■ ..■■■>]-.'S. i'^V,* T5^ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE- SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KFN5068.T56 The book of forms adapted to the New Yor 3 1924 021 898 337 QJorn^U Ham ^rlynnl ffiibtaty 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/details/cu31924021898337 THE BOOK OF FORMS ADAPTED TO THE NEW YORK PEACTICE DT ^ V ^ *» > \ \ . ' COURTS OF RECOED STATE OF NEW YORK BY JOEL TIFFANY and HENRY SMITH COUNSELORS AT LAW ALBANY WEAKE C. LITTLE LAW BOOKSELLER AND PUBLISHER 1865 y Entered according to Act of Congress, in tlie year one thousand eiglit hnndi'ed and sixty-five, liy WBAEE C. LITTLE, In the Clerk's Office of the District Court of the United States for the Northern District of New York. Weed, Pabsous ahd Compaht, Btereotypers and Printers, 59 State Street, Albany. PREFACE. In preparing this Book, it has been thought best to embody therein the Forms prepared and reported to the Legislature of ISTew York by the Commissioners of the Code. They prepared these Forms to conform the practice in this State to the requirements of the Code. It is, therefore, eminently proper that their fourth and final Eeport should be published as a part of the Book of Forms to accompany the New York Practice. Albajjtt, Felruary, 1865. BOOK OF FORMS. PARTI SUMMONS. No. 1. i. Summons in actions arising on contract for the recovery of money only ; the complaint leing also served. {Under sections 1%% and 129.) SUPEEME COUET. John Smith, Plaimtiff, against \ Summons. John Jones, Defendant. You are hereby smnnioned to answer tke complaint in this action, a copy of which is herewith served upon you, and to serve a copy of your answer upon me, at my ofi&ce, [No street,] ia the [city] of [Albany,] within twenty days after the service hereof, exclusive of the day of service. And if you fail to do so, the plaintiff will take judgment against yoa for dollars, with interest from the .... day of ,18... A. B., Plaintiff's Attorney. [Albant, January 1, 1861.] To the defendants above named. 2 BOOK OF FORMS. No. 2. ii. Summons in other actions; the complaint being also served. ( Under sections 128 and 129.) ["Title.] You are hereby summoned to answer the complaint in this action, a copy of •which is herewith served upon you, and to serve a copy of your answer upon me, at my office, , within twenty days after the service hereof, exclusive of the day of service. And if you fail to do so, the plaintiff will apply to the court for the relief demanded in the complaint, A- B., Plaintiff's Attorney. [Date.-] ^ To the defendants above named. No. 3. iii. Summons in actions arising on contract, for the recovery of money only; the complaint not being served. {Under sections 128, 129, 130.) [TitlkJ you are hereby summoned to answer the complaint in this action, which will be [or, which is] filed with the clerk of . . . . , and to serve a copy of your answer upon me, at my office, , within twenty days after the service hereof, exclusive of the day of service. And if you fail to do so, the plaintiff wiU take judgment against you for doUars, with interest from the . . . day of . . . ., 18. .. A. B., Plaintiff's Attomeu. [Date.] ^ To the defendants above named. BOOK OF FORMS. 8 SUMMONS. No. 4. iv. Summons in other actions; the complaint not being served. {Under sections 128, 129, 130.) [As in No. 3, to the word " service " ; and continue:'] And if you fail to do so, the plaintiff will apply to the court for the relief "demanded in the complaint. A. B., Plaintiff'a Attorney. [Date.] To the defendants above named. PART II . PLEADINGS. Chapter I. COMPLAINTS. II. DBMTJREERS. ni. ANSWERS. IT. SUBSEQUENT PLEADmaS. CHAPTER I. COMPLAINTS. Title 1. G-ENEBAI, FORM. 2. Bt or AflAINST PARTIOUIAR PEESOUS. 3. POH DEBT. 4. eor damages, upon contraot. 5. For damages, upon wrongs. 6. Foe spEoaTa property. 7. pok special relief. 8. For obdinart and special relief unitsdi. BOOK OF FORMS. COMPLAINTS. TITLE I. GENERAL FORM. No. 5. General form of complaint; containing several catcses of action^ {Under sections 142, 167.) SUPEEME COUET. [JSTames of all the plaintiffs ] ) Complaint. <^gainst > 'County of [Albany.] [ Names of all the defendants.] V The plaintiff complains, and alleges : First: For a first claim:' I II • Ill Second: For a second claim : I U m Third: For, a third claim : I : II Ill Wherefore the plaintiff demands judgment: 1 2 A.B., Plaintiff's Attorney. [Albany, January 1, 1861.] IVerification.] • The word count is inapplicable to pleadings under the Code, which rejects fictions, and therefore cannot admit different modes of stating the same cause. If there be really different causes of action to be stated, they should be called, as they are, different causes of action, or more shortly different claims. BOOK OF FORMS. COMPLAINTS. TITLE IL BY OR AGAINST PAETICULAR PEBSONS. No. 6. i. By an executor. SUPBEME COURT. John Smith,' as executor of the ■willl of James Smith, deceased, ( _, _ , _ againJt COUNTT OF [ALBANY.] John Jones. J The plaintiff complains, and alleges : I. [State a cause of action accruing to the testator.'^ II. That the said James Smith in his lifetime made and pub- lished his last will, whereby he appointed the plaintiff executor thereof. III. Thdt on the. . . .day of , 18 . ., at , the said James Smith died. ' The word " as " is essential, nor can it be easily replaced by any other word. Thus a declaration which invariably, and more than a dozen times, mentioned the plaintiff as "the said Sarah, executrix as aforesaid," closing with profert of letters testamentary, was held to be fatally defective under the old practice. (SenshaU v. Roberts, 5 East, 151, 154.) The same rule has been settled in the court of appeals. (Compare MerriU v. Seaman, 6 N. T., [2 Seld.J, 168, with Smith v. Levinus, 8 K Y. [4 Seld.J, 474; and see also Gould Y. Olass, 19 Barb., 185; Sheldon v. Eoy, 11 How., 14; Ogdenshurgh Banky. Van Rensselaer, 6 Hill, 241.) If the plaintiff's character is thus stated in the title, it is not necessary to repeat it, but he may afterwards be called " the plaintiff." (See Stanley.v. ChappeU, 8 Cow., 235.) 'Promises made to the testator should not be stated as made to "the plaintiff" {Warden Y. Worthington, 2 Barb., 370; Christopher v. Stockholm, 5 Wend., 36.) BOOK OF FORMS. COMPLAINTS. IV. That' on the day of , 18 . ., letters testamentary were duly issued on the said ■will, to the plaintiff, by the surrogate of the county of ' [Demand of Judgment] No. 7. ii By an administrator. SUPEEME COUET. John Smith, as administrator of the) estate of James Smith, deceased, ( n„„„,„-.^ „„ agair^t ' > ^OUNTY OF John Jones. The plaintiff complains, and alleges : I. [State a catise of action accruing to the intestate.} IL That on the .... day of , 18. ., at , the said James Smith died intestate. III. That on the day , 18. ., letters of administration upon the estate of the said James Smith were duly issued by the surrogate of the county of , to the plaintiEf, by which he was appointed administrator of all the goods and credits belonging to the said James Smith at the time of his death." [Demand of Judgment.] ' The surrogate's jurisdiction is all that need be shown. (Emery v. HUdreth, 2 Gray, 228; see Bloom v. Burdich, 1 Hill, 134.) And this is sufSciently pleaded by the use of the word " duly." (Code, § 161.) The executor's authority to sue depends -solely upon the letters testamentary. (Thomas v. Camion, 16 "Wend., 580.) ^ The surrogate's jurisdiction is sufficiently shown. (Code, § 161.) It seems proper to show what kind of administrator the plaintiff claims to be. He might be an administrator de bonis non. The defendant might have paid the debt to some one claiming to be administrator, and might desire to know whether the claims of the two conflicted. The omission of this clause would not, however, be any ground for demurrer, and rarely for even a motion. BOOK OF FORMS. COMPLAINTS. No. 8. iiL Against an executor. SUPREME COURT. John Smith 1 ' against CoUNTY OF William Jones, as executor of the! will of John Jones, deceased. ) The plaintiff complains, and alleges : I. [State a cause of action against the testator.'] II. That the said John Jones is dead m. That the defendant is the executor of the last mil of the said John Jones.' \Demand of Judgment] No. 9. iv. Against an administrator. SUPREME COURT. John Smith J agai'^t (.County OF William Jones, as administrator of the( ' estate of John Jones, deceased. | The plaintiff complains, and alleges : I. [State a cause of action against theintestate.'j II. That the said John Jones has died intestate. m. That the defendant is administrator of the estate of the said John Jones.' \Demand of Judgment.} ' If letters testamentary have not been issued, the defendant is not an executor. {Thomas t. Cameron, 16 Wend., 579.) And as the matter is clearly within the defendant's knowledge, the plaintiff may use a very general method of pleading. Everything necessary to constitute the execu- torship is included in this averment. 2 10 BOOK OF FORMS. COMPLAINTS. No. 10. V. By the committee of a lunatic or drunkard. SUPREME COURT. John Smith, as committee of James J Smith, a lunatic \pr habitual drunk- / ard], JCOUNTT OF. against \ John Jones. j The plaintiff complains, and alleges : I. \_State the cause of mtion, if it accrued to the lunatic before the appointment of the committee! If it accrued afterwards, state it after the next articles!] II. That on the day of , 18 . . , at , the supreme court, at a special term thereof, [or, the county court of the county of , or otherwise,'] duly ' adjudged the said James Smith to be a lunatic [or, of unsound mind, or, an habitual drunkard.] III. That, [at the same time and place, or on, tfcc, at &c.,] the said court duly ' appointed the plaintiff committee of the said James Smith, with the [usual] powers. [Demand of Judgment.] ' If the appointment was made by the supreme court, the word " duly " may be omitted, as jurisdiction will be presumed. (See Shorn v. Burdick, 1 Hill, 130.) If made by a county court, " duly " is sufficient, and proper, to show jurisdiction in pleading. BOOK OF FORMS. 11 COMPLAIIfTS. No. 11. vi. Against the committee of a lunatic, &c. SliPREMB COUET. John Smith William Jones, as committee of) CoUNTY OF John Jones, a lunatic \or habitualV drunkard]. The plaintiff complains, and alleges : L [State a cause of action against the lunatic.] II. Tliat afterwards [or on the day of , 18 . .] the said John Jones was duly ' adjudged by the [supreme] court to be a [lunatic] III. That the defendant was duly ' appointed by the said court committee of the [person and] estate of the said [lunatic] Wherefore the plaintiff demands judgment for dollars, with interest from , to be paid out of the estate of the said John Jones in the hands of the defendant No. 12. vii. By a public officer. SUPREME COURT. EoBEKT Denniston, fas controller of) the State of New York,] { „ c^amst > County OF John Jones. The plaintiff complains, and alleges : I. That he is the [controller] of the [State of New York.]' II. [State the cause of action.'] [Demand of Judgment] ' See note Ij on page 10. ^ This allegation is proper, and might be required on motion, if omitted, though the complaint would be good on demurrer without it. (Compare Chuld V. Glass, 19 Barb., 185, with Smiffi v. Leuinvs; b IS. Y. [4 Seld.|, 447.) 12 BOOK OF FORMS. COMPLAINTS. No. 13. viii. By a receiver, anointed hy the court in an action. SUPEEME COUET. John Smith, as receiver of / against > COUNTT OF John Jones. N The plaintiff complains, and alleges : I. [State the original cause of action.] n. That on the day of , 18 . . , at , the plaintiff was appointed by the [supreme] court, at a special term thereof, in an action therein pending between A. B., plaintiff, and 0. D., defendant, receiver of [state the property so as to include the cause of action.] IIL That on the [same] day he duly qualified as such receiver. [Demand of Judgrnent,^ No. 14. ix. By a receiver, appointed by a judge in suppl&nentary proceedings. [Title as in No. 13.] [Countt.J The plaintiff complains, and alleges : I. [State the original cause of action.] IL That on the .... day of , 18 . . , at , the plaintiff was duly appointed by E. P., a justice of the supreme court, [or, county judge of county,] receiver in proceedings supplementary to execution against one C. D., of all the real itvd personal property of the said 0. D. ni. That on the [same] day he duly qualified as such receiver. [Demand of Judgmeni.\ BOOK OF FORMS. 13 COMPIAINTS. No. 15. X. By receiver of a lank. I. [Title arid commencement as in No. 13.] IL That on tlie .... day of , 18 . ., at. tlie supreme court, at a special term thereof, adjudged the [said] bank to be insolvent, and appointed the plaintiff receiver of all its effects. in. That on the, [same] day, he duly qualified as such receiver. [Demand of Judgment!] ]^o. 16. xL Against a receiver. SUPEEMB COUET. John Smith ) against > COUNTT OF ..^....» John Jones, as receiver of \ The plaintiff complains, and alleges : I. [State the cause of action.'] IL That the defendant is receiver of [Demand of Judgment.] 14 BOOK OF FORMS. COMPLAINTS. No. 17. xii. By a joint stock company, suing hy an officer.^ SUPEEMB COUET. John Smith, as president [or trea-j ""^^ °"'%,.>;;r ^°"^^"^' ! county o^. John Jones. The plaintiff complains, and alleges : I. That he is the [president] of the company above named. II. That the same is a joint stock company, consisting of seven' [or, more than seven] shareholders;' doing business in III. [ State the cause of action^ [Demand of Judgment\ No. 18. yjii. JBy an association.* [ Title.] f Countt.] The plaintiff complains, and alleges : I. That he is the , [ treasurer ] of the above named association. II. That the same is composed of seven [ m; more than seven] persons. III. Instate the cause of action, showing a common right in the association.'] [Demand of Judgment] » Laws of 1849, chapter 258. " This is a material and issuable allegation. (Tiffamy v. Williams, 10 Abb., 205 ; Tihlets v. Blood, 21 Barb., 655.) ^ It ig not necessary to give the names of the shareholders. {Tibbets v. Bhod, supra.) * Laws of 1851, chapter 455. BOOK OF FORMS. 15 COMPLAINTS. No. 19. xiv. By a foreign corporation^ SUPREME COURT. The New York and New Haven) Eailboad Company nQ^j^^rpY Oj, against / v^wuxiix v/x . John Jones. The plaintiff complains, and alleges : I. That it was incorporated by [or, under] an act of the legislature of the [State of Connecticut,] passed on the day of 18 . . , for the purpose of [constructing and maintaining a railroad from the city of New Haven westerly towards the city of New York] II. [State the cause of action.] [Demand of Judgment.] No. 20. XV. By an infant. SUPREME COURT. ■ James I County of John Smith, an infant, by James) Smith, his guardian. John Jones. The plaintiff complains, and a,lleges : I. That he is under the age of twenty-one years. II. That on the day of , 18 . . , at , the above named James Smith was duly" appointed, by A. B., ' A foreign corporation must allege its corporate character in the complaint. ( Connecticut Bank v. Smith, 9 Abb., 175. See contra, Sblyoke Bank v. Hashins, 4 Sand., 675.) But a domestic corporation need not aver its incorporation at all. (Jjafayette Insurance Company^. Rogers, 30 Barb., 492; Shoe and Leather Bank v. Brown, 9 Abb., 219; Kennedy v. Colton, 28 Barb., 62; Dutchess Cotton Manufacturing Co., 14 Johns., 245.) 2 Code, § 161. 16 BOOK OF FORMS. COMPLAINTS. a justice of tHs court, [or, county judge of county,] guardian of tlie plaintiff for tlie purposes of this action, m. [State the came of action.] [Demand of Judgment.'} No. 21. xvi Against a married woman, on her note. SUPEEME COUET. John Smith J against \ COTJNTT OF. Mart Jones. \ The plaintiff complains, and alleges : L That the defendant is the wife of one William Jones. II. That at the time of making the note hereinafter men- tioned, the defendant was, and still is, seised in fee \or otherwise'] in her own separate right of [a farm in the town of Bern, Albany county, containing about acres of land, of the Talue of doUara]' IIL That on the , day of , 18. ,, at . . . . , in consideration of the said note, the plaintiff [sold and delivered to the defendant twenty cows, of the value of .... dollars, which were used to stock her said farm.]' [ff the consideration was not a direct lenefit to the defendant or her estate, substitute the following : m. That on the day of , 18. ., at . . . . , in consideration of the said note, and at the request of the defendant, the plaintiff delivered to , twenty cows, of the value of dollars. ' The complaint must show what the estate is, and what is its value. (Sexton V. Fket, 6 Abb., 9 ; Coline v. St. John, 12 How., 336.) ' If the debt is contracted for the benefit of the wife, or of her estate, no allegation of an intent to charge it on the estate is necessary. (See Yale v. Dederer, 18 N. Y., 273, 284, 285.) BOOK OF FORMS. 17 COMFLAIKTS. rV. That in consideration thereof, the defendant agreed to charge her said estate "with the arttount of the said note.]' TV. [or Y.] [Set forth the note in the usual manner.^ Wherefore the plaintiff demands judgment :" 1. That the said note be a charge upon the said estate of the defendant; 2. That the said estate be applied to the payment of the sum of dollars, with interest from the day of .... ,18... 3. That a receiver be appointed to take possession of the same, for that purpose.' No. 22. xviL Against husband and wife, for an ante-nuptial debt of the wife, the husband not having acquired any of her property. SUPEEME COUET. John Smith f against \ COUNTT OF , John Jones and Maby his wife. \ The plaintiff complains, and alleges :. L [State the cause of action.] IL That afterwards the defendant, Mary, married the defend- ant, John, and is stUl his wife. [Demand of Judgment^ ' If the consideration was not for the benefit of the wife or her estate, this allegation is necessary. (Tafe v. Dederer, 18 N. T., 281.) The agreement must be in writing (S. C, Trans. Eep., 90) ; but this need not be alleged in the complaint. i' See Oobme v. Si. John, 12 How., 339 ; Yah v. Dederer, 21 Barb., 292. ' Whether the " Married Women's Act " of 1860 dispenses with the neces- sity for this peculiar form of action and complaint, is a question that we do not feel at liberty to decide. It will no doubt be judicially considered at an early day. * There is no difference in the form of judgment, though the execution is restricted. (Laws of 1853, p. 1057.) 3 18 BOOK OF FORMS. COMPLAINTS. No. 23. xviiL The same, ike husband having acquired property from the wife. [Title.] [County.] I and H. [As in the preceding f(nm.\ TTT That before the said marriage the said Mary owned [describe the property.] IV. That [before or since] the said marriage, the said Mary- conveyed to the said defendant John all the said property. [Or if apart only was conveyed, describe it.'] V. That the value of the property so conveyed was dollars. \I)emand of Judgmenf] No. 24. xix. By the assignee of a claim. SUPEEMB COUET. John Smith i against > OOUNTT OP John Jones. \ The plaiatiff complains, and alleges: L [State a cause of action accruing to the plaintiff's assignor.'] n. That on the day of ,18 . ., at , the said A. B. assigned the said claim to the plaintiff.' [Derrumd of Judgment.'] ' That some such allegation is necessary, see Prmdle v. Carufhers, 15 N. T., 426 ; T^hiU v. Brown, 14 How., 282 ; Adams v. HoUey, 12 How., 330. That this is sufficient, see Martin v. Kanouse, 2 Abb., 331 ; Sorner v. 'Wood, 16 Barb., 372. BOOK OF FORMS. 19 COMPLAINTS. No. 25. XX. By an assignee for ike benefit of creditors. SUPREME COURT. John Smith i against \ COUNTT OF John Jones. \ The plaintiff complains, as assignee for the benefit of the creditors of A. B.,' and alleges: I. [State a cause of action accruing to the assignor.'] n. That on the day of , 18 . ., at , the said A. B. assigned aU his property, including the said claim, to the plaintiff [in trust for the purpose of paying all his debts.]' [D&mand of Judgment.} ' An assignee for the benefit of creditors is a trustee, and is not personally liable for costs. But he must allege in his complaint that he sues as siuih, or the court will not relieve him, in case he fails in the action. {Mwrray v. Hen- drickson, 6 Abb., 96 ; 1 Bosw., 635.) For any other purpose this allegation is entirely unnecessary. * The clause in brackets is only necessary for the purpose stated in the preceding note. 20 BOOK OF FORMS. COMPIAINTS. TITLE m. FOK DEBT. Section 1. Money lent. 2. Money received. 3. Money paid. 4. Goods sold and delivered. 5. Goods sold but not delivered, the title having passed. 6. Goods sold, the title not having passed. 7. Price of real property sold. 8. For services. 9. Rent, board, &a 10. By carriers. 11. On an award. 12. On judgments. 13. On instruments for the payment of money only. 14. On promissory notes. 15. On inland bills of exchange. 16. On foreign bills of exchange. 17. On insurance policies. 18. On a guaranty. 19. On debts created by statute. 20. For several causes of action. No. 26. Sec. 1. Complaint fob money lent. SUPBEME COUR T. John Smith / against > CoUNTY OF John Jones. \ The plajitiff complains, and alleges : I That on the day of , 18. ., at , ho lent to the defendant dollars.' ' It is not necessary to state when the debt was to be repaid except for the purpose of fixing a date for interest. The presumption of law is, that it was to be paid immediately. {Peels v. BraU, 6 Barb., 662.) Nor is it necessary to show that the debt was due at the commencement of the action. If it was not, that is matter of defense, to be set up in the answer. {Smith v. Holmes, 19 N. Y., 271.) BOOK OP FORMS. 21 COMPLAINTS. n. That the defendant has not paid the same' [except dollars, paid on the day of , 18. ..]' Wherefore the plaintiff demands judgment for dol- lars, with iaterest from the day of ., 18. ..' Ssc. 2. Complaints FOE MONET BECEivED fob plaintiff's use. No. 27. L Common form. [TiTLE.J [COUMTT.] The plaintiff complains, and alleges : L That on the day of ,18 . . , au the defendant received dollars from one James Brown, for the use of the plaintiff.* IL That the defendant has not paid the same. [JDemand of Judgment.] ' It may be doubted whether the allegation of non-payment is necessary. (See Lanning v. Carpenter, 20 N. T., 458; McKyring v. BuU, 16 N. Y., 297.) As any payments must be pleaded, it is certain that the most general form of averring non-payment is suf5cient. It is not necessary to add " or any part thereof." * Although not necessary, it is highly proper to credit the defendant with any payments. ^ The common demand for costs is unnecessary. * The case of Lienan v. Lincoln, 2 Duer, 670, is sometimes cited to show that this allegation is not sufficient on demurrer. But although the head note of that case states such a doctrine, it will be found that no such allegation was before the court. The plaintiff in that cause averred that the defendant was indebted (a mere conclusion of law) to him for " moneys, notes and effects," received for the use of the plaintiff's assignor. An account was annexed, showing that more than all the balance claimed consisted of promissory notes received by the defendant. It was not alleged that these notes had been paid to the defendant, and therefore he could not be charged with their amount. No one pretends that an action for money received- can be sustained upon proof of notes received and uncollected, and the complaint in Lienan v. Xiw- eohi contradicted itself on its face. 22 BOOK OF FORMS. COMPLAINTS. No. 28. iL For price of goods sold by a factor. fTmE.] fConNTT.] Tlie plaintiff complains, and alleges : L That on the day of ,18 . . , at he delivered to the defendant [one thousand barrels of flonr] for sale upon commission. II. That on the day of , 18 . ., [or, on some day unknown to the plaintiff, before the day of 18 . . , j the defendant sold the said merchandise for dollars. [TTT. That the commissions and expenses of the defendant thereon, amount to dollars.]' IV. That on the day of ., 18. ., the plaintiff demanded from the defendant the proceeds of the said merchan- dise,' V. That he has not paid the same. [Demand of Judgment.] ■ This form is drawn on the presumption that the factor has not accounted. If he has accounted, but not paid, the better form is on an " account stated." If he has not accounted, it is improbable that the plaintiff will know the precise amount of his expenses, and it is not necessary to credit him with them in the complaint * An express demand should be alleged. (Baird v. Walker, 12 Sarb., 298 ; BMen v. Orcifts, 4 E. D. Smith, 490; 2 Abb., 303.) BOOK OF FORMS. 23 COMPLAINTS. No. 29. iii. For money received hy defendant, through mistake of the plaintiff. [Title.] [County.] The plaintiff complains, and alleges : L That on the day; of , 18 . . , at , the plaintiff, intending to pay the defendant [fifty] dollars, paid to him [five hundred] dollars by mistake. H. That the defendant has not repaid the sum overpaid.' \Demand of Judgment.] Sec. 3. Complaints for money paid. No. 30. L For money paid to a third party at the defendanfs request. [Title.] [County.] The plaintiff complains, and alleges : I. That on the. . . . . day of , 18. ., at at the request of the defendant, the plaintiff paid to one James Brown dollars. IL That in consideration thereof, the defendant promised to pay the same to the plaintiff [on demand.]' ' A demand is not necessary (TMca Sank v. Van Gieson, 18 Johns., 485), but it may affect the question of interest. " This allegation is not absolutely necessary, as the law will imply a promise, but as an express promise is nearly always made in such cases, it is better to state it. If no express promise is made, none should be pleaded. (See Far^ ron V. Sherwood, 17 N. Y., 230; see also Berry v. Fmumdes, 1 Bing., 338; Dumford v. Messiter, 5 Mau. & SeL, 446.) 24 BOOK OF FORMS. COMPLAINTS. m That [on the day of , 18. ., the plaintiff demanded payment of the same from the defendant, but] he has not paid the same.' [Demand of Judgment] No. 31. iL By surety against principal. [Title.] ['Cotintt.J The plaintiff complains, and alleges : L That on the day of , 18. ., a judgment was [duly]" rendered in the court of , against the defendant, in favor of one James Brown, for [dollars,] from which the said defendant appealed to the [court of appeals.] n. That on the day of , 18. ., at the request of the defendant, the plaintiff executed an undertaking, a copy of which is hereto annexed. m. That [at the term of the said court of appeals] the said judgment was affirmed, with dollars costs and damages. IV. That on the day of , 18. ., the plaintiff paid ...... dollars upon the said undertaking, to the said Brown. y. That the defendant has not paid the same to the plaintiff {Denumd of Judgment.l [Annex copy of ihe UnderUxkmg^ ' Ko demand is necessary. It is inserted here only as an example of the mode of alleging demand when it is desired to fix a date for the commence- ment of interest * If the judgment was rendered in a court of inferior or limited jurisdiction, the word " duly " implies jurisdiction. (Code, § 161.) BOOK OF FORMS. 25 COMPLAINTS. No. 32. Sec. 4. Complaints fob goods sold and deliveeed. L Goods sold to defendant at a fixed price. [Title.] [ConNiT.J Tlie plaintiff complains, aiid alleges: L That on tlie day of , 18 . . , at hto sold and delivered to tlie defendant' [one hundred barrels of flour, or, the goods mentioned in the schedule hereto annexed, or, sundry goods.]' > II. That the defendant promised to pay dollars for the said goods.' in. That he has not paid the same.* \Deim(md of Judgment^ ' An averment of request is not necessary. {Acome v. American Mineral Co., 11 How., 27 ; CHenny v. Extchim, 4 How., 98; note to Fisher v. Pyne 1 M. & Or., 266 ; approved in Victors v. Davis, 1 DowL & L., 986, 12 M. & W.| 760 ; Pahke, B.) * Details may be had in a bill of particulars. ' It is not necessary to specify any .time at which the debt was to be paid. A general promise is to be construed as a promise to pay immediately. (Peets v. Bratl, 6 Barb., 662; Gibbsv. Southam, 5 Bam. & Adol., 911.) If the promise was to pay at a certain time, not yet elapsed, that is matter of de- fense. (Smiih V. JBblmes, 19 N. T., 271.) But if a day was fixed, it will, if stated, furnish a date for the commencement of interest. (See Van Bensselaer V. JeweU, 2 K T. [2 Comst.], 140.) * No demand is necessary. (See Gibls v. Southam, 5 Barn. & Adol, 911; Badford v. Smiffi, 3 M. & "W., 258.) 26 BOOK OF FORMS. COMPLAErTS. No. 33. ii. The same, at a reasonable price. [Title.] fCousTT.J The plaintiff complains, and alleges : L That on the day of , 18. ., at , he sold and delivered to the defendant [sundry articles of house fttmituraj n. That the same were reasonably worth .. doUars.' in. That the defendant has not paid the same.' \Demand of Judgmmt.\ No. 34. iii For goods delivered to a third party at defendants request, ata fixed price. [Title.] [Cotott.] The plaintiff complains, and alleges : L That on the day of 18. ., at , he sold to the defendant [one hundred barrels of flour,] and, at the request of the defendant, delivered the same to one James Brown. n. That the defendant promised to pay to the plaintiff .... dollars therefor. HL That he has not paid the sama \ Demand of Jiidgment.\ ' The law implies a promise to pay so much as the goods are reasonably worth. This is, however, matter of law, and should not be pleaded. (JFwrron V. Sherwood, 17 N. T., 230.) It is not necessary to show that the debt was due before the commencement of the action, nor even at the date of the complamt. {SmUk v. Holmes, 19 N. Y., 271.) * See note 4, on page 25. BOOK OF FORMS. 27 COMPLAINTS. No. 35. iv. For necessaries furnished to defend/mis family, without his express request, at a reasonable price. [Title.] [Cotjhtt.J The plaintiff complains, and alleges : I. That on the day of , 18. ., at , he furnished to Mary Jones, the wife of the defendant, at her request, sundry articles of [food and clothing.]' IL That the same were necessary for her. m. That the same were reasonably worth dollars. TY. That the defendant has not paid the same. [Demand of Judgment.} Sec. 5. Complaints for goods sold, but not deliyebed, THOUGH THE TITLE HAS PASSED. No. 36. i For goods sold at a fixed price. [Title.] [County.] The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , he sold to the defendant [all the crops then growing on his farm :n J ' It is unnecessary to allege that the wife acted as the husband's agent, or with his Consent. In nine cases out of ten, these averments would be fictions of law, which must never be pleaded under the Code. The husband is liable in the proper cases, although he has expre.ssly forbidden the plaintiff to trust his wife. (2 Kent's Com., 148 ; Sykes v. Ralstead, 1 Sand., 483.) 28 BOOK OF FORMS. COMPLAINTS. IL That the defendant promised to pay the plaintiff dollars for the same. HL That he has not paid the same. \Demand of Judgmeni.] No. 37. ii. The same at a reasonable jmce. [Title.] fConitTT.] The plaintiff complains, and alleges : L That on the day of , 18. ., at , he sold to the defendant [all the fruit growing on his orchard, in ] IL That the same was reasonably worth dollars. IIL That the defendant has not paid the same. [Demand of Judginent.'] iSec. 6. Complaints fob goods sold, the title not haying PASSED. No. 38. i For goods made at defendants request^ and not accepted. [Title.] [Countt.J The plaintiff complains, and alleges : L That on the day of > 18 . . , at - . - , the defendant agreed with the plaintiff that the plaintiff should make for him [six tables, fifty chairs and four bureaux,] and that the defendant should pay for the same upon delivery thereof dollars. BOOK OF FORMS. 29 COMPLAINTS. IL That the plaintiff made the said goods, and on the day of , 18 . . , offered to deliver the same to the defendant, and has ever since been ready and willing so to do. IIL That the defendant has not paid for the same.' \pemcmd of Judgment.\ No. 39. ii For deficiency upon a resale [goods sold at auction.'] [Title.] fCotrsiT.] The plaintiff complains, and alleges : L That on the day of > 18 . . , at , he pnt up at auction sundry [articles of merchandise,] subject to the condition that aU goods not paid for and removed by the purchaser thereof, within [ten days] after the sale, should be re- sold by auction on his account, of which condition the defendant had notice. II. That the defendant purchased [one crate of crockery] at the said auction at the price of dollars. m. That the plaintiff was ready and willing to deliver the same to the defendant, on the said day and for [ten days] there- after, of which the defendant had notice. IV. That the defendant did not take away the said goods pur- chased by him, nor pay therefor, within [ten days] after the sale, nor afterward.'' « Y. That on the day of , 18. ., at , the plaintiff resold the said [crate of crockery,] on account of the defendant, by public auction, for dollars. ' The fact of non-payment is all that is material ; non-acceptance is of no consequence. ^ Unless the seller agreed to deliver, it is the purchaser's duty to fetch the goods. (Bach v. Owen, 5 T. R., 409.) 30 BOOK OF FORMS. COMPLAINTS. VI. That the expenses attendant upon such resale amounted to dollars. Vn. That the defendant has not paid the deficiency thus arising, amounting to dollars. [Denumd of Judgment.] Sec. 7. Complaints foe the price of beal peoperty sold. No. 40. L For the purchase money of lands conveyed. [Title.] [County.] The plaintiff complains, and alleges : L That on the day of , 18. ., at , the plaintiff sold' and conveyed to the defendant [the house and lot No. 100 State street, in the city of Albany, or, a farm known as " Decker's farm " in the town of Coeymans, or, a piece of land lying, d:c.] IL That the defendant pilomised to pay the plaintiff dollars for the said land. HL That he has not paid the same. [Denumd of Judgment.'] No. 41. n. For thepkrchase money of real property contracted to he sold, but not conveyed. [Title.] [Cobnit.] The plaintiff complains, and alleges : I. That on the day of , 18. ., at , the plaintiff and defendant mutually agreed that the plaintiff ' The word "sold " seems to imply a request BOOK OP FORMS. 31 COMPLAINTS. ? sliOTild sell to the defendant, and that the defendant should pur- chase from the plaintiff [the house and lot Ho. 100 State street, Albany, or, one hundred acres of land in the town of Water- vliet, Albany county, bounded by the railroad, and by other lands of the plaintiff,] for doUara. IL That on the day of , 18. ., at , the plaintiff tendered [or, was ready and willing, and offered to execute] a sufScient deed of conveyance of the said property to the defendant, on payment of the said sum, and still is ready and willing to execute the same.' IIL That the defendant has not paid the said sum. [Demand of Judgment.] Ssc 8. OOMPLArNTS FOR SERVICES. No. 42. L For services, at afixedprice. JTirLE.] [CODNTT.] The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , the defendant [hired him as a clerk, at the salary of dollars per year.] n. That from the [said day] until the day of ....,.., 18. ., the plaintiff [served the defendant as his clerk] in. That the defendant has not paid the said salary. \Demand of Judgrnent] ' This averment is necessary. (Beecher v. Conradt, 13 N. T. [3 Kern.], 110.) "Execute "implies delivery. (Lafayette Ins. Co. v. Rogers, 30 Barb., 492.) 32 BOOK OF FORMS. COMPLAINTS. No. 43. ii For services, at a reasonahle price. fTlTLE.] fCouiiTT.] The plaintiff complains, and alleges : I. That between the day of , 18. ., and the day of V 18. ., at , he [executed sundry drawings, designs and diagrams,] for the defendant, at his request. IL That the said services were reasonably worth dollars. m That the defendant has not paid the same. [Demcmd of Judgment.} No. 44. iii. For services and materials, at afixedprice. [Title.] [Countt.] The plaintiff complains, and alleges : L That on the day of , 18 . . , at , he [famished the paper for and printed one thousand copies of a book called ,] for the defendant, at his request [and delivered the same to him.] II That the defendant promised to pay dollars therefor. III. That he has not paid the same. [Demand of Jiidgment] BOOK OF FORMS. 33 COMPLAINTS. No. 45. iv. For services and materials at a reasonable price. [TitlkJ [Oountt.] The plaintifp complains, and alleges : I. That on the day of , 18. ., at , he built a house [known as No. street, in said city,] and furnished the materials therefor, for the defendant, at his request II. That the said work and materials were reasonably worth dollars. IIL That the defendant has not paid the same. [Demand of Judgment\ Sec. 9. Complaints foe bent, board, etc. No. 46. L For rent reserved in a lease. [Title.] [Countt.J The plaintiff complains, and alleges : L That on the ... .7 day of , 18. ., at , the defendant entered into a covenant with the plaintiff,' under their hands and seals, a copy of which is hereto annexed. [Or state the suhstxmce of the agreementj II. That the defendant has not paid the rent of the [quarter] ending on the . day of , 18. ., amounting to dollars. [Dmumd of Judgment.} ' This allegation necessarily includes the fact of delivery of the instrument 5 34 BOOK OF FORMS. COMPLAINTS. No. 47. iL For vse and occupation at a fixed rent [Title.] [Countt.J Tlie plaintiff complains, and alleges : 1 That on the day of 1 18- v 3-* i tne defendant liired from the plaintiff [the house and lot, No. 100 State street, Albany,] at the rent of .... dollars, pay- able on^he first days of n. That the defendant occupied the said premises from the day of , 18 . . , to the day of , 18... m. That the defendant has not paid dollars, being the part of said rent due on the first day of , 18. .. IJDemand of Judgment} • No. 48. iil For Vise and occupation at a reasonable rent [Title.] [Countt.] The plaintiff complains, and alleges : L That the defendant occupied the [house and lot, Na 100 State street, Albany,] by permission of the plaintiff, from the day of , 18 . . , until the day of 18..' II. That the use of the said premises for the said period, was reasonably worth dollars. m. That the defendant has not paid the same. [Demand of Judgm.ent.'] ' In this action, the plaintiff need not allege title, and the defendant cannot object to his title. (See Vemam v. jSm.ith, 15 N. Y., 329, and cases cited,) BOOK OF FORMS. 85 COMPLAINTS. No. 49. iv. For hoard and lodging. [Title.] (■Oountt.I The plaintiff complains, and alleges : I. That from the day of , 18. ., imtil the day of ) 18 . . , the defendant occupied certain rooms in the house [No. 100 State street, Albany,] by permission of the plaintiff, and was furnished by the plaintiff, at his request, with food, attendance and other necessaries. IL That [in consideration thereof, the defendant promised to pay, or, the same were reasonably worth] the sum of ......... dollars. m. That the defendant has not paid the same. \Dem(md of Judgment] Sec. 10. Complaints bt careiers. No. 50. i. For freight of goods. f Title.] - ["Countt. | The plaintifif complains, and alleges : I. That on the day of , 18 . . , he transported in [his barge, or otherwise] [one thousand barrels of flour, or, sundry goods] from to , at the request of the defendant II. That the defendant promised to pay the plaintiff the sum of [one dollar per barrel] as freight thereon. \_0r: That such transportation was reasonably worth dollars.] III. That the defendant has not paid the same. \Demand of Judgment] 86 BOOK OF FORMS. COMPLAINTS. No. 51. il Far passage money. [Title.] [Cocntt.] The plainlnJff complains, and alleges : L That on the day of , 18 . . , lie conveyed tlie defendant [in his ship, called the "Daniel Webster,"] from to , at his request. n. That the defendant promised to pay the plaintiff dollars therefor. [Or, II. That the said passage was reasonably worth dollars.] m. That the defendant has not paid the same. {Demand of Judgment] Sec. 11. Complaint on an award. No. 52. [Title.] [County.] The plaintiff complaias, and alleges : L That on the day of ,18 . ., at , the plaintiff and defendant having a controversy between them concerning [a demand of the plaintiff for the price of ten barrels of oil, which the defendant refused to pay], agreed to submit the same to the award of A. B. and 0. D., as arbitrators [or, entered into an agreement, a copy of which is hereto annexed.] BOOK OF FORMS. 37 COMPLAINTS. II. That on the day of , 18 . . , at , the said arbitrators awarded that the defendant should [pay the plaintiff dollars.]' IIL That the defendant has not [paid the same.]' {Demand of Judgment.'] Sec. 12. Complaints on judgments. No. 53. On a foreign judgment.' [TiTLE.J [COUNTT.] The plaintiff complains, and alleges : L That on the day of , 18 . . , at , in the state [or, kingdom] of , the court of that [state,] in an action therein pending between the plaintiff and the defendant, duly* adjudged that the defendant should pay to the plaintiff dollars, with interest from the said date. II. That the defendant has not paid the same. \Demand of Judgment.} ' Unless there was a special agreement, this allegation is sufficient. The arbitrator cannot "award" without " pubhshing " his award, and "publish- ing" is a technical phrase, merely implying that the arbitrator has finally disposed of the case. (See Brooke v. Mitchell, 6 M. & W., 476.) Notice of the award need not be averred, unless required by the terms of the submis- sion. (2 Saund., 62 a, [4] : see per Parke, B., 6 M. & W., 474.) - No demand need be alleged, unless expressly required. (Per Batlet, J., Bowe V. Young, 2 Brod. & B., 233.) ' It appears by all the precedents, that the jurisdiction of foreign courts is presumed, and that if they had not in fact jurisdiction, the defendant must show it. (See Wheeler v. Haymmid, 8 Cow., 314; Shv/mway v. StiUman, 4 Cow., 296; Harrod\. Ba/rretto, 1 Hall, 155 ; Reynolds v. Fenion, 3 0. B., 187; Cowan V. Braidwood, 1 Man. & Gr., 882 ; Ferguson v. Mahon, 11 Ad. & El., 182.) * If the judgment was rendered in a justice's court, " duly " must be inserted (Code, § 161 ; Thomas v. Bohmson, 8 Wend., 268), and for uniformity, it seems as well to state it in all cases. 38 BOOK OF FORMS. COMPLAINTS. Sec. 13. Complaints upon instruments for the payment of MONET ONLY. No. 54. 1. Against the maker, acceptor, indorser or drawer of a bill of exchange, promissory note, negotiable bond, bank note, check or certifi- cate of deposit, or other insti-ument for the payment of money only.^ [Title.] [Countt.] The plaintiff complains, and alleges : That there is due to him from the defendant, on an instru- ment of which a copy is hereto annexed, dollars, with interest from the day of ., 18. .. \I)emand of Judgment^ [Annex copif of the mstrwment.\ No. 55. u. On a bond for the payment of mmuey only. [Title.] [County.] The plaintiff complains, and alleges : I. That on the day of , 18. ., at , the defendant covenanted with the plaintiff, under his hand and seal, to pay to the plaintiff dollars. J IL That he has not paid the same. [Demand of Judgment.^ ' This complaint is sufficient under section 162 of the Code, but it may be hazardous to use it, unless the plaintifif is certain either that no defense wiU be attempted, or that he knows the precise ground of defense. For under a general denial, the defendant might interpose any defense he saw fit, either frivolous (e. g., by disputing the day from which interest was due), or based on some ground which might surprise the plaintiff on the trial. It need scarcely be added that the use of this form is not intended to be made com- pulsory in any sense. Objections have been made to its insertion, but it is clearly provided for by § 162; and that section has been so distorted by judicial construction as to need a form explanatory of its provisions. BOOK OF FORMS. 39 COMPLAIITTS. Sec. 14. Complaints upon pbomissort notes. No. 56. L Payee against maJcer. [Title.] [Countt.] The plaintiff complains, and alleges : L That on the day of , 18. ., at , the defendant, by his promissory note,' promised to pay to the plaintiff dollars, ......... [days] after date, [or, on demand.]" n. That he has not paid the same [except dollars, paid on the day of ,18...] IPemav . of Jvdgmerd.'\ No. 57. iL First indorsee against maJcer. [Title.] [Countt.] The plaintiff complains, and alleges : I. That on the day of 18, ., at the defendant, by his promissory note,' promised to pay to the order of one "William Brown dollars, [ days after date.] n. That the said Brown indorsed the same to the plaintiff III. That the defendant has not paid the sama [Demand of Judgment^ ' The date of the note need not be stated. {Qoxon v. Lyeri, 2 Camp., 307 noU; see Smith v. Lord, 2 Dowl. and L., 761.) But as a variance would be immaterial (Bentzimg v. ScoU, 4 Carr. and P., 24), the plaintiff may transfer' the allegation of time and place into one of date, thus : I. That the defendant, by his promissory note, dated on , at , promised, &c. * It is not necessary to show that the note was due before the commence- ment of the action. The complaint would not be demurrable, even if it showed on its face that it was not due. (Smith v. Solmes, 19 N. Y., 271 : May- mrd V. TakoU, 11 Barb., 569.) 40 BOOK OF FORMS. OOMPLAIiTTS. No. 58. iii. Suhseqweni indorsee against maker. fTlTLE.] [OOUNTT.] The plaintiff complains, and alleges : L [As in the preceding form.\ II. That the same was, by the indorsement of the said Brown, and of A. B. and 0. D., [or, and others,]' transferred to the plaintiff. [Demand of Judgment] No. 59. iv. First indorsee against first indorser.^ [Title.] [Countt.J The plaintiff complains, and alleges : I. That the defendant indorsed to the plaintiff a promissory note, made [or, purporting to have been made] by one William Brown, on the day of , 18 . . , at , to the order of the defendant, for the sum of dollars, [payable* days after date]. II. That on the day of , 18 • -i t^e same was presented to the said Brown for payment, but was not paid. [Or state facts excusing want of presentment'] ILL That the defendant had notice thereof IV. That he has not paid the same. [JDemand of Judgment.] ' It is not necessary to state all the indorsements; but if they are not stated, they must be stricken out at the trial. If stated, they must be proved. The use of the words ''and others" will perhaps obviate the necessity of proving them, while allowing them to remain on the note. ^ The peculiar form of this, and the subsequent complaints against indorsers, is adopted with a view to avoid all danger of misleading the defendant into immaterial issues. He is estopped by his indorsement from denying the making of the note, although the maker's signature might be a forgery ; and therefore the only material issue is, whether he indorsed such a note. BOOK OF FORMS. 41 COMPLAINTS. No. 60. V. Subsequent indorsee against first indorser; the indorsement be- ing special. [T1TLE.J [OOUNTT.J The plaintiff complains, and alleges : I. That the defendant indorsed to one John Eobinson, a pro- missory note, made [or, purporting to have been made] by one William Brown, on the day of , 18, ., at .... , to the order of the defendant, for the sum of dollars [payable days after date], II. That the same was by the indorsement of the. said Eobinson [and others] transferred to the plaintiff. [Or: That the said Eobinson indorsed the same to the plaintiff.]' m, ly, and V. [Same as II, III, and IV, of the preceding firnn.] [Demand of Judgment] No. 61. vi. Subsequent indorsee against his immediate indorser. [T1TLB.J [County.] The plaintiff complains, and alleges : I. That the defendant indorsed to him a promissory note, made [or, purporting to have been made] by one WiUiam Brown, on the day of , 18, ., at , to the order of one John Eobinson for the sum of dollars [paya- ble days after date], and indorsed by the said Eobinson to the defendant. Jl,in.,andW. [AsinNo.h^.1 \Pemand of Judgment^ ■ The indorsee, by striking out the intermediate indorsements, of course becomes the immediate indorsee of the first indorser. 6 42 BOOK OF FORMS. COMPLAINTS. No. 62. viL Subsequent indorsee against intermediate indorser. [TiTiE.] [County.] The plaintiff complains, and alleges : L That a promissory note, made [or, pnrportiag to have been made] by one William Brown, on the day of , 18 . . , at , to the order of one John Jenks, for the sum of dollars [payable days after date], and indorsed by the said Jenks to the defendant, was by the indorsement of the defendant [and others] transferred to the plaintiff n, in, 17. ISame as No. 59.] \Demand of Judgment.] No. 63. viil /Subsequent indorsee against maker, first and second indorser. [Title.] [Countt.] The plaintiff complains, and alleges : L That on the day of , 18 . . , at the defendant, John Jones, by his promissory note, promised to pay to the order of the defendant, "William Brown, dollars, [ months after date.] n. That the said Brown indorsed the same to the defendant .John Eobinson, who indorsed it to the plaintiff III. That on the day of 18. ., the same was presented \or state facts excusing presentment] to the said John Jones for payment, but was not paid. rV. That the said WiUiam Brown and John Eobinson had notice thereof V. That they have not paid the sama IBemand of Judgment.] BOOK OF FOKMS. 43 COMPLAINTS. No. 64 Sec. 15. Complaints on inland bills of exchange. i. Drawer against acceptor. [TiTLI.] [CODNTT.] The plaintiff complains, and alleges : I. That on the day of , 18 , . , at , by his bill of exchange,' he required the defendant to pay to him dollars, [ days after date, or, sight thereof] II. That the defendant accepted the said bilL \If the hill is payable at a certain time after " sight" the date of acceptance should he stated, otherwise it is not necessary.^ m That he has not paid the same. [JDenumd of Judgmen,t.\ No. 65. ii Payee against acceptor. [Title.] [Couhtt.] The plaintiff complains, and alleges : I. That on the day of i 18 . . , the defendant accepted a bill of, exchange, made \or, purporting to have been made] by one William Brown, on the day of , 18 . . , at , requiring the defendant to pay to the plaia- tiff dollars, after sight thereof IL That he has not paid the same. [Demand of Judgmerd!\ ' It is not necessary to notice the division of a set of bills of exchange. ° The acceptor is estopped from denying the drawer's signature, and this form avoids any temptation to an immaterial issue. 44 BOOK OF FORMS. COHPLAINTS. No. 66. iii. First indorset against axxeptor. [TrrLE.] [CouNTT.J The plaintiff complains, and alleges : I. That on the day of , 18. ., the defendant accepted a bill of exchange, made \or, purporting to have been made] by one William Brown, on the day of , 18 . . , at , requiring the defendant to pay to the order of one John Kobinson dollars, after sight thereof. n. That the said Eobinson indorsed the same to the plaintiff. in. That the defendant has not paid the same. [Demand of Judgment.\ No. 67. iv. jSvbsequeni indorsee against accq>tor. I. lAs in the preceding form, to the end of art. Z] n. That by the indorsement of the said Eobinson [and oth- ers] the same was transferred to the plaintiff. III. That the defendant has not paid the same. [Demand of JtidgTnent.'] BOOK OF FORMS. 45 OOMPLAINXS. No. 68. V. Payee against drawer, for non-acceptance. [Title.] fCouNir.] The plaintiff complains, and alleges : L That on the day of , 18. ., at , the defendant, by his bDl of exchange, required one William Brown to pay to the plaintiff doUara, [ days after sight.] II. That on the day of , 18. ., the same was presented to the said Brown for acceptance, but was not accepted. HL That the defendant had notice thereof IV. That he has not paid the same. [Dmnamd of Judgmmt.\ No. 69. vi. First indorsee against first indorser. [Title.] [Countt.] The plaintiff complains, and alleges : L That the defendant indorsed to the plaintiff a bill of ex- change, made [or, purporting to have been made] by one William Brown, on the .... day of > 18. ., at , re- quiring one John Eobiason to pay to the order of the defendant dollars [days] after sight [or, after date, or, at sight] thereof; [and accepted by the said Eobiason on the .... day of ,., 18...] n. That on the day of , 18 . . , the same was presented to the said Eobinson for payment, but was not paid. IIL , That the defendant had notice thereof IV. That he has not paid the same. [Demand of Judgment] 46 BOOK OF FORMS. COMFLAIirTS. No. 70. vii. Subsequent indorsee against first indorser; the indorsement being special. [Title.] [County.] The plaintiff complains, and alleges : I. That the defendant indorsed to one John Jenks a bill of exchange, made [or, purporting to have been made] by one William Brown, on the day of , 18. ., at , requiring one John Robinson to pay to the order of the defendant, dollars, days after sight thereof [or otherwise'], and accepted by the said Robinson on the day of , 18 . . . [This clause may be omitted, if not ac- cording to the fact.'] II. That the same was, by the indorsement of the said Jenks [and others], transferred to the plaintiff. III. IV and V. [Same as II, III and IV, in the preceding form.] [Demand of Judgment] No. 71. viii. Stibseguent indorsee against his immediate indorser. [Title.] [Couktt.J The plaintiff complains, and alleges : \ I. That the defendant indorsed to him a bill of exchange, made [or, purporting to have been made] by one "William Brown, on the day of , 18. ., at , requiring one John Robinson to pay to the order of one John Jenks dollars, days after sight thereof [or otherwise], [accepted by the said Robinson], and indorsed by the said Jenks to the defendant. n, in and lY. [As in M. 69.] [Dmumd of Judgment] BOOK OF FORMS. 47 COMPLAINTS. ■ No. 72. ix. Subsequent indorsee against intermediate indorser. [Title.] [Cottntt.] The plaintiff complains, and alleges : I. That a bill of exchange, made [or, purporting to have been made] by one WiUiam Brown, on the day of , 18 . ., at , requiring one John Eobinson to pay to the order of one John Jenks, dollars, days after sight thereof, [or otherwisel [accepted by the said Eobinson,] and in- dorsed by the said Jehks to the defendant, was, by the indorse- ment of the defendant [and others], transferred to the plaintiff n, in, lY. iSame as No. 69.] IDemaTid of Judgment.] No. 73. X. Indorsee against drawer, acceptor and indorser. [Title.] [Cotjntt.] The plaintiff complains, and alleges : I. That on the day of .......... 18. ., at , the defendant, John Jones, by his bill of exchange, required the defendant, William Brown, to pay to the order of the defendant, John Eobinson, dollars, [ days after sight thereof] IL That on the .... day of i 18 . . , the said Brown accepted the same. nX That the said Eobinson indorsed the same to the plaintiff IV. That on the day of , 18 . . , the same was presented to the said Brown for payment, but was not paid. V. That the other defendants had notice thereof VI. That they have not paid the same. [Denumd of Judgment.'] 48 BOOK OF FORMS. COMPLAINTS. Sec. 16. Complaints on foreign bills of exchange. No. 74. L Payee against drawer, for non-acceptance. fTiTLE.J fOouiwr.J The plaintiff complains, and alleges : I. That on the ..... day of > 18. ., at , the defendant, by his bill of exchange, required one John Eob- inson to pay to the plaiatiff, in [London,] [pounds sterliag, sixty days] after sight thereof II. That on the day of > 18 • • j tte same was presented to the said Eobiason for acceptance, but was not accepted, and was thereupon duly protested. HL That the defendant had notice thereof IV. That he has not paid the same. [V. That the value of pounds sterling, at the time of the service of notice of protest on the defendant, was dollars.] "Wherefore the plaintiff demands judgment against the defend- ant for ......... dollars, with [ten per centum] damages, and interest from the day of , 18. .. No. 75. ii Payee against acceptor. [Title.] rCouuTT.] The plaintiff complains, and alleges : L That on the day of , 18. ., at [Havana, Cuba,] one William Brown, by his biU of exchange, required the defendant to pay to the plaintiff dollars, [ days after sight] thereof BOOK OF FORMS. 49 COMPLAINTS. II. That on the day of i 18. ., the defendant accepted the said bill. III. That he has not paid the same. [Demand of Judgment.