough of Manhattan,) J {William J. Cox,) being duly sworn, says that he is the agent of the lienor mentioned in the foregoing notice of lien ; that he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and be- lief and that as to those matters he believes it to be true. {WILLIAM J. COX.) Sworn to before me, this {Zrd) day of {May, 1906.) {STEPHEN W. LIVINGSTON,) Notary Public, (Kings) Co. (Cert, filed in New Yorh County.) 700 Mechanic's Lien. Notice — ' By Individual — Labor And Materials. FORM No. 365. Notice of Mechanic's Lien — For Labor and Materials by an Indi- vidual Against Owner, Individual, for Labor and Material Sup- plied to Owner. To the Clerk of the County of {New Yorh) and to all other.? whom it may concern : PLEASE TAKE NOTICE, that {Adam Iloffel,) residing at (138 West 119!;A Street, Manhattan, New York City,) Has and claims a lien for principal and interest of the value and agreed price of the labor and materials hereinafter mentioned, upon the real property hereinafter described, and upon the im- provement, pursuant to the provisions of article 1, chapter XLIX., of the General Laws of the State of 'Eew York, known as the Lien Law, and being chapter 418 of the Laws of 1897, and all the acts and laws amending and extending the same; or in force in said county in reference to mechanics' liens, and hereby states: The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor, are {Peter Banner) and John Doe, said name " John Doe " being fictitious, his true name being un- known to lienor, owners of the fee. The name of the person by whom the lienor was employed and to whom he furnished such labor and materials and with whom the contract was made is {Peter Banner.) The labor performed and the materials furnished and the agreed price and value thereof, are as follows : {fire escapes and shutters and labor in erecting, placing and setting same,) of the price and value of ($532.00,) of which the amount of ($400.00) has been paid on account, leaving a balance unpaid of ($132.00.) The amount unpaid to the lienor for such labor and materials is ($132.00,) for which amount the lien is claimed. The time when the first and last items of materials were furnished and first and last items of work done are as follows : First item of work (June 12, 1905,) last item of work {Feb. 12/06,) first item of materials {June 12/05,) last item of ma- terials {Feb. 12, 1906.) The property subject to the lien is situated in {the City of New York, Borough of Manhattan, on the east side of Broadway, be- tween Bleecker and Bond Streets, about 30 feet 5 inches wide, Mechanic's Lien. 701 Notice — By Individual — Labor And Materials. front and rear, hy about lOO feet deep, on each side, and its street number being 648 Broadway. ) That all the materials and labor for which this lien is claimed have been actually furnished and performed. That said labor and materials were performed and furnished for and used in the improvement of the real property hereinbefore described. That ninety days have not elapsed dating from last item of work performed, and dating from last item of materials furnished, nor since the completion of the contract, nor since the final per- formance of the work, nor since the final furnishing of the materials for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. (ADAM HOFFEL,) By (Stephen W. Livingston,) as Agent. Dated, (April 27, 1906.) STATE QF NEW YORK, "| (City and) County of (New York,) >ss.: (Borough of Manhattan.) J (Stephen W. Livingston,) being duly sworn says, that he is the agent of the lienor mentioned in the foregoing notice of lien ; that he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (STEPHEN W. LIVINGSTON.) Sworn to before me, this (27th) day of (April, 1906.) (FREEMAN C. GBI8W0LD,) Notary Public, (New York) County. 702 Mechanic's Lien. Notice — By Foreign Corporation — Materials. FORM No.. 366. Notice of Mechanic's lien — For Materials by a Foreign Corpora- tion Against Contractor, Domestic Corporation, for Materials Supplied to Contractor. To the Clerk of the County of {New Yorh,') and to all others whom it may concern : PLEASE TAKE NOlICE, that {Eastern Hydraulic Press Brick Company,) a foreign corporation, residing at and whose business address and principal place of business are ( Union Trust Building, St. Louis, Mo.,) whose principal place of business in the State of 'New York is (269 Aih Avenue, Manhattan, New York City,) Has and claims a lien for the principal and interest of the value and agreed price of the materials hereinafter mentioned, upon the real property hereinafter described, and upon the improvement, pursuant to the provisions of article 1 of chapter XLIX., of the General Laws of the State of New York, known as the Lien Law, and being chapter 418 of the Laws of 1897, and all the acts and laws amending and extending the same-; or in force in said county, in reference to mechanics' liens, and hereby states : The names of the owners of the real property against whose interest therein a lien is claimed, and the interest of the owners as far as known to the lienor are {Eden Construction Company,) and John Doe, said name " John Doe " being fictitious, his true name being unknown to lienor, owners of the fee. The name of the person by whom the lienor was employed and to whom he furnished such materials, and with whom the contract was made is {Eden Construction Company.) The materials furnished and the agreed price and value thereof are as follows: materials consisting of {front hricJc) of the price and value of ($1,909.50,) of which ($1,681.50) has been paid on account, and leaving a balance of ($228.00) unpaid. The amount unpaid to the lienor for such materials is ($228.00,) for which amount a lien is claimed. The time when the first and last items of materials were fur- nished is as follows: First item of materials: {December 7, 1905.) Last item of materials: {February 5, 1906.) The property subject to the lien is situated in {the City of New York, Borough of Manhattan, on the southwest corner of Man- Mechanic's Lien. 703 Notice — By ' Foreign Corporation — Materials. hattan Avenue and 110^^ Street, being about 100 feet and .... inches wide, front and rear, by about 100 feet and .... inches deep, on each side, its street numbers being unknown to lienor and being one six-story brick and stone tenement.) That all the materials for which this lien is claimed have been actually furnished. That said materials were furnished for and used in the improve- ment of the real property hereinbefore described. That ninety days have not elapsed dating from the last item of materials furnished, nor since the completion of the contract, nor since the final furnishing of the materials, for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. Bated, (May 3, 1906.) {EASTERN HYDRAULIC PRESS COMPANY,) By {WILLIAM J. COX,) as Agent. STATE OF ISTEW YORK, 1 {City and) County of {New York,) > ss.: {Borough of Manhattan.) J {William J. Cox,) being duly sworn says, that he is the agent of the lienor mentioned in the foregoing notice of lien ; that he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. {WILLIAM J. COX.) Sworn to before me, this (3rd) day of {May, 1906.) {WM. M. G. WATSON,) {Com/r of Deeds for the City of New Yorh.y 704 Mechanic's Lien. Notice — By Agent Of Corporation — Materials. FORM No. 367. Notice of Mechanic's Lien — For Materials by Agent of Corporation, Supplying Material to Subcontractor, Against Corporation. To the Clerk of the County of {New York) and to all others whom it may concern: PLEASE TAKE NOTICE, that {E. F. Keaiing Company,) a domestic corporation residing at and whose business address and principal place of business is (446 Water Street, Borough of Man- hattan, New YorJc City,) has and claims a lien for the principal and interest of the value and agreed price of the materials here- inafter mentioned, upon the real property hereinafter described, and upon the improvement, pursuant to the provisions of article 1 of chapter XLIX., of the General Laws of the State of JSTew York, known as the Lien Law, and being chapter 418 of the Laws of 1897, and all the acts and laws amending and extending the same ; or in force in said county in reference to mechanics' liens, and hereby states: The name of the owner of the real property against whose in- terest therein a lien is claimed, and the interest of the owners as far as known to the lienor is (Title Guarantee & Trust Company) and {John Doe, said name, John Doe, ieing fictitious, his true name heing unknown to lienor,) owners of the fee. The name of the persons by whom the lienor was employed, and to whom it furnished such materials and with whom the contract was made are {Edward J. McCdbe & Co.,) sub-contractors under {Thompson Starrett Company) contractor. The material furnished and the agreed price and value thereof are as follows: Material consisting of {wrought iron pipe and fillings) of the price and value of ($4,158.15,) of which ($3,000) has been paid on account {and $847.19 credited on account for materials returned,) leaving balance of ($311.45) unpaid. The amount unpaid to the lienor for such materials is ($311.45,) for which amount a lien is claimed. The time when the first and last items of materials were fur- nished is as follows: First item of materials: {November loth, 1905.) Last item of materials: {January 21st, 190'6.) The property subject to the lien is situated in the {City of New York, Borough of Manhattan on the east side of Broadway, be- tween Maiden Lane and John Street, being about 75 feet and six Mechanic's Lien. 705 Notice — By Agent Of Corporation — Materials. inches wide, front and rear, hy about 118 feet and 11 inches deep, on each side and its street number being 176 and 178 Broadway, and being one 10-story brick and stone office building.) That all materials for which this lien is claimed have been actually furnished. That said materials were furnished for and used in the improve- ment of the real property hereinbefore described. That ninety days have not elapsed dating from the last item of materials furnished, nor since -the completion of the contract, nor since the final furnishing of the materials, for which this lien is claimed. That the statements contained in the foregoing notice are alleged on information and belief. {E. F. KEATING CO.,) By (WM. SMITH,) Agent. Dated, (April 18, 1906.) STATE OF NEW YORK:, ^ (City and) County of (New Yorh,) >ss.: (Borough of Manhattan.) J (William Smith,) being duly sworn, says that he is agent of the lienor mentioned in the foregoing notice of lien ; that he has read the said notice and knows the contents thereof, and that the state- ments therein contained are true to his own knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (WM: SMITH.) Sworn to before me, this (18th) day of (April, 1906.) (FREEMAN E. GBISWOLD,) Notary Public, (New YorJc) Comity. 45 706 Mechanic's Lien. Notice — By Individual — Labor. FORM No. 368. Notice of Mechanic's Lien — For labor — Individual Against Cor- poration. To (Peter J. Dooling,) Esquire, Clerk of the County of {New York) : TAKE ISrOTICE that I, (John J. Dunn,) have and claim a lien for the principal and interest of the value and the agreed price of the labor and materials hereinafter mentioned upon the real property improved and upon such improvement hereinafter described pursuant to the provisions (article 1) of the Lien Law of the State of New York, and I do hereby state that 1. The name and residence of the lienor is (John J. Dunn, 13 East 65th Street, New York City.) 2. The name of the owner of the real property against whose interest therein a lien is claimed is (The Tenth Street Co.) and ("John Doe," said narne "John Doe" being fictitious, his true name being unknown to lienor,) and the inter^t of said owners, as far as known to the lienor is as o^vner of the fee. 3. The name of the person by whom the lienor was employed and the person with whom the contract was made was (The One Hundred and Tenth Street Company.) 4. The labor performed and the agreed price and value thereof are as follows, respectively: (Excavating) and the agreed price was ($309.00.) 5. The amount unpaid to the lienor therefor is ($309.00.) 6. The time when the first items of work were performed is (Jan'y 5, 1906.) The time when the last item of work was performed is (Jan'y 17, 1906.) The property subject to the lien is situated in the (Borough of Manhattan,) and a description sufficient for identification and its location is as follows: It is situated in (Manhattan Borough on the north side of Cathedral Parkway, 100 feet west of Broadiuay, being 75 feet wide, front and rear by 90 feet deep on each side and whose num- ber is unknown to lienor.) That all the labor for which this lien is claimed has been actu- ally perfowned. Mechanic's Lien, 707 Notice — Against Public Improvement. That said labor was performed for the improvement of the real property hereinbefore described. That ninety days have not elapsed, dating from the last item, of work performed, nor since the completion of the contract, nor since the final performance of the work, for which this lien is claimed. {JOHN J. DUNN.) Dated, {April 3, 1906.) STATE OF NEW YORK, County of {Nev} York,) {John J. Dorgan,) being duly sworn, says that he is {the agent of) the lienor mentioned in the foregoing notice of lien ; that he has read the said notice and knows the contents thereof, and that the statements therein contained are true to his knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. {JOHN J. DUNN.) Sworn to before me, this {3rd) day of {April, 1906.) {JOHN J. GLEN,) Notary Public, {New York) County, FORM No. 369. Notice of Mechanic's lien — On Account of Public Improvement. To the {Comptroller of the City of New York and the Department of Public Charities:) PLEASE TAKE NOTICE. That {Adam Happel,) residing at (138 West 119th street, in the Borough of Manhattan, City of New York,) has and claims a lien for the principal and interest of the value and price of the labor and materials hereinafter mentioned upon the moneys in the con- trol of the ( City of New York, ) and upon the moneys of such mu- nicipal corporation applicable to the construction of the public improvement hereinafter mentioned to the extent of the amount due or to become due under and on the contract with said munici- 708 Mechanic's Lien. Notice — Against Public Improvement. pal corporation hereinafter described, which lien is based upon the following facts: 1. The names of the contractors or subcontractors for whom the labor was performed and materials furnished are (Herman Lippel £ Brothers.) 2. The amount due the lienor is ($210.60,) and the date when due is (January 6, 1905.) 3. A description of the public improvement upon which the labor was performed and materials furnished is as follows : (The new reception hiiilding at the city hospital at BlackweU's Island, New York City.) 4. The kind of labor performed and materials furnished is as follows : (Materials consisting of columns, shoes, angles and wood screws and labor in placing and setting the same of the price and value of $210.60.) i>. A general description of the contract pursuant to which such public improvement was constructed is as follows : (A contract between Herman F. Lippel Brothers and the City of New York for improvement, described in paragraph 3 above, contract No. 10,106, dated April 16, 1904, for $20,900.) 6. This notice is filed pursuant to " The Lien Law " of the State of IS'ew York and all acts of the Legislature of the State of ISTew York amending or extending the same or providing for filing mechanics' liens on account of public improvements. The labor and materials aforesaid were actually used in the construction of the said public improvement and in the execution and completion of said contract with said municipal corporation. 7. The statements in paragraph 1 ^o 6 in the foregoing notice are alleged upon information and belief. Dated, (New York, March 31, 1905.) (ADAM HAPPEL.) (Verification.) Mechanic's Lien. 709 Notice — Against Public Improvement. FORM No. 370. Notice of Lieu on Account of Public Improvement. To the Comptroller of the City of ISTew York and (the Depart- ment of the Armory Board.) PLEAISE: take notice, that (Columbia Company,) a (foreign) corporation organized under the laws of the State of (New Jersey,) residing at and with business address and principal place of business at (Newark, New Jersey,) and with business address and principal place oi business in this State at (No. 28'7 Broadway, Manhattan, New York City,) has and claims a lien for the principal and interest of the value and price of the labor and materials hereinafter mentioned upon the moneys in the con- trol of the (City of New York,) and upon the moneys of such municipal corporation applicable to the construction of the public improvement hereinafter mentioned, to the extent of the amount due or to become due under and on the contract with said munici- pal corporation hereinafter described, which lien is based upon the following facts: 1. The names of the contractors or sub-contractors for whom the labor was performed and material furnished are (Root & Mann and John Morse, contrg,ctors in the City of New York.) 2. The amount due the lienor is ($7,000.00,) and the date when due is (April 15, 1906.) 3. A description of the public improvement upon which the labor was performed and materials expended are as follows: (erection and completion of a new armory building for the &2nd Regiment, N. G. S. N. Y., on the westerly side of Lexington Avenue, extending from 27th to 28th Streets, Manhattan, New York City.) 4. The kind of labor performed and materials furnished is as follows : (Architectural iron work and labor in erecting and setting same of the price and value of $18,000,) of which the sum of ($11,000) has been paid on account, leaving a balance unpaid of ($7,000.) 5. A general description of the contract pursuant to which such public improvement was constructed is as follows: (Contract between John Morse and the City of New York for the public improvement described in paragraph 3, supra, for the sum of $300,000. Contract No. 10,600,) dated (November 17, 1904,) 710 Mechanic's Lien. Notice — Against Public Improvement. filed (November 30, 1904,) in the office of the (Comptroller) of the (City of New York.) 6. This notice is filed pursuant to " The Lien Law " of the State of New York, and all acts of the Legislature of the State of New York amending or extending the same or providing for filing mechanic's liens on account of public improvements. The labor and materials aforesaid were actually used in the construc- tion of said public improvement and in the execution and com- pletion of said contract with said municipal corporation. 7. The statements and matters in paragraphs numbered 1 to 6 in the foregoing notice are alleged on information and belief. Dated, (Octoler 3, 1906.) (COLUMBIA COMPANY]) By (OLIVER ENGEL,) (Secretary and Agent.) STATE OF NEW YORK, 1 (City and) County of (New York,) f (Oliver Engel,) being duly sworn, says: That he is (the secretary and agent of) the lienor mentioned in the foregoing notice of lien. That he has read the said notice and knows the contents . thereof, and that the statements therein con- tained are true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. That the reason this verification is made by deponent and not by lienor is that lienor is a corporation and deponent is an officer thereof; to wit, the secretary. (OLIVER enoel:) Sworn to before me, this (3d) day of (October, 1906.) (FRANK BOND,) Notary Public, {New York) County. Mechanic's Lien. 711 Afadavit To Continue. FORM No. 371. Affidavit f6r Continuation of Mechanic's Lien. SUPREME COURT, (New York) County. In the Matter of the Mechanic's Lien Claimed by {THEODORE JOHNSON) against (CHARLES WOODWARD) as owner. STATE OF NEW YORK, ^ County of (New York,) j (THEODORE JOHNSON,) being duly sworn, says : Prior to (December 1, 1903,) I performed the labor and furnished the ma- terials set forth in the notice of lien hereinafter mentioned in and about the improvement of certain real property situate in (the City of New York,) more particularly described in the notice of lien hereto attached. On the (first) day of (December, 1903,) I filed in the office of the Clerk of the County of (New York,) pursuant to chapter 418 of the Laws of 1897,andthe acts amendatory thereof, a notice claim- ing a lien against the said real property on account of said labor and materials, as appears by the copy of said notice of lien hereto attached and made a part hereof, which notice was duly docketed on the (first) day of (December, 190i3.) Said notice of lien was filed within ninety days after the com- pletion of said labor and the furnishing of said materials. The name of the owner of said real property as stated in the annexed notice is (Charles Woodward,) and the name of the per- son by whom I was employed and to whom I furnished materials as stated in said notice is (Charles Woodward.) My lien will expire on the (first) day of (December, 1904,) and no action has been commenced or other proceedings taken to en- force this or any other mechanic's lien against said real property, and said lien has not been bonded, canceled or discharged, and the whole amount claimed thereunder is now due and payable. ISTo steps have been taken to enforce said lien for the reason that an agreement has been entered into between (Charles Woodward,) 712 Mechanic's Lien. Order Oontiuuing. the owner of said premises, and myself, providing for the payment of the amount claimed and said Woodward has requested that such action be deferred. Deponent, therefore, asks that an order be entered continuing said lien for a period of one year. No previous application has been made to, any court or judge. (THEODORE JOHNSON.) Sworn to before me this (15th) day of (November, 1904.) (ARNOLD GREEN,) Notary Public, (N. Y.) County. FOEM No. 372. Order Continuing Mechanic's Lien. At a Special Term, (Part II.) 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, City of New York,) on the (20th) day of (November, 1904.) Peeseint : Hon. (DAVID LEVENTRITT,) Justice.' In the Matter of the Mechanic's Lien Claimed, by (THEODORE JOHNSON) against (CHARLES WOODWARD,) as owner. On reading and filing the affidavit of (Theodore Johnson,) veri- fied the (l&th) day of (November, 1904,) and the notice of me- chanic's lien thereto attached, and sufficient reason therefor to me appearing. Mechanic's Lien. 713 Order Coutinuing. NOW, on motion of (James J. Maxwell,) attorney for said (Theodore Johnson,) it is ORDERED, that the lien claimed by the said (Johnson) by his notice of lien filed (December 1, 1903,) at' (eleven) o'clock, (thirty) minutes a. m., upon the following real property and the improvements thereon, to-wit: (The twelve and one-half story hotel building, known as Hotel Woodson, situate at the corner formed by the intersection of the easterly side of Broadway, in the Borough of Manhattan, City of New York, with the southerly side of 53rd street,) of which hotel building (Charles Woodward) is the owner, for the improvement to-wit : ( The furnishing and setting of window glass in said hotel iuilding,)he and the same hereby is con- tinued for a period of one year pursuant to the provision of section 16 of chapter 418 of the Laws of 189Y, known as the Lien Law, and the Clerk of the (County of New York) is hereby directed to make a new docket of the lien hereby continued as of the date of this order in the lien docket kept in his office for that purpose pur- suant to law, and to note thereon that said lien is so continued by order of this court. Enter, (d.l:) J. 8. C. 714 Mechanic's Lien. Order Continuing. FORM No. 373. Order Continuing Kechanic's Lien. At a Special Term of the Supreme Court, {Part II.) thereof, held at the County Court House, in the County of (New York,) on the {l?>th) day of {January, 1907.) Present : Hon. {EDWARD B. AMEND,) Justice. In the Matter of the (Municipal Lien of ($4,708.40, jiled by NATIONAL FIBEPBOOFING COMPANY against FANNING and BEILLY and the contract between Fanning and Beilly and the CITY OF NEW YOBK for the erection of New Public School, Na. 42 on Southwest Corner of Wendover Avenue and Washing- ton Avenue, in the Borough of Bronx, City of New York.) On reading and filing the affidavit of {Henry M. Keaseby,) verified the {IQth) day of {January, 1907,) hereto annexed, and on motion of {Phillips & Avery,) attorneys for the {National Fireproofing Company,) the above-named lienor, it is ORDERED that the lien for a public improvement for the sum of ($4,708.40',) filed by {the National Fireproofing Company) against {Fanning & Beilly,) contractors, and the contract between said {Fanning & Beilly) and the {City of New York) for {the erection of new public School No. 42 on the southwest corner of Wendover and Washington Avenues in the Borough of Bronx, City of New York,) filed on the (23<^) day of {April, 1906,') in the office of the {Comptroller of the City of New York,) and in the office of the {Department of Education of the City of New York,) Mechanic's Lien. 715 Order Continuing. and thereafter continiied by order of this court for six months from {23d) day of {July, 1906,) be, and the same hereby is continued for six months from the date of the entry of this order ; and it is further ORDEKED that the (Comptroller of the City of New York) make a new docket of the lien continued hereby. Enter, {E. B. A.) J. S. C. PART VI. COMMON FORMS OF INSTRUMENTS. ACKNOWLEDGMENTS. ITOTE. In most of the States the seal of the official taking the acknowl- edgment is not required to be affixed to the instrument. How- ever, if a seal is used, a wafer should be affixed to the instrument before the impression is made. When acknowledgments are taken outside of New York for use in thia State, a prothonotary certificate should be obtained. FORM No. 374. By Individual. STATE OF NEW YOEX. County of {New York), "" On this {second) day of {Jwnuary, 1903), before me personally appeared {John Jones), to me known and known to me to be the individual described in, and who executed the foregoing instru- ment, and he duly acknowledged to me that he executed the same. {JOHN DOE), Notary Public, {New York) County, No. (2). FORM ITo. 375. By Individual Not Known to Officer, STATE OF NEW YORK, County of {New York), On this {seco'nd) day of {January, 1903), before me personally came the above-named {John Jones), proven to me satis' [716] K,1 Acknowledgment. 717 By Several Individuals. factorily to be the individual described in, and who exe- cuted the foregoing instrument, by oath of (Richard Roe), to me personally known, who being by me duly sworn did de- pose and say, that he resided in the City {and County of New York) ; that he was acquainted with the said (John Jones), and that he knew him to be the same person described in, and who executed the foregoing instrument, and thereupon the said (John Jones) duly acknowledged before me that he executed the same. (JOHN DOE), !N"otary Public, (New York) County, No. (2). rORM No. 376. By Two Individuals. STATE OF NEW YORK, County of (New York), On this (second) day of (Jamiary, 1903), before me personally appeared (John Jones) and (Richard Roe), severally knovm to me and to me known to be the several individuals described in and who executed the foregoing instrument, and they duly sever- ally acknowledged to me that they severally executed the same. (JOHN DOE), ' Notary Public, (New York) County, No. (2). FORM No. 377. By One of Several Individuals. STATE OF NEW YOEK, ^ . Conntj oi (New York), j On this (second) day of (January, 1903), before me personally appeared (John Jones), to me known and known to me to be one 718 Acknowledgment. By Attorney In Fact. of the individuals described in and who executed the foregoing instrument, and he duly acknowledged to me that he executed the same. {JOHN DOE), Notary Public, {New York) County, No. (2). FORM No. 378. By Two Individuals, One Known and One Not Known to the Officer. STATE OF NEW YORK, County of {New Yorh), On this {second) day of {January, 1903) before me personally came {John Jones), to me known to be one of the individuals described in and who executed the foregoing instrument, and also personally came {Richard Roe), satisfactorily proven to me to be the other individual described in and who executed the same, by oath of {William Rich), to me personally known, who being by me duly sworn said that he resided in the City {and County of New Yorh), and that he knew the said {Richard Roe) to be one of the individuals described in and who executed the said instrument. Thereupon the said {John Jones) and {Richard Roe) severally acknowledged before me that they executed the same. {JOHN DOE), Notary Public, {New York) County, No. (2). FORM No. 379. By Attorney in Fact. STATE OF NEW YORK, County of {New York), On the {second) day of {January, 1903), before me personally came {John Jones), the attorney of {Richard Roe), known to me to be the individual described in and who as such attorney Acknowledgment. 719 By Subscribing Witness. executed the foregoing instrument, and acknowledged that he exe- cuted the same as the act and deed of (Richard Roe), therein de- scribed, and for the purposes therein mentioned, by virtue of a power of attorney duly executed by the said (Richard Roe), bear- ing date the (2nd) day of (January, 1903). (JOHN DOE), Notary Public, (New York) County, l^o. (2). FORM No. 380. By Subscribing Witness. STATE OF NEW YOEK County of (New York), On the (second) day of (January, 1903), before me personally came (John Jones), subscribing witness to the foregoing instru- ment, with whom I am personally acquainted, who being by me duly sworn, said that he resided in the City (and County of New York) ; that he was acquainted with (Richard Roe), and knew him to be the person described in and who executed the said instrument ; and that he saw him execute and deliver the same ; and that he acknowledged to him, the said (John Jones), that he executed and delivered the same; and that he, the said (John Jones), thereupon subscribed his name as a witness thereto. (JOHN DOE), Notary Public, (New York) County, No. (2). FORM No. 381. By Subscribing Witness Unknown to Officer. STATE OF NEW YOEK, 1 ^ . County of (New York), J On this (second) day of (JoMuary, 1903), before me personally came (John Jones and Richard Roe), and the said (John Jones), 720 ACKNOWLEDGMEKT. By Corporation. to me personally known, being by me duly sworn, said that be resided in the City (and County of New York) ; that he was acquainted with the said (Richard Roe) personally and knew him to be the same person who was the subscribing witness to the within instrument, which is to me satisfac- tory evidence thereof; and the said (John Jones), being duly sworn, said that he resided in the City (and County of New York) ; that he was acquainted with (William Rich) and knew him to be the person described in and who executed the said instrument; that he saw him execute the same, and that he acknowledged to him, the said (John Jones), that he executed and delivered the same, and he, the said (John Jones), thereupon subscribed his name as a witness thereto. (JOHN DOS), Notary Public, (New York) County, No. (2). FORM No. 382. By a Corporation. STATE OF NEW YOEK, 1 r SS ' County of (New York), J Oil the (second) day of (January,) in the year (1903), be- fore me personally came (John Jones), to me known, who, being by me duly sworn, did depose and say, that he resided in the City (and County of New York) ; that he is the (president) of the (John Jones Manufacturing Company), the corporation de- scribed in and which executed the above instrument ; that he knew the seal of said corporation ; that the seal affixed to said instrument was such corporate seal ; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. (JOHN DOE), Notary Public, (New York) County, No. (2). ACKKOWLEDGMENT. 721 By Corporation. FORM No. 383. By a Corporation (Another Form). > STATE OF NEW YOEK, County of {New York,) On this (2nd) day of (/mZi/,) in the year One thousand nine hun- dred and {seven,) before me personally appeared {John Brown,) {second) Vice-president of the {Brown Hotel) Company the cor- poration described in and which executed the foregoing instru- ment, and {William Reid,) the Secretary thereof, to me known and known to me to be the persons who executed the foregoing instrument on behalf of the {Brown Hotel) Company, and they being by me severally duly sworn, did depose and say, that he the said {John Brown) resides at {Borough of Mamhattan, New Yotk City,) and is vice-president of the {Brown Hotel) Com- pany, and that he the said {William Beid) resides at {Orange, N. J.,) and is secretary of the said Company; and that they each of them knew the corporate seal of said Company and that the seal affixed to the foregoing instrument purporting to be the seal of the {Brown Hotel) Company is such seal and it was so affixed by order of the Board of Directors of the said Company, and that they severally signed their names thereto as vice-president and secretary respectively by like order and the said {John Brown) and {Williami Reid) also severally acknowledged to me that they executed the said instrument freely and voluntarily and as the act and deed of the said {Brown Hotel) Company for the uses and purposes therein expressed. IN WITNESS WHEEEOF I have hereunto set my hand and seal at the {Borough of Manhattan, City, County and) State of New York on the {2,nd) day of {July, 1907.) {OWEN W008TEB,) Notary Public, {New YorJc) County. 46 r 722 Acknowledgment. By Husband And Wife — Firm By One Partner. FORM No. 384. By Husband and Wife Known to the Officer. STATE OF JSTEW YORK,! ^ . County of {New York,) ) On this (11th) day of (July, 1907,) before me personally and severally came the within named (George Boyd) and (Jane Boyd,) his wife, severally known to me and to me knovra to be the persons described in, and who severally executed the fore- going instrument, and severally acknowledged that they sever- ally executed the same for the uses and purposes therein mentioned. (FRANK JOHNSON,) Notary Pliblic, (N. Y.) County. (No. 276.) rOHM No. 385. By Firm by One Partner. STATE OF NEW YORK," County of (New York,) '}' On this (lUh) day of (July, 1907,) personally appeared be- fore me (Harry Smith,) personally known to rhe to be a mem- ber of the firm of (Smith, Parson & Company,) to me known to be the person described in and who executed the foregoing instru- ment in the firm name of (Smith, Parson & Company,) and he acknowledged that he executed the same as the act and deed of said firm of (Smith, Parson & Company) for the uses and pur- poses therein mentioned. (FRANK JOHNSON,) Notary Public, (N. Y.) County. (No. 276.) Acknowledgment. 723 By Wife In Separate Certificate — By Trustee. FORM No. 386. By Wife in Separate Certificate. }' STATE OF NEW YORK, County of {New York,) I hereby certify that on this (11th) day of (July, 19(>7,) be- fore me came (Jane Falls,) wife of (Charles Falls,) to me known and known to me to be the person described in and who executed the foregoing instrument, and acknowledged that she executed the same. (FRANK JOHNSON,) Notary Public, (N. Y.) Co. (No. 2T6.) FORM No. 387. By a Trustee, STATE OF NEW YORK, , 'ySS. County of (New York,) ■y I hereby certify that on this (11th day of July, 1907,) before me came (Edward Cole,) to me known to be the trustee of the trusts created by the last will and testament of (James Daly, deceased,) of (the Town of Knox, Suffolk County, New York,) and known to me to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as such trustee. (FRANK JOHNSON,) Notary Public, (New York) County. (No. 276.) 724 Acknowledgment. By Executor — Administrator. rORH No. 388. By an Executor. 1 ss. STATE OF l^EW YORK, County of (New Yorh,) I hereby certify that on this (11th day of July, 1907,) before me came (Edward Cole,) to me known to be the executor of the last will and testament of (James Daly,) late of the (City and County of New Yorh) and known to me to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as such executor. (FRANK JOHNSON,) Notary Public, (New Yorh) County. (No. 216.) FORM No. 389. By an Administrator. STATE OF NEW YOEK, County of (New Yorh,) f I hereby certify that on this (11th day of July, 1907,) before me came (Edward Cole,) to me known to be the administrator of the goods, chattels, and credits of (James Daly,) late of (the City of Albany,) deceased, and known to me to be the person de- scribed in and who executed the foregoing instrument and acknowl- edged that he executed the same as such administrator. (FRANK JOHNSON,) Notary Public, (New Yorh) County. (No. 276.) FORM No. 390. Acknowledgment for Many States. STATE OF (NEW YORK),! ^ . City and County of (New Yorh),y^' ' Be it remembered, and I do certify, that on this (twelfth) day of (July), in the year (1904), in the said city and county afore- Acknowledgment. 725 For Many States. said, before me, the undersigned {John Doe), a Notary Public, in and for the County of {New York), in the State of {New York), and a Commissioner of Deeds in and for the State of New York, duly appointed and commissioned as such by the respective gov- ernors of, and for the States of {New Jersey, Ohio, Indiana, and. Illinois), and the commonwealth of {Pennsylvania^, and being now duly qualified to act as such for. each of such States and for said commonwealth, personally appeared {Richard Roe) and {John Smith), whose names are signed to the foregoing and hereto annexed deed, bearing date the {Vith) day of {July, 1904), as president and secretary, respectively, of {Willia/ms Company), with whom I am personally acquainted, and who Tare personally known to me to be, and who I am satisfied are, the president and secretary respectively, and the same persons whose names are subscribed to the foregoing instrument as such president and secretary, respectively, of {Williaims Company), the within-named grantor, and the corporation described in and which executed the said deed, at my office and in the said City and County of New York, for themselves and on behalf of said {Williams Company) ; and being by me informed of the contents of said deed they on this day severally and respectively acknowledged the due execu- tion of the foregoing deed on the day the same bears date; and further acknowledged that they voluntarily executed, signed, sealed and delivered the said deed as their free and voluntary act and deed, individually, and as such president and secretary, re- spectively, and as the free and voluntary act and deed of the said company, for the uses and purposes therein expressed and set forth, and desired the same to be recorded as such. And the said {Richa/rd Roe) and {John Smith), being by me first duly sworn, according to law, did each for himself and neither for the other, on his oath, depose and say: That they reside, the said {Richard Roe) in the City of {New York), and the said {John Smith) in the City of {New York), both in the State of {New York) ; that the said {Richard Roe) is the president, and the said {John Smith) is the secretary of the said company ; that their names respectively signed in attestation of the execution of the foregoing deed, are in the said deponents' own proper hand- writing, respectively ; that they knew the corporate seal of the said company, the grantee in the foregoing instrument to be the common or corporate seal of the said company, and was thereto affixed by authority of the board of directors and by order of said company, 726 Affidavit Of Title. Form Of. as the act and deed thereof; and that they signed their names thereto each in the presence of the other, by like authority, as president and- secretary respectively of said company. And the said (John Smith) did further depose ajid say that he was per- sonally present and saw the said (Richard Roe), as such presi- dent, sign the said deed and affix the common or corporate seal of taid company to the said deed, and heard him declare that he signed, sealed and delivered the same as the voluntary act and deed of the said company, by order of the said board of directors, and that thereupon he, the said (John Smith,) signed his name thereto at the same time as a subscribing witness. In witness whereof, I have hereunto set my hand and seals of office, as commissioner of deeds for the States of (New Jersey, Ohio, Indiana, Illinois), and the coriimonwealth of (Pennsyl- vania), and as Notary Public for the County of (New York), in the State of (New York), at my office, the day and year first abofe written. (JOHN DOE), N"otary Public, [l. s] County of (New York), ISTo. (22). (JOHN DOE), [l. s.] Commissioner for the Stat© of (New Jersey). (JOHN DOE), [l. S.J Commissioner for the State of (Ohio). (JOHN DOE), [i- S.J Commissioner for the State of (Indiana). (JOHN DOE), [l. S.J Commissioner for the State of (Illinois). (JOHN DOE), [l. S.J Commissioner for the Commonwealth of (Pennsylvania). FORM No. 391. Affidavit of Title. .)}-•• STATE OF NEW YORK, (City and) County of (New York. (OLIVER WENDELL,)- being duly sworn, says, that he re- sides at (No. 50 Morningside Avenue in the Borough of Man- Affidavit Of Title. 727 Form. hattan. City of New York,) and is by occupation (a physician) ; "that he is a citizen of the United States, twenty-one years of age and upwards ; and that ho is now in possession, and the owner in fee simple, of the premises known as {No. 524 West 1'2,nd street, in the Borough of Manhattan,) in {said city,) this day to be {conveyed) by him to {Charles Dudley.) Deponent furiiier says that the said premises have been held by him for upwards of {ten) years last past, and that his possession thereof has been peaceable and undisturbed, and that the title thereto has never been disputed or questioned to his knowledge, nor does deponent know of any facts by reason of which said pos- session or title might be disturbed, or questioned, or by reason of which any claim to said premises, or any part thereof, might arise, or be set up adverse to this deponent; and that he is informed and believes that his grantors held the said premises for more than twenty years prior to the transfer to him ; and that no person has any contract for the purchase of, or claim to or against said premises, except as hereinafter stated ; and that the same are now free and clear of all taxes, incumbrances or liens by mortgage, decree, judgment, or by statute, or by virtue of any proceeding in any court, or filed in the office of the clerk of any county or court in this State, and of all other liens of every nature and description, save and except {a mortgage given to secure the sum of ten thou- sand dollars to Richard Harding, which mortgage is recorded in the office of the Register of the County of New Yorh, in Liher 2140, of Conveyances, Bloch Section Y, page 332.) Deponent further says that the said premises are now occupied by {Alfred Johnson.) Deponent further says that he is married to {Isabel Morison,) who is over the age of twenty-one years, and who is the same per- son who executes, with deponent, the deed to the said premises; and that there are no judgments, or decrees, or attachments, or orders of any court or ofiieer for the payment of money against him, or to which he is a party, unsatisfied or not cancelled of record in any of the courts, or before any officer of the United States, or this State, or any suit or proceedings pending anywhere affecting said premises, to his knowledge, information or belief, and that any judgments found of record against any person under the name {Oliver Wendel) are not against deponent, and that no proceedings In bankruptcy have ever been instituted by or against deponent 728 Affidavit Of Title. Form Of. Deponent makes this affidavit to induce {Charles Dudley i) above named, to accept a {deed to the) said premises, and pay the con- sideration therefor, knowing that the said {Charles Dudley') relies upon the truth of the statements herein contained. {OLIVER WENDELL.) Sworn to before me, this "1 {12th) day of {March, 1905.) J {GEORGE GORDON,) Notary Public, {New YorTc) County. AGREEMENTS. NOTE. In signing contracts or other instruments, the name of the principal should always appear first, and then " by " the name of the agent, as for example: John Jones, By William Smith, as his agent. In the case of a negotiable instrument or a sealed document, it is vital who has signed, and the exact form of the signature, since in these cases as a rule only the person appearing in the document as a party can sue or be sued thereon. (118 App. Div. 208.) If it is not a sealed document or negotiable instrument it is not BO important, as a party who is not named may sue or be sued thereon as an undisclosed principal, and it only becomes important in that, if the agent has signed as a party he is liable, and no evidence can be offered to show the agent was acting as such, although evidence can be offered for the purpose of permitting the principal to sue, or a third party to sue the principal. [729] 730 Agkeement. Corporation In Testimonium Clause. FORM No. 392. Corporation " In Testimonium " Clause. IJST WITNESS WHEEEOF, the (American Boat) Company, the' party of the first part, has caused its corporate seal to be hereto affixed and these presents to be signed by its (president) and (secretary,) and the (li. J. Hart) .Company, the party of the second part, has caused its corporate seal to be hereto affixed and these presents to be signed by its (vice-president) and (secre- tary) on the day and year first above written. (AMERICAN BOAT COMPANY,) By (JAMES WILSON,) (President.) Signed, Sealed, and Delivered in the presence of (FREDERICK STONE.) Attest : (JVILSON BROWN,) Secretary. Signed, Sealed, and Delivered in the presence of Attest : (GEORGE ATWOOD,) Secretary (H. J. HART COMPANY,) By (EMILE BOOS,) ( Vice-President. ) Agreement. 731 Retainer — Of Service And Hiring. FORM No. 393. Setainer on Contingent Basis. {New Yorh, May 21. 1907.) Mr. (James J. Mc^xwell, 32 Liberty Street, New York City.) Dear Sir: I hereby retain you as my attorney to prosecute a claim which I have against (the Public Utilities Corporation of New York for damages for injuries sustained by me on the 28th day of March, 1904, at 4:2nd street and Broadway, in the City of New York, through the negligence of said corporation, its agents, servants and employees,) and to represent me in any action brought for that purpose; and I agree to pay you {twenty-five) per cent. (25,^) of any recovery obtained either as the result of an action or through compromise. I agree also not to compromise said claim nor to accept any sum in settlement thereof without first obtaining your consent thereto. Yours truly, (FRANK BURDEN.) FORM No. 394. Agreement of Service and Hiring. Agreement made this (second) day of (January,) one thousand nine hundred and (five,) between (The China Trading Company, a corporation organized under the laws of the State of New Jersey, and having its principal office at 95 Pearl street, in the Borough of Manhattan, City of New York,) hereinafter called (the Com- pany,) and (Frank Thompson) of (Orange, New Jersey,) here- inafter styled (the salesman;) witnesseth: 1. The said (salesman) has agreed and hereby does agree to enter into the service of (the Company) as a (traveling salesman) for a period of (two years) beginning on the (first) day of (February, 1905.) 2. The said (salesman) agrees to devote the whole of his time, attention and energies to the performance of his duties as such (salesman,) subject to the general control of (the Company,) and 732 Agreement. Of Executor With Creditor To Eefer Claim. to serve {the Company) diligently and according to the best of his ability in all respects, and further agrees not to represent or to be in any way connected either directly or indirectly with any other business during said period. And said (salesman) further agrees (to keep proper hooles of account, and to make complete and correct entries of the price and amount of all goods sold by hvm, and from time to time as directed, iy the Company to submit at its New York office such accounts and reports of all sales, transactions and dealings had, of, in and in relation to the business of the Company.) 3. (The Company) agrees to pay the said (salesman) a salary of (sixty) (60) dollars per (week,) payable (weekly) from the commencement of the said service (and a commission of two and one-half per centum (2^^) upon all sales made by said salesman for the Company or secured by the Company through his efforts during the said period over and above the sum of seventy-five thousand ($75,000) dollars per annum. Said commissions to be adjusted semi-annually on the last days of January and June of each year and to be payable within ten days thereafter and to be based only upon sales actually completed and paid for on the date of each adjustment.) 5. (The Company) agrees to pay to the said (salesman) weekly in addition to his salary, all reasonable traveling expenses and hotel bills incurred by him in connection with the business of (the Company.) m WITNESS WHEEEOF the parties hereto have hereunto set their hands and seals the day and year first above written. (THE CHINA TRADING CO..) By (seal.) (JAMES L. FOSTER,) Pres. (FRANK THOMPSON.) (seal.) (Acknowledgments.) FOUn No. 395. Agreement of Executor with Creditor to Sef er Disputed Claiin. WHEREAS, (Oliver Hobbs,) of (the Borough of Manhattan, City of New York,) has lately presented to (Charles Dann,) the executor of the last will and testament of (Gerald Hobbs,) late of (the Borough of Richmond, City of New York,) deceased, a claim AoREEMiaiT. 733 Party Wall. for (two hundred and ten) ($210} dollars, a copy whereof is lereto attached, the justice of which claim is doubted by the said executor and a controversy has thereupon arisen, the said (Oliver Hdbbs) and (diaries Dann,) as executors of the last will and testament of (Gerald Hohhs,) deceased, have agreed, and hereby do agree, to refer the matter in controversy to (Charles Ingalls, counsellor at law,) as sole referee to hear and deternine the same. (Signed) (OLIVER H0BB8,) (Signed) (CHARLES DANN,) As Executors of the Last Will and Testa- ment of (Gerald Hobbs,) deceased. Dated, (Neiu York, May Qth, 1905.) ( Acknowledgment. ) I hereby approve of the referee named in the foregoing agree- ment. (ABNER C. THOMAS,) Surrogate. FORM No. 396. Party- Wall Agreement. WHEKEAS, (Charles Brown) and (Thomas Simpson, both) of (the Borough of Manhattan, in the City of New York,) are the owners respectively of two adjoining pacrels of land situate (on the east side of West End Avenue, in the Borough of Manhattan, City of New York,) the line dividing said parcels being (60 feet north of and parallel to the center line of West 92nd street,) and running (at right angles to the street line of West End avenue,) and the said (Charles Brown) being the owner of the parcel (south) of said line and said (Thomas Simpson,) the owner of the parcel (north) of said line; and WHEREAS, the said parties are desirous of providing for the erection of a party wall on said line, now, therefore, this agree- ment, made the (first) day of (May. 1905,) by and between said (Charles Brown,) party of the first part, and said (Thomas Simp- son,) party of the second part, witnessth: 1. Whichever of the parties hereto shall first erect a building adjoining said line shall erect a wall thereon, of suoh length as 734 Agreement, Party Wall. Buoh party shall see fit, -which wall shall be constructed of good materials and workmanship, and shall conform to the require- ments of the building laws {and regulations of the Building De- partment of the City of New York;) but not more than six inches in thickness of said wall with its proportion of necessary founda- tion shall be placed on the land of the other party without the consent of such party. 2. Said wall shall, when so built, be and remain a party wall. 3. Whenever the owner of the other parcel shall use said wall cr any part thereof he shall pay to the person who shall at that time own the parcel first built upon, such proportion of the then value of the said wall including necessary piling, foundation or other sub-structure and coping, as the portion of the said wall used by said party shall bear to the entire structure of such wall. 4. Either of the parties hereto may add to said party wall in length, thickness, height or depth and may repair, or in case of destruction, rebuild same and any addition thereto. The party making repairs to or rebuilding said wall or any addition thereto shall make said repairs or reconstruct said wall in such a way as to leave the other party as. nearly as may be in the same condition vnth respect to said wall as before, and shall use good materials and workmanship, and shall do all work con- nected with said repairs or rebuilding from his own side of the dividing line in case the other parcel is built upon, and shall con- form same to the requirements of the building laws, {and regula- tions of the Department of Buildings of the City of New York.) One-half of any repairs so made, shall be paid to the party making the same by the owner of the other parcel, if said party wall or any part thereof has been used as hereinbefore provided by such owner, on demand ; and one-half of the value of any such rebuilt wall or of any addition made as aforesaid shall be paid for by the owner of the other parcel when used, upon the same terms as here- inbefore provided for the original wall, any addition made to said wall in length shall be uniform in thickness with the original wall, but no addition to the thickness of said wall shall be made by either of the parties hereto upon the land of the other unless such land is vacant, and in no event so as to cause more than six inches of said wall inclusive of said addition, with the proportion of necessary foundation to be upon the land of the other party without the consent of such party. Agreement. 735 Of Indemnity. 5. In consideration of tlie foregoing and of (one dollar,) lawful money of the United States to eacli of the parties hereto, by the other party in hand paid, the receipt of which is hereby acknowl- edged, the said parties, for themselves and their respective heirs and assigns do mutually covenant and agree each to and with the other, his heirs, representatives and assigns, to keep and in all respects observe the foregoing agreement, and that the covenanta therein contained shall run with the land but that no owner is to be responsible except for his acts and defaults while owner. m WITNESS WHEEEOF, we have hereunto set our hands and seals the day and year first above written. (CHARLES BROWN,) (seal.) (THOMAS SIMPSON.) (seal.) (Acknowledgment. ) FORM No. 397. Agreement of Indemnity (Without Sureties). THIS AGREEMENT, made the (fifteenth) day of (April) in the year one thousand nine hundred and (five,) by and between (Henry Warren,) .oi (the Borough of Manhattan, City of New York,) party of the first part, and (Roger Lambert and Walter Lambert and Gilbert Vernon, all of Orange, Essex county. State of New Jersey^, doing business as co-partners at No. 120 Broad- way, in the Borough of Manhattan, City of New YorTc, under the name and style of Roger Lambert & Co.,) parties of the second part, witnesseth: WHEREAS, (a bill of exchange for one thousand dollars, bear- ing date Jaaiwa/ry 6, 1905, drawn by Joseph Arnold upon Roger Lambert & Co., the parties hereto of the second part, and by them accepted on January 10, 1905, and which is now the property of Henry Warren, the above-named party of the first part, has been lost and cannot be produced by him;) and WHEREAS, at the request of the said party of the first part, and upon his promise to indemnify and save harmless the parties of the second part in the premises and (to deliver up the said bill of exchange when found to the parties of the second part fo be cancelled,) the said parties of the second part have this day (paid to the party of the first part the sum of one thousand dollars, the 736 Agreement. Building. receipt whereof is hereby acknowledged, in full satisfaction and discharge of said hill of exchange:) NOW, THEREFORE, in consideration of the premises and of the sum of {one dollar,) in hand paid to the party of the first part by the parties of the second part, the receipt whereof is hereby acknowledged, the said party of the first part does hereby agree and bind himself, his executors, administrators and assigns (jointly and severally) as follows, to wit: First. That the said party of the first part, his heirs, executors, administrators and assigns shall and will at all times indemnify and keep indemnified and save harmless the parties hereto of the second part from and against all loss, damages, costs, charges, counsel fees and expense whatever which the said parties of the second part shall or may for any cause at any time sustain or incur by reason of {the hill of exchange above described,) or in consequence of {having paid the same,) and the party of the first part does covenant and agree to pay to the parties of the second part, their legal representatives or assigns, all sums of money which the parties of the second part, their legal representatives or assigns, may become liable for upon {the said hill of exchange) before the parties of the second part shall be compelled to pay the same, any sum so paid to be applied, however, to the payment of any liability of the parties of the second part upon {the said bill of exchange or arising out of the payment of the same as aforesaid. ) Second. That the party of the' first part will, {when and as soon as the said bill of exchange is found, deliver the samie to the parties of the second part to be cancelled.) {HENRY WABBEN.) (seal.) (Witness.) {CHABLE8 JONES.) { Acknowledgment. ) FORM Ho. 398. Agreement for Erection of Suilding. ARTICLES OF AGREEMENT, made this {thirty-first) day of {January,) in the year nineteen hundred and {four,) between {Helen King,) of {the Borough of Brooklyn, City of New York.) Agkebment, 737 Building. hereinafter called the owner, party of the first part, and (Benja- min Boole) of the same place, hereinafter called the contractor, party of the second part. The party of the second part does hereby for himself, his heirs, executors and administrators, covenant and agree to, and with the party of the first part, (her) heirs, executors, administrators, and assigns, for the consideration hereinafter mentioned, on or before the (twenty-fifth) day of (April,) nineteen hundred and (five,) to well and sufiiciently erect and finish a new building on (Lot 53 Grand street, in the Borough of Manhattan, City of New York,) agreeably to and in conformance with the plans, draw- ings and specifications made by (Charles Merlin,) architect, and signed by the parties hereto and hereto annexed, within the time aforesaid, in a good workmanlike and substantial manner, under the direction of and to the satisfaction of the said architect, to be evidenced by a certificate or statement in writing, signed by the said architect ; and also to find and provide such good, proper and sufficient materials of all kinds whatsoever as shall be sufficient and proper for the completing and finishing of all the masons' and other work on said building, mentioned in the masons' specifica- tions, for the sum of (seventeen thousand and fifty) dollars ($17,050). The party of the first part does hereby for herself, her heirs, executors and administrators, promise and agree in consideration of the covenants and agreements, herein contained, being strictly kept and performed by the party of the second part, as specified, to well and truly pay or cause to be paid to the said party of the second part, his heirs, administrators or assigns, the sum of (seventeen thousand and fifty) dollars ($17,050), lawful money of the United States, in manner following : First — (When walls are up for second tier of beams. . $3,000) Second — (When walls are up for the fourth tier of beams 2,000) Third —(When topped out 2,500) Fourth — (When white mortar is on 3,i00) Fifth — (When completely finished 6,150) ($17,050) 47 738 Agreement. Building. Provided, that a certificate or statement, in writing, signed by (Charles Merlin,) architect, that each of said portions of the work has been completed to his satisfaction is obtained. It is hereby further agreed by and between the said parties as follows : First — The specifications and the drawings are intended to co-operate, so that any work exhibited in the drawings and not mentioned in the specifications, or vice versa, is to be executed the same as if it were mentioned in the specifications and set forth in the drawings, according to the true meaning and intention of the said drawings and specifications, without any extra charge whatever. Second — The contractor at his own proper cost and charges is to provide all manner of materials and labor, scaffolding, im- plements, moulds, models and cartage of every description for the due performance of every part of said work. Third — At any time during the progress of the work on said building the ovsmer shall be at liberty to request any alteration or deviation, additions or omissions from the plans or specifica- tions; upon such request, the same shall be made, and shall in no way affect or make void the contract, but the cost thereof shall be added to or deducted from the amount to become due on this contract, as the case may be, at a fair and reasonable valuation. Fourth — Should the contractor, at any time during the progress of said work, refuse or neglect to supply a sufficiency of materials, implements or workmen for the proper performance of said work, the owner shall have the power to provide materials, implements and workmen, after giving three days' notice in writing to the contractor, to finish said work, and the expense shall be deducted from the amount of the contract. Fifth — Should any dispute arise concerning the true con- struction or meaning of the drawings or specifications, the same shall be decided by the architect, and his decision shall be con- clusive and final; but should any dispute arise concerning the true value of extra work or of work added or omitted in accord- ance with this contract, the same shall be valued by two competent persons — one to be employed by the owner and the other by the contractor — which persons shall have power to name a third competent person, in ease they are unable to agree, and in such case a decision of a majority of said persons shall be binding on all parties. Ageeement. 739 Composition. Sixth. — The owner shall not in any manner be answerable or accountable for any loss or damage that may happen to the said work or any part tliereof, or for any materials or other things used and employed in completing the same, loss or damage by fire alone excepted. Seventh — The time stated within which the building is to be completed is understood to be in case the weather continues in a state to allow the work to go on, which is to be decided by the architect, and the time allowed to be added to the time above stated; and should the ovraier, while the work is in progress, request any addition to or deviation from the work called for in the drawings and specifications which shall require additional time to complete, such time shall be determined by the architect and added to the time above stated. m WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first above written. (HELEN KING,) (seal.) (BENJAMIN BOOLE.) (seal.) (Acknowledgments. ) FORM No. 399. Composition Agreement. WHEEEAS, (John 0. Wheeler,) of (the Borough of Manhat- tan, City of New Yorh.) hereinafter described as " the debtor," is justly indebted in divers stmis of money to us, his several cred- itors, and is unable by reason of losses and business reverses to satisfy our debts and claims in full; and WHEEEAS, we, the said creditors, have agreed to accept (^forty (40) cents) for every dollar owing by the said debtor to us, in full satisfaction and discharge of all debts owing by the said debtor to us and each of us, respectively, NOW, THEEEFOEE, we, the several creditors of the said debtor, for ourselves, respectively and severally, and for our respective and several heirs, executors, administrators and assigns do covenant, compound, promise and agree to and with the said debtor and to and with each other, that we will accept and receive from the said debtor, for each and every dollar that the said 740 Agreement. Composition. debtor does owe to us and each of us, the sum of {forty (40) cents,) to be paid by the said debtor to us, his several and respec- tive creditors, as follows: {twenty -five (25) per cent.) of the sev- eral amounts in which the said debtor is indebted to each of us is to be paid by the said debtor to each of us on or before the {tenth) day of {January, nineteen hundred and four,) in cash; {ten (10) per cent. ) of the several amounts due to each of us from the said debtor is to be paid in promissory notes, dated {the second day of January, nineteen hundred and four,) and payable {four months after date,) with interest at {six) (6) per cent., to be made by the said debtor and delivered to each of us on or before the {tenth) day of {Janunry, nineteen hundred and four; five) (5) per cent, of the several amounts due to each of us from the said debtor is to be paid in promissory notes, dated the {second) day of {January, nineteen hundred and four,) and payable {six months after date,) with interest at {six) (6) per cent., to be made by said debtor and delivered to each of us on or before the {tenth day of January, ■nineteen hundred and four.) And we, the said creditors, do further covenant and agree that neither we nor any one of us will at any time hereafter sue, arrest, molest or disturb the said debtor, or his goods or chat- tels, for any debt or liability now existing against the said debtor ill favor of us or any one of us; provided, however, that in case default be made by the said debtor in the part payment in cash, or in the delivery of the said notes, on or before the {tenth) day of {January, 1904:,) this agreement shall be void and of no effect; and further provided that this agreement shall not in anywise prejudice or affect the right or remedies of any creditor against any surety or sureties or any person or persons other than the debtor, his heirs, executors or administrators, nor any security, which any of us, his several and respective creditors, may have or claim for any debt or debts of the said debtor. It is further agreed that unless this coinposition agreement shall be accepted by all the creditors of the taid debtor, and shall be signed by all of them on or before the {fifteenth) day of {De- cember, 1903,) these presents shall be void and of no effect. It is also expressly agreed that all of the covenants and agree- ments and conditions herein contained shall extend to and bind our several and respective executors, administrators and assigns, as well as ourselves respectively and severally. Agreement. 741 Marriage. m WITlSrESS whereof, we, the said several creditors of the said {John 0. Wheeler,) have hereunto set our respective hands and seals this (twenty-fifth) day of {November, 1903.) FORM No. 400. Contract of Marriage — Pursuant to Subd. 4, Sec. 11, Art. 2, DoM. Eel. Law. THIS AGREEMENT, made and entered into this {twenty- ninth) day of {April,) in the year one thousand nine hundred and {five,) at (316 East Twenty-fourth street, in the Borough of Man- hattan, City of New York), by and between {Charles H. Harri- son,) residing at {14: Morning side avenue, in the Borough of Man- hattan, City of New York,) and {Marian B. Lang,) residing at (216 West Ninety-fourth street. Borough of Manhattan, City of New York;) in the presence of {William Maxton,) who resides at (34 East Forty-first street, in the Borough of Manhattan, City of New York,) and {James T. Corning,) who resides at (22:j West Twenty-ninth street, in the Borough of Manhattan, City of New York,) Witnesseth that, WHEEEAS, the said {Charles H. Harrison) and {Marian B. Lang) have agreed to unite in the bonds of matrimony and become husband and wife from the date of these presents henceforth. NOW, THEREFORE, in pursuance of subdivision 4 of sec- tion 11 of article second of the Domestic Relations Law, the said {Charles H. Harrison) and {Marian B. Lang) do hereby agree from the date of this contract to become, and hereby do be- come, husband and wife, and they hereby agree to assume the marital relations and obligations pertaining thereto. m WITISTESS WHEREOF the said parties have executed this marriage contract in duplicate, and have signed and acknowl- edged the same the day and year first above written. {CHARLES H. HARRISON,) (seal.) {MARIAN B. LANG.) (seal.) Signed, sealed and delivered 1 in the presence of J {WILLIAM MAXTON,) {JAMES B. CORNING.) 742 Agreement. To Share Expense Of Law Suit. [Acknowledgment by parties and witnesses before a Judge of a Court of Record.] NOTE. By Ch. Y42, L. 1907, taking efFect January 1, 1908. A marriage may be solemnized by a written contract of mar- riage signed by both parties and at least two witnesses who shall subscribe the same, stating the place of residence of each of the parties and witnesses and the date and place of marriage and acknowledged by the parties and witnesses in the manner required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded, provided, however, that all such contracts of marriage must in order to be valid be acknowledged before a judge of a court of record. Such contract shall be recorded within six months after its execution in the oiBce of the clerk of the county in which the marriage was solemnized. But as to securing marriage licenses prior to entering into the contract, see also Laws 1907, chapter 742, subdivision 8, taking effect Janu- ary 1, 1908. FOEM No. 401. Agreement to Share Expense of law Suit. WBCEREAS, {James Oliphant, Henry Rogers, Charles Camp- hell and Thomas Perry,) all of {the City of White Plains, New York, are owners respectively of four parcels of land situate on the easterly side of Westchester avenue, letween Third and Fourth streets, in said City of White Plains, each of which parcel extends ■fifty (50) feet along the line of said avenue; and WHEEEAS, {the City of White Plains has made an assess- ment of $135.00 upon each of said parcels for certain public improvements in said City,) as to the legality of which the parties hereto are desirous of obtaining a judicial determination; and WHEEEAS, {James Oliphant,) above-named, has retained counsel and is about to institute a proceeding in the {Supreme) Court of {Westchester County) to have {the assessment upon the parcel of land owned by him reviewed and its legality deter- mined,) and the decision of such proceeding will in effect deter- mine the legality of {the assessment upon the parcels owned by each of the parties hereto:) Agreement. 743 To Share Expense Of Law Suit. NOW, THEREFOEE, in consideration of the foregoing it is agreed this (third) day of (October, 1904,) by and between the said (James Oliphant, Henry Rogers, Charles Campbell and Thomas Perry,) as follows: I. The said (James Oliphant) agrees to promptly and vigor- ously prosecute the proceeding above referred to, and will by appealing to the (Appellate Division of the Supreme Court and to the Court of Appeals of this State,) if so advised by counsel, and by taking such other steps as he is advised by counsel are best suited to accomplish that purpose, endeavor to obtain a prompt and final determination as to the legality of (said assess- ment, as to the amount thereof, and as to the method of making the same.) II. The said (Henry Rogers, Charles Campbell and Thomas Perry) respectively and severally agree to share and defray (one- fourth) of the amount of all expenses necessarily incurred by said (James Oliphant) in connection with the carrying on of the liti- gation above referred to, including the fees of attorneys and coun- sel and all costs and disbursements for which the said (James Oliphant) may become liable by reason of said litigation, and re- spectively and severally agree to pay to the said (James Oliphant) within (thirty) days from the date hereof the sum of (two hurir dred) (200) dollars each, to be applied towards defraying such expenses as they accrue. And each of the terms of this agreement is intended to apply to and bind the executors, representatives and assigns of each of the parties hereto. (Witness.) (SOLOMON KETCHEM,) (JAMES OLIPHANT,) (seal.) (HENRY ROGERS,) (seal.) (CHARLES CAMPBELL,) (seal.) (THOMAS PERRY.) (seal.) ( Acknowledgments. ) 744 Agbeement. Sale Of Real Property. FORM No. 402. Agreement for Sale of Property.* AGREEMENT, made this (24!!^) day of {January, 1905,) between {Lewis Munson,) of {the Borough of Manhattan, City of New York,) hereinafter described as the seller, and {Leonore Fan- cher,) of {the same place,) hereinafter described as the purchaser, WITNESSETH, That the seller agrees to sell and convey, and the purchaser agrees to purchase all that lot of land, with the buildings and improvements thereon, in the {Borough 'of Man- hattan, City of New York,) and described as follows: (metes and bounds) [The seller agrees tliai there are no notices of violations of the Tenement House Department of the City of New York, or any other Municipal Department, uncomplied with as of January 18, 190'5, and that he- will remove all such violations prior to fh0 closing of the title.] [It is hereby understood and agreed between the parties hereto that the party of the first part is under contract for the purchase of the above-described premises, and should he be unable to secure good and sufficient title to the same, then and in that event this contract shall become null and void, and neither shall have any claim against the other by reason of the non-fulfillment of this contract, except that the seller shall repay to the purchaser the sum of two thousand dollars ($2,000.00) with, interest thereon at three per cent. (3^). J The price is {thirty-eight thousand five hundred) ($38,500) dollars, payable as follows: {Two thousand) ($2,000) dollars on the signing of this contract, the receipt of which is hereby ac- knowledged. {Seven thousand five hundred) ($7,500) dollars in cash or certified check on the delivery of the deed as hereinafter provided. {Twenty-five thousand ($25,000) dollars hy taking the said premises subject to a first mortgage, now a lien thereon for that amount, interest on which is at the rate of five per cent, (5^) ^jer annum, principal due in November, 1907; held by Anna Upton. Two thousand ($2,000') dollars by taking said premises sub- ject to a second mortgage, now a lien thereon for that amount. * See Information to Obtain before Signing, pages 12 and 15. Ageebment. 745 Sala Of Real Property. interest on which is at the rate of five per cent. (5^) per anmum, principal due on or before two years from the date thereof. Subject to leases expiring not later than May 1, 1905, amd to monthly tenancies.) (Two thousand ($2,00'0) dollars hy the purchaser executing and delivering to the seller his hond and purchase-money mort- gage covering said premises for said sum of two thousand ($2,000) dollars for three years with interest thereon at the rate of six per cent, per annum, payable semi-annually.) (The said bond and mortgage to be in form satisfactory to the seller and to be prepared by the counsel for the seller at the ex- pense of the purchaser. The purchaser shall also pay the record- ing tax on said mortgage and the recording fees.) All fixtures and personal property appurtenant to or used in connection with said premises are included in this sale. The deed shall be delivered upon the receipt of said payments at the office of (Oarr & Carr) on (March 10, 1907, at 12 o'clock noon. ) The deed shall be a full covenant warranty deed in proper form, and shall be duly executed and acknowledged by the seller, at the seller's expense, to convey to the purchaser, or the pur- chaser's assigns, the absolute fee of the above premises, free of all incumbrances, except as above stated. All instruments to be given hereunder are to be in the statu- tory short form. Eents and interest on mortgage, if any, and insurance pre- miums are to be apportioned. The risk of loss or damage to said premises by fire until the delivery of the deed is assumed by the (seller.) \ The stipulations aforesaid are to apply to and bind the suc- cessors, heirs, executors, administrators and assigns of the re- spective parties. [The seller agrees that brought about this sale, and agrees to pay the broker's commission therefor.] WITNESS the hands and seals of the above parties. In peesejstce of (HENRY MARK,) (LEWIS MUNSON,) [l. s.] (RICHARD MAREHAM,) (LEONORE FANCHER,) [l. s.J ( Acknowledgments. ) t " Buyer " sometimes inserted. 746 Ageeement. Exchange Of Real Property. FORM No. 403. Agreement for Exchange of Property. AGEEEMENT, made this (15^^) day of (November, 1904,)' between (Herbert Donovan,) of (the Borough of Manhattan, City of New York,) herein throughout described as the party of the first part, and (Paul Plum, of the Boroitgh of Brooklyn, in said City of New York,) herein throughout described as the party of the second part, witnesseth: I. That the party of the first part agrees to sell and convey, upon the terms and conditions hereinafter expressed, and the party of the second part agrees to purchase all that certain lot, piece or parcel of land, in (the Borough of Manhattan, City of New York,) with the buildings and improvements thereon, de- scribed as follows: (by metes and bounds). II. The party of the second part agrees to sell and convey, upon the terms and conditions hereinafter expressed, and tlie party of the first part agrees to purchase all that certain lot, piece or parcel of land, in (the Borough of Brooklyn, City of New York,) with the buildings and improvements thereon, described as follows : (by metes and bounds). The price which the party of the second part agrees to pay is (twenty thousand) ($20,000) dollars, and is to be payable as follows : (Five hundred) dollars on the signing of this contract, the receipts whereof is hereby acknowledged ($500) (Five hundred) dollars in cash on the delivery of the deeds as hereinafter provided (500) (Twelve thousand) dollars by (taking the premises to he conveyed by the party of the first part subject to a first mortgage, now a lien on the premises for that amount, held by Joseph Stern, the interest on which is at the rate of five per cent. (5^) per anmwm, principal due in November, 1910) , (12,000) (Seven thousand) dollars by executing and delivering to the party of the first part or his assigns, at the expense of the party of the second part, a proper deed of the premises above-described as to be sold and conveyed by the party of the second part, the value of which it is hereby agreed is ($18,000, subject to a first mortgage Agkeement. 747 Exchange Of Real Property. for eleven thousand dollars^ now a lien upon the scdd premises for that amount, held hy John Brown, the interest at four per cent. (4^) per annum, principal diue in June, 1905, which mortgage the party of the first part agrees to assume and discharge) ($7,000) The deeds of the premises to be conveyed shall be delivered at the oiEce of (Nash & Nash, 120 Broadway, Borough of Manhat- tan, City of New York,) on the (15ih) day of (December, 1904,) at (twelve) o'clock (noon.) And the said party of the first part, on receiving such pay- . ment at the time and in the manner above-mentioned, shall, at his own expense, execute, acknowledge and deliver, to the said party of the second part, or the assigns of the party of the second part, a proper deed containing the usual full covenants and war- ranty for the conveying and assuring to the party of the second part, or the assigns of the party of the second part., the fee simple of the said premises free from all encumbrances except as herein stated. \_The requirements of the Tenement House Commissioner, duly certified in writing upon a search for violations of the Tenement House Act affecting either of said premises, shall he complied with hy the parties hereto prior to the time of the delivery of the deeds as herein provided.^ The chandeliers, gas fixtures, ranges, heating and hot-water apparatus, water closets, bath tubs and other plumbing, and all personal property appurtenant to or used in connection with either of said premises are to be included in this sale and in the warranty above set forth. The rents of each of the said premises, insurance premiums, and interest on mortgages, if any, shall be adjusted, apportioned and allowed up to the day of taking title to each. The risk of loss or damage to said premises by fire or any other cause, until the delivery of the deeds, is assumed by each of the parties hereto as to the premises to be conveyed by him. It is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the re- spective parties. All instruments to be given hereunder are to be in the statutory short form. (The party of the first part agrees that 748 Agreement. Continuing Guaranty. brought about this exchange, and agrees to pay said broker his commission of dollars therefor.) WITNESS the hands and seals of the above parties. {HERBERT DONOVAN,) (seal.) {PAUL PLUM.) (seal.) In presence of {ALFRED DAYIES.) { Acknowledgments. ) FOEM No. 404. Continuing Guaranty Agreement. WHEREAS, the {Pittsburgh Manufacturing Company) de- sires to establish a credit with the {First National Bank, of New York,) whereby it may obtain advances, loans or discounts from the said {hank:) NOW, THEEEEOEE, I, {Anson Brown) of {the City of Pittsburgh, Pennsylvania,) being the {president) of the said {Pittsburgh Manufacturing Compan so slightly injured by fire or the elements as not to be rendered unfit for occupancy, then the said lessor agrees that the same shall be repaired with reasonable promptitude, and in that case the rent accrued or accruing shall not cease nor determine. 6th. Said lessor will keep the hereby leased premises warmed by a steam-heating apparatus, from the tenth day of October in each year to the twentieth day of May following, and will also furnish throughout each year a reasonable amount of gas or electric light as the lessor may determine, for lighting said premises ; and will also cause said premises to be cleaned and generally cared for by the janitor of the building. 7th. Said lessor shall not be liable for any damage to any property, at any time, in said premises or building, from the Croton or other water, rain or snow, which may leak into, issue or flow from any part of said building of which the premises hereby leased are part, or from the pipes or plumbing works of the same, or from any other place or quarter. 8th. Said lessee shall give to said lessor or to its agent prompt written notice of any accident to or defects in the water-pipes, gas- pipes, electric light or fixtures, or heating apparatus, to be rem- edied by said lessor with due diligence. 9th. And it is understood and agreed that in case of the viola- tion of the foregoing covenants, agreements and conditions, or of any of the rules, or regulations, now or hereafter to be established by the said lessor, for the government of said building, or either of them, by the said lessee, this lease shall thenceforth, at the option of the said lessor, become null and void, and the said lessor may re- Lease. 827 Office. enter upon said premises without notice or demand, and in such case rent shall become due, be apportioned and paid on and up to the day of such entry, and the said lessee hereby expressly waives all right to any notice to quit possession, or of intention to re-enter under the statute, anything in this lease to the contrary notwith- standing. And said lessee shall be liable for all loss or damage resulting from such violation as aforesaid. IN WITNESS WHEEEOF, the said lessor has hereunto caused its corporate seal to be affixed, and the same to be signed by its general manager, and the said lesse has hereunto set his hand and seal the day and year first aboA'e written. (THE TRINITY REALTY COMPANY.) (seal.) By (Walter Gibhs, Signed, sealed and delivered General Manager.) in the presence of ( WILLIAM N. PARK. ) ( seal. ) STATE OF NEW^YORK, "1 County of (New York,) j On the (30th) day of (April,) in the year one thousand, nine hundred and (two,) before me personally came (Walter Gibhs,) to me known, who, being by me duly sworn, did depose and say, that he resided in (the City of New York;) that he is the (secretary and general manager) of (the Trinity Realty Company,) the cor- poration described in, and which executed the foregoing instru- ment ; that he knew the corporate seal of said corporation ; that the seal affixed to said instrument was such corporate seal ; that it was so affijced by order of the board of directors of said corporation, and that he signed his name thereto by like order. (MELVIN BAKER,) Notary Public, STATE OF NEW Y0EK,1 ^ . (New York) County. County of (New York,) j On this (SOih day) of (April,) in the year (1902,) before me personally came (William N. Park,) to me known to be the in- dividual described in and who executed the foregoing instrument, and acknowledged that (he) executed the same for the purposes therein mentioned. (MELVIN baker;) Notary Public, (New York) County. 828 Lease. Office. Rules a^td Regulations of the Exchange Building. 1. The sidewalk, entry passages, elevators aiid stairways shall not be obstnicted by either of the tenants, or used by them for any other purpose than for ingress and egress from and to their re- spettive' offices or places of business. 2. The floors, skylights and windows that reflect or admit light into passageways or into any place in said building shall not be covered or obstructed by either of the tenants. The water closets and other water apparatus shall not be used for any purposes other than thoee for which they were constructed, and no sweepings,, rubbish, rags, ashes or other substances shall be thrown therein. Any damage resulting to such apparatus from misuse shall be borne by the tenant who shall cause it. 3. No sign, advertisement or notice shall be inscribed, painted or affixed on any part of the outside or inside of said building except of such color, size and style, and in such places upon or in .oaid building, as shall be first designated by said lessor and in- dorsed hereon. Interior signs on glass doors will be painted for the tenants by the lessor, the cost of the painting being paid by the tenants. Directory tablets, in conspicuous places on each story, with names of the tenants, will be provided by the lessor, to be corrected annually. Changes, alterations or additions to lettering, both upon tlie directories as well as upon tlie glass doors, when required, will be made for tenants or sub-tenants by the lessor, the cost of both being paid by the tenants or sub-tenants. 4. ISTo tenant shall do, or permit anything to be done, in said premises, or bring or keep anything therein, which will in any way increase the rate of fire insurance on said building, or on property kept therein, or obstruct or interfere with the rights of other tenants, or in any other way injure or annoy them, or con- flict with the laws relating to fires, or with the regulations of the fire department, or with any insurance policy upon said building or any part thereof, or conflict with any of the rules and ordinances of the board of health. 5. The lessor shall in all cases retain the power to prescribe the weight and proper position of iron safes, and all damages done to the building, or any part thereof, by taking in or putting out a safe, or during the time it is in or on the premises, shall be made good and paid by the tenant who shall cause it. 6. Each tenant shall keep the premises leased by him in a good Lease. 829 Office. state of preservation and cleanliness, and shall not suffer any accumulation of useless property nor rubbish therein, and for such purpose shall, during the continuance of this lease employ the janitor of the lessor to take charge of and clean the said leased premises. 7. No tenant shall employ any person or persons other than the janitor of the lessor, for the purpose of such cleaning or of taking charge of said premises, lighting fires, or storing or moving coal, wood or ashes ; it being understood and agreed that the lessor shall be in no wise responsible to any tenant for any loss of property from leased premises, however occurring, or any damage done to the furniture or other effects of any tenant by the janitor or any of his employees, or by any other person or persons whatsoever. 8. The lessor shall have the right, by its oificers or agent, to enter any premises at reasonable hours in the day to examine the same, or to make such repairs and alterations as it shall deem necessary for the safety and preservation of the said building, and also to exhibit the said premises to be let, and to put on them the usual notice " To be Let," which said notice shall not be removed by any tenant during the three months previous to the expiration •of the lease of the premises. 9. Tenants, their clerks or servants, shall not make nor pei-mit any improper noises in the building, smoke tobacco in the eleva- tors nor interfere in any way with other tenants nor those having business with them. 10. It is stipulated and agreed that the said lessor may make ■such use of the grand entrance hall, and the tributory entrance halls, after six o'clock P. M., as it may deem for the best interests of the society and the building, provided always that some method of ingress and egress be arranged for the tenants. 11. Nothing shall be thrown by the tenants, their clerks or servants, out of the windows or doors or dovsm the passages or skylights of the building. 12. JSTo animals shall be kept in or about the premises. 13. The lessor reserves the right to make such other and further rules and regulations as in its judgment may from time to time be needful for the safety, care and cleanliness of the premises, and for the preservation of good order therein. 14. In order to protect the property of tenants of the building, and to prevent improper persons from having access thereto after business hours, said building will be closed daily at seven o'clock 830 Lease, Place Of Business. P. M.., after whidi hour no person will be allowed to enter or leave the same unless provided with a pass issued by the lessor, and any .person found in the building after that hour vdthout such pass will be subject to the surveillance of the night watchman and police force employed by the lessor to take charge of the building. On written application by the parties executing this lease passes will be issued enabling them to enter or depart from the building after said hour upon presenting the same to the night watchman. This regulation will be strictly enforced in the interest of the tenants. FORM No. 448. Lease — Place of Business. THIS AGREEMENT, between (/. Manning & Son,) as land- lord, and (Terese V. Koster,) as tenant, witnesseth : That the said landlord does let unto the said tenant, and the said tenant does hire from the said landlord, the (first floor over a store) of the building now known as (number 54 West Twenty-fourth Street,) in the (Borough of Manhattan, City of New York,) for a term of (three years,) to commence on the (first) day of (October, 1901,) and to end on the (first) day of (October, 1904, at 12 o'clock noon, at the yearly rental of (twelve hundred) dollars, rent to commence (November 1st,) to be paid in (equal monthly payments in advance on the first day of each and every month during the term,) upon the conditions and cove- nants following, which are mutually agTeed to: 1st. That the tenant will pay the rent as aforesaid, as the same shall fall due. 2nd. That the tenant will keep said premises in a good state of repair at her own cost and expense, including all repairs re- quired to the plumbing work, Groton water and gas pipes, and fixtures belonging thereto, and at the end or other espiration of the term will deliver up the demised premises in good order and con- dition, damages by the elements excepted. All improvements made by the tenant are to belong to the landlord and be surren- dered with the premises at the termination of the lease. 3rd. That the tenant vsdll not, without the landlord's consent in writing, assign this agreement, nor underlet the premises, nor any Lease. 831' Place Of Business. part thereof, nor make any alterations in the building or premises, nor occupy the same for any other purpose than (manufacturing corsets,) nor occupy nor permit the same to be occupied for any business or purpose deemed extra hazardous, on account of fire, under the penalty of forfeiture and damages, and will promptly comply with and execute all lawful orders and regulations of the board of health, police department and city corporation, relating to said premises, under the like penalty and damages. 4th. That the tenant will, in case of fire, give immediate notice thereof to the landlord, who shall thereupon cause the damage to be forthwith repaired, unless the premises be so damaged that the landlord shall decide to rebuild, in which case, but not other- wise, the term shall cease, and the accrued rent be paid up to the time of the fire. If the building, or any part of it, is so far in- jured by fire as to be rendered untenantable, but is, nevertheless, repaired by the landlord, then an abatement will.be made from the rent, corresponding with the time during which, and the ex- tent to which, the same may have been untenantable. 5th. That in case of default in any of the covenants or in case the whole, or any part, of said premises shall become vacant, the landlord may resume possession of the premises, either by force or otherwise, without being liable to any prosecution therefor, and relet the same during the remainder of the term, at the best rent that he can obtain for account of the tenant, who will make good any deficiency. 6th. That the landlord shall have liberty, three months prior to the expiration of the term hereby granted, to put upon some con- spicuous part of the exterior of said premises, a notice " For Sale " or " To Let," and applicants shall be admitted at reason- able hours of the day to view them until rented. And the land- lords, or their agents, shall also be permitted, at any time during the term, to visit and examine the premises at any reasonable hour of the day. 7th. That the tenant shall not place any sign, either upon the inside or outside of said building, except with the written consent of the landlord. 8th. That the landlord hereby gives the tenant the privilege of placing one show case, to stand on the right in front of the entrance to said building, the same show case not to be larger than (eighteen inches wide, thirty inches long, and not over five feet in height.) 832 Lease. Place Of Business. IJSr WITNESS WHEREOF, the parties to this agreement have hereunto- interchangeably set their hands and seals, this {first) day of {October, 1901.) (TEBE8E V. K08TEB,) [l. s.J (/. MANNING & SON.) [l. s.] By {Walter Manning.) Sealed and delivered in the presence of {WEBSTER B. BUBTON.) (Acknowledgments.) FOEM No. 449. lease — Place of Business. THIS AGREiEMEl^T, made this {first) day of {May, 1902,) between {The James Bealty Corporation,) of {the City, County and State of New Yorh, a corporation created under the laws of the State of New Yorh), hereinafter described as lessor, and {the National Bank, of New York, a corporation created under the laws of the United States of America), doing business in {the City of New York,) hereinafter described as tenant. WITNESSETH, That the said lessor does hereby lease unto the said tenant, and the said tenant does hereby hire and take from the said lessor {all that part of the ground floor of the premises known as 80 Broadway, in the Borough of Manhattan and City of New York,) bounded and described as follows: (Description.) Reserving and excepting therefrom all the elevator shaft and stairway &nd also all that part of the basement of said premises bounded as follows : (Description.) The said tenant has the right of entrance with other tenants in the building through the entrance hall in {Broadway at the ex- treme northerly side) of said building, for the term of {five) (5) years to commence on the {first) day of {May, 1902,) and ending on the {first) day of {May, 1907,) to be used and occupied for {a hank) and for no other purposes. Lease. 833 Place Of Business. The above letting is upon the following conditions, all and every one of which the said tenant covenants and agrees with the said lessor, its successors and assigns to keep and perform: 1st. To pay the yearly rent, or sum of (nine thousand) dollars in (equal monthly payments in advance,) on the (first) day of (each and every month) during said term. 2d. Upon any determination of this lease to quit and surrender the premises in as good order and condition as at the beginning of the term, reasonable wear and damage by the elements excepted, and shall not make any alterations, additions nor improvements in said premises without the written consent of said lessor, and all alterations, additions or improvements which may be made by either of the parties hereto upon the premises shall be the property of the lessor, and shall remain upon and be surrendered vpith the premises as a part thereof upon any determination of this lease without disturbance, molestation or injury. 3d. To pay when assessed and due its proportion of all Croton water rates taxed or charged according to law on said building during the term of this lease, and if not so paid the same shall -be added to the rent then due, or to become due. 4th. !N'ot to cut, drill into nor otherwise disfigure, nor permit the disfigurement of the iron, marble, stone or brickwork of the building; nor obstruct nor permit obstruction of any lights, nor skylights, nor injure nor deface the premises, nor use nor suffer to be used, under the penalty of forfeiture and damage, the whole or any part thereof for any purpose more injurious than that above expressed, and said premises or any part thereof shall not be as- signed, let nor underlet, nor used nor permitted to be used for any purpose other than above mentioned, without the written con- sent of the said lessor or of its legal representatives, first indorsed hereon, and if so assigned, let or underlet, used or permitted to be used, without such virritten consent, the said lessor may re-enter said premises, either by force or otherwise, VTithout being liable to prosecution or any claim, and relet the said premises, this lease by such unauthorized act becoming void if the said lessor shall so determine to elect, and in the event of such subletting never- theless, such tenant shall be liable for the rents and for the per- formance of the other covenants and conditions of this lease, and that the granting, giving or waiving of any one or more of such consents shall not render unnecessary any subsequent consent nor consents. 53 834 Lease. Place Of Business. 5th. Not to use the premises nor any part thereof, nor permit or suffer their use for any business of such a character as to in- crease the rate of insurance upon said building. The said tenant further agrees to pay all charges assessed for the automatic fire alarm placed in the said demised premises. 6th. To make at the tenant's own cost and expense, all such repairs as shall be necessary to preserve the said premises in good order and condition, and that all such repairs shall be fully equal to the original in class and quality; it being understood that the said lessor shall keep the roof and skylights in order, but shall not be made liable to the tenant for any damage caused by the leakage of the roof, plumbing nor steam heating unless the lessor shall reglect to repair the same within a reasonable time after a written notice of such leakage shall be delivered to the lessor from the tenant. It is hereby further covenanted and agreed that all workmen employed in making repairs in and about said premises, whether employed by the lessor or the tenant, shall be regarded as the Hgents of the tenant. Tth. To permit the lessor or its agents or servants to enter the isaid premises, or any part thereof, for the purpose of inspection and repair, and to show them to persons wishing to hire or pur- chase; and during six (6) months next preceding the expiration of the term to permit the usual notice of " To Let " (and will, at any time, permit the notice of " For Sale ") to be placed on the walls or doors of said building and remain there without hindrance or molestation. 8. The said lessor shall, at all times, have the right to prescribe the form, style, size and location of any and all signs and in- scriptions to be placed on any portion of the herein mentioned premises or building, and it is hereby covenanted and agreed that no such signs and inscriptions shall be placed upon the building without the approval of the lessor, and that if any such signs and inscriptions shall be placed upon said buildings, without the approval of the lessor, they may be removed by the lessor or its representatives at the expense of the tenant. 9th. The said tenant shall promptly comply with all rules, orders, ordinances and regulations of the City and State govern- ments, and all other authorities, of any and all their various de- partments and bureaus applicable to said premises during said term ; and shall also promptly comply with and execute all rules, Lease. 835 Place Of Business. orders, ordinances and regulations of the ITew York Board of Fire Underwriters at the tenant's own cost and expense, and keep the premises free from rubbish, and any waste shall be placed in metal-lined bins. 10th. In the event that it shall be necessary or convenient at any time to stop the operation of the elevator or elevators, or any of them, or the heating or the electric lighting apparatus for the improving, repairing or changing of such elevator or elevators, heating or electric lighting apparatus, boilers, machinery, or any- thing appertaining thereto, or because of accident, the lessor shall be at liberty to stop the operation of sudi elevator or elevators, heating or lighting apparatus, or appartenances, for such reason- able time as shall be necessary for the purposes above stated. 11th. In the event that the said rent be not paid at the times and in the manner above provided, or that there shall be default in any of the covenants and conditions herein contained, this lease and the estate hereby demised shall terminate, and the lessor shall have the right to enter said premises either by force, sum- mary proceedings or otherwise, and dispossess therefrom .the tenant and other occupants thereof, and their effects, without being liable to any prosecution therefor, and in case of such re- moval, dispossession and re-entry the said lessor shall with due diligence let the premises for the remainder of the term, either ^'n his own name or as the agent of the tenant, who shall pay any deficiency which the lessor shall suffer between the rents hereby reserved and those received by the lessor during the residue of the time remaining from the re-entry, and the said tenant shall be liable for the performance of the covenants and conditions of the said lease during the residue of the term remaining after the re-entry. 12th. If the premises hereby leased shall be injured by fire (.r otherwise, but not rendered untenantable, the same shall be repaired with all proper speed, at the expense of the lessor; but if the damage shall be so extensive as to render the premises un- tenantable, the rent shall be proportionately paid up to the time of such damage, and shall from thenceforth cease until such time as the same shall be put in good repair ; but ,in case of such destruc- tion of the building by fire or otherwise as to render it necessary to rebuild the same, and upon the payment of the proportional rent up to the time of such destruction, then and from thence- forth this lease shall cease and come to an end. 836 Lease. Place Of Business. 13th. And said lessor hereby covenants that the said tenant, upon paying the yearly rent and performing the covenants afore- said, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid. And it is further understood and agreed that the covenants and agreements contained in the vyithin lease are binding on and for the benefit of the parties hereto and their heirs, successors, legal representatives and assigns; And it is further agreed that no waiver of a breach of any of the conditions or covenants herein contained shall be construed as a waiver of any subsequent breach of such condition or covenant. m WITNESS WHEREOF, the lessor has caused its corporate seal to be hereunto affixed, and the same to be signed by its treasurer, and the said tenant has caused its corporate seal to be affixed the day and year first above written. (THE JAMES REALTY CORPORATION,) By {Arthur Davison,) (Treas.) } The James Realty Corporation Seal. {THE NATIONAL BANK OF THE CITY OF NEW YORK,) (Seal.) By (C. Van Orden,) (President.) Attest: (William Hart,) (Cashier.) Signed, sealed and delivered ~1 in the presence of J (EMMET O'NEILL.) '|ss. STATE OF NEW YORK County of (New York,) On this (19th) day of (June,) in the year (1902,)' before me personally appeared (William Hart, Cashier) of the (National Bank of New York,) with whom I am personally acquainted, who being by me duly sworn, said that he resided in (the City of New York;) that he was the (Cashier) of the (National Bank of New York;) that he knew the corporate seal of the said Bank ; that the Lease. 837 Place Of Business. seal affixed to the foregoing instrument was such corporate seal; that it was affixed by order of the board of directors of the said Bank, and that he signed his name thereto by the like order as (Cashier) of said Bank. And the said (William Hart) further said that he was acquainted with (Cornelius Van Orden) and knew him to be the (President of) the said (Bankj) that the sig- nature of the said (Cornelius Van Orden) subscribed to the said instrument was in the genuine handwriting of the said (Corne- lius Van Orden) and was thereto subscribed by the like order of the said board of directors, and in the presence of him, the said (William Hart.) (WILLIAM HABT.) Sworn to before me, this (19^^) 1 day of (June, 1902.) J (FRANK OTT,) ( Seal. ) ISTotary Public ( 42 ) , (New YorTc) Co. (Similar acknowledgment by The James Realty Corporation.) FORM No. 450. Lease of Place of Business. THIS AGEEEMEISTT, made this (18^^) day of (March,) one thousand nine hundred and (seven,) between (Charles F. Bemis,) . as landlord and (Arnold Benedict) as tenant, WITISTESSETH, that the said landlord does hereby lease unto the said tenant, and the said tenant does hereby hire from the said landlord, the following described premises; (situate, lying and being in the Borough of Manhattan, City, County and State of New Yorh, beginning at a point distant one hundred feet from the corner formed by the intersection of the northerly side of B8th street ivith the westerly side of 6th avenue, and running thence (1) at right angles to Gth avenue, parallel with 38th street 100 feet, thence (2) at right angles to the first course and parallel to Gth avenue 25 feet, thence (3) at right angles to the second course and parallel to B8th street,- 100 feet, thence (4) along Gth avenue 25 feet to the point or place of beginning) to be used and occupied bv the said tenant as a (clothing and men's furnishing) store, and 838 Lease, Place Of iiusiness. for no other purpose, for the term of (three) years to commence on the (first) day of (May,) nineteen hundred and (seven,) (1907,) and to end on the (thirtieth) (30th) day of (April,) nineteen hundred and ten, (1910,) at the yearly rent of (twelve thousand) ($12,000) dollars, payable in equal monthly payments in advance on the first day of each and every month during said term. THE ABO'VE LETTIWG is upon the following conditions, all and every one of which the tenant covenants and agrees with said landlord to keep and perform : 1st. The tenant shall pay the rent as aforesaid as the same shall fall due. 2d. The tenant shall take good care of the premises hereby leased, and shall, at his own cost and expense, make all repairs of whatever nature necessary to keep the premises in good condition, except such as may be necessitated by fire ; and at the end or other expiration of the term of this lease shall deliver up said premises in good order and condition, damage by the elements excepted. 3d. The tenant shall promptly execute and comply with all laws, rules, orders, ordinances and regulations of the State and city government, and of any and all its departments and bureaus, or of any other competent authority applicable to said premises, for the correction, prevention and abatement of nuisances or other grievances, or concerning any other matter in, upon or connected with said premises during said term; and shall also promptly comply with and execute all rules, orders and regulations of the IN'ew York Board of Eire Underwriters for prevention of fires at his own cost and expense. If the tenant shall fail to comply with any of the foregoing requirements, the landlord may comply with the same for account of the tenant, and add the cost of so comply- ing therewith to the rent next to become due under this lease and such cost shall become a part of said rent, and upon the failure of the tenant to pay the same, the landlord may elect to terminate this lease and the term hereby granted shall thereupon cease. 4th. The tenant shall not assign this agreement, or imderlet or underlease the premises, or any part thereof, without the landlord's consent in writing; or occupy, or permit or suffer the same to be occupied for any business or purpose other than that above specified or for any business or purpose deemed disreputable, or extra hazardous on account of fire, under the penalty of damages and forfeiture of this lease, and the stipulations in this clause con- tained shall be deemed a condition, or if said property be trans- ferred conditional limitations of this lease. Lease. 839 Place Of Business. 5th. If, during the term of this lease, the demised premises are destroyed by fire or the elements, or partially destroyed so as to render said premises wholly unfit for occupancy, or if they shall be so badly injured that they cannot be repaired with reasonable diligence, within four months from the happening of such injury, then this lease shall cease and become null and void from the date of such damage or destruction, and the tenant shall immediately surrender the premises and all interest therein to the landlord, and shall pay rent only to the time of such surrender ; and in case of destruction or partial destruction as above mentioned, the land- lord may resume possession of the premises discharged of this lease, and may remove all parties therefrom ; and if the premises shall be repairable within four months as aforesaid, then the land- lord shall repair the same with all reasonable speed, and the rent shall cease until such repairs shall be completed; provided, how- ever, that in case any' portion of the premises sh-all, during the period of such repairs, be fit for occupancy by the tenant for the purpose for which these premises are demised, then the rent shall be equitably apportioned and paid for the part so fit for occupancy. 6th. The tenant shall allow the landlord, and his agents, to enter upon the premises, or any part thereof, at all reasonable hours for the purpose of examining the same, or making such repairs or alterations therein as the landlord may see fit voluntarily to make for the safety or preservation thereof. 7th. The tenant shall allow the landlord, and his agents, to show the premises to persons wishing to hire or purchase the same, and during the three months prior to the expiration of the term hereby granted, to place in a conspicuous part of the exterior of the premises, notices offering the premises " To Let " or " For Sale," and will permit the same to remain thereon without hindrance or molestation. 8th. The tenant shall neither encumber nor obstruct the side- walk, gutters, hallways or stairways, nor allow the same to be obstructed or encumbered in any manner. 9th. The tenant shall not place any signs of any kind whatso- ever, at, in or about the entrance or at any other part of the premises, except at such place or places as may be indicated by the said landlord and consented to by him in writing. 10th. The landlord shall not be liable for any damage or injury by water, steam, gas or electricity which may be sustained by the said tenant or other persons, or for any other damage or injury 840 Lease, Place Of Business. resulting from the carelessness, negligence, or improper conduct on the part of any other tenant, or of any agent or employee, by whomsoever employed, or by reason of the breakage, leakage, or obstruction of the Croton water, gas or soil pipes, or of any other leakage in or about the said building. 11th. The tenant shall pay, when due, all charges regular and extraordinary that may be made for the rent or use of Croton water in the demised premises, and the cost of meters and the setting of same, and if not so paid, the same shall be added to the month's rent next to become due and be collectible therewith. 12th. No alterations, additions or improvements shall be made in or to the premises without the consent of the landlord in writing, and all additions and improvements made by the tenant shall belong to the landlord. 13th. In case of default in any of the covenants or conditions herein contained the landlord may resume possession of the prem- ises either by force or otherwise. In case of such re-possession, or if the premises become vacant, or the tenant be dispossessed by sum- mary proceedings, the landlord may re-let the premises for the re- mainder of the term for account of the tenant who agrees to make good any deficiency, including the expenses of the landlord in re- entering. The tenant expressly waives all rights to quit possession or terminate this lease under the statute (section 197, Eeal Prop- erty Law) ; and the tenant does further waive for himself and all persons claiming under him all right to redeem the premises (under sections 2256 and 2257, C. C. P. or otherwise) after a war- rant to dispossess shall have been issued or after a judgment in an action of ejectment shall have been made or entered. 14th. The tenant hereby subordinates this lease to any mort- gages which the landlord may from time to time place upon the premises,, provided that the amount of such mortgages shall not exceed in the aggregate seventy-five per cent, of the actual value of the premises at the time Avhen said mortgages are placed thereon, or, provided that, if the same be in substitution of the present mortgages on the premises and such present mortgages exceed said percentage, they do not exceed the amount of the present incum- brances, and such mortgages whenever recorded shall be superior and prior in lien to this lease, and the tenant agrees that he will execute any instrument which may be deemed necessary or de- sirable to further effect the subordination of this lease to any such mortgages and upon the tenant's refusal, after reasonable notice, Lease. 841 Guaranty Agreement. to execute any such instruments the landlord may cancel this lease and the term hereby granted shall thereupon cease. 15th. The failure of the landlord to insist upon strict per- formance of any of the covenants or conditions of this lease or to exercise any option herein conferred in any one or more instances, shall not be construed as a waiver or relinquishment for the future of any such covenaiits, conditions or options, but the same shall be and remain in full force and effect. IN CO:NrSIDEEATION AND UPON COM)ITION that the aforesaid rents, covenants and agreements be all and severally paid and performed, without evasion or delay, the landlord cove- nants that the tenant may at all times during said term peaceably have and enjoy the demised premises. In Witness Whebeof, the parties hereto have hereunto set their hands and seals, the dav and year first above written. (CHARLES T. BEMIS.) [l. s.J {ARNOLD BENEDICT.) [l. s.] Sealed and delivered in the presence of {THOMAS ATKINS.) (Acknowledgment. ) IN CONSID'EEATIO'JSr of the letting of the premises within mentioned by the landlord within described, and of the sum of one dollar to me in hand paid by the said landlord, the re- ceipt of which is hereby acknowledged I do hereby become surety for the punctual payment of all the rent and the performance of all the covenants in the within written agreement mentioned to be paid and performed by {Arnold Benedict,) the tenant as herein specified; and if any default shall at any time be made herein I do hereby promise and agree to pay unto the said land- lord in said agreement named the said rent, or any arrears thereof that may be due, and to fully satisfy the conditions of said agreement and to pay all damages that may accrue by reason of the non-fulfillment thereof, without requiring notice of default or proof of demand being made. Griven under my hand and seal the (18i7i) day of {March, 190Y.) {JOHN D. CORNROCK.) (seal.) In presence of {THOMAS ATKINS.) (Aclmowledgments.) 842 Lease. Guaranty Agreement. THE TEN'ANT named in the foregoing lease has deposited with the landlord therein named, simultaneously with the exe- cution of said lease, the sum of two thousand dollars as security for the rent therein reserved and for the faithful performance by the tenant of each and every of the covenants, conditions and agreements in said lease contained during the entire term therein demised. A'NT) IT IS AGEEED that the termination of said lease or of said term therein demised by act of law through summary pro- ceedings or through ejectment or by re-entry or by taking posses- sion of the premises by the landlord or by the surrender thereof by the tenant, shall not affect this security and shall not affect the covenants in said lease contained to pay any deficiency in the rent for the remainder of the term, upon the reletting thereof by the landlord, or upon his failure or inability to let the same. IT IS FQETHER AGKEED that if at any time the sum' so deposited shall be decreased by the application by the land- lord of the whole or a portion of said sum deposited as security for the payment of any rent in arrear, or to the payment of any loss sustained by the landlord through the breach by the tenant of any of the covenants or conditions in said lease contained, that in that event the tenant will pay to the landlord a sum suffi- cient to restore said security to its original amount, and upon the failure of the tenant to do so within five days after notice in writing from the landlord, the aforesaid lease and the term therein granted and the renewals thereof, if any there be, shall forthwith end and determine and the landlord may take possession of the premises and terminate said lease through summary pro- ceedings or otherwise. The landlord agrees that at the end of the term in said lease granted, the said deposit will be returned to the tenant with interest thereon at the rate of 4 per cent, per annum, provided the tenant shall have complied in all respects with the covenants and conditions of the said lease and the terms hereof. In Witness Whekeop, the parties have hereunto set their hands and seals this 18^^ day of March, 1907. (CHARLES T. BEMI8.) [l. s.J (ARNOLD BENEDICT.) [u s.] In presence of (THOMAS ATKINS.) ( Acknowledgments. ) Lease. 843 Place Of Business. FORM No. 451. Lease of Place of Business. THIS AGEEEMENT made the (BOth) day of (March,) in the year one thousand nine hundred and (seven,) by and between (William Thompson Com- pany,) a corporation created by and existing under the laws of the ■State of (New York,) party of the first part, and (John John- son,) of the (Borough of Manhattan, City, County and State of New York,) party of the second part, WITNESSETH : That the party of the first part does hereby lease unto the party of the second part, and the party of the second 'part does hereby hire from the party of the first part, the following de- scribed premises : (ALL that certain lot, piece or parcel of land with the huildings and improvements thereon erected, situated, lying and being on the southerly side of Tenth Street, in the Borough of Manhat- tan, City, County and State of New York, distant one hundred (100) feet westwardly from the southwesterly corner of Tenth Avenue and said street; and thence running southwardly -parallel with Tenth Avenue, ninety-eight (98) feet, to the center line of the hlock between Ninth and Tenth Streets; thence westwardly along said center line twenty-seven (27) feet four (4) inches; thence northwardly, parallel with Tenth Avenue ninety-eight (98) feet to the northerly side of Tenth Street; and thence east- wardly along said street twenty-seven (27) feet to the place of beginning, — said premises being known as number 514 West Tenth Street,) for the term of (seven years) to commence on the (first) day of (May,) one thousand nine hundred and (seven,) and to end on the (first) day of (May,) one thousand nine hun- dred and (fourteen;) at the yearly rent or sum, (for the first two years and eight months of said term, of forty thousand dollars, ($40,000) and for the remainder) of said term, (commencing on the first day of May, one thousand nine hundred and ten, the yearly rental or sum of fifty thousand dollars, ($50,000) to be paid in (equal monthly) payments in advance on the (first) day of (each and every) month during said term. The above letting is upon the following conditions, all and every one of which the said party of the second part COVE- 844 Lease. Place Of Business. ISTAISTTS and AGEEES with the party of the first part to keep and perform : 1. The party of the second part shall pay the specified rent at the times and in the manner provided. 2. The party of the second part, on or before the {first day of May J one thousand nine hundred and seven,) shall deposit with the party of the first part the sum of (seven thousand dollars) ($7,000), or at his option, in lieu thereof, securities of a character acceptable to the party of the first part of the market value of (seven thousand dollars) ($7,000) ; said sum or said securities to be held and retained by the party of the first part as and for security for the payment of the rent agreed to be paid hereunder and for the reimbursement of the party of the fijst part for any expense or damage incurred or suffered because of the failure of the party of the second part to keep and perform each and every of the covenants, conditions and agreements herein agreed by him to be kept and performed during the entire term hereby leased ; and the said party of the first part, upon the determination of this lease, and when the said party of the second part, shall have in all respects complied with the covenants, conditions and agreements herein contained, if cash shall have been deposited, will repay to the said party of the second part, the said sum of (seven thousand dollars) ($7,000,) together with interest thereon, at the rate of (four) (4) per cent, per annum, or, if securities shall have been deposited, deliver up the said securities so deposited, with the accretions; if, in accordance herewith, securities are deposited in lieu of cash, then it is also agreed that, if the market value of the aggregate of such securities shall at any time be less than (seven thousand dollars) ($7,000,) then and in that ©vent the party of the second part will immediately, upon written demand, deposit additional securities acceptable to the party of the first part, or cash, so that the principal fund of such security shall be restored to its original amount ; and upon failure so to do, the party of the first part may, at its option, sell such securities at public or private sale, and the proceeds thereof shall be and remain as the security provided herein ; and if the proceeds of the sale of such securities amount to less than (seven thousand dollars) ($7,000,) or if the security deposited in accordance herewith shall be decreased by the application of the same, or any portion thereof, for the pay- ment of any rent in arrear or to the payment of any loss sustained through the breach of any of the covenants and conditions herein Lease. 845 Place Of Business. contained, then and in either of said events, the party of the second part will, within {five days) after written demand, deposit with the party of the first part a sum sufficient to restore the principal fund of said security to its original amount; if the party of the second part shall deposit securities as herein provided, he may at any time substitute in lieu thereof the sum of {seven thousand dollars) ($7,000) plus interest on said amount at and after the rate of {four) per centum per annum from the {first) day of {September,) one thousand nine hundred and {seven) to the date of such substitution, and in that event the party of the first part shall deliver to the party of the second part the securities so deposited, if same have not been sold as herein provided, with the accretions, and thereafter the sum so deposited shall consti- tute the security herein provided. 3. The said party of the second part shall punctually pay and discharge, when due, all rents or rates or meter charges for Croton or other city water which during the term hereby granted may be assigned or imposed upon or grow out and payable out of or for the premises known as number (514 West Tenth) street. 4. The said party of the second part shall take good care of the premises hereby leased and, at his own cost and expense, make all repairs of whatever nature and description, both inside and out- side, which are or may become necessary or proper to ndake and keep the said premises in perfect condition; and the party of the first part, its agents and employees, may at all times enter to view said premises and to make any repairs which it or they may find necessary to make, to protect its interest in said estate and the cost of making such repairs shall be paid by the party of the second part upon demand. 5. The said party of the second part shall not assign this lease, nor let, underlet, nor sublet, the premises or any part thereof, without the written consent of the party of the first part; nor occupy nor use nor permit the same to be occupied or used for any business or purpose deemed extra hazardous on account of fire, under the penalty of forfeiture and damages. 6. The said party of the second part shall, at his own cost and expense, promptly observe and keep all laws, rules, orders, ordi- nances and regulations of the State and City Governments and any and all their departments and bureaus, and those of any other competent authority, applicable to said premises, as also all re- pairs and alterations which may be made thereon, as herein pro- 846 Lease. Place Of Business. vided; and also, at his own cost and expense, shall promptly comply with all laws, rules, orders, regulations and requirements of the Board of Fire Underwriters or of any similarly constituted body. Upon failure so to comply with any of the foregoing re- quirements, the party of the first part may comply with the same for account of the party of the second part, and the cost of such compliance shall be paid to the party of the first part upon demand. 7. The said party of the second part shall allow the said party of the first part or its agents to show said premises to persons for purpose of sale and hire ; and on and after the first day of August next preceding the expiration of the term hereby granted, to place in a conspicuous part of the exterior of the premises notices offering the premises " To Let " or " For Sale," and will permit the same to remain thereon without hindrance or molestation. 8. The management and control of said premises, except as herein restricted, shall be exclusively in the hands of the party of the second part during said term and he shall keep the sidewalks abutting on the said premises free from all snow and ice and other obstructions. 9. The party of the first part shall not in any event be liable for any injury or damage to any property or to any person happen- ing on or about said premises, no matter how occurring, unless due to its own negligence. 10. The party of the second part shall and will save and keep the party of the first part harmless and indemnified from all penalties, claims or demands that may be made against it by reason of any defect in the premises leased or the appurtenances thereto; or of any neglect or default in the keeping or maintain- ing of the same as herein provided ; or of any failure by the party of the second part to keep, perform and observe each and every of the covenants, conditions and agreements herein contained on his part to be kept, performed and observed. 11. If the party of the second part shall fail, neglect, or refuse to pay any charge imposed or expense incurred or other sum re- quired by him to be expended, paid or deposited, as the case may be, under the terms of this lease, then the amount of such charge or expense or sum required to be expended, paid or deposited, as the case may be, shall be added to and form part of the rent to become due under the terms of this lease on the first day of the month next ensuing the time when such sum shall' have been assessed or imposed or required to be paid or deposited or de- Lease. 847 Place Of Business. manded; and the non-payment thereof shall have the same effect, and such proceedings may be taken by the party of the first part in reference thereto, as is herein provided in case of default in payment of the rent reserved by this lease. 12. In case the premises leased herein shall be partially dam- aged by fire or the elements, the same shall be repaired as speedily as possible by the party of the first part. In case the premises shall be totally destroyed by fire or the ele- ments, the party of the second part may, at his election, require that the said premises be rebuilt by the party of the first part or surrender the vs^hole of the premises hereby leased. If he shall elect to require the said premises to be rebuilt, then and in that event he shall deliver to the party of the first part within twenty days after the destruction of such bx^ilding a notice in writing to that effect, whereupon the party of the first part shall rebuild said premises ; and from and after the date of said destruction the yearly rent herein reserved and agreed to be paid shall cease until such time as the said premises are rebiiilt ; and when the said premises are rebuilt, the full yearly rent herein reserved and agreed to be paid shall recommence. The new building so erected shall contain at least as many floors as are in the present building, to wit: (basement, store floor and four upper floors;) and in no event shall the party of the second part under this lease be entitled to or occupy more floors than are in the present building. In the event that the party of the second part shall not, within the time and in the method herein prescribed require the party of the first part to rebuild the said premises then this lease and the term herein granted shall determine and end and the party of the second part shall immediately surrender the whole of said premises and all interest therein to the party of the first part and shall pay rent within this term only to the date of such surrender; and the party of the first part may re-enter and repossess the whole of said premises, discharge this lease and remove all parties therefrom. 13. The party of the second part, at the determination of the term hereby granted either by lapse of time, forfeiture, or as herein provided, or otherwise, will quit and surrender the premises leased to the party of the first part, in perfect condition, reason- able use and wear thereof being allowed for ; and all improvements and additions, alterations and repairs to or upon said premises, shall remain and be surrendered with the premises leased at the 848 Lease. Place Of Business. determination of this lease without disturbance, molestation or injury. 14. In case the party of the second part shall default in the payment of the rent or any part thereof, or of any other sum of money to be by him paid, under the terms of this lease, or in the performance and observance of any of the covenants and conditions herein contained or if the said premises or any part thereof shall become vacant or are abandoned during the said term, the party of the first part shall and may have possession of the same by sum- mary proceedings or by any other lawful method; and shall and may re-enter the same and use such force for that purpose as it shall think fit without being liable for any prosecution therefor; and thereupon the party of the first part, in its own name, may re-let the said premises as the agent of the party of the second part, applying the avails thereof first to the payment of the expense incurred or paid in recovering possession, and then to the payment of the rent, and any other sum of money unpaid and required by this lease to be paid by the party of the second part. If the party of the first part shall recover or take possession of the said premises as aforesaid and shall be unable to re-let the same or obtain sufficient rent therefor to make up the amount of rent hereby reserved and also any sum of money required by the terms hereof to be paid by the party of the second part, the, party of the second part shall and will pay to the said party of the first part any and all loss or difference of rent for the residue of said term and any and all loss or deficiency of any other sum of money required by the terms hereof to be paid by him ; and the security provided herein shall be held for all the purposes herein men- tioned ; and the party of the second part expressly waives all right to quit possession or terminate this lease under the statute (section 197, Eeal Property Law)^ and also, for himself and all persons claiming under him, expressly waives all right to redeem the premises (under sections 2256 and 2257, Code of Civil Procedure, or otherwise) after a warrant to dispossess shall have been issued or after a judgment in an action of ejectment shall have been made and rendered. 15. The party of the second part, at his own cost and expense, may make alterations in and upon the premises leased ; before any alteration shall be made, the plans therefor shall be submitted to an architect designated by the party of the first part who shall determine if the proposed alterations are permanent improvements Lease. 849 Place Of Business. to the premises and shall fix the amount which, in his judgment, will be required to restore said premises if such alterations are made ; and the party of the second part, upon depositing with the party of the first part security for the faithful performance of the covenant to restore said premises to their original condition, in the amount fixed by said architect and in form acceptable to the party of the first part, and the payment of the architect's charges, may make such alterations, and the party of the second part shall pay any additional insurance premium required to be paid by the party of the first part because of such alterations and, upon the determination of this lease or the expiration of the term hereby demised, he will, at his own expense, restore the premises leased to the condition same were in before alteration. 16. The said party of the first part will keep the said premises warmed by a heating apparatus from the tenth day of October, in the year, to the tenth day of May, following, excepting on Sun- days and holidays, provided, however, that in the, event that it shall be necessary or convenient to stop the heating apparatus or any thing appertaining thereto for repairs or alterations or be- cause of accident, the party of the first part may stop the operation of such heating apparatus for such reasonable time as shall be necessary for the purpose above stated ; and the party of the second part covenants and agrees to permit free access to that part of the building wherein is contained the heating apparatus and other machinery, and that ashes may be removed from the boiler room of said building through the basement thereof to the street and by way of the freight elevator therein. lY. The party of the second part hereby subordinates this lease to any mortgages which the party of the first part may from time to time place upon the premises, provided that the amount of such mortgages shall not exceed in the aggregate seventy-five per cent, of the actual value of the premises at the time when said mort- gages are placed thereon and provided that if the same be in sub- stitution of the present mortgages on the premises and such present mortgages exceed said percentage, they do not exceed the amount of the present incumbrances, and such mortgages when- ever recorded shall be superior and prior in lien to this lease and the party of the second part agrees that he will execute any in- strument which may be deemed necessary or desirable to properly effect the subordination of this lease to any such mortgages and upon the refusal of the party of the second part after reasonable 54 850 Lease. Place Of Uusiness. notice to execute any such instruments the party of the first part may cancel this lease and the term hereby granted shall thereupon cease. 18. The failure of the party of the first part to insist upon strict performance of any of the covenants or conditions of this lease, or to exercise any option herein conferred in any one or more in- stances, shall not be construed as a waiver or relinquishment for the future of any covenants, conditions or options, but the same shall be and remain in full force and effect. 19. And the party of the first part, for itself, its successors and assigns, does covenant that the said party of the second part, his executors and administrators, upon paying the said yearly rent, and performing and observing the covenants, conditions and agree- ments on his part to be performed and observed, shall and may peaceably have, hold and enjoy the said premises for the term aforesaid. 20. And it is further understood and agreed that this agree- ment and lease and the covenants and agreements and conditions contained herein shall apply and inure to and are binding on the successors and assigns, and the legal representatives of the parties hereto, respectively. m WITKESS WHEKEOF the party of the first part has caused these presents to be executed by its president in duplicate of even date and tenor, and its corporate seal, duly attested by its secretary, to be afiixed hereto; and the party of the second part has hereunto set his hand and seal in duplicate of even date and tenor the day and year first above written. (THOMAS JAMES.) (As President of the [coeporate seal.] WILLIAM THOMPSON COMPANY. JOHN JOHNSON.) [l. s.] (Acknowledgment. ) MORTGAGES.* FORM No. 452. Mortgage (Mortgage Tax Law Clause). THIS INDENTURE, made the (5^;^) day of {July,) in the year nineteen hundred and {five,) between {Martin Sumner,) of {the Borough, of Manhattan, City of New York,) hereinafter de- scribed as part(2/) of the fii-st part, and {Norman M. Pullman,) of {the Borough of BrooUyn, City of New York,) hereinafter de- scribed as part (2/) of the second part. Whereas, the said part(2/) of the first part, by virtue of {a cer- tain hond or obligation, hearing even date herewith, is) justly in- debted to the said ■pa.Tt{y) of the second part, in the sum of {three thousand) dollars, lawful money of the United States, secured to be paid, on the {first) day of {July,) in the year nineteen hundred and {ten,) together with the interest thereon, at the time and in the manner expressed in said bond or obligation. It being thereby expressly agreed, that the whole of the said principal sum shall become due after default in the payment of interest, taxes or assessments as hereinafter provided. ISTow this indenture witnesseth, that the said part(2/) of the first part, for the better securing the payment of the said sum of money mentioned in the said bond or obligation with interest thereon, and also for and in consideration of one dollar paid by the said part(2/) of the second part, the receipt whereof is hereby ac- knowledged, doth hereby grant and release unto the said Tpa.rt{y) of the second part, and to {his heirs) and assigns, forever, all (Description.) Together with all fixtures and articles attached to, or used in connection with said premises, all of which are declared to be covered by this mortgage — together with the appurtenances, and all the estate and rights of the party of the first pxirt in and to said premises. To have and to hold the above granted premises unto the said part(2/) of the second part, {his heirs) and assigns forever. Provided always, that if the said part(y) of the first part, or the heirs, executors or administrators of the part(2/) of the first part, shall pay unto the said part(i/) of the second part, {Ms heirs, ad- * See Information To Obtain Before Drawing, page 9. Forms of Bond, page 76,5. -^ [851] 852 Mortgage. With Mortgage Tax Clause. ministrators) or assigns, the said sum of money mentioned in the said bond or obligation and the interest thereon, at the time and in the manner mentioned in the said bond or obligation, then these presents and the estate hereby granted, shall cease, determine and be void. And said part(2/) of the first part covenants with the part(2/) of the second part as follows : First. That said part(2/) of the first part will pay the indebted- ness, as hereinbefore provided, and if default be made in the pay- ment of any part thereof, the part (2/) of the second part shall have power to sell the premises herein described, according to law. Said premises may be sold in one parcel, any provision of law to the contrary notwithstanding. Second. That the part (j/) of the first part will keep the build- ings on the said premises insured against loss by fire for the benefit of the part (2/) of the second part. And should the part(y) of the second part by reason of such insurance against loss by fire, as aforesaid, receive any sum or sums of money, such amount may be retained and applied by said part(2/) of the second part toward payment of the sum hereby secured, or the same may be paid over either wholly or in part to the said part(2/) of the first part, (his heirs, administrators) or assigns, to enable said party of the first part to repair said buildings or to erect new buildings in their place, or for any other purpose or object satisfactory to the said part(ij/) of the second part, without affecting the lien of this mort- gage for the full amount secured thereby, before such damage by fire, or such payment over, took place. Third. And it is hereby expressly agreed that the whole of said principal sum shall become due at the option of the said part(j/) of the second part after default in payment of interest for thirty days, or after default in the payment of any tax or assessment for thirty days, or immediately upon the actual or threatened demoli- tion or removal of any building erected upon said premises. Fourth. That the holder of this mortgage, in any action to foreclose it, shall be entitled, without notice and without regard to the adequacy of any security for the debt, to the appointment of a receiver of the rents and profits of said premises ; and said rents and profits are hereby, in the event of any default or defaults in paying said principal or interest, assigned to the holder of this mortgage as further security for the payment of said indebtedness. Mortgage, 853 With Mortgage Tax Clause. Kfth. That until the amount hereby secured is paid, the part(2/) of the first part will pay all taxes, assessments and water rates which may be assessed or become a lien on said premises, and, in default thereof, the holder of this mortgage may pay the same, and the ■paTt(y) of the first part will repay the same with interest, and the same shall be a lien on said premises and secured by this mort- gage. Sixth. In the event of the passage after the date of this mort- gage of any law of the State of New York, deducting from the value of land for the purposes of taxation any lien thereon, or changing in any way the laws now in force for the taxation of mortgages or- debts secured by mortgage for State or local purposes, or the manner of the collection of any such taxes, so as to affect this mortgage, the holder of this mortgage, and of thei debt which it secures, shall have the right to give thirty days' written notice to the owner of said land requiring the payment of the mortgage debt, and it is hereby agreed that if such notice be given, the said debt shall become due, payable and collectible at the expiration of said thirty days. Seventh. That the mailing of a written notice and demand by depositing it in any post ofiice, station or letter box, inclosed in a post-paid envelope addressed to the owner of record of said mort- gaged premises and directed to said owner at the last address actually furnished to the holder of this mortgage, or, in default thereof, directed to said owner at said mortgaged premises, shall be sufficient notice and demand in any case arising under this instrument. Eighth. That the part(2/) of the first part will execute any fur- ther necessary assurance of the title to said premises, and will for- ever warrant said title. l^inth. The part(2/) of the first part, or any subsequent owner of the premises described herein shall, upon request, made either personally or by mail, certify, in writing, to the part (i/) of the second part or any proposed assignee of this mortgage, the amount of principal and interest that may be due on this mortgage, and upon the failure to furnish such certificate after the expiration of six days in case the request is made personally, or after the ex- piration of thirty days after the mailing of such request in case the request is made by mail, this mortgage shall become due at the option of the holder thereof. 854 MOETGAGE. With Mortgage Tax Clause. Tenth. If tie principal secured by this mortgage be not paid on its due date, then the principal sum shall not be payable by the part(g/) of the first part nor by any owner of the mortgaged prem- ises until the last day of the following month, and if not paid then said principal shall not be payable by the party of the first part nor by any owner of the mortgaged premises except upon the 30th day of June of any year thereafter ; but any holder of this mortgage may elect at any time after such default that the whole principal sum shall be due and payable immediately and thereupon the holder of this mortgage may enforce the same as if the time when payment could be made had not been postponed. IlSr WITNESS WHEREOF, the said partCy) of the first part has signed and sealed this instrument the day and year first above written. {MARTIN SUMNER.) [seal.] In the presence of ss. STATE OF NEW YORK, County of (New York,) On this (5th) day of (July,) in the year nineteen hundred and (five,) before me came (Martin Sumner,) to me known to be the individual described in, and who executed the foregoing instru- ment, and acknowledged that (he) executed the same. (OLIVER GIBBS,) Notary Public, (New Yorh) County. Mortgage. 855 With Second Mortgage Clause. FORM No. 453. Mortgage (where there is a prior mortgage). THIS INDEISTTUEE, made the (eleventh) day of (Decem- ler,) in the year of our Lord one thousand nine hundred and (twoj) between (William E. Dean, unmarried), part(2/) of the first part and (^Manhattan Mortgage Company,) part(2/) of the second part: the said part(2/) of the first part being hereinafter known and designated as the mortgagor, and the said part (2/) of the second part being hereinafter known and designated as the mortgagee. Whereas, the said part(2/) of the first part is justly indebted to the mortgagee in the sum of (nine thousand) ($9,000) dollars, lawful money of the United States of America, secured to be paid by (his) certain bond or obligation bearing even date herewith, in the penal sum of twice the amount of the said indebtedness, con- ditioned for the payment of the said amount of indebtedness, as aforesaid, to the mortgagee, or assigns, at any time prior to the date next hereinafter mentioned on giving thirty days' notice, and failing such payment, then on the (12th) day of (December,) which will be in the year one thousand nine hundred and (three,) and interest thereon to be computed from the (11th) day of (De- cember, 1903), at and after the rate of (five) (5)per centum per annum, and to be paid semi-annually on the (first) days of (June) and (December,) in every year until the said principal sum shall be wholly paid. It being thereby expressly agreed that the whole of the said principal sum shall become due after default in the payment of interest, taxes or assessments, as hereinafter provided. Now this indenture witnesseth, that the mortgagor, 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 the sum of one dollar, to the ■pa.rt(y) of the first part, in hand paid by the mortgagee, the re- ceipt whereof is hereby acknowledged, does hereby grant and re- lease unto the mortgagee, (its successors,) and assigns forever, all (Description.) Together with the appurtenances and all the estate and rights of the mortgagor in and to said premises and also all the rents and 856 Mortgage. With Second Mortgage Clause. profits which the part(2/) of the second part or (its successors,) legal representatives or assigns may take and receive at their option as hereinafter mentioned; to have and to hold the above-granted premises, and every part thereof with the appurtenances, unto the said mortgagee, (its successors) and assigns, forever. Provided always, that if the said mortgagor, (his) heirs, exec- utors, or administrators shall pay unto the said mortgagee, (its suc- cessors,) legal representatives, assigns, the said sum of money men- tioned in the condition of the said bond or obligation, and the in- terest thereon, at the time and in :he manner mentioned in the said condition, together with any tax, assessment or premium of insur- ance which shall have been paid by the part(2/) of the second part, then these presents and the estate hereby granted, shall cease, de- termine and be void. And the said mortgagor covenants with the mortgagee as fol- lows: First That the mortgagor will pay the indebtedness as herein- before provided and, if default be made in the payment of any part thereof, the mortgagee, (its successors,) legal representatives or assigns shall have power to sell the premises herein described ac- cording to law. Second. That the mortgagor will keep the buildings on the said premises insured against loss by fire for the benefit of the mort- gagee. And should the mortgagee, by reason of any such in- surance against loss by fire, as aforesaid, receive any sum or sums of money for any damage by fire to the said building or buildings, such amount may be retained and applied by said mortgagee toward payment of the amount hereby secured, or the same may be paid over either wholly or in part to the said mortgagor, (his) heirs or assigns, to enable said mortgagor to repair said buildings or to erect new buildings in their place, or for any other purpose or object satisfactory to the said mortgagee, without affecting the lien of this mortgage for the full amount secured thereby before such damage by fire, or such payment over, took place. Third. And it is hereby expressly agreed that the whole of said principal sum shall become due at the option of the said mort- gagee, (its successors,) legal representatives or assigns after default in the payment of any instalment of principal or of interest for thirty days, or after default in the payment of any instalment of principal, tax or assessment for ninety days after notice and de- mand. In ease of the actual or threatened demolition or removal MOBTGAGE. 857 With Second Mortgage Clause. of any building erected upon the said premises, or in case of a fire rendering the building on said premises untenantable, the ■whole of said principal sum shall become due and payable at the option of the said mortgagee. Fourtb. That the mortgagor will execute any further necessary assurance of the title to said premises and "will forever warrant said title. Fifth. That if default shall be made in the payment of the principal sum mentioned in the condition of the said bond, or of the interest which shall accrue thereon, or of any part of either, at the respective times therein specified for the payment thereof, the said mortgagee shall have the right forthwith, after any such default, to enter upon and take possession of the said mortgaged premises, and to let the said premises, and receive the rents, issues and profits thereof, and to apply the same, after payment of all necessary charges and expenses, on account of the amount hereby secured, and said rents and profits are, in the event of any such default, hereby assigned to the mortgagee. Sixth. That the mortgagee shall also be at liberty immediately after any such default, upon proceedings being commenced for the foreclosure of this mortgage, to apply for, and the mortgagee shall be entitled, as a matter of right, without consideration of the value of the mortgaged premises as security for the amounts due the mortgagee, or of the solvency of any person or persons liable for the payment of such amounts, and without notice to the mortgagor or any other person, to the appointment of a receiver of the rents and profits of the said premises. Seventh. And the said mortgagor does further covenant and agree, that in default of the payment of all taxes, charges and assessments which may be imposed by law upon the said mort- gaged premises, or any part thereof, that it shall and may bo lawful for the said mortgagee, without notice to or demand from the mortgagor, to pay the amount of any such tax, charge or assessment, vnth. any expenses attending the same, and any amount so paid the said mortgagor covenants and agrees to repay to the said mortgagee, with interest thereon, without notice or demand, and the same shall be a lien on the said premises, and be secured by the said bond and by these presents; and the whole amount hereby secured, if not then due, shall thereupon, if the said mort- gagee so elect, become due and payable forthwith. 858 MOKTGAGE. With Second Mortgage Clause. Eighth. That the provision for notice and demand contained herein shall be deemed fulfilled by written notice to and demand on one or more of the persons who s.hall hold the record title to the said premises at the time said notice is given, personally served or mailed to such person or persons through the United States post ofiice at his or their address to the mortgagee last known. I^finth. And the said mortgagor further covenants and agrees that upon default in the payment of the interest or principal, or any part thereof, of or upon this or any prior mortgage upon the premises hereby conveyed, or any part thereof, the part(y) of the second part, (its successors,) legal representatives or assigns, shall have the right lit its option to pay the said interest or principal, or any part thereof, and all expenses attached to such payment, and such amounts so paid, shall be a lien on the said premises, and be secured by the said bond and these presents ; and at the further op- tion of the part (2/) of the second part to declare the principal sum secured by this mortgage due and payable immediately upon such default, and with the same force and effect and with the same rights and remedies to the part(2/) of the second part as if the said principal sum secured by this bond and mortgage had become due and payable, according to the terms thereof, anything herein con- tained to the contrary notwithstanding. IN" WITNESS WHEREOF, the said mortgagor, has hereunto set (his hand) and (seal) the day and year first above written. (WILLIAM E. DEAN.) (seal). Signed, sealed and delivered in the presence of (MORTIMER KENNEDY.) STATE OF NEW YORK,\ County of (New York,) j^^' ' On this (eleventh) day of (Decemher, 1902,) before me per- sonally appeared (William E. Dean,) to me known, and known to me to be the individual described in and who executed the fore- going mortgage, and (he) acknowledged that (he) executed the same. (MORTIMER KENNEDY,) Notary Public, (New YorJe) County. Mortgage. 859 Second Mortgage; FORM No. 454. Second Mortgage (Tax Assessment; Insurance Made Part of Prin- cipal). THISINHEWTUEE, made the {fifth) day of {March.,) in the year nineteen himdred and {six,) between {James Judson,) of the {Borough of Manhattan, City of New YorTc,) part(i/) of the first part, and {Cornelius Curzon) of the {Borough of Brooklyn, City of New York,) part(2/) of the second part. WHEEEAS, the said {James Judson is) justly indebted to the said part(2/) of the second part in the sum of {five thousand) dol- lars, lawful money of the United States of America, secured to be paid by {his) certain bond or obligation, bearing even date here- with, conditioned for the payment of the amount of the said indebtedness to the part(2/) of the second part, or the {heirs) or legal representatives or assigns of the said part(2/) of the second part on the {fifth) day of {March, 1908,) with interest thereon at the rate of (5) per centum per annum, to be paid in semi-annual instalments on the {fifth) of every month of {March) and {Sep- tember) thereafter ensuing until the whole is fully paid. IT BEIISTG THEREBY EXPEESSLY AGEEED, that the whole of the said indebtedness shall, at the option of the said part(2/) of the second part or the {heirs,) legal representatives or assigns of the said part(2/) of the second part, become due after default in the payment of any instalment of principal or of in- terest, or after default in the payment of taxes, assessments or water rents, or in case of the foreclosure of any prior mortgage, or in the event of the actual or threatened, partial or total de- molition or removal of any building erected on the premises herein described, as hereinafter provided. NOW THIS INDEITTUEE WITl^ESSETH, that the part(2/) 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 the said interest thereon, and also for and in consideration of one dollar paid by the part(2/) of the second part the receipt whereof is hereby acknowledged, does hereby grant and release unto the part(i/) of the second part, and to {his) heirs and assigns, forever, ALL {that certain piece, parcel or lot of land situate in the Borough of Manhattan, City of New York, and bounded and described as follows:) 860 Mortgage. Second Mortgage. [Description.] TOGETHER Math the appurtenances, and all the estate and rights of the part (,3/) of the first part in and to said premises, and also in and to all the attachments, appliances, fittings, furnish- ings and renewals thereof and additions thereto, now in or upon or which shall be hereafter placed in or upon the above described premises, adapted to and necessary for the proper use and en- joyment of the same, all of which are hereby declared to be part of the freehold and covered by this mortgage and subject to the same laws and limitations applicable to real property. TO HAVE AND TO HOLD the same unto the part(2/) of the second part, (his) heirs and assigns, forever. PROVIDED ALWAYS, that if the. part (y) of the first part, (his) heirs, executors, administrators or assigns, shall pay unto the party of the second part, or the (heirs,) legal representatives or assigns of the same, 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, then these presents, and the estate hereby granted, shall cease, determine and be void. And the said (James Judson, party of the first part does) covenant with the part(i/) of the second part as follows : First. That (he) will pay the indebtedness as hereinbefore provided, and if default be made in the payment of any part thereof, the ^a.xt(y) of the second part shall have power to sell the premises herein described, according to law. Second. That (he) will keep the buildings on the said prem- ises insured against loss by fire, for the benefit of the part(2/) of the second part. Third. That (he) will execute or procure any further nec- essary assurance of the title to said premises, and will forever warrant said title. AOT) IT IS HEREBY EXPRESSLY AGREED that the whole of said indebtedness shall, at the option of the part(y) of the second part, or the (heirs',) legal representatives or assigns of the said partCy) of the second part become due, after default in the payment of any instalment of principal, or after default for twenty days in the payment of interest, or after default for sixty days, in the payment of any tax, assessment or water rent which may be levied or imposed on said premises, or after default for Mortgage. 861 Second Mortgage. twenty days in the payment of any instalment of principal or of interest on any mortgage which may be a prior lien on said prem- ises ; or immediately after any action or proceeding shall have been instituted for the foreclosure of any such prior mortgage; or in the event of the actual or threatened, partial or total demolition or removal of any building erected upon said premises. AND IT IS FURTHEE AGREED that the said part(j/) of the second part, or the (heirs,) legal representatives or assigns of the said part(i/) of the second part, after default in the payment of. interest on any such prior mortgage, or in case any action or proceeding shall have been instituted for the foreclosure of any such prior mortgage, or after default in the payment of any tax, assessment or water rent which may be imposed upon said prem- ises, may, without notice or demand, pay such interest, tax, assess- ment or water rent with interest and penalties accrued thereon, and the costs and expenses of any such action or proceeding, and add the amount so paid to the amount of said bond, or obli- gation, and the same shall be collectible as if it were a part thereof. AND IT IS EURTHER AGREED that if default be made in any of the conditions, covenants or agreements of said bond or obligation, the 'paTt(y) of the second part or the (heirSj) legal rep- resentatives or assigns of the same, upon a complaint filed or other proper legal proceedings commenced for the foreclosure of this mortgage, shall be entitled, as a matter of right and without re- gard to the value of said premises, or the solvency or insolvency of any person or persons or corporation obligated for the payment of the said indebtedness, and without notice, to the appointment by any competent court or tribunal of a receiver of the rents, is- sues and profits of said premises, with the usual powers of such receivers, and said rents, issues and profits are in the event of such default, assigned to the part(j/) of the second part as further security for the payment of the said indebtedness. AND IT IS FURTHER agreed that should the partCy) of the second part, or the (heirs,) legal representatives or assigns of the the said part(2/) of the second part, by reason of any policy of insurance, receive any payment of moneys for damage by fire to the said buildings, such moneys may be retained and applied by the latter towards payment of the amount hereby secured, or, at the latters option, the same may be paid over, either wholly or in part, to the then owner or owners of the said premises for the pur- pose of repairing said buildings, or erecting new buildings in their 862 MOKTGAGE. Second Mortgage. place, or for any other purpose satisfactory to the part(2/) of the second part, or the (heirs,) legal representatives or assigns of the said part(?/) of the second part, without affecting the lien of this mortgage for the full amount secured thereby before such damage by fire, or such payment ever took place. AND IT IS EURTHEE AGEEED that the part(2/) of the first part or any subsequent owner or owners of the premises herein described, upon request made in writing, sent to the said part(2/) of the first part or any subsequent owner or owners of said prem- ises by registered mail directed to the last address furnished to the part(t/) of the second part or the successors in interest of the said part (2/) of the second part or in default of the furnishing of such address directed to the above described premises, shall duly exe- cute, acknowledge and deliver the usual certificate certifying to any proposed assignee of this mortgage the amount of principal and interest that may then be unpaid thereon ; and upon the fail- ure to furnish such certificate within fifteen days after the mail- ing of such notice the amount then remaining unpaid on this mort- gage and the bond accompanying the same, shall, at the option of the holder thereof, become forthwith due and payable. IN WITNESS WHEEEOF, the part(y) of the first part (has) hereunto set {his hand) and {seal) the day and year first above written. In the presence of STATE OF NEW TOEK, County of {New York,) {J AMES JUDSON.) [l. s.J > On the (fifth) day of (March,) in the year nineteen hundred and (six,) before me personally came (James Judson,) to me personally knoAvn, and known to me to be the individual described in, and who executed the foregoing instrument, and (he) duly ac- knowledged to me that he executed the same. (ARTHUR ASTON,) Notary Public, (New York) County. POWERS OF ATTORNEY. FORM No. 455. Power of Attorney — Short Form. KNOW ALL MEN BY THESE PEESENTS, that ihe (TompMns Machine Company, a corporation organized and doing business under the laws of the State of New York, with its prin- cipal office and place of business in the City of Buffalo, New York,) does hereby make, constitute and appoint (Austin Baker,) of (the Borough of Manhattan, City of New York,) its true and lawful attorney for it and in its name to (receive any dividends which are or shall become payable on any of the stock standing in the name of the Tompkins Machine Company on the books of the Cooper Engine Company, of New York, and to give receipt therefor.) (TOMPKINS MACHINE COMPANY,) By (Alvin Tompkins, Attest : Treasurer, ) (FRANK FOSTER,) (Seal.) Secretary. (Acknowledgment. )i FORM No. 456. Power of Attorney — To Manage Business and Real Property. KNOW ALL MEN BY THESE PRESENTS, that I, (Her- bert C. Morton,) of the (Borough of Brooklyn, City of New York, being about to depart from the City of New York for a period of eighteen months,) have made, constituted and appointed, and by these presents do make, constitute and appoint (Frederick Mor- ton) my true and lawful attorney in fact, for me and in my name, and to my use, (during my absence from the City of New York,) to ask, demand, sue for, recover and receive all manner of goods, chattels, debts, rents, interest, sums of money and demands what- soever, due or hereafter to become due and OAving, or belonging to me, on account of the business now carried on by me as (a whole^ [863] 864 PowEE Of Attoenet. To Manage Business. sale dealer in leather and findings,) at (No. 5 Dey street, in the Borough of Manhattan, City of New YorTc,) and to make, give and execute acquittances, receipts, releases or other discharges for the same, whether under seal or otherwise, and to make, execute, in- dorse, accept and deliver in my name or in the name of my said attorney all checks, notes, drafts, warrants, acknowledgments, agreements and all other instruments in writing, of whatsoever nature, as to my said attorney may seem needful for the carrying on of the said business; and also for me and in my name and stead to employ all workmen, clerks, assistants and servants necessary and proper to enable my said attorney more effectually to conduct and carry on my said business, and to dis- charge any and all such workmen, clerks, assistants or servants, and to do, execute and perform and finish for me, in my name and stead, all and singular those things which shall be necessary and expedient, or which my said attorney shall judge necessary and expedient in and about, for or concerning my said business; and to enter into and take possession of any lands, real estate, tene- inents, houses, stores or buildings, or parts thereof, belonging to me, that may become vacant or unoccupied, or to the possession of which I may be or may become entitled, and to receive and take for me and in my name and to my use all or any rents, profits or issues of any real estate to me belonging, and to let the same in such manner as to my attorney shall seem needful and proper, and from time to time to renew leases, (but not for a period extending beyond the first day of May in the year one thousand nine hundred and five;) and also to execute and deliver all deeds, leases, mortgages and writings in that behalf requisite and necessary, and for me and in my name to commence, and prosecute any suits or actionsi or other legal proceedings for the recovery of possession of any of my lands or for any goods, chat- tels, debts, duties, demands, cause or thing whatsoever, due or to become due or belonging to me, and to prosecute and follow and discontinue the same, if he shall deem proper, and for me and in my name to take all steps and remedies neces- sary and proper for the conduct and management of my said business, and for the recovery, receiving, obtaining and holding possession of any lands, tenements, rents or real estate, goods and chattels., debts, interest, demands, duties, sum or sums of money or any other thing whatsoever, that is, are or shall be by my said attorney thought to be due, owing, belonging to or pay- PowEK Of Attoeney. S<6S To Borrow Money. able to me in my own right or otherwise ; and also for me and in my name and stead to appear, answer and defend in all actions and suits whatsoever which shall be commenced against me; and also for me and in my name to compromise, settle and adjust, with each and every person or persons, all actions, accounts, dues and demands, subsisting or to subsist between them or any of Ihem, and in such manner as my said attorney shall think proper ; and for the better doing, executing or performing of any or all •of the premises, I do hereby further give unto my said attorney full power to constitute, appoint and authorize in his place and stead, and as his substitute, one or more attorney or attorneys, for me, with full power of revocation, hereby giving to my said attorney power and authority to do, execute, and perform and finish for me and in my name all and singular those things which shall be expedient and necessary, or which my said attorney shall judge expedient and necessary in and about, for or concerning the premises, or any of them, as fully as (I,) the said {Herbert C. Morton,) could do if personally present, hereby ratifying and con- firming whatever my said attorney or his substitute shall do or cause to be done in, about or concerning the premises, and any part thereof. IN WITNESS WHEREOF, I have hereunto set my hand and seal, this {-fifteenth) day of {September,) one thousand nine hun- dred and {two.) {HERBERT C. MORTON.) (seal.) (Acknowledgment, ) FOEM No. 457. Power of Attorney — By a Partnership, to Borrow Money. KNOW ALL MEN BY THESE PRESENTS, that we, {Benjamin Miiller, Aron Mutter aiid Gabriel Mutter, composing) the firm of {Aron Mutter & Sohn,) of {Halberstadt, Germany,) have made, constituted and appointed, and by these presents do make, constitute and appoint {Rudolf Conried,) of {the City, County and State of New Yorh,) our and each of our true and lawful attorney in fact, for us in the name of the said firm to open an account in the name of {Aron Mutter & Sohn,) with the {Second National Banh,) of {New York,) to borrow money in i;he name of said firm from said {Bank,), and to indorse and 55 866 FowER (Jf Attorney. To Borrow Money. deposit therewith as collateral to such loans, warehouse receipts,, bills of lading, storage receipts, and refinery certificates, and in connection therewith to sign, indorse, draw, accept, make, execute and deliver all such notes, checks, bills of exchange and other contracts or instruments in writing with or without seal and to deposit collateral therewith and convey the title thereto to said (Bank,) and also to sign our firm name as attorney to any transfer of any stocks, bonds or other securities whatsoever or agreements or papers, or paper-writings or evidences of debt, or property in any way connected with or belonging to our said business, and to do any act or acts or to make any contract or contracts or sign any paper or papers connected with (the American branch of) our said business or in which it shall be necessary to sign the name of our said firm and to buy and sell exchange; to negotiate notes, drafts or bills of exchange and to provide for the security of notes, bills or other obligations discounted by said (Bank) on be- half of said firm and in the name of said firm to deposit security with said (Bank) against such discounts; and to borrow money against the stocks and bonds of said firm ; to sign any paper or papers in connection therewith or in which it shall be necessary to sign the name of our said firm; it being intended to give, and hereby giving and granting unto our said attorney power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as we might or could do if per- sonally present; hereby ratifying and confirming all that our said attorney shall do or cause to be done by virtue hereof; and any such notes, checks, bills of exchange, contraots or instruments, stocks, bonds or securities or other paper of whatsoever nature signed, indorsed, drawn, accepted, made, transferred, executed or delivered by our said attorney shall bind and are hereby ratified and confirmed by the undersigned. 11^ WITls^ESS WHEEEOF, we have hereunto set our hands and seals the (fourth) day of (June,) in the year one thousand nine hundred and (four.) (BENJAMIN MVLLER,) (seal.) (ARON MULLER,) (seal.) (GABRIEL MULLER.) (seal.) Sealed and delivered in the presence of (JONATHAN EDWARDS.) Power Of Attobney. 867 To Borrow Money. STATE OF NEW YORE, T Lss ' County of {New York,) j On this {Uh) day of {June, 1904,) before me personally ap- peared {Oahriel Mutter,) to me known and known to me to be the individual who executed the above instrument as a member of the firm of {Aran Mutter & Sohn,) who, being by me duly sworn, did depose and say: That he resides in the {City of Halberstadt, in the Empire of Germany;) that he is a member of the above-named firm of {Aron Miitter & Sohnj) that he executed the foregoing power of attorney on behalf of said firm and as a member thereof ; that he was authorized to execute the same, and he acknowledged to me that he had executed the same on behalf of said firm for the purposes therein stated. {JOSEPH KEENE,) Notary Phiblic, {N. Y.) Co. 868 Power Op Attorney. Bankruptcy. POBM Ko. 458. Bankruptcy — General Power of Attorney in Fact, by Partnership. m THE DISTRICT COURT OF THE UNITED STATES FOR THE (Eastern) DISTRICT OF (New Yori;.) In the Matter of (RALPH JUD80N,) Bankrupt. To (Oliver James, William Henry and Austin Shaw, composing the firm of James, Henry & Shaiv, attorneys,) or any of them, or : We, (Henry Weston) and (Alfred James, both of the City of Poughheepsie,) in the County of (Dutchess) and State of (New York,) composing the firm of (Weston & James,) do hereby au- thorize you, or any one of you, to attend the meeting or meetings of creditors of the bankrupt aforesaid at a court of bankruptcy, wher- ever advertised or directed to be holden, on the day and at the hour appointed and notified by said court in said matter, or at such other place and time as may be appointed by the court for holding such meeting or meetings, or at which such meeting or meetings, or any adjournment or adjournments thereof, may be held, and then and there from time to time, and as often as there may be occasion, for us and in our name to vote for or against any pro- posal or resolution that may be then submitted under the Acts of Congress relating to bankruptcy; and in the choice of trustee or trustees of the estate of the said bankrupt, and for us to assent to such appointment of trustee ; and with like powers to attend and vote at any other meeting or meetings of creditors, or sitting or sittings of the court, which may be held therein for any of the purposes aforesaid; also to accept any composition proposed by said bankrupt in satisfaction of his debts, and to receive payment of dividends and of money due us under any composition, and for any other purpose in our interest whatsoever, with full power of substitution. Power Of Attobney. 869 Bankruptcy. IN "WITNESS WHEREOF, we have hereimto signed our names and affixed our seals the (fifth) day of (April, A. D., 1905.) (HENRY WESTON,) (seal.) (ALFRED JAMES.) (seal.) ss. UNITED STATES OF AMERICA, (Southern) District of (New York,) On this (fifth) day of (April, 1905,) before me personally ap- peared (Henry Weston,) to me known and known to me to be the individual who executed the foregoing instrument as a member of the firm of (Weston & James,) who, being by me duly sworn, did say: That he resides in (the City of Poughheepsie, New York;) that he is a member of the above-named firm of (Weston & James;) that he executed the foregoing letter of attorney in behalf of said firm for the purposes therein mentioned, and that he was authorized to execute the same. (ARTHUR EA8T0N,) Notary Public, (New York) County. FORM No. 459. Bankruptcy — Special Power of Attorney in Fact. IN THE DISTRICT COURT OF THE UNITED STATES, FOR THE (/Sow^Aern) DISTRICT OF (New York.) In the Matter of (CHARLES P. LAWSON,) Bankrupt. In Bankruptcy. To (James Vernon, or Alfred Benjamin,) or ( . . .ij: The (American Refining Company) hereby authorizes you, or any one of you, to attend the meeting of the creditors in this mat- ter, advertised or directed to be holden at (No. 115 Broadway., 870 PowEE OF Attokioiy. Bankruptcy. Borough of Manhattan, City of New York,) on the (fifteenth) day of (May, 1905,) before (William H. Willis,) Esq., referee, or any adjournment thereof, and then and there, and from time to time, as often as may be necessary, for it and in its name to vote for or against any proposal or resolution that may be lawfully made or passed at such meeting or adjourned Aieeting, and in the choice of trustee or trustees of the estate of the said bankrupt. (AMERICAN REFINING COMPANY,) By (Frederick Warde,) (President.) Attest : (ANTHONY POLLOCK,) (seal.) Secretary. ( Acknowledgment. ) SATISFACTION PIECES. FORM No. 460. Satisfaction of Mechanic's Lien. STATE OF NEW YOKK, \ County of {New York^) J (/,) {Thomas Wentworth,) of Cr^-i Lexington avenue, in the Borough of Manhattan, City of New York,) do hereby certify, that a certain mechanic's lien, filed in the office of the clerk of the County of {New York,) on the {SQth) day of {Av^/ust,) one thou- sand nine hundred and {three,) at {eleven) o'clock (20 minutes,) in the (/ore) noon, in favor of {Thomus Wentworth,) claim- ant, against the building and lot situate on the {north) side of {East 54:th) street, {in the Borough of Manhattan, City of New York,) and known as ISTo. (3124,) in said street, for the sum of ($764 59/100,) claimed against {James Bohinson,) as owner, and {Patrick Mullen, as contractor,) is paid and satis- fied, and {I) do hereby consent that the same be discharged of record. WITl^ESS, {my) hand, this {5th) day of {January, 1904.) {THOMAS WENTWORTH.) STATE OF KEW TORE:, 1 County of {New York,) ] On this 5th day of January, one thousand nine hundred and four, before me personally came {Thomas Wentworth,) to me known, and known to me to be the individual described in, and who executed the above certificate, and {he) duly acknowledged to me that he executed the same. {SIDNEY ADAMS,) Notary Public, {New York) County. [871] 872 Satisfaction Piece. Mortgage. FORM No. 461. * Satisfaction of Mortgage, STATE OF NEW YORK, ] r SS I County of (New YorTc,) j" " (I) do hereby certify, that a certain indenture of mortgage bearing date the (eleventh) day of (December,) in the year one thousand nine hundred (and two,) made and executed by (William, E. Dean,) of (the Borough of Manhattan, in the City of New York,) to me (John Bowers of the same Borough and City,) and duly recorded in the office of the (Register) of the County of (New York, in Block Series, Mortgages, Section 4, Liber 126) page (2'75,) on the (twelfth) day of (December,) in the year one thousand nine hundred and (two,) at (ten) o'clock (seventeen) minutes in the (/ore)noon and indexed in (block) index of mort- gages, (in section 4, block 2,640, on the land map of the City of New York,) is paid, and (I) do hereby consent that the same be discharged of record. Dated the (twenty-fifth) day of (April, 1905.) (WILLIAM, E. dean:) Signed in the presence of (WALTER BURT.) STATE OF NEW YORK, ] . County of (New York,) J On this (twenty-fifth) day of (April,) in the year of our Lord one thousand nine hundred and (five,) before me, the undersigned, personally came and appeared, (William E. Dean,) to me known and known to me to be the individual described in and who exe- cuted the above certificate, and thereupon (he) duly acknowledged to me that he executed the same. (ALFRED LANNY,) Notary Public, (New York) County. • I . — • * In cities of the first class the original mortgage must he produced for cancellation of signature or an order under Ch. 289, L. 1907, must be pro- duced. Satisfaction Piece. 873 Mortgage — After Assignment. FORM No. 462. Satisfaction of Hortgag^e Which Has Been Assigned. }' STATE OF NEW YOKK, Cotmty of {New York,) {I, William Winter,) of the (Borough of Manhattan, City of New York,) DO HEREBY CERTIFY: That a certain In- denture of mortgage bearing date the (10th) day of (May,) in the year one thousand nine hundred (and one) made and exe- cuted by (Frank Brown, and Mary, his wife,) of the (Borough of Manhattan, City of New York,) to (Maria Morrison) of (the same Borough and City,) and duly recorded in the office of the (Reg- ister) of the County of (New York,) in Block Series, Mortgages, Section (8,) Liber (120,) Page (216,) and indexed under Block Number (2140) on the land map of the (City of New York,) on the (10^^) day of (May,) in the year one thousand nine hundred (and one,) at (three) o'clock, (forty) minutes in the (after)iioon, and which said mortgage was duly assigned to me by the said (Maria Morrison,) the mortgagee above named by assignment dated the (10th) day of (May,) in the year (1902,)' and recorded in the office of the (Register) of the County of (New York) afore- said, in (Block Series, Section 8,) Liber (128) of Mortgages, Page (372,) on the (11^^) day of (May, 1902,) is fully paid, satisfied and discharged, and do hereby consent that the same be discharged of record. Dated, the (15th) day of (May, 1905.) Signed in the presence of (WILLIAM WINTER.) STATE OF NEW YORX, I rSS * County of (New York,) } On this (16th) day of (May,) one thousand nine hundred and (five,) before me personally came (William Winter,) to me known and known to me to be the individual described in, and who exe- cuted the above certificate, and he thereupon duly acknowledged to me that he executed the same. (RALPH RIDER,) , Notary Public, (New York) County. No. (47.) WILLS. FORM No. 463. Short Will — Devising and Bequeathing Entire Estate to Wife. I, {David Jones) of {the Borough, of Kings, in the City of New YorTc,) do make, publish and declare this to be my last will and testament, hereby revoking all wills and codicils by me at any time heretofore made. I. I devise and bequeath all the estate and effects whatsoever, both real and personal, to which I may be entitled, or which I may have power to dispose of at my decease, unto my wife, absolutely ; and I appoint her sole executrix of this my will and guardian of my infant children during their respective minorities; and I direct that she shall not be required to give any bond or security whatso- ever any law to the contrary notwithstanding. In witness whereof I have hereto subscribed my name at the end hereof and hereto set my hand and seal this (15^/i) day of {March,) in the year nineteen hundred and {four.) { DA YID JONES. ) { seal. ) Signed, sealed, published and declared by {David Jones,) the testator as and for his last will and testament in the presence of us who, at his request and in his presence and in the presence of each other, have hereunto subscribed our names as attesting wit- nesses thereto. {WILLIAM SARD,) (10 East Fortieth Street,) {Borough of Manhattan,) {New York City.) {THOMAS CARTER,) {18 Fifth Street,) {Borough of Manhattan,) ' {New Yorh City.) [874] Will. 875 Short Form. FORM No. 464. Short Will. I, (Miles Beacher, of the City of New York,) do make, publisk and declare this my last will and testament, and do hereby revoke all former wills by me made. 1. I direct that all my just debts and funeral expenses be paid as soon after my death as may be practicable. 2. I give and bequeath all my (wearing apparel) to (James Bell,) if he shall be in my service at the time of my death. 3. All the rest, residue and remainder of my estate, real and personal, including the property bequeathed to (James Bell) in case of legacy to him shall for any reason lapse, I give, devise and bequeath to my nieces and to foe divided between them equally, share and share alike ; provided, however, that if either of my said nieces shall predecease me, leaving lawful issue her and me surviving, then and in that event such issue shall together take the share its parent would have taken under this will had such parent survived me ; and provided further that if either of my said nieces shall predecease me, leav- ing no lawful issue her and me surviving, then the niece who shall survive nie or the lawful issue of the niece who shall have died leaving lawful issue her and me surviving, if both my nieces shall then be dead, shall take the whole of my residuary estate. 4. I nominate and appoint my friends (Augustus Moore) and (John Manning,) andthesurvivorof them, executors and executor of this my will. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal this (eighteenth) day of (January,) one thousand (eight hundred and ninety-seven.) MILES BEACHER, (seal.) Signed, sealed, published and declared by (Miles Beacher,) the testator, as and for his last will and testament in the presence of us, who at his re- , quest, and in his presence, and in the presence of each other have here- unto subscribed our names as wit- nesses. THEODORE E. SMITH, 101 West 153rd street, N. Y. City. CHARLES F. CAMP, 169 10th avenue, N. Y. City. 876 Will. Common Form. lOBM No. 465. Common Form of Will. I, (James Lyon,) of the {City, County and State of New York, Borough of Manhattan,) husband of (Mary Lyon,) of the same place, being of sound and disposing mind and memory and mind- ful of the uncertainty of human life and intending to dispose of all my property of whatsoever kind and nature upon my death, do hereby make, publish and declare this to be my last will and testament, hereby revoking all other wills and codicils by me at any time heretofore made. Item FIEST. I direct that my funeral expenses and just debts be paid by my executors as soon after my decease as is practicable. Item SECOISID. I give and bequeath unto my friend (Franklin Barrett,) my (author's copy of the first edition of "Spring," by Jonathan Jones, now in my library.) Item THIRD. I give and bequeath unto my (niece, Mabel Jones,) of (Newark, New Jersey,) daughter of my sister (Arabel Lyon Jones,) the sum of (ten thousand) (10,000) dollars. Item FOUHTH. I give and bequeath unto my (nephew, Thomas I/yon) of (New York City, son) of my late brother (Peter Lyon,) the sum of (fifty thousand) (50,000) dollars. Item All the rest, residue and remainder of my property and estate, as well real as personal, and wheresoever situated, which at the time of my death shall belong to me or be subject to my disposal by will, I give, devise and bequeath unto (my beloved wife, Mary Lyon,) absolutely and in fee-simple to (her) and (her) heirs, executors, administrators and assigns forever, according to the nature of the property. Will. 877 Common Form. IlSr WITNESS WHEREOF, I have hereunto subscribed my name at the end hereof and sealed these presents, and do publish and declare the foregoing as and for my last will and testament, this (23rd) day of {January,) in the year of our Lord one thou- sand nine hundred and {seven.) {JAMES LYON.) [Seal.] Witnesses : {JOHN JOHNSON,) {FREDERICK WATT,) {AMOS BUDD.) Attestation Clause. On this (23rJ) day of {January,) nineteen hundred and {seven,) {James Lyon,) the above-named testator, in our presence subscribed and sealed the foregoing instrument, consisting of two pages, and at the time of such subscription published and declared the same to be his last will and testament, and thereupon we^ at such time at the request of the above-named testator, and in his presence, and in the presence of each other, signed our names thereto as attesting witnesses. {JOHN JOHNSON;) (271 West One Hundred and Eighiy-third Street,) {New York City.) {FREDERICK WATT,) (2 Washington Square,) {New York City.) {AMOS BUDD,) (2 State Street,) {Brooklyn, N. Y.) FORM No. 466. Common Form of Will. I, {John Tuck,) of the {City, County and State of New York, Borough of Manhattan,) husband of {Caroline Tuck,) of the same place, being of sound and disposing mind and memory and mind- ful of the uncertainty of human life, and intending to dispose of all my property of whatsoever kind and nature upon my death, do hereby make, publish and declare this to be my last will and testament, hereby revoking all former wills and codicils by me at any time heretofore made. 878 i^'pecifio lejjaoy. Will. Common Form. Item. FIRST. I direct that my funeral expenses and just debts be paid by my executors as soon after my decease as is practicable. Item. SECOND. I give and bequeath unto my brother {James Tuck,) my gold watch, which formerly belonged to our father, and the portrait of our father, and the portrait of our mother, now in our residence. Item. THIRD. I give and bequeath unto my nephew {Frederick White,) the son of my sister, {Mary White,) of {Mechanicville, New York,) the sum of {ten thoitsand) dollars. Item, FOURTH. I give and bequeath unto my friend {Elmer Leeds',) of {New York City,) the sum of {five thousand) dollars. Legacy In lieu of dower. Item, FIFTH. All the rest, residue and remainder of my property and estate, as well real as personal, and wheresoever situated, which at the time of my death shall belong to me or be subject to my disposal by will, I give, devise and bequeath to my trustees hereinafter named in trust, nevertheless, to invest the same and to keep the the same invested, and to receive the rents, issues, income and profits therefrom, and after defraying all taxes and other lawful charges upon the same, to pay the net income thereof to the use of my wife, {Caroline,) during her life. The provision herein to my said wife as aforesaid I hereby de- clare is intended to be and is so given to her in full satisfaction " and in lieu of and for her dower and thirds, which she may or can in any wise claim or demand out of my estate. Item. SIXTH. Upon the death of my said wife, {Caroline,) I direct my trustees to divide the said estate so held in trust into as many shares as I shall have left children me surviving, and I give, devise and bequeath one of each of the said shares unto each of my said children respectively, absolutely, and in fee-simple absolute. Will. 879 Common Form. Item. SEVEIS'TH. I hereby authorize and empower my executors andfo^n^faue^in- trustees, or the survivor or survivors, successor or successors, or the^®^'™^"*^^' one, or those, thereof, wha shall qualify and shall be executor and trustee or executors and trustees for the time being, of this my last will and testament, if, in his or their discretion, it shall seem ex- pedient to retain any of my property in the same form of invest- ment in which it may be ai the time of my death, any law to the contrary notwithstanding. And I hereby declare, and it is my will, that my trustees, or those who may be acting, or their successor or successors, shall not be restricted to the investments provided by law in which executors or trustees may invest, but shall have full power and authority to invest in any securities, stocks, bonds, or other ijivestments which in his or their judgment are safe, and for the best interest of my estate, and that all such property, whether in the original or the converted state, shall be subject to the powers, provisions, regulations and trusts herein contained. Item. EIGHTH. It is my will, and I direct, that my executors and trustees herein named, or either of them, shall not be required to give any bond or security whatsoever, any law to the contrary not- withstanding. Item. NINTH. I hereby nominate, constitute and appoint my brother Power of (Raphael Tuck,) to be executor and trustee, and my friend (WiZ- '"''*■ liam Crow,) of {New York City,) to be executor and trustee of this my last will 'and testament, hereby authorizing and empower- ing them, or the survivor or survivors, successor or successors, or the one, or those thereof, who shall qualify, and shall be executor and trustee or executors and trustees for the time being of this my last will and testament, if in his or their discretion it shall seem expedient, to sell either at public or private sale and at such times and in such manner and upon such terms and conditions as he, or they Inay deem most advantageous and for the best interest of my estate, the whole or any part of the real estate of which I may die seized or possessed, or any interest therein, and to execute and deliver any and all conveyances, deeds or other in- struments that may be necessary or proper to transfer said prop- erty or to carry out the intention of this provision. 880 Will. Common Form. corporate Power to And I further give and grant unto my said trustees, or those una felSe. who may be acting for the time being, or their successor or suc- cessors, full power and authority to mortgage or lease any and all of my real estate, or any interest therein on any terms and in any manner as he, or they, in their discretion, shall deem for the best interests of my estate, and I authorize and empower him or them to execute and deliver good and sufficient instru- ments therefor to carry out the intention of this provision. Item. Power to TENTH. I hereby authorize my executors and trustees herein- ness'°a'ifd "n-'^efore named to continue the business now owned and carried on " '- Ijy jue ijj llig City of New York until he shall be able to sell or dispose of the same with advantage to my estate. I authorize and empower them to sell the same at public or private sale, in their discretion, and upon such terms as in their judgment shall be most beneficial to my estate. I furthermore authorize and empower them to incorporate such business, and to transfer the same for that purpose and to take back the stock or bonds, or both, of the Company so incorporated in payment thereof, in whole or in part, and to do and to perform any other act or thing that they may deem necessary or proper to bring about a sale or other disposi- tion of my said business, and to dispose of the stock or bonds thereof in whole or in part, or to retain the same and to use and employ the proceeds thereof in their discretion in carrying ©ut the provisions of this, my will. m WITNESS WHEEEOF, I have hereunto subscribed my name at the end hereof and sealed these presents, and do publish and declare the foregoing as and for my last will and testament, this (20ih) day of (January,) in the year of our Lord one thou- sand nine hundred and (seven.) (JOHN TUCK.) [Seal.] In the presence of (ELON JOHNSON,) (FRANK V. V008,) (ABEL ADAMS.) On this (20th) day of (January,) nineteen hundred and (seven) (John Tuck,) the above-named testator, in our presence subscribed and sealed the foregoing instrument, consisting of (five) pages, and at the time of such subscription published and Will. 881 Of Marcus Daly. declared the same to be his last will and testament, and there- upon we, at such time at the request of the above-named testator and in his presence, and in the presence of each other, signed our names thereto as attesting witnesses. (^ELON JOHNSON,) (12 State Street,) (New York CH^'.) {FRANK Y. YOOS,) (1370 Broadway,) (New Yorh City. (ABEL ADAMS,) (1 Garden Place,) (Broohlyn, N. T.) FORM No. 467. Will of Marcus Daly. In the name of God, Amen. I, Ma/rcvs Daly, of Anaconda, Montana, sojourning in the city of New York, do hereby make this my will, revoking all former wills by me made. I. I give, devise and bequeath to my wife one-third of all my property, real and personal, the same to be in lieu of all dower and rights of succession, and I hereby appoint her the executor of this will. II. I direct that my said executor divide the remaining two- thirds of my estate into four equal shares, and I give, devise and bequeath said shares to her to be held by her in trust for the benefit of my children, one share for each child, to pay the income of each child's share to that child until he or she attains the age of thirty years, and then to pay over to that child the principal of such share. During the minority of any child such portion of the in- come of that child's share is to be used by my executor for that child's support, maintenance and education as she deems best, and the remainder of such income is to be accumulated with or without interest until majority, and my said executor shall not be held accountable for any failure to obtain interest on such accumula- tions. 56 882 Will. Of Marcus Daly, III. In case of the death of any one of said children before attaining the age of thirty jears, 1 give that child's share to that child's heirs, according to the present laws of the , State of Montana. IV. I appoint my wife as guardian of my minor children, and direct that she shall not be required to give any security as such. V. In the event of the death of my wife before all the trusts herein are executed, I appoint my said four children or the sur- vivors of them as trustees to execute the trusts then unperformed, and also I appoint them as executors in her place in the event of her death, without security either as executors or as trustees, and I direct that my wife shall not be required to give security either as executor or trustee. VI. I give to my said executor and trustee and to her said suc- cessors as executors and trustees full power to sell, without appli- cation to court, any and all of my said property, whether real or personal, and to invest and reinvest the proceeds thereof as in her or their judgment she or they may deem best. VII. I hereby empower any child during the life of the trust for that child to dispose by will of the share so left in trust for him or her. m WITNESS WHEEEOF, I have hereunto set my hand this 18th day of September, 1900. (Signed.) MABOUS DALY. [Seal.] Witnesses : (Signed.) GUY WILLIAMS, JOHN C. LAMSON, ARTHUR DILLON. The foregoing instrument was subscribed in our presence by the testator, this 18tt day of September, 1900, and at the time thereof he declared to us, being all together, that the instrument was his will, and at his request and in his presence and in the presence of each other, we subscribed our names as such witnesses. OUY WILLIAMS, Residing at Butte, Montarm. JOHN 0. LAMSON, Eesiding at Anaconda, Montana. ARTHUR DILLON, Residing at New York City. Will. 883 Of Kussell Sage. JQ-RM No. 468. Will of Russell Sage. "I, (Bussell Sage,) of the {City and State of New York,) do hereby make, publish and declare this my last will and testament in manner and form following: " FIRST. I direct that all my just debts and funeral expenses be paid as soon after my decease as conveniently can be done. " SECOND; I give and bequeath to my sister, (Fanny Chapin,) wife of (Samuel Chapin,) of (Oneida, N. Y.,) should she survive me, the sum of ten thousand ($10,000) dollars. " THIRD'. I give and bequeath to each and every of my neph- ews and nieces of my own blood me surviving the sum of twenty- five thousand ($25,000) dollars, and in the event that any of such nephews or nieces shall have died before me, leaving lawful issue him or her surviving, then I give and bequeath a like sum of twenty-five thousand ($25,000) dollars to the surviving lawful issue of each nephew or niece so dying before me, the same to be distributed among such issue share and share alike per stirpes and not per capita. " FOURTH. All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possessed, or to which I may be entitled .at the time of my decease, I give, devise and bequeath to my wife, (Mar- garet Olivia Sage,) to have and to hold the same to her absolutely and forever. " FIFTH. This provision for my wife is to be in lieu of all right of dower in my estate. " SIXTH. I authprize and empower my executors, hereinafter named, and the survivors or survivor of them to sell and dispose of all or any of the real estate of which I shall die seized or pos- sessed at public or private sale, at such times and on such terms and conditions as they, the survivors or survivor of them, shall deem best or proper, and to execute, acknowledge and deliver all proper writings, deeds of conveyance and transfers therefor. " SEVENTH. Should any of the gifts and bequests made by me in the second and third paragraphs of this, my will, lapse or fail for any reason I direct that the bequests so lapsing or failing shall go to and form part of my residuary estate and be disposed 884 . Will. Of Russell Sage. of under and in accordance with the provisions of the fourth par- agraph of this, my will. " EIGHTH. I nominate, constitute and appoint my wife, {Margaret Olivia Sage, Dr. John P. Munn, of the City of New York; Almon Goodwin, of said city, and Charles W. Osborne, long my confidential and trusted assistant,) the survivors and survivor of them, executrix and executors of this, my last will and testament. " In the event of the death, refusal or inability to act of said (Charles W. Osborne,) I hereby nominate and appoint (Edward C. shorn,) also for some years past in my employment, as exec- utor in his place and stead. I further direct that none of the persons above named as executors shall be required to give any bond or security for the proper discharge of their duties. " NIISTTH. I hereby authorize and direct my said executors to rent a suitable office for the transaction of the business of my estate and to employ and pay out of the funds of my estate all the clerks and bookkeepers that may be necessary for the proper care and management thereof. " TENTH. I hereby revoke all former or other wills and tes- tamentary dispositions by me at any time heretofore made. "ELEVENTH. Should any of the beneficiaries under this my will other than my said wife object to the probate thereof or in any wise directly or indirectly contest or aid in contesting the same or any of the provisions thereof or the distribution of my estate thereunder, then and in that event I annul any bequest herein made to such beneficiary, and it is my will that such bene- ficiary shall be absolutely barred and cut off from any share in my estate. " m WITNESS WHEEEOF, I have he;-eunto subscribed my name and aflixed my seal at (No. 2 Wall Street, New Yorh City, Borough of Manhattan,) this (11th) day of (February, 1901,) in the presence of (Edward Townsend and Richard W. Freedman,) whom I have requested to become attesting witnesses hereto. (RUSSELL SAGE.) [l. s.] "The foregoing instrument was subscribed, sealed, published and declared by (Russell Sage,) as and for his last will and tes- tament in our presence and in the presence of each of us, and we Will. 885 Immediate Legacy. at the same time at his request in his presence and in the pres- ence of each other hereunto subscribe our names and residences as attesting witnesses this (11th) day of (February, 1901.) (EDWARD T0WN8END,) ("No. 130 West One Hundred and Tiventy-first Street," ("New York.") (B. W. FREEDMAN,) ("No. 32 West One Hundred and Twenty-third Street,) ("New York.") FORM No. 469. Devise of Dwelling, and Bequest of Immediate legacy to Wife; Residuary Estate in Trust for Beneit of Wife, etc. I give and devise to my wife, ( Viola Jones, ) my dwelling house, with the buildings and grounds connected therewith, situate on (North Broadway) in the (Village of Tarrytown, Westchester County, New York,) in fee, for her use and benefit, absolutely. I bequeath to my said wife all my household goods, furnishings and effects, including libraries, plate and paintings, and all my horses, carriages, motor vehicles and other property which at my death may be in or about my said dwelling house, in (Tarrytown, New York,) or the buildings or grounds connected therewith. And I also bequeath to my said wife the sum of (ten thousand dollars) ($10,000), to be paid to her within three calendar months after my decease. I devise and bequeath all my real and personal estate whatsoever, excepting only my dwelling house, and the buildings and grounds connected therewith, and also the household goods and effects and other property in and about said dwelling house, buildings and grounds, which I have hereinbefore given to my said wife, to (Wil- liam Randolph') and (John Masori) and their successors, and the survivors of them, to have and to hold the said property and estate upon and for the following trusts and purposes : That they, the said (William Randolph) and (John Mason,) or the survivor of them, or their or his successor or successors for the time being, herein- after referred to as said trustees, shall, in such manner and upon such terms and conditions as in their or his discretion shall seem most advantageous and for the best interests of my estate, sell, 886 Will. Residuary Estate In Trust. either at public or private sale, the whole or any part of the real or personal property of which I may die seized or possessed, or any interest therein, and shall collect, or otherwise convert into money, such parts of the trust premises as shall not consist of money ; and shall out of the proceeds of the said trust estate, pay my funeral tind testamentary expenses and debts and the pecuniary legacy be- queathed by this will, and shall invest the residue of the said moneys in the names or name', or under the legal control, of the said trustees or trustee, in any bonds of the United States, or in the bonds or stocks of any commercial corporation regularly paying dividends, or in the bonds or notes of any municipal corporation regularly paying its interest, or in mortgages of improved real property situate within the United States ; and I hereby authorize and empower the said tmistees or trustee to vary the securities or investments at their or his discretion, or if it shall seem expedient, to retain any of my property in the same form of investment in which it may be at the time of my death, any law to the contrary notwithstanding. I direct my trustees to pay the income of the said trust estate, and the moneys and investments for the time being representing the same, to my said wife, during her life, in quarterly payments ; and I request my said wife, not, however, desiring hereby to im- pose any legal obligation upon her, to maintain and educate such of my children as shall for the time being be minors and unmar- ried, and to make proper annual or other allowances to such of my children as shall for the time being have attained the age of twenty-one years, and shall in her opinion require the same. After the death of my said wife, I hereby declare that the said trustees or trustee may postpone the sale, conversion and collection of all or any part or parts of my said real and per- sonal estate, respectively, so long as they or he shall deem proper, but my real estate shall be considered personalty from the time of my death; and during such postponement, the said trustees or trustee may manage and let upon lease, or mort- gage, my real estate or any interest therein, as they in their dis- cretion shall deem to be for the best interest of the trust estate hereinbefore created, and make out of the income or capital of my real and personal estate any outlay which such trustees or trustee may consider proper, for improvements, repairs, insurance, premium on policies, or otherwise for the benefit of the said trust estate. Will. 887 Power Of Appointment. I hereby declare that my said wife shall have the power of appointing a new trustee or new trustees of this my will, should any vacancy occur during her lifetime. I hereby constitute and appoint the above-named ( William Ban- dolph) and (John Mason) to be executors of this my will and trustees for the purposes therein named. FORM No. 470. Bequest of Income of Trust Estate for Life — With Power of Ap- pointment. All the residue of my estate and property, of whatsoever nature, and of or to which I may die seized, possessed or entitled, I give, bequeath and devise to the executors of this my will, upon trust, to receive the income thereof and to apply the net income realized there- from to the use of my wife, (Mary E. Lamh,) during her natural life, and upon her decease to pay over and transfer a part or parts of the principal, not exceeding ten thousand dollars ($10,000.00), to such of the then lineal descendants of my wife or of my father as by her last will and testament my wife may direct and appoint ; and subject to the life use therein of my wife and the exercise by her of the said power of appointment, I give, devise and bequeath the beneficial right and title in and to my said residuary estate to (my two brothers, Samuel and Richard), who or their heirs or assigns are to be entitled to the possession thereof upon and after the decease of my wife. FORM No. 471. Devise in Trust for the Benefit of Several Children — For Life, with Power of Appointment. "I direct that my executors hereinafter named, or such of them as shall qualify and act, divide all the rest, residue and remainder of the property and estate, both real and personal, of every kind and description and wheresoever situated which shall belong to me or be subject to my disposal at the time of my death, into such number of equal shares as shall be equal to the number of children who shall survive me, and of my children who shall have died before me leaving issue who shall survive me, and set 888 Will. Devise In Trust For Benefit Of Children. apart one of such equal shares for each of my children who shall survive me, and one of such equal shares for the issue of each 'rhild of mine Avho shall have died before me, leaving issue me surviving; and convey, transfer, deliver and pay over one of such equal shares to the issue of each one of my children v^ho shall have died before me leaving issue me surviving, in equal shares, per stirpes and not per capita,, to vphom I give, devise and bequeath the same accordingly; and that my said executors set apart one of such equal shares for the benefit of each of my children vrho shall survive me, and I give, devise and bequeath the same to my exec- utors and to such of them as shall qualify and act, as trustees, to have and to hold each share so set apart for the benefit of a child of mine (or the portion thereof not paid over and transferred to such child as hereinafter directed), upon a separate trust, for the benefit of such person for whom or for whose benefit the same shall have been set apart as aforesaid during his or her natural life, which trust, as to each share of such property or estate by this article of my will hereinbefore directed to be held in trust for the benefit of a child of mine, shall be to collect and receive the rents, issues, income and profits of so much thereof as shall be real property and to invest and keep invested so much thereof as shall be personal property with power to call in and change the invest- ments thereof from time to time and to coJJect and receive the income thereof and after paying thereout all lawful expenses and charges, to apply the net income from the said trust estate arising, from time to time as received, to the use of the person in trust for whom such trust estate shall be held as aforesaid, for so long during the life of such person as he or she shall remain under the age of twenty-five years, the income of any such share held in trust for any daughter of mine to be free from the debts, control or inter- ference of any husband she may have; and upon the arrival at the age of twenty-five years, of the person in trust for whom such trust estate shall be so held, to convey, transfer, deliver and pay over cne equal fourth part of the capital of such trust estate with all gains and increase of capital thereof, if any, in fee simple and absolutely to such person ; and after such person in trust for whom such trust estate shall be held in trust as aforesaid shall have attained the age of twenty-five years, thenceforward for so long during the natural life of such person as he or she shall remain under the age of thirty years to continue to hold the residue of such trust estate, in trust, to collect and receive the rents issues Will. 889 Devise In Trust For Benefit Of Children. income and profits of so much thereof as shall be real property and to invest and keep invested so much thereof as shall be per- sonal property, with power to call in and change the investments thereof from time to time and to collect and receive the income thereof and after paying thereout all lawful expenses and charges, to apply the net income from the said trust estate arising from time to time as received to the use of the person in trust for whom such trust estate shall be held as aforesaid, the income of such trust estate held in trust for any daughter of mine to be free from the debts, control or interference of any husband she may have; and upon the arrival at the age of thirty years of such person in trust for whom such trust estate shall be held to convey, transfer, deliver and pay over one equal third part of the capital of such trust estate then remaining including all gains and increase of capital thereof, if any, in fee simple and absolutely to such person in trust for whom such trust estate shall be held; and from and after such person shall have attained the age of thirty years thence- forward, during the residue of the natural life of such person in trust for whom such trust estate shall have been held to continue to hold the residue of such trust estate in trust to collect and receive the rents, issues, income and profits of so much thereof as shall be real property and to invest and keep invested so much thereof as shall be personal property with pow^r to call in and change the investments thereof from time to time and to collect and receive the income thereof, and, after paying thereout all lawful expenses and charges, to apply the net income from the said trust estate arising from time to time, as received, to the use of the person in trust for whom such trust estate shall be held as aforesaid, the income of any such trust estate held in trust for any daughter of mine to be free from the debts, control or interference of any husband she may have, and upon the death of such person in trust for whom such trust estate shall be held, to convey, transfer, deliver and pay over the capital of such trust estate as it shall then exist, with all gains and increase of capital thereof, if any, in fee simple and absolutely to such person or persons and in such shares and proportions as the person in trust for whom such trust estate shall have been held, shall by will direct and appoint; and in (iefault of such direction or appointment, or in so far as such direction or appointment may not extend or be effectual, to the issue then surviving of such person in trust for whom such trust estate shall have been held, in equal shares per stirpes and not per 890 Will. Charging Annuity Upon Estate. capita, or if such person in trust for whom such trust estate shall have been held as aforesaid shall leave no issue him or her surviv- ing, to the next of kin of such person in trust for whom such trust estate shall have been held, in the shares and proportions to which under the laws of the State of New York as they shall then exist, they would be entitled to the same, if the same were personal property and such person in trust for whom such trust estate shall have been held had died possessed thereof intestate." FORM No. 472. Bequest in Trust for Son, Giving Him Power of Appointment. And I direct my executors hereinafter named, and their suc- cessors, to convey, assign, transfer and set over the remaining one of said shares to themselves upon the special trust and confidence, to have and to hold the same for and during the term of the natural life of my son, Donald Fish, and to receive the income, rents, issues and profits thereof, and to apply the same to his use, main- tenance and support so long as he shall live, and from and after his death I give, devise and bequeath the said share of my resid- uary estate to his issue in such shares and with such estates as he may by last will and testament, or instrument in the nature thereof, limit and appoint, and in default of such appointment I give, devise and bequeath the same to his children in equal shares, the issue of a deceased child taking the parents's share by repre- sentation. In the event that my said son shall leave no issue him surviving, T give, devise and bequeath the said share of my residuary estate to his brother, Henry Sampson Fish, or his issue if the said Henry 8am,pson Fish shall have predeceased his brother. FORM No. 473. Charging Annuity Upon Estate. I charge upon my estate as an annuity in favor of my vidfe and direct the payment by my executors of such yearly sum as shall be sufficient to pay all taxes, assessments, insurance and charges of every kind and nature which may be imposed on toy of the lands Will. 891 Devise To Wife — Reverting On Remarriage. and premises herein given to my said wife and whicli shall he suiBcient to pay the rent of my pew No. 16, in Trinity Church, in the City of New York, hereinafter given to my wife, during the time that the ahove shall be held and enjoyed by her. FORlffi No. 474. Bequest to Wife for Life, to Revert in Case of Her Eemairiage. I give, devise and bequeath to my dear wife, Adelaide F. Hodg- son, for and during the term of her natural life, if she shall remain my widow, and if not I give, devise and bequeath to her until she shall remarry, my dwelling house and stable, with the ground attached to the same, being my present residence, situate at the northwesterly corner of Madison Avenue and Sixty-eighth street, in the Borough of Manhattan, City of New York, and also my country place, known as '' The OaTcs," situate at Pawling, Massa- chusetts, together with all the lands, stables and buildings belong- ing thereto; also all my horses, carriages and motor vehicles, and all the furniture and articles of use and ornament of every kind and nature in either of my said residences at the time of my decease. All of the aforesaid lands and personal property shall revert to and form a part of my residuary estate on the death of my wife or her remarriage, if she shall again marry. FORM No. 475. Legacy — Cutting Off Wife. I give and bequeath unto my wife, , the sum of five dollars, which is intended by me to be in full and in lieu and bar of her dower and all and every other right or interest in and to my estate. I make only this provision for her for the reason well known to her and to all my friends and for the further reason that during our married life she was wilfully and wastefuUy extravagant and brought upon me much unnecessary' suffering. 892 Will. Revoking Legacy If Contested. FORM No. 476. legacy — Cutting Off Son. I give and bequeath unto my son, , the sum of five dollars, and it is my will that this provision be in lieu and bar of every right and interest in -and to my estate. I make only this provision for him for reasons well known to him and to all my family and friends, and for the further reason that during his whole lifetime since he attained , he has been disobedient and ungrateful. FORM No. 477. Clause Revoking Legacy in Case of Contest.* If any person named in this my last will and testament shall directly or indirectly institute or become an acting party to any pro- ceedings to set aside, interfere with, or make null any provision of this will or to offer any objections to the probate thereof, or shall in any manner directly or indirectly contest the probate thereof, then and in that event I revoke the provision of this my will in his or her or their favor, and such act or proceedings shall operate and be effective as a release on the part of such heir, next of kin, legatee or devisee to any part of my property or estate, and any provision of my will in favor of such party I do hereby abrogate, annul and make void, and I direct and will that the person so acting, preceding and contesting shall receive no part or portion whatsoever of my estate either under this will or otherwise, and the said property that would have gone to him, her or them shall go and become a part of my residuary estate. FORM No. 478. Revoking Bequests in Case of Participation in Contest. I will and direct that in case any person shall institute, conduct or share in any proceedings to oppose the probate of this my last will and testament or to impeach or impair or set aside or in- validate any of its provisions, any devise or legacy to or for the * See also will of Russell Sage, Form 468 supra. Will. 893 Directions To Trustees. benefit of such person or persons under this my last will and testa- ment shall thereupon be revoked and shall become and remain null and void, and such person or persons shall be excluded from any participation in and shall not receive any share or portion of my property or estate, real or personal, and the portion to which such person might be entitled if I had died intestate as to the whole or any portion of my property or estate or any share or portion to which such persons might be otherwise entitled, I give, devise and bequeath to such of the following beneficiaries, to wit: my wife, Sarah Clarice Hohson, my four children, Catherine Louise, Adelaide Frances, Arthur and Charles Garretson, and my two grandchildren, Oliver 8. Wilson and Margaret Hohson Wilson, children of my deceased daughter, Alice Hohson Wilson, as shall not participate in such action, in equal shares as to my said wife and children, and as to my said grandchildren in such proportion as their mother would be entitled to if living. rOEM No. 479. Directing Trustees to Disregard any Assignment or Anticipation of Beneficiary's Interest. " No person for whose benefit any trust is hereby created shall have power to anticipate or to dispose of any income directed to be paid or applied to the use of such person until the same shall have fully accrued and become payable to such heir, and the trus- tees of said respective trusts are empowered and requested to dis- regard and defeat every assignment or other act in contravention of this clause in my will." FORM No. 480. Declaring Trust to be Made With Reference to the Laws of the State of New York. " I declare that this, my will, and every part thereof, is made with reference to the present existing laws and statutes of the State of New York, relating to trust and trust estates by will or legal dis- tribution, and without regard to the laws and regulations of any State or country where I may happen to be at the time of my de- cease, or where any portion of my estate may be situated." 894 Will. Attestation Clause — Codicil. FORM No. 481. Attestation Clause from Collis F. Huntington's Will. On this thirteenth day of March, one thousand eight hundred and ninety-seven, the above-named testator, Collis P. Huntington, in our presence subscribed and sealed the foregoing instrument, and declared the same to be his last will and testament, and there- upon we, at his request, and in his presence, and in the presence of each other have hereunto subscribed our names as attesting witnesses. MAXWELL EVABTS, 231 Second avenue. New York city, ANDREW K. VANDEVENTER, 531 North Broad street, Newark, N. /., GEORGE E. DOWNS, 628 Carlton avenue, Brooklyn, N. Y. Note. — It is always well to have three witnesses to prove a will, as it may be necessary to prove the will under the laws of another State where three witnesses are required, as for example : If it involve real estate in a State requiring three witnesses, and the will only had two, testator would die intestate, as to the foreign real estate. FORM No. 482. Codicil. I, George Rose, of the City, County and State of New YorTc, having made my last will and testament bearing date the 21st day of July, in the year one thousand nine hundred and one, do now make and publish this codicil thereto which is to be taken as an addition to and a part of my said last will and testament. First. I revoke the appointment of Roger Main as one of my executors of my said last will and testament, and declare that it is my intention and desire that my executrix and executor shall be my wife, Mary Rose, and my friend, Harry Stafford. Second. I also authorize my said executors to invest and keep invested my said estate as provided in the "fourth" paragraph" of my said last will and testament in any securities or other forms of investment which they, in their discretion, shall deem proper Will. 895 Letter; To Accompany. or advisable, irrespective of the law governing investments by executors and trustees, and I also authorize my said executors to continue any of my present investments as long as my said exec- utors shall in their discretion determine to be advisable and to the interest of my estate. And I hereby ratify and confirm my said last will and testa- ment shall thereupon be revoked and shall become and remain null sistent with this codicil. EST WITNESS WHEREOF, at the end of this codicil to my last will and testament I have subscribed my name and affixed my seal this twenty-first day of May, in the year one thousand nine hundred and one. GEORGE ROSE, (seal.) Subscribed by the above-mentioned testator in the presence of each of us, and at the same time declared by him to be a codicil to his last will and testament, and thereupon we at his request and in his presence and in the presence of each other signed our names as subscribing witnesses. Witnesses : JOHN J. JAMES, Hotel Netherlands, N. Y. City. DAVID WILLCOX, 12 Portland avenue, BrooTcVyn. FORM No. 483. Letter to Accompany Will. Letter of Instruction in Case of My Death. First. I -own burial lot , and desire to be buried Second. I desire to examine my papers and destroy such as are of no value. Third. I have safe deposit vault. Fourth. I have valuable papers in the following places : Fifth. I have deposits in the following banks and trust com- panies : Sixth. I am insured in the following companies : 896 Will. Letter To Accompany. Seventh. I have mortgages on my property. Eighth. Hy estate consists principally of: Ninth. In case of my death I desire the following persons to be notified at once : Mj family My executors My counsel, Kent & Blackstone, No. 1 Wall street, New York city, and Tenth. My last will and testament is in the safe-keeping of my counsel, Kent & Blackstone, 1 Wall street, New York city. Notice. — Deliver this letter of instructions to some one who would in all probability be notified at once of your death, and who you are in the habit of seeing daily. INDEX. INDEX. [All references are to pages.] ABATEMENT: see Revival of Action 409 ACCORD AND SATISFACTION: answer alleging 314 ACCOUNT: assignment of 750 as security for an indorsement 751 demand for copy of 332 see Bills of PAjsTictrtAES. ACCOUNT STATED: complaint upon 239 ACCOUNTING: bill of costs on 649 affidavit of attorney as to services in 650 see Executob; Genebal Guaedian. ACCOUNTS AND BILLS OF PARTICULARS: see Bills of Particulabs. ACKNOWLEDGMENT : by administrator 724 by attorney in fact 718 by corporation 720, 721 by executor 724 by husband and wife, known to officer 722 by individual 716 not known to officer 717 by one of several individuals -. 717 by partner 722 by several individuals 781 by subscribing witness 719 unknown to officer 719 by trustee 723 by two individuals 717 one known, one not known to officer 718 by wife, separate certificate 723 before United States consul 756 for several states 724 ACTION TO RECOVER A CHATTEL: see Replevin 251 [899] 900 Index. [All references are to pages.] ADMINISTRATOR: see Letters of Administration 623 acknowledgment by 724 complaint by, for negligently causing death 229 letter of instructions to 136 guide for attorney for 139 verification by 262 ADJOURNMENT OF TRIAL: affidavit to procure: absence of counsel 474 engagement of counsel 477 illness of party 475, 476 ADOPTION: agreement and consent 654 order of 658 petition for 652 proceedings for, note 651 proof of custody 656 surrender of custody 657 AFFIDAVIT: for allowance, upon accounting 658 general, by attorney 505 by guardian ad litem 503 on arrest, what to contain, note 201 on attachment, what to contain, note 181 by agent 190, 192 of correctness of copies attached 188 of accountant on' attachment 196 of merits: by party 273 by counsel 274 of no opinion 56 of regularity : in mortgage foreclosure 577 in divorce . . j. 609 of service: I of summons .V . 320 and complaint 321 in divorce , 32^ on corporation 323 on infant 324 of papers other than summons 325 of citation 621 of judge's order 326 of court order .' 327 on attorney, office closed 328 in his absence , 329 person in charge 330 by mail 331 Index. 901 [All references are to pages.] ArriDAVIT — ( Continued) : of service of papers other than summons — {Continued) : of subpoena on one witness 481 on several witnesses 482 of title 726 see Affidavits undeb Special Topics; Foeeclosube of Mobtgage. AGENT: affidavit by, on attachment 190, 192 verification by 265, 266, 267 AGEEEMENT: execution of, note 729 in testimonium clause ( corporation ) 730 of adoption 654 building 736 continuing guaranty 748 composition 739 for exchange of real property 746 of executor to refer disputed claim 732 to share expenses of law suit 742 of extension of mortgage 793 guaranteeing performance by lessee 841 of indemnity upon paying lost bill of exchange 735 marriage 741 party-wall 733 of retainer 731 for sale of real estate 744 of services and hiring 731 ALLOWANCE TO ATTORNEY: notice of motion for 501 affidavit on motion for, by attorney 505 guardian ad litem 503 in accounting 650 AMENDMENTS TO PROPOSED CASE ON APPEAL: Supreme Court 47 notice accompanying 48 Surrogate's Court 98 notice accompanying 48 ANNULMENT OF MARRIAGE: indorsement on summons in action for 213 ANNUITY: clause in will charging upon estate 891, 892 902 Index. [All references are to pages.] ANSWER: what to consider before, note 309 bills of particulars before, note 335 making more definite and certain 288 striking out matter in, note 279 extension of time to, general 275 pending appeal from interlocutory judgment: order ^ 73 stipulation 71 affidavit 74 denials : general 309 on information and belief ' 310 of knowledge or information suflBcient to form a belief 311 mixed denials and admissions 312 pleading defenses : accord and satisfaction 314 ■*■ ■ general release 319 payment 313 Statute of Frauds 317, 318 Statute of Limitations 316 usury 315 verification of, note 261 see Demtjbrees to Answers ; Motion 304 APPEALS : from judgments : of Supreme Court, Trial Term 38 Special Term 67 of New York City Court, Trial Term 106 of New York City Court, no jury 115 from interlocutory judgment on demurrer: procedure on 71 extension of time to answer pending 71 stay pending 73 from Surrogate's decree: procedure on 84 from orders : of Supreme Court, Special Term 79 of Special Term, City Court of the City of New York to Appel- late Term 118 procedure and calendar on appeals from judgments: First Department 38 Second Department 61 Third Department 63 Fourth Department .' 65 argument of 66 forms : notice of argument. Court of Appeals 573 Appellate Division 574 Index. 903 [All references are to pages.] APPEALS — {Continued) : forms — ( Continued ) : notice of appeal from judgment of Supreme Court, Trial Term. . 559 Special Term 560 from judgment dismissing complaint, Supreme Court, Trial Term 561 from interlocutory judgment overruling demurrer. Supreme Court, Special Term 566 to Appellate Term from New York City Court, Trial Term. . 567 from order of Supreme Court, Special Term 562 from part of an order 563 from Surrogate's decree 564 from Surrogate's order 565 notice of exception to sureties 570 notice of justification of sureties 571 notice of approval of undertaking upon justification of sureties. 572 undertaking to stay execution 568 case on appeal, see Case on Appeal. proposed amendments, see Case on Appeal. see Appellate Division; Appellate Term; Argument; Calendar Practice; Case on Appeal; Certification; City Court op the City of New York; Costs and Disbursements; Exception to Sueeties ; Hints ; Interlocutory Judgments ; Judgments ; No- tice OF Appeal; Notice of Approval of Sureties; Order; Pre- ferences; Printed Papers on Appeal; Proposed Amendments; Proposed Case on Appeal; Settlement; Statement under Rule 41; Stipulation; Sureties; Surrogate's Court. APPELLATE DIVISION: argument of appeal in 66 notice of argument in 574 calendar practice: First Department 60 Second Department 61 Third Department 63 Fourth Department 63 see Appeals. APPELLATE TERM: . calendar practice 113 notice of appeal to 567 see Appeals; City Court of the City op New York. APPEARANCE: notice of: general 218 special 219 in foreclosure 220 904 Index. [All references are to pages.] APPOINTMENT: power of, in will 888 APPROVAL OF SURETIES: notice of 572 ARGUMENT: of appeals in Appellate Division 66 in Appellate Term , 113 notice of, Court of Appeals 573 Appellate Division 574 ARREST: affidavit to obtain, grounds : what affidavit should contain, note 201 removal of goods with intent to defraud creditors 202 fraud, misrepresentations 205 order of 198 undertaking on 199 approval of 201 ASSIGNEE: verification by, note 262 ASSIGNEE FOR BENEFIT OF CREDITORS: letter of instruction to 141 letter of, to debtors of assignor 146 to bank of assignor 146 guide for .' 147 verification by 262 ASSIGNMENT FOR BENEFIT OF CREDITORS : see General Assignment. ASSIGNMENT: of legacy, clause in will prohibiting , 894 short form by indorsement 749 with power to sue 749 of account 750 as security for an indorsement 751 of judgment 752 of lease 753 undivided half of 754 of mortgage, without recourse 755 with covenant of amount due 757 of patent 758 before letters granted 760 agreement to testify 760 with future improvements 759 with invention 758 right of action for past infringement. ., 759 right to re-issues 759 within limited territory 761 Index. 905 [All references are to pages.] ASSIGNMENT OF INSTRUMENTS: short form (indorsed on back) 749 note 749 ASSUMED BUSINESS NAME: certificate by persons using 785 ATTACHMENT: warrant of 178 undertaking on 179 affidavits to obtain 181 what should contain, note 181 grounds : defendant non-resident 182 defendant foreign corporation 183 departure of defendant 186 debtor^s false statement to secure credit 193 by assignee of cause of action 185, 189 of correctness of copies attached 188 on assigned cause of action 189 by an agent 190-192 by an accountant 196' see Hints on Residence. ATTESTATION CLAUSE 895 ATTESTING WITNESS: see Witness. ATTORNEY: absence of, as ground for adjournment 474 engagement of, as groimd for adjournment 477 affidavit of, for allowance on accounting 650 allowance to, procedure for 501 guide for administrator's 139 retainer on contingent fee to 731 satisfaction of judgment by 541 substitution of 416 verification by ... a 264 ATTORNEY IN FACT: acknowledgment by 718 BAILMENT: complaint for loss of baggage 237 BANKRUPTCY: how to prepare proof of debt, note 684 general power of attorney in 869 special power of attorney in 8/0 proof of debt 678-682 letter of instruction to receiver in 150 906 Index, [All references are to pages.] BEQUEST: of immediate legacy to wife 886 income for life °°° in trust for son 8"^ to wife, to revert on remarriage 892 revoking, for participation in contest 893 BILL DE BENE ESSE: see Examination Befobe Tbiai. BILL OF COSTS 521 affidavit in support of 529 objections to 528 on accounting ; 649 see Costs and Disbubsements. BILL OF PARTICtTLARS: in what actions,, note 334 before answer, note 335 demand for, goods sold 335 action for negligence 336, 338 demand for copy of account 332 copy of account 333 form of 356 order directing service of, and extending time to answer 344 ^""~' in action for negligence 355 motion for, order to show cause 339 notice of motion for: action for services 345, 349 negligence 347, 352 affidavit of attorney on motion for 340 of party 342 BILL OF SALE: of stock in trade and good will 763 of goods in bulk, when fraudulent, note 764 BILL TO PERPETUATE TESTIMONY: see Examination befobe Teial. BILLS AND NOTES: complaints on promissory notes 240 BOND: secured by mortgage, 30-90-day clause 765, 766 secured by second mortgage 767 for faithful performance of contract 769 of indemnity, against claim for personal injuries 770 on payment of lost note 730 to secure judgment 772 BOND ON APPEAL: see Undertaking on App f.at. , Index. 907 [All references are to pages.] BUILDING : lease of 843 contract for 736 BXjyER: see Vendee. BY-LAWS: memorandum for drawing 18 CALENDAR PRACTICE: appeal : First Department 60 Second Department 61 Tiiird Department 63 Fourth Department 65 notice of trial 406 reviving action 409 notes of issue 421 defaults 425 restoring case: generally 425 after jury disagrees 429 after ■withdrawal of juror 432 " reserved generally " 435 after reversal 438 preferences : generally 440 over issues of same term 441 prior term 445 under Rule 36, G. P. R 452 short causes 455 under subdivision 2, Rule V, First Department 448 CALL CALENDAR: restoring case to, " reserved generally " 435 after reversal 436 see Cai-endae Peactice. CAPACITY TO SUE: want of, as ground of demurrer 294 CAPTION: court order 488 judge's order 489 CASE ON APPEAL: see Pboposed Case. form of proposed: Supreme Court 45 Surrogate's Court 92 908 Index. [All references are to pages.] CASE ON APFEAL — {Continued) : method of preparing: Supreme Court 45 Surrogate's Court 92 proposed amendments to: Supreme Court 47 Surrogate's Court 96 indorsements on: Supreme Court 48 Surrogate's Court 98 settlement of: notice of Supreme Court 49 Surrogate's Court 97 printing : Supreme Court, Trial Term 53 Special Term: judgments 69 orders 79 Surrogate's Court 100 statement under Rule 41 : Supreme Court 54 Surrogate's Court 100 afBdavit of no opinion 56 stipulation settling ease: Supreme Court 57 Surrogate's Court 102 order settling case: Supreme Court 57 Surrogate's Court 103 stipulation waiving certification, judgment: Supreme Court 57 Surrogate's Court, where case made 103 where no case made 104 City Court of the City of New York 112 order filing case: Supreme Court 58 Surrogate's Court 104 CERTAINTY: see Definite and Certain. CERTIFICATE: of estoppel 785 of incorporation, memorandum for drawing 18 of protest 786 of secretary of corporation authenticating resolution 126 of persons using assumed name 785 of County Clerk on application for final judgment in divorce 610 Index. 909 [All references are to pages.] CERTIFICATION : waiver of: on appeal from final judgment: Supreme Court, Trial Term 57 Special Term' 70 interlocutory judgment on demurrer 77 orders 80 on appeal from Surrogate's decree, when case made 103 when no case made 104 on appeal from City Court of the City of New York 112 CHATTELS : recovery of, see Replevin. CHATTEL MORTGAGE: usual form 773 statement for renewal of 775 renewal of, how made, note 776 CHECKS ON CLOSING OP TITLE: when acting for vendor 162 vendee 166 mortgagor 170 mortgagee 174 CHILDREN: clause in will disinheriting 893 see Adoption; Genebal Guabdian; Special Gttabdian; Infants. CITATION: to attend probate 620 affidavit of service of 621 waiver of issuance and service of 619 on application for letters of administration 625 CITY: notice of claim against, for personal injury 208 on contract 211 , CITY COURT OF THE CITY OF NEW YORK: security for costs 270 appeal from judgment: Trial Term 106 no jury 115 appeal from order 118 see Appeals. CLAIM: agreement by executors to refer disputed 732 notice of, under Employers' Liability Act 211 to the Comptroller of the City of New York 208, 211 910 Index. [All references are to pages.] CLIENT: see Infokmation to be Obtained from Clients ; Instruction. CLOSING OF TITLE : affidavit of title 726 checks on: when acting for vendee 166 vendor ^^^ mortgagee 1'''4 mortgagor 170 CODICIL 895 COMMISSION TO TAKE TESTIMONY 363 affidavit for 358 order for 360 instructions to accompany 363 COMPLAINT: motions as to: striking out irrelevant matter 279 redundant matter 285 scandalous matter 279 making more definite and certain 288 decision on dismissal: Trial Term, without jury 508 Special Term 511 judgment dismissing : Trial Term 518 Special Term 519 on the merits 520 for goods sold and delimered 223 agreed price , 221 reasonable value 222 plaintiff foreign corporation , 2^4 upon account stated 239 foreclosure, long form 243 short form 249 fer instalment of rent due upon lease 228 for toss of baggage, against hotelkeeper 237 for money had and received 227 for negligence against employer 231 railroad 233 municipal corporation 235 on promissory note^ payee against maker 240 setting forth copy of note 241 payee against maker and indorser '. 242 replevin 251, 255 unlawful detention 253 unlawful taking 254 for services rendered by physician 225 see Dismissal of Complaint; Verification. Index. 911 [All references are to pages.] COMPOSITION AGREEMENT . . .' 739 COMPTROLLER OF CITY OF NEW YORK: notice of claim to, what to contain, note 209 •for personal injury 208 on contract , 211 CONFESSION OF JUDGMENT: statement for 512 judgment entered on 513 costs on judgment upon 513 CONSENT: substitution of attorneys upon 416 diseontii^uance of action by 419 restoring to calendar by 425 restoring case marked " reserved generally "by 435 CONTESTING WILL : clause revoking legacy for 893 CONTINGENT FEE: agreement for , 731 CONTINUING GUARANTY: agreement of 748 CONTINUING INVESTMENTS OF TESTATOR: power in will for 880 CONTINUING BUSINESS OF TESTATOR: see Speciax Clauses in Will. CONTINUANCE OF ACTION: see Revival of Action. CONTRACT: notice of claim on, against municipal corporation 211 for real property, to sell 744 to exchange 746 facts to ascertain before signing: when acting for vendor 12 when acting for vendee 15 letter to vendor '. 155 see Agheement; Checks on Closing op Title. CONTRACTOR : mechanics' lien against 692, 702 912 Index. [All references are to pages.] CORPORATION: acknowledgment by 720 acknowledgment by (statutory) 125 in testimonium clause 730 verification by 263 facts to ascertain before forming 18 for preparing by-laws 18 proposal to sell to new corporation 124 tickler for completing organization 21 letter to new corporation 120 form of resolution 125 certificate of secretary authenticating resolution 126 afiidavit of service on ^r?^. 323 general assignment by 798 notice of mechanics' lien by 690, 694, 696, 698 against 690, 702, 704 I power in will to form 881 see Examination befobe Teial; B'oeeign Cobpoeation. COSTS AND DISBURSEMENTS: security for costs 270 items of 521 on judgment by confession ' 513 by default 515 re-taxation 531 see DiSBUBSEMENTS AND COSTS. COUNSEL: adjournment of trial because of absence of 474 affidavit of merits by 274 agreement for retainer 731 allowance to 501 COUNTERCLAIM: interlocutory judgment overruling demurrer to 498 sustaining demurrer to 500 decision overruling demurrer to 496 demurrers to 305, 306, 307 COURT ORDER: caption 483 affidavit of service of 327 CO\Ti]NANT NOT TO SUE: see Geneeal Release. CREDITORS: see Geneeal Assignment. DEATH: complaint in action for negligently causing .-n 229 see Revival of Action. Index. 913 [All references are to pages.] DE BENE ESSE: see Examination Befobe Tbial. DEBTS: direction in will to pay 879 DECISION: procedure on appeal from: Supreme Court 67 City Court of the City of New York 115 of judge after trial without jury dismissing complaint on merits. . . 507 dismissing complaint, special term 511 overruling demurrer to complaint 493 counterclaim 496 DECREE : see Divorce; Judgments; Stjbbogate's Deceee. DEED: information to obtain for drawing 7 checks on closing when acting for vendor 162 checks on closing when acting for vendee 166 short form, warranty 788 quit claim ^ 789 of referee in foreclosure 7S0 DEFAULT: danger of, note 425 in pleading, judgment on 516 statement on 515 costs on 516 in opposing motion to short cause, motion to open 462 on trial: motion to set aside judgment entered on 470 order setting aside judgment entered on 466 DEFECT IN PARTIES: as ground of demurrer 297 DEFECTIVE VERIFICATION: notice as to 269 DEFENSE: verification of 261 interlocutory judgment sustaining demurrer to 499 demurrers to 304, 305 see Answees. DEFINITE AND CERTAIN: motion to make pleading 288 58 914 Index. [All references are to pages.] DEMAND: interest from date of 332 for bill of particulars 335, 336, 338 for copy of account 332 see Bill op Pabticulaks. DEMURRER. before serving what to consider, note 293 need not be verified 261 to complaint: in language of code 293 no jurisdiction of subject-matter 294 defendant 293 no legal capacity to sue 294 another action pending 295 misjoinder of parties 296 defect of parties 297 misjoinder of causes of action 298, 299, 300 facts insufficient to constitute a cause of action 301 upon several grounds 302 extension of time to plead on appeal, from judgment overruling.. 71 to answer: note 304 to defense: insufficient in law 305 and counterclaim 305 to counterclaim: facts do not state proper counterclaim 305 lack of jurisdiction 306 another action pending 306 not of character stated in section 501, C. C. P 306 lack of capacity to recover on 307 procedure on appeal from judgment overruling 75 to reply: insufficient in law 308 see Decisions; Interlocutory Judgments; Hints on Appeal FROM InTEKLOCUTORY JUDGMENTS. DENIALS IN ANSWERS: general , 309 upon iniormation and belief 31(j of knowledge or information sufficient to form a belief 311 mixed denials and admissions 312 DEPOSITIONS AND COMMISSIONS: see Examination Before Trial ; Commission to Take Testimony. . . Index. 915 [All references are to pages.] DEVISE: of dwelling to wife 886 in trust for children 888 of residuary estate in trust 886 DISAGREEMENT OP JURY: restoring case after ...» 429 DISBURSEMENTS AND COSTS: table of 521 DISCHARGE OF JUDGMENT: see Satisfaction op Judgment. DISCOVERY AND INSPECTION: note 395 petition for 395 order for 398 DISMISSAL OF COMPLAINT: decision on : Trial Term, without jury 507 on the merits 508 Special Term 511 for failure to prosecute 403 • judgment on: Trial Term 518 Special Term 519 on the merits 520 notice of appeal from judgment on 561 upon default, procedure to open 470 DISPUTED CLAIM: agreement by executor to refer 732 DIVORCE: indorsement on summons in action for 213 interlocutory decree 606 motion for final decree 608 affidavit 609 certificate of clerk on 610 final decree 610, 612 DOMESTIC RELATIONS: see Adoption, Divobcb, Husband and Wife, Mabriage. DOWER: legacy in lieu of • 879 EMPLOYER: notice of claim to, under Employers' Liability Act 211 complaint in action against, for personal injury 231 916 Index. [All references are to pages.] EMPLOYERS' LIABILITY ACT: Notice to employer under 211 complaint under 231 ENDORSEMENT: see Indoksement; Summons. ESTOPPEL CERTIFICATE 785 EXAMINATION: of witness as to mental capacity of testator 34 in supplementary proceedings, suggestions for 26 before trial, suggestions for 364 physical, before trial 399 see Discovery and Inspection. EXAMINATION BEFORE TRIAL: of party: note 364 affidavit to obtain, by party 367, 373, 379 by attorney 370 order for 371 party a corporation 372, 376 of witness: note 366 affidavit to obtain 390 order of reference 392 order for, before referee 393 notice of 394 EXCEPTION TO SURETIES: notice of 491 EXCEPTIONS TO DECISION: notice of 556, 557 EXCHANGE OF REAL PROPERTY: contract for 746 EXECUTION: undertaking to stay, on appeal 568 against income: note 549 notice of application for 549 affidavit on application for 550 order directing issuance of 553 execution 555 against property 539 EXECUTOR: acknowledgment by 724 agreement by, to refer disputed claim 732 letter of instructions to 129 Index. 917 [All references are to pages.] EXECUTOR — (Continued) : guide for attorney of I33 oath of Qi'j verification by 262 accounts of: petition for judicial settlement of (voluntary) 641 account and schedules 643 verification of 647 see Special Clauses in Will. EXTENSION OF TIME TO PLEAD: general : note 275 pending appeal from interlocutory judgment: order 73 stipulation 71 afiB.davit 74 in order granting bill of particulars 344 by stipulation 275 by motion 276 FAILUKE TO PROSECUTE: dismissal of complaint for 463 FALSE STATEMENT: as ground for attachment 193 aa ground for arrest 206 FEES: see Attobnets; Disbubsements and Costs. FILING CASE ON APPEAL. order 53 under Rule 35 G. P. R 50 FIRST DEPARTMENT: see Appellate Division. FIRST INTERVIEW WITH CLIENT; useful questions on: generally 1 in actions for personal injury 3 to prepare notice of mechanics' lien 5 forming corporation 18 FORECLOSURE OF MORTGAGE: notice to foreclose, by mortgagor to owner of mortgage 161 steps to take in action of 36 practice and forms 575 complaint, long form 243 short form 249 918 Index. [All references are to pages.] FOEECLOStJEB OF MORTGAGE — (Continiied) : notice of appearance 220 affidavit on application for judgment 577 notice of filing report of referee to compute 584 to sell 597 deed of referee in 790 see SuBPLTJS Monet Peoceedinqs. FOREIGN CORPORATION: complaint by, for goods sold by 224 notice of mechanic's lien by 702 verification by 263 verification by attorney of 264 verification of answer by 265 FRAUDULENT SALE OF GOODS IN BULK 764 FOURTH DEPARTMENT: see Appellate Division. GENERAL ASSIGNEE. see Assignee foe Benefit of Ceeditoes. GENERAL ASSIGNMENT FOR BENEFIT OF CREDITORS : by individual 796 by corporation 798 by partnership 801 composition agreement 739 see Assignee foe Benefit of Ceeditoes. GENERAL DENIAL: see Answers ; Denials in Answees. GENERAL GUARDIAN: letter of instruction to 127 of infant over fourteen: petition for appointment of 630 consent of 631 oath of 632 inventory and account of 632 of infant under fourteen : what petition for, appointment of, must show, note 627 petition for appointment of .-■;-.. 627 to whom notil» of application for, given 628 consent of 629 oath of 629 inventory and account of 632 GENERAL LEGACY 879 Index. 919 [All references are to pages.] GENERAL RELEASE: effect of seal on, note 807 answer pleading 319 usual form 807 covenant not to sue 808 reserving rights against some of several joint debtors 808 GOODS SOLD AND DELIVERED: complaints in action for S^21 GUARANTY: continuing agreement of 748 of performance by lessee of covenants of lease 841 GUARDIAN: see General Guardian. GUIDE FOR ATTORNEY: of executor 133 of administrator - 139 of assignee for benefit of creditors 147 on closing of title 162, 166, 170, 174 HINTS: on drawing partnership agreement 23 on preparation for trial 25 on supplementary proceedings 26 on ascertaining residence 32 on examining witness as to mental capacity of testator 34 on steps to take in foreclosure action 36 on appeal procedure 38 see Closing of Title; Appeals. HIRING: agreement of 731 HOTEL: complaint in action against keeper of, for loss of baggage 237 HUSBAND AND WIFE: endorsements on summons in matrimonial actions 213 letter to survivor, as to interest in other's property 159, 160 see Adoption ; Divobce ; Mabbiage. INCOME: execution against 549 INCORPORATION: memorandum for drawing certificate of 18 920 Index. [All references are to pages.] INDEFINITBNESS OF PLEADING: see Pleadings. INDEMNITY: agreement of 735 see Bond. INDIVIDUAL: acknowledgment by 716, 717, 718 INDORSEE: see Complaints; Pleadings. INDORSEMENT: assignment of account as security for 751 assignment of instrument by 749 assignment of account to secure : 7S1 on proposed amendments to case on appeal: Supreme Court 48 Surrogate's Court 9& see Summons. INFANT: how service made upon 325 affidavit of service upon 324 see Adoption; General Guardian; Special Guardian. INFORMATION AND BELIEF: see Answers. -INFORMATION TO BE OBTAINED FROM CLIENTS. general questions on first interview with 1 in action for personal injury 3 to file mechanics' lien 5 to draw deed 7 mortgage 9 contract to sell real property 12 contract to huy real property 15 to form eorporation 18 to draw hy-laws 18 partnership agreement 23 INJURY TO PERSON: see Pebbonal Injury. INQUEST: see Default, INSOLVENCY: " se« Bankruptcy; General Assignment. INSPECTION AND DISCOVERY: see Bills of Particulars; Discovert and Inspecton; Examination Befobe Tbal. Index. 921 [All references are to pages.] INSTRUCTIONS TO CLIENTS: to administrator 13g assignee for benefit of creditors 141 new corporation 120 executor 129 general guardian of infant under 14 127 hushamd re wife's property 160 surviving partner 156 receiver in bankruptcy/ 150 vendor of real property 155 toidow re husband's property 159 INSURANCE: covenant in mortgage for payment of 859 see Mortgages. INTEREST: when it runs 332 INTERLOCUTORY JUDGMENT: in divorce 606 in foreclosure 588 hints on appeal from 71 stipulation extending time to answer pending appeal from 71 affidavit on application for stay pending appeal from 74 order granting stay, pending appeal from 73 printed papers on appeal from 76 overruling demurrer to complaint 494 sustaining demurrer to complaint 495 overruling demurrer to counterclaim 496, 498 sustaining demurrer to separate defense 499 sustaining demurrer to counterclaim 500 notice of appeal from 566 INTERROGATORIES: form of '. 362 notice of settlement of 361 IN TESTIMONIUM CLAUSE (corporation) 730 INVESTMENTS: power in will to continue 880 IRRELEVANT MATTER: see Motion. ISSUE: see Notes of Issue. JOINT DEBTORS: release of judgment against 540 release reserving rights against some, of several 808 922 Index. [All references are to pages.] JUDGE'S ORDER: affidavit of service of 326 caption 489 JUDGMENT: appeal from: Supreme Court : Trial Term 38 Special Term 67 City Court of the City of New York: Trial Term 106 no jury 115 Surrogate's Court, final decree 84 assignment of 752 on default in pleading, procedure to set aside 466 on confession 513 statement for 512 on default in pleading 516 statement for 515 for sum of money 517 dismissing complaint, Supreme Court: Trial Term 518 Special Term 519 on the merits 520 satisfaction of 540, 541, 542 costs on final 521 in foreclosure: notice of motion for 584 affidavit on motion for 585 judgment 588 service of, on parties 590 see Appeals; Costs and Disbubsembnts. JUDGMENT DEBTOR: see Examination; Supplementary Peoceedings. JUDGMENT ON DEMURRER: see Inteblocutoet Judgment 494 JURISDICTION: lack of, as ground for demurrer 294 JUROR: restoring case after withdrawal of 432 JURY: restoring case after disagreement 429 JUSTIFICATION OF SURETIES: notice of ....,■>. 492 Index. 923 [All references are to paees.1 LABOR: see Mechanic's Lien. LANDLORD AND TENANT: complaint for instalment of rent in lease 228 see Lease. LEASE: of apartment glO 813 of house (common covenants) 817 Astor form 820 Lorillard form 822 of office 824 of place of business: floor space 832 store i 837 of entire building ; 843 assignment of 753 undivided half interest in 754 guaranty agreement with 841 power in will to 881 complaint for instalment of rent under 228 LEGACY: general 879 specific 879 in lieu of dower 879 residuary 879 immediate, to wife 886 cutting oflf wife 892 cutting off son 893 revoking for participation in contest 893 assignment of, prohibited in will 894 LETTER OF TESTATOR: to accompany will 896 LETTERS TO CLIENTS: to administrator 136 to assignee for benefit of creditors 141 to executor 129 to general guardian 127 to husband, re deceased wife's property 160 to new corporation 120 to receiver in bankruptcy 150 to surviving partner 156 to vendor of real property 155 to widow 159 see Instktjctons to CiiiENTS. LETTERS OF ADMINISTRATION: petition for 623 renunciation of right to 625 citation on application for 625 924 Index. [All references are to pages.] LICENSE: of patent right 762 LIEN: renewal of chattel mortgage 7'^ see Mechanics' Lieks. LIMITATION OF ACTIONS, see STATura of Limitations. LIMITED PARTNERSHIP: certificate of formation of 777 certificate to renew 778- LIS PENDENS: note 213- in foreclosure 215- general form 21& LOSS OF BAGGAGE: complaint for, against hotelkeeper 237 MAIL: affidavit of service by 331 MARRIAGE : contract of, under Domestic Relation Law. 741 endorsement on summons in action to annul 213 MASTER AND SERVANT: agreement of hiring 731 MATERIALS: see Mechanics' Lien. MATRIMONIAL ACTIONS: see Divorce. MECHANICS' LIEN: what notice to contain, note 687 notice of: for materials supplied to owner by partnership 688 for materials supplied to owner by corporation 690 for materials supplied to contractor by individual 692 for material supplied to owner and contractor by domestic cor- poration , 694 for labor and materials supplied to owner by domestic corpora- tion 696 for labor and materials supplied to owner and contractor by do- mestic corporation 698 Index. 925 [All references are to pages.] MECHANICS' LIEN — (Continued): notice of — (Continued) : for labor and materials supplied to owner by individual 700 for materials supplied to contractor by foreign corporation 702 for materials supplied to subcontractor by domestic corporation. 704 for labor, by individual against corporation 706 on account of public improvement 707, 709 affidavit for continuation of 711 order continuing 712, 714 satisfaction of 872 MENTAL CAPACITY OF TESTATOR: questions to ask witness as to 34 MERITS : affidavit of, by party 273 by counsel 274 MISJOINDER: of causes of action: as ground of demurrer 298 of parties: as ground of demurrer 296 MONEY HAD AND RECEIVED: complaint for 227 what may be proved under, note 227 MORE DEFINITE AND CERTAIN: motion to make pleading 288 MORTGAGE: information to obtain for drawing 9 assignment of, without recourse 755 with covenant as to amount due 757 extension agreement 793 with mortgage tax law clause 851 second mortgage (prior mortgage clause) 855 second mortgage, common covenants 859 satisfaction of, before assignment 873 after assignment 874 power in will to 881 steps to take in an action to foreclose 36 checks on closing, when acting for mortgagor 170 mortgagee '• ^74 MORTGAGEE: notice to, by mortgagor, to foreclose 161 memorandum on closingwhen acting for 174 MORTGAGE TAX: covenant in mortgage for 851 926 Index. [All references are to pages.] MORTGAGOR: notice of, to mortgagee to foreclose 161 memorandum on closing when acting for 170 MOTION: note of issue for 424 relating to pleadings: see note 279 to strike out irrelevant matter 279 redundant matter 285 scandalous matter 279 making more definite and certain '. 288 for new trial: order denying 536, 537 to open default: for failure to oppose motion to short cause 462 see Notice op Motion. MUNICIPAL CORPORATION: notice of intention to sue 208 notice of claim against, when necessary, note 209 complaint in action against, for personal injury 235 MUNICIPAL LIENS: notice of mechanics' lien 707, 709 information to obtain for preparing 6 NECESSARIES: execution against income in action for 549 NEGLIGENCE: complaint in action for 229 notice of claim against city for damages caused by 208 notice of claim against village for damages caused by 211 complaint against municipal corporation 235 see Bill of Pahticulabs. NEGOTIABLE INSTRUMENT: certificate of protest of 786 see Bills and Notes ; Promissobt Note. NON-RESIDENCE: security for costs 270 NON-SUBSCRIBING WITNESS: see Witness. NEW TRIAL: motion for 535 Index, 927 [All references are to pages.] NEW YORK COUNTY: discontinuance of action by consent in 419 notes of issue in 42i calendar practice in 425 preferences in 448 short cause calendar in 455 NO PERSONAL CLAIM: notice of, and of object of action 214 notice by mortgagor to mortgagee to foreclose 161 NOTE OF ISSUE: of fact 421 of law 422 of motion 424 see note 422, 424 NOTICE OF APPEAL: to Appellate Division: from judgment, Trial Term 559 Special Term , 560 dismissing complaint 561 from order 562 from part of order 563 from interlocutory judgment 566 from decree of surrogate 564 from order of surrogate ; 565 to Appellate Term from judgment of City Court of the City of New York 567 NOTICE OF APPEARANCE: general 213 special 219 in foreclosure 220 NOTICE OF APPROVAL: of sureties on undertaking on appeal 572 NOTICE OF ARGUMENT: Court of Appeals 573 Appellate Division 574 NOTICE OF CLAIM: in surplus money proceedings 598 against municipal corporation for personal injury 208 upon contract claim 210 against village for personal injury 211 against employer for personal injury 211 for preference 440 see Pebferences. 928 Index. [All references are to pages.] NOTICE OF ENTRY OF OEDER 490 NOTICE OF EXAMINATION OF WITNESS BEFORE TRIAL 394 NOTICE OF EXCEPTIONS: to decision 556, 557 to sureties 491 to sureties on undertaking on appeal *. 570 NOTICE OF FILING: of report of referee in foreclosure: to compute 584 to sell '. 597 NOTICE OF INTENTION TO SUE: when necessary, note 209 municipal corporation for personal injuries 208 on contract claim v 211 village for personal injuries 210 NOTICE OF JUSTIFICATION: of sureties on undertaking on appeal 571 NOTICES OF MECHANICS' LIEN 687-710 see Mechanics' Lien. NOTICE OF MOTION: .see Same Under Special Topics. NOTICE OF OBJECT OF ACTION AND NO PERSONAL CLAIM 214 NOTICE OF PENDENCY OF ACTION: see Lis Pendens, NOTICE TO PRODUCE: form 483 reminder for drawing 484 NOTICE OF SALE IN FORECLOSURE: see note 590 NOTICE a» SETTLEMENT: of order 487 of interrogatories 361 of proposed amendments Supreme Court 49 Surrogates Court 97 Index. 929 [All references are to pages.] NOTICE OF TEIAL: note 422 by plaintiff: Trial Term 405 Special Term 407 by defendant: Trial Term 406 Special Term 408 with claim for preference 443, 445, 452 OATH OF EEFEREE: in supplementary proceedings 26 in foreclosure 580 OPENING DEFAULT: in pleading 466 on trial 470 upon failure to oppose motion to short cause 462 ORDER: caption for court order 488 caption for judge's order 489 notice of settlement of 487 notice of entry of 490 application for resettlement of 489 to show caxise 486 continuing mechanic's lien 712, 714 see Same under Special Topics. PAPERS ON APPEAL: see Case on Appeal. PARENT AND CHILD: see Adoption; Genekal Guaedian; Speciai, Guabdian. PARTNERSHIP: acknowledgment by member of 722 certificate of continuance of name of 783 general assignment by 801 power of attorney to borrow money 866 in bankruptcy 869 notice of mechanics' lien by 688 against 694 hints for drawing agreement of 23 letter to surviving partner 156 see Limited Paetnbeship. PARTY: examination of, before trial 365 physical examination of, before trial 399 examination of, in supplementary proceeding 26 affidavit of merits by 273 •-59 930 Index. [All references are to pages.] PARTY- WALL AGREEMENT 733 PATENT: see Assignment of Patent; License. PAYMENT: answer pleading 313 PENALTY: endorsement on summons in action for 213 PENDENCY OF ACTION: see Lis Pendens. PERPETUATION OF TESTIMONY: see Examination Before Trial. PERFORMANCE OF CONTRACT: bond for 769 PERSONAL INJURY: information to obtain for actions for 3 notice of claim for, to city 208 to village 211 to employer 211 complaint in action for: against employer 231 against railroad 233 against municipal corporation 235 see Bill of Particulars. PERSONAL PROPERTY: see Replevin. PHYSICAL EXAMINATION BEFORE TRIAL; affidavit on motion for 402 order 399 PHYSICIAN: complaint by, in action for services a25 PLACE' OF BUSINESS: see Lease. PLACE OF TRIAL: suggested inquiries as to residence 32 PLEADINGS: if printed when cost of may be taxed 525 unverified, note 269 see Answers; Bills or Particitlaes ; Complaints; Demttrrebs; Extension of Time; Motion; Reply; Verification 261 Index. 931 [All referencea are to pages.] POWER OF ATTORNEY: short form 864 to manage business 864 to manage real property to borrow money 866 in bankruptcy, general 869 special 870 POWERS : see Special Clause in Will. PREFERENCES 440 notice of claim for 442 combined with notice of trial 443 on appeal, note 60, 61, 64, 66 over issues of same term 443 over issues of prior term 445 under rule 36, G. P. R 452 short causes 455 under subdivision 2, rule 5, First Department 448 see Calendae Peaciice. PREPARATION FOR TRIAL: suggestions for • 25 PRINTED PAPERS ON APPEAL: from interlocutory judgment on demurrer 76 from orders Supreme Court, Special Term 79 preparation of, appeal from: judgment Trial Term 53 Special Term, decision 69 Surrogates' Court 100 PRINTED PLEADINGS: costs of when taxed as disbursement 525 PROBATE OF WILL: affidavit of service of citation 621 affidavit of value 618 citation to attend 620 oath of executor 617 petition for 615 waiver of citation to attend 619 suggestions for examination of witness to will 34 PROCESS, SERVICE OF: see Affidavit of Seevice, PROOF OF DEBT IN BANKRUPTCY 678, 682 PROOF OF SERVICE: see tIffidavit of Service. 932 Index. [All references are to pages.] PROMISSORY NOTE: certificate of protest of 786 complaint upon: payee vs. maker 240 payee vs maker, setting forth note 241 payee vs. maker and indorser 242 PROPOSED AMENDMENTS: form of, Supreme Court 47 indorsement on Supreme Court 48 form of, Surrogate's Court " 96 indorsement on Surrogate's Court 96 PROPOSED CASE ON APPEAL: Supreme Court: form of 45 what to contain 42 Surrogates' Court: form of, appeal from decree 92 what to contain 90 PROTEST: certificate of 786 PUBLIC IMPROVEMENTS: notice of mechanic's lien against 707, 709 PURCHASER: see Vendee. POWER IN WILL: to continue investment 880, 883 of sale 880r 883, 884 to mortgage and lease 88,1 to continue business 881 to incorporate business 881 of appointment 888-891 QUANTUM MERUIT: complaint upon, goods sold 222 services 225 QUESTIONS: in supplementary proceedings 26 when residence involved 32 when mental capacity involved 34 useful general questions to a^k clients 1 in preparing by-laws 18 contract to buy real property 15 contract to sell real property 12 in forming corporation 18 to draw deed 7 Index. 933 [All references are to pages.] QUESTIONS— (OowtinMed) : useful general questions to ask clients — (Continued): to draw mortgage 9 to draw partnership agreement 23 in action for personal injury 3 in preparing notice of mechanic's lien 5 QUITCLAIM DEED 789 RAILROAD : complaint for personal injury against 233 REAL PROPERTY: agreement for sale of 744 for exchange of 746 facts to ascertain before contracting to buy 15 to sell 12 letter to vendor of •. 155 party wall agreement 733 see Deeds; Infobmation to be Obtained fbom Clients; Mort- gages. RECEIVER: letter of instruction to, in bankruptcy 150 verification by 262 order appointing in supplementary proceedings 547 see Mobtgages. RECORD ON APPEAL: see Case on Appeal. RECOVERY OF CHATTELS: see Replevin. REDUNDANT MATTER: see Motion. REFEREE: take testimony before trial 392 in foreclosure: deed of 790 oath of 580 report of, to compute 581 to sell 593 in supplementary proceedings: oath of 26 report 31 subpoena of 480 oath of: in supplementary proceedings 26 in foreclosure 580 934 Index. [All references are to pages.] REFEEIEE — ( Continued ) : report of: in supplementary proceedings 31 in foreclosure • 580 to compute 581 to sell 593 in surplus money proceedings 602 see FOBECLOSDBE; SUPPLBMENTAET PbOCEEDINGS; SuBPLTJS MONBY Pboceekings. REFERENCE: consent to, of disputed claim against decedent 732 in foreclosure: to compute 575 notice of motion for 575 afBdavit on motion for 577 order of 579 to take testimony before trial 392 in supplementary proceedings 26 in surplus money proceedings 599 RELEASE: answer pleading 319 of judgment against joint debtors 540 of cause of action, joint debtors 808 see General Release. REMOVAL OF GOODS AS GROUNDS FOR ARREST: see Aeeest. RENT: complaint for instalment of, under lease 228 REPLEVIN: complaint 251 unlawful detention 253 wrongful taking 254 another form 255 affidavit 257 requisition 258 undertaking 259 REPLY: verification of 261 striking out matter in 279 demurrer to 308 REPORT OP REFEREE: in foreclosure: to compute 581 to sell 593 in surplus money proceedings 602 in supplementary proceedings 31 Index. 935 [All references are to pages.] REQUISITION ON REPLEVIN 258 RESIDUARY LEGACY 879 RESETTLEMENT OF ORDER: notice of application for 489 RESERVED CASES: restoring to calendar 435 RESIDENCE : suggested lines of inquiry as to S2 RESOLUTION OP CORPORATION: form of 125 certificate by secretary authenticating 126 RESTORING CASE TO CALENDAR 425 after disagreement of jury 425 after withdrawal of juror 432 " Reserved generally " 435 after reversal 436 RETAINER: agreement '. 731 RETAXATION OF COSTS 531 notice of motion for 531 affidavit on motion for 532 order retaxing 534 REVERSAL: restoring case to calendar after 436 REVIVAL OF ACTION 409 RULE 41: statement under 54 Supreme Court 54 Surrogates' Court 100 SALARY: execution against S49 SALE : in foreclosure: terms of 591 referee's report of 593 notice of filing of referee's report of 597 power of in will 880 of goods in bul'/c, when fraudulent, note 764 936 Index. [All references are to pages.] SATISFACTION OF JUDGMENT: releasing one of several joint debtors 540 by attorney, one of firm 541 more than two years after entry 642 SATISFACTION OF MORTGAGE: before assignment 873 after assignment 874 production of mortgage on 873 SATISFACTION OF MECHANIC'S LIEN 872 SCANDALOUS MATTER: motion to strike out 279 SECOND DEPARTMENT: see Appellate Division. SECURITY FOR OOSTS . . , 270 SEPARATION: indorsement on summons in action for 213 SELLER: see Vendoe. SERVICE AND HIRING: agreement of 731 SERVICE: how made on infant, note 325 of summons on foreign corporation 324 see Aftidavit of Service. SERVICES RENDERED: complaint for, by physician 225 SET-OFF: see COUNTEKCLAIM. SETTLEMENT: of interrogatories 361, 363 of case on appeal: notice of : Supreme Court 49 Surrogates' Court 97 stipulation settling case: Supreme Court 57 Surrogates' Court 102 order settling case: Supreme Court 57 Surrogates' Court 103 notice of, of order 4g7 Index. 937 [All references are to pages.] SHORT CAUSE CAIJENDAE: advancing cause to 455 SHOW CAUSE: order to 486 SPECIFIC LEGACY 879 SPECIAL CLAUSES IN WILL: directing payment of debts and funeral expenses 879 specific legacy 879 general legacy 879 residuary legacy 879 legacy in lieu of dower 879 power of appointment 888 power to continue business 881 power to contirtue investments 880 power of disposal 883 power to form company 881 power to mortgage and lease 881 authorizing renting of office of estate 885 power of sale 880, 883 power to ^vest 883 appointing guardian 883 lapsed legacies 884 charging annuity on estate 891 devise of dwelling 886 immediate legacy to wife 886 bequest in trust 888 bequest in trust for son 891 bequest to wife 892 effect of remarriage 892 legacy cutting off wife 892 legacy cutting off son 893 revoking legacy in case of contest 893 directing trustees to disregard assignment of legacy 894 to pay debts 879 see WiLi.. SPECIAL GUJOIDIAN {infant over 14) : affidavit of proposed, on application for 638 affidavit of parent on application for 639 consent of proposed 637 order appointing 640 petition for appointment of 635 SPECIAL NOTICE OF APPEARANCE 219 SPECIAL PARTNER: affidavit of capital contributed by 778 938 Index. [All references are to pages.] SPECIAL TERM: notice of trial 407, 408 see Appeals; Notice oe Appeal. STATUTORY PENALTY: indorsement on summons in action for 213 STATEMENT UNDER RULE 41: form of: Supreme Court 54 Surrogates' Court 100 STATUTE OP FRAUDS: answer pleading: contract not to be performed within one year 317 sale of goods, value over fiftjr dollars 318 see Answebs. STATUTE OF LIMITATIONS: answer pleading 316 see Answebs. STAY OF EXECUTION ON APPEAL: when to move for > 38 when runs from 39 undertaking to 568 order for, pending appeal from interlocutory judgment 73 affidavit to obtain above order 74 STENOGRAPHERS' MINUTES: cost of taxed as disbursement 525 order allowing cost of as disbursement 535 STIPULATION: extending time to answer pending appeal 71 settling case: Supreme Court 57 Surrogates' Court 102 waiving certification: on appeal from final judgment, Supreme Court 57 Special Term decision, Supreme Court 70 interlocutory judgment on demurrer 78 orders. Supreme Court, Special Term 80 Surrogates' Court where case made 103 where no case made 104 STRIKING OUT: irrelevant, redundant and scandalous matter 279 SUB-CONTRACTOR: see Mechanics' Liens. Index. 939 [All references are to pages.] SUBPOENA DUCES TECUM: form of 479 remainder for drawing 434 SUBPOENA TO TESTIFY: in court 4'7g before referee 480 affidavit of service of 481 on several witnesses 482 SUBSCRIBING WITNESS: acknowledgment by 719 to will: questions to ask, when mental capacity involved 34 SUBSTITUTION OP ATTORNEYS 416 SUBSTITUTION OF PARTIES: see Revival or Action. SUGGESTIONS; see Hints. SUMMONS: form of, generally 212 notice under section 420, Code 212 indorsement on: in action for divorce 213 action for separation 213 action to annul marriage 213 in action to recover statutory penalty 213 by whom served 320 howserved on infant note 325 service upon foreign corporation 323 see Affidavit of Seevice. SUPPLEMENTARY PROCEEDINGS : affidavit for order , 544 order for 545 suggestions for conducting examination 26 order appointing receiver in 547 oath of referee in 26 form of record of 27 report of referee 31 order appointing receiver in 547 SURPLUS MONEY PROCEEDINGS: note 598 notice of claim 598 940 Index. [All references are to pages.] SURPLUS MONEY PROCEEDINGS— (Oon«i«Med) : reference to determine, note 602 affidavit oh motion for appointment of referee 599 order appointing referee 601 report of referee 602 order confirming referee's report 605 SURETIES: notice of exception to 491, 570 notice of justification 571 notice of approval of 572 justification of, on undertaking on appeal 41 SURROGATE'S COURT: affidavits and acknowledgments in 614 see Accounting; Adoption; Administeation ; Appeals; Genebai, Guardian ; Pbobate of Will ; Special Guabdian ; Tbansi-eb Tax Pboceedings. SURVIVING PARTNER: letter to 156 TABLE OF COSTS AND DISBURSEMENTS 521 TAX: see Tbanspee Tax Peoceednqs. TESTAMENTARY TRUSTEE: directions to, in will 864 see Special Clauses in Will. TESTATOR: letter of 896 questions to ask as to mental capacity of 34 TESTIMONY: commission to take 363 see Examination Befobe Teial. THIRD DEPARTMENT: see Appellate Division. TIME: extension of, to plead, pending appeal for interlocutory judgment. . 71 extension of, to plead generally 275 TITLE: affidavit of title 726 estoppel certificate 785 see Closing of Title. IiSTDEX. 941 [All references are to pages.] TRADE NAME. certificate by persons using 785 TRANSFER TAX PROCEEDINGS: resident : petition ggO order designating appraiser 661 affidavit for appraisal 662 notice of motion to have penalty remitted 672 affidavit on motion 673 notice of settlement of order 676 order remitting penalty 677 order fixing tax 665 non-resident : petition 666 order designating appraiser 667 notice of appeal to surrogate 669 order remitting to appraiser after reversal 671 see Hints on Residence. TRIAL: decision of judge on, without jury 507 decision on, dismissing complaint: Trial Term 508 Special Term 511 hints on preparation for 25 see Notice of Teial; Adjotjenment op Tbial; Detault; Subpoena Duces Tecum; Subpoena to Testify. TRIAL TERM: see Appeals, Notices of Appeal. TRUSTEE : acknowledgment by 723 prohibited from recognizing assignment of legacy 894 verification by '. 262 see Lettees to Guaedians, Executors and Administbatoes. TRUSTS : see Special Clauses in Wills. UNCERTAINTY IN PLEADING 288 see Motion. UNDERTAKING: on arrest 199 on attachment • 179 on appeal: form TrntTt • ••!-« 568 942 Index. [All references are to pages.] UNDEETAKING — (Oo«MM«ed) : approval of 40 from judgment, Supreme Court 40 City Court of City of New York to Appellate Term 108 to perfect appeal from Surrogates' Court, approval of 88 notice of approval of, generally 572 on replevin 259 see StTEETIES. IJNVEEiriED PLEADING, see note 269 USURY: answer pleading 315 VACATING ORDER: for examination before trial 387 see Default. VENDEE : facts to ascertain before drawing contract to buy real property. ... 15 memorandum on closing when acting for 166 VENDOR: facts to ascertain before drawing contract to sell real property 12 letter to 155 memorandum on closing when acting for 162 VENUE: information as to residence t 32 VERIFICATION: see note 261 by administrator 262 by assignee 262 by attorney or agent . ."^-t-^. 265, 266, 267 by attorney or agent, written instrument , 268 by domestic corporation v a/ 2m-. by executor 262 by foreign corporation . . . —-^w 263, 264 by party 262 by receiver 262 by trustee 262 when pleading should have 261 one of several parties 262 of answer by foreign corporation 265 of petition 398 of notice of mechanics' lien 689 notice as to, defective 269 VILLAGE : notice of claim against, for personal injury 211 Index. 943 [All references are to pages.] WAIVING CERTIFICATION OF CASE ON APPEAL: from Trial Term, Supreme Court 57 from Special Term, Supreme Court 70 from Special Term, Supreme Court, interlocutory judgment on de- murrer '. 77 from Special Term, Supreme Court, orders 80 from Surrogate's Court (case made) 103 from Surrogate's Court (no case made) 104 from City Court of the City of New York 112 WARRANT OP ATTACHMENT: see Attachment. WARRANTY DEED. short form 788 WIDOW : cutting oflf in will 892 legacy to, in lieu of dower 879, 882 letter to, as to interest in husband's property 159 see Special Claims in Wills Relating To. WIDOWER: letter to, as to interest in wife's property 160 WIFE: cutting oflf in will 892 legacy to, in lieu of dower 879, 882 letter to, surviving as to interest in husband's property 159 devise of dwelling to 886 WILL: mental capacity of testator 34 codicil to 895 attestation clause 895 letter of testator to accompany 896 suggestion for examination of witnesses to 34 short form of 875, 878 common general form 878, 882 entire estate to wife 875 of Marcus Daly 882 of Russel Sage 884 direction to pay debts 879 clause revoking legacy for contesting .». 893 see Special Clauses in Will; PEOBATfTor Wills. WITHDRAWAL OF JUROR: restoring case after 432 WITNESS: examination of, as to mental capacity of testator 34 acknowledgment by subscribing 719 see Examination of, Befoee Tbial; Deposition; Subpoena To Testify; Subpoena Duces Tecum.