} /Sec. 17. Complaints on insurance policies, against a CORPOEATION. No. 76. L Ona marine {open) policy, on vessel lost hy perils of the sea. [Title.] [Countt.] The plaintiff complains, and alleges : L That he was the owner of [or, had an interest in]' the ship [Northumberland,] at the time of its loss, as hereafter mentioned. II. That on the day of , 18 . . , at , the defendant, in consideration of dollars to it paid, \ar, which the plaintiff then promised to pay,] executed to him a policy of insurance upon the said ship, a copy of which is hereto annexed ; \or, whereby it promised to pay to the plaintiff, within days after proof of loss and interest, all loss and damage accruing to him by reason of the destruction or injury of the said ship, during its next voyage from to , whether by perils of the sea or by fire, or by other causes therein mentioned, not exceeding dollars.]' III. That the said vessel, while proceeding on the voyage men- tioned in the said policy, was, on the day of , 18 . . , totally lost by the perils of the sea, \or otherwise.] IV. That the plaintiff's loss thereby was dollars. ' This is sufficient. (Page v. Fry, 2 Bos. & Pul., 240 ; Crawford v. Bimier, 8 T. E., 23.) " The perils specifically mentioned should be such as actually occasioned the loss. 50 BOOK OF POEMS. COMPLAINTS. V. That on the day of , 18. ., he famished the defendant with proof of his loss and interest, and otherwise duly performed all the conditions of the said policy on his part VI. That the defendant has not paid the said los%. [Demand of Judgment.'] No. 77. ii On cargo, lost hyfire; — valued policy. ["Title.] [County.] The plaintiff complains, and alleges : L That he was the owner of {or, had an interest in] [one hun- dred bales of cotton] on board the ship [Henry Clay], at the time of its loss as hereafter mentioned. II. That on the day of , 18. ., at , the defendant in consideration of dollars, which the plain- tiBf then paid, [or, promised to pay,] executed to him a policy of insurance upon the said goods, a copy of which is hereto annex- ed ; \or, whereby it promised to pay to the plaintiff dollars in case of the total loss, by fire or other causes mentioned, of the said goods before their landing at ; or, in case of partial loss, such damage as the plaintiff might sustain thereby, provided the same should exceed per centum of the whole Talue of the goods.] III. That on the day of , 18. ,, at , while proceeding on the voyage mentioned in the said policy, the said goods were totally destroyed by fire. lY, and V. [As in paragraphs Yand VI of the preceding form.'] \ Demand of Judgment.] BOOK OF FORMS. 51 COMPLAINTS. No. 78. iii On freight ; — valued policy. [Title.] rCouNiT.J The plaintiff complains, and alleges : L That he had an interest in the freight to he earned by the ship [Siddons] on her voyage from to , at the time of her loss as hereafter mentioned, and that a large quantity of goods were shipped upon freight in her at that time. n. That on the day of IS . . , at , the defendant, in consideration of dollars to it paid, executed to the plaintiff a policy of insurance upon the said freight, a copy of which is hereto annexed, [or state its tenor, as before.] III. That the said vessel, while proceeding upon the voyage mentioned in the said policy, was, on the .... day of , 18 . . , totally lost by [the perils of the sea.J IV. That the plaintiff has not received any freight from the said vessel, nor did she earn any on the said voyage, by reason of her loss as aforesaid, V. and VI. [As inform No. 76.] [Demand of Judgment. I No. 79. iv. For a loss by general average. fTlTLE.J [COUNTT.] The plaintiff complains, and alleges : I. That he was the owner of [or, had an interest in] [one hun- dred bales of cotton] shipped on board a vessel called the A. Z., from to , at the time of the loss hereafter mentioned. 52 BOOK OF FORMS. COMPLAINTS. II. That on the day of , 18. ., at , in consideration of dollars, [which the plaintiff then promised to pay,] the defendant executed to the plaintiff a policy of insurance upon his said goods, a copy of which is hereto ajinexed, [or state its tenor, as before.'] in. That on the day of , 18 . . , while pro- ceeding on the voyage mentioned in the said policy, the said vessel was so endangered by perUs of the sea, that the master and crew thereof were compelled to, and did cast into the sea a large part of her rigging and furniture. IV. That the plaintiff was, by reason thereof, compelled to and did pay a general average loss of dollars. V. That on the day of , 18 . . , he farnished the defendant with proof of his loss and interest and otherwise duly perfbrmed all the conditions of the said policy on his part VI. That the defendant has not paid the said loss. \ Demand of Juclgment.\ No. 80. V. M>r a particular average loss. [Title.] [Countt.] The plaintiff complains, and alleges : I, and II. [As in the preceding form.] ni. That on the day of , 18 . . , while on the high seas, the sea water broke into the said ship, and damaged the said [cotton] to the amount of dollars. IV. [As in Art V, of the preceding form.] V. [As in A.rt. VI, of the preceding form.] [Demand of Judgment.} BOOK OF FORMS. 53 COMPLAINTS. No. 81. vi On a fire insurance jpolicy. [TiTLB.J [CODNXT.] The plaintiff complains, and alleges : I. That he [was the owner of, or,] had an interest in a [dwelling house, known as ISTo. 100 State street, in the city of Albany,] at the time of its destruction \or, injury] by fire as hereafter mentioned. II. That on the day of , 18. ., at , in consideration of dollars [to it paid,] the defendant executed to the plaintiff a policy of insurance on the said [premises], a copy of which is hereto annexed ; \or state its tenor.'] m. That on the day of , 18 . . , the said [dwelling house] was totally destroyed [or, greatly damaged] by fire.' rV. That the plaintiff's loss thereby was dollars. V. That on the day of , 18 . . , he furnished the defendant with proof of his said loss and interest, and otherwise duly performed all the conditions of the said policy on his part. YL That the defendant has not paid the said loss. [Demand of Judgmeini.\ ' It is not necessary to state that the fire was not caused by invasion, riot, &c. That is matter of defense. (Loimsbury r. Protection Ins. Co., 8 Conn., 466 ; Hucher v. Green, 15 Bast, 290 ; see Sunt v. Budson River Ins. Co., 2 Duer, 487 ; Catlin v. Springfield Fire Ins. Co., 1 Sumner, 439.) The remarks in Phil. Ins. (2d ed.), 642; MKs Ins., 95; are not sustained by any decision. 54 BOOK OF FORMS. COMPLAINTS. No. 82. vii On a fire policy, correcting an alleged mistake. [Title.] [ConNiT.] The plaintiff complains, and alleges : I. That he was the owner of a [woolen factory, and the machinery therein,] in the town of , county of , at the time of its destruction by fire, as hereafter men- tioned. II. That on the day of , 18. ., at , in consideration of dollars to it paid, the defendant execiited to the plaintiff a policy of insurance on the said pro- perty, a copy of which is hereto annexed. ITT, That on the . . day of > 18. ., the said property was totally destroyed by fire. IV. That the plaintiff's loss thereby amounted to more upon each part of the property separately insured, than the amount of such separate insiuance. Y. That on the day of ^ 18 . . , he furnished the defendant with proof of his said loss and interest, and other- wise duly performed all the conditions of the said policy on his part. VI. That the defendant has not paid the said loss. Vn. That the survey referred to in the said policy, and made a part of the same, contains, among others, the following ques- tions and answers : " Question. Is there a watchman in the mill duiing the night ? Is there also a good watch clock ? " Answer. There is a watchman nights ; no clock ; bell is struck every hour, fi-om 8, P. M., till it rings for work in the morning. " Question. Is the mill left alone at any time, after the watch- man goes off duty in the morning till he returns to his charge in the evening ? BOOK OF FORMS. 55 COMPLAINTS. " Answer. Only at meal times, and on the Sabbath, and other days when the mill does not run," VIII. That the said questions and answers were not meant or understood, by either of the parties, to be a warranty. IX. That the plaintiff, by his answers aforesaid, did not mean, nor did the defendant understand him to represent, that there was a watchman in the said mill from midnight on Saturdays to midnight on Sundays; but the defendant then knew that no watchman was in the said mill at such times ; and if the said questions and answers do in law convey such an idea, it is through mistake only. Wherefore, the plaintiff demands judgment for dollars. {Annex a copy of the Policy. \ No. 83. viii On a life policy, in favor of a wife. [Title.] [Oountt.J The plaintiff complains, and alleges : I. That on the day of 18 . . , at , the defendant, in consideration of the [annual] payment to it of dollars, executed to the plaintiff a policy of insurance on the life of her husband, John Smith, of which a copy is hereto annexed ; [or, whereby it promised to pay to the plaintiff doUars, days after proof of the death of the said John SmitL] II. That the plaintiff had a valuable interest in the life of the said John Smith,' at "the time of his death ; [or, at the time of effecting the said insurance."] III. That on the day of , 18. ., at , the said John Smith died. ■ This fact is material, and should be alleged. (See 20 N. T., 38.) ' It is sufficient to show that the plaintiff had an interest at the time of making the insurance. {Dolby v. India and Londm Life Im. Qo., 15 0. B., 365.) 56 BOOK OF FORMS. COMPLAINTS. TV. That on tlie day of , 18 . . , the plaintiff furnished the defendant with proof of the death of the said John Smith, and otherwise duly performed all the conditions of the said policy on her part. Y. That the defendant has not paid the said sum. [Demand of Judgment,} \ Annex a copy of the Policy.] No. 84. Sec. 18. Complaint on a gvahanty. Against sureties for payment of rent [Title.] [County.] The plaintiff complains, and alleges : L That on the day of 18. ., p,t one William Brown hired from the plaintiff, for the term of years, the [house No. 100 State street, Albany,] at the annual rent of dollars, payable [quarterly.] IL That, [at the same time and place,] the defendant agreed, in consideration of the letting of the said premises to the said Brown, ' to guarantee the punctual payment of the said rent III. That the rent aforesaid for the quarter ending on the day of 18 . . , amounting to dollars, has not been paid. {If by the terms of the agreement, notice is required to he given to the surety, add: rV. That on the day of , 18. ., the plaintiff gave notice to the defendant of the non-payment of the said rent, and demanded payment thereof V. That he has not paid the same.] [Demand of Judgmmt.] ' This is a sufficient statement of consideration. (See CabaUerov. Slater 14 C.B.,303.) BOOK OF FORMS. 57 COMPLAINTS. Sec. 19. Complaints on debts created by statute. No. 85. i. Against a sheriff for an escape from imprisonment under an eosecution. [TiTI/E.] [COUNTT.J The plaintiff complains, and alleges : I. That at the time of the escape hereafter mentioned, the defendant was the sheriff of the county of , in this state. II. That on the day of , 18. ., at , judgment was duly' rendered in an action in the court, in favor of the plaintiff against one "William Brown, for dollars. IIL That on the day of , 18. ., at , an order of arrest was duly" granted in the said action against the said Brown, by , a justice of the said court, [or, county judge of county.] [Or, IIL That the said action was brought for a willful injury to the plaintiff's property. Or otherwise show that the action was one in which an arrest was proper.'^ IV. That on the day of , 18 . . , an execution against the person* of the said Brown was issued upon the ' The word " duly " is not necessary if the action was brought in a court of general jurisdiction. * " I^jily " is necessary here. (Code, § 161.) ' Such an allegation is sufficient, even where the action was for a fraudu- lently contracted debt (French v. Willett, 4 Bosw., 651, 652), although it is held that in such an action an execution against the person cannot be allowed, unless an order of arrest was obtained before judgment. (Skedenburgh v. Morgan, 18 How., 469; corrected, 4 Bosw., 646; see Humphrey r. Brown, 17 How., 481 ; Alden v. Sarson, 4 Abb., 102.) ^ Although an execution against property ought first to be issued, and re- turned unsatisfied (Code, § 288), yet the issuing of such an execution need not be pleaded, and its non-issuance is no defense for the sheriff. (Renick v. Orser, 4 Bosw., 389.) 58 BOOK OF FORMS. COMPLAINTS. said judgment, directed and delivered to the defendant, as sheriff aforesaid. V. That afterwards the defendant arrested the said BroTm and committed him to jaU, pursuant to the said execution. VL That on the day of , ., 18. ., the said Brown escaped.' Wherefore the plaintiff demands judgment for \the amount of the judgment against the pnsoner.y No. 86. ii. For penalty for selling liquor without a license wnd&r the act of April 16, 1857. SUPEBME COUET. The Boahd of Commissiokers of) Excise of the county op . . . . i ^ ogaM I County of. John Smith. The plaintiffs complain, and allege : I That on the day of 18. ., at , the defendant sold to one William Jones [or, to divers persons] strong liquors [or, spirituous liquors, or, wines,] in quantities less than five gallons at a time. II. That the defendant had not then a license to seU liquors. Wherefore the plaintiffs demand judgment for fifty doUais. ■ It is not necessary to allege that the sheriff permitted him to escape fSee 3 R. S. (5th ed.), 736 [2 id., 437J.) ' The sheriff is liable, as for a deit, for the Ml amount of the iudirment (3R.S., (5thed.)736[2id.,437J.) BOOK OF FORMS. 59 COMPLAINTS. No. 87. iii. For penalty for publicly keeping liquor on Sunday, within the metropolitan police district SUPEBME COUET. The People or the State of New) JS ' COUNTT OF. John Smith. The plaintiffs complain, and allege: That the defendant, on Sunday, the day of , 18. ., at ;, publicly kept [or, sold] intoxicating liquors.' "Wherefore the plaintiffs demand judgment for fifty dollars. Sec, 20. Complaint tor sevbeal causes of action. No. 88. For goods, notes and services. [Title.] [Cotintt.] The plaintiff complains, and alleges : First: For a first claim: I. That on the day of , 18 . . , at , he sold and delivered to the defendant £one hundred barrels of flour.] II. That the same were reasonably worth dollars. ITT. That the defendant has not paid the same. Second: For a second claim : I. That on the day of , 18 . . , at , the defendant, by his promissory note, promised to pay the plaintiff dollars, days after date. IL That the defendant has not paid the same. ' The words of the statute are, "publicly kept or disposed of." (And see People V. BenneU, 5 Abb., 384.) 60 BOOK OF FORMS. COMPLAINTS. Third: For a third claim: I. That on the day of , 18 . . , at , the defendant hired the plaintiff as [a salesman,] at a salary of ... . dollars per [year.] IL That from that day until the .... day of , 18. ., the plaintiff served the defendant as such [salesman.] IIL That the defendant has not paid the said salary. Wherefore the plaintiff demands judgment for dol- lars, with interest from the day of 18 . .. {Or: 1. For dollars, with interest from, &c. ; 2. For dollars, with interest from, &c.J BOOK OF FORMS. 61 COMPLAINTS. TITLE IV. FOR DAMAGES ON BREACH OF CONTRACT. Section 1. On contract for the sale of land. 2. Oa contract for the sale of chattels. 3. On contract for services. 4. On apprenticeship agreements. 5. On bonds and undertakings. 6. On covenants for title or possession, 7. On warranties. 8. On agreements of indemnity. 9. Oa charter parties. &c. 1. Complaints on breach of contract for the sale of LAND No. 89. L For breach of agreement to convey. [Title.] [CouifTT.] The plaintiff complains, and alleges : I. That on the day of , 18 . ., at , the plaintiff and defendant entered iato an agreement under their hands and seals, of which a copy is hereto annexed. [Or, I. That on, dec, the defendant agreed with the plaintiff that in consideration of the sum of one dollar then paid, and of the .farther sum of ten thousand dollars payable as hereafter mentioned, he would, on the day of , 18 . . , at , execute to the plaintiff a good and sufficient con- veyance of the house No. 100 State street in the city of Albany, free from all incumbrances ; and the plaintiff agreed to pay ten thousand dollars for the same on delivery thereof] II. That on the day of , 18 . . , the plaintiff demanded the conveyance of the said property from the defend- ant, and tendered dollars to the defendant \or, was ready and willing, and offered to the defendant to pay 62 BOOK OF FORMS. COMPLAINTS. dollars and duly to perform all his agreements under the said covenant, upon the like performance by the defendant.]' III. That on the day of , 18. ., the plaintiff again demanded such conTcyance. [Or, That the defendant refused to execute the same.]" IV. That the defendant has not executed any conveyance of the said property to the plaiatiff [Or, IV. That there is a mortgage upon the said property, made by to , for dollars, recorded in the office of , on the day of , 18 . , , and stiU unsatisfied of record, or any other defect of title.'] Wherefore the plaintiff demands judgment for dollars, damages.' No. 90. iL For breach of agreement to purchase. [Title.] [Countt.] The plaintiff complains, and alleges : I. That on the day of , 18. ., at , the plaintiff and defendant entered into an agreement, under their hands and seals, of which a copy is hereto annexed. ' This averment is necessary. (Beeckerv. Conradt, 13 N. Y. [3 Kern., | 110; Lester v. Jewelt, 11 N. T. [1 Kern.,] 453.) ^ It is necessary either to tender a deed for signature or to wait a i eason- able time for its preparation by the vendor, and malce a second demand {Luti- weUer v. Linnell, 12 Barb., 512; ConnoUy v. Pierce, 7 Wend., 130; Hackeii v. Iluson, 3 Wend., 250; Puller v. Hubbard, 6C!ow., 17.) But if the vendor, on the first demand, positively refuse to convey, notliing more need be done. {Carpenter v. Brrvm, 6 Barb., 147; Driggs v. Dwight, 17 Wend.. 74.) ' We tliink it entirely unnecessary, and often undesirable, to state that the plaintiff's damage amounted to any particular sum. Ail allegations of damage (other than special), are abohshed in Jilngland, and as they are nowhere required by the Code, nor by the reason of the thing, we have entirely omitted them. (See Harpeir\. Chamherlain, 11 Abb., 238, 239, 240.) BOOK OF FORMS. 63 COMPLAINTS. [Or, I. That on the day of , 18 . . , at . . . , the plaintiff and defendant mutually agreed that the plaintiff should sell to the defendant, and that the defendant should pur- chase from the plaintiff, forty acres of land in the town of ... , , county of , bounded , for dollars.] n. That on the day of , 18. ., at , the plaintiff, being then the owner in fee simple of the said property, [and the same being free from all incumbrances, as was made to appear to the defendant,] tendered to the defendant a sufficient deed of conveyance of the same, [or, was ready and willing, and offered, to convey the same to the defendant by a sufficient deed,] on the payment by the defendant of the said sum.' III. That the defendant has not paid the same. [Demand of Judgmenf] Sec. 2. Complaints on bbeach of conteact fob the sale of CHATTELS. No. 91. i. For not delivering goods sold. [Title.] [Countt.' The plaintiff complains, and alleges : I. That on the day of , 18. ., at , the plaintiff and defendant mutually agreed that the defendant should deliver [one hundred barrels of flour] to the plaintiff [on the day of , 18 . . ,] and that the plaintiff should pay therefor dollars on delivery. ' See Beecher v. Conradt, 13 N. Y. [3 Kern. J, 110 ; Lester v. Jeweit, 11 K Y. [1 Eern.], 453. 64 BOOK OF FOEMS. COMPLAINTS. H. That on tlie [said] day, the plaintiff was ready and willing, and offered, to pay the defendant the said sum, upon delivery of the said goods.' in. That the defendant has not delivered the same. [Demand of Judgment] Sec 3. Complaints on breach of contract for services. No. 92. i. For breach of contract to employ. [TiTLE.J fCoUNTT.] The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , the plaiatiff and defendant mutually agreed that the plaintiff should serve the defendant as [an accountant,] and that the defend- ant should employ the plaintiff as siich, for the term of [one year,] and pay him for his services dollars [monthly.] IL That on the day of 18 . . , the plaintiff entered upon the service of the defendant as aforesaid, and has ever since been, and still is, ready and willing to continue ia such service." IIL That on the day of i 18 . . , the defendant wrongfully discharged the plaintiff, and refused to permit him to serve as aforesaid, or to pay him for his services. IDemand of Judgment.] ' See Smith v. Wright, 1 Abb., 243, 247; Lester v. Jewett, 11 N. T. fl Kern.J, 453. 2 "When the plaintiff has been wrongfully discharged, this averment is all that is necessary. He need not offer to serve. ( WaUis v. Warre/n, 4 Exch., 364; TDovyl. & L., 60.) BOOK OF FORMS. 65 COMPLAINTS. No. 93. ii. The same ; where the employTuent never took effect. [Title.] [County.] The plaintiff complains, and alleges : L \_As in preceding form.^ IL That on the .... day of , 18. ., at . .'. , the plaintiff offered to enter upon the service of the defendant and has ever since been ready and willing so to do. III. That the defendant refused to permit the plaintiff to enter upon such service, or to pay him for his services. [Demand of Judgment.} No. 94. ilL For breach of contract to serve. [Title. ) [Countt.] The plaintiff complains, and alleges : I. That on the day of , 18. ., at , the plaintiff and defendant mutually agreed that the plaintiff should employ the defendant at [an annual] compensation of dollars, and that the defendant should serve the plaintiff as [an artist,] for the term of [one year.] n. That the plaintiff has always heen ready and willing to perform his part of the said agreement, [and on the day of , 18 . . , offered so to do.]' ' If the defendant willfully deserted the plaintiff's service, the latter need not offer to employ him. 66 BOOK OF FORMS. COMPLAINTS. III. That the defendant [entered upon the service of the plain- tiff on the above mentioned day, but afterwards, on the day of ,18 . • , he] refused to serve the plaintiff as aforesaid. [Deitmmd of Jwd^merat] No. 95. IV. Against a huilder, for defective workmanship [Title.] [ConsTY.] The plaintiff complains, and alleges : I. That on the day of 18 . . , at , the plaintiff and defendant entered into an agreement, of which a copy is hereto annexed : \or state the tenor of the contract.^ PX That the plaintiff duly performed all the conditions of the said agreement on his part.]' m. That the defendant built the house referred to in the said agreement in a bad and unworkmanlike manner. [Demand of Judgment.'] Sec. 4. COMPLAIHTTS FOR BREACH OF CONTEACT OF APPREN- TICESHIP. No. 96. i. By the Toaster, against the father. [Title.] [Cotthtt.J The plaintiff complains, and alleges : I. That on the day of , 18. ., at one \name of apprentice], with the consent of the defendant, made ' Perhaps this is not necessary. The covenants in a builder's contract are usually independent, and if so, performance need not be averred. BOOK OF FORMS. 67 COMPLAINTS. an indenture under his liaiid and seal, a copy of wHch is hereto annexed. n. That at the same time and place, the defendant entered into an agreement under his hand and seal, a copy of which is also hereto annexed. [Or state the tenor of these covenants.] III. That on the day of > 18 • • j tlie said [apprentice'] willfully absented himself fi:om the service of the plaintiff, and continues so to do.' [Demand of Jndgmerd.\ No. 97. iL By the apprentice against the master. [Title.] [Countt.J The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , the defendant entered into an agreement with the plaintiff and his father, James Smith, under his and their hands and seals, a copy of which is hereto annexed. IL That the defendant has not [instructed the plaintiff in the business of , or state any otlier breach.^] [Demand of Judgment] ' The usual covenants in an apprentice's indenture are independent, and the plaintiff need not aver performance on his part. (Phillips v. CKft, 4 Hurl. & Nor., 173.) 68 BOOK OF FORMS. COMPLAINTS. iSec. 5. Complaints on bonds ajstd ukdeetakings. No. 98. i. On a bond for the fidelity of a clerk. [TiTLE.J [COUNTT.J The plaintiff complains, and alleges : I. That on the day of , 18. ., at , he employed one John Johnson as a clerk. II. That on the day of , 18. ., at , the defendant covenanted with the plaintiff, under his hand and seal, that if the said Johnson should not faithfully perform his duties as a clerk to the plaintiff, or should fail to account to the plaintiff for all moneys, evidences of debt^ or other property re- ceived by him for the use of the plaintiff, the defendant would pay to the plaintiff whatever loss he might sustain by reason thereof, not exceeding dollars. [Or, II. That at the same time and place, the defendant bound himself to the plaintiff, by a writing under his hand and seal, in the penal sum of dollars, conditioned that if the said Johnson should faithfully perform his duties as clerk and cashier to the plaintiff, and should justly account to the plaintiff for all moneys, evidences of debt, or other property which should be at any time held by him in trust for the plaintiff, the same should be void, but not otherwise.] [Or, IL That at the same time and place, the defendant exe- cuted to the plaintiff a bond, a copy of which is annexed,] IIL That between the day of , 18. ., and the day of ) 18. ., the said Johnson received money and other property, amounting to the value of dollars, for the use of the plaintiff, for which he has not accounted to him. \Demand of Judgment.] BOOK OF FORMS. 69 COMPLAINTS. iL On an undertaking of hail. [TiTLB.J [County.] The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , an order of arrest was duly' granted by A. B., a justice of the court, against one John Johnson, in an action brought in the said court by the plaintiff against the said Johnson ; and thereupon the said Johnson was arrested by the sheriff of the county of II. That on the day of , 18 . . , at , the defendants undertook, in the sum of dollars, that the said Johnson should, if released, render himself at all times amenable to the process of the court during the pendency of the said action, and to such as might be issued to enforce the judg- ment therein. IIL That thereupon the said Johnson was released. IV. That on the day of , 18. ., judgment was rendered for the plaintiff in the said action for dollars. V. That on the day of , 18 . . , execution was issued against the person of the said Johnson, under the said judgment, but the sheriff has made return that he could not be found." VL That the said judgment has not been paid [Demand of Judgment] ' Code, § 161. * It is not necessary to state the issuing of an execution against property, as if none was issued ; the execution against the person would be only irregu- lar, and not void. (Senick v. Orser, 4 Bosw., 389.) 70 BOOK OF FORMS. ' « • COMPLAINTS. •No. 100. • , -jr, ■: . ,;.•., yiSfec. 6. Complaints ow covenants of title, or for quiet POSSESSION. i. By grantee against grantor. [Title.] f County.] The plaintiff complains, and alleges : I. That on the day of , 18 • • > at , the defendant, in consideration of dollars to him paid, granted to the plaintiff, by deed, [a certain farm lying in the town of , and bounded northerly by land of one A. B., southerly and easterly by land of one C. D., and westerly by land of one E. F., and containing about acres,] and in his said deed warranted that he had good title in fee simple to the said property, and would defend the defendant in his pos- session of the same. II. That the defendant was not, but one "William Brown was then the lawful owner of the said lands in fee simple. III. That on the day of , 18. ., the said Brown lawfully evicted the plaintiff from the same, and still withholds the possession thereof from him. [Demand of Jitdgment] No. 101. ii By tenant against landlord, with special damage. [Title.] [County.] The plaintiff complains, and alleges : L That on the day of , 18. ., at , the defendant, by deed, [or, lease under seal,] let to the plaintiff [the house Ko. 100 State street, Albany,] for the term of BOOK OF FORMS. 71 COMPLAINTS. years, covenanting that the plaintiff should quietly enjoy posses- sion thereof for the said term. IL That on , one William Brown, who was the law- ful owner of the said house, lawfully evicted the plaintiff there- from, and still withholds the possession thereof from him. lEL That the plaintiff was thereby [prevented from continuing che business of a tailor at the said place, was compelled to expend dollars in moving, and lost the custom of James Jenks and John Johnson, by such removal.] {Demand of Judgment] Sec. 7. Complaints on ■waeeanties. No. 102. i. For breach of warranty of chattels. [Title.] CCountt.J The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , the defendant warranted a steam-engine to be in good working order, and thereby induced the plaintiff to purchase the same of him, and to pay him dollars therefor. IL That the said engine was not then in good working order. [Demamd of Judgment.] 72 BOOK OF FORMS. COMPLAINTS. No. 103. ii. For breach of warranty of real estate. [TriLE-J [ConNTY.J The plaintiff complains, and alleges : I. That on the day of , 18 . . , at , the defendant warranted a certain farm in to con- tain [forty] acres of land, and thereby induced the plaintiff to purchase the same from him, and to pay him dollars therefor. II. That the said farm contained only [thirty] acres. \Pemand of Judgment] Sec. 8. Complaint on an agreement of indemnity. No. 104. [TiTLE.J [County.] The plaintiff complains, and alleges : X That on the day of , 18 . . , at , the , plaintiff and defendant, being partners in trade under the firm of Smith & Jones, dissolved the said partnership, and mutu- ally agreed that the defendant should take and keep all the part- nership property, pay all debts of the firm, and indemnify the plaintiff against all claims that might be made upon hi-m on account of any indebtedness of the said firm. n. That the plaintiff duly performed all the conditions of the said agreement on his part. ni. That on the day of , 18 . . , [a judgment was recovered against the plaintiff and defendant by one William Brown, in the supreme court, upon a debt due from the said firm to the said Brown, and on the day of , 18 . .,] the plaintiff paid doUars [in satisfaction of the same.] IV. That the defendant has not paid the same to the plaintiff. I Demand of Judgment.] BOOK OF FORMS. 73 COMPLAINTS. Sec. 9. Complaint on a ohaetee-paety. No. 105. By owner against freightor, for not loading. [Title. J [Cotjntt.] The plaintiff complains, and alleges : I. That on the day of , 18. ., at , the plaintiff and defendant entered into an agreement, a copy of "which is hereto annexed. [Or, I. That on , at , the plaintiff and defendant agreed by charter-party that the defendant should deliver to the plaintiff's ship " Adirondac," at , on the day of , 18. ., five hundred tons of merchan- dise, which she should carry to , and there deliver, on payment of freight ; and that the defendant should have days for loading, days for discharge, and days for demurrage, if required, at dollars per day.] II. That at the time fixed by the said agreement, the plaintiff •was ready and -willing, and offered to receive [the said merchan- dise, or, the merchandise mentioned in the said agreement,] from the defendant III. That the period allowed for loading and demurrage has elapsed, but the defendant has not delivered the said merchan- dise to the said vessel. Wherefore, the plaintiff demands judgment for dollars for demurrage, and dollars additional for 74 BOOK OF FORMS. COHPLAINTS. TITLE V. FOR DAMAGES UPON WRONGS. Skotion 1. For trespass on property. 2. Por conversion of personal property. 3. Against bailees. 4 Against sheriffs. 5. For deceit. 6. For nuisances. 7. For waste. 8. For personal injuries. 9. For defamation. &c. 1. Complaints for trespass. No. 106. L For trespass mi land. fTlTlE.J [COUNTT.] The plaintiff complains, and alleges : That on the day of , 18. ., at .- , the defendant entered ' npon the plaintiff's fann \or, lot] known as , \or, into the plaintiff's house, No. street ;] [and trod down the grass, cut the timber, and otherwise injured the same.] [Deirumd of Judgment] 'It is not necessary to state that the defendant "broke "the plaintiff's close. ( Wdls V. SoweU, 19 Johns,, 385 ; and see Ibnawanda Mailroad Ciwi- pany v. Mvmger, 5 Denio, 259.) BOOK OF FORMS. 75 COMPLAKfTS. No. 107. ii. For trespass on chattels. [Title.] fCoDNir.J The plaintiff complains, and alleges : That on the ..... day of , 18. ., at , the defendant broke open ten barrels of rum' belonging to the plaintiff, and emptied their contents into the street, [or otherwise state the injury according to the facts.'] \Demand of Judgmemt.\ Sec. 2. Complaint for the conteesion of personal pro- perty. No. 108. [Title.] [Oountt.] The plaintiff complains, and alleges : L That on the day of , 18. ., he owned certain goods described in the schedule hereto annexed, [or, one thousand barrels of flour.'] IL That on that day, at , the defendant converted the same to his own use.' \Demand of Judgment.] ' We omit all statements of the value of the goods. They are not material in this class of actions. * This is a sufficient allegation of the conversion. It is not necessary to state the mode in which the defendant appropriated the property. {Decker v. Matthews, 12 N. T. [2 Kern.], 321, 324) 76 BOOK OF FORMS. COMPLATNTS. tSec. 3. Complaints against a bailee. No. 109. Against a warehouseman for refusal to deliver goods. [Title.] [Cotjntt.J The plaintiff complains, and alleges : L That on the day of ,18. ., at , the defendant, in consideration of the payment to him of dollars, [or, cents per barrel, per month, &c.,] agreed to keep in his store [one hundred barrels of flour,]' and to deliver the same to the plaintiff, on payment of the said sum. IL That thereupon the plaintiff deposited with the defendant the said [hundred barrels of flour.] HL That on the day of , 18. ., the plaintiff requested the defendant to deliver the said goods, and tendered him dollars, [or, the full amount of storage due thereon,] but the defendant refused to deliver the same. ISemand of Judgment.] iSec i. Complaints against sheeipfs. No. 110. L For not executing process. f Title.] [■ComtTT.J The plaintiff complains, and alleges : L That a,t the time of issuing the execution hereafter men- tioned, the defendant was the sheriff of the county of , in this stata '■ Though it is usual to aver that the goods were the property of the plain- tiff, it does not seem to be necessary. He could sue in his own name, if he were but the agent of the owner. BOOK OF FORMS. 77 COMPLAINTS. II. That on the day of , 18. ., at , judgment was [duly] rendered in an action in the court, in favor of the plaintiff, against one William Brown, for .... dollars. III. That on the day of , 18 . . , an execution against the property of the said Brown was issued upon the said judgment, directed and delivered to the defendant as sheriff aforesaid,' IV. That on that day the said William Brown had [a large quantity of hardware in his store, No. 100 State street, Albany, and owned the said store and lot] in the said county, out of which the said execution might have been satisfied ; of which the defendant had notice. Y. That he neglected to levy the amount of the said execution, or any part thereof; [or if he levied apart, specify if] \Demand of Judgmeni.l No. 111. ii For false return. [■TiTLB.J [COUNTY.J The plaintiff complains, and alleges : I. That at the time of issuing the execution hereafter men- tioned, the defendant was the sheriff of the county of , in this state. II. That on the day of , 18. ., at , judgment was [duly] rendered in an action in the court, in favor of the plaintiff against one William Brown, for ........ dollars. III. That on the day of , 18 . . , an execu- tion against the property of the said Brown was issued upon ' It cannot be necessary to state the terms of the execution. The court lakes judicial notice of its own forms of proceeding. BOOK OF FORMS. COMFLAINTB. the said judgment, directed and delivered to the defendant, as sheriff aforesaid, IV. That the defendant levied, under the said execution, on property of the said Brown [of the value of dollars, or, sufficient to satisfy the said judgment, with all the expenses of the execution,]' [or, state particulars of property on which he might have kvied; as in art. TV of preceding form.] V. That the defendant afterwards falsely returned upon the said execution, to the clerk of the county of , that the said Brown had no property in his county on which he could levy the amount of the said judgment, or any part thereof \ Demand of Judg-ment] Sec. 5. Complaints in actions for DECEit No. 112. i. M>r procuring property by fraud. [Title.] [Countt.J The plaintiff complains, and alleges : 1 That on the day of , 18. ., at , the defendant, for the purpose of inducing the plaintiff to sell him certain goods, represented to the plaintiff that [he was sol- vent, and worth dollars over all his liabUities.] IL That the plaintiff was thereby induced to sell [and deliver] to the defendant [dry goods] of the value of dollars. III. That the said representations were false [or state ilve par- ticular falsehoods], and were then known by the defendant to be so. IV. That the defendant has not paid for the said goods. [Or if the goods were not delivered, That the plaintiff, in preparing and shipping the said goods, and procuring their restoration, expended dollars.] [Demand of Judgment!] ' The defendant may well be supposed to know tlie particulars. It cannot be neceuaary that the plaintiff should state them. BOOK OF FORMS. COMPLAINTS. No. 113. ii Forfravd in inducing thejolaintiff to enter info a speculation in coal lands. [Title.] [Coustt.] The plaintiff complains, and alleges : L That on or about the day of , 18 . . , the defendant proposed to the plaintiff that they shonld purchase, on joint account, some coal lands, and a charter for a coal com- pany in Maryland. , , IL That the defendant informed the plaintiff that the X. coal company had a charter and some valuable coal lands, which could be purchased for . , dollars and no less. III. That the defendant at the same time represented to the plaiatiff that he should pay dollars in cash, and his promissory note for dollars, as his share of the said purchase mon^y. IV. That the plaintiff was thereby induced to give to the de- fendant, as his share of the purchase money, dollars in cash, and his promissory note, dated the day of . . . . , 18 . . , payable .... months thereafter, for dollars. Y. That all the said representations of the defendant were false, and he then knew them to be so. VL That the said lands were not coal lands, and were not worth more than dollars. VIL That the defendant purchased the same, with the charter aforesaid, for dollars in cash, certain bonds worth not more than dollars, and his own note for doUar^; and gave no other consideration for the same. Wherefore the plaintiff demands judgment for dollars damages. \_0r, 1. That the said note of the plaintiff be surrendered to him; 2. For dollars damages.] 80 BOOK OF FORMS. COMPLAINTS. No. 114. iii. For frwudulently procuring credit to he given to another person, [Title.] [ConuTT.] The plaintiff complains, and alleges : L That on the day of i 18 . . , at , the defendant represented to the plaintiff,. that one A. B. "waa solvent and in good credit, and worth dollars over all his liabilities. IL That the plaintiff was thereby induced to sell to the said A. B., [dry goods] of the value of dollars [on months' credit] in. That the said representations were false, and were then known by the defendant to be so ; and were made by Mm with intent to deceive and defraud the plaintiff;' [or, to deceive and injure the plaintiff] IV. That the said A. B. [did not pay for the said goods at the expiration of the credit aforesaid, or,] has not paid for the said goods, and the plaintiff has wholly lost the same by reason of the premises. \Dema/nd of Judgment.] No. 115. iv. Against directors of a corporation, for damages caused by their misrepresentations. [Title.] [County.] The plaintiff complains, and alleges : L That before the time hereafter mentioned, at , a corjjoration was formed, or pretended to be formed, for the pur- pose of insuring property against losses by fire, and for other purposes; which corporation was named the insurance company. 'As to the necessity of this averment, see ZabrisJeie v. Smiih, 13 N. Y. [3 Kem.J, 330 ; Addington v. Allen, 11 Wend,, 386. BOOK OF FORMS. 81 COMPLAINTS. II. That the said company was organized, or pretended to be organized, under the provisions of a law of this state, passed April 10, 1849, entitled " An act to provide for the incorporation of Insurance Companies." III. That the charter of the said company provided, among other things, that the capital thereof should be [two hundred thousand] doUars, to be paid up in cash. IV. That at the times hereafter mentioned [or, from the day of , 18. ., until the day of , 18..], the defendants were [or, represented themselves to be] directors of the said company. V. That at sundry times, between the day of , 18.., and the day of , 18.., the defendants represented to the public at large [or, to the plaintiff], that the said company had a paid-up cash capital of [two hundred thou- sand] dollars. VI. That on the .... day of , 18 . . , at , the defendants published a statement showing that the profits of the said company amounted to [ten thousand] doUars, and de- clared a dividend of [four per centum.] Vn. That the said representations were wholly false, and were then known by the defendants to be so, and were made with in- tent to deceive and defraud the public [or, the plaintiff], and to induce persons [or, him] to' insure with the said company. That the said company never had a cash capital of more than [twenty thousand] dollars, and had not, on the said day of , 18. ., made more than [two thousand] dollars profits. VIII. IJJhat by the said representations the plaintiff was in- duced to J&sure with the said company ; which accordingly issued to him a policy of insurance, of which a copy is hereto annexed. IX. That on the day of , 18 . . , the property mentioned in the said policy was destroyed or greatly injured by fire, and the plaintiff's loss thereon amounted to dollars. 11 82 BOOK OF FORMS. COMPLAINTS. X. That on the day of , 18. ,, at , the plaintiff obtained judgment against the said company, upon the said policy, for dollars, in the court of XL That on the [same day] an execution was issued upon the said judgment, against the property of the said company, to the sheriff of the county of , which was returned wholly imsatisfied. XIL That by reason of the premises, the plamtiff has lost the whole amount of the said judgment [Demand of Juclgment.\ Sec. 6, Complaints for nuisances. No. 116. i. For erecting a nuisance. [Title.] rGouuTT.J The plaintiff complains, and alleges : I. That he is, and at all the times hereafter mentioned was, possessed of [the house and lot No. 100 State street, Albany.] n. That on the day of ■. , 18. ., the defend- ant erected upon the lot [No. 98 State street, Albany,] a slaughter-house, and still maintains the same, and fix)m the said day untU the present time has continually caused cattle to be brought and Mlled there, [and has caused the blood and offal to be thrown into the street opposite the said hotise of the plaintiff.] IlL [State special damage.'] [Demand of Judgment.} BOOK OF FORMS. 83 COMPLAINTS. No. 117. il Far damages earned by the continuance of a nuisance, [TitlkJ [Oountt.J The plaintiff complains, and alleges : L That he is, and at aU the times hereafter mentioned was, possessed of [the house and lot ITo. 100 State street, Albany.] n. That ever since the .... day of , 18. ., the de- fendant has maintaiaed a slaughter-house on the [lot Ko. 98 State street, Albany, Sc, as in tlie preceding form.] IIL That on the day of 18 . . , the plaintiff requested the defendant to remove the said [slaughter-house, or to cease using it for that purpose,] but he has not done so.' IV. [State special damage.] \Demand of Judgment.\ No. 118. iii For ohstT-ucting a way. [TlTLE.J fCoOTTT.J The plaintiff complains, and alleges : L That he is, and at the time hereafter mentioned was, pos- sessed of [a hquse in the town of Coeymans, county of Albany.] II. That he was accustoined to pass [with vehicles, or, on foot] along a certain way leading from his said house to [the highway.]' ' A request is held necessary against a mere continuer of a nuisance. {Hub- hard v. Russell, 24 Barb., 407. But see contra, per Denio, J., Brown v. Cayuga and Susq. R. R., 12 N. T. [2 Kern.], 492. * The plaintiff is not required to plead or prove any facts giving him a title to the way. If the defendant has any right to interrupt him, that is matter of defense, and until he proves such right, he is a wrong doer. (See St. John v. Moody, 2 Lev., 148 ; 1 Vent, 274 ; Winford v. WoUaston, 3 Lev., 266.) 84 BOOK OF FORMS. COMPLAINTS. IIL That on the day of , 18. ., the defendant obstructed the said way, so that the plaintiff coiold not pass [with yehicles, or, on foot, or, in any manner] along the said way [and has ever since obstructed the same.J IV. [State special damage, if any.'] [Demand of Judgment] No. 119. iv. For diverting a water course. |TlTlE.J fConuTT.J The plaintiff complains, and alleges : X That he is, and at the time hereafter mentioned was, pos- sessed of a [saw-roill] situated on a [brook, or, creek] known as the , ia the town of , county of n. That the water of the said [brook] was accustomed to flow into the said mill' HL That on the day of , 18. ., the defendant diverted the water of the said [brook], so that less water ran iuto the plaintiff's null IV. That by reason thereof the plaintiff has been unable to saw more than logs per day, whereas, before the said diversion of water, he was able to saw logs per day. \Demand of Jv/Sgmentil ■ This is sufficient^ as against a •wrong doer. (Sands v. 3Ve/tMes, Cro. Car., 575 ; Anm., id., 500, See Maight v. Price, 21 N. T., 245.) BOOK OF FORMS. 85 COMPLAINTS. Sec. 7. Complaints fob waste. No. 120. V. For waste by a lessee. [TiTtE.] fCoUNTY.J The plaintiff complains, and alleges : L That on the day of > 18 . . , the defendant hired from him the [house No street, Albany,] for the term of ' n. That the defendant occnpied the same under such hiring. III. That during the period of such occupation the defendant greatly injured the premises [defaced the walls, tore up the floors, and broke down the doors ; or otherwise specify the injuries as fat as possihle.] Wherefore, the plaintiff demands judgment for dol- lars damages. [Treble damages.']'' Sec. 8. Complaints foe injtjeies to the person. No. 121. i. For assault and battery. [Title.] fCouUTT.J The plaiatiff complains, and alleges : That on the day of , 18. ., at , the defendant assaulted and beat him. Wherefore, the plaintiff demands judgment for doUars damages. ' As the defendant is estopped from denying the plaintiff 's title, it need not be alleged. We are aware that, before the Code, the title must be pleaded in this action (Ca/rris v. IngaUs, 12 Wend., 70), but there is no reason, under the Code, why this exceptional rule should be maintained. Of course, if the action is brought against a tenant, whose possession was not derived from the plaintiff, the latter must show his title. « 3 R. S. (5th ed.) 621 ; [2 id. 334.J 86 BOOK OF FORMS. COMPLAINTS. No. 122. iL The same, with special damage. [Title.] [County.] The plaintiff complaina, and alleges: L That on the day of , 18. ., at , the defendant assaulted and beat the plaintiff, until he became insensible. IL That the plaintiff was thereby disabled from attending to his business for [six weeks thereafter,] and was compelled to pay dollars for medical attendance, and has been ever since disabled [from using his right arm.] [Or otherwise state the damage, as the case may be."] [Demand of Judgmeni.\ No. 123. iii For false imprisonment. [Title.] [Cotott.J The plaintiff complains, and alleges : That on the day of , 18. ., at , the defendant imprisoned him for days, [or, hours.] [iState special damage, if any.] [Bemand, of Judffment^ BOOK OF FORMS. 87 COMPLAINTS. No. 124 iv. For injuries caused hy negligence of the defendant in leaving a hatchway ojoen. [Title.] [County.] Tlie plaintiff complains, and alleges : I. That on the day of , 18. ., the defendant was the occupant of the [store 'No. 100 State street, Albany,] and had possession and control of the hatchway hereafter men- tioned. IL That on the said day the plaintiff was in the said [store, or bnilding] by permission of the defendant, for the purpose of transacting business with him, lor, in the discharge of his duties as a tax collector for the city of , or otherwise sTwwfor what purpose, and by what right, the plaintiff was there.] m. That the hatchway on the story of the said build- ing was then, by the negligence of the defendant, left open, unprotected in any manner. IV. That ia consequence thereof the plaintiff fell through the said hatchway and was much injured ; [state special damage, if any, as, and was kept to his bed and detained from business for days, was compelled to expend dollars for medical attendance and nursing, and has been made perma- nently lame.] [Dema/nd of Judgment.] 88 BOOK OF FORMS. COMPLAHSflS. No. 125. V. F COUNTT OF . James Johnson and John John-\ SON. The plaintiff complains, and alleges : L That on the day of 18 . . , the defendant, John Jones, executed to the plaintiff a bond, conditioned to pay him dollars, in .... year, with interest at [seven] per cent per annum, payable [half yearly.] n. That for the purpose of securing the payment of the said bond, the said Jones, with Caroline his wife, executed to the plaintiff a mortgage of the same date, upon certain real property in the town of , in the county of , described as follows : [giving a description of the property as it should be de- scribed in the sheriff'' s deed.'\ III That on the day of ,18. ., the said mort- gage was recorded in the of&ce of the clerk of the county of , in book of mortgages, page IV. That on the day of , 18. ., the said Jones and his wife conveyed the said real property, subject to the said mortgage, to the defendant, James Johnson, who thereupon covenanted with the said Jones, under his hand and seal, that the said bond and mortgage should be paid at maturity. Y. That no part of the principal or interest of the said bond and mortgage has been paid.' 1 Tlie Revised Statutes (3 E. S., 5th ed., 272, [2 id., 191,J) required the complainant in chancery to state whether any, and if so, what proceedings had been had at law to collect payment on the bond, and if the statement of the complaint was proved untrue, it was dismissed. (Loveit v. Oerma,i Re- BOOK OF FORMS. 101 COMPLAINTS. VI. That the defendant, John Johnson, has or claims some interest in, or lien upon, the said real property ; but the same, whatever it may be, is subject to the lien of the said mortgage.' Wherefore, the plaintiff demands judgment : 1. That each of the defendants, and all persons claiming under any of them, subsequently to the commencement of this action, be foreclosed of all equity of redemption or other interest in the said real property ; 2. That the same be sold and the proceeds applied to the pay- ment of the amount due on the said bond and mortgage, with interest ; 3. That if there be any deficiency, the defendants, John Jones and James Johnson, pay the same. No. 143. iv. For redemption of real property. I TitlkJ [Countt.J The plaintiff complains, and alleges : I. That on the day of , 18 . . , he executed to the defendant a mortgage upon certain real property in the town of , in the county of , described as follows : [describing »i] to secure the payment of dollars, in year, with interest at [seven] per cent per annum, payable [half yearly.] II. That on the day of , 18 . . , he tendered to the defendant dollars, being the principal of the said mortgage, with interest from the date thereof to that time, and formed Church, 12 Barb., 83.) This is unnecessary under the Code, as whatever the plaintiff has done in the way of a former suit is matter of defense, and legal and equitable remedies are obtainable in one action. (Code, §69.) ' This is sufficient. {Drwry v. Clark, 16 How., 431.) 102 BOOK OF FORMS. COMPLAISTS. requested the defendant to acknowledge satisfaction of tlie same, but he refused to do so. Wherefore, the plaintiff demands judgment : 1. That he be allowed to redeem the said mortgage, upon pay- ing to the defendant the amount due thereon ; 2. That upon such payment the defendant satisfy the said mortgage of record. No. 144. V. For partition of real property/. SUPEEME COUET. JouN Smith against i.MiTH, James John Johnson. William S.mith, James Smith and ' ^OUJSrix OF The plaintiff complains, and alleges . I. That he and the defendants, Willikm Smith and James Smith, are in possession, as tenants in common, of certain real property in the town of , in the county of , described as follows : [describing it'] II. That he has an estate of inheritance therein, consisting of one undivided [third] part tliereof, as tenant in common with the defendants, William Smith and James Smith, who have each a similar estate. III. That the defendant, John Johnson, has a mortgage here- tofore executed by the defendant, James Smith, upon his said interest, for the payment of dollars on the day of J 18 . . , with interest from that time. 1 Spe 3 K. S., (5th ed.) 604; [2 id., 318.J BOOK OF FORMS. 103 COMPLAINTS. [IV. That the plaintiff owns no other land in this state in com- mon with the said William and James.]' Wherefore, the plaintiff demands judgment for a partition of the said real property, according to the respective rights of the parties aforesaid ; or if a partition cannot be had without mate- rial injury to those rights, then for a sab of the said premises, and a division of the proceeds between the parties, according to their rights. [ Verification.1 ' No. 145. vi For partition by a tenant in common, or joint tenant, against a co-tenant who has wasted the estate. [Title.] [Oountt.] The plaintiff complains, and alleges : I. That he is a tenant in common [or, joint tenant] with the defendant of [describe the property.] II. That [each of them] is entitled to an undivided [half] of the same. HL That between the day of , 18 . . , and the day of , 18 . . , the defendant committed great waste upon the same, [cutting down many valuable fruit trees ; or otherwise specify acts of waste,] without the consent of the plaintiff Wherefore, the plaintiff demands judgment : 1. For dollars damages.' 2. For a partition of the said premises in such manner as to compensate him for such damages. ' This allegation is necessary when an infant is made a party (Rule 77, Supreme Court), and it can do no harm in any other case, though not neces- sary. «2R. S., 318, §5. 5 The plaintiff can have this relief. (3 R. S. (5th ed.), 621 ; [2 id., 335].) 104 BOOK OF FORMS. COMPLAINTS. No. 146. viL For the determination of claims to real property. [Title.] [Oountt.J The plaintiff complains, and alleges : I. That at the time of his death one William Smith was seised in fee simple of certain real property in the town of , county of , bounded as follows : ' II. That in his lifetime the said William Smith made and published his last wUl and testament, whereby he devised to the plaintiff all the said property.' III. That on the day of , 18 . . , at , the said William Smith died." IV. That the said property is now, and has been for the three years last past, in the actual possession of the plaintiff \or, is now, and has been for the years last past, in the actual possession of the plaintiff, and was, during the years im- mediately preceding that period, in the actual possession of ihe said deceased.] Y. That the defendant unjustly claims an estate for life in the same. Wherefore, the plaintiff demands judgment that the defendant be forever barred from all claim to any estate of inheritance or freehold in the said property.' ' See 3 R. S. (5th ed.), 599 ; [2 id., 312.] ^ These allegations are mutually dependent. They may be varied accord- ing to the actual source of the plaintifif 's title. (2 R. S., 318, § 2.) ^ This is all the relief to which the plaintifif is entitled. (Laws 1865, ch. 511, § 3.) BOOK OP FORMS. 105 COMPLAINTS. No. 147. viii. For vacating an assessment for local improvements. [Title.] [County.] The plaintiff complains, and alleges : I. That he is the owner in fee simple of [one undivided seventh part of four lots of land in the sixteenth ward of the city of New York,] bounded and described as follows : [insert description of property] [the other six-sevenths being owned in fee simple by the defendants, C. D., E. F., G. H., I. J., K L. and M. K] II. That the defendants 0. P. and Q. K. are the owners in fee of [two] lots adjoining the [four] above described lots, which said [two] lots are bounded, taken together, as follows : [insert description.] III. That the [two] lots last above described, and the [two] ot the other [four] lots which front on [26th] street, were sold in one parcel on the day of ; 18 . . , by the mayor, aldermen and commonalty of the city of New York, to satisfy two alleged assessments for local improvements, one for the opening of [26th] street, from the [Hudson river] to the [Bloom- ingdale road,] and the other for setting curb and gutter in the [8th avenue] from [24:th] street to [42d] street. IV. That the other [two] of the first described lots, jfronting on [25th] street, were sold in one parcel on the said day of , 18 . . , by the said mayor, aldermen and commonalty, to satisfy two alleged assessments for local improvements, one for opening [25th] street, and the other for setting the curb and gut- ter aforesaid. V. That in the proceedings relative to all the said assessments, and in the proceedings to collect the same, both fraud and legal irregularity have been committed. VI. That the following, among others, are the frauds and legal irregularities committed, in respect to the assessment for opening [26th] street: 14 106 BOOK OF FORMS. OOMPIAIITTS. 1. That the land in the street to the middle thereof, fronting on the said lots, belonged to the same owner as the said [four] lots, which owner was wrongly stated to be [John Jones ;] 2. That the benefit above the damage was assessed at dollars, for the said [four] lots with [two] adjoining lots, thus charging the owner with a large sum for taking his own pro- perty; 3. That the petition of the said mayor, aldermen and common- alty, and the order of the supreme court thereon made, appoint- ing commissioners of estimate and assessment, appointed them for the opening of [26th] street from [Hudson river] to the [Fourth avenue.] ' ^ VII. That the following, among others, are the frauds and legal irregularities committed in respect to the proceedings to collect all the said assessments : 1. That notices were not left before the advertisement of sale, at the residence of the owners or with the tenants on the property ; which property was then occupied : 2. That the advertisement described the assessment for open- ing [26th] street, as confirmed on the day of , 18 . . , whereas, if it was ever confirmed, it was confirmed on the day of , 18 . . VIII. That upon the said sales the property was bid in by the said mayor, aldermen and commonalty, who shortly afterwards assigned the said bid for the lots on [26th] street to [John Jack- son,] and for the lots on [25th] street to [James Jackson,] but that no lease has yet been executed, pursuant to the said sale. Wherefore, the plaintiff demands judgment : 1. That the said mayor, aldermen and commonalty, be re- strained by injunction from executing or delivering any lease pursuant to the sales above mentioned ; 2. That the said assessments and all proceedings to collect the same, be declared void and set aside. BOOK OF FORMS. 107 COMPLAINTS. No. 148. ix. For forfeiture avd eviction, on account of waste, hy a reversioner.* [Title.] [Coukty.] The plaintiff complains, and alleges : I. That at the time of his death one "William Smith was seised in fee simple of [describe the property.] II. That in his lifetime the said William Smith made and published his last will and testament, whereby he devised the said land to the defendant for the term of , and afterwards to the plaintiff. III. That on the day of , 18. ., at , the said William Smith died. IV. That the defendant entered into possession of the same, under the said will. Y. That on the day of i 18 . . , the defendant committed great waste on the said land, [cutting down many valuable fruit trees, or otherwise specify the acts of waste.] VI. That the injury thereby done to the said property is [more than] equal to the value of the defendant's unexpired term. [Or, VL That siich waste was committed in malice.] Wherefore, the plaintiff demands judgment: 1. That the estate of the defendant in the said property be forfeited ; 2. That he be evicted therefrom ; [3. For dollars, damages.] ' Code, § 452. 108 BOOK OF FORMS. COMPLAINTS. No. 149. X. For an injunction restraining waste. [Title.] [Countt.J The plaintiff complains, and alleges : I. That he is the owner in fee simple of \descrihe the property. ^ II. That the defendant is in possession of the same, under a lease from the plaintiff. III. That the defendant has [cut down a number of valuable trees, and threatens to cut down many more, for the purpose of sale,] without the consent of the plaintiff. Wherefore, the plaintiff demands judgment, that the defend- ant be restrained by injunction from committing or permitting any further waste on the said premises. \Peam'Mry damages might also be demanded.] No. 150 xi. For abatement of a nuisance. [Title.] [Countt.J The plaintiff complains, and alleges : I. That he is, and at all the times hereafter mentioned was, the owner in fee simple of [the house and lot No. 100 State street, Albany.]' II. That the defendant is, and at all the said times was, the owner in fee simple of [the lot No. 98 State street, Albany.]' IIL That on the day of 18. ., the defendant erected upon his said lot a slaughter-house, and still maintains ' An action to abate a nuisance can be maintained only by the owner in fee of the premises injured, against the owner in fee of the premises on which the nuisance exists. {EUsworih v. Putruim, 16 Barb., 668.) BOOK OF FORMS. 109 COMPLAINTS. the same; and from that day until the present time has con- tinually caused cattle to be brought and killed there, [and has caused the blood and offal to be thrown into the street opposite the said house of the plaintiff.] IV. That [the plaintiff has been compelled, by reason of the premises, to abandon the said house, and has been unable to rent the same.] Wherefore, the plaintiff demands judgment, that the said nuisance be abated.' No. 151. xii. For an injunction against the diversion of a water-course. [Title.] [County. ] The plaintiff complains, and alleges : [As in No. 118.] Wherefore, the plaintiff demands judgment, that the defendant be restrained by injunction from diverting the water as aforesaid. Sec. 2. Complaints eelative to personal pbopbbty. Na 152. i. For restoration of personal property, threatened with destruction, and for an injunction. [Title.] [CouNTy.] The plaintiff complains, and alleges : I. That he is, and at all times hereafter mentioned was, the owner of [a portrait of his grandfather, which was executed by an eminent painter,] and of which no duplicate exists. [Or state ' See note on previous page. 110 BOOK OF FORMS. COMPLAINTS. any facts showing that the property is of a land that cannot be replaced by money. Y II. That oa the day of , 18 . . , he deposited the same for safe keeping with the defendant III. That on the day of , 18 . . , he demanded the same from the defendant, and offered to pay all reasonable charges for the storage of the same. IV. That the defendant refuses to deliver the same to the plaintiff, and threatens to conceal, dispose of, cut or injure the same if required to deliver it up. Y. That no pecuniary damages would be an adequate com- pensation to the plaintiff for the loss of the said [painting.]' "Wherefore, the plaintiff demands judgment: 1. That the defendant be restrained by injunction from dispos- ing of, injuring or concealing the said [painting ;] 2. That he return the same to the plaintiff. No. 153. ii. Creditor's action on a judgment of a court of record. [Title.] [Countt._ The plaintiff complains, and alleges: L That on the day of , 18. ., at , judgment was [duly]" rendered in the court, in his favor, ' It is held in England, that a court of equity may interfere in any case where the recovery of specific chattels is sought, and the defendant threatens to dispose of or injure them. ( Wood v. RowcUffe, 3 Hare, 309 ; see 2 Giffard, 64.^ But it may be doubted whether there is sufficient authority in this state for granting the relief sought in this complaint, unless the injury is shown to be irreparable. (i3ee Jerome v. Ross, 7 John. Ch., 333.) It is not intended to affect this question by the fibove form. (See Hunt v. Mootry, 10 How., 479.) ^ " Duly " may be omitted, when the court is one of general jurisdiction. Otherwise, see Code, § 161. BOOK OP FORMS. m COMPLAINTS. against tlae defendants Jolm and William Jones, for dollars. IL That on the day of , 18 . . , an execution was issued upon tlie said judgment against the property of the said John and William Jones, to the sheriff of the county of , in which they then resided. IIL That the said execution has been returned hy the said sheriff, wholly unsatisfied. IV. That after the contracting of the debt on which the afore- said judgment was recovered, the said John and William Jones assigned all their property to one John Robinson, in trust for the payment of their debts ; {or, made an assignment of which a copy is hereto annexed.] V. That the said Robinson accepted the said trust, and has collected a large sum of money and other property from the assets of his assignors, amounting in all to the value of over dollars. YI. That the said assignment was made with intent to delay and defraud the creditors of the said John and William Jones. Wherefore, the plaintiff demands judgment : 1. That the said assignment is fraudulent and void as against the plaintiff ; 2. That the said Robinson account, under the direction of the court, for all the property received by him as aforesaid ; 3. That the defendants be restrained by injunction from inter- fering with any of the said property, or its proceeds, except under the direction of the court ; 4. That the plaintiff's judgment be satisfied out of the same. 112 . BOOK OF FORMS. COMPLAINTS. No. 154. iii. Creditor's actidii on a justice's jvdgmenV [As in No. 153 to the end of Aet. I.] II. That the said jiidgment included not more than dollars costs. III. That on the day of , 18 . . , a transcript of the same was filed and docketed in the ofiice of the clerk of the county of [if the judgment debtors resided in another county, add: and on a transcript of the same was filed and docketed in the office of the clerk of the county of , j in which the defendants, John and William Jones, then resided. IV. [To the end; as in No. 153, from Abt. II to the end.'] No. 155. iv. Against the trustees of a dissolved corporation." [Title.] [County.] The plaintiff complains, on behalf of himself and all other creditors of the company who may come in and con- tribute to the expenses of this action,- and alleges : I. That the company was duly incorporated on the .... day of ) 18 . . , under the " act relative to incorpo- rations for manufacturing pujposes," passed March 22d, 1811, and the acts amending the same ; and thereafter carried on busi- ness at the town [or, city] of II. [State a cav^e of action against the company. 1 IIL That on the day of , 18 . . , the trustees of the said company passed a resolution, of which a copy is hereto annexed, pursuant to an act entitled " An act to facilitate the ■ See Orippen v. Hudson, 13 N. Y. [3 Kern. J, 161. " See the act of 1852, referred to. BOOK OF FORMS. 113 COMPLAINTS. dissolution of mamifacturing corporations in the county of Her- kimer, and to secure the payment of their debts without prefer- ence," passed April 16, 1852. IV. That the defendants were the trustees of the said com- pany at the time of the passage of the said resolution. V. That the defendants have received a large amount of money and other property belonging to the Said company, but have refused to pay the said claim of the plaintiff Wherefore, the plaintiff demands judgment : 1. That the defendants account, under the direction of the court, for the property received by them as aforesaid ; 2. For the payment to him of dollars, with interest from the . day of , 18 . . , out of the funds in possession of the defendants, or which they may collect ; 3. That the defendants proceed, without delay, to discharge the trusts devolved upon them in the premises. No. 156. V. Interjaleader.' [Title.] [County.] The plaintiff complains, and alleges : I. That before the date of the claims hereafter mentioned, one Benjamin Brown deposited with the plaintiff \describe the property,] for [safe keeping.] II. That the defendant, John Jones, claims the same [under an alleged assignment thereof to him from the said Brown.] in. That the defendant, John Johnson, alsc claims the same [under an order of the said Brown, transferring the same to him.] ' Order of Interpleader. — Under § 122 of the Code, an order to inter- plead may be obtained by a defendant in an action actually commenced, for which purpose the following forms may be used. The case supposed is that of a corporation, sued for a transfer of stock and payment of dividends. 15 114 BOOK OF FORMS. COMPLAINTS. ly. That the plaintiff is ignorant of the respective rights of the defendants. No. 157. 1, Notice of motion for order to interplead, [Title.] Please take notice, that upon the annexed affidavit, and on the complaint herein, the defendant will apply to this court, at a special term, to be held at the , in the of , on the .... day of , 18. ., at . . o'clock in the .... noon, for an order to substitute in his place, as defendant in this action, the sheriff of the county of and to dis- charge this defendant from liability, either to ihe said plaintiff or the said sheriff, concerning the property mentioned in the complaint, upon transferring the same to such person as the court may direct, or for such other rehef as to the court may seem just A. B., Defendants Attorney. [Date.\ To 0. D., Plaintiff's Attorney ; 2b The Sheriff of No. 158. iL 4ffidavU on motion. [Title.] County of : John Jones, of , being duly sworn, says as follows : 1. I am the treasurer of the defendant ; 2. The complaint herein was served on the day of , 18. . , 3. The defendant has not yet answered the same ; 4. On the .... &dj of , 18. ., the sheriff of the county of .... served upon me, as treasurer aforesaid, a copy of a warrant of attach- ment granted in an action in the supreme court, in favor of Benjamin Brown as plaintiff against Daniel Down as defendant, a copy of which is annexed, marked A ; and also served a notice in writing, claiming delivery of the pro- perty mentioned in the complaint to him, by virtue of the said attachment; a copy of which notice is annexed, marked B ; BOOK OF FORMS. 115 COMPLAINTS. V. That lie has no claim upon the said property, and is ready and willing to deliver it to such persons as the court shall direct. 5. The said sheriff claims the said property, under the said attachment, as the property of the said Down, in satisfaction of any judgment to be obtained in the said action ; 6. On the service of the said warrant and notice, I delivered to the said sherifi", at his request, a certificate, of which a copy is annexed, marked ; 7. The claim above mentioned is made without collusion between the de- fendant and the claimants ; 8. The defendant is ready and willing to deliver the said property to such person aa the court may direct, upon being discharged from liability to either claimant ; 9. The fifth allegation herein, and no other, is made upon information and belief. John Jonbs. Sworn before me, the . . of ,18..., G. H., Commissioner of Deeds. \ Annex Schedules, A, B and C.J ] No. 159. iii. Order of ■fnferpleader. SUPREME COURT. John Smith i At a special term, held at the , in the .... of against K , on the . . day of , 18. .. The Company. \ Present : On reading and filing notice of jnotion, with the affidavit of John Jones, dated the .... day of , 18. ., and schedules A, B and C, therein referred to ; and on motion of A. B., counsel for defendant, after hearing C. D., counsel for plaintiff, and Gr. H., counsel for the sheriff of county ; ORDEREn : 1. That the defendant, upon the surrender to it of the certificate for shares of its capital stock, issued to Daniel Down, on the .... day of , 18. ., numbered 286, transfer the same number of shares to [name of receiver ;'\ 116 BOOK OF FORMS. COMPLAINTS. VI. That this action is not brought by collusion with either of the defendants. Wherefore, the plaintiff demands judgment : 1. That the defendants be restrained, by injunction, from taking any proceedings against the plaintiff in relation thereto ; 2. That they be required to interplead together concerning their claims to the said property ; [3. That some person be authorized to receive the said pro- perty pending such litigation ; J 4. That upon delivering the same to such [person,] the plaintiff be discharged from all liability to either of the defendants in relation thereto. [ Verification.] 2. That the defendant pay to the said [receiver] dollars, being the dividends due on the said stock, deducting dollars for the defend- ant's costs in this action ; 3. That B. R, the sheriff of the county of , be substituted as defendant, in the place of the company ; 4. That on transfer and payment as aforesaid, the said company be discharged from all liability concerning the property mentioned in the complaint, as well to the said sheriff as to the plaintiff; 5. That the said {receive'] hold the said stock and dividends, and tiolleet and hold future dividends thereon, in trust, subject to tlie further order or judgment of this court ; 6. That within twenty days after entry of this order, the plaintiff serve a copy of his complaint, amended as he may see fit, upon the defendant substi- tuted as aforesaid ; 7. That if such defendant shall not, within twenty days after such service, answer the said complaint, the said stock shall be transferred and the said dividends paid to the plaintiff. BOOK OF FORMS. 117 OOMPLAIKTS. No. 160. vi Far a dissolution of partnership. [Title.] [County.] The plaintiff complains, and alleges : L That on the day of , 18 . . , at , he entered into partnership with the defendant [as merchants, or, under an agreement, of which a copy is hereto annexed.] II. That on the .... day of > 18 . . , the defendant took exclusive possession of the partnership books and stock, and prevented the plaintiff from having access to the same. \^0r state any other facts constituting a breach of the agreement, avoiding legal conclusions.'] Wherefore, the plaintiff demands judgment : 1. That the said partnership be dissolved ; 2. That a receiver of the property thereof be appomted, with the usual powers ; 8. That the defendant be restrained, by injimction, from inter- fering with the said property ; 4. That the same be applied first to the payment of the part- nership debts, and the remainder be divided between the parties according to their respective rights. Sec. 8. DrvoECE. No. 161. i. For divorce from the honds of nuitrimony.^ [Title.] [Countt.] The plaintiff complains, and alleges : L That on the day of , 18. ., at , [in this state,] she was married to the defendant n. That the plaintiff was, at the time of the several acts of adultery hereafter mentioned, and at the commencement of this action, an inhabitant of this state. " See 3 E. S. (5th ed.), 235 ; [2 id., 144.J 118 BOOK OF FORMS. COMPLAINTS. [Or, if tJie marriage did not take place in this state: IL That the plaintiff and defendant were both, at the time of the several acts of adultery hereafter mentioned, inhabitants' of this state. Or, II. That the acts of adultery hereafter mentioned were committed in this state, and the plaintiff is now an inhabitant' thereof] III. That on [or, on or about] the day of , 18 . . , at "...., [and at other times and places since, which the plaintiff is unable more particularly to state,] the defendant committed adultery with one A. B. [The following articles may he inserted in the proper cases. The facts stated in art. IV miist he shown hy affidavit if not inserted here.''] IV. That such adultery was committed without the consent, connivance, privity, or procurement of the plaintiff; that five years have not elapsed since the plaintiff discovered the fact of such adultery, [or, that five years have not elapsed since the com- mencement of such adulterous intercourse was discovered by the plaintiff,] and that the plaintiff has not [voluntarily] cohabited with the defendant since such discovery. V. That the issue of tbe said marriage are children, aamed , aged .... years ; , aged .... years; and , aged .... years. Wherefore, the plaintiff demands judgment : 1. For a divorce from the bonds of matrimony ; [2. That the custody of the said children be awarded to her , 3. That a reasonable provision for her and their support be made out of the property of the defendant] • The expressions "actual inhabitant," " actual resident " and "inhabitant," are used in the articles of the Revised Statutes, relating to divorce. The single ■wotA. "inhabitant" probably expresses all that is meant by any of these expressions. 2 (See rule 86, Supreme Court.) These facts are no part of the cause of action, {hough necessary to be shown. BOOK OF FORMS. 119 COMPLAINTS. No. 162. ii. For a divorce from led and hoard.^ [Title.] [ConNTY.] The plaintiff complains/and alleges : L That on the day of , 18. ., at , [in this state,] she was married to the defendant. IL That she was, at the commencement of this action, an m habitant of this state. [Or if the marriage did not take place in this state : TL That the plaintiff and defendant are both inhabitants of this state : Or, II. That the plaiatiff and defendant have both become since, and remained for one year, inhabitants of this state, and the plaintiff is now an inhabitant thereof] HL That the defendant has cruelly and inhumanly treated the plaintiff, [or, has so treated the plaintiff as to render it unsafe and improper for he:? to live with him ; m; has abandoned and neg- lected to provide for her.] IV. That the nature and circumstances of the said misconduct are as follows [specifying acts, times and places with reasonable certainty.] V. [As in No. 161, if in accordance with the facts.] "Wherefore, the plaititiff demands judgment : 1. For a divorce jfrom the bed and board of the defendant ; [2. That the custody of the said children be awarded to her ; 3. That a reasonable provision be made for her and their sup- port out of the property of the defendant] ' See 3 E. S. (5th ed.), 237 r;2 id., 146.] 120 BOOK OF FORMS. COMPLAINTS. Sec. 4. Complaints fob public offick No. 163. L For an elective office. SUPEEME COUET. The People of the State of New] York and John Smith ( r(„„ , „ „„ agaM ' ^OUNTT OF John Jones. The plaintiffs complain, and allege : L That on the .... day of November, 18. ., an election was duly held in the .... judicial district of this state, for the of&ce of justice of the supreme court, for the term of eight years from the first day of January, 18. .. IL That at the said election, the above named John Smith received the greatest number of legal votes for the said ofi&ce. III. That on the day of , 18. ., the defendant usurped the said of&ce, and has ever siace withheld the same from the said John Smith. Wherefore, the plaintiffs demand judgment : 1. That the defendant is not entitled to the said office, and that he be ousted therefrom ; 2. That the said John Smith is entitled to, and be put in pos- session of the same. BOOK OF FORMS. 121 COMPLAINTS. No. 164 ii For an office not elective. SUPEEME COURT. The People of the State of New) Yoke and N. C. P. f CiTT AND OOUNTY OF NeW against I YOBK. A. V. S. \ The plaintiffs complain, and allege : I. That on the [thirtieth day of December, 1859,] the defend- ant was appointed chamberlain of the city of New York, by the mayor of the said city, with the advice and consent of the board of aldermen of the said city, and immediately thereafter entered upon the duties of the said of&ce, and continued therein until his removal as hereinafter stated. II. That [in May, I860,] the said defendant was duly removed from the said office, by the mayor of the said city, by and with the consent of the board of aldermen of the said city. III. That immediately after the removal of the said A. V. S. as aforesaid, the said N. C. P. was duly appointed chamberlain of the said city by the mayor thereof, with the advice and consent of the board of aldermen of the said city, to fill the vacancy made by the removal of the said defendant as aforesaid. IV. That the said N. C. P. thereupon accepted the said office, and in the form and within the time required by law and the ordinances of the said city, took and subscribed before the mayor of the said city, and filed in his office, the oath of office of the said N. 0. P. as such chamberlain, and also executed and filed in the office of the comptroller of the said city, an official bond, with sufficient sureties, approved by the said comptroller, in the amount prescribed by the ordinances of the said city. V. That the said N. 0. P., after the filing of such official oath and bond, demanded of the said defendant the possession of the said office, which the said defendant refused, and he still con- tinues to usurp, hold and exercise the said office, to the exclusion of the said K C. P. 16 122 BOOK OF FORMS. COMPLAINTS. Wherefore, the plaintiffs demand judgment : ' 1. That the said defendant is not entitled to the said office; and that he be ousted and excluded therefrom ; 2. That the said N. d- P. is entitled to the said office, and that he be admitted into the same, and to all the rights and emolu- ments thereof. BOOK OF FORMS. 123 OOMPLAIKTS. TITLE VIII. FOB OBDINAET AND SPECIAL BELIEF UNITED. No. 165. Complodnt for ordinary judgment against the maker, and indorser of a note, and to reach collateral securities lodged with the indorser. [Title.] [Countt.J The plaintiff complains, and alleges : I. That on tlie day of , 18 . . , at , tne defendant Jolm Jones, for the purpose of inducing the plaintiff to sell him certain goods, agreed to give him, in payment therefor, the defendant's promissory note, indorsed by one William Brown ; and represented to the plaintiff that the said Brown would be adequately indemnified by collateral security, for his indorse- ment n. That the plaintiff was thereby iaduced to sell and deliver to the said Jones, certain goods of the value of dollars. in. That on the .... day of ,18. ., at , in consideration thereof, the said Jones, by his promissory note, promised to pay to [the order of the said Brown] doUars, months [or, days] after date. IV. That the said Brown indorsed the same to the plaintiff V. That on the day of j 18 . . , the same was presented to the said Jones for payment, but was not paid. VL That the said Brown had notice thereof. Vn. That the same has not yet been paid. Vin. That the said Jones, when he procured the said indorse- ment from the said Brown, lodged with him [six promissory- notes for the aggregate sum of dollars, made by one John Johnson, and indorsed by the said Jones,] as security for such indorsement 124 BOOK OF FORMS. COMPLAINTS. IX. That the said Jones is endeavoring to withdraw the said Lnotes] from the said Brown, in order to prevent their application to the said indorsement. X. That the plaintiff has requested the said Brown to apply the said [notes] to the payment of the plaintiff's said claim, but he refuses to do so. Wherefore, the plaintiff demands judgment 1. For dollars, with interest from the .... day of ....,18..; 2. That the [notes] placed in the hands of the said Brown as security, be applied to the payment of the said sum ; 3. That the defendants be restrained by injunction from dis- posing of the said [notes] to any person other than the plaintiff. No. 166. For damages and an injunction, in an action for nuisance. > [As in No. 115, except the demand of jvAgrrvent, for which substi- tute.-] Wherefore, the plaintiff demands judgment : 1. That the defendant be restrained by injunction from using the said building as a slaughter-house, or permitting it to be so used; 2. For dollars damages. BOOK OF FORMS. 125 DEMUEBEItS. CHAPTER II. DEMUREEES TO COMPLAINT. No. 167. i. To the whole complaint [Title.] The defendant demurs [or, the defendants, namtn^ them, if only a part of them join, demur] to the complaint upon the ground that as it appears, upon the face thereof, this court has not juris- diction of the person of this defendant, or, this court has not jurisdiction of the subject of this action, or, the plaintiff has not legal capacity to sue, [being an infant and no guardian having been appointed for him, J or, there is another action pending between the same parties for the same cause of action, , or, there is a defect of parties, plaintiff [or, defendant] in the omission of [naming him,] or, several causes of action have been improperly joined, one being a cause of action [stating it,] and another being [stating it, so as to point out the incompatibility,] or, the complaint does not state facts sufficient to constitute a cause of actioa C. D., [Date.] Defendant Attorney. 126 BOOK OF FORMS. DEMURREBS. No. 168. 11. To some of the alleged causes of action stated in the complaint [TmaJ The defendant demurs \or, tlie defendants, naming them, if only a part of them join, demur] to the first \or other] claim of the complaint, upon the ground, &c. BOOK OF FORMS. 127 ANSWERS. CHAPTER III. ANSWEBS. Title 1. GrENERlL PoSM. 2. Deniaii. 3. ATOmAMOE. 4. COUNTER-CLAQI; TITLE L GENEEAL FORM. No. 169. Qetveral form of answer; amtaining several defenses. SUPEEME COUET. JoHK Smith f agamst \ Answer. John Jones. \ The defendant answers to the complaint: First: For a first defense : L EL m. Second: For a second defense : L n. in. 0. D., Defendants AHamey. [Amant, January 21, 1861.] 128 BOOK OF FORMS. TITLE n. DENIAL. Section 1. G-eneral denial. 2. Specific denial. Sec. 1. General denlil. No. 170. i Positive denial. [TITLE.J The defendant answers [or, tlie defendants answer, or if only part of the defendants join, the defendants, John Jones and William Brown answer] to the complaint : That no allegation thereof is true.' No. 171. iL Denial of knowledge, &c, |TlILE.] The defendant answers to the complaint: That he has no knowledge or information sufficient to form a belief whether any one allegation thereof is true. \^0r where there are several defendants {and if only part of them join, name them :) The defendants answer to the complaint, each for him- self, that he has no knowledge, c&c] ' The form of denial at present in use under the Code is objectionable. The defendant may "deny" what he nevertheless believes to be true, and swear that the answer is true, i. e., that it is true that he denies the charges of the complaint. Of course this is a quibble, but the law should leave no room for quibbles. BOOK OF FORMS. 129 Sec. 2. Specific deniaI/. No. 172. L Denial by articles.^ fTlTLE.] The defendant answers to the complaint : That no allegation contained in the [second and fourth] articles thereof is true. No. 173. ii Denial of loan {see No. 26.)' [Title.] The defendant answers to the complaint: That the plaintiff did not lend him the money mentioned in the complaint nor any part thereof. No. 174 iiL Denial of recexpt of money {see No. 27.)' [Title.] The defendant answers to the complaint : That he has not received the money mentioned ia the com- plaint, nor any part thereof. ' This form can be used when each article contains, as it should, but a single allegation. " Complaints Nos. 26 and 27 would be as well, if not better, answered by a denial of their first articles, as in No. 172. 17 130 BOOK OF FORMS. AUSWEES. No. 175. pr. Denial of demand {see No. 28.) [Title.] The defendant answers to the complaint : That the plaintiff did not demand the proceeds of the goods therein mentioned, before the commencement of this action. No. 176. V. Denial of request ly defendant {see No. 30.) [Title.] The defendant answers to the complaint : L That he never requested the plaintiff to pay any money to James Brown. pi. That he never promised to pay any money to the plaintiff on account of any money paid to the said Brown.] No. 177. vi Denial of note {see No. 56.) [Title.] The defendant answers to the complaint : That the note mentioned therein is not his note. No. 178. vii. Denial of indorsement {see Nos. 59 to 62.) [Title.] The defendant answers to the complaint : That he did not indorse the note mentioned therein. BOOK OF FORMS. 131 ANSWERS. No. 179. viii. Denial of notice of dishonor (see No. 59.) [Title.] The defendant answers to the complaint : That notice of the dishonor of the note \or, bill of exchange] mentioned in the complaint, was not given to him. No. 180. ix. Denial of acceptance of hill of exchange {see Nbs. 64 to 67.) fTlTLB.J The defendant answers to the complaint : That he did not accept the bill mentioned therein. No. 181. X. Denial of presentment {see Nbs. 68 to 71.) [Title.] The defendant answers to the complaint : That the bill mentioned therein was never presented to him [or, 10 William Brown, &c.] 132 BOOK OF FORMS. TITLE m. AVOIDANCE. Section 1. Not to the merits. 2. To the merits, showing the contract to be void. 3. To the merits, showing that the cause of action has not yet accrued. 4. To the merits, discharging the contract. 5. Justification of wrongs. 6. Several defenses. &c. 1. Not TO the merits. No. 182. L Want of jurisdiction. [Title.] The defendant answers to the complaint: That he was at the commencement of this action, and is now, consul of the King of Italy for the city of , duly accredited to the President of the United States, and by him received and acknowledged as sucL No. 183. ii Infarwy ofplmntiff. fTlTLE.] The defendant answers to the complaint : That the plaintiff is not of the age of twenty-one years. [Or, That at the commencement of this action, the plaintiff was not of the age of twenty-one yeara] BOOK OF FORMS. 133 No. 184. m. Marriage of plaintiff. fTlTLKj The defendant answers to tlie complaint : L That the plaintiff was at the commencement of this action, and still is, the wife of one A. B.' 11. That this action does not concern her separate property. No. 185. ir. Marriage of defendant, commencing after the contract and ie- fore the action.' [Title.] The defendant answers to the complamt : L That she was at the commencement of this action, and still is, the wife of A. B., who now resides at ' II. That this action does not concern her separate property. ' It is usual to add, " who is still living at " But if the plaintiff is a wife, her husband must be living; and his residence is presumably better known to her than to the defendant. * If the defendant were married a,t the time of the contract, the fact would be a plea " to the merits." See post. 134 BOOK OF FORMS. No. 186. V. Non-joinder of a necessary party plaintiff. [Title.] The defendant answers to the complaint : I. That the [goods mentioned in the complaint were sold by] the plaintiff and one William Brown as partners, under the firm name of Smith & Company.] IL That the said Brown is still living. No. 187. vi. Non-joinder of necessary defendant. [Title.] The defendant answers to the complaint : I. That the goods mentioned in the complaint, were sold to this defendant and one William Brown, jointly, [as partners under the firm of Jones & Company.] II. That the said Brown is still living at , in this state. No. 188. vii. Denial of plaintiff 's incorporation. [Title.] The defendant answers to the complaint : That there was not at the commencement of this action, nor is there now, any such corporation as the [Barren Mining Com. pany,] named as plaintiff in this action. BOOK OF FORMS. 135 No. 189. viii. Pemdsncy of another action. [Title.] The defendant answers to the complaint : That there was at the commencement of this action, and still is, another action pending in the court of [specifying a court of this state] between the same parties, and for the same cause of action, as in the complaint herein. Sec. 2. To THE MERITS, SHOWING THE CONTRACT TO BE VOID. No. 190. i. Irfancy of defendant. [Title.] The defendant answers to the complaint : That at the time of maMng the agreement [or, of the delivery of the goods] mentioned therein, he was not of the age of twenty-one years. No. 191. ii. Marriage of defendant. [Title.] [As in the preceding form, to the word "therein," and continue} she was the wife of A. B.] 136 BOOK OF FORMS. No. 192. ill. Want of consideration.^ [Title.] The defendant answers to the complaint : That he received no consideration for the note \or, promise] mentioned therein. \If mistake, fraud, or other attendant facts are to he proved, they should he stated.^ No. L93. iv. Mistake. fTlTLl!.] The defendant answers to the complaint : L That when he signed the note therein mentioned, he sup- posed it to be for [one hundred] dollars, but by mistake it was drawn for [two hundred] dollars. IL That he receired no consideration for more than [one hun- dred] dollars of the amount of the said note. No. 194. V. Fraud. [Title.] The defendant answers to the complaint : I. That the plaintiff induced him to make the note mentioned in the complaint, by representing that he was authorized by one ' This answer should be sparingly used, though it is necessarily inserted here. Nothing can be proved under it, except the bare fact of no considera- tion whatever having been given. BOOK OF FORMS. 137 A. B., to wlioni the defendant owed the amount of the same, to take a note to himself in satisfaction of such debt. [Or other- wise state the fraudulent misrepresentation, &c.'\ IL That the said representation was false. IIL That the defendant received no consideration for the said note. No. 195. , vi. Duress. [Title.] The defendant answers to the complaint: I. That the [bond] mentioned therein was extorted from him by tWats of personal violence, \or, of public charges against his character,] and was executed by him under fear of the same. II. That the said bond was executed by him without any consideration therefor. No. 196. viL iSiptufe of frauds {see No. 36.) [■TitleJ The defendant answers to the complaint : L That no note or memorandum in writing was ever made of any such contract as is alleged in the complaint. [O, That the defendant did not subscribe any written note or memorandum of any such contract as is alleged in the complaint] IL That he did not receive any part of the goods mentioned in the complaint. m. That he did not pay any part of the purchase money. •18 138 BOOK OF FORMS. No. 197. viii. Usury {as a defense upon a note.) [TlTM.J The defendant answers to tlie complaint : I. That the note mentioned therein was given to the plaintiff in pursuance of a mutual agreement between the plaintiff and defendant, that the plaintiff should lend the defendant money at the rate of [ten] per centum per annnm. IL That the defendant received from the plaintiff .... dollars only, as consideration for the said note ; the plaintiff retaining dollars, as interest thereon. No. 198. ix. Articles furnished defendant's wife not necessary (foNo. 85.) [Title.] The defendant answers to the complaint : I. That the articles mentioned therein were not furnished to his wife with his [knowledge or] consent. IL That the same were not necessary for her. [Or, nX That he always furnished her with such things as were necessary for her.] BOOK OF FORMS. 139 No. 199. X. Invalidity of an award {to No. 52.)' [Title.] The defendant answers to tlie complaint : I. That by the terms of the agreement referred to in the com- plaint, the arbitrators were to hear the evidence and arguments of both parties at meetings called upon notice to both ; and were not to listen to anything that might be said by either party on the subject except at such meetings. IL That the arbitrators held one meeting without giving notice . to the defendant, at which they received evidence on behalf of the plaintiff, and also entered into private conversation, at other times, with the plaintiff in regard to the said award. \Jiidgm,eni may he demanded, setting aside the award, if desired.] No. 200. xi. Invalidity of a foreign judgment {to No. 53.) [Title.] The defendant answers to the complaint : I. That no process was served upon him in the action men- tioned in the complaint II. That he never appeared in person or by attorney in the said action.' ' At common law, this defense could be proved under a plea of " no award." (Dresser v. Sfansfield, 14 M. AW., 822; Fisher v. Pimhley, H Bast, 188.) But the Code does not contemplate such a method of pleading. * These facts are a suflElcient defense. (Lang v. Long, 1 HiU, 597 ; Shum- taay v. StiBman, 6 Wend., 447 ; Starbwk v. Mwray, 5 Wend., 148.) 140 BOOK OF FORMS. ANSWERS. &C. 3. To THE MERITS, SHOWING THAT NO CAUSE OF ACTION HAS ACCEUBD. No. 201. L Oredit unexpired (to Nos. 32 to 34.) [Title.] The defendaat answers to tlie complaint : L That the goods mentioned therein were sold to hinn upon a credit of [months] from the day of , 18.. TL That such period had not elapsed before the commence- ment of this action- Sec. 4. To THE MERITS, IN DISCHARGE OF THE CONTRACT. No. 202. L PayTnent [Title.] The defendant answers to the complaint : That on the day of 18. ., at he paid to the plaintiff the money demanded in the complaint : [or, doUars on accoitot of the demand in the complaint] No. 203. ii Tender. [Title.] The defendant answers to the complaint : L That on the day of , 18, ., at , before the commencement of this action, he tendered to the BOOK OF FORMS. 141 ANSWERS. plaintiflf dollars, in payment of the [note] mentioned in the complaint. IL That the defendant has always been and still is ready and •willing to pay the same. No. 204. iii. Accord and satisfaxiion, [Title.] The defendant answers to the CMnplamt : L That on the day of , 18 . . , at , he delivered to the plaintiif the promissory note of A. B., for dollars. II. That the plaintiff accepted the same in full satisfaction of the claim [or, demand] set up in the complaint No. 205. iv. Release. [Title.] The defendant answers to the complaint : L That on the day of , 18 . . , at , the plaintiff, by deed, released the defendant jfrom the claim set up in the complaiat. 142 BOOK OF FORMS. No. 206. V. Discharge in insolvency. [Title.] The defendant answers to tlie complamt : I. That on the day of , 18. ., at , A. B., [judge of the county court of county,] duly made and granted to the defendant a discharge from his debts, as an insolvent, of which a copy is hereto annexed. IL That the debt demanded in the complaint was contracted before the .... day of , 18. ., on which day the defend- ant made an assignment of aU his property under the direction of the said A. B. III. That the contract alleged in the complaint was made [or, was to be executed] in this state. [Or, That the plaintiff resided ia this state at the time of the first publication of the notice of application for the defendant's discharge, to wit, on the .... day of , 18. ..] [Or, That the plaiatiff united in the petition for the defend- ant's discharge.] [Or, That the plaiatiff accepted a dividend Scorn the estate of the defendant, under the said proceedings.] No. 207. vi Novation. [Title. J The defendant answers to the complaijit : That on the day of , 18 • • , at , at the request of the plaintiff, he made his promissory note [or, executed a bond, under his hand and seal,] to one A. B., for dollars, in discharge of the indebtedness stated in the complaint BOOK OP FORMS. 143 No. 208. vii Arbitration and award. [TlTLE-J The defendant answers to the complaint : I. That on the day of , 18. ., the plaintiff and defendant mutually suhmitted the demand set forth in the com- plaint to the arbitration of A. B. and C. D. n. That on the day of , 18. ., at , the said A. B. and G. D. made and published their award [by which they declared the plaintiff not entitled to any part of hi said demand.] No. 209. viii Former judgment. fTlTLE.] The defendant answers to the complaint : That on the day of , 18. ., at , in an action then pending in the [supreme] court, between A. B., plaintiff, and 0. D., defendant, and for the same cause of action as that set forth in the complaint herein, judgment was duly rendered [describing the judgment.'] No. 210. ix. Statute of limitations. fTlTLE.J The defendant answers to the complaint : That the cause of action, stated therein, did not accrue within years before the commencement of this action. 144 BOOK OF FORMS. No. 211. X. By a surety, pleading an alteration of the contract. [Title.] The defendant answers to the complaint : I. That on the .... day of , 18. ., at , [or, at some time and place unknown to the defendant,] the plaintiff agreed with A, B., in the complaiat mentioned, in consideration of , [or, for a valuable consideration,] to [extend the time of payment] of the [rent] guaranteed by the defendant [ days.] n. That the defendant had no knowledge of \pr, did not assent to] the said [extension.] No. 212. xL Bediidng value and pleading payment (to No. 83.) ["Title.] The defendant answers to the complaint : L That the goods mentioned therein were worth no more than dollars. n. That he has paid that sum to the plaintiffi No. 213. xii. Reducing amount promised and pleading payment {to No. 82.) [Title.] The defendant answers to the complaint : I. That he promised to pay the plaintiff dollars only. IL That, he has paid that sum to the plaintiff. BOOK OF FORMS. 145 No. 214 xiiL Explaining the contract, and showing a breach, as to delivery {to Nos. 36 and 37.) fTlTLE.] The defendant answers to the complaint : I. That it was a part of the agreement referred to in the complaiat, that the plaintiff should deliver the goods sold at n. That the said goods have not been so delivered. No. 215. 3dv. Thei same, as to quality {to No. 38.) [TitlkJ The defendant answers to the complaint : L That it was a part of the agreement referred to in the com- plaint, that the [farniture therein mentioned should be made of rosewood.] IL That the said [furniture] was not [made of rosewood.]' ' It will be observed that these are answers to complaints for not accepting goods sold. It is therefore unnecessary to state more than is here alleged If the goods had been delivered, of course a return, or offer to return, should be pleaded. 19 146 BOOK OF FORMS. No. 216. XV. Breach of warranty hj plaintiff {to No. 89.) [TitleJ The defendant answers to tlie complaint : L That the goods therein mentioned were warranted by the plaintiff to be [genuine chinaware.] n. That they were not [genuine chinaware.]' No. 217. xvi The same {to Nbs. 40 and 41.) [Title.] The defendant answers to the complaiat : L That the plaintiff warranted the property therein mentioned, to be free from all incumbrances. II. That there was then, and stOl is, a mortgage on the same, in the sum of dollars, unsatisfied of record, in book .... J page of mortgages, in the office of the clerk of the county of No. 218. xviL Surrender. [TiTM.] The defendant answers to the complaint: I That on the day of , 18. ., he surrendered to the plaiatiff ° the premises mentioned in the complaint ' See note on page 145. * It is not necessary to allege that the plaintiff accepted the premises. The surrender is complete unless the landlord expressly dissents. {Thompson v. Leach, 2 Salk., 618; decided in House of Lords, 1692.) BOOK OF FORMS. 147 [n. That before tliat time he paid to the plaintiff all the rent which had accrued thereon.] No. 219. xviii. Mdction. [Title.] The defendant answers to the complaint : That on the day of , 18. ., the plaintiff evicted him from the premises mentioned in the complaint, and has ever since kept him out of possession thereof, [or, and kept him out of possession thereof until after the day of ... . ,18..]" Sec. 5. JusTiFicATiosr in actions fob •wrongs. No. 220. L Sh-uth of pvhUcation, [TlTM.] The defendant answers to the complaint : That on the day of , 18. ., at , the plaintiff stole from [the defendant, one bale of hay,] to which the defendant referred when speakiag \or, printing, or, writing] thff words stated in the complaint. ' See Vernam v. Smith, 15 N. T., 333. 148 BOOK OF FORMS. No. 221. ii. Pnvikged puhlrcation. [TitlkJ Tte defendant answers to tile complaint : L That on the day of , 18, ., at , an action was tried in the court of , in which A. B. was plaintiff, and the plaintiff herein was defendant, [or, an indictment having been found against the plaintiff for , he was tried therefor in the court of sessions for the county of , or otherwise.'] IL That the article published in the defendant's newspaper, as stated in the complaint, was a fair and true report of. the [testi- mony of one of the witnesses, named 0. D.,] made in the course of the said trial. No. 222. iii. Privileged communication {to No. 130.) The defendant answers to the complaint : L That he was, at the time of uttering the words mentioned in the complaint, the [confidential clerk] of A. B. n. That the said A. B. inquired of the defendant the character of the plaintiff, [with a view to employing him as a clerk, or otherwise] and the defendant then stated to him the matter referred to in the complaint. in. That the defendant had probable cause for believing, and did believe, the same to be true. BOOK OF FORMS. 149 No. 223. iv. The same. — another form. [Title.] The defendant answers to the complaint : L That at the time of publishing the words mentioned in the complaint, an action was pending in the [supreme] court, between [the parties to this action.] 11 That at that time this defendant applied to A. B., a justice of the said court, for an order of , and upon his appli- cation presented to the said justice an afSdavit containing the words complained of, which affidavit was pertinent to the said application. m. That the defendant did not in any other way publish the said worda No. 224. V. Self-defense. [Title.] The defendant answers to the complaint : That the plaintiff first assaulted the defendant, who thereupon necessarily committed the acts complained of in self-defense. 150 BOOK OF FORMS. No. 225. TL Leave and license. fTlTlE.] The defendant answers to tie complaint : That the acts complained of were done by leave of the plaintiffi No. 226. vii. Property distrained doing damage. [Title.] The defendant answers to the complaint : I. That at the time of taking and removing the cattle of the plaintiff, as stated in the complaint, the defendant \or, one A. B.] was lawfully possessed of the land on which they were taken. n. That the said cattle were at that time doing damage thereon. III. That the defendant [or, the defendant by direction of the said A. B.] removed the said cattle from the said land, with as little violence as possible, and took them to the public pound in No. 227. viii iMn upon goods detained. [Title.] The defendant answers to the complaint : I That on the day of , 18. ., the plaintiff de- posited the goods mentioned in the complaint with the defendant for storage, agreeing to pay for the same [twenty-five cents] per [ton] per [montk] II. That the defendant has always been, and stUl is, ready and willing to deliver the said goods to the plaintiff upon payment of the storage money due. ni That the plaintiff has not paid or tendered to the defend- ant the storage money due. BOOK OF FORMS. 151 Sec. 6. Answers containing several defenses. No. 228. L Defense in an action for lands, that the plaintiff's grant was void, and that the defendant has the equitable title. ■ [TiTLE.J The defendant answers to the complaint : First: For a first defense : I. That the grant of William Smith to the plaintiff, re- ferred to in the complaint, was delivered at a time when the land mentioned therein was in the actual possession of the defendant, claiming under a title adverse to that of the said WiUiam Smith. Second: For a second defense : I. That on the day of , 18. ., the said Wil- liam Smith executed to the defendant a deed, whereby he granted to him a piece of land [describe, as in the deed.] IL That by a mutual mistake of the parties thereto, the said deed did not include the land mentioned in the com- plaint ; but it was their intention that it should, and they, at the time of its execution, believed that it did include the same, and the defendant, in such belief, paid to the said Smith the price thereof 152 BOOK OF FORMS. No. 229. iL Answer to a complaint far libel; setting up a defense, and miti- gating circumstances. (■Title.] The defendant answers to the complaint : First: For a defense : That the publication complained of was true. [If the alleged libel was not specific in its charges, state the facts upon which it was founded.'] Second : As mitigating circumstances : L That on the day of , 18. ,, the plaintiff accused one A. B. of a bxirglary at n. That thereupon an of&cer of the poKce of took the said A. B. into custody, and conducted him to a station- house. in. That while at the station-house, the said A. B. made to the captain of police there in command, a statement, which is fairly and truly reported in the publication complained of, [or, made a statement to the eflfect that the burglary with which he was charged was planned by the plaiatiff, and was effected by hiTn and the plaintiff in concert, that they quarreled over the division of the plunder, and that thereupon the plaintiff charged him with the robbery.] IV. That afterwards the plaintiff was arrested by a police of&cer, and conveyed before C. D., a police justice of the city of , and held to bail by the said justice to answer the charges of the said A. B. V. That the publication complained of contained a fair and true statement of the preceding circumstances. VL That it was published ia a newspaper belonging to the defendant, by his employees, without his knowledge or consent VII. That the persons publishing the same inserted it as an item of public news, without malice, believing the same to be true. BOOK OF FORMS. 153 TITLE IV. COUNTBE-CLAIM, No. 230. i. Counter-claim ahne. [TITLE.J The defendant answers to tlie complaint . For a counter-claim : [State a cause of action precisely as in a complaint.'] Wherefore the defendant demands judgment for . . . . doUajs. No. 231. iL Defense and counter-claim. ■ ' [Title.] The defendant answers to the complaint: First: For a defense thereto : [State defense as in any of the preceding forms."]' Second: For a counter-claim [as in No. 230 to the end.] 20 154 BOOK OF FORMS. No. 232. m. /Several defenses, and a counter-claim {answer to No. 88.) [TlTLE-J Tte defendant answers to the complaint : First: To tlie first claim: I. That no allegation in the first article thereof is trua IL That as to the second article thereof, he has no know- ledge, or information sufficient to form a belief as to the truth of the same. &cor\d: To the second claim : That the note mentioned therein is not his note. Third: To the third claim : L For a first defense : 1. That it was a part of the agreement referred to in the complaint, that the plaintiff should not sell goods for any other person than the defendant ; 2. That the plaintiff, during the period of his service mentioned in the complaint, sold 'sundry goods for one Benjamin Brown, and for other persons whose names are unknown to the defendant, without the defendant's con- sent IL For a second defense : That he has fully paid the plaintiff for his services. Fourth: For a counter-claim: L That between the day of , 18. ., and the day of > 18 . . , the plaintiff received from Daniel Down dollars, for the use of the defendant n. That he has not paid the same. Wherefore the defendant demands judgment for dollais, with interest from the .... day of ,18. BOOK OF FORMS. 155 CHAPTER IV. SUBSEQUENT PLEADINGS. TITLE L No. 233. Demurrer to answer. [Title.] Demurrer to answer. The plaintiff demurs to the answer of the defendant [or, the first, or. other defense (or, counter-claim) contained in the answer of the defendant,] for insufficiency in not stating facts sufficient to constitute a defense, [or, counter-claim.] A. B., Plaintiff's Attorney. [Date.'] 156 BOOK OF FORMS. ANSWERS. TITLE n. REPLY. No. 234. L To counter-chim. [Title.] H^Iy. The plaintiff replies to tlie counter-claim contaiaed in the answer of the defendant [or, the first, or, other counter-claini contained in the answer of the defendant] L IL HL A.B., Plaintiff's Atttomey. [Pate.-\ No. 235. ii To defense by way of avoidance when directed by the court, under the last paragraph of section 152. [Title.] The plaintiff, by direction of the court, replies to the new matter constituting the defense, by way of avoidance, [or, to the second defense, or other] contained in the answer of the defend- ant. L IL ni. [Date.] A.B., Plaintiff's Attorney. BOOK OF FORMS. 157 TITLE m No. 236. Demurrer to reply. [TiTiiE.J Bemwrer to reply. The defendant demurs to the plaintiff's reply \(yr, first, or, other reply] for insufficiency, in not stating facts sufficient to constitute a reply. CD., \Date.] Defendants Attorney. PART III. PEOYISIONAL EEMEDIES. Chapter I. ARREST. II. REQUISITIOK III. mJUNCTION, IV. ATTACHMENT, y. RECEIVER. VI. ORDERS UPON ADMISSIONS IN THE PLEADINGS. CHAPTER I. Abbest, No. 237. i Affidavit shmaing that money has been received hy the defendant in a fduciary capacity. [Title.] County of : Jolin Smith, of , being duly sworn, says as follows :' 1. On the of , 18. ., at ,1 delivered to John Jones, of , note broker, a promissory note for ' It will be observed that we divide affidavits into paragraphs, and use the first person. In so doing we follow the practice of all the English courts, as established for eight years past. Affidavits thus drawn are much more perspi- cuous, and will be likely to impress more deeply than heretofore, on the mind of the deponent, a sense of his responsibility for his statements. 160 BOOK OF FORMS. ,1 dollars, dated the day of , 18. ., made by John Johnson to my order, and indorsed by me, for sale on my account, and for no other purpose whatever ; 2. I gave no authority to the said Jones to retain any part of the proceeds of the said note, for any time whatever ; 3. On the .... of , 18, ., Iwas informed bythe clerk of the said Jones, that he had sold the said note ; and I believe the same to be true ; 4. I have demanded the proceeds of the said note from the said Jones, but he has not paid or accounted for the same ; 5. I have sustained a loss by the premises, of dollars. John Smith Sworn before me, the ) day of , 18.., J A. B., Commissioner of Deeds. No. 238. il Undertaking on arrest [TiTlB.] Wheeeas, the plaintiff is about to apply [or, has applied] for an order to arrest the above named John Jones : Now, THEREFORE, wc, Johu Johnson, of , [merchant,] and John Jenis, of , [builder,] undertake in the sum of dollars, that if the said defendant recover judgment in this action, the plaintiff will pay all costs that may be awarded to the said defendant, and all damages which he may sustain by reason of his arrest in this action. John Johnson. John Jenks. [Albany, January 1, 1861.] BOOK OF FORMS. 161 CouNTT OF : Jolin Johnson and John Jenks, being duly sworn, severally say, each for. himself, as foUows : 1. I am a resident and householder [or, freeholder] in this state ;' 2. I am worth dollars [doiAk the sum above specified] over all my debts and liabilities, and exclusive of property ex- empt from execution. John Johnson. John Jenks. Sworn before me, &c., A. B., Gommissioner, &c County of I certify that on this of , 18. ., John Johnson and John Jenks, known to me to be the persons who executed the above undertaking, appeared before me and severally acknow- ledged that they executed the same. A. B., Commissianer of Deeds. No. 239. iii. Order of arrest fTlTlE.] In the name of %\t |M|k rrf t\t %Mi 0f pin |0rH :' For the causes stated in the annexed affidavit : You ABE commanded forthwith to arrest the above named John Jones, and to hold him to bail in the sum of ' This is not as full as may be required on exception, but is fall enough for the purpose. ^ We think all orders on which proceedings for contempt may be founded, or which deprive a citizen of his liberty, should run either in the name of a comi or of the people. 21 162 BOOK OF FORMS. dollars ; and to return tMs order to A. B., the plaintiff's attorney, at Ms office [No street,] in the city [or, town] of , on the day of , 18. . \ Henet Hogeboom. [Albaisty, January 1, 1861.] A.B., Plaintiff's Attorney. To THE Sheriff of the County of No. 240. iv. Undertaking of bail {under ^187.) [T1TLE.J Whereas, the above named John Jones has been arrested in this action : Now, THEEEFOEE, we, Benjamin Brown, of , [tailor,] and Daniel Down, of , [grocer,] undertake in the sum of dollars, that if the defendant is discharged from arrest, he shall, at all times, render himself amenable to the process of the court during the pendency of this action, and to such as may be issued to enforce the judgment therein. [Bate.] [Signature.'] [Justification and acknowledgment as in No. 238.] No. 241. V. Undertaking of hail in an action for chattels (under §§ 187 and 211.) [Title.] Whereas, the above named John Jones has been arrested for the cause mentioned in the third subdivision of section 179 of the Code of Procedure : BOOK OF FORMS. 163 AltBEST. Now, THEREFORE, we, [as in No. 240 to the end, and add:] and also for the delivery of [describe the property] to the plaintiff, if such delivery be adjudged ; and for the payment to the plaintiff of such sum as may, for any cause, be recovered against the de- fendant in this action. [Dak.] [Signature.] IJustijication, cmd achnowhdgmmt as in No. 238.J 164 BOOK OF FORMS. BEQUISrrlON. CHAPTER 11. REQUISITION. No. 242. i. Affidavit of the plaintiff {under § 207.) fTlTLE.J County of : Jolm Smith, of , being diily sworn, says as follows : 1. I am the owner of [a piano forte, or] the following property : \descnbing it particularly.'] [Or, 1. The following goods, , were stored with me by their owner, for months, which storage is worth dollars ; and they hire been taken from me with- out my consent, and without payment of said storage. Or state any fojcts showing a right to the possession, avoiding legal conclusions.] 2. The said property is wrongfully detained by John Jones, at [No. 100 State street, Albany, or elsewhere.] 3. The alleged cause of such detention, according to my best knowledge, information and belief, is [describe it particularly.] [Or, 3. I have no knowledge or information of any cause alleged for such detention.] 4. The said property has not been taken for a tax, assessment, or fine, pursuant to any statute. 5. It has not been seized under any execution or attachment agaiast my property. [Or, if so seized, show that it was legally exempt, as thus: 5. That it was seized under an execution, but was part of my necessary household furniture, which amounted in the aggregate to the value of less than $250, besides the articles specified in the Eevised Statutes as exempt; and I am a householder, sup- porting a family.] 6. The said property is worth dollars. JOHN" SMITH. Sworn before me, &c. BOOK OF FOEMS. 165 REQUISITION. No. 243. ii. Requisition indorsed on the affidavit {wnder § 208.) In the name of '^t i^plJ si % State 0f |[ito |04 For tlie causes stated in the within affidavit : You AEE EEQuiRBD to take from John Jones the property within described, and to deliver it to the plaintiff. A.B., Plaintiff's Attorney. [Albany, Janvmy 1, 1861.] To THE Sheriff of the county of No. 244. iii. Undertaking on the part of the plaintiff {urvder § 209.) [Title.] Whereas, the plaintiff claims the delivery of {specify the property ;] Now, therefore, we, John Johnson, of , [merchant,] and John Jenks, of , [bnilder,] undertake in the sum of dollars, that the plaintiff shall prosecute this action, return the said property to the defendant, if such return be adjudged, and pay to him such sum as may, for any cause be recovered against the plaintiff in this action. IPate.'] [Signatures.^] \JustiflcalMm and Achruywkdgmml as in No. 238.J No. 245. iv. Undertaking on the part of the defendant {under § 211.) rTiTLE.] Whereas, the plaintiff has claimed, and the sheriff of the coimty of , has taken the following property [describing it:'] 166 BOOK OF FORMS. EECjmSITION. Now, THEREFORE, we, Benjamin Brown, of , [tailor], and Daniel Down, of , [grocer], undertake in the sum of dollars, that if the said property be returned to the defendant, it shall be delivered to the plaintiff, if such delivery be adjudged; and that the plaintiff shall be paid such sum as may, for any cause, be recovered against the defendant in this action. [Date.] [Signatures.] [Aclmowledgment as in No. 238, and annex notice of justification, under § 212.] No. 246. v. Undertaking to indemnify against the claim of a third person. [TlTLE-J "Whereas, the plaintiff has claimed the following property [describing it] ; and Stephen Stone, of , claims the same as his property : Now, THEREFORE, we, John Johnson, of , [merchant], and John Jenks, of , [builder], undertake in the sum of dollars, to indemnify the sheriff of the county of against the claim of the said Stone, if the said pro- perty be delivered to the plaintiff. [Date.] [Signatures.] County of : John Johnson and John Jenks, being duly sworn, severally say, each for himself, as follows : 1. I am a householder and freeholder in the county of .... 2. I am worth dollars [double the value of ike pro- perty], over all my debts and liabilities, and exclusive of property exempt from execution. [Signatures.] Sworn before me, &c. [Achmwhdgment as in No, 238.J BOOK OF FORMS, 167 INJUNCTION. CHAPTER III. INJUNCTION. No. 247. L Undertaking upon injunction {under § 222.) [Title.] Whereas, the plaintiff is about to apply [or, has applied] for an injunction restraining the above named John Jones from [state the object of the injunction ;] Now, THEREFORE, we, John Johnson, of , [merchant,] and John Jenks, of , [builder,] undertake in the sum of dollars, to pay to the said John Jones such damages as he may sustain by reason of such injunction, if the court shall finally decide that the plaintiff is not entitled thereto ; the dam- ages to be ascertained by a reference, or otherwise, as the court may direct. [Date.'] [SignataresJl [Justification and acknowledgment as in No. 238.] No. 248. ii. Inju/nction ; by a judge out of court In the name of f |« |0|k 0f % 3Mt St itto iml ; For the (Jauses stated in the annexed [complaint and affidavits :] You ARE COMMANDED to refrain from until the further order of the court. A. B., Justice of the court [Albany, January 1, 1861.] To John Jones, Defendant I The language of the Code in regard to these various undertakings is not uniform, but as the spirit of its provisions is the same throughout, we have adopted a common form for all 168 BOOK OF FORMS. mjtnsroTioN. No. 249. iii Injunction with order to show cause. [Title.] \As in No. 248, to the word "imtil," and continue] : the decision of the motion hereia mentioned. And you are required to show cause before me [or, at a spe- cial term of this court], at , on the day of , 18 . . , why this injunction should not be continued until judg- ment be rendered iti this action. [Bate.] [Judge^s signature.] [Address.] No. 250. iv. Injunction hy the court SUPEEME COUET. John Smith ) At a special term, held at the , in agcmmt \ the .... of , on the .... day John Jones. \ of , 18 . . Present — A. B., Justice. On reading and filing the complain* and the affidavits of and , dated the dayof , 18. . ; and on motion of C. D., counsel for plaintiff: Obdeked ; that the above named John Jones be commanded to refraia from until the farther order of this court. E. P., Cleric C. D., PlainMff^s Attorney. BOOK OP FORMS. 169 ATTACHMENT. CHAPTER IV. ATTACHMENT. No. 251. L Affidavit on ajoplication for attachment fTlTLE.] County op : Jolin Smitt, of , being duly sworn, says as follows : 1. [State the cause of action, as thus\ : On the . day of .... . . . . , 18 . . , at ,1 sold and delivered to John Jones, of , sundry parcels of dry goods, of the value of dollars, for which he has not paid ; 2. I am about to commence an action in this court against the said Jones, and have issued a summons thereia; 3. The said Jones has left this state, and gone to ; 4. I am informed by A. B., and believe, that the said Jones stated to him, on the day of , 18. ., that "he meant to get out of the way for a while, and let the storm blow over ; " meaning that he wished to avoid his creditors. 5. The said A. B., beiag the clerk of the said Jones, refases to make his affidavit John Smith. Sworn before mte, die, No. 252. iL UndertaJcing upon attachment. f Title. J Whereas, the plaintiff is about to apply for a warrant of at- tachment against the property of the above named John Jones : 22 170 BOOK OF FORMS. ATTACHMENT. Now, THEREFOKE, we, John Jolmson, of , [mercliant,] and John Jenks, of ', [builder,] undertake in the sum of dollars, that if the said warrant be granted, and the defendant recover judgment in this action, the plaintiff shall pay all costs that may be awarded to the defendant in the same, and all damages which he may sustain by reason of such attachment IDate.Jj _ [Signatures.'] [Justification and acknowledgment as in No. 238.] No. 253. uL Warrant of attachment. [Title.] In the name of It appearing by affidavit to the officer granting this warrant, that the plaintiff is entitled to recover jfrom the defendant dollars, with interest thereon from the .... day of , 18 . . ; and that the above named John Jones is not a resident of this state [or otherwise as the case ma.y be:'} You AEE COMMANDED forthwith to attach and safely keep all the property of the said John Jones in your county, or so much thereof as may be sufficient to satisfy the said demand, with costs and expenses. [Date.] [Judge's signature.'] 0. D., Plaintiff's Attorney. To THE Sheriff of the oountt of No. 254. iv. UndertaMng on discharge of attachment [Title.] Whereas, the sheriff of the county of has attached the, property of the defendant [or, of the above named John Jones]: BOOK OF FORMS. 171 ATTACHMENT. Now, THEREFORE, we, Benjamin Brown, of , [tailor], and Daniel Down, of , [grocer], undertake in the sum of dollars, that if the said attachment be discharged, we will pay to the plaintiff, on demand, the amount of the judg- ment that may be recovered against the defendant in this action. [JDate.'] [Signatures.] \Jusliflcation and acknowledgment as in No. 238.] 172 BOOK OF FORMS. SECEITKB. CHAPTER V. KECEIVEE. No. 255. L Order fw reference, to appoint a receiver. SUPEEMB COUKT. joHj, gjaiTH ) At a special term, lield at the oAjaM \ ^ tiie . . . . of . . ... . . ., on the John Jones. V day of ,18.. Present — ^A. B., Justice. On reading and filing [the affidavits of B. C, and 0. D., dated the day of , 18. ., and on] the pleadings herein; on motion of B. P., counsel for plaintiff, after hearing G. H., counsel for defendant : OsDERED : 1. That it be referred to Esq., of .... [counsellor at law], to appoint a receiver of {specify the pro- perty with as much particularity as possihle\. 2. That the said referee take from such receiver security to the amount of dollars, with two or more sufficient sure- ties, and file the same with the clerk of this court \or, of the county of ] 3. That upon the filing of such security, and of the said referee's report, such receiver shall be vested with the usual rights and powers of receivers under this court: \and specify any peculiar powers bestowed upon him.] J. L, BOOK OF FORMS. 173 No. 256. ii Order for reference to re/port a receiver. [Title.] [OjIption.] On reading and filing [the affidavits of B. 0., and 0. D., dated the day of , 18. ., and on] the pleadings herein ; on motion of E. P., counsel for plaintiff, after hearing G-. H., counsel for defendant; Obdbbed : 1. That a receiver be appointed to take charge of [specify the property], 2. That it be referred to , Esq., of , [coun- sellor at law], to report a suitable person to be appointed such receiver, and to report the names of sureties proposed by him, with the amount for which they should be liable, and their re- sponsibility for the same. J. L., Chrk No. 257. iiL Ordh" confirmmg referees report.^ [Title.] [Caption.] On reading and filing the report of , Esq., a referee appointed by the court on the day of , 18. ., to report a suitable person for receiver in this action : on motion of B. F., counsel for plaintiff, after hearing G. H., counsel for defendant : Oedered : 1. That the said report be confirmed. 2. That James Brown, of , [merchant], be appointed receiver of [describe the property]. ' This order is only necessary when a referee is appointed to repwi a receiver. 174 BOOK OF FORMS. 3. That William Brown, of , [merchant], and John Town, of , [builder], be approved as sureties for the said receiver, and that they file with the clerk of the county of , the bond heretofore approved by the said referee, ia the penalty of dollars. 4 That the appointment of the said receiver shall date from the filing of the said bond. 5. That the said receiver shall have all the usual rights and powers of receivers under this court [and specify any jpeculiar powers con/erred.'l J. L, Clerk BOOK OF FORMS. 175 ORDERS UPON ADMISSIONS. CHAPTER VI. ORDEES UPON ADMISSIONS IN THE PLEADINGS, ETC. No. 258. i. Ordjer to deliver property. [Title.] [Caption.] On the pleadings in. this action, whereby it appears that the defendant admits that he has in his possession \or, under his control], the property hereafter mentioned, and that it is the property of the plaintiff: on motion of E. F., counsel for plain- tiff, after hearing Gr. H., counsel for defendant; Oedebed : That the defendant, John Jones, deposit ia court \or, deliver to the plaintiff] within .... days after the service of this order, \spedfying the propertyl, subject to the further direction of the court ; [and pay dollars, costs of motion]. J. L., Clerk. No. 259. ii. Order to satisfy part of the plaintiff ^s claim. [Title.] [Caption.] On the pleadings in this action, whereby it appears that the defendant admits that the plaintiff justly claims from him dollars ; on motion of E. F., counsel for plaintiff, after hear- ing Gr. H., counsel for defendant ; Oedeeed : 1. That the defendant pay to the plaintiff, within days after service of this order, dollars, with inter- 176 BOOK OF FORMS. OEDBRS UPON ADMISSIONS. est from the day of , 18. ., [and dollars, costs of motion]. 2. That the plaintiff have liberty to issue execution against the property [and person] of the defendant for the same, if not so paid. J. L., Clerk. PART IV. TRIAL AND ITS INCIDENTS. Chapter I. TRIAL BY JURY. 11. TRIAL BY THE OOURT. • m. TRIAL BY REFEREE. CHAPTER I. TRIAL BY JURY. Section 1. Verdicts, as entered in the minutes. 2. Special verdict. 3. Case and exceptions. Sec. 1. Veedicts, as entered lisr the minutes op the court. No. 260. i. Verdict in an action for money only {under §§ 260 and 261). SUPREME COURT. John Smith agai/nst John Jones. ) At a [circuit] court, held at the > in the of , on the .... \ day of 18.. Present — A. B., Justice. Plaintiff's Witnesses. , Defendants Witnesses. 23 Jurors. 178 BOOK OF FORMS. TEIAl BY JUET. This action being TDronght to trial before a jury, tbey find a verdict [upon all tlie issues of fact for tlie plaintiff, and assess the amount of his recovery at dollars ; or, for the defend- ant ; or, for the plaintiff, upon the first issue, and for the defendant, upon the second issue, and assess the amount of the plaintiff's recovery on the first issue at dollars ; or, for the defendant, and assess the amount of his counter-claim beyond the plaintiff's claim, at dollars.] No. 261. ii Verdict in an action for chattels. fTiTLE.J '■' [Caption.J [Names of jurors and witnesses.] This action being brought to trial before a jury, they find a verdict upon all the issues of fact for the plaintiff [or, defendant] and assess [the value of the property at dollars, and'] the plaintiff's damages by reason of the detention of the pro- perty [or, the defendant's damages by reason of the taking and ■ffithholding of the property,] at dollars. No. 262. jiL Verdict in an action for land. [TiTLeJ [ClMION.J [Names of jurors and witnesses."] This action being brought to trial before a jury, they find a verdict upon aU the issues of fact in favor of the plaintiff, for the premises claimed in the complaint : [or, if for a part only, describe the land: or, for one equal undivided half of the premises, cfcc] ' If the property be in the possession of the successful party, this clause is unnecessary. BOOK OF FORMS. 179 TRIAL BY JUEY. to hold iu fee [or otherwise, specifying the nature of the tenure'] ; and they assess the plaintiff's damages by reason of the withholding of the same, at dollars. No. 263. iv. Verdict subject to the opinion of the court. [As in any of the preceding forms, adding ;] subject to the opinion of the court, at a general term, upon the questions of law. Sec. 2. Special verdict. No. 264. [Title.] [Caption.] [Names of jurors and witnesses.] This action being brought to trial before a jury, upon all the issues of fact ; [or, upon the following issues of fact ; specifying them], they find as follows : 1 2 3 Upon these facts, the jury respectfully leave the judgment to the court. /Sec. 3. Case ajstd exceptions. No. 265. i. Case without exceptions. [Title.] This action came on for trial before , one of the justices of this court, and a jury, at , on , when the following [or, the following among other] proceedings took place : 180 BOOK OF FORMS. TEIAIi BT JUBT. [Then state the jproeeediTigs with as much brevity as possible, and so far only as they are necessary for the motion intended to be mnde. The pleadings are sometimes inserted in the case. This is improper, as the case is part of the judgment roll, which of course contains the pleadings.^ No. 266. ii. Case with exceptions. [Title.] This action came on for trial before , one of the justices of this court, and a jury, at , on , when the following [or, the following among other] proceedings took place : [Then state the proceedings with as much brevity as possible, and so far only as they are necessary for the motion intended to be made, inserting the exceptions, as for example thus : The plaintiff's counsel asked the witness the following ques- tion : The defendant's counsel objected ; the court overruled the question, and the plaintiff's counsel excepted. If the judge direct the exceptions to be first heard at the general term, an additional entry rtmy be mxtde, as follows : And thereupon, the said justice directed the said exceptions to be heard in the first instance at the general term, and the judgment in the meantime to be suspended.] No. 267. iii. Moceptions ahne. [Title.] This action came O)^ for trial before , . . . ^ , one of the justices of this court, and a jury, at , on , when the following exceptions were taken : [State the exceptions wii/i so much of the evidence as is necessary to explain them, and if they are to be first heard at the genial term, make the same, entry as at the end of the last form.] BOOK OF FORMS. 181 IBTATi BY THE OOXJET. CHAPTER II. TEIAL BY THE COURT, No. 268. i. Decision of the jxidge. [TiTLB.] [Caption.] This action being brouglit to trial before the court, without a jury \ifihe action be one in which the parties have a right to a jury, state the manner of waiver, under § 266], the couxt finds the fol- lowing facts : I n. ni. And the following conclusions of law thereupon : 1 2. 3 Judgment must therefore be entered fbr A. B., Justice. 182 BOOK OF FORMS. TEIAl BT THE COCET. No. 269. n.Fmding upon a trial by the court ; with findings of a jury upon specif/: issues referred to them?- SUPERIOR COURT OF THE CITY OF KEW YORK. J. M. against The Hudson River Railroad Co. This action having been brought on to be tried before the undersigned, one of the justices of this court, without a jury, as to the issues not heretofore specially ordered to be tried by a jury, and also upon the finding and verdict of a jury, upon certain issues herein which have been heretofore specially ordered to be, and which, pursuant to such order, have been heretofore tried by a jury ; which latter issues, and the verdict of the jury thereon, are hereinafter particularly stated ; and having heard the testimony offered before me on behalf of the plaintiff, and the Hudson River Railroad Company, and having heard the counsel of the respective parties, I find the facts of the case, exclusive of those found by the jury on the issues so deter- mined by them, to be as follows: First : The plaintiff is the owner in fee of the lot on the south- westerly corner of Tenth avenue and Thirtieth street, in the city of New York. He purchased the lot for $2,500, on the 24th of April, 1849, before the railroad track was laid ; but bought it anticipating that the railroad would enter Tenth avenue, at or near Thirtieth street. After the road was built, as the track was first laid, the plain- tiff erected on his said lot a four-story brick dwelling house, intended for a hotel, and which, after it was completed, was occupied by his lessee for that purpose. Second : The Hudson River Railroad Company is a corporation, created by the legislature of the state, by an act entitled " An • This is an actual finding by Oh. J. Bosworth. BOOK OF FORMS. 183 TRIAL BY THE COURT. act to authorize the construction of a railroad from New York to Albany," passed May 12, 1846, and various acts amending the same, and keep an office for the transaction of business in the city of New York, which acts were put in evidence and are to bQ deemed a part of this case. Third: The mayor, aldermen and commonalty of the city of New York, in common council convened, passed an ordinance, a true copy of which is annexed to the complaint in this action, which ordinance was adopted by the board of aldermen, April 30th, 1847, and by the board of assistant aldermen. May 3d, 1847, and was approved by the mayor. May 6th, 1847. Fourth: The Hudson River Railroad Company, within one year from the passage of the said ordinance, and before entering upon any contract for grading, filed in the office of the street commissioner of said city, a map showing the location and in- tended grade of said railroad. But said map did not show whether the curvilinear parts of the said road would or would not necessarily approach as near said southwesterly corner as they were first laid. Fifth: The Hudson River Railroad Company constructed their road as it was originally built, as to the line and grade thereof, in conformity with the provisions contained in their charter and the said ordinance of the mayor, aldermen and commonalty of the city of New York, unless upon the facts found by the jury in answer to the questions specially submitted to them, and upon the facts found by me, the conclusion of law is, that.it was not constructed in conformity to such ordinance. Sixth : The said company laid their track at or in the vicinity of the southwesterly corner of Tenth avenue and Thirtieth street as it was originally built, sixteen and a quarter inches from the curbstone, and so near the southwesterly corner that as the cars passed said corner they projected over the curb and sidewalk about eighteen inches ; the said track lying so near ?aid corner, and the running and use of the cars thereon, interposed obstruc- tions to the access to said house of persons having occasion to do business there, which have been obviated by the removal of the track to the place where it was laid in November, 1853. 184 BOOK OF FORMS. TELAl BY THE COTJBT. Seventh: The plaintiff, wMle said track was being buUt, did not complain to any officers of the said company, nor remon- strate with them against laying the track as near the curb as it was originally laid ; the cnrb, however, was not set until after the track was laid. Eighth: In August, 1851, the mayor, aldermenand commonalty, in common council convened, passed a second ordinance, which was approved by the mayor, August 11th, 1851, a true copy of which is annexed to the complaiat, of which last ordinance the railroad company soon thereafter, and before the 8th of April, 1852, had notice; but no notice of the ordinance was legally served on the said company. In November, 1853, the said com- pany altered the location of their track in the vicinity of said southwesterly comer, so as to conform to said last ordinance. The track as originally laid, was completed at and in the vicinity of said corner, and thence below Thirtieth street, in the Tenth avenue, in or about September or October, 1849. Ninth : The plaintiff, prior to commencing this action, but after he had leased the premises, as hereinafter stated, and particularly on the 8th of April, 1852, and also on the 22d of the following May, applied to the said company to remove the track of their railroad further from the said southwesterly comer, and com plained that its close proximity to said comer was an injury to his said premises and the business of his said house. The rail road company, in answer to the application of the 22d of May, stated that it had been and was their intention to remove the said track as soon as the condition of the Tenth avenue would permit. It was not removed as soon as the condition of the Tenth avenue permitted it to be done, nor until after this action was commenced. Tenth: The said track, as it was originally laid at and in the vicinity of said corner, was laid under the personal inspection and observation of a city surveyor attached to the office of the street commissioner, who was specially appointed by the street commissioner to inspect and oversee the laying of the said track, and to see that it was built as to line and grade in conformity with said first mentioned ordinance, and such directions as the BOOK OF FORMS. 185 TRIAL BY THE COURT. street commissioner might give in that behalf. But no affirma- tive or actual directions were given by the street commissioner or by the said inspector that the said tracks should be placed where they were first laid. The tracks at this comer were staked out but not laid before said inspector was appointed. Eleventh: When plaintiff's said house was completed, he rented the same by an indenture of lease, dated September 19th, 1850, for five years and seven months from the 1st of October, 1850, at $900 a year for each of the first two years, for $1,000 for the third year, for $1,100 for the fourth year, for $1,200 for the fifth year, and at the rate of $1,300 per year for the last seven months of said lease. The questions of fact specially submitted to a jury, as herein- before stated, and their verdict thereon, are as follows : I. Was the westerly track of the Hudson Eiver railroad, as it was originally built, laid nearer to Ihe curb at the south- westerly corner of Tenth avenue and Thirtieth street than was necessary ? To this question the jury answered, " Yes." IL Did the laying of that track, as it was first located, prevent the plaintiff firom obtaining as great a rent for his building on that corner as he would have obtaiued had it been laid where it now is ? Answer: "Yes." IIL If the second question is answered affirmatively, then say how much rent the plaintiff was, by that cause, prevented fi-om obtaining, up to July 30th, 1852 ? Answer: $414.^1^, being at the rate of $200 per year fi-om October 1st, 1850, to July 30th, 1852, with interest since that time. ly. Was that track at and in the vicinity of the south- westerly comer of Tenth avenue and Thirtieth street, ori- ginally laid and located ia conformity with such directions 24 186 BOOK OF FORMS. TBUL BY THE COUET. as to line and grade as were given by tlie street commis- sioner ? Answer: "Yes." Y. Did the plaintiff erect his said building on his said lot with knowledge of the course and track of the said railroad, as the same was in substance originally laid and built ? Answer: "Yes." Upon the facts found by me, and upon the facts thus found by the jury, my conclusions as to the law are as follows : 1. That the Hudson Eiver Eaikoad Company were fully authorized by competent authority to lay the track of then: railroad, as they were first laid, at and in the vicinity of the northwesterly corner of Tenth avenue and Thirtieth street 2. That for the consequential damage found by the ver- dict of the jury, arising from the diminished rent of the premises, in consequence of the tracks having been so placed, instead of being laid in the first instance where they now are, no action will lie against the railroad company. 3. That the plaintiff having, prior to the passage of the ordinance of August, 1851, leased the premises for a term of years which has not yet expired, no action can be maia- tained by him on the facts of this case to recover damages, in consequence of the railroad company not having removed the tracks, as directed by that ordinance, at as early a day as their duty required. 4. That a judgment should be entered, dismissing the complaint, but without costs, to be paid by either party to the other. J. S. B., Justice. [ff either' party desires to except to any corvdusumoflaw contained in this decision, he may give notice of his exception, at any time within ten days aftxr notice. of the jvdgment. Exceptions to rulings at the trial, must he made then. If the party intending, to appeal serve his draft of case or excep tions, within the ten days, no other notice of exception need he given; BOOK OF FORMS. 187 TBIAL BT THE COtlBT. otherwise he should serve on the opposite party a notice of exception, which may be as follows .•] No. 270. iii Notice of exertion. [Title.] Please take notice that the [plaintiff] excepts to the [first and third] conclusions of law found by the court in this action : [or, to so much of the conclusions, &c., as decides that ] Yours, &c., E. P., 's Attorney. To G-. H., 's Attorney. No. 271. iv. Case and eocceptions. [The forms tcsed in cases of trial by jury, omitting the words " and a jury," are sufficient. See Nos. 265 to 267.J [Exceptions should not be confounded with a notice of eooceptions. The latter is merely for the purpose of apprising the opposite party what is intended to be excepted to. The former are the formal record of the exceptions, and the matters excepted to, so that the appellate court may see without reference to two papers what is the point of the objection. Where exceptions are taken, an appeal may be had to the general term, without first moving at the special term for a new trial. The appellate tribunal may, if necessary or proper, order a new trial, though a new trial has not been moved for below.} 188 BOOK OP FORMS. TBIAL BT EEFEREB. CHAPTER III. TEIAL BY EEFEEEE. Section 1. Order of reference. 2. Report of referee. 3. Case and exceptions. iSsc. 1. Order of inference. No. 272. i. By consent. fTrrLE.] fCAPTioN.J On reading and filing the consent of the parties, and on motion of , counsel for ; Ordered : That this action be referred to , Esq., of , [counsellor at law], to hear and decide all the issues therein: \or specify ^ issues referred^ J. L., Clsrh. No. 273. I ii. Compulsorily, in cases of account. [Title.] rCAPnoir.] On [reading and filing the affidavit of the plaintiff, dated the .... day of ) 18. ., and on] the pleadings in this action, by which it appears that the trial of the issues of fact [or, of one of the issues of fact] will require the examination of a long ac- count; and on motion of , counsel for , after hearing , counsel for ; Ordered : [as in No. 272]. J.L., Clerk BOOK OF FORMS, 189 IKIAL BY KEFEEEE. No. 274. iii Oom/pulsorily, when a trial has hem commenced, and the taking of an account is necessary "before judgmemt. [Title.] [Oaphon.J The trial of this action having been commenced, and it appearing that the taking of the account hereafter mentioned is necessary for the information of the conrt before judgment; it is now, on motion of , counsel for , after hearing , counsel for ; Oedesed : 1. That it be referred to , Esq., of . . . . , [counselor at law,J to take an account of 2. That the further trial of this action be adjourned until the coming in of the said account : [or, until the .... day of . . . . , lo ... J XL., Clerk. No. 275. iv. Compulsorily, when the taking of an account is necessary to carry a judgment or order into effect. fTiTLE.| [Caption.] A judgment [or, an order] having been entered in this action on the day of , by which [reciting only so much as may he necessary to explain the reference], now on motion of , counsel for , after hearing . . . . , counsel for ; Oedeebd : That for the purpose of carrying the said [judg- ment] into effect, it be referred to , Esq., of , [counsellor at law], to take an account of J.L., Clerk. 190 BOOK OF FORMS. T RTtT, BT EEFBKEB. No. 276. V. Compulsorily, when a question of fact arises aside from the pleadings. [Title.] [Capxion.j A motion having been made in this action, on the part of the plaintiff [or, defendant], for and upon that motion [or whatever may he the circumstances requiring the reference] a question of fact having arisen whether , -. on motion of , counsel for , after hearing , counsel for ; Oedebed : That it be referred to , Esq., [<:&c.], to report the facts relating to the said question. J. L., Chrh. Sec, 2. Eepobt of befebee. No. 277. i. On all the issues. [Title.] To the Supreme Gmrt of the State of New Yorh: This action having been referred to me, by order dated the .... day of , 18. ., to hear and decide all the issues therein, I respectfully report : That on the .... day of , 18. ., the same was duly brought to trial before me, at my of&ce in the [city] of , counsel for both parties attending, and evidence received, and thereupon I find the following facts : I. 11 in. BOOK OF FORMS. 191 TEIAIi BT EEPEEEE. I find as conclusions of law : 1 2 3 And I therefore direct judgment to be entered for C. D., Referee. No. 278. ^ ii. On apart of the issues, or on an account. [Title.] To the court of .- A reference having b§en made to me, by order dated the .... day of , 18 . . , to , inthis action, I respectfully report : That I have heard both parties, and find the annexed account to be correct : lor, find the following facts] : CD., Seferee. Sec. 3. Case ajstd exceptions. See Ms. 265 to 267, 270 and 271, which may be substantially followed. PAET V. JUDGMENTS AKD JUDGMENT ROLLS." Chapter I. JUDGMENTS FOR THE PLAINTIFF. II. JUDaMBNTS FOR THE DEFENDANT, ni. JUDGMENTS FOR SOME OF THE PARTIES ON EACH SIDE. IT. JUDGMENTS ON APPEAL. CHAPTER I. JUDGMENTS FOR THE PLAINTIFF. Title 1. Ik actions foe MONEr. 2. In actions eoe chattels. 3. In actions foe lands. 4 In actions foe special relief. TITLE I JUDGMENTS FOR THE PLAINTIFF IN ACTIONS FOR MONEY. Section 1. On failure to answer. 2. On partial failure to answer. 3. On trial. ' The judgments are ^ven here as they are to be entered in the judgment book. 25 194 BOOK OF FORMS. JUDGMBNTS FOE THE PLAINTIFF. Sec. 1. On failuee to answer. No. 279. L When the action is upon contract and the summons has been personally/ served. [TiTLE.J [Caption.] This action having been commenced on the .... day of .... . . . . , 18 • . , by the personal service of the summons [with a copy of the complaint] on the defendant, [or, defendants, naming them, and if the service has been made on different defendants on different days, specify the times of each,] and due proof having been made and filed of such service,' and that no answer [or notice of ap- pearance] has been received from the ^fendant, [or, from any of the defendants,] [and on filing the clerk's report of the amount due as assessed by him,] it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover of the defend- ant [or, defendants, naming them] dollars, mentioned in the summons, [or, thus assessed,] with dollars costs of the action, making together dollars. [^ the action be against defendants jointly indebted upon contract, and only some of them have been served, add at the end of the last form the folhvnng: but this judgment can be enforced only against the joint property of all the said defendants, naming them, and the separate property of the said defendants, naming them, who were served as aforesaid, and, iftheyaresvbjectto arrest, and against the persons of the said last named defendants. If all the defendants have been served and some only of them defend, and the others might have been sued without them, so that the judgment is taken under the third subdivision of section 136, add at the end of the form the following : This action being hereby severed, leaving the plaintiff to proceed hereafter against the other defendant, or, defendants, naming them.] [In this case the judgment roll consists of the summons, complaint, or copies thereof, the proof of service of the summons, affidavit that ' The caption will show that twenty days have since elapsed. BOOK OF FORMS. 195 JOBSMENTS FOR THE PLAINTIFF. no answer has been received, the clerk's report, if any, and a copy of the judgment If an answer has been put in, and stricken out hy the court, the answer and order to strike out should be inserted.^ No. 280. ii When the action is upon contract, and the summons was served by publication. [Title.] [Caption.] The summons in this action having been ordered to he served by- publication, and the time prescribed by the order for publi- cation against the defendant [or, defendants, namiiig'them, and if the service has been made on different defendants on different days, specify the times of each] having expired on the day of , 18 . . ,' and due proof having been given to the court of such service, and that no answer [or notice of appear- ance] has been received &om the defendant, [or, from any of the defendants,] and of the demand mentioned in the complaint, [and the plaintiff having filed, as required, satisfactory security to abide the order of the court, touching the restitution, &c., as specified in the third subdivision of section 246 ;] it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover of the defendant \or, defendants, naming them] dollars, with dollars costs of the action, making together dollars. [In this case the judgment roll consists of the summons, complaint, or copies thereof, the order for publication, affidavit of the publication, affidavit that no answer has been received, and a copy of the judgment] No. 281. iii. When the action is not upon contract and the summons was personally served. [Title.] [Caption.] This action having been commenced on the day of .... , 18 . . , by the personal service of the summons [with a copy ' The caption will show the lapse of 20 days, which must have elapsed after the publication. 196 BOOK OF FORMS. JUDGMENTS rOK THE PLAINTIIT. of the complaiat] on the defendant, [or, defendants, naming them ; and if the service has been made on different defendants on different days, specify the times of each,] and due proof having been made and filed of such service, and that no answer [or notice of appearance] has been received from the defendant, [or, from any of the defendants,] and the damages sustained by the plaintiff by reason of the matters alleged in the complaint, having been assessed by a referee appointed by the court, [or, by a juiy under the direction of the court,] it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover of the defendant [or, defendants, naming them], dollars, the damages thus assessed, with dollars costs of the action, making together dollars. [In this case th£ judgment roll consists of the summons, complaint, or copies thereof, the proof of service of the summons, affidavit that no answer has been received, the order for assessment by a jury or by a referee, the certificate of assessment or referee's report, and a copy of the judgment.] No. 282. iv. When the action is not upon contract, and the summons was served by publication. [Title.] I'Caption.J The summons in this action having been ordered to be served by publication, and the time prescribed by the order for publication against the defendant [or, defendants, naming them, and if the service has been made on different defendants on different days, specify the times of each] having expired on the day of , 18.., and due proof having been given to the court of such service, and that no answer [or notice of appearance] has been received from the defendant, [or, from any of the defendants,] and the damages sustained by the plaintiff by reason of the matters alleged in the complaint, having been assessed by a referee appointed by the court, [or, by a jui-y un- der the direction of the court,] [and the plaintiff having filed, as re- BOOK OF FORMS. 197 JUDSMENTS FOR THE PLAINTITF. quired, satisfactory security to abide the order of the court, touching the restitution, dc, as specified in the third subdivision of section 246], it is now, on motion of counsel for the plaintiff, adjudged that the plaintiff recover of the defendant [or, defendants, naming them], dollars [the damages thus assessed], with dollars costs of the action, making together dollars. [In this case the judgment roll consists of the suminons and com- plaijit, or copies thereof, the order for puhlication, affidavit of the publication, affidavit that no answer has been received, the order for assessment by a referee or by a jury, the refereis report or the certifi- cate of assessment, and a copy of the judgment.'] Sec. 2. On partial failure to ajiswer. No. 283. When the defendants answer sets up only a counter-claim less than the claim of the plaintiff. [Title.] [Caption.] The plaintiff having filed with the clerk a statement, admit- ting the counterclaim contained in the answer of the defendant [or, defendants, naming them], it is now, on motion of . . . . , counsel for the plaintiff, adjudged that the plaintiff recover of the defendant [or, defendants, naming them], dollars, being the excess of the plaintiff's claim over the said counter- claim, with dollars costs of the action, making together dollars. [In this case the judgm£nf roll consists of the summons, pleadings, or copies thereof, the statement admitting the counter-claim, and a copy of the judgment.] 198 BOOK OF FORMS. JUDSHENTS FOE THE PLAINTnT. Sec. 3. Osr trial. No. 284. L Upon demurrer (under § 269). [Title.] [Caption. J This action having been brought to trial upon the issue of law arising upon the complaint and demurrer thereto [or, complaint, answer and demurrer to the answer, or, complaint, answer, reply and demurrer to the reply], and it appearing to the court that the plaintiff is entitled to judgment upon the said demurrer, it is now [on filing the clerk's report, tSkc, or such other authority as is required under the second subdivision of section 246], on motion of , counsel for the plaintiff, adjudged that the plain- tiff recover of the defendant [or, defendants naming therri\ dollars, with dollars costs of the action, making together dollars. [In this case the judgment roll consists of tJie summons, pleadings, or copies thereof, and a copy of the judgment. The practice sometimes adopted of inserting the order allowing or overruling the demurrer, with leave to amend, is irregular. That order has noplace in the judgment roll,] No. 285. ii. Upon a verdict. [Title.] [Caption.] This action having been brought to a trial by jury, and a ver- dict therein rendered for the plaintiff, it is now, on motion of , counsel for the plaintiff, adjudged that the plain- tiff recover of the defendant [or, defendants, naming them], dollars, found by the jury, with dollars costs of the action, making together dollars. BOOK OF FORMS. 199 JUDGMENTS FOR THE PLAINTIFF. [The judgment roll in this case consists of the summons, pleadings, or copies thereof, the minutes of the trial, and a copy of the judgment. Neither the bill of costs nor any other paper than those above men- tioned should be inserted in the roll, unless there be a case or exceptions, or some order made in the progress of the cause involving the merits and necessarily affecting the judgment'] ' No. 286. iii On trial of issues of fact by the court. [Title.] [Caption.] This action having been brought to a trial by the court, a trial by jury having been duly waived, and a decision therein rendered for the plaintiflf, it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover of the defendant \or, defendants, naming them] dollars, with dollars costs of the action, making together dollars. \In this ca^e the judgment roll consists of the summons, pleadings, or copies thereof, the decisio7i, and a copy of the judgment] No. 287. iv. On trial by referee. [Thm.] [Caption.] This Of der having been referred by an order dated the day of , 18,., to , of , to hear and decide all the issues therein, and the report of the said referee being filed, it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover of the defendant [or, defendants, naming them] dollars, with dollars costs, of the action, making together .... dollars. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, a copy of the order of reference, report, and a copy of the judgment^ 200 BOOK OF FORMS. JUDGMENTS TOE fHB PlAINTirr. TITLE IL JUDGMENTS FOE THE PLAINTIFF IN ACTIONS FOE CHATTELS. Seoiion 1. On failure to answer. 2. On trial. iSec. 1. On failuee to answer. No. 288. L When the summons has been personally served. [Title.] [Caption.] This action having been commenced on the day of .... . . . . , 18 . . , by the personal service of the summons [with a copy of the complaint] on the defendant, [or, defendants, naming them, and if the service lias been made on different defendants on different days, specify the times of each,] and due proof having been given to the court of such service, and that no answer [or notice of appearance] has been received from the defendant [or, from any of the defendants,] [and the property claimed having been taken into the plaintiff's possession,] [and the value of the property claimed, and damages for the detention thereof having been assessed by a jury, under the direction of the court,] it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover [or, retain] possession of the said property, [or doUars, the value thereof, in case a delivery cannot be had,] and also recover. . . . dollars [damages, with dollars] costs of the action. [In this case the judgment roll consists of the summons, complaint, proof of service of summons, affidavit that no answer has been re- ceived, {the order to assess the damages, the minutes of the assessment,) and a copy of ffie jitdgment,'] BOOK OF FORMS. 201 JUDGMENTS JOB THE P1AINTIJ?F. No. 289. iL When the summons was served by pvblicaUon. [Title.] [Caption.] The summons in this action having been ordered to be served by publication, and the time prescribed by the order for publi- cation against the defendant \or, defendants, naming them, and if the service has heen made on different defendants on different days, spesjfy the times of each'] having expired on the day of ... . ) 18 . ., and due proof having been given to the court of such service, and that no answer [or notice of appearance] has been received from the defendant, [or, defendants, naming them,'] and of the demand mentioned in the complaint, [and the plaintiff having filed, as required, satisfactory security to abide the order of the court, touching the restitution, d;c., as specified in the third sub- division of section 246,] [and the property claimed having been taken into the plaiatiff 's possession,] [and the value of the pro- perty claimed, and damages for the detention thereof, having been assessed by a jury, under the direction of the court,] it is now, on motion of , counsel for the plaintiff, adjudged that the plaiatiff recover [or, retain] possession of the said property, [or dollars, the value thereof, in case a delivery cannot be had,] and also recover dollars [damages, with dollars] costs of the action. [In this case the judgment roll consists of the summons, complaint, order of publication, affidavit of the publication, affidavit that no answer has been received, the order to assess the damages, the minutes of the assessment, and a copy of the judgment] Sec. 2. On teial. No. 290. L Upon demurrer. [Title.] [Caption.] This action having been brought to trial upon the issue of law ai-ising upon the complaint and demurrer thereto, [or, complaint, 26 202 BOOK OF FORMS. JUDSMENTS FOE THE PLAIKTIFF. answer and demurrer to the answer, or, complaint, answer, reply and demurrer to the reply,] and it appearing to the court that the plaintiff is entitled to judgment upon the said demurrer, [and the property claimed having been taken iato the plaintiff's possession,] [and the value of the property claimed, and damages for the detention thereof, having been assessed by a jury, under the direction of the court,] it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover [or, retain] possession of the said property, [or dollars, the value thereof, in case a delivery cannot be had,] and also recover dollars [damages, with dollars] costs of the action. [In this case the judgment roll consists of the summons, flwdinjgs, or copies thereof, the order to assess the damages, the minutes of the assessment, and a copy of the judgment.'] No. 291. iL Upon a verdict. [Title.] ICiption.J This action having been brought to a trial by jury, and a verdict rendered therein for the plaintiff, [and the property claimed having been taken into the plaintiff's possession,] [and the value of the property claimed, and damages for the detention thereof, having been assessed by a jury, under the direction of the court,] it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover \or, retain] possession of the said property, \or, dollars, the value thereof in case a delivery cannot be had,] a&d also recover dollars [damages, with dollars] costs of the action. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, a copy of the minutes of the trial and of the judg- ment.] BOOK OF FORMS. 203 JUDGKENTS FOB THE PLAINTIFF. No. 292. iii. On trial hy the court. [TiTLE.J [Caption.] This action having been brought to a trial by the court, a trial by jury having been duly waived, and a decision therein having been rendered for the plaintiff, [and the property claimed having been taken into the plaintiff's possession,] [and the value of the property claimed, and damages for the detention thereof having been found by the court,] it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover [or^ retain] possession of the said property, [or dollars, the value thereof, in case a delivery cannot be had,] and also recover dollars [damages, with dollars] costs of the action. \In this case the judgment roll consists of the summons, pleadings, or copies thereof, the decision, and a copy of the judgment.'] No. 293. iv. On a trial by referee. [Title.] [Caption.] This action having been referred, by an order dated the day of , to , of , to hear^nd decide all the issues therein, and the report of the said rei^ee being filed, [and the property claimed having been talien into the plaintiff's possession,] and damages for the deten- tion thereof haviag been found by the said referee, it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover [or retain] possession of the said pro- perty [or, dollars, the value thereof, in case a delivery cannot be had,] and also recover dollars [damages, with dollars] costs of the action. [In this action the judgment roll consists of the sumvwns, plead- ings, a copy of the order of reference, the report, and a copy of the judgmemt^ 204 BOOK OF FORMS. JUDGMENTS FOR THE PLAIHTIFI'. TITLE in. JUDGMENTS FOR THE PLAmTIPP IN ACTIONS FOE LAND. Seotion 1. On failure to answer. 2. On trial. Sec. 1. On failuee to answee. No. 294. L When the summons has been personally served. [Title.] [Caption.] This action haTing been commenced on the day of , 18 . . , by the personal service of the summons [with a copy of the complaint] on the defendant, [or, defendants, naming them, and if the service has been made on different defendants, on- different days, specify the times of each,] and due proof having been given to the court of such service, and that no answer [or notice of appearance] has been received from the defendant, [or, defendants, naming them,"] it is now, on motion of , counsel for the plaiatiff, adjudged that the plaintiff recover pos- session of the real property described in the complaint, with dollars costs of the action. [In this case the judgment roll consists of the summons and com- plaint, or copies thereof, proof of service of summons, affidavit that no answer has been received, and a copy of the judgment^ No. 295. ii. When the summons was served by pvMicaUon. [Title.] [CaptiokJ The summons in this action having been ordered to be served by publication, and the time prescribed by the order for BOOK OF FORMS. 205 JUDaMENTS FOR THE PLAINTIFF. publication against ike defendant [or, defendants, naming them, and if the service has ieen made on different defendants on different days, specify the tim£s of each] having expired on the day of , 18 . . , and due proof having been given to the court of sucb service, and that no answer [or notice of appearance] has been received from the defendant, [or from any of the defendants,] and also of the demand mentioned in the complaint, [and the plaintiff having filed, as required, satisfactory security to abide the order of the court, touching the restitution, c&c, as specified in the third subdivision of section 246,] it is now, on mo- tion of , counsel for the plaintiff, adjudged that the plaintifl" recover possession of the real property described in the complaint, with dollars costs of the action. [In this case the judgment roll consists of the. summons and com- plaint, or copies therebf, the order for publication, affidavit of publi- cation, affidavit that no answer has been received, and a copy of the judgment.]. No. 296. ui. When damages are recovered. [As in either No. 294, or No. 295, to, but not including the words " it is now ;" and continue .•] and damages for the withholding thereof, having been assessed by a jury, under the direction of the court, it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover possession of the real property described in the complaint, and also dollars damages, with dollars costs of the action. , [The order for and minutes of assessment must be added to the judgment roll.] 206 BOOK OF FORMS. JTJD6HENTS FOB THE PIAINTITP. Sec. 2. Obt teial. No. 297. L On demurrer. [TiTLE.J [Captioit.J This action having been brought to trial upon the issue of law arising upon the complaint and demurrer thereto, [or, complaint, answer and demurrer thereto, or, complaint, answer, reply and demurrer thereto,] and it appearing to the court that the plaintiff is entitled to judgment upon the said demurrer, it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover possession of the real property described in the complaint, with dollars costs of the action. \In this case the judgment roll consists of the summons, pleadings, or copies thereof, and a copy of ike judgment.'] [If damages are assessed, modify according to No. 296.] No. 298. iL Upon a verdict. fTiTLE.] [Caption.J This action having been brought to a trial by jury, and a ver- dict therein rendered for the plaintiff, it is now, on motion of . . . , counsel for the plaintiff, adjudged that the plaintiff recover possession of the real property described in the com- plaint, [and also dollars damages for the withholding thereof,] [and also dollars for the rents and profits thereof,] with dollars costs of the action, making together dollars. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, a copy of the minutes of the trial, and a copy of the judgment.'] BOOK OF FOEMS. 207 JUDaMENTS FOR THE PLAINTirF. No. 299. m. On trial hy the court. [Title.] [Caption.J This action liaYing "been brouglit to trial by the court, a trial by jury having been duly waived, and a decision therein having been rendered for the plaintiff, it is now, on motion of ,......., counsel for the plaintiff, adjudged that the plaintiff recover possession of the real property described in the complaint, £and also dollars damages for the withholding there- of,] [and also dollars for the rents and profits thereof,] with dollars costs of the action, making together dollars. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, and a copy of the judgment'] No. 300. iv. On trial hy referee. [TiTLE.J [Oaption.J This action having been referred, by an order dated the day of , to , of , to hear and decide all the issues therein, and the report of the said referee being filed, it is now, on motion of , counsel for the plaintiff, adjudged that the plaintiff recover possession of the real, property described in the complaint, [and also dol- lars damages for the withholding thereof,] [and also dollars for the rents and profits thereof,] with dollars costs of the action, making together dollars. [In this case the judgment roll consists of the summons, pleadings, or copies thereof a copy of the order of reference, the report, and a copy of the judgment.'] 208 BOOK OF FORMS. TODOMENTS FOB THE PLADinpr. TITLE IV. JUDGMENTS FOR THE PLAINTIFF IN ACTIONS FOE SPECIAL BELIEF. Sbctiok 1. On failure to answer. 2. On trial. Sec. 1. On failure to answee. No. 301. i. When the summons has heen personally served. [Title.] [Oapiion.] This action having been commenced on the .... day of .... , 18 . . , by the personal service of the summons [with a copy of the complaint] on the defendant [ or, defendants, naming them, and if the service has been made on different defendants, on different days, specify the times of each'], and due proof having been given to the court of such service, and that no answer [or notice of ap- pearance], has been received, it is now, on motion of , counsel for the plaintiff, [and if notice of appearance has been, served: after hearing counsel for the defendant, or, and on proof of due service on the defendant's attorney of notice of application for this judgment], adjudged that the defendant \or, defendants, naming therri], forthwith execute and deliver to the plaintiff a conveyance, with full covenants, to be approved by a justice of this court, of the real property described in the com- plaint, and that the plaintiff also recover of the defendant [or, defendants, naming ihern\, dollars, costs of the action [or, whatever may be the special relief granted, with or viithout costs."] [Ik this case the judgment roll consists of the summons and complaint, or copies thereof, proof cf service of summons, affidavit that no answer has been received, and a copy of tlie judgment] BOOK OF FORMS. 209 JTTOOMBNTS FOE THE PLAINTIPF. No. 302. ii. When the summons vjos served by publication. [Title.] [Caption.J The summons in this action having been ordered to be served by publication, and the time prescribed by the order for publica- tion against the defendant [or, defendants, naming them, and if the service has been made on different defendants, on different days, specify the times of each], having expired on the .... day of . . . . , 18 . . , and due proof having been given to the court of such service, and that no answer [or notice of appearance], has been received from the defendant, [or, defendants, naming them], and also of the demand mentioned in the complaint [and the plaintiff having filed, as required, satisfactory security to abide the order of the court touching the restitution, &c., as prescribed in the third subdivision of section 246], it is now, on motion of , counsel for the plaintiff [after hearing counsel for the defendant, or, and on proof of due service on the defendant's attorney of notice of application for this judgment], adjudged that the defendant [or, defendants, naming them], forthwith execute and deliver to the plaintiff a conveyance, with full covenants, to be approved bv a justice of this court, of the real property described in the complaint, and that the plaintiff also recover of the defendant [or, defendants, naming them], dollars costs of the action [or, whatever may be the special relief granted, with or with- out costs.] [In this case the judgment roU consists of the summons and com- plmnt, or copies thereof, affidavit of puhlication, affidavit that no answer has been received, and a copy of the judgment] 27 210 BOOK OF FORMS, JUDaMENTS POR THE PLAIHTIIT. Sec. 2. On trial. No. 303. i. On demurrer, under complaint No. 153. [Title.] [Captios.] Tliis action having been bronght to trial upon the complaint and demurrer thereto, [or, complaint, answer and demurrer thereto, or, complaint, answer, reply and demurrer thereto,] and it appearing to the court that the plaintiff is entitled to judgment upon the said demurrer, it is now, on motion of ... . , counsel for the plaintiff, adjudged : 1. That the conveyance \describing it\ dated the day of , 18. ., executed by , to , was made with Intent to defraud the creditors of the said j and is void as against the plaintiff in this action ; 2. That the property therein \or, in the complaint] described be sold by the sheriff \&c., as in foreclosure cases;"] 3. That the sheriff pay to the plaintiff the net proceeds of such sale, or so much thereof as will satisfy the amount of the judgment described in- the complaint, being for dollars, with interest from the .... day of , 18. ., and dollars costs of this action ; 4. That if there be any surplus remaining after such payment, the sheriff pay the same to the defendant or his attorney. [In this case the judgment roll consists of the summons, plead- ings, or copies thereof, and a copy of the Judgment'] BOOK OF FORMS. 2H JDDGMENTS TOE THE PLAINTITF. No. 304. iL On a verdict, under complaint No. 141. [Title.] [Captiok.J This action having teen iDroiiglit by order of the court to a trial by jury, and a verdict therein rendered for the plaintiff, it is now, on motion of . . , , counsel for the plaintiff, adjudged : 1. That the contract set forth ii^the complaint was made under a mistake of material facts on the part of the plaintiff, and is therefore voidable by him ; 2. That the defendant surrender the same to be canceled. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, a copy of the minutes of the trial, and a copy of the judgment.'] No. 305. iiL On a trial of issues of fact by the court, under complaint No. 152. [Title.] [Caption.] This action having been, brought to trial by the court, and a decision therein rendered for the plaintiff, it is now, on motion of , counsel for the plaintiff, adjudged that the defendant [or, defendants, naming them] forthwith deliver to the plaintiff [describe the property,] and that the plaintiff also recover of the defendant [or, defendants, naming them] dollars costs of the action. [In this case the judgment roll consists of the summons, pleadings., or copies thereof, the decision, and a copy of the judgment] 212 BOOK OF FORMS. TODOMEirrS FOB THE TLAINTIFr. No. 306. 17. The like, under complaint No. 165. [Title.] [Caption.] [ Cbmmencement as in preceding form .•] 1. That tlie plaintiff recover of the defendants dollars, being the amount of the note made by the defendant , and indorsed by liie defendant , with interest thereon, and also dollars costs of the action, making together dollars ; 2. That upon the return of an execution against the defend- ants, unsatisfied in whole or in part, the plaintiff will be enti- tled to so much of the proceeds of the six notes lodged with the said Brown, as security for his said indorsement, as wiU be sufficient to satisfy the same ; 3. That E. W. H. be appointed receiver of the said six notes or of the proceeds thereof; that before entering upon the execu- tion of his trust, he execute and file, in the proper office, a bond, with sufficient sureties, in the penal sum of $ , to be approved by a justice of this court, conditioned for the perform- ance of his trust, and shall thereupon be vested with all the rights and powers of his office ; 4. That the said Brown transfer to the said receiver, the said six notes or such of them as remain, and the proceeds of such of them as have been paid ; 5. That the said receiver collect, as far as practicable, the notes remaining unpaid, and apply the money received by him as aforesaid, after deducting his commissions, to the satisfaction of the judgment aforesaid ; 6. That if there be any surplus remaining thereafter, the same be paid to the defendant Jones. [Judgment roll as before,] BOOK OF FORMS. 213 JUBOMENTS FOE THE PLAINTIPP. No. 307. V. On a trial hy referee. [Title.] - [Caption.] This action taving been referred, by an order, dated tbe .... day of , to , of , to hear and decide all the issues therein, and the report of the said referee being filed, it is now, on motion of , counsel for the plaintiff, adjudged that the defendant {or, defend- ants, naming them] forthwith execute and deliver to the plaintiff a conveyance, with full covenants, to be approved by a justice of this court, of the real property described in the complaint, and that the plaintiff also recover of the defendant [or, defend- ants, naming them] dollars costs of the action [or what- ever may be the special relief granted, with or without costs.] [In tills case thejvdgment roll consists of the summons, pleadings, or copies St^eof, order of reference, report, and a copy of the judg- ment] 214 BOOK OF FORMS. JUDGMENTS FOE THE DEPENDANT. CHAPTER 11. JUDGMENTS FOR THE DEFENDANT. Section 1. Judgment without trial. 2. Judgment upon trial. Sscl. Judgment ■without teial. No. 308. Dismissal of the complaint f&r want of service. [Title.] [Caption.] TMs action having been commenced by the service of the summons, mthout a copy of the complaint, on the defendant, [or, defendants, naming those in tvhose favor the dismissal is taken,] and the said defendant [or, the said defendants, j having, on the day of j 18 . . , served on the plaintiff's attor- ney a notice of appearance, and demanded a copy of the com- plaint, and due proof having been given to the court of such notice and demand, and that no copy of the complaint has been served, it is now, on motion of , counsel for the defendant, [ or, the said defendants, ] adjudged that the complaint be dismissed for want of service of a copy thereof, and that the defendant [or, the said defendants, ] recover of the plaintiff dollars costs of the action. [In this case the judgment roll consists of copies of the summons, notice of appearance and demand of copy of the complaint, affidavit that no copy of the complaint has been served, and a copy of the Judgment] BOOK OF FORMS. 215 JUCeMENTS FOE THE DEPENDANT. Sec. 2. Judgment upon teial. No. 309. i. Dismissal of the complaint upon the merits after demurrer. [Title.] ' [Caption.] This action having been brought to trial upon the complaint and demurrer thereto [or, complaint, answer and demurrer thereto, or, complaint, answer, reply and demurrer thereto], and it appearing to the court that the defendant [or, defendants, naming them] is [or, are] entitled to judgment upon the said demurrer, it is now, on motion of , counsel for the defendant, adjudged that the complaint be dismissed, upon the merits thereof, and that the defendant [ or, the said defend- ants,] recover of the plaintiff dollars costs of the action. [In this case the judgment roll consiits of the summons, pleadings, or copies thereof and a copy of the judgment.] No. 310. ii. Dismissal of the complaint after a verdict. [Title.] [Caption.] This action having been brought to a trial by jury, and a ver- dict having been found for the defendant [or, defendants, naming them], it is now, on motion of , counsel for defendant, adjudged that the complaint be dismissed upon the merits of the action, and that the defendant [ or, the said defendants, J recover of the plaintiff dollars costs of the action. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, a copy of the minutes of the trial, and a copy oftht judgn\^nt.] 216 BOOK OF FORMS. JUDGMENTS FOK THE DEFENDAST. No. 311. iiL Dismissal of the complaint on a trial of issues of fact hy the court. [TiTLE.J [Caption.] TMs action having been brought to trial by the court, [a trial t>j jury being duly -waivecl,] and a decision therein rendered for the defendant [or, defendants, naming them'], it is now, on motion of , counsel for defendant, adjudged that the complaint be dismissed upon the merits of the action, and that the defend- ant [or, defendants, naming them] recover of the plaintiff dollars costs of the actioa [In this case the judgment roll consists of the summons, pleadings, or copies thereof, the decision, and a copy of the judgment] No. 312. iv. Dismissal of the complaint on a trial by referee. [TiTLE.J fCAPTION.j This action having been referred, by an order dated the .... day of , 18 . , , to , of , to hear and decide all the issues therein, and the report of the referee in favor of the defendant [or, defendants, naming them] being filed, it is now, on motion of , counsel for defendants, adjudged that the complaint be dismissed upon the merits of the action, and that the defendant [or, defendants, naming them] recover of the plaintiff dollars costs of the action. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, a copy of the order of reference, the report, and a copy of the judgment] BOOK OF FORMS. 217 JUDGHtENTS rOR SOME OP THE PAKTIBS. CHAPTER III. JUDGMENTS FOE SOME OP THE PARTIES ON EACH SIDE. No. 313. i. Judgment in favor of some of ihe plaintiffs against all the defendants (under § 274). [TitleJ [Oaption.J This actiott having been brought to a trial by jury, and a verdict having been rendered in favor of the plaintiffs, [A. B. and 0. D., naming them'] against all the defendants, and in favor of the. said defendants against the plaintiff, E. F., it is now, on motion of , counsel for the plaintiffs, adjudged that the said plaintiffs, A. B. and C. D., recover of all the defendants dollars found by the jury, with dollars costs of the action, making together dollars. And it is farther adjudged that as to- the plaintiff, E. F., the complaint be dismissed upon the merits of the action, and that the defendants recover of the said E. F. dollars costs of the action. [In this case the judgment roll consists of the summons, pleadings, or copies thereof, a copy of the minutes of trial, and a copy of the Judgment^ No. 314. ii Judgment in favor of aU the plaintiffs against some of tlie defendants. [Title.] fOAPiioN.J This action having been brought to a trial by jury, and a verdict having been rendered in favor of all the plaintiffs against the defendants, [A B. and C. D., naming them\ and in favor of the defendant, E. F., against aU the plaintiffs, it is now, on motion of , counsel for the plaintiffs, adjudged that 28 218 BOOK OF FORMS. JUDGMENTS FOR SOME OF THE PARTIES. the said plaintiffs recover of the defendants, [A. B. and C. D., naming them] dollars, found by the jury, with dollars costs of action, making together dollars. And it is further adjudged that the complaint he dismissed on the merits of the action, as against- the defendant, B. P., and that he recover of all the plaintiffs dollars costs of the action. [In this case the jvdgment roll consists of the summons, pleadings, or copies thereof, a copy of the minutes of trial, and a copy of the judgment No. 315. iii. Judgment in favor of some of the plaintiffs, against some of the defendants. [Title.] [Caption.] This action having been brought to a trial by juiy, and a verdict having been rendered in favor of the plaiatiffs, [A. B. and C. D., naming them'] against the defendants, [E. F. and Gr. H., naming them] and against the plaiatiff, [J. EL,] in favor of all the defendants, and in favor of the defendant, [L. M.,j against all the plaintiffs, it is now, on motion of , counsel for the plaintiffs, adjudged that the said plaintiffs, A. B. and C. D., recover of the defendants, E. F. and G. H., , dollars, found by the jury, with dollars costs of the action, making together dollars. And it is further adjudged that as to the plaintiff, J. K, the complaint be dismissed upon the merits of the action, as against all the defendants, and that they recover of the said J. K .... .... dollars costs of the action. And it is farther adjudged that the complaint be dismissed on the merits of the action, as against the defendant, L. M., and that he recover of all the plaintiffs dollars costs of the action. [In this case the judgment roll consists of the summons, pleadings, or 'copies thereof, a copy of the minutes of the trial, and a copy of the Jtidgment.] BOOK OF FORMS. 219 JtrDGMBNTS ON APPEAL. CHAPTER IV. JtnDGMENTS ON APPEAL. No. 316. Judgment of a^rmance at the general term. [TitlkJ [Caption.] The appeal from the judgment entered in this action on the day of ) 18 . . , having been brought to the general term, it is now, on motion of , counsel for re- spondent, after hearing , counsel for appellant, adjiidged that the said judgment be affirmed, and that the respondent recover of the appellant costs of the appeal.' No. 317. Judgment upon a record remitted frora the court of appeals. [Title.] [Caption.] Aa appeal from the judgment entered in this action on the day of ) 18 . . , having been taken to the court of appeals, and the record remitted from that court being filed, it is now on motion of , counsel for , adjudged that [follow the judgvient of the court of appeals.] ' It i.llaf3'8, that the said [de- '' fendant] shall pay all costs and damages thax may be awarded against him on such appeal. [Signatztres.] \Justification and achnowledgm&ii as in No. 238.] 236 BOOK OF FOKMS. APPEALS. No. 339. ii To stay proceedings on a judgment for money (under § 335). fTrrLE.] "Whereas, on the day of , 18. ., the recovered judgment against the , in the , for dollars ; Am) WHEREAS, the intends to appeal therefrom to the , and desires to stay all proceedings thereon ; Now, THEREFORE, wc, Benjamin Brown, of [mer- chant], and Daniel Down, of [tailor], nhdertake in the sum of two hundred and fifty dollars, that the said shall pay all costs and damages that may be awarded against him on such appeal ; and also in the further sum of . . . dollars, that if the said judgment, or any part thereof, be af&rmed, the said shall pay such amount as shall be so awarded, and all damages awarded against him on such appeal. ^ [Signatures.] [Justification cmd acknowledgment as in No. 238.J No. 340. iii. To stay proceedings on a judgment for chattels {under § 336). [Title.] Whereas, on the .... day of , 18. ., the recovered judgment against the , in the , for the possession of ; And whereas, the intends to appeal there- from to the , and desires to stay proceedings thereon ; Now, therefore, we, , of , , and , of . . ., , , undertake, in the BOOK OP FORMS. 237 sum of two hundred and fifty dollars, tliat tlie said shall pay all costs and damages that may be awarded against . . . .... on such appeal ; and also in the further sum of dollars, that the said shall obey the judgment rendered on such appeal. [^Signatures.] ^Justification cmd acknowledgment as in No. 238.] No. 341. lY. To stay proceedings on a judgment for lands. [Title.] [As in No. 339 to the words " in the further sum of dollars," and continue:'] that during the possession of the said property by the said , he will not commit nor permit any waste thereon ; and in the further sum of dollars, that if the said judgment be affirmed, he shall pay the value of the use and occupation of the said property, from the time of this appeal until the delivery of the possession thereof [If damages have been awarded, or judgment has heen rendered for a deficiency on a mortgage, add.-] and also in the further sum of . . dollars, that if the said judgment, or any part thereof, be afiSrmed, the said shall pay such amount as shall be so awarded, and all damages awarded against .... on such appeal. [Signatures.] [Justification and achnowledgmmt as in No. 238.] 238 BOOK OF FORMS. No. 342. vi To stay proceedings on a jristice's judgment (under §§ 355, 356.) [a?ITLE.| Whereas, on tlie .... day of „ . ., 18. ., judgment waa rendered in this action, against tlie , for dollars ; And whereas, the said intends to appeal therefrom to the court of and desires to stay proceedings thereon ; Now THEREFORE, we, , of , , and , of , of , undertake, that if judgment be rendered against the said , on such appeal, and execution thereon be returned unsatisfied, ia whole or in part, we will pay the amount unsatisfied. ISignatures.'] [JiMJkaUon before a Judge.] BOOK OF FORMS. 239 CHAPTER III. ORDERS STAYING PROCEEDINGS. No. 343. Order to stay proceedings pending appeal {under §§ 339, 348).' [Title.] [Caption.] The having appealed to the , from the , on motion of , counsel for , after hearing , counsel for ; Ordered : That all proceedings on the judgment \or, order] appealed from be stayed until the determination of the said appeal. J. L., Clerk. ' It will be observed that this order is only necessary when the appeal is from an order, or when the appeal being from a judgment to the general term, no security has been given. PART VIII. MISCELLANEOUS PEOCBEDINGS. Chapter I. SUBMISSION OP CONTEOVERST "WITH- OUT ACTION. II. SUMMONS AGAINST JOINT DEBTOES, ETC. III. CONFESSIOljT OP JUDGMENT. IV. PAPERS ON ARGUMENT AND APPEAL. CHAPTER I. SUBMISSION OF CONTEOVEKST WITHOUT ACTIOIir. {Under Chap. 1, Title XII.) No. 344. i. Case agreed upon. [Title.] ["Countt.] L On the day of 18. ., James Smith died, seised of a farm in the town of , county of . . . . .. , bounded IL BeforeHs ^eath, lie made and published his will in due form to pass real estate, by which he appointed the plaintiff, John Smith, executor of the same, and devised the said farm in the following words : "I give and devise my farm in the town of , to my two grandchildren, Q-eerge Smith and "William Smith, and 31 242 BOOK OF FORMS. SUBMISSION WITHOITT ACTION. their heirs foreyer ; the said lot of land to be disposed of as follows, by my executor, that is to say, tbe said farm shall not at any time hereafter be sold or alienated, but my said executor shall, from time to time, lease tbe same on such terms as lie may deem most advantageous to my said grandcbildren, and the rents of the same shall be annually paid by my said executor to my said grandcbildren, in equal proportions, and if either of my said grandchildren, or their children, desire to occupy any part of my said farm, he or they shall liave a preference over any other ap- plicant on paying a reasonable rent tberefor. And in case either of my said grandchildren shall die without lawful issue, then and in such case my will is that the share of the one so dying shall inure to the benefit of the surviyor and the heirs of such survi- vor forever." III. The said will was duly proved, and letters testamentary duly granted thereon to the plaintiff, by the surrogate of the county of , on the .... day of , 18 . .. IV. On the day of , 18. ., the above named George Smith died without issue. V. The said farm is in the possession of the defendant, "William Smith. The parties claim as follows : 1. The plaintiff claims that he is entitled to an undivided half of the said lot of land, during the life of the defendant ; 2. The defendant claims that the plaintiff has no interest in the same. We, the above named plaintiff and defendant, agree upon the foregoing case, and submit the same to the court of , to determine the following questions in differ- ence between us: 1. Whether the plaintiff is entitled to any share ot interest in the said farm ; 2. If entitled to any, to what share or interest he is so entitled. [DateJ {J^naturesJ} BOOK OF FORMS. 243 SUBMISSION ■WITHOtTT ACTION. No. 345. ii. Affidavit annexed. County of : Jolm Smitli and 'William Smith, the above named plaintiff and defendant, being duly sworn, each for himself says as follows : 1. The controversy between ns, depending upon the facts above stated, is real ; 2. This proceeding is taken in good faith, to determine our respective rights. \_Signatures^ Sworn, &o. No. 346. iii. Judgment. [Title.] fCAPUON.] A case agreed between the parties above named, without action, having been presented to this court, with a submission thereof and affidavit in due form, and argued at the general term by , of counsel for the said plaintifif, John Smith, and by ^ . . , of counsel for the said de- fendant, William Smith, it is now adjudged that under the will of the said James Smith, and since the death of the said George Smith, the said John Smith is entitled to one undivided half of the farm mentioned in the case, for the life of the said William Smith ; and that the said John Smith do recover the said undi- vided half from the said William Smith. 244 BOOK OF FORMS. SUMMONS A&AnfST JOMT DEBTOBS. CHAPTER II. SXJMMONS AGAINST JOINT DEBTOES AND OTHERS. {Under Chap. 2, of Title Xll.) No. 347. i. Summons. [Title.] [Countt.J Whereas, a judgment was recovered in this action on the .... day of , 18 . . , for [descrfbing the judgment,] in whicli action you were not originally served with the summons, you are now summoned to show cause, within twenty days after the service hereof, why you should not be hound by the judgment in the same manner as if you had been originally summoned. Yours, &c., A. B., Judgment Oreditor, or C. D., Attorney for Judgment Creditor, No. . . street [Albany.] No. 348. ii. Affidavit anneaxd. [Title.] County of : A. B._[the plaintiff], being duly sworn, says as follows : 1. The judgment recovered in this action has not been satis- fied, to my knowledge, information, or belief. 2. The amount due thereon is dollars. A. B. Sworn, &c. BOOKOF FORMS. 245 CONTESSION OF JUDGMENT. CHAPTER III. CONFESSION OP JUDGMENT. {Jlndffr Chap. 3, Title XII.) Seotion 1. Statement of debts actually due. 2. Statement of debts to become due. 3. Statement of a liability incurred by the plaintiflf. 4. Affidavit and judgment.. iSec. 1. Statement op debts actttallt dus. No. 349. L For goods sold and delivered. [Title.] [Coottt.J I, Jolin Jones, authorize labgmcnt bg tonfesgio«> Mt^oxtt axtim. To be entered against me, in favor of John Smith, for : . . . dollars, for the following cause : I. On the .... day of , 18 . ., at , the plaintiif sold and delivered to me [dry goods, or, iron, or, hardware, t&c.,] of the value of ; ; dollars [at a credit of months].' John Jones. [Albany, January 1, 1861.] ' It is not necessary to state that the price was not paid, or that it is justly due, or to become due. Lanning v. Carpenter, 20 K Y., 458. 246 BOOK OF FORMS. CONFESSION OF JTJD&MBNT. No. 350. iL For money lent. [TnLE.] [COUNTT.] \As in No. 849, to the word " cause."] I. On the ..... day of , 18 . . , at , the plaintiff lent me dollars, payable on demand, with. interest. IL On the ..... day of , 18. ., at the plaintiff lent me doUars, on the same terms. in. On the .... day of , 18. ., I paid to theplaintiff dollars on account [Date.'] \Signatares.\ No. 351. iii. For the price of real property. [Title.] [County.] [As in No. 349, to the word " cause."] I. On the day of , 18 . . , at , the plaintiff sold and conveyed to me [a piece of land in the town of , bounded as follows : ] ; n. I then promised to pay doUars for the same. [Date.'\ [Signatwres.] BOOK OF FORMS. 247 COKFESSION OB' JUDGUIENT. No. 352. iv. On an account [As in No. 849, to the ward "cause."] I. I liave received from the plaintiff, for my benefit, tlie fol- lowing money, goods, and services, of tlie value and at the times stated as follows • 1860. June 1. Wheat delivered at rdy store in , $402 12 July 6. Barrels delivered at , 124 25 " 18. Flour delivered at , 505 00 Aug. 10. Cash, 50 00 " 20. Transportation of my goods from to ......... 87 63 n. I have paid or delivered to the plaintiff, onaccount thereof, the following moneys, or goods, of the value and at the timea stated as follows : 1860. Aug. 18. Cash, $24 00 Oct. 10 Groceries, 92 00 {pate.} [SignatwresJl 248 BOOK OF FORMS. CONFESSION OF JtJDSMENT. No. 353. V. On a promissory note. fTlTLEj [COOTTT.] [As in No. 349, to the word " cause."] L [State the consideration of the note as fully as if judgment were confessed upon that, instead of the notes.] TL On tlie day of , 18. ., in consideration thereof, I made to tlie plaintiff my promissory note for the sum of dollars, payableon the .... day of 18. ., [or, payable days after date]. [Date,'] [iSignature.] No. 354. vi. By an indorser, to his indorsee. [Title.] [OomjTT.j [As in i\7b. 349, to the word " cause."] I. In consideration of [ dollars guarantee commis- sion paid to me by the plaintifi^] on the day of j 18. ., I indorsed to him, before its maturity, a promissory note, made by one William Brown, on the day of , 18 . ., at , to [my order], for the sum of dol- lars, payable on the day of > 18 . . , [or, payable .... days after date]. n. The same was dishonored [Date.] [S^naiure.] BOOK OF FORMS. 249 CONFESSION OF JUDGMENT. No. 355. vii By an indorser, to a remote indorsee. [Title.] [County.] [As in No. 349, to the word " cause."] I. I indorsed and negotiated, before its maturity, a bill of ex- cbange, made by one William Brown, on the .... day of .... . » . . , at , reqtdring one John Eobiason to pay to [my order] dollars, [days after sight thereof]. IL The same was afterwards transferred to the plaintiff. HL The same has been dishonored. [I)ate.] [Signature.] No. 356. viii In other cases. [Title.] [County.] [State the facts as in any of the preceding forms of complaint; speaking in the first person, confessing, instead of charging them, and giving the particulars.'] Sec. 2. Statement of debts to become due. No. 357. i. For goods sold and delivered, on an unexpired credit [Title.] [County.] [No. 349 is sufficient, showing the term of credit. But to this and the svisequent forms in this section MAT be added the following article: 250 BOOK OF FORMS. OONKBSSION OF JTJDGMENT. n. This confession of judgment is made to secure the plaiatiff in case of non-payment of the said sum when due.] [Date.] [Signature.'] No. 358. ii. For money lent fTiTLB.] fCotmiT.] [As in 2fo. 349, to the word "cause."] I. On the .... day of , 18. ., at , the plaintiff lent me dollars. n. I promised to repay the same on the .... day of , 18... [Date.] [Signature.] No. 359. iiL On a promissory note ; by the maker. [Title.] [Ootjhtt.J [As in No. 353.] No. 360 iv. By an indorser. [Title.] rComnr.] [As in No. 354, or No. 355, omitting the allegation of dishono}'.] BOOK OF FORMS. 251 CONFESSION OP JUBSMENT. &c. 3. Statement of a liability inoureed by the PLAINTIFF. No. 361. i. To secure an accommodation indorser. lAs in No. 349 to the words "favor of," and continue:'] Join Smith, for dollars, to secure him against liability for the following cause : On the .... day of , 18 . . , at , the plaintiff indorsed, for my accommodation, a promissory note made by [me], dated the .... day of , 18.., at , to the order of , for the sum of dollars, payable after date; and delivered the same to me. [Date.'] [Signature.] No. 362. ii. Affidavit anneoxd. County of : John Jones, the defendant, being duly sworn, says that the foregoing statement of indebtedness [or, liabiUty], is, in all respects, true. [Signature.] Sworn, dc. ' No. 363. iiL Indorsement of Judgment. On filing the within statement and af&davit, it is adjudged by the court, that the plaintiff recover of the defendant .... dollars, within confessed, together with dollara costs, making togetheii dollars. 252 BOOK OF FORMS. PAPEES Oir AESIWENT AND APPEAI;. CHAPTER IV. PAPEES ON ARGUMENT AND APPEAL. No. 364. 1. Argument papers far the general term, when there has hem no appeal. 1. Where exceptions liave been directed to be heard at the general term, pursuant to section 265, the argument papers should contain the pleadings and the exceptions. 2. Where a verdict has been taken, subject to the opinion of the court, pursuant to section 265, the argument papers should contain the pleadings, the verdict, and the point to be submitted to the court, with so. much of the evidence as may be necessary to explain it. No. 365. ii. Appeal Book. 1. In case of appeal from a judgment, the appeal book should contain the notice of appeal and the judgment roU. 2. In case of appeal from an order, the appeal book should contain the notice of appeal, the order appealed from, and the papers on which it was made, BOOK OF FORMS. 253 IN ACTIONS FOR PAKTIXION. CHAPTER V FOEMS IN ACTIONS POK THE PAETITION OF REAL ESTATE. No. 366. Petition iy general guardian or relative of an infant under the age of fourteen, for leave to commence partition suit, under the act q/" 1852, and for appointment of next friend or guardian, ad litem. SUPREME COURT. In the matter of the petition on behalf of ■ A. B., an infant, by his general guardian, CD. To the Supreme Court of the State of New Yorh : The petition of A. B., an infant under tlie age of twenty-one years, and of the age of twelve years,' by C. D., his general guardian, respectfully showeth : That said infant, who was of the age of twelve years on the day of last, resides at in county of with his mother, E. B., and is supported by her, and that said C. D. has been duly appointed hig general guardian by the surrogate of county; that said infant is one of the children and heirs-at-law of G-. B., deceased, who died seized of certain real estate in said city, to wit : [describing it generally^ That said infant, as such heir-at-law, is now a tenant in com- mon, in fee simple, of said premises, with the other children of said Gr. B., deceased, to wit: H. B., L. B., and S. B., subject to the dower right of their said mother. That the value of said real estate is about $5,000, and said infant is not seized of any other real estate, and has personal ' If the infant be of the age of fourteen years or upwards, the petition should be by him and not by the guardian. . 254 BOOK OF FORMS. IN ACTIONS rOK PARTITION. property only to the amount of $300, whicli is in the hands of his said guardian, and invested for him, the said infant, the income whereof is insufficient for his support and maintenance. That said . property and real estate consists of building lots, and is wholly unproductive [or state any other facts which render a sale desirable or advantageous; as, that, if there are buildings thereon, they require extensive repairs, or will not rent for a sufficient sum, &c., &c.'\ That the interests of said infant, as your petitioner believes,, require a sale of said premises, he, the said infant, being in need of the income of his proportional share, for his maintenance and education. That all the other tenants in common are infants under the age of twenty-one years [or, that they refuse to unite in a sale; or are about to commence a suit for partition ; or, that one or more of them, of full age, have left the State, and their places of residence ^ are unknown; or other facts showing the propriety of allowing the infant his action for partition, rather than to appoint a special guardian on petition, to unite with the co-tenants in a salel. Wherefore your petitioner prays that the court will allow pro" ceedings to be instituted by action of partition, in behalf of said infant, for a division and partition of said real estate, and for a sale thereof, if it shall appear that such partition cannot be made without great prejudice to the owners ; and that said C. D. be appointed next friend ' of said infant, to conduct the proceedings in such action on his behalf And your petitioner will ever pray. Dated, &c. C. D., General Guardian of A. B. County of , ss: CD., being duly sworn, says that he has read [or has heard read] the foregoing petition subscribed by him, and knows the contents thereof, and that the same is ' The term next frund, is retained in these forms, as used in the statute, because that term expresses more definitely the character in which the special guardian acts, and the general law applicable to his duties, cfeo. BOOK OF FORMS. 255 IN ACTIONS FOB PARTITION. true of his own knowledge, except the matters set forth on in- formation and belief; and as to those matters he believes it to be true. Sworn, &c. (If any other person than the petitioner be proposed as guar- dian, his consent must be added to the petition, and an aflSidavit verifying such signature made, as in Nos. 371, 372. No. 367. Order of reference thereon. At a special term of the Supreme Court held for the State of New York, at the City Hall, in the city of Albany, on the last Tuesday of , A. c, 18 . . . Present, Hon , Justice. In the matter of the petition on "behalf of A. B., an infant, by his guardian, C. D. On reading and filing the petition, on behalf of A. B., an infant, by his guardian, C. D., bearing date the , &c., and duly veri- fied by said guardian, on motion of , Esq., attorney for said guardian, it is ordered that it be referred to , Esq., counselor, of the city of , to inquire into the mat- ters set forth in said petition, and- report the facts to this court, with his opinion thereon. 256 BOOK OF FORMS, IN ACTIONS FOE PARTITION. No. 368. Beport of referee. [Title.] To the Supreme Court of the State of New Yorh: The undersigned referee, to whom, by an order of this court, in this matter, bearing date the last Tuesday of j ■*- D., 18. ., it was referred to inquire into the truth of the matters set forth in the petition in this matter, and report the facts to this court, with his opinion thereon, respectfully reports : That after due examination and testimony therein taken, I find that the facts stated in said petition are true. That the said infant is of the age of twelve years, and is tenant in common, &c., \_as stated in the petition or otherwise found by referee.] That said infant is in need of the income or interest money of the value of his share in said property, for his maintenance and education. That, &c. [stating any other material facts found hy the referee']. From which facts so found by me, I am of the opinion that the interests of said infant require that an action should be brought for a petition and sale of said premises. [A clause may he added, that the person proposed as guardian is, in the opinion of the referee, a suitable and proper person, with no interest adverse to the infant] Dated, I Beferee. BOOK OF FORMS, 257 IN ACTIONS FOE PARTITION. No. 369. Order confirming report and authorizing. At a special term, &o. Present, &c. [Title.] On reading and filing [the report of , Esq., refereoj appointed pursuant to an order in this matter, bearing date the last Tuesday of , A. D., 18. ., which report bears date . , , 18 . .],' on motion of , attorney for said guardian, it is ordered that the said report be confirmed, and that proceedings be instituted by action of partition to this court on behalf of said infant, for a division and partition of said real estate, and for a sale thereof, if it shall appear that such par- tition cannot be made without great prejudice to the owners. [And it is further ordered, that C. D., the general guardian of said infant, he appointed his next friend, to prosecute such action and con' duct such proceedings on lehalfof said infant, on his executing to the people of this State, duly acknowledged, a bond in the penalty of% . . . . , voith two sufficient sureties, to he approved hy a justice of this court, and filed with the cleric, as required hy statute and the practice of the court.'] (The last clause, in brackets, is, of course, to be omitted if the petition has not prayed for the appointment of a guardian, in which case the proceedings will be as in the following forms.) ' The court, it seems, may grant the application, without a reference, if satis- fied, on the petition, that the interests of the infant require the partition or sale. If so, the part of the above order in brackets will be omitted, and the words " the petition of said infant, by his guardian, C. D., duly verified, and bearing date the, &c.,'' may be inserted instead of it. 33 258 BOOK OP FORMS. IN ACTIONS FOB PARTITION. No. 370 Petition of infant plaintiff over fourteen yeo/rs of age for appmnt- merit of next friend to commence suit in partition. To the Supreme Court of the State of New York: The petition of A. B., an infant of the age of fourteen years and upwards, respectfully showeth : That your petitioner was of the age of sixteen years on the day of last; That he is about to commence an action in the Supreme Court against C. D. and others, heirs-at-law and parties interested in that certain farm of land, situate in the town of , . . . , county, of which G. D. died seized and possessed, for the partition and sale of said real estate, pursuant to an order of the Supreme Court made at special term, held at &c., on the , &c., authorizing such action to be prosecuted on behalf of your petitioner. Wherefore your petitioner prays that D. F., attorney and counselor-at-law [or, G. H., the general guardian of your peti- tioner'], a competent and responsible person, may be appointed next friend to prosecute such action for your petitioner, according to the statute in such case provided, and the rules and practice of the court. A. B. Dated, &c. No. 371. Consent of guardian annexed or indorsed. I hereby consent to become the next friend of A. B., to prose- cute on Ms behalf the action mentioned in the foregoing [or mihin] petition. D.T. Dated, &c. BOOK OF FORMS. 259 IN ACTIONS FOE PARTITION. No. 372. Affidavit of signatures. County, ss: E. G., of , &c., being duly sworn, says that on the , &c., he saw A. B., the infant named in the foregoing petition, sign his name thereto, the same having been first ■ read over to him, and at the same time \or,onthe day of. ] saw D. F. sign the consent thereunder written \or, thereon indorsed'^ to become next friend of said A. B., in the action named in said petition. E. G. Sworn, &c. No. 373. Order appointing guardian. In the matter of the petition ) -A-t a Special term,' &C of \ A. B., an infant. \ Present, &c. On reading and filing the petition of A. B., an infant of the age of fourteen years and upwards, praying for the appointment of D. F. as his next friend, to prosecute on his behalf a certain action of partition and sale against C. D. and others, heirs-at-law and parties interested in that certain farm, &o. [describing it as in the petition]. On motion of B. H. H., attorney for the petitioner, it is ordered that said D. F. be and he is appointed such next friend, to prosecute such action and conduct proceedings on the part of said infant, on his executing to the people of this State, ' In any other action than for a partition, the infant may be appointed by a judge out of court, as well as "by the court," according to the provisions of the Code. In case he is so appointed by a judge at chambers, the order will be without any caption. 260 BOOK OF FORMS. EI ACTIONS FOB PARTITION. and duly acknowledging and filing a bond in the penalty of $ , -with two sufficient sureties, to be approved by a justice of this court, as required by statute and the practice of this court. No. 374. Security of guardian.^ Know all men by these presents, that we, D. F., E. P. and Gr. H., aU of the city of , county, are held and firmly bound unto the people of the State of New York in the penal sum of two thousand dollars, for which payment well and truly to be made, we bind our heirs, executors and administra- tors, jointly and severally, firmly by these presents. Sealed witli our seals, and dated this day of Whereas, by an order of the Supreme Court made at special term, held at Albany on the, &c., said D. F. was appointed next friend of A. B., an infant, to prosecute in the Supreme Court a certain action of partition to be instituted on behalf of said infant, upon giving security as required by the statute and by the rules and practice of the court : Now, therefore, the condition of this obligation is such that if the said D. F. shall faithfully discharge the duties of his trust as such next friend, and render a just and true account thereof, in all courts and places when thereunto required, then this obli- gation to be void, otherwise to remain in full force and virtue. D. F. [L. s.] E. F. [L. s.] Sealed and delivered in ) Gr. EL [l. s.] presence of j X Y. ' In any action other than for partition, the guardian may be appointed without security. In suph case, however, the defendant may require tlie guardian to fil« security. BOOK OF FORMS. 261 TO ACTIONS FOE PARTITION. (Add acknowledgment; also justification of the sureties, aa follows :) County, 55. • B. F. and G-. H., of the , &c., being severally duly sworn, each for himself, severally says : The said B. B., for himself, says that he is a freeholder [or householder] of the said county of , and is worth the sum of four thousand dollars over and above all debts and liabilities. And the said Gr. H., for himself, says that he is a freeholder [orhouse- kolder] of said county, and is worth the sum of four thousand dollars over and above all debts and liabilities. E. F. Severally sworn, &c. G. H. No. 375. Petition hy relative of infant defendant for appointment of guardian ad litem. [Title.] To the Supreme Coivrt of the State of New York: The petition of E. A. B., the mother of A. B., an infant, tinder the age of fourteen years, and with whom said infant resides, respectfully showeth: That said A. B. was twelve years of age on the, &c. ; That an action has been commenced against said infant in the Supreme Court, by Gr. D., for {here state cause of action'], and that the summons therein was served on said infant and on your petitioner, on the, &c. ; and no guardian ad litem has been ap- pointed for said infant [and he has no general or testamentary guar- dian]. Wherefore your petitioner prays that C. D., of the city of . . . ., an attorney and counselor [or the general guardian, if there be one], be appointed guardian ad litem of said infant, to defend said action in his behalf. B. A,B. 262 BOOK OF FOEMS, IN ACTIONS FOE PAKTITION. . County, ss. ; E. A. B., being duly sworn, says that she has read {or has heard read] the foregoing petition subscribed by her, and knows the contents thereof, and that the same is true of her own knowledge, except the matters set forth on information and belief, and as to these matters she believes it to be true. E. A.B. Sworn, && (Add consent of guardian and affidavit of signature thereto.) No. 376. Petition of 'phwUff or other party to appoint guardian for infant defendant, on his neglect to apply within twenty days, [Title.] To the Supreme Court of the State of New Yoric: The petition of A. B., of .... , &o., respectfully showeth : That your petitioner has commenced an action in the Supreme Court, against C. D., and others, for [here state cause of action], the said C. D. being an infant under the age of twenty-one years, and of the age of sixteen years, who resides with his mother, at , &c., and has no general or testamentary guardian ; That the summons in said action was served on said C. D. more than twenty days since, and said 0. D. has not, nor has any relative, guardian, or friend for him, applied for the appoint- ment of a guardian ad litem to defend said action on his behalf Your petitioner, therefore, prays that the clerk of this court, residing in county, or some other suitable or proper person, be appointed guardian of said C. D., to defend said action. A.B. Dated, &c. (Add verification.) BOOK OF FORMS. 263 m ACTIONS FOR PAP.TITIOIT. No. 377. S^otice to minor, w general guardian {if there be one), of motion to appoint guardian. [Title.] Take notice, that upon a petition, with a copy of which you are herewith served, and the summons and proceedings in this action, a motion will be made at the next special term of the Supreme Court, appointed to be held at the City Hall, iu the city of , on the last of instant, at the opening of the court on that day, or as soon thereafter as coun- sel can be heard, for an order appointing' the clerk of this court, or such other proper person as the court may designate, guar- dian ad litem of \i/ou] the said infant, to defend said action. Yours, (Sec, B. H. H. Phiniiff's Attorney. Dated, &c., To A. B., infant defendant, [Or G. D., general guardian of A. J5.] No. 378. Order appointing guardian. At special term, &c. Present, &c., [Title.] On reading and filing petition of , &o., the plaintiff in this action, proof of service of copy thereof, and of service of ten ' Iu cases other than partition, eight days' notice. 264 BOOK OF FOKMS. IN ACTIONS rOK PARTITION. days' notice' of this motion, on said infant [or on G. D., his gene- ral guardian], no one appearing to oppose, on motion of , Esq., attorney for plaintiff, it is ordered that , the clerk of this court, residing in the county oi [or some competent attorney, whom the court may desig^ 7mte\, be, and he is, appointed guardian ad litem of said, &c. [conclude as in No. 378.] No. 379. Security of guardian. (Same as No. 374, except substituting the ■word guardian for next friend, and making the necessary alteration in the recital "to defend a certain action," &c., instead of " to prosecute," &c.) (Add acknowledgment, and justification of sureties.) No. 380. Affidavit for motion hy plaintiff to appoint guardian for non-resident infant defendant.^ [Title.] County, ss: A. B,, of , &c. [or attorney fori, *^^ plaintiff in the above entitled action, being duly sworn, says that this action is brought for the partition of certain real estate situate in the said county of , in which county the place of trial is laid ; that the defendant, C. D., is seized in fee simple of an interest as tenant in common in said premises ; that said 0. D. is not a resident of the State of New York, but resides with his mother, B. F., in the State of Ohio, in the town of &c., [specifying the place, if known ; or, if not known, insert " hut the place of residence of said infant is not known to deponent, nor has • Under § 116 of the Code, as amended by the Laws of 1862, BOOK OF FORMS. 265 IN ACTIONS rOR PASTITION. he been able, after diligent inquiry of the relatives of said infant and other persons, to ascertain the same'] ; that this action was com- menced against said infant by order that the summons be pub- lished for six weeks ; and the first publication of the same was made on the . . . day of , &c., and that no notice of appearance, or notice of the appointment of a guardian for said infant has been received in said action, and no guardian has been appointed or applied for, to the knowledge or belief of the depo- nent. A.B. Sworn, &c. No. 381. Order appointing a guardian therein. At a special term, &c. Present, &c. [TiTEB.] On reading and filing the affidavit of A. B., the plaintiff in the above entitled cause, setting forth, among other things, that C. D., one of the above named defendants, is a non-resident infant, and that no guardian has been appointed for him in this action ; on motion of B. H. M., plaintiff's attorney, it is ordered that J. L. F., of the city of , counselor-at-law, be appointed guardian ad litem of said infant defendant for the purposes of this action, unless the said defendant, or some one in his behalf, within twenty days after service of a copy of this order in the manner herein directed, procure a guardian ad litem to be appointed, and give notice thereof to the plaintiff's attorney.' ' This notice is not required by the statute, but it is very proper to insert su6h requirement in the order, so that if no notice of the appointment of a guardian be received within the time limited, the person appointed on the plaintiff's application may act as such, and put in an answer. Si 266 BOOK OF FORMS. IN ACTIONS FOE PARTITION. It is further ordered that this order be served on said infant, either by personal service on B. F., the toother of said infant, with whom he resides, or by depositing a copy thereof in the post office at , properly inclosed in an envelope, with postage prepaid, and directed to said B. F., at her place of residence; to wit, the town of , &c. [or specifying such other' mode of service as the court shall direct'] ; and that said guardian execute to the people of this State, and duly acknowledge and file a bond, &c. No. 382. Summons {complaint not served), with notice of object of action. (The summons will be the same as in No. 394, except that the words, " a copy of which is hereto annexed," are to be omitted, and the words, "which will be filed in the ofiSce of the clerk of county," inserted ; or, if an order of publication has been allowed, " which was filed in the ofiSce of the clerk of county, on the day of " The notice of object of action is written immediately under the summons, and is as follows :) To A.,B., one of the defendants in the above entitled action: Take notice that the object of the action, entitled in the above summons, is to obtain the partition, or the sale, if partition can- not be made without prejudice to the interest of the owners, of certain real estate situate in the town of , &c., &c. \briefly describing the real estate, either by metes and bounds, or some general description or boundary]. And that no personal claim is made against you. B. H. H., Plaintiffs Attorney. Dated, &c. BOOK OF FORMS. 267 IN ACTIONS FOK PARTITION. No. 383. Affidavit for order of pvblication where the defendant is a non- resident.^ [Title.] County, ss : A. B., the plaintiff in the above entitled action, being duly sworn, says that the action is brought for a partition of real estate, situated in , in said county, in which county the place of trial is laid, and of which real estate the plaintiff and defendant [except the defendant E. G. B., who has only a life estate on an undivided part of said premises'] are seized in fee simple as tenants in common ; that the defendant, H. B., is tenant in common, and one of the owners of an undi- vided portion of said premises;* that said defendant is not a resident of the State of New York, but resides at , in the state of , and is not to be found within this state, to the knowledge, information, or belief of deponent. A. B. Sworn, &o. No. 384 Sarne where defendant's last known place of residence loas in this State, and his present place of residence is unknown. [Same as foregoing down to the*, and then add] That the last known place of residence of said defendant was at , in the county of , where he has a wife and family still residing; that said defendant is not to be found within said county of , as appears by the return of the sheriff of said county to the summons heretofore delivered to said sheriff ' Code, § 135, sub. 4. 268 BOOK OF FORMS. IN ACTIONS FOR PARTITION. to be served on said defendant, and hereto annexed; and said defendant cannot be found within this state, and his present place of abode is unknown, to the best of deponent's knowledge, information and belief, such belief being founded on diligent inquiry made by deponent of the wife of said defendant, and information received by deponent from her and others residing in the vicinity,' acquainted with said defendant ; that he left his family some six months ago with the avowed intention of going to some one of the western states, with the view of locating him- self there ; since which time nothing has been heard from him [or, stating any other facts showing that he cannot, after "due dili- gence " used, and inquiry mads, be found]. A.B. Sworn, &c. No. 385. The same in case of "unknown oumers." [Title.] County, ss : A. B., the plaintiff in the above entitled action, being duly sworn, says that the action is brought for partition of certain premises and real estate, situate, &c. [as in No. 386]. That the heirs-at-law of P. B., deceased, whose names and places of residence are unknown to the plaintiff, and cannot, although he has made diligent inquiries for that purpose, be ascertained, are seized in fee simple as tenants in common, collectively, of the equal undivided one-tenth part of said pre- mises, being the share to which P. B., had he lived, would have been entitled. That deponent, on inquiry of some of the other tenants in common, to wit : E. H. B. and S. T., the brother and sister of said P. B., has learned in substance, that, &c., &c. [stating the facts, and sources of irformation']. A.B. Sworn, &C. BOOK OF FORMS. 269 IN ACTIONS FOE PARTITION. No. 386. Orckr of publication. [Title.]' It appearing to my satisfaction, by the affidavit of A. B., the above named plaintiff [or, by the affidavit of A. B., and sheriff's return to the summons thereto annexed], that H. B., one of the above named defendants, has an interest as tenant in common in certain real estate, sought to be partitioned in this action, situated in the county of , and that said H. B. is not a resident of this state, but at , in the state of [or, that said H. B. cannot, after due diligence, be found, and the place of his present residence is not known, and cannot, with reasonable diligence, be ascertained] : I do order that the summons in this action be served on the said defendant, H. B., by publishing the same in the , a newspaper published in the city of ; and , a newspaper published in the city of , once a week, for six weeks successively ; and that a copy of the summons and complaint in this action, properly inclosed or enveloped, be forthwith" deposited in the post-office, at the city of , directed to said defendant, H. B., at his place of residence, to wit : , and the postage paid thereon.' Justice of Supreme Court. Dated, &c. ' If the order is made in court it will have the usual caption, as in No. 367, ante ; otherwise, when made, as in this form, by a judge at chambers not holding a special term of the court. " See as to meaning of term "forthwith," Van WycJc v. Hardy (20 How., 222 ; ante, p.) ° If it appears from the affidavit that the defendant's residence is unknown, and cannot with reasonable diligence be ascertained, the part of this order is, of course, to be omitted. 270 BOOK OF POEMS. IN ACTIONS rOE PARTITION. No. 387. /Same as to " unknown owners." [Title.] It appearing to my satisfaction, by the affidavit of A. B., the above named plaintiff, that this action is brought for a partition of certain real estate, situate in, &c., and that there are certain persons, to wit, the heirs-at-law of P. B., deceased, who have an interest, as tenants in common, in the premises sought to be par- titioned, and whose names and places of residence are unknown, and who cannot, after due diligence, be found, I do order that the summons in this action be served upon such unknown owners, by publishing the said summons once a week, for eight weeks successively,' in two newspapers hereby designated by me as most likely to give notice to such unknown owners, to wit : the state paper, the , a daily newspaper published in the city of ; and- the , a daily newspaper published in the city of Justice of Supreme Court. Dated, &o. No. 388. Affidavit of personal service of summons, &c. [Title.] County, ss : W. L. K., of the city of ..... in said county, being duly sworn, says, that on the day of , he personally served on E. B., L. A. B., and C. B., three of the defendants in the above entitled cause, and who are * Not less than once a week for tix weeks. ' Code, § 135. BOOK OF FORMS. 271 IN ACTIONS FOB PARTITION. all personally knowa to deponent to be the said named defend- ants, the annexed summons and notice of object of suit [or com- plaint], by delivering to and leaving with each of said defendants a copy of such summons and notice, on the said defendant E. B., in the public highway, in the town of , in said county, and on the defendants L. A. B. and C. B., at their respective places of residence, in the city of W. L. K. Sworn, &o. No. 389. 77ie like, on in/ant under fourteen.^ [Title.] [Same as above, and aM:'] And on the defendant P. D. B., who is an infant under the age of fourteen years, and personally known to defendant, by delivering to and leaving with said infant, also his father, L. B., to deponent personally known, with whom said infant resides, each a copy of said summons and notice, at, &c. [Or, if he has no father, mother, or guardian, add: on J. A. B., to deponent also personally known, who is of full age, and has the care of said infant, and with whom said infant resides, ly delivering to and leaving with him copies thereof, at, etc.] W. L. K. Sworn, &c. ' Code, § 133, sub. 2. 272 BOOK OP FORMS. IN ACTIONS FOE PARTITION. No. 390. &ime, on corporation.'^ [Title.] [Same as above, and then add:'] And that such service -was made on the defendant, the , by delivering to and leaving with , Esq., who is the president thereof [or the cashier, or a director of the banJc], to deponent personally known, a copy of said summons and notice, at the banking house of said bank, in the city of W. L. K. Sworn, &c. (If service be made on the " managing agent " of a corporation, the affidavit should state that he is the general agent of the cor- poration, and has the charge and management of its general business.') No. 391. Affidavit of publication. [Title.] County, ss: .* . . . , of the city of , being duly sworn, says that he is the printer and publisher of the , a daily nQ\J!Spaper?pUblished in the city of , and that the summons hereto; annexed has been regularly pub- lished in said newspaper, once« week, for six weeks successively, commencing on the day of , and ending on the day of , the day of the last publication thereof. Sworn, &c. • Code, § 134^ sub. 1. BOOK OF FORMS, 273 IN ACTIONS FOE PARTITIOK. No. 392. Affidavit of mailing summons and complaint. [Title.] CoiTNTT, ss: B. H. H., of, &o., one of t^e attorneys of the plaintiff, being duly sworn, says, that pursuant to the order of publication heretofore made in this action, he deposited in the post;office at the city of , on the day of ,' a copy of the annexed summons and complaint, pro- perly folded and enveloped, and directed to the said defendant, B. C , with postage paid thereon. B. H. H. Sworn, &0. No. 393. JSfbtice of lis pendens. [Title.] Notice is hereby given to all whom it may concern, that this action is brought against the defendants in the above entitled action, for the purpose of obtaining a partition and division of the premises therein described, among the owners thereof, by commissioners to be appointed for that purpose ; or for a sale thereof, under the direction of this court, and for a division of the proceeds of such sale amdng such owners, according to their several and respective rights and interests therein ; which pre- mises are described in the complaint, as follows, to wit : \insert description.'] B. H. H., Phintiff^s Attorney. Dated, &c. ' A delay of four days after granting the order, in mailing the summons and complaint, -where an excuse for the delay was shown, has been held a sufficient compliance with the statute, which requires the mailing to be forik' toil*. 7oB Wyck v. Bardy, How., 222. 35 274 BOOK OF FORMS. m ACTIONS FOB PARTITION. No 394. Affidavit of filing notice of lis pendens. [Title.] County, ss : B. H. H., the plaintiff's attorney in the above cause, being duly sworn, says,, that this action was brought to obtain a partition or sale of the premises described in the complaint therein. That a notice of the pendency of this suit, and of the general object thereof, and containing a descrip" tion of the land sought to be partitioned, or sold, as the same is described in the complaint, was filed in the office of the clerk of county in which the premises are situated, on the day of last. That at the time of filing the said notice, the premises described therein were, and now are, situated in the town of , in the said county of ; and that, since the filing of the said notice, the complaint in this cause has not been amended by making new parties to the suit, or so as to affect other property not described in the original complaint. B. H. H. Sworn, &c. (Or the affidavit may be annexed to a copy of the notice, as follows :) CounTTT, ss: B. H. K, plaintiff's attorney, being duly sworn, says that a notice of lis pendens, of which the an- nexed is a copy, was, on the day of , filed in the office of the clerk of the county of ......... in which county the said premises are situated, to wit, in the town of in said county. B. H. H. BOOK OF FORMS. 275 IN ACTIONS FOB PARTITION. No. 395. Complaint in a partition suit. SUPREME COURT— County of : [Title.] The above named plaintiff complains of the above named defendants as follows, that is to say : That B. B., now deceased, late of the town of , in the county of , was in his lifetime, and at the time of his death, seized in fee simple, and possessed of certain premises known and described as fol- lows : All that certain farm, piece or parcel of land, situate, &c. [describing the premises]. That the said B. B. died intestate, some time during the year ; that he left him surviving, his widow, the said S. B., and the following children, viz. : The said M., now the wife of N. C, the said M., now the wife of J. "W., the said U., now the wife of W. J. S., the said C. B., the said T. B., the said J. F. B., the said W. B., &c. {setting forth the names of the heirs]. That the said B. B., deceased, left no last will and testament, or any other instrument in the nature of an appointment direct- ing the disposition of said real estate, or any part thereof, to the knowledge, information or belief of the plaintiff. The plaintiff further alleges, that a judgment was obtained in the Supreme Court of this State, in favor of Gr. N. S., the said plaintiff, against E. B., one of the said children of B. B., deceased, on the, &o. [setting forth generally the proceedings to judgment and execution and sale, whereby title was acquired by the plaintiff' as purchaser of the share of said R. B., one of the tenants in common]. The plaintiff further alleges that the names and places of resi- dence of such of the heirs of the said B. B., deceased, as are known to the said plaintiff, and as far as can be ascertained by him, are respectively, as the said plaintiff is informed and be- lieves, as follows : [stating the name and place of residence of each defendant}. 276 BOOK OF FOEMS. IN ACTIONS FOB PARTITION. The plaintifif further alleges that he, the said plaintiff, by virtue of the said sheriff's deed, is the owner of all the estate, right, title and interest of the said E. B., in said premises, that is to say, of the ecjual, undivided one-twelfth part of said premises of which the said E. B., is seized as tenant in common, subject, however, to the right of dower of the said S. B., widow of the said B. B., deceased ; that, as plaintiff is also informed and be- lieves, the said M. M., M. W., U. S., C. B., J. P. B., T. B., W. B., &c., are each seized in fee simple as tenants in common, of the equal undivided one-twelfth part of said premises,, subject, however, to the right of dower of the said S. B., widow of the said B. B., deceased; that, as plaintiff is also informed and believes, the dower of the said widow in the premises above described, has never been admeasured, or in any way set apart to her from the estate of the said B. B., deceased. Wherefore the plaintiff demands judgment that partition and division of the above described premises may be made according to the course and practice of this courl^ and the statute in such case rnade and provided, by commissioners to be appointed for that purpose ; and in case it shall appear that a partition thereof cannot be made without material injury to the rights of the parties interested therein, then, tha;t the said premises may be adjudged to be sold under the direction of this court, and the proceeds of the sale, after paying the costs and charges of this suit, to be divided among the said parties, according to their respective rights and interests therein, and that to that end the rights and interests of the parties interested in the said premises, or in the proceeds thereof, may be ascertained and declared by the judgment of this court ; and that the said plaintiff may have such other relief, or such further relief, in the premises, as the nature of the case may require. B. H. H. Plaintiff^s Attomty. BOOK OF FORMS. 277 IN ACTIONS rOK PARTITION. Yerijicathn hy attorney. CoTJNTT, ss: B. H. H., of the , attorney for the plaintiff, being duly gworn, says, that the Said plaintiff is not a resident of the county of , where said deponent resides, and that the said plaintiff is absent from the said county of ...... . ., as deponent believes, and therefore this verification is made by deponent ; that the foregoing complaint is true to deponent's knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true ; that the grounds of deponent's belief are, that he has had personal inspection of most of the written instruments refer- red to in the said complaint, and has the original of the sheriff's deed, referred to in said complaint, in his possession, and as to the rest of the matters set forth on information and belief, depo- nent has of some of the matters personal knowledge, and of the residue has obtained information from the plaintiff in this suit, and from various persons of credibility, in answer to particular inquiries made in respect thereto. B. H.H. Sworn before me this day ) of ,18.., f C. L. A., Commissioner of Deeds. No. 396. Complaint in case of owners unknown. \Title as in the foregoing, adding thereto, " and the heirs of A. S., deceased, whose names and places of residence are unknown to the plaintiff."'] [The complaint will he similar in its form to the foregoing, adding, however, some clause to indicate generally, or as far as known, tlie nature and extent of the interest of such unknown owners, as, for example, the foVovaing :] 278 BOOK OF FORMS. IN ACTIONS FOR PARTITION. The plaintiff furtlier alleges, on information and belief, that A. B., who was the son of, &c., and entitled, in his lifetime, to the, equal undivided one part of said premises, several years since left the state of , with the intention of residing in, &c., &c. [stating the circumstances as far as known.} That said A. B., subsequently married and had children, some of whom are now living, but their names and places of residence are wholly unknown to the plaintiff, and, although he has made diligent inquiries for that purpose, he cannot ascertain the same or either of them ; that said A. B., and his said wife, are now deceased ; and that said children, or the heirs-at-law of any who may be dead, are collectively entitled to the undivided part of said premises, being the portion thereof that said A. B. would be entitled to if living.' No. 397. Affidavit to move for order of reference on default, where all the defendants are of full age and resident. ISame as the above, and then add-] And that all the defendants are of full age, and have been personally served with the sum- mons, and reside within this state, and that none have appeared therein except, &c., who has made default as aforesaid. ' It is always advisable to set forth, as far as can be ascertained, the titles and interests of unknown owners ; but it has been held that an averment that there are " certain unknown owners," without setting forth their exact inte- rests in the premises, is sufficient. Byatt v Pugshy, 23 Barb., 303. BOOK OF FORMS. 279 IN ACTIONS FOR PARTITION. No. 398. The same where some of the defendants are infants, absentees or unknown. [Same as in No. 897, and then add/] That the defendants, S. H. and B. H., are infants, and have put in the usual answer by Gr. M. D., their guardian ad litem, not controverting any material allegation of the complaint, and submitting their interests to the protection of the court ; and that all the rest of the defendants are of full age, and have been personally served with the sum- mons, and reside within this state [or, that the defendants, P. Hi and R. H., are non-residents, and have been served by publication of the summons, pursuant to an order directing sxich service, in the form and manner prescribed by law; or, that some of the defendants ■ are owners unlcnoiun, and have been served by picblication, &c., as the case may be\. No. 399. Affidavit that two or more parties desire their shares set off in common.^ (Laws of 1847, p. 556.) [Title.] County, ss : A. B., the plaintiff in the above entitled action, being duly sworn, says that the action is for a partition of real estate, situate in the town of . . . . , in said county, owned in fee simple by the plaintiff and defendants as tenants in common [or, " by plaintiff and defendants, except the defendant, L. D., who has a dower interest therein ;" or otJierwise, as ' This affidavit may very properly be embraced in the ordinary affidavit on wliich the motion for reference is made, that the defendants are all of full age, and resident as in No. 398 ; or, that there are infants or absentees as in No. 400, and a general order of reference made, to include these matters, as well as those required by the 78th Eule. 280 BOOK OF FORMS. IN ACTIONS FOR PAETITION. the fact may be.] That this deponent, and the defendant, G. B., are each seized in fee simple of the equal undivided, &c. [stating such interest'], and are desirous of having their shares and interests in said premises set off to them in common, without partition or allotment as between themselves, which, in the opinion of depo- nent, is practicable, and can be done without injury to the inte- rests of any of the parties. A.B. Sworn, &o. No. 400. Notice of motion for the relief demanded in the complaint^ and for an order of reference in case of default. [Title.] To J. L. P., attorney for defendant, C. S., and others; J. H. E., attorney for guardian ad litem of 0. B. an infant defendant: SiES — ;Take notice that upon the pleadings and proceedings in this cause, and the usual proof of due service of the summons upon all the defendants, and the affidavit, with a copy of which you are herewith served, the plaintiff will apply at the next special term of this court, appointed to be held at the City Hall, in the city of Albany, on the last Tuesday of September, A. D. 1862, at the opening of the court on that day, for the relief de- manded in the complaintj and for the usual order of reference, under the 78th rule of this court, [If an applicatitm he made to set off two or mare shades in common, add:] And that the referee be directed to ascertain and report whether the shares of B. C. and Gr. 0. are so situated that they may be set off in common to them, without injury to the interests of the other parties. B. H. H. Plaintiff ^s Attorney. Dated, &6. BOOK OF FOEMS. 281 IN ACTIONS FOK PARTITION. No. 401. Order of reference, on default, where there are no infants or absentees. At a special term, &c. Present, &o. [TrruB.] On reading and filing proof of personal service of summons on all tlie defendants, and that notice of lis pendens has been filed more than twenty days, and an affidavit showing that this action is brought for a partition of certain real estate described in the complaint herein, and that all the defeqdants are residents of this state, and of full age,* and that no answer has been received on behalf of any defendant {except the defendant, C. B., who has put in his answer, in which the rights and interests of the several parties, as stated in tlie complaint, are not contested or denied^ ; on motion of B. H. H., Esq., plaintiff's attorney, ordered that it be referred to , Esq., counselor-at-law, of the city of Albany, to take proof of the title of the respective parties in the premises, in the complaint mentioned, and report thereon to the court, with an abstract of the conveyances by which the title is held. {And it is further ordered, that the referee he at liberty to proceed on such reference, in the county of Albany.^'] * This clause is properly inserted where it is intended to have the reference in a county other than that in which the place of trial is laid. Eule 24. 36 282 BOOK OP FORMS, IN ACTIONS rOE PARTITION. No. 402. The nice, where tk&^e are infants, unknown owners, or absentees, under the seventy-eighth rule. At a special term, &c. Present, &c. [Title.] [Proceed as in the foregoing, to the *, then add] : except the de- fendant, ** G. B., who is an infant under the age of twenty-one years [or who is an absentee, and has been served by publication ; or heirs of, &c., &c., unknown ovmers, as the case may be\ ; and that no answer has been received on behalf of any of the defendants, except the said infant, who has put in the usual general answer by his guardian ad litem, on motion of, &c., ordered that it be referred to, &c., to take proof of the plaintiff's title and interest in and to said premises, mentioned in the complaint, and of the several matters therein set forth ; and to ascertain and report what share of the said premises belongs to each of the parties to this action, so far as the same can be ascertained, and the nature and extent of their respective rights and interests, and report thereon to the court, with an abstract of the conveyances by which the said title is held. BOOK OP FORMS. 283 IN ACTIONS FOB PARTITION. No. 403. Order of reference when (wo or more parties desire their shares to he set off in common. (See No. 401.) \Same as in the foregoing, and add] : And it is further ordered tliat the said referee ascertain whether the said premises are so situated that the shares of the said plaintiff, and of the defendant, G. C. B., can be set off in common, without partition or allotment between them, and without injury to the interests of any of the parties, and that he report the facts, with his opinion thereon, to the end that such further order may be made in the premises as shall be just and necessary. No. 404. Beport of referee. [Title.] To th6 iSapreme Court of the State of New York : The undersigned, referee, to whom, by an order of this court in the above entitled action, bearing date on, &c., it was referred among other things to take proof of the plaintiff's title and the several matters set forth in the complaint, respectfully reports, that having been attended by the attorney for the plaintiff, I proqeeded to a hearing of the matter so referred (on due notice given to the attorneys of such of the defendants as have appeared in the action), and having taken proofs and duly examined the matters so referred, I find and report that the material allegations set forth in the complaint are true. And I further report that the respective estate and interest of the several parties in the premises are as follows: [set forth the same as in No. 416.] 284 BOOK OF FORMS, IN ACTIONS FOR PARTITION. I further report that the premises are so situated that a parti- tion thereof can, in my opinion, be made without material injury to the rights and interests of any of the parties, the same being a farm containing, &c., &c. [stating iriefly the facts ; and, if the. order of reference, require it, stating also the facts to show that two or more shares may set off in common, without injury to the interests of any of the parties.] The schedule hereto annexed contains an abstract of the con- veyance by which the title to said premises is held. All which is respectfully submitted. Dated, &o. H.E Referee. No. 405. Notice of filing report under the thirty-second rule. [Title.] To , Mq., attorney for defendant, B. C. : Sib — Take notice that the report of the referee to whom it was referred to take proof of title, &c., in this action, and report the same to the court with an abstract of the conveyances by which the same was held, which report bears date on the day of . . , was filed in the office of the clerk of county, on the day of Yours, &C., B. H. H. ^ , . Ptaintiff^s Attorney. Dated, &c. "" " BOOK OF FORMS. 285 IN ACTIONS fOE PARTITION, No. 406. Notice of hearing on the coming in of the report. [Title.] To, &c. : Sib — Take notice that the above entitled cause will be brought on for hearing, and application will be made for judgment for the r.elief demanded in the complaint, that is to say, for a partition of the premises described in said complaint, upon the pleadings and proceedings in this action, the order of reference, and the re- port of the referee thereon, at- the iiext special term of this court appointed to be held at the City Hall, in the city of Albany, on the last Tuesday of October, A. D. 1862, at the opening of the court on that day, or as soon thereafter as counsel can be heard, and a motion will then and there be made for the appoint- ment, by the court, of three reputable freeholders, commissioners to make partition of the premises described in the complaint, according to the respective rights andsinterests of the parties to be adjudged by the said court. Yours, &o., B. H. H., Plaintiffs Attorney. Dated, &o. No. 407. Affidavit of service of same. [Title.] County, ss: B. H. H., of, &c., attorney for the plaintiff, being duly sworn, says that on the, &o., he personally served on N. F., Esq., attorney for the defendant, B. C, a copy 286 BOOK OF FORMS. IN ACTIONS FOR PARTITION. of the annexed [or within} notice, at the city of [or left a copy of the annexed notice with D. E., a stiident-at-law of N. F., Esq., attorney for the defendant, at the office of said N. F., in the city of ,he, the said N". F., being, at the time, absent from his said office ; or, state in what other way such service was made}. B. H. H. Sworn, &c. No. 408. Affidavit for reference when sale is necessary, under the seventy-ninth rule. [As in Nos. 398 and 399, to the end, then add:} And this depo- nent further saith, as he has been informed and believes that [one of the lots or separate parcels of} the premises mentioned in the said complaint [to wit, the house, and lot in the city of Albany, which will exceed in value the share to which either of the tenants in cpm- mon thereof will he entitled}, are so circumstanced, that a partition thereof cannot be made without great prejudice to the owners, due regard being had to the power of the court to adjudge com- pensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to produce such equality. No. 409. Order of reference thereon, under the seventy-ninth rule. At a special term, &c. Present, &o. [Title.] [As in No. 403 to the end, then add:} And it is further ordered, that the said referee inquire and report whether the said premises BOOK OF FORMS. 287 IN ACTIONS FOR PARTITION. or any lot or separate parcel thereof, are so circumstanced that an actual partition cannot be made ; and if the said referee arrives at the conclusion that a sale of the whole premises, or of any lot or separate parcel thereof, -will be necessary, that he specify the same in his report, together with the reasons which render a sale necessary ; and in such a case that he also ascertain and report whether any creditor, not a party to this suit, has a specific lien, by mortgage, devise, or otherwise, upon the undivided share or interest, of any of the parties in that portion of the premises which it is necessary to sell ; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to any general lien or incumbrance, by judgment or decree. And it is further ordered that such referee ascertain and report the amount due to any party to the suit, who has either a general or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and who shall appear and establish his claim, on such reference. And it is further ordered that the said referee, if requested by the parties who appear before him on such reference, shall also ascertain and report the amount due to any creditor, not a party to the suit, which is either a specific or general lien or incum- brance upon all the shares or interests of the parties in the pre- mises to be sold, and which would remain as an incumbrance thereon in the hands of the purchaser. No. 410. Notice of hearing before referee. [Title.] To J. H. E., Esq., attorney for guardian ad litem, of infant defend- ant, A. L. : SiH — Take notice that the proceedings on the order of reference heretofore made in this action, whereby it was referred to C. E. 288 BOOK OF FOEMS. IN ACTIONS FOE PAETITION. I., Esq., referee, among other things, to take proof of title of the premises sought to be partitioned, and to ascertain and report "whether the same are so situated that a sale thereof is necessary, under the provisions of the 79th rule of this court, will be had before the said referee, at his office, in the city of . . .., on the day of next, at 10 o'clock-, a. m. Yours, &c., B. H. H. Plaintiff's Attorney Dated, &c. No. 411. Notice ly referee to creditors having general liens or incumbfances. [Title.] In pursuance and by virtue of an order of this court, made in the above cause, on the day of last, notice is hereby given to all persons having any general lien or incum- brance, by judgment or decree, or otherwise, on the undivided share or interest of any of the owners, in the premises herein- after described, to produce to me, the undersigned, on or before the day of next, at my office in the city of , in the county of , proof of their respective liens and incumbrances, together with satisfactory evidence of the amount due thereon ; and to specify the nature of such incum- brances, and the dates thereof respectively. The said premises are described in the complaint as follows : \insert description.] J. K. P., Eeferee. Dated, &c. BOOK OF FORMS. 289 IN ACTIONS POE PAETITION. No. 412. Report by referee that sale is necessary. [Title.] To the Supreme Court of the State of New York : In pursuance of an order of this court, made in the above cause, on the day of . . ; last, by which it was referred to ...,...., residing in the county of , among other things, to take proof of the plaintiff's title and interest, in and to the premises in the complaint mentioned, and of the several matters set forth in the said complaint, and to ascertain and report -what share or part of the said premises belongs to each of the parties to this suit, so far as the same could be ascer- tained, and the nature and extent of their respective rights and interests therein, and an abstract of the conveyances by ■which the same are held ; and, also, to inquire and report whether the said premises, or any lot or separate parcel thereof, are so circum- stanced that an actual partition thereof cannot be made ; and if the said referee should arrive at the conclusion that a sale of the whole of said premises, or of any lot or separate parcel thereof, will be necessary, that he specify the same in his report, together with the reasons rendering a sale necessary ; and, in such a case, that he also ascertain and report whether any creditor, not a party to this suit, has a specific lien on the undivided share or interest of any of the parties in that portion of the premises which it is necessary to sell ; and if no such lien should be found, that he farther inquire and report whether the undivided share or interest of any of the parties in the premises, is subject to any general lien or incumbrance by judgment or decree ; and that he ascer- tain and report the amount due to any party to this suit, who has either a general or specific lien on the premises to be sold, or any part thereof; and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and who should appear and establish his 37 290 BOOK OF FOEMS. IN ACTIONS FOR PARTITION. claim oa said reference ; and, if requested by the parties appear- ing Jaefore him on such reference, to ascertain and report the amount due to any creditor, not a party to this suit, which is either a specific or general lien or incumbrance upon all the shares or interests of the parties in the premises to be sold, and which would remain as an incumbrance thereon, in the hands of the purchaser; I the subscriber, ., residing in the county of , to whom the execution of the said order was committed, do respectfully report : That having been attended by the attorneys for the several parties who appeared in the cause, I proceeded to a hearing of the matters so referred, after having caused a notice to be pub- lished as required by law, for all general lien creditors, by judg- ment, decree, or otherwise, on the undivided share or interest of any of the parties in the premises, to produce to me proof of their respective liens and incumbrances, together with satisfactory evidence of the amount due thereon, and to specify the nature of such incumbrances, and the dates thereof respectively. I further report, that on such hearing, I took proof as to the facts stated in the complaint, and find that the material facts therein set forth are true. And I further certify and report, that the following is an ab- stract of the conveyances by which the premises described in the bill of complaint are held, that is to say* (No. 1.) p. D. ) to > S. S. D.) The last will and testament of P. D., the common source of title, who died seized^-having in his possession, claiming to own the premises more than twenty years. By such will, he devised his real estate as follows : " I give and bequeath unto my wife P., the use of the farm I now occupy and possess, during her natural life. I give and devise unto my son S. S. D., and his heirs, the faym I now occupy, after the death of his mother." Dated January 22, 1829. The testator's widow died in posses- BOOK OP FORMS. 291 IN ACTIONS FOR PAHTITION. sion, August 3, 1842, wliereupon S. S. D. became seized of the premises in fee. (No. 2.) S. S. D., died on the 24:tli of January, 1842, intestate, and without issue. He left three sisters: E., wife of T. P., the plaintiff; S., widow of S. M. ; E., widow of S. P. ; and one brother, J. D., together with the children and representatives of H. D., a brother previously deceased. These representatives were 0. D., M. D., G-. D. ; E., wife of G. K. The intestate, S. S. D., also left surviving the representatives of J, A. W., a daughter of N. D., who died before said intestate, and whose surviving children and heirs were E. Y. W. and M. B. W., who are infants, and of the respective ages stated in the complaint. (No. 3.) J. D. and S. his wife, ] to T. F., the plaintiff. Quit-claim deed, conveying their undivided share of the 106 acres mentioned in the complaint, dated October 17, 1842, acknowledged by wife, and executed by J. D., duly proved, con- sideration $1,750. The legal estate and interest of the parties in the premises are aa follows : T. F., the plaintiff, as grantee of S. D. and wife, is entitled to one undivided fifth. T. F., plaintiff, and E., his wife, in right of the said E., are entitled to one undivided fifth. The defendant, S. M., is entitled to one undivided fifth. The defendant, C. D., is entitled to one undivided twenty-fifth. The defendant, M. D., is entitled to one undivided twenty-fifth. The defendant, Gr. D., is entitled to one undivided twenty -fifth. The defendants, G. K and wife, are entitled, in right of the wife, to one undivided twenty-fifth. The defendant, E. Y. W., is entitled to one undivided fiftieth- The defendant, E. "W., is entitled to one undivided fiftieth. The estate is in the parties in fee, subject to the material inte- rests therein, which appear above. 292 BOOK OF FORMS. IN ACTIONS FOE PAETXTION. I further report, that the premises described in the complaint are so circumstanced that, in my opinion, a partition thereof can- not be made, without great prejudice to the owners thereof. The premises consist of about 105 acres of land, part of which is wood land. A part of the land is of inferior quality. It is about the proper size to be cultivated to advantage as a single farm. . There is but one dwelling house on the premises. These facts, in con- nection with the number of the owners in common, and the minuteness of the interests of the infants, being one-fiftieth each, render a partition very difficult, if not impracticable. I further report, that I have caused the necessary searches to be made, and I find that no creditor, not a party to the suit, has any specific lien by mortgage, devise, or otherwise, upon the undivided share or interest of any of the parties in the premises ; and that there is no general lien or incumbrance, by judgment or decree, upon the undivided share or interest of either of the parties in the premises. And I further report, that no creditor, not a party to this suit, having a general lien on any undivided share or interest in the premises, by judgment or decree, appeared before me, on the said reference, to establish his claim, in pursuance of the notice pub- lished by me as aforesaid. All which is respectfully submitted, J. K P., Referee. Dated, &c. No. 413. Notice of filing report and hearing. [Tm,B.] [Same as in No. 407, to the end, and then add.^ And that upon the said report and order of reference, and upon the pleadings and proceedings in this action, an application wiU be made for BOOK OF FORMS. 293 IN ACTIONS rOK PARTITION. final judgment for the relief demanded in the complaint, and for a sale of the premises sought to be partitioned in this action, according to the statute and the usual course of proceeding of this court, at the next Circuit Court and special term, appointed to be held at the court house, in the city of Troy, on the first Monday of October. A. d. 1862, at the opening of the court on that day, or as soon thereafter as counsel can be heard. Yours, &c., B. H. K, Plaintiff's Attorney. Dated, &c. No. 414 Exceptions to report. pDlTLB.] Exceptions taken by , the above named plain- tiff; \or , one of the defendants ; orhy , claiming a lien, by judgment, on the premises, &c., &c., as the case may ie,] to the report of J. K. P., Esq., referee, dated the, &c. First Eoxeption. The said excepts to the report of the said referee, in that the said referee has disallowed the claim and judgment of said against said B. C, for $ , damages, and costs rendered by the Supreme Court, on the , &c., whjch judgment was proved before said referee, and is a general lien on the undivided share and interest of said B. C, upon the premises sought to be partitioned ; whereas the said judgment ought to have been allowed by said referee and reported and declared by him to be a general lien upon said undivided share. Second Mcception. The said , further excepts to the finding and report of said referee, that the amount due upon a certain mortgage executed to him by said B. C, bearing date , &c,, proved before said referee, and which is a specific 294 BOOK OF FORMS. IN ACTIONS fOR PARTITION. lien upon the said undivided share of said B. C, is the sum of $ ; whereas the said claims and insists that the amount proved to be due on said mortgage is the sum of Third Exception. [Specifying distinctly each objectionable finding, either of fact or conclusion of law, set forth in the report^ Wherefore the said excepts to the said report' in the particulars above specified, and asks that the same may be reviewed and may be altogether set aside or modified in accordance with the above exceptions. , G. & A., Atfys for ,a creditor, not a party to the axAim^ No. 415. Notice ofargumient of exceptions hy party excepting. [TlTtE.] To B. H. H., Esq., Plaintiffs Attorney : SiK — ^Take notice that the exceptions to the report of J. K. P., Esq., the referee herein, bearing date the, &c., which excep- tions were made and filed on the, &c., will be brought on for argument at the next special term of this court, appointed to be held at the City Hall, in the city of Albany, on the, &c., at the opening of the court on that day, or as soon thereafter as counsel can be heard, and a motion made thereon, and upon the testimony taken before said referee, to reverse or modify the said report of said referee, in the particulars mentioned and specified in said exceptions, or for such other or further order in respect thereto as the court shall think proper to grant. Yours, &c., G. & A., Attomeysfor, &c. Dated, &o. ' The exceptions by a party to the action will be substantially in the same form, specifying particularly the portions of the report which are objectionable. BOOK OF FORMS. 295 IN ACTIONS rOR PARTITION. No. 416. Notice hy plaintiff of bringing cause to hearing on report of referee and exceptions. [Title.] To J. H. R., Esq., attorney for, dec, G. & A., attorneys for, &c. : SlES — Take notice, that tTie exceptions made and filed on the day of , to the report of J. K. P., referee herein, will be brought on for argument, and this cause brought to final hearing on the said exceptions and the testimony taken before the referee, the said report and reference herein, and on the pro- cess,, pleadings, proofe of service, &c., and other proceedings in this action, at the next special term of this court appointed to be held at the city hall, in the city of Albany, on the, &c., at the opening of the court, &c.,* and application then and there made for a final judgment of sale of the premises mentioned in said complaint, and distribution of the proceeds thereo pursuant to the said report of said referee, with costs, to be apportioned and taxed according to the usual course of practice of the court, or for such other and further, &c. [as in No. 415.] Yours, &c., B. H. H., Plaintiff^ s Attorney. Dated, &c.. No. 417. The like where exceptions to the referee's report have been taken by the plaintiff. [Title.] [The same as in the foregoing down to the*, then add:] And a motion will be made thereon to modify the said report in the 296 BOOK OF FOEMS. IK ACTIONS rOK PARTITION. several respects pointed out in and by the said exceptions, and for a final judgment of sale of the premises mentioned in the complaint, and distribution of the proceeds thereof, pursuant to the said report as so modified, with costs to be apportioned and taxed according to usual practice of the court, or for such other, &c. [as in No. 415.] I ours, &c., B. H. H., Plaintiff's Attorney. Dated, &c. No. 418. Judgment directing sale of premises and distribution of the proceeds. At special term, &c. Present, &c., [TrrtB OP THE CAUSE IN PDLL, GITINO NAMES OP ALL THE PASTIES.] This cause having been brought to trial,' on the complaint and upon the general answer of the guardian ad litem, of the infant defendants, E. H. and S. A. H.," and upon the report of J. M. ' If there be no answer, or if there has been no trial, the recital -will com- mence as follows : This cause having heen brought on for hearing upon ihe pleading and pro- ceedings therein, including the order of reference heretofore made, and the report of 7. K. P., ihe referee, and schedules thereto annexed, made and filed ore (he , dc, on motion of B. H. H., attorney and cozmsel for plaintiff, no one appearing to oppose^ and proof of due service of notice on such of the parties as have appeared, having heen made and filed, it is adjudged, &c. * If the trial has been by the court, add: And the written decision of Hon. Theodoke Miller, the justice holding the special term at which said cause was tried, having heen made and filed, and an order of reference thereon made, tww, upon the pleadings, proceedings, &c., in said cause, and the said decision and order, and the report of the said referee rrade, &c. Add, also, if such be the case : And the exertions to said report made and filed on the beJudf of the said U, B.O. BOOK OF. FORMS. 297 IN ACTIONS FOK PARTITION. A., referee, and the papers included in and making a part of said report, which report bears date, &o., and after hearing W. A. B., of counsel for plaintiff, and 0. M. D., of counsel for the guardian, ad litem, of the infant defendants, and due deliberation being thereupon had, it is adjudged that the said report be and the same is hereby approved, ratified and confirmed.' And it is further adjudged, that the parties to this suit, except the defendants J. M. C. and S. H., are seized of and entitled to the lands, tene- ments and hereditaments in the complaint in this cause mentioned, and hereinafter described, with the appurtenances, as tenants in common thereof, in fee simple ; and that the respective rights and interests of the said parties, plaintiff and defendants, therein, are such as are ascertained and stated by the said referee in his report aforesaid; that is to say, the plaintiff, H. H., and the de- fendants, A. H., and E., widow of B. C, deceased, as children and heirs-at-law of L. H., are each seized in fee simple as tenants in common with the infant defendants, S. A. H. and E. H., and well entitled to one-fourth part of the said lands and tenements, subject to the dower right of the defendant, E. H., widow of the said L. H., therein, and subject, also, to the mortgages held by the defendant, J. M. C, on certain lots or parcels thereof, as here- inafter mentioned. The infant defendants, S. A. H. and E. H., as children and heirs-at-law of H. H., a deceased son of the said L. H., are each seized in fee simple, as tenants in common with ' If there have been exceptions, and the same are disallowed, add : And that the said exceptions he and the same hereby are overruled and disallowed. If the exceptions are partly allowed, and the report in any respect modified, the judgment should specify accurately what part of the exceptions are allowed, and in what respect the report is modified, in something like the following form : It is ordered and adjudged that the second exception ie allowed, s,nd that said report be -and the same hereby is modified by striking out therefrom so much as disallows the claim and lien of the mortgage of R. P., a claimant who is not a party to this action, and adding thereto that the said mortgage of the said It. P., upon which there was due at the date of said report the sum of% , is a valid and subsisting lien upon the undivided share of , &c., £c. (as the fact may be). And that said report, as so modified, be and the same is hereby ratified and confirmed. 298 BOOK OF FORMS. IN ACTIONS FOE PARTITION. the otter owners hereof, of, in and to an equal undivided half of one equal undivided fourth part of the said lands and tene- ments, subject also to the right of dower of the said defendant, E. n., therein, and to the mortgages of the defendant, J. M. C, on certain lots or parcels thereof. The defendant, E. H., as ■widow of the said L. H., deceased, is entitled to her right of dower in the said lands and tenements, not subject to any claim, contribution or incumbrance, excepting in the lot of land and premises situate in the village of B., in the said referees report, designated as No. 4, which is subject to a mortgage held by the defendant, J. M. C, and which said mortgage being for the pur- chase-money, is entitled primarily to satisfaction out of the pro- ceeds of the sale of said lot No. 4. The interest of the plaintiff and of the defendants, A. H., B. C, and the infant defendants S. A. H., and E. H., in the premises designated in said referee's report as the " Homestead," and called No. 1, are incumbered by a mortgage to the defendant; J. M. C, on which there was due at the date of the said report the sum of $ ...... The interests of all the parties in the lot of land and premises situate in the village of B., and called No. 4, are incumbered by a mortgage to the defendant, J. M. C, on which there was due at the date of said report the sum of $ , which said mortgage is primarily entitled to be satisfied out of the sale of said lot No. 4. And it is further adjudged, that all and singular the premises mentioned in said complaint, and therein described as follows \insert description\ ; together with all and singular the heredita- ments and appurtenances thereto belonging or in any wise apper- taining, to be sold at public auction in the county of , where such premises are situated, by and under the direction of , residing in that county, who is hereby appointed a referee for that purpose ; that the said several parcels, as designated by numbers in the said referee's report, be sold separately, or in such portions as to the said referee may seem most for the inte- rest of the parties interested therein; that the said referee give six weeks' previous notice of the time and place of such sale, in one of the public newspapers printed in the county of , BOOK OF FORMS. 299 IN ACTIONS FOR PARTITION. where the said premises are situated, and in such other manner as is required by law and the rules and practice of this court ; that the said referee be at liberty to receive such an amount down on the sale, and give such credit for the balance, taking security for the payment of the same as he may think proper, and as may be consistent with the provisions and directions herein contained ; and that the plaintiff, or any of the parties in the cause, may become the purchaser or purchasers thereof. That the referee forthwith, after said sale, make report thereof to this court ; and after his report of sale shall have been duly confirmed, then that he execute a deed or deieds of the said premises to the purchaser or purchasers at the said sale, on their complying with the con- ditions upon which the deeds were so delivered ; and that such sale and conveyance be valid and effectual forever. And it is further adjudged, that the costs of all the parties to this suit to be taxed, be first apportioned between the said several parcels of land and premises ratably, and paid out of the proceeds of the sale thereof, in proportion to the sums for which they respec- tively sell ; the same to be paid to the attorney for the plaintiff, and to the guardian ad litem of the infant defendant, to his attor- ney. And that the referee, in like manner, retain out of the proceeds of the sale of each, the fees, commissions and disburse- ments to which he is entitled on such sale. That the said referee do also pay and discharge, out of the proceeds, all taxes, charges and assessments which may be a lien upon the said premises, or any part thereof, and if the same are upon a part only, then that such referee pay the same out of the proceeds of such part, and specify the same in his final report. That such referee pay to the defendant, J. M. C, the amount reported due him upon his spe- cific lien or mortgage on the lot in the village of B., called No. 4, with interest from the date of said report, out of the net pro- ceeds of the sale of said lot, prior to the payment of E. H.'s dower claim therein. And it is further adjudged that the said referee ascertain and report whether the defendant, E. H., is willing to accept, in lieu and instead of her dower interest in the said premises, a sum in 300 BOOK OF FOEMS. IN ACTIONS FOK PARTITION. gross, ia satisfaction thereof, out of the net proceeds of the said premises, according to her rights, as ascertained in said referee's report, and what woiild be a reasonable satisfaction for her said interest, on the principles applicable to life annuities. And if the said E. H. consents to accepts such gross sum, that such referee pay the same to her, upon her executing, acknowledging and delivering to him a release, to be approved of by such referee, of all her right, title and interest of, in and to the said premises and every part thereof. But if she shall refuse to accept a gross sum in lieu of her dower interest, then it is further adjudged, that the said referee, after paying the costs and disbursements, and assessments, and the amftunt due to the defendant, J. M. C, upon his mortgage on the said lot No. 4, as specified in said report, do bring one-third of the net proceeds of the said sale into this court, to be invested by the county treasurer of the county of , for her benefit ; the interest or dividends thereon, or to accrue thereon, to be paid over to her during her natural life. And it is further adjudged, that out of the proceeds of the above firstly described lot of land and premises, after paying the costs and disbursements, taxes and assessments aforesaid, and after paying the widow the amount of her dower right therein, either in gross or by depositing the same as aforesaid, the said referee pay to the defendant, J. M. C, the amount reported due him upon his mortgage on said lot, with interest, or so much thereof as the residue of the proceeds of the said firstly described lot will pay of the same. And in case the resi- due of the proceeds of said lot shall be insufficient to pay the amount reported due to the said J. M. C, with interest as afore- said, that the referee specify the amount of such deficiency in his report of such sale. And it is further adjudged, that the said referee divide the residue of the net proceeds of the sales of the said several lots of land and premises into four equal parts, and that he bring into this court and deposit with the county treasurer of the county of one of the said equal fourth parts of BOOK OF FORMS. 301 IN ACTIONS FOR PARTITION. such residue, being for the shares of the said infant defendants, E. H. and S. A. H. And it is further adjudged, that the said referee pay to the plaintiff, H. H., one of the said equal fourth parts of said residue ; to the defendant, A. H., one other of the said equal fourth parts of said residue, and to the defendant, E. C, the remaining equal fourth part of the residue of said net proceeds. And the referee take receipts for all such payments, and file them, with his report, to be made of his proceedings subsequent to the confirmation of his report of sale. And it is further adjudged, that such title deeds and -writings as may be in the possession or under the control of any or either of the parties, and as appear to relate solely to any particular part of the said premises, be delivered up to any person or per- sons who may, on such sale, become the purchaser or purchasers thereof And that all other title deeds or writings may be depo- sited with the clerk of this court for safe custody, there to remain for the benefit of all parties interested therein. And it is further adjudged, that the purchaser or purchasers of any or either of said lots or parcels of land at such sale, be let into possession thereof ; and that any of the parties in this cause who may be in possession of said premises, or any part thereof, or any person who, since the commencement of this suit, has come into the possession of them, or either or any of them, deliver possession thereof to such purchaser or purchasers on production of the referee's defed for such premises. And it is further adjudged, that the said referee make a report of his proceedings under this judgment, subsequent to the con- firmation of his report of sale, to be made as above directed. (The following are recommended as precedents of special clauses that may be inserted in a judgment of sale.') • Edw. on Referees, pp. 470-474. 302 BOOK OF FORMS. IN ACTIONS FOR PARTITION. Clause applicable to a doiveress or tenant for life refiosing to take a sum in gross. And the said defendant , widow of , deceased, by her counsel, declining to accept a sum in gross in lieu of her dower right and estate in and to the equal part of such premises, it is thereupon ordered and decreed that such referee do ascertain and report the amount df the one-third part of the one part of the proceeds of such premises, after deduct- ing all expenses which, it is declared, is a just and reasonable sum to be invested for the benefit of the said , entitled to such estate and right of dower as aforesaid ; and that such referee do bring such amount into court and pay the same to the treasurer of the county of ; and farther that such treas- urer do invest the said amount in bond and mortgage, or other permanent securities, at interest, and do pay such interest to the said during her natural life. Clause applicable to a doweress or tenant for life agreeing to take a sum in gross. ^ And the said defendant , widow of , deceased, having consented to accept in lieu of her right of dower and estate in the one part of such premises, such sum in gross as shall be deemed a reasonable satisfaction for such right of dower and estate, which consent has been given and proven by an instrument under seal, duly acknowledged in the manner that deeds are required to be proved to entitle them to be recorded (and annexed to the referee's report filed in this cause, or now filed with the clerk of this court), thereupon it is ordered and decreed that the said referee do ascertain what sum in gross of the proceeds of such sales, after deducting all expenses, wDl, on the principles of life annuities, be a reasonable satisfaction for such estate or right of dower in the one part of such premises, and the said referee shall pay over to the said , widow as aforesaid, the amount so ascertained by him. ' See form of such consent, post, No. 54. BOOK OF FORMS. 303 nr ACTIONS FOR PARTITION. Clause applicable to a doweress or tenant for life, mdlcing provision if consent is afterwards given. And it is further ordered and adjudged that the said referee ascertain whetlier , the widow of , deceased, is willing to accept, in lieu of her estate in dower in such premises, a sum in gross in satisfaction thereof out of the net proceeds of such premises ; and if she shall so agree to accept a compensation therefor, then that such referee ascertain how much, on the prin- ciple of annuities, would be a reasonable compensation for such right and estate ; and that the said referee pay to the said such amount, on receiving from her a release, to be approved by such referee, of all her right and claim of and for an estate for dower in the said premises and every part thereof. Clause where a married woman is an infant and has an inchoate right of dower. And it appearing that the defendant , wife of the said defendant , is an infant under the age of twenty-one years, and is entitled only to an inchoate right in dower in the one .... part of such premises, it is further ordered and adjudged that the referee ascertain, on the principles of annuities, what is the pro- bable value of her contingent right of dower ; that such amount be deducted from the part of the proceeds of such sale, after deducting the proper portion of the costs and expenses to be borne by such part, and be paid into the hands of the treasurer of the county of , to be by him invested so that the same may accumulate during the joint lives of the said • .' and ; and upon the death of either, application may be made to t^is court for the same by any person or persons entitled thereto. Or, it is further ordered and adjudged that the said part of such proceeds be paid over to the said , on his giving security to the satisfaction of a justice of this court, to be approved of by him, that the interest or income of the one- third of such proceeds shall be paid to the said after his death, during the term of her natural life, in case she survives him, the said 804 BOOK OF FORMS. IN ACTIONS FOR PAKTITION. No 419. Assent by a wife to have her share paid to her husband. [Title.] I, M. C, a defendant herein and ■wife of the defendant A. P. C, do hereby consent and request that the whole of the proceeds of the sale of the premises under and by virtue of any judgment, decree and order in this action to which I am at present entitled or which I may hereafter be entitled to receive, be paid over at once absolutely and unconditionally to my said husband the said A. P. C* ' And that in the judgment to be rendered herein directing the apportionment and disposition of the said proceeds, a provision to correspond with this consent and request be inserted. As witness my hand and seal the day of , 18 . . . In the presence of H. H., Referee. City and County of New York, ss: On this day of , before me, the subscriber, H. H., referee in the above entitled action, appeared the above named M. C, and I fully explained to her the nature and extent of her rights and interests in the premises embraced in the above action ; and thereupon the said M. C, on a private examination apart from her husband, acknowledged that she executed the above instru- ment freely, without any fear or compulsion of her said husband. And thereupon she signed the same, and I became a subscribing witness. H.H., Beferee. ' If such assent is not given until after the judgment shall have been ren- dered, the following clause is, of course, to be omitted. BOOK OF FORMS. 305 nj ACTIONS rOR PARTITION. No. 420. Consent hy widow to accept sum in gross in lieu of dower. [Title.] I, tTie undersigned, B. C. D., one of tlie defendants in the above entitled cause, do hereby consent to accept, in lieu of my dower interest in the premises of which partition and sale is sought in this action, and in satisfaction thereof, a sum in gross, out of the proceeds of said premises, according to my rights ascertained* [or, if the consent is to le produced and read on the motion for order of reference'], to be ascertained, by the report of the referee herein, which sum is to be computed according to the principles appli- cable to life annuities pursuant to the Portsmouth or Northamp- ton tables and the eighty -fourth rule of this court ; and that in the judgment to be herein rendered directing the apportionment and disposition of the proceeds of the sale of said premises, a provision to correspond with this consent be inserted. B. 0. D. Dated, &c. (Add the usual acknowledgment.) No. 421. Notice of sale, [Title.] In pursuance of a judgment of the Supreme Court of the State of New York, the subscriber, as referee therein, will sell, in sepa- rate lots, at the in the city of , on the day of. next, at twelve o'clock at noon, .... lots of land situated in the city of , at public auction, and bounded as follows, namely : [insert description.] H. H., Beferee. Dated the .... day of .... , , 18 . . 39 306 BOOK OF FORMS. IN ACTIONS FOE PARTITION. No. 422. Conditions of sale. [Annex copy of advertisement.'] [Title.] Terms of sale. The premises described in the annexed advertisement of sale will be sold under the direction of H. H., referee, upon the fol- lowing terms : 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, arid for which the referee's receipt will be given. 2d. The residue of the said purchase-money will be required to be paid to the said referee, at his office, No. . . , street, in the city of , on the .... day of , when the said referee's deed will be ready for delivery. . 3d. 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 out of the purchase-money ; pro- vided ' the purchaser shall, previous to the delivery of the deed, produce to the referee proof of such liens, and duplicate receipts for the payment thereof. ith. The purchaser of said premises, or any portion thereof, will, at the time and place of sale, sign a memorandum of his purchase. 5th. The biddings will be kept open after the property is struck down; and in case any purchaser shall. fail to comply with any of the above conditions of sale, the premises so struck, down to him will be again put up for sale, under the direction of said referee, under the same terms of sale, without, application to the court, unless the plaintiff's attorney shall elect to make such application; and such purchaser will be held liable for any deficiency there may be between -the sum for which said pre- BOOK OF FORMS. 307 IN ACTIONS FOR PAETITION. mises sHall be struck down upon the sale, and that for which thej may be purchased on the resale, and, also, for any costs or expenses occurring on such resale. [Here insert as to a portion of the purchase-money remaining on bond and mortgage, or special conditions, according to circumstances.] H.H., Be/eree. No. 423. Memorandum of sale. I, B. L. P., have this day of , 18. ., pur- chased lot No. 1 [or the whole] of the premises described 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 men- tioned and set forth. * B. L. P. Dated, &c. ' « • • • ^ a, • < , , 18 . . Eeceived from , , the sum of $ , being ten per cent on the amount bid by ■ • • r , for property sold by me, under the order in this cause. $•••• H. H. Referee. . No. 424 [Title.] To the Supreme Court of the State of New Torh: In pursuance of a judgment of this court, in the above entitled action, bearing date the day of , I, H. H., referee, to whom the execution thereof was confided do report : 308 BOOK OF FORMS. IN ACTIONS FOR PARTITION. That, having caused notice of the time and place of sale of the premises mentioned in the said judgment, containing a brief description thereof, to be published once in each week, for six weeks immediately previous to such sale, in one of the public newspapers printed in the city of , where such premises are situated, and having also caused a copy of such notice to be put up at three of the most public places in the said city of , where the said premises are situated ; I did, on the day of , at twelve o'clock, noon [that being the time specified in the said notice], attend at the , in said city, the place therein mentioned, and exposed the said premises for sale at public auction, to the highest bidders, as directed by the said order. I do further report, that the several lots or parcels of land so directed to be sold were put up for sale separately,' and were, each and every of them, struck off to the following persons, and for the sums following, namely : to , the dwelling house and lot of land on the northerly side of street , known as No. . . , for the sum of $ ; to , the dwelling house and lot of land on, &c., &c., &c. And I further report, that the terms and conditions of such sale were reduced to writing, and made known to the persons attending such sale, previons to putting up the said lots, and were as fol- lows : The purchasers of each lot and parcel were to pay ten per cent of the purchase-money down, on the day of sale, aiid the residue when the sale should be confirmed and the deed deliv- ered, to wit, at, &c., on the day of And that the aforesaid respective purchasers have signed the written conditions of sale, before referred to, together with an acknow- ledgment that they, respectively, had purchased the premises so bought by them upon those terms. Also, I report that they have, respectively, paid to me the amounts required to be paid down. All which is respectfully submitted. H. H., Dated, &c. Beferee. ' Or if sold together, so state the fact. BOOK OF FORMS. 309 IN AOTIONS FOR PAKTITION. No. 425. Ordej' confirming report of sale. At a special term, &c. Present, &c. [Title.] On reading and filing the referee's report of sale in this action, dated the day of , and proof of filing same, and due service of notice of motion served upon the attorneys of the respective parties who have appeared ; now, on motion of B. H. H., of counsel for the plaintiff, no one. appearing to oppose, it is ordered that the said report be, and it hereby is, in all respects, confirmed. And it is further ordered, that said referee com- plete said sale, and execute the necessary conyeyance to the purchasers, according to the written conditions thereof, and pro- ceed to carry out the farther provisions of the judgment hereto- fore rendered in this action, and report thereon to the court, as therein directed, with all convenient speed. No. 426. Affidavit for motion to compel purchaser to complete sale., [Title.] County : B. H. H., of, &c., the plaintiff's attorney being duly sworn, says, that on the day of .... , he attended at the ofi&ce of H. H., Esq., the referee mentioned in the annexed conditions of sale, with the convey- ances therein mentioned properly executed and acknowledged, and ready to be delivered to the purchaser, B. L. P., who signed the agreement thereunder written and hereto annexed ; but said purchaser did not attend. That deponent left said conveyances 310 BOOK OF FORMS. IN ACTIONS FOE PABTITION. at the office of said referee at 11 A. M. of that day, -with instruc- tions to him to deliver the same to said purchaser, on his demand and payment of the residue of said purchase-money ; that said referee, as deponent is informed by him, was in attendance at his said office all that day ; but said purchaser did not call to receive his said deed and pay the residue of said purchase-money ; nor has he at any time doae so, as deponent is also informed by said referee, but, on the contrary, refuses to complete his said pur- chase.' B. H. E . Sworn, &c. No. 427. Notice of motion to compel purchaser to complete his purchase, [Title.] To B. L. P. : Take notice that upon the foregoing affidavit [or certificate\, with conditions of sale and agreement thereto annexed, and the judgment heretofore rendered in this action, and referee's report of sale and order confirming the same, a motion will be made at the next special term of this court, at, &c., on, &c., for an order requiring you to complete your said purchase, on or before a day therein to be named, and, in default thereof, that an ex parte application may be made to the court, in the premises, with costs of motion. Yours &c., B. H. H., Phintiff^s Attorney. Dated, &c. — ' — ■ ' Instead ef the affidavit of the attorney, the proof of the purchaser's default may consist in a certificate of the referee stating substantially the above facts, annexed to the conditions and agreement of sale. BOOK OF FORMS. 311 IK ACTIONS FOE PARTITION. No. 428. Order thereon requiring a purchaser to comphfe his j^urchase. At a special term. Present, &o. [Title.] It appearing that B. L. P. became a purchaser at a referee's sale herein of, &c., for $ , paying ten per cent deposit, in conformity with conditions of sale ; but that he has not com- pleted such purchase in conformity therewith ; and on reading and filing affidavits of, &c., and after hearing counsel for the respective parties, and due deliberation having been had, it is ordered that the said B. L. P. complete his said purchase, by paying the remainder of the purchase-money, with interest thereon from the day he should have completed his purchase, and receive the referee's deed, at the referee's office on or before the .... day of , with $10 costs to the plaintiff, to be paid by the said purchaser ; and that, in default thereof, an ex parte applica- tion may be made to the court in the premises. No. 429. Certificate by referee that purchaser still refuses to complete his purchase, [TlTLB.] The undersigned, referee appointed by the judgment in this action to sell the premises therein described, certifies and reports that B. L. P. neglects and refuses to complete his purchase of a portion of said premises, by paying the residue of the purchase- money and accepting a conveyance thereof pursuant to his agree- ment, upon the conditions of sale annexed to the certificate here- 312 BOOK OF FORMS. IN ACTIONS roK paktihon. tofore made by me [or affidavit of, &c.'], bearing date the, &c. That on the day of [the day specified in the order], the undersigned tendered said conveyance, duly executed and acknowledged [or had the same ready for delivery at the office, dec], and demanded the residue of the purchase-money, but said B. L. P. refused to pay the same and accept said conveyance. H.H., Beferee. Dated, &c. No. 430. Order of attachment against defaulting purchaser.* At a special term, &o. Present, &c. [Title.] On reading and filing an affidavit, showing that B. L. P. had not complied with an order in this action, dated, &c., whereby he was ordered, &c., now, on motion of B. H. H., Esq., counsel for the plaintiff, it is ordered that a warrant of attachment and commitment, directed to the sheriff of the county of , issue against the said B. L. P., on account of the contempt aforesaid. ' If the order (see No. 428) so direct, the motion may be made ex parte. BOOK OF FORMS. 813 IN ACTIONS rOE PARTITION. No. 431. Ordesr for resale, and that first purchaser make good the deficit. At a special term, &c. Present, &o. [Title.] On reading and filing the affidavit of, &c., bearing date on, &c., ■whereby it appears that the premises mentioned in the complaint and judgment in this action, were sold, on the day of , by the referee therein, pursuant to said judgment, and that the purchaser at said sale, B. L. P., has failed to com- plete his purchase, by the payment of the sum of $ , the residue of the purchase-money, and which remains unpaid, and on reading and filing due proof of notice of this motion, ^on motion of B. H. H., of counsel for the plaintiff, no one appear- ing to oppose \or, an hearing J. L. P., Esq., of counsel for the said purchaser']^ it is ordered that the said premises so purchased by said B. L. P., be again exposed by said referee for sale at public auction, pursuant to the said judgment, and in all respects as ' though such previous sale had not taken place. It is further ordered that said B. L. P. be liable for, and make good, any defi- ciency there may be between the amount bid by him, at the sale heretofore made, and the sum that may be obtained for said pre- mises at the resale herein ordered ; and that said referee apply so much of the moneys paid by said B. L. P. on such previous sale, as may be necessary to make up such deficiency, together with the interest on the whole sum, from the time when such purchase should have been completed, and the costs and expenses of such resale, with ten dollars costs of this motion ; and pay back the residue thereof, if any, to the said B. L. P. ; and, with his final report, that he also report to the court, his proceedings under this order. 40 814 BOOK OF FORMS. IN ACTIONS rOE PABTIIION. No. 432. Order for resale and discharge of purchaser. At a special term, &c. Present, &c. * [Title.] On reading and filing the affidavit of B. H. H., plaintiff's attorney, bearing date, &c., and the consent of B. L. P., and of the attorneys for the plaintiff and the guardian ad litem of the infant defendants ; it is ordered, that the said B. L. P., the pur- chaser of the premises known as No. . . . , street, sold to him under the judgment in this action, on the day of last, as stated in said affidavit, be discharged from the said purchase, and that the said sale be, and the same is hereby annulled; and that H. H., Esq., the referee, under whose direction the said sale was made, refund and pay to the said B. L. P., the sum of $ , being the ten per cent paid by him to the said referee, on the purchase-money of said lot, and the sum of dollars for the expenses of said B. L. P., arising out of said purchase, in the examination of the title and the dis- bursements relating thereto.* And it is further ordered, that the said lot, situate on street, as aforesaid, be resold by said referee, in all respects pursuant to the judgment in this action; and that, upon such resale, the proceeds arising from said sale be distributed among the parties, according to the provisians of the said judgment. BOOK OF FORMS. 315 IK ACTIONS FOR PARTITION. No. 433. Affidavit hy purchaser for motion to he relieved from purchase, on the ground of a defect of title. [Title.] County, ss: B. L. P., of tlie city of , being duly sworn, says that he attended the public sale at auction, of the premises described in the complaint and judgment in the above entitled action, which sale was made under the direction of H. H., the referee named in such judgment, at the, &c., on the day of , and, at such sale, the whole of said premises were struck off to the deponent, for the sum of $ .... , he being the highest bidder for the same. That deponent, there- upon, signed an agreement annexed to the terms and conditions of sale, and pursuant thereto, to the effect that he had become the purchaser of said premises, for the sum of $ , and that he promised and agreed to comply with said terms and condi- tions ; that is to say, to pay down ten per cent of the purchase- money, and the residue, &c. [stating the conditions'] ; and the depo- nent thereupon deposited, with said referee, the said ten per cent, to wit, the sum of $ ; but has not completed the purchase, by paying the residue thereof That since said sale, deponent has discovered a defect in the proceedings and judgment, impair- ing the title of a purchaser thereunder, to wit : that B. C, one of the defendants, is an infant, and that no guardian ad litem has been appointed, or has appeared for him in the action, but, that judgment has been taken by default against him [or, state any other defect, either jurisdictional, or of mere irregularity ; or, if it he a defect of title, point out the Same specifically, and state that he caused search to he made for the same, and the amount of expense's attending such searcli\; which defect was wholly unknown to deponent at the time of said sale. That deponent is willing, and desires to complete his said purchase, if he can obtain a good 316 BOOK OF FORMS. IN ACTIONS FOE PAKTITION. and valid title to the said premises [or, as the case may he, that deponent is desirous of being wholly relieved from said sale, and of having his deposit, with interest thereon, paid lack to him, with the expenses of such search, and costs of this motion'].^ B. L. P. Sworn before me, &c. No. 434. Order thereon granting motion, and directing repayment, no resale being directed. At a special term, &o. Present, &c [TiTLB.] [Same as No. 432, doum to the *, then add-] And the said plam- tiff is at liberty to make such application to the court, in regard to an amendment of the proceedings and judgment in this action, as he may be advised. No. 435. Order granting motion, unless plaintiff amend and supply defect in the judgment. [Same as No. 432, to the *, then add/] Unless the said plaintiff shall, within days, procure, under the order of the court, the necessary and proper amendments to be made to said proceedings and judgment, by obtaining, &c. [stating the requi- 1 The motion must be on notice, whicli should express the object of the motion as in the affidavit above, namely, to be relieved altogether from the purchase, and be repaid the purchase-money; or, if he desires to com- plete the purchase, and the proceedings be amendable, that the plaintiff's attorney be directed to procure the necessary amendments to be made. BOOK OF FORMS. 317 IN ACTIONS rOK PARTITION. site amendment] ; in whiclL case, the said purchase and sale, and the agreement therefor, shall stand and be valid in all respects, according to the said written terms and conditions ; the time for the completion of the same being hereby extended to the day of , at the place mentioned in said conditions. And it is further ordered, that the plaintiff pay to the said purchaser $10, costs of this motion. No. 436. Beport of referee on resale. [Title.] To the Supreme Court of the State of New Yorh: In pursuance of a judgment made in this cause in the above entitled action, and entered the day of , and of a subsequent order herein, dated the day of , whereby it was ordered that the premises described in said judg- ment, known as No. . ., street, in the city of , should be resold pursuant to the judgment aforesaid: Now, I, the said referee appointed in the said judgment, do report that having caused notice of the time and place, &c., &c. [continue as in No. 424]. No. 437. Referees deed. This indenture, made the day of , in the year one thousand eight hundred and sixty , between H. H., referee in the action hereinafter mentioned, of the first part, and of, &c., , of the second part. Whereas, at a special term of the Supreme Court of the State of New York, held at , &c., on the day of , one 318 BOOK OF FORMS, IN ACTIONS rOR PAHTITION. thousand eight hundred and , it was, among other things, adjudged by the said court, in a certain action then pending in the said court, between, &c. ; that all and singular the premises mentioned in the complaint in said action, and hereinafter des- cribed, be sold at public auction, according to the course of practice of said court, by or under the direction of the said H. H., who was appointed a referee in said action, and to whom it was referred by the said order and judgment of the said court, among other things, to make such sale ; that the said sale be made in the county where the said premises or the greater part thereof are situated ; that the referee give public notice of the time and place of such sale according to law and the course of practice of said court ; and that any of the parties in said action might become a purchaser or purchasers on such sale ; that the said referee, after said sale, make report thereof to said court, and after his report of sale shall have been duly confirmed, then that he execute to the purchaser or purchasers of the said pre- mises, or such part or parts thereof as should be so sold, a good and sufi&cient deed or deeds of conveyance for the same. And whereas, the said H. H., referee as aforesaid, residing in said county of , and party of the first part to these presents, in pursuance of the said judgment, did, on the day of , instant, sell at public auction, at the, &c., in the county of, &c., that being the county where said premises are situated, the premises mentioned in the said judgment, after having given public notice of the time and place ' of such sale, and a brief description of the said premises, in conformity with the judg- ment aforesaid. And whereas, at such sale the said premises were struck off to, and purchased by, the said party of the second part to these presents, at and for the sum of dollars ; that being the highest sum bid for the same. And whereas said sale was thereupon duly reported by said referee to said court ; and, thereupon, by an order of the court, bearing date the &c., the said report of sale was duly confirmed, and the said referee directed to complete the said sale and execute to the said pur- chaser the proper and necessary conveyance therefor : BOOK OF FORMS. 319 IN ACTIONS rOK PARTITION. Now, therefore, tMs indenture witnesseth, that the said party of the first part, referee as aforesaid, in order to carry into effect the sale so made in pursuance of the said judgment of the Supreme Court, and also by virtue of the statute in such case made and provided, and in consideration of the sum of dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, hath granted, tjargained, sold, aliened, released, conveyed and con- firmed, and by these presents doth grant, bargain, sell, alien, release, convey and confirm, unto the said party of the second part, and to his heirs and assigns forever, all that [insert descrip- tion of land] ; together with all and singular the rights, titles, privileges, members, hereditaments and appurtenances thereunto belonging or in any wise appertaining : To have and to hold all and singular the premises above mentioned and described unto ' the said party of the second part his heirs and assigns, to the sole and only proper use, benefit and behoof of the said party of the second part, his heirs and assigns forever. In witness whereof, the said party of the first part, referee as aforesaid, has hereunto set his hand and seal the day and year first above written. H. H. [L. s.] Sealed and delivered in ) presence of J W. G. (Acknowledgment in the usual form.) No. 438. Final report hy referee of sale and distribution. [Title.] To the Supreme Court of the State of New York : Th pursuance of a judgment of this court, made in the above cause on the day of last, I, the subscriber, referee named in the said judgment, do respectfully report: 320 BOOK OF FORMS. IN ACTIONS FOB PARTITION. That, in obedience to the said judgment, I have executed, acknowledged and delivered to J. K., the purchaser of the pre- mises directed to be sold by me, a deed of such premises, on receiving from him the sum of dollars, the price or sum for which the said premises were sold to him, as mentioned in my former report of such sale, made in pursuance of the said judgment, and bearing date the day of last, and upon his complying with all the conditions upon which the said deed was to be delivered. And I further report that I have paid to the attorney for the plaintiff in this cause the sum of $ , for the costs of the plaintiff in this suit, as taxed, and have taken a receipt therefor, which is hereto annexed ; and I have retained in my hands the sum of $ , being the amount of my fees, com- missions and disbursements, on said sale ; that I have paid to the collector of the town of the sum of $ , for taxes upon the said premises ; that I have paid to the defendant, J. M. C, the sum of $ , being the amount reported due to him upon his mortgages on the said premises. And that the defend- ant, E. H., being willing to accept, in lieu of her dower interest in the said premises, a sum in gross, in satisfaction thereof, out of the net proceeds of the said premises, I computed the value of her said dower interest upon the principle of life annuities, and ascertained the same to be $ And the said R. H. con- senting to accept that sum, I have paid the same to her, and have taken from her a release duly executed and acknowledged, and approved by me, of all her right, title and interest, of, in and to the said premises, and every part thereof, which release, and her consent to accept such gross sum, are hereto annexed.' And I further report that the residue of the net proceeds of the sale of the said premises, after deducting the payments and sums above mentioned, amounts to $ , which sum I have divided into four equal parts, each of which amounts to $ ; ' See post, No. 441. If the assent of a wife to pay her share to her hus- band has been obtained, a clause to that effect should be inserted, and such consent duly acknowledged, as in No. 440, post, annexed. BOOK OF FORMS. 321 IN ACTIONS FOK PARTITION. one of ■whicb. parts I liave brouglit into this court and deposited with the county treasurer of , being for the shares of the infant defendants, E. H. and S. A. H., and have taken his receipt therefor ; one other of which parts I have paid to the plaintiff, C. H. ; one other part to the defendant A. H. ; and one part to the defendant E. 0. ; and that I have taken from the said plaintiff and other defendants, receipts for the amount of their respective shares as aforesaid, which are hereto annexed. And I further report that I have let the said J. K into the possession of the premises so purchased by him. All of which is respectfully submitted. KH., Heferee. Dated, &c. No. 439. Beceipt for distributive share to ie annexed to the report. [Title.] I hereby acknowledge the receipt from H. H., Esq., referee in this action, and payment, by him to me, of the sum of $ , being the amount of my distributive share of the proceeds of the sale of the premises directed to be sold by the judgment heretofore entered in the above entitled action. B. 0. Dated, &c. No. 440. Assent of vjife to have her share paid to her husband, and receipt of husband annexed. \Same as No. 419 to the *. Add acknowledgment as in same form.] Eeceived, , this day of , the sum of $ , being the amount of the distributive share of 41 322 BOOK OF FORMS. IN ACTIONS FOB PARTITION. my wife, M. C, of the proceeds of the sale of the premises directed to be sold in and by the judgment heretofore entered in this action, and which share is in and by the within [or anneoced] con- sent, directed to be paid to me. A. P. C. No. 441. Consent and receipt hy widow entitled to dower.^ [^Same as No. 420 to the *, then add/] by computing the same pur- suant to the Portsmouth or Northampton tables ; and I hereby acknowledge the receipt of $ , from the said referee, being the amount of such gross sum so computed and in fuU for my dower interest in the premises sold pursuant to the judgment heretofore entered in the above entitled action. R H. Dated, &c. ' Tids, and the foregoing form, it will be seen, are applicable to oases where such consent has not been produced and used on the application for reference or judgment; and the judgment consequently contains only the ordinary pro- vision that the referee ascertain whether the widow is willing to aceept a gross sum in lieu of dower, &c. If the consent has been previously produced, the judgment itself will contain the direction that the gross sum be paid, in which case the ordinary receipt will be sufficient. BOOK OF FORMS. 323 IN ACTIONS FOB PARTITION. No. 442. ANNUITY TABLE. Corresponding with the Northam/pton tables referred to in the 84 18 • • i authorizing and empowering me, as the special guardian of the above named infants, to contract for the sale and conveyance of all the right, title and interest of said infants in and to the real estate men- tioned and described in the petition of said infants in this matter, dated the day of 1 18 . . , and to report upon oath the terms and conditions of the agreement made by me with the purchaser or purchasers, before executing any deed or instru- ment of conveyance of said premises : I, the special guardian, do report that I have entered into a written agreement (subject to the approval of the court) with J. D. C, of, &c., for the sale of all the right, title and interest of said infants in and to said real estate, upon the terms and condi- tions following : The said J. D. C. to pay therefor the sum of $ , as follows : so much of the said purchase-money as may be necessary to pay the respective proportions of such infants of the gross value of the right of dower of their mother, C. T. E., therein, together with the costs of these proceedings, on the delivery of the deed ; and the payment of the residue of the said purchase-money to be secured by the bond of the pur- chaser, and a mortgage upon the said premises, to be given by him to the treasurer of the county of , \or to such person as the court may direct,'] in trust for the said infants, conditioned to pay the interest thereon, semi-annually, at the rate of seven per cent per annum, and the principal in two equal install- ments, one of which to be paid on the day when M. T. E. shall BOOK OF FORMS. 379 IN PROCEEDINGS FOR SALE OF INFANTS EEAIi ESTATE. arrive at the age of twenty-one years, and the other on the day when J. T. B. shall arrive at the age of twenty-one years. I further report that the said J. T. E. has executed a release of all her right of dower in and to the undivided two-fourths part of said premises owned by said infants, which release is hereto annexed ; and that the gross value of such right of dower in the premises owned by said infants is dollars, and the costs and expenses of these proceedings amount to dollars. After deducting which sums from the amount of the purchase-money aforesaid, there will remain the sum of dollars due the said infants collectively, to be secured as afore- said, or dollars to each. And I further report that the above are the best terms upon which I could sell the said property, and that, in my opinion, the premises are an ample security for the payment of the residue of the purchase-money aforesaid and the interest thereon. All which is respectfully submitted. B. H. H. Dated, &c. County of ss: B. H. H., special" guardian above named, being duly sworn, says that he has read [or heard read] the foregoing report subscribed by him, and knows the contents thereof, and that the matters therein stated are true. B. H. H. Sworn, &c. No. 489. Order confirming report of guardian and directing conveyance, and disposing of proceeds. At a special term, &c. Present, &c. [Title as nr No. 483.] On reading and filing the report of B. H. H., the special guardian of the above named infants, made in pursuance of the 380 BOOK OF FORMS. IN PKOOEEDINGS FOE SALE OF INFANTS REAL ESTATE. order of this court, dated the day of , 18. ., stating that he had entered into a written agreement, subject to the approval of this court, with J. D. C, for the sale of all the right, title and interest of said infants in and to the real estate mentioned in said order, upon the terms and conditions specified in said report ; and that C. T. E., the mother of said infants, had executed an- effectual release of her right of dower in said premises : On motion of B. A. B., attorney for said petitioners, it is ordered that said report and the agreement therein mentioned be and they are hereby ratified and confirmed. That the said special guardian, in the name of said infants, execute, acknowledge and deliver to the said J. D. C, a good and sufficient conveyance of all the estate, right, title and interest of the said infants in and to the premises aforesaid, upon his com- plying with the terms and conditions upon which, by the said agreement, the deed was to be delivered. That out of the purchase-money paid by the said J. D. C, upon the delivery of the deed, the said special guardian pay the said C. T. B. the sum of $ , for her right of dower in the shares of the said infants in the premises, and take her receipt therefor ; and that he pay to the attorney for the petitioners, the sum of $ , for the costs and expenses of these proceedings.* And it is farther ordered, that of the remainder of such proceeds, so much as may be immediately necessary, be applied by such special guardian to the maintenance and education of the said infants, and that the residue thereof be kept and put out at interest, or invested on bond and mortgage, for the benefit of the said infants ; and that the said special guardian do make a return to the court, in writing and upon oath, of the investment and disposition of such residue of the proceeds, as soon as may be. BOOK OP FORMS. 381 IN PROCEEDINGS FOR SALE OP INFANTS REAL "ESTATE. No. 490. The like, proceeds directed to he brought into court. [Same as No. 489 down to the *, then add.-] And it is further ordered that after the payment of said sums the said special guardian bring the residue thereof into court and deposit the same with the treasurer of the county of , to be invested in stocks, or put out at interest by him for the benefit of said infants. And it is further ordered, that the moneys which shall be received by the county treasurer, fi-oni time to time, for inte- rest upon the bond and mortgage given by the purchaser, be paid over by him to the special guardian, to be applied by such special guardian to the maintenance and education of the said infants. No. 491. The like, containing special directions as to investment. \_Same as No. 489 down to the * then add:] And it is further ordered, that the said special guardian do take from the said purchaser his bond and mortgage to said infant, upon said pre- mises, to secure the payment of the sum of $ .... , when the said infant shall become of age, with interest, payable semi-annually, and that he receive, from time to time, the interest thereon, and apply the same or so much thereof as may be necessary to the support and education of said infant {and if there he any residue, add/] and that the residue thereof, to wit: the sum of $ be put out and kept at interest, &c., as in the foregoing. Or, that said special guardian do take from said purchaser his bond and mortgage on said premises to the clerk of fi^e said county of , for the residue of said purchase-money, payable with interest thereon, semi-annually, in .... years from the date thereof, and deliver such security to said treasurer and 382 BOOK OF FORMS. IK PROCEEDINGS TOR SALE OF INFANTS REAL ESTATE. take his receipt therefor, and annex the same to his report of sale. And that the moneys which shall be received, from time to time, for interest, by said county treasurer, be paid over by him to the general guardian [or, if there be none, to] said special guardian of said infant, to be applied by him to the maintenance and education of said infant. No. 492. Deed by special guardian. This indenture, made the day of 12 . ■ , between M. T. E. and J. T. E., of, &c., infant children of A. T. E., late of, &c., deceased, by B. H. H., their special guardian, parties of the first part, and J. D. C, of, &c., party of the second part. Whereas, a petition was heretofore presented to the Supreme Court of the State of New York, by the said M. T. E., an infant over the age of fourteen years, and having no general guardian, and said J. T. B., an infant under the age of fourteen years, and having no general guardian, by C. T. E., their mother and next fi-iend, praying for the sale of the right and title of the said infants in the real estate therein mentioned ; and whereas such proceed- ings were afterwards had, in said court, upon said petition, that by an order of said court, made on the .... day of , 18 . . , the said B. H. H. was appointed the special guardian of the said infants, for the purposes of said application, upon his giving the security therein required ; and whereas, such security, duly acknowledged and approved, was subsequently filed by the said guardian in the proper ofiice; and whereas, by another order of said court, made on the day of , 18. ., the said B. 11. H. was authorized and empowered to con- tract for the sale and conveyance of the right, title and interest BOOK OF FORMS. 383 IN PEOOEEDINGS TOE SALE OP INFANTS REAL ESTATE. of the said infant in such real estate, at a price not less than that specified in the referee's report referred to in said order, and upon the terms and conditions therein mentioned. And whereas, in pursuance of the last mentioned order, the said special guardian afterwards made his report to the said court, dated the day of lis.., stating that he had entered into an agreement, subject to the approval of said court, with J. D. C, of, &c., for the sale of all the right, title and interest of the said infants in and to the said real estate, upon the terms and condi- tions therein mentioned ; and whereas, by another order of said court, made on the .... day of , 18. ., it was ordered that the report of the said special guardian, and the agreement therein mentioned, be, and the same was thereby ratified and con- firmed, and that the said special guardian, in the name of the said infants, execute and acknowledge and deliver to the said J. D. C, a good and sufficient conveyance of all the estate, right, title and interest of the said infants in and to the said premises, upon his complying with the terms and conditions upon which, by the said agTeement, such deed was to be delivered. And whereas, the said J. D. C, the said purchaser, has complied with the said terms and conditions : Now, therefore, this indenture witnesseth, that the said parties of the first part, by their special guardian aforesaid, by virtue of the several orders aforesaid, and in pursuance of the statute in such case made and provided, for and in consideration of the sum of ... , dollars, to him in hand paid, at or before the ensealing and delivery of these presents, by the party of the second part, the receipt whereof is hereby acknowledged, has granted, bar- gained, sold, remised, released and conveyed unto the party of the second part, his heirs and assigns forever, all the right, title and interest of the said infants, parties of the first part, of, in and to the following described real estate and premises, viz. : The undivided one-half part of all that certain piece or parcel, &c. [insert description], to have and hold the said premises, with the appurtenances, unto the said party of the second part, and his heirs and assigns forever. In witness whereof, the parties of the 384 BOOK OF FORMS. IN PROOEEDI^fGS FOR SALE OF INFANTS EBAL ESTATE. first part, by their special guardian aforesaid, have hereunto set their hands and seals the day and year first above written. M. T. E. [L. s.] J. T. E. [L. s.] By B. H. H., ilieir special guardian. Sealed and delivered in ] presence of J A. C. D. No. 493. Release of widoid's dower indorsed. Know all men by these presents: That I, A. G. E., of, &c., widow of D. E., deceased, for and in consideration of the sum of $ , to me in hand paid, at or before the ensealing and delivery hereof, by J. D. C, of, &c., the receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold, remised, released and quit-claimed, and by these presents, do grant, bargain, sell, remise, release and quit-claim unto the said J. D. C, his heirs and assigns, all that, &c. {description]. To have and to hold the said premises, with the appurtenances, unto the said J. D. C, his heirs and assigns, to and for the use and behoof of him and his heirs and assigns forever. And the said A. G. E., for herself, her heirs, executors and administrators, doth covenant and agree to and with the said J. D. G., his heirs and assigns, that she hath not done any act whereby or by means whereof the said above described premises now are or at any time have been charged, incumbered or affected in any manner whatever. In witness whereof the said A. G. E. has hereto set her hand and seal, this day of , in the year 18 . . . A. G. B. Sealed and delivered in presence of } (Add acknowledgment.) BOOK OF FORMS. 385 IN PROOEEDINGS fOB SALE OF INFANTS BEAL ESTATE. No. 494. Final report of guardian. SUPREME COUET: [Title as dt No. 483.] To the Supreme Court of the State of New York: I, B. H. H., tlie special guardian of the above infants, having been required by an order of this court, made on the .... day of , 18. ., to execute, acknowledge and deliver to J. D. C>, &0. \here recite substance of order], do respectfully report : That I have executed, acknowledged and dehvered to the said J. D. C, such sufficient deed, he having complied with the terms and conditions of the said agreement ; that I have paid the said sum of ..... . dollars for the dower right of A. G-. E,, and taken a receipt therefor; that I have paid the said costs, embracing referee's fees, to the said amount of dollars, and have taken the receipt of the attorney of the petitioners therefor, and such receipts are hereto annexed.* I further report that I have taken a bond and mortgage from the said J. D. 0. to the said infants [or state otherwise what invest- ment has been made']. And I further report that I have invested the residue of the said proceeds, amounting to the sum of dollars, at an interest of seven per cent per annum, payable semi-annually, on good security by bond and mortgage, to wit: the bond off). S., of, &c., and a mortgage executed and acknowledged by him and his wife, upon unincumbered real estate in the city of .... , worth double the value of such proceeds, which mortgage I have caused to be recorded in the office of the clerk of the register of the county of All which is respectfully submitted. B. H. H. Dated, &c. 49 386 BOOK OF FORMS. m PKOOEEDINGS TOR SALE OF INFANTS EEAl ESTATE. County, ss: B. H. H., the special guardian named in tlie above report, being duly sworn, deposeth and saith, that she has read the above report, to -which she has subscribed her name, and that she knows the contents thereof, and that the matters therein stated are true. C.B. Sworn, &c. No. 495. . . . Order confirming same. At a special term, &c. Present, &c. [Title as in No. 483.] Oa reading and filing the report of B. H. H., special' guardian of, &c., bearing date on, &c., on motion of J. L. F., attorney for said guardian, it is Dtdeted that the said report be and the same hereby is in all things ratified and confirmed. BOOK OF FOEMS. 387 IN PROCEEDINGS BT aENERAL GUARDIAN FOR PARTITION. FOEMS IN PEOCEEDINGS BT GENERAL GUARDIAN FOE PAR- TITION OE SALE OF infants' REAL ESTATE. No. 496. Petition of general guardian of an infant far authority to partition or unite in a sale of infants' undivided real estate. To the Supreme Court oflJie State of New York! The petition of A. B., of, &c., the general guardian of B. C, an infant, respectfully showeth : That your petitioner was duly appointed the general guardian of said infant, by an order of this court, bearing date on, &c., on his executing and filing the security mentioned in said order ; that said security has been duly executed and filed as required by said order, and your petitioner thereupon entered upon the duties of his trust as such guardian.* Your petitioner further shows that said infant is of the age of years, and resides in the city of , with your petitioner [or with his mother, &c., Sc, as the case may 6e], and is not the owner of any other real estate except that herein men- tioned, which is sought to be partitioned or sold. That the said infant is one of the children and heirs-at-law of H. A. C, deceased, who died intestate, on the ...... day of , seized of certain real estate in said city, to wit : \descrihing it in full!] That said infant, as such heir-at-law, is now a tenant in com- mon, &c., &c. [proceed as in petition No. 366, ante, down to the clause which states that the other tenants in common are infants, at which place insert as follows .•] 388 BOOK OF FORMS. IN PROCEEDINGS B» GENERAL GUARDIAN FOR PARTITION. That the other tenants in common, above named, to wit : A. L. C, H. C, &o., &c. [mentioning them] are of full age,* and are desirous of agreeing to a partition of said premises ; oi- if parti- tion thereof cannot he made, are desirous of uniting with your peti- tioner in a sale thereof; and that one of the said tenants in common, to wit: the said A. L. C, insists upon such partition or sale, and is about to commence an action therefor, unless your petitioner shall be authorized to agree to a partition or sale of said premises, and that such action will necessarily be attended by far greater expense, and will otherwise be less advantageous to the interests of said infant [or, state any other special reason, showing that the interest of the infant will he henefited; state also whether the premises are so situated that they can he actually divided.] "Wherefore, your petitioner prays that he may be authorized and directed, pursuant to the statute in such case provided, as the general guardian for and on behalf of said infant, to agree to a division and partition of said premises, or, in case an actual division cannot he made, then to unite with the other tenants in com- mon in a sale of said premises, or such part thereof as, in the opinion of the court, are incapable of partition ; or for such other or further relief as the court shall think proper-to grant. And your petitioner will ever pray, &c. A. B., General guardian ofB. G., an infant. Dated, &c. (Add verification by guardian, in same form as in No. 481.) Affidavit of co-tenant annexed^ County, ss : A. L. C, of, &c., being duly sworn, deposes and says that he has heard read the foregoing [or annexed] petition, and that the same is true, to the best of the knowledge, information and belief of deponent. That deponent is one of the tenants in common and joint owners of tha.premises in said peti- ' Or the affidavit may be that of some disinterested person, and similar in form to No. 482. BOOK OP FORMS. 389 IN PROCEEDINGS BT GENERAL GUARDIAN FOR PABTITION. tion described; that he is of. full age,, and desires a partition or ?ale thereof, if said premises are incapable of a division ; that he and the other co-tenants of full age are -williugto agree with the said guardian, to a division, or unite ■with him in a sale, if they cannot be divided. That, in the opinion of this deponent, the said premises are so situated that they are capable of being fairly partitioned between the parties,' [or, if not so situated, and a sale is necessary, then add as in -Mk 410*}] A, L. C. Sworn, &a No. 497. Order of reference, thereon wh^e sale is necessary. At a special term, &c. Present, &c., In the matter of the application of A. B., general guardian of 6. 0., an infant, for leave to agree to a partition or sale of such infant's real estate. On reading and filing petition of said guardian, duly verified [and affidavit of A. L. G, annexedi\, on motion of B* McG., it is ordeted that it be referred to A. G. V.,'Esq., of, &c., to inquire into and ascertain the truth of the facts set forth in said petition, and report thereon to this court with all convenient speed. That said referee also inquire and report whether the said premises, or any lot or sieparate parcel thereof, are so circumstanced that an actual partition cannot be made without great prejudice to the owners thereof, that if said referee arrives at the conclusion that a sale of the whole or any part of the premises is neces- ' In this case no preliminary order of reference will, in general, be neces- sary. The affidavit of one of the adult owners that he intends to commence an action, will be suf&cient to authorize the order. 390 BOOK OF FORMS. IK PROCEEDINGS BT GENERAL 6UABDIAN FOB PARTITION. sary, that lie specify the same in his report, together with the reasons which render a sale necessary ; that he also, in such case, ascertain whether, &c. [Proceed as in No. 483, from tJie * to the f .] No. 498. Jiq)ort of referee. SUPEEMB COUET: In the matter of tlie applicatioa of A. B., general guardian of B. C, an in- fant, for leave to agree to a partition or sale of auch infant's real estate. To the Supreme Court of Ike State of New York: Pursuant to an order of reference in this matter, bearing date on, &c., whereby it was referred to me to [state substance of order'], I, the subscriber, the referee aforesaid, do respectfully report, that having been attended by the said guardian and his attorney, and taken testimony upon the matters alleged in said petition and required by said order to be examined, I am satisfied * that the premises mentioned in said petition [or a certain part thereof, spedjying what particular part] are so circumstanced that an actual partition cannot be made without great prejudice to the owners thereof. And I further report, &c., &o. [jRroceei as in No. 483, Jroni the* to the end, maMng the necessary variations to accord iviSi the facts found.] BOOK OF FORMS. 391 IN PROCEEDINGS BY GENERAL GUARDIAN FOR PARTITION. No. 499. Order directing guardian to agree to a partition. At a special term, &o. Present, &c. [Title as in Ko. 49V.] On reading and filing tbe petition of A. B., general guardian of B. C, the above named infant, duly verified, -with the aflGl- davit of A. L. C, thereto annexed [or, if there has been a reference, say, on the report of H. M., the referee herein, hearing date on, &c., from which it appears, &c., dtc.'], and it appearing to the court that a partition of the premises described in the petition herein, can be made, and that sufficient grounds exist for this application : Now, therefore, on motion of B. McGr., of counsel for the peti- tioner, it is ordered that the said A. B., general guardian of said infant B. C., be and he hereby is, pursuant to the statute in such case provided, authorized, empo:wered and directed, as such guar- dian, and for and in behalf of said infant, * to- agree with the other tenants in common and joint owners of said premises (all of whom, as it appears, are of full age), for an actual partition and division of the said premises. And that, s^id guardian, for and in behalf of said infant, with the other tenants in com- mon, or by and under their direction, and with their assent, do make such. division and partition according to the respective rights, titles, estates and interests of the parties, as the same are set forth in said petition [or, as the same are set forth and appear in the report of the said referee], that is to say, that they divide said premises into equal parts, &c., &c. [Set fm-ih particu- larly the mode of partition, including the setting apart or other mode of disposing of a dower interest, if there he one in said premises, similar to a decretal order for actual partition. iSee No. 445, ante.] And it is further ordered that said agreement and partition be 892 BOOK OF FORMS. IK FBOOEEDIHQS BY OENEBAIi OITABDUM FOR PikBTITION. made subject to the approval of the court, and that said guardian, before executing any release or other conveyance of said infant's , interest in said premises, report to the court on oath, the parti- tion and division so agreed upon by him, with a particular de- scription by metes and bounds, of the portion of said premises allotted to each party in interest respectively. The premises herein ordered to be partitioned are described as follows : [Insert description.] No. 500. The like, made on report of referee, directing guardian to agree to a sale and give further security. [The same in form, with necessary variations,'^ as the foregoing down to the *, then add:"] To unite with the other tenants in com- mon and joint owners of said premises (all of whom as it appears, are of full age) in a sale of the said premises mentioned in the said petition, upon executing and filing, with the clerk of the county of , his bond, in the penal sum of $ , with two sufficient sureties, freeholders or householders of said county, each of whom shall justify in double the amount of such penalty, conditioned for the faithful performance, &c., &c. [as in No. 470, ante."] And it is further ordered, that upon the approval and filing of such security the said guardian be and he is hereby authoriaed, with said Other tenants in common, to execute, subject to the further sanction and approval of the court, a written con- tract, &c., &c. [Proceed as in No. 487 from the* to ^ end] 1 The only variations are, that the commencement will be " On reading and filing report," &o. The recital will be, " It appearing that a partition, &c., cannot be made, &c." BOOK OF FORMS. 393 IN PROCEEDINGS BY GENEKAL GUARDUN FOR PARTITION. No. 501. Ouardian's rejportof agreerhent to sell, {Same as No. 488, with the necessary variations. The report of an agreement for actual partition mil be similar in form, and may he made to correspond with a like report by comniissioners in an action for partition. No. 502. Order thereon, confirming report and directing partition and execu- tion of conveyance. At a special term, &c. Present, &c. [TrriiB AS nr No. 491.] On reading and filing report on oath, of tlie above named A. B., general guardian of tte above named infant, B. C, bearing date on, &c., fi:om which it appears, &c. \_set forth substance thereof], now, therefore, on motion of B. McG., of counsel for the said petitioner, it is ordered * and adjudged that the said report, &c., &C. [Proceed as in case affinal judgment for actual partition, eoccept as to costs, the amount of which, however, may be fiaoed, and the guardian authorized to retain the same out of trust funds in his hands']. No. 503. The like, authorizing sale and disposition of the proceeds. [Same as the foregoing to the*, then add:] That the said report, and the agreement therein mentioned, be and they are hereby ratified and confirmed. 50 394 BOOK OF FORMS. m PROCEEDINGS BT GENERAL GUARDIAN TOR PARTITION. And it is further ordered, that the said general guardian, A B., do unite with the adult owners and tenants in common of said premises, and in the name arid on behalf of said infant do execute, &c. [Proceed as in No. 489, ' from the *, with the necessary variations, and adopting the directions in regard to the investment or other disposition of the proceeds to the facts of the case.] No. 504. Except, of course, as to the title, which will be as iji No. 498. BOOK OF FORMS. 395 IN PROCEEDINGS FOK SPEOIFIO PERFORMANCE BY INFANT. FOKMS IN PEOCEEDINGS TO OBTAIN ON THE PART OF AN INFANT HEIE, A SPECIFIC PERFORMANCE OF THE CON- TRACT OF HIS ANCESTOR. No. 505. Petition hy eaxcutors, etc., to compel specific performance by infant heir. To the Sup-eme Court of the State of New Torh: The petitioa by A. B. and A. C, of, &o., respectfully showeth : That L. A. 0., late of the town of, &o., departed this life on or about the . . . day of , leaving him surviving, his widow, the said A. C, and two children, who constitute all his heirs-at-law, to wit : S. C, "who is of full age and resides at, &c., and K C, who is an infant, of the age of .... years, and resides with his mother, the said A. 0., at, &o., and that his said mother has also been duly appointed and qualified to act as the general guardian of said infant. [Or, that said infant has no general or testamentary guardian,] That your petitioners have been duly appointed by the surro- gate of the county of , and have qualified to act as executors and executrix of the last will and testament of the said L. A. C, deceased [or, as administrator, &c., as the case may Se], and letters testamentary [or, of administration], were duly issued to them by said surroga,te, on the, &c.* That said L. A. C, in his lifetime, to wit, on, &c., entered into a written contract with one J. B., of, &c.,,by which said L. A. C. covenanted and agreed with said J. B. to convey to him, the said 396 BOOK OF FORMS, IN PROCEEDINGS JOE SPECIFIC PERFORMANCE BT INFANT. J. B., the premises which are particularly described, and at the time and upon the terms and conditions mentioned in said agree- ment, a true copy of which is hereto annexed, and forms part of this petition. The said J. B. paid said L. A. C, in his lifetime, upon the said contract, the sum of $ , leaving still unpaid the sum of $ « , which he, the said Jj B., is now willing and desirous,, and offers to pay, on receiving a proper conveyance of the premises mentioned in said agreement. That said L. A. C. having died before this time for such con- veyance, mentioned in said contract, had arrived, the same remains unexecuted ; and that the title to said premises is now vested, under and by virtue of tlie provisions of said will, in said infant, N. C, and your petitioner, the said A. C. [or, if there he no will, that the tith has passed hy descent to said heirs, P. C. and N. C, subject to the dower right of your petitions; the said A. G. ; or otherwise, as the case may he.'] Your petitioners are desirous that a specific performance of said contract, 6n the part of said infant, should be ordered and de- creed; as are, also, the said X B. and, &c. [state Ike names of any other persons interested who consent'], as will- more fully appear by their written consent hereto annexed.' Your petitioners, therefore, pray that the said infant may be ordered and directed specifically to perform the said contract, and to convey [or unite with your petitioner, the .said A. C, in a conveyance df] all his right, title and interest in and to the said premises, to thie said J. B., according to the terms of said Contract, upon the performance, by the said J. B., of the covenants and agreements to be peffornied by him ; ia,nd that yoiir petitioner, A. C, the said general guardian- of said infant, be appointed guardia,n ad litem of said infant [or, iftkeri he no general guardian, say, that a gimrdinn ad iitehi of said infant'be appointed hy the court], for the purpose of this application, and to execute, acknowledge and deliver, in the name and on behalf of said infant, feuch con- veyance to said J. B., upon his complying '^itla. his said covenants ' If such consent of any party in interest be not given, he must be served with notiee of application. See port, No. 508. BOOK OF FORMS. 397 IN PROCEEDINGS FOE SPECIFIC PERFORMANCE BY INFANT. as aforesaid. Or for such other or further relief as the court shall think proper to grant. And your petitioners will ever pray. A. B. A. 0. Dated, &c. (Add verification and written consent of the person proposed as guardian ad litem, with proof of signature, as in Nos. 371, 372. Also, written consent of any party in interest, as in the following form.) No. 506. Consent by party in interest to perform contract, [TiTLK AS m No. 508.] I, the subscriber, J. B., one of the parties to the contract set forth in the annexed petition, do consent to the presentation of said petition and subsequent proceedings thereon, without further notice, and the granting, by the court, of the order prayed for therein ; and I hereby offer to perform the covenants and agree- ments, in said contract mentioned, to be performed on my part, and to pay the balance of the purchase-money remaining unpaid, on the delivery to me of the proper conveyance of said premises, executed on behalf of said infant, under the order of the court [Or, if an heir, or other party in interest, say: And Thereby offer to unite with the guardian ad litem of said infant in a conveyance of said premises, under the order of the court, pursuant to the terms of said contract, on the performance, by the purchaser, J. B., of the covenants on his part to be performed^ J. B. Dated, &c. (Add acknowledgment.) 398 BOOK OF FOEMS. IN PROCEEDINGS EOE SPEGIFIO PERFORMANOE BY INFANT. No. 507. Petition hy surviving party to contract of deceased vendor, to compel infant heir to convey. To the Supreme Court of the State of New York : The petition of A. B., of, &c., respectfully showeth : That on or about the day of , your petitioner entered into a contract in writing with one C. D., of, &c., and now deceased, for the purchase, by your petitioner, of a certain lot of land and premises, situated in, &c., a copy of which con- tract is hereto annexed and marked A. The description and boundaries of such lot of ground and premises are as set forth in said contract. That at the time of making such contract, your petitioner paid to the said 0. D. the sum of $ , mentioned in the said con- tract, by way of deposit thereon. That before the period fixed therein for the completion of the purchase embraced thereby, and on or about the day of , he, the said C. D., departed this life, leaving such contract unperformed but binding upon him and upon his heirs. That the said C. D., as your peti- tioner is informed and believes, died intestate, and leaving (his widow M. D., and) E. D., his only child and heir-at-law, upon whom the legal estate in such premises has descended, subject to the rights of your petitioner. That your petitioner was and hath been (ever since the day fixed in such contract for its com- pletion), ready and willing to perform the same; and is now willing and desirous to have 'the same executed. Your petitioner therefore prays that the said E. D., the infant heir (and the said M. D., widow of the said C. D., deceased), may be decreed to convey such lot of ground and premises to your petitioner, upon his paying or securing to be paid, as this court shall direct, the balance required to be paid in and by the con- tract aforesaid. And that the clerk of this court or some other suitable and proper person may be appointed guardian ad litem BOOK OF FORMS. 399 IK PKOOEEDINGS POE SPECIFIC PEBFOBMANCE BY INFANT. of said infant for the purpose of this application, and to execute and deliver to your petitioner, in the name and on behalf of said infant, such conveyance, upon such performance by your peti- tioner, or for such other or further relief as shall be just. And your petitioner will ever pray. A. B. Dated, &c. "(Add verification.) No. 508. Notice of presentation of petition. SUPBEME COURT : lu the matter of the application of A. B., to compel the specific performance by E. D., an infant, of contract of his ancestor. To E. p. and M. D. : Take notice; that upon the petition, with a copy of which you are herewith served, a motion will be made at, &c., on, &c., at the opening of the court on that day, or as soon thereafter as counsel can be heard, that the prayer of the said petition be granted, and that said infant be ordered specifically to perform, &c. [as in the prayer of the petition'] • or for such other or further order as the court shall think proper to grant. Yours, &c., B. McG., Attorney for petitioner. Dated, &o. 400 BOOK OP FORMS. IN PROCEEDINGS FOR SPECIFIC PERFORMANCE BY INFANT. No. 509. Order of reference thereon, containing clause for apjpointing gimrdian ad litem conditiofidtli/. At a special term, &o. Present, &c. [Title as in the FOBEaoma.] On reading and filing the petition of the above named A. B., duly verified (and on proof of service of copy thereof, with notice of motion on M. D., widow, &c.), and on motion of B. McG., of counsel for the said petitioner, it is ordered that it be referred to H. H., as referee, to examine and report as to the truth of the matters set forth therein ; and to ascertain and report whether it is proper that a specific performance of such agreement ought to be decreed, with liberty to state any special circumstances, and also ascertain and certify the age of the said M. D., and whether she is willing to release her dower in the premises ; as also the amount and value of her dower in the said premises mentioned in the said contract. And it is further ordered ^ that J. T. D., the clerk of this court [or, F. B., one of the attorneys of this court] is hereby appointed guardian of E. D., the infant heir of the said C. D., to appear for him on such reference and in all future pro- ceedings herein, and to whom (as well as to the said M. D., widow of the said C. D., notice of all future proceedings is to be given, unless within days after service of a copy of this order on said infant and his said mother with whom he resides, the said infant, or some one in his behalf, procures the appointment of a guardian ad litem for said infant, and gives notice thereof to the attorney for the petitioner.' ' If the infant have a general guardian; or, if the petition on which the order is allowed specify the name of a person to be appointed, whose consent is annexed to the petition, and the application is made on service of petition and notice, such person will be appointed absolittely. The court may require such guardian to give security. BOOK OF FORMS. 401 IN PROCEEDINGS FOR SPEOIFIO PERFOEMANOE BY INFANT. No. 510. Heport of referee thereon. [Title as in No. 508.] To the Supreme Court of the State of New York : Pursuant to an order of this court bearing date on, &c., whereby among other things it was referred to me to examine and report, &c. \_Staie substance of order.] I, the subscriber, the said referee, do respectfully report that I have been attended by the counsel for the petitioner [rmd by said, dec, mentioning therri],^ and having heard the proofs and allegations of the parties, I fiad that all the material allegations in said petition are true. * I also find, &c. [State special facts and circumstances.] I also find and report that said M. D., the widow, is willing to accept a gross sum in lieu of her dower, and that the value of her dower interest in said premises, calculated on the principles of life annuities, is $ , the entire value of said premises being the sum of $. . . ., and the age of said widow years, and that on the payment of such sum she is willing to release her dower interest. I also find knd report that the amount still due and unpaid on said contract by the said petitioner, for principal and interest to the date of this report, is the sum of $ , on the payment of which by the said petitioner (as he offers to do), the said contract in my opinion, ought to be specifically performed on the part of said infant. [The proofs taken by' me on such reference are hereto annexed] ;' and I certify my fees, as referee, at the sum of$ All which is respectfully submitted. H. H., Heferee. Dated, &c. ' If all the parties interested have not appeared, the report must also state that due proof was made that such parties (naming them) were served with notice of the time and place of reference. ^ This is necessary only when the order of reference directs the proofs to be reported. 51 402 BOOK OF FORMS. IN PROCEEDINGS FOB SPEOIMO PERFORMANCE BY INFANT. No. 511. Order directing specific performance hy infant {made without pre- liminary reference) on petition, of executor. At a special term, &c, Present, &o. [Title as in No. 508.] Oa reading and filing the petition of A. B. and A. C, the executor and executrix of L. A. C, deceased, bearing date on, &c., duly verified, praying that N. C, the infant son and heir-at- law of said L. A. C, might be ordered and directed specifically to perform the written contract between said L. A. C, deceased, and J. B., executed on the, &c., and set forth in, and a copy thereof annexed to, said petition ; and on reading and filing the written consent of said J. B., thereto annexed \andthe consent of and , who are interested in, and offer to unite in, the conveyance of the premises mentioned in said contract; and on proof of service of diie notice of this application on said, &c.'\, and the court being satisfied that said contract ought to be performed, now, therefore, on motion of B. McG., of counsel for the peti- tioner, it is ordered and decreed* that the said contract be speci- fically performed by and on behalf of said infant by a conveyance of the premises mentioned in said contract to said J. B., on the performance by him of the covenants and agreements in said contract by him to be performed, to wit: the payment of the sum of $ to the petitioners, the said executor and execu- trix of said L. A. C. And it is further ordered and decreed, that the said petitioner, A. C, the general guardian of said infant \or, ifHiere he no general guardian, then appointing a guardian ad litem, who shall have consented, in writing, to act as sudi], be, and slie hereby is, authorized, empowered and directed, as guardian ad litem of said infant in this matter, in the name and on behalf of said infant to execute, acknowledge and deliver to said J. B., BOOK OF FORMS, 403 IN PROCEEDINGS FOR SPECIFIC PERFORMANCE BY INFANT. a good and sufficient conveyance [or, unite with, &c., as the case may be'], on Lis complying with said agreement, by the paj'ment to said executors of the sum aforesaid. And it is further ordered, that the sum of $ , adjudged as the costs of these proceed- ings, be charged upon, and retained by, the petitioners out of the said payment. [A dame may he inserted directing the guardian to maJce a report of his proceedings under this order to the court^ The following is a description of the premises hereby directed to be conveyed. \Insert description as in contract] No. 512. TJie like made on report of referee. At a special term, &c. Present, &c. [Title as in No 508.] On reading and filing the report of H. H., Esq., referee in this matter, bearing date, &o., from which it appears that, &c. [stating suhitance'], and it appearing to the court therefrom, that the con- tract described in, and a copy whereof is annexed to the petition in this matter, ought to be specifically performed; and on due proof of service of this application on, &c., no one appearing to oppose [or, after hearing, c.], and incapable of the government of himself or the management of his affairs, as, by reference thereto, will more fully appear. That [five] of said jurors dissented from the inquisition so found, and were in favor of finding your peti- tioner of sound mind and memory, as your petitioner is informed and believes. Your petitioner further shows that S. H. C, of, &c., who is a son of your petitioner, since the execution of said commission, as your petitioner is informed and believes, has been appointed committee of the person and estate of your petitioner, and, as such committee, has taken possession and assumed the control of the whole real and personal estate of your petitioner. Your petitioner further shows that he is of sound mind, and entirely competent to manage his own affairs and business (as appears by the affidavits hereto annexed), and which your peti- tioner can fully establish by satisfactory proof Your petitioner therefore prays that an order may be granted allowing your petitioner to traverse the said inquisition, and that ' This statement of the preliminary circumstances is, of course, to be varied to correspond with the actual circumstances. 432 BOOK OF FORMS. IK PROCEEDINGS AGAINST LUNATI03, DRUNKARDS, ETC. an issue may be awarded to try the fact of the lunacy of your petitioner, and whether he is incapable of the government of him- self or the management of his affairs ; and also that your peti- tioner be allowed out of his estate a reasonable sum to defray the costs and expenses of trying said issue, and the costs of this appli- cation, and for such further relief as the court may deem proper. CD., Dated, &c. No. 545. Yerification hy lunatic. [Same as No. 521, with the addition to the jurat, as in No. 563.] No. 546. Affidavit of physician annexed to petition, [Same as No. 564.] No. 547. Notice of motion for leave to traverse inquisition. [Title as m No. 544.] SiK — Take notice that a motion will be made at the next special term of this court, to be held at , on the day of instant, at o'clock A. M., or as soon thereafter as counsel can be heard, for an order that the petitioner, CD., have leave to traverse the inquisition in this mat- ter, or that an issue be awarded to try the fact of the lunacy of the said C. D., and whether he is capable of the government of himself, or the management of his affairs; and that said 0. D. BOOK OF FORMS. 433 IN PROCEEDINGS AGAINST LUNATICS, DRUNKARDS, ETC. be allowed out of his estate a reasonable sum to defray the costs and expenses of trying said issue, and the costs of this applica- tion. And for such other or further relief as the court may think proper to grant, which motion will be founded upon the inqui- sition in this matter, and upon the petition and affidavits, with copies of which you are herewith served. F.S., Attorney for petitioner. Dated, &c. No. 548. Order directing issues of fact. At a special term, &c. Present, &c. [Title as m No. 544.] On reading and filing the petition of C. B., above mentioned, dated the .... day of . .' i 18 . . , praying for an order directing an issue to try the question whether the said C. D. is a lunatic, and incompetent to govern himself or manage his estate ; and on reading and filing the affidavits of and others, in support of said petition, it is, on motion of F. S., attorney for the said petitioner, after hearing C. L. B., in behalf of the com- mittee of the said C. D., ordered that an issue be made up and settled to try the question whether C. D., above mentioned, be a lunatic and incapable of the government of himself or the man- agement of his affairs ; and that the said issue be tried at the next circuit court to be held in and for the county of And it is further ordered, that the attorney for the said C. D., in the first instance, prepare the issue and submit it to the attor- ney of the said committee, and that if they cannot agree as to its form, &c., that application be made to this court ; and that, if the attorney for the said C. D. shall omit to prepare such issue, and 66 434 BOOK OF FORMS. IN PROCEEDINGS AGAINST LUNATICS, DRUNKARDS, ETC. to serve the same on the attorney for the said committee within twenty. days after service of a copy of this order, then the order for an issue shall be deemed discharged. And it is further ordered, that the said committee pay to the attorney of said 0. D. the sum of dollars; and also, pay to said 0. D., or to his attorney, such further reasonable sums as shall be requisite to procure the attendance of witnesses upon the trial of said issue, and for the employment of proper counsel before the court and jury. No. 549. Order of reference to referee to settle issues. At a special term, &e. Present, &c. [Title as in No. 544.] On reading and filing petition of, &c., for leave to traverse the inquisition in this matter, which petition bears date on, &c., on motion of B. McG., attorney for the petitioner, it is ordered that it be referred to E, 0. M., Esq., counselor-at-law, residing in . . . , referee, to settle the issues upon the several questions of fact arising upon said petition, and to report the same to the court with all convenient speed. And it is further ordered, that said issues, when so settled and reported to the court, be tried at the next circuit court to be held at, &c. No. 550. Report of referee settling issues. BOOK OF FORMS. 435 IN PROCEEDINGS AGAINST LUNATICS, DRUNKARDS, ETC. No. 551. i^otice of motion on verdict of jury. [Title as in Ko. 544.] To, &c. : Take notice tliat upon tlie verdict of the jury in tbe above entitled matter, filed and entered in tbe office of tbe clerk of county, and upon tbe petition and proceedings in tbis matter, a motion will be made at tbe next [present circuit court and'\ special term of tbis court at , on tbe, &c., tbat tbe said verdict be confirmed and tbat, &c. [Proceed according to the verdict, either that the commission he superseded, if in favor of the lunatic, and an accounting, if necessary, be taken; or, if against the lunatic, that an application for a committee will he made.] No. 552. Order thereon superseding commission and directing an accounting. At a special term, &c. Present, &c. [Title as in No. 544.] On tbe coming in and filing and entering tbe verdict of the jury on tbe issues of fact in this matter, whereby it is found that, &c. [state substance of finding of the jury], and after bearing coun- sel for the parties herein, on motion of of counsel for the petitioner in tbe said traverse, it is ordered that tbe com- mission of lunacy heretofore issued out of and under the seal of tbis court, against C. D., and bearing date on the, &c., and the inquisition arid other proceedings taken thereon be and the same are hereby superseded, &c., and that A. B., the committee be and 436 BOOK OF FORMS. IN PROCEEDINGS AGAINST LUNATICS, DRUNKARDS, ETC. he hereby is discharged from the further execution of the powers and duties of his trust as said committee. And it is further ordered that it be referred to C. L. B., Esq., of, &c., eounselor-at-law, to take and state the account of the said A. B., committee of the person and estate of the said 0. D., and for that purpose to summon the said A. B. before him, the said referee, and examine him on oath touching said accounts, and to produce before him, the said referee, the books, papers and vouchers of said committee, and ascertain what (if any) balance is due from said committee, and report thereon to this court -with all convenient speed. [And it is further ordered that the question of costs and all other questions be reserved until the coming in of the report of said referee.] No. 553. Petition by creditor for payment of debt of lunatic or leave to sue. SUPEEME COURT: In the matter of the apphcation of A. B. 0. To the Supreme Court of the State of New York: The petition of A. B. C, of, &c., respectfully shows : That C. D. is justly indebted to your petitioner in the sum of $ , ■with interest thereon from the day of , being the balance of an account [stating the cause of indebtedness'], a true account and schedule whereof is hereto annexed, marked A. And your petitioner further shows that the said C. D. is also indebted to your petitioner in the further sum of f , with interest thereon from the day of for the, &c. \stating cause of indebtedness, as above^ And your petitioner further shows, that he is informed and believes, that the said C. D. has been, declared a lunatic by the BOOK OF FORMS. 437 IK PROCEEDINGS AGAINST LUNATICS, BEUNKABDS, ETC. Supreme Court, and that A. B., of, &c., has been appointed and is now the committee of the person and estate of said lunatic. Your petitioner further shows that he has presented the said account [or accounts] to the said committee for payment ; but the said committee declines [or refuses or neglects'] to pay the same, or any part thereof, and that said several sums and interest, as above set forth, are now justly due to your petitioner. Your petitioner therefore prays, that the said 0. D. may be ordered to pay * the said account so due to your petitioner, and that said A. B., committee as aforesaid, may be ordered and directed to pay the same out of the property, estate and assets of the said 0. D. in his hands, as committee as aforesaid, with the costs of this application ; or for such other or further relief in the premises as the court may think proper to grant A. B. C. Dated, &c. (Add verification.) No. 554. Notice to committee of mction. [Title as in the toregoing.] To A. B., committee, &c., of the person and estate ofC D., a lunatic- Take notice, that upon the petition, with a copy of which you are herewith served, a motion will be made at the next special term of the Supreme Court, appointed to be held at , on the .... day of , at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order that the prayer of the petition be granted ; that is to say, &c., &c. [as in prayer of petition]. Yours, &c., M. K C, Attorney for Plaintiff. Dated, &c. 438 BOOK OF FORMS. IN PROCEEDINGS AGAINST LUNATICS, DRUNKARDS, ETC. No. 555. Order of payment thereon. At a special term, &c. Present, &c., [Title as m No. 553.] On reading and filing the petition of A. B. C, of, &c., dated the day of praying for an order requiring A. B., committee of the person and estate of C. D., the above named lunatic, to pay the accounts and demands stated in said petition, &c, ; and after hearing C. L. D., counsel for the petitioner, and M. K. C, counsel for the said committee, it is ordered* that the committee of the estate of C. D., above named, pay to the said petitioner, or to his attorney, within .... days from the ser- vice of a copy of this order upon him, the amount of the said peti- tioner's claims, mentioned in said petition, and which are here adjusted at the sum of dollars and interest thereon, from the day of , together with ten dollars, costs of this application. No. 556. Order granting leave to sue. [Same as foregoing down to the *, then oM-] that A. B. C, above named, have leave to bring an action in the Supreme Court [or other court\ against A. B., the committee of said luna- tic, for the purpose of establishing and adjusting the claims and accounts mentioned in said petition, and the amount due thereon, if anything, to the said petitioner ; and that the said petitioner, if he shall think proper so to do, may join the said C. D., as a party defendant in said action. BOOK OF FORMS. 439 IN PROCEEDINGS AGAINST LUNATICS, DRUNKARDS ETC. No. 557. Order of reference to examine. claim. \_Same as 553 down to the *, then add/] that it be referred to H. H., residing in the county of , to pass upon and adjust the several accounts and demands of the said petitioner, mentioned in the said petition, and to determine the amount justly due the said petitioner thereon ; and that the said referee make his report to the court with all convenient speed. No. 558. Report of referee thereon. [Title as in No. 553.] To the Supreme Court of the State of New York: I, the subscriber, referee, to whom it was referred by an order of this court, bearing date on the, &c., to pass upon and adjust the account, &c., &c. [as in the order], having been attended by the counsel for the respective parties, and heard the proofs and allegations of said parties, and examined the matters so referred, respectfully report, that I find [on a just and final settlement of the accounts of the parties, a statement whereof is hereto annexed, and forms part of this report] there is due from the said lunatic, C. D., to the said petitioner, A. B. C the sum of $ , to which said petitioner is entitled, together with interest thereon from [this date] and the costs of this application. All which is respectfully submitted. H. H., Heferee. Dated, &c.. 440 BOOK OF FORMS. IN FBOOEEOINGS AGAINST LUNATICS, DRUNKARDS, ETC. No. 559. Order thereon, confirming report and directing payment. At a special term, &c. ' Present, &c. [Title as in Ko. 653.] On reading and filing report of EL H., Esq., referee in this matter, bearing date on, &o., by whicli it appears, &c. [stating substance\, on motion of, &c., it is ordered that said report be, and the same hereby is, ratified and confirmed. It is further ordered \as in No. 565 from the * to the end]. No. 560. Inventory and account current of com.mitfee, l&ime as No. 466.] BOOK OF FORMS. 441 IN PROCEEDINGS TO SUPERSEDE, ETC., COMMISSION. FORMS IN PROCEEDINGS TO SET ASIDE OR SUPERSEDE COMMISSION. No. 561. Petition lo set aside commission for irregularity. [Title as in No. 521.] The petition of C. D., of, &c., respectfully sLows : That, under and by virtue of a commission in the nature of a writ de lunatico inquirendo, heretofore issued out of and under the seal of this court, and an inquisition thereon taken, your peti- tioner was found a lunatic [or habitual drunkard or idiot, as the case may be], and such proceedings were thereon taken that said inquisition having been confirmed by the court, one A. B. was appointed committee of the person and estate of your petitioner by an order of this court, bearing date, on, &c., on filing the security mentioned in said order, and that such security has been duly filed. * That no notice of the issuing of such commission or of the hearing or trial thereon, or of the appointment of said committee, was served upon your petitioner, [and that he had no knowledge of said proceedings until after said inquisition was taken, to wit : On the day of ] {Or that the commissioners interfered with the sheriff in the discharge of his duties in selecting the jury, or any other irregularity.) Wherefore your petitioner prays that the said inquisition and finding of said jury, together with all subsequent proceedings in this matter, including the order appointing said committee, be set aside on account of the aforesaid irregularity, to the end that your petitioner mB,y4he enabled to come in and contest said appU> 56 442 BOOK OF FORMS. IN PEOOISEDINGS TO SUPERSEDE, ETC., COMMISSION. cation, and have an opportunity to appear and be heard on the execution of said commission ; or, for such other or further relief in the premises as the court shall think proper to grant, together with costs of this motion against the said applicant for said commission. And your petitioner will ever prav, &c. CD. Dated, &c. (Add jurat as in No. 621, adding as in No. 563.) No. 562. Petition to suspend inquisition to enable party to make a will. [Title as in No. 521.] To the Supreme Court of the State of New Yorle: The petition of 0. D., of, &c. : [Same as in the preceding form, down to the *.] That said committee thereupon entered upon the discharge of the duties of his trust, and has ever since continued in the due execution thereof. Your petitioner further shows, that since the finding of said inquisition he has so far recovered his health, and the full possession of his mental faculties as to be capable, as he believes, to manage his own affairs, and to make a proper and just disposition of his property and estate. [Or, in case of an habitual drunkard, that he has wholly and voluntarily abstained from the use of spirituous or intoxicating liquor for more than months, and ever since the finding of said inquisition.]- Your petitioner further shows that he is desirous of making a testamentary disposition of his real and personal estate, and mainly for the purpose of making a suitable provision for an indigent relative of your petitioner, with whom your petitioner has a long time past resided, and who has a claim upon your petitioner for constant care and attention in sickness and for many acts of kindness, and who, in case of your petitioner's death BOOK OF FORMS. 443 IN PROCEEDINGS TO SUPERSEDE, ETC., COMMISSION. intestate, will be left without any means of support; your peti- tioner having reason to believe that his next of kin and heirs-at- law, all of whom are of full age, and in prosperous circumstances, will make no suitable or adequate provision for said relative. [Or, set forth any other circumstance showing the propriety of allow- ing the petitioner to make a will.l Wherefore your petitioner prays that the commission and inquisition in this matter may be suspended so far as to enable your petitioner to execute a last will and testament; and for that purpose that he be at liberty to appear before the court in person, or before a referee to be appointed by the court, in order that he may be examined respecting his capacity to make such last will and. testament. And your petitioner will ever pray, &c. CD. Dated, &c. (Add jurat as in the next following form.) No. 563. The like to supersede inquisition and commission. [Same as in No. 561 down to the*, then add:] That the said A. B., committee as aforesaid, thereupon entered upon the duties of his trust, and took possession of the property, real and per- sonal, of your petitioner. Thkt your petitioner is now of sound mind and understanding, and entirely competent to manage his own affairs and business, as appears by the affidavits hereto annexed, and which your petitioner can fully establish by numer- ous individuals, physicians and others. Your petitioner therefore prays that he may be at liberty to appear in person in court, or before a referee, for the purpose of being examined as to his sanity of mind, and his competency to manage himself and his property ; and that the said commission, and inquisition and proceedings therein, may be superseded forth- with, and that a supersedeas may issue for that purpose, and that 444 BOOK OF FORMS. IN PROCEEDINGS TO SUPERSEDE, ETC., COMMISSION. a referee may be appointed to take and state the account of said committee, or for such other or further order as may be proper. CD. Dated, &c. \Jurat to the petition as in No. 521, adding.^ And I further cer- tify that I have examined the said C. D., for the purpose of ascertaining the state of his mind, and whether he is capable of understanding the nature and object of said petition, and that he is apparently of sound mind and capable of understanding the same. C.L. A., Commissianer of Deeds. No. 564. Affidavits to be annexed to petition. [Title as m No. 521.] County of , ss: W. P. S., of, &c., in said county, being duly sworn, says that he is now, and has been for the last ten years, a practicing physician in said town of, &c. ; that he is well acquainted with the said 0. D. [and has been his family physicianfor the last three or four years'], and has during that time frequently attended him professionally. That during the last month past deponent has had frequent interviews and conversa- tions with the said 0. D., and has seen him almost daily during that time. That this deponent verily believes that the said C. D. is now perfectly sane, and competent in every respect to manage himself and his own business and affairs. And that deponent believes that said 0. D. has been of sound mind and competent to manage himself and bis a 18 . ., cause to be drawn up and filed in the office of the clerk of county, in this state, speci- fications of his said lien, consisting of a bill of particulars of the said demand [or copy of contract, as the case may he], with a state- ment of the amount claimed to be due from such vessel, the cor- rectness of which was sworn to by said applicant [or other author- ized person], a copy of which said bill of particulars is herewith ■ filed and made a part of this application, the items of which set forth therein, compose the said debt, which is a lien upon the said vessel, her tackle, apparel and furniture. That the said vessel is a seagoing vessel, bound upon a foreign voyage. And your applicant further shows that he has caused, &c. [as in No. 623]. No. 626. Form of an application for a warrant, whenever any ship, &c., has been run down or afoul of by another ship, according to § 33. [Title as in KTo. 623.] To the Honorable , &c. [as in No. 623]. The application of A. B. respectfully shdweth that the appli- cant has due him a debt amounting to dollars [not less BOOK OF FORMS. 493 IK PROCEEDINGS AGAINST SHIPS AND VESSELS. than fifty dollwrs\, by reason of the running down or afoul of the ship , on the day of > 18 . ., within this state, whereof the applicant is the owner, by the said ship , through the negligence \or willful misconduct, as the case may he] of those navigating said ship ; damage having been sustained by the said ship C , in conse- quence thereof, to. the extent of dollars ; that the items of such damage are set forth in the schedule hereto annexed, and made a part of this application ; that said damages, as a debt, are a lien upon said ship , her tackle, apparel and furniture, according to the provisions of the statute providing for the col- lection of demands against ships and vessels, passed April 24, 1862.. That ten days have not elapsed since the damages accrued by the reason of the said ship C , being run down or afoul of by the said ship , as aforesaid. And your applicant further shows, that he has caused to be duly executed, and herewith submits, an undertaking; &c. [as in No. 623.] No. 627. Form of the Undertaking to he filed hy the applicant. Before the Honorable , Justice of the Supreme Court. In the matter of the attaohmeut i of f The ship , her tackle, ap- ^ parel and furniture. \ A. B., having applied to , one of the justices of the Supreme Court f Or a warrant to enforce a lien of the said appli- cant upon the ship , and to collect the amount of his said claim against the said ship , which is a lien'there- upon, as aforesaid. We, A. B., of , and C. D., of do undertake, pursuant to the requirements of the statute in such cases made and provided, in the sum of \not less than $100], that if the said applicant do not, within three months, prosecute any bond which may be given upon the dis- 494 BOOK OP FORMS. m PHOOEEDINGS AGAINST SHIPS AND VESSELS. charge of such -warrant; or if he be finally adjudged in any action brought upon said bond, not to have been entitled to such warrant, they will pay all costs that may be awarded against such applicant, not exceeding said sum of dollars, and all damages which may be sustained by reason of the seizure of said ship, not exceeding the sum of fifty dollars. \_Sureiies to acknowledge and justify.'] No. 628. Form of warrant. To the Sheriff of the County of , New York, GREETING : Whereas, A. B. this day presented to me an application, duly verified, and exhibited an account of his demand against the ship (or vessel) called , no w at the port of , within this state, whereby it appears that a lien exists upon said ship (or vessel) for the sum of dollars, and said applicant has also filed the undertaking required by law, and has prayed for a warrant to enforce the lien of said debt, and to collect the amount thereof, pursuant to the provisions ' of the statute pro- viding for the collection of demands against ships and vessels : Therefore, you are hereby commanded to attach and safely keep the said vessel, her tackle and apparel and furniture, to satisfy such claim, if established to be a lien upon such vessel, according to law, and to make return of your proceedings under this war- rant, within ten days after you shall have made such seizure. Witness my hand and seal this day of , 18 . . , at (Signed) , Justice of the Supreme Court. A. Y., Attorney for applicant, street, No BOOK OF FORMS. 495 IN PKOOEEDINGS AGAINST SHIPS AND VESSELS. No. 629. Form of notice to be published withiri three days after issuing of the warrant according to Section nine. In the matter of Ship (or vessel) her tackle, apparel and furiii- ture. Notice is hereby given that a warrant of attachment was issued by the Honorable , one of the justices of the Supreme Court in and for the county of and State of New York, on the day of , 18 . . , and within three days last past, for the sum of dollars, on the application of A. B., directed to the sheriff of said county, com- manding him to attach, seize, and safely keep the said ship . . . . , belonging to the port of , and that said ship, her tackle, apparel and furniture will be sold for the payment of the claim against her, unless the master, owner, consignee, or some person interested therein appear and discharge the said warrant, according ' to law, within thirty days from the first publication of this notice, which is on the day of , 18 . . . A. y.. Attorney for Applicant, at .... street, No Dated this day of 18 . 496 BOOK OF FORMS. IN PEOOEEDINGS AGAINST SHIPS AND VESSELS. No. 630. Form of hond of discharge, given ly owner, etc., under the 11th section of the act. Before the Honorable , one of the justices of the Supreme Court. In the matter of the attachment i of f The ship , her tackle, apparel ^ and furniture. 1 Know all men by these presents, that we, E. F., residing at of street, in the of ' owner [or consignee, etc., as the case may he\ of the ship , and Gr. H., residing at , . , of street in the of ' are held and firmly bound unto A. B., of , in the sum of dollars \_dovble the amount of the claim, at least], of lawful money of the United States of America, his executors, adminis- trators or assigns, for the payment of which, well and truly to be made, we and each of us hereby bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this day of ,18.. . Whereas, the sheriff of county, in the State of New York, has seized the ship , her tackle, apparel and fur- niture, by virtue of a warrant of attachment issued on the appli- cation of A. B., on the day of , 18 . . ; now the condition of this bond is such that if the obligors shall pay the amount of any and all claims and demands which shall be estab- lished to be due to the said A. B., and to have been subsisting liens upon such vessel, pursuant to the provisions of an act entitled " An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, then this bond to be void, otherwise to remain in full force and virtue. ' In the city of New York it is the practice to state not only the place of residence, but also the place of doing business. BOOK OF FOEMS. 497 IN PROCEEDINGS AGAINST SHIPS AND VESSELS. No. 631. Order discharging warrant. Before the Hoa , justice of tlie Supreme Court. In the matter of attachment of The ship , her tackle, etc. A warrant of attachment having been heretofore issued by me to the sheriff of county, pursuant to the provisions of an act entitled, "An act to provide for the collection of demands against ships and vessels," passed April 24, 1862; on the appli- cation of A. B., against the ship , and the said ship having been seized by the said sheriff, and , the owner of said ship having applied to me for the discharge of the said ship from said seizure and attachment, and having executed a bond, with proper surety, according to the provisions of the act aforesaid, on motion of , attorney for said applicant, I do hereby order that said warrant be and the same is hereby discharged. Signed, , Justice of the Supreme Court. Date of the order. No. 632. Complaint in the suit on the bond, when the ship has not left the port after contracting the debt. [Title.] The plaintiff, by his attorney, , complains of the defendants, and alleges as follows : That was, as the said plaintiff is informed and believes, the owner [or, master, as the case may le\ of the ship [or vessel] at the times and place hereinafter stated and named, and that ship ..... was then 63 498 BOOK OF FORMS. IN PROCEEDINGS AGAINST SHIPS AND VESSELS. and there a seagoing and ocean-bound vessel. That previously to the day of , 18 . . , at the port of , the defendant, , owner of the said ship , had con- tracted a debt, of the said plaintiff, within this state, on account of [Iiere state the nature of the debt, in the language of the act, as nearly as possible'], all of which were of the value of dollai-s, and that there was due to the plaintiff, upon said account, on the said day of i 18 . . , the sum of dollars, over and above all payments and just deductions.* That on the day of i 18 . . , and within six months from the time the said debt was contracted by the said , owner of the said ship, as aforesaid, and before the said ship , had left the port of , within this state, at which said debt was contracted, the said plaintiff, in proper form, and pursuant to the provisions of an act entitled " An act to provide for the collection of demands against ships and ves- sels," passed April 24, 1862, made application to the Honorable , an officer authorized by law to perform the duties of a justice of the Supreme Court, at chambers, in the county of , in this state, it being the county in which the said ship , then was, for a warrant to enforce the lien of such debt, and to collect the amount thereof; and that said application was made in writing, and exhibited the plaintiff's said claim, and specified by whom said debt was contracted, to wit : by , the owner of said ship , and for what ship, to wit, the ship , the debt was contracted, and also the items composing such debt, according to the requirements of the act aforesaid; and that the several statements contained in said application were verified by the affidavit of the person making the same, to wit, by ; stating that the sum claimed in such account was justly due to the person in whose behalf such application was made, over and above all payments and just deductions. ' If the debt is contracted for or on account of the materials furnished in this state, for or towards the building, repairing, &c., of the ship, the warrant should show that the materials were incorporated into the vessel. {Eiscock v. Earbeck, 2 Bosw., 506.) BOOK OF FORMS. 499 IN PROCEEDINGS AGAINST SHIPS AND VESSELS. That thereupon the said Honorable issued his war- rant to the sheriff of the said county of , in this state, commanding him to attach, seize and safely keep such ship, her tackle, apparel and furniture, to satisfy such claim, if established to be a lien according to law, and to make return of his proceed- ings under such warrant, to the said Honorable , within ten days after such seizure, according to the requirements of the act aforesaid. That said sheriff, to whom said warrant was directed and delivered, thereupon, forthwith proceeded to exe- cute the same, and seized the said ship , as directed by the said warrant, according to the provisions of the said act. And thereupon the said defendant, , owner of said ship, on the day of , 18 . . , and before any order of sale of said ship was made, applied to the said, the Honorable ...,...., the officer, as aforesaid, for an order to discharge the said warrant, and thereupon, in connection with the defendant, , the said duly executed and delivered to the said, the Honorable , a bond to the creditors prose- cuting such warrant, a copy of which is hereto annexed and marked schedule A., whereby they, the said and .... bound themselves jointly and severally to pay the plaintiffs the sum of . . . . . dollars, subject to the conditions expressed in said bond, and thereupon the said warrant was discharged. And thereupon the said plaintiff, according to the provisions of the said act in such cases made and provided, alleges that the condition of said bond has been broken by the said defend- ants, and assigns, as a breach of the condition of said bond, that the aforesaid claim of dollars has not been paid to the said plaintiff, nor any part thereof, whereby the defendants are indebted to the said plaintiff in the said, sum of dollars, and interest from the day of ... . , 18. ., for which sum, with the costs of the said attachment, and the costs and allowances of this action, he demands judgment against the defendants. Signed, , AUcyrneyfor plaintiff. No. ...., street, 500 BOOK OF FORMS. IN PROCEEDINGS AGATNST SHIPS AND VESSELS. No. 633. Form of complaint when the vessel has left the port and returned. [Title.] The plaintiff, by his attorney , complains of the defendants, and alleges as follows : [Same as in the preceding form, to the *.] That said ship remained in said port of and did not depart tHerefrom, until the day of , 18 . . . That said ship , on the said day of , 18. ., did depart from the said port of , on a foreign voyage, and continued absent from said port of . . , , and did not again return thereto, until the day of , 18 . . , when the said ship did return to said port of , within this state. That on the .... day of > 18 . . , and within twelve days after the departure of said ship , from the said port of , , as aforesaid, and within six months from the time of the contracting of the said debt, as aforesaid, the said plaintiff caused to be drawn up specifications of his lien, the correctness of which was sworn to by said plaintiff, and filed in the office of the clerk of the county of , in this state, in which said county the debt aforesaid was contracted, as aforesaid, which said claim was then 'and there a subsisting lien on said ship. That the said ship next returned to the said port of , on the day of i 18 . . , and the plain- tiff, on the day of , 18 . . , and within ten days after the said return of the said ship , to the said port of , duly and pursuant to the provisions of an act entitled, " An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, made application to the Honorable , &c. [Same as in preceding form.'] BOOK OF FORMS. 501 IN PROCEEDINGS AGAINST SHIPS AND VESSELS. No. 634. Form of affidavit to obtain an order of sale under the fifteenth section ^ of the act, or after thirty days. [Title.] N, County of , State of New York, ss: A. B., being duly sworn, on his said oath says that he js the applicant for the warrant of attachment in the above proceedings, taken under the provisions of an act entitled " An act to provide for the collection of demands againgt ships and vessels," passed April 24th, 1862. That said warrant of attachment was duly issued against the ship , on the application of this deponent, by the Honorable , one of the justices of the Supreme Court, on the day of , 18 . . , in the State of New York, and that said ship was then and there seized by the said sheriff, under and in virtue of said warrant. That the claim of this deponent, upon which said attachment was issued against said ship, has not been satisfied, nor has said vessel been dis- charged from said warrant, although thirty days have elapsed since tlie first publication of said notice, which was on the .... day of . ., 18. ., as appears by the affidavit of publication hereto annexed.' Signed A. B. Sworn and subscribed before me ) this day of . . . ., 18. ., j ' All unsatisfied liens against the ship, which have' heai exhibited, should also he stated. 502 BOOK OP FORMS. IN PROCEEDINGS AGJVINST SHIPS AND VESSELS. [Title.] No. 635. Form of the order of sale. A warrant of attacliinent having been issued by me on the day of , 18 . . , against the ship , on the application of A. B., pursuant to the provisions of an act entitled "An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, directed to the sheriff of the county of , in the State of New York, and said vessel having been seized by the said sheriff, under the said warrant, on the same day, and thirty days having fully elapsed since said seizure and the first publication of the notice required by the ninth section of said act, and the claim of the said A. B. not having been satisfied, and said vessel not having been discharged from said warrant, I do hereby order the said sheriff that he proceed and sell said ship , her tackle, apparel and furniture. The sum deemed necessary to be raised to satisfy all unsatis- fied liens which have been exhibited against said ship, and for the payment of which, said ship is ordered to be sold, amounts to dollars. And I further order that notice be published in the ., which is the same newspaper in which the notice of the seizure of said ship was published, requiring all persons who have any liens upon said ship, by virtue of the provisions of the aforesaid act, and the master, owner, agent or consignee, and all other persons interested in such ship to appear before , a referee, on the ... day of , 18. ., at . . . o'clock, at his office. No street, , to attend to a distribution of the proceeds arising from the sale of such ship, her tackle, apparel and furniture. And I further order and direct that such distribution be made before such , who is hereby appointed referee for such purpose. Signed, Dated. Justice of ilie Supreme Court. \Forform of notice of sale see sale under execution.'} BOOK OF FORMS. 503 IN PKOOEEDINGS AGAINST SHIPS AND VESSELS. No. 636. Form of sheriff's return. To the Hon , Justice of the Supreme Court: I, , sheriff of the county of , in the State of New York, to whom, on the application of A. B., a warrant of attachment against the ship , on the day of , 18. ., was directed by your Honor, under, the provi- sions of an act entitled, " An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, do hereby return, that on the day of , 18 . . , I seized said ship, her tackle, apparel and furniture, according to the com- mand of said warrant ; that on the day of > 18 . . , there was directed to me an order to proceed and sell said ship , her tackle, apparel and furniture ; that thereupon I proceeded and sold the same, according to the command of the last named order, upon the same notice, in the same manner, and in all respects subject to the provisions of the law in case of the sale of personal property upon execution, on the day of , 18 . . , on board of the said ship .... , in the port of , aforesaid, for the sum of dollars, to one That my fees and expenses in seizing, pre- serving, watching and selling said ship, have been taxed, and amount to the sum of ....... . dollars ; and that the proceeds, after deducting such fees and expenses, amount to dollars. That there are no other warrants against said ship, directed to me. ' Signed, , Sheriff of County, N. T. Dated. ' In case other warrants have been directed to the sheriff, against said ship, they should be properly set forth in the sheriff's return. 504 BOOK OF FORMS. IN PROCEEDINGS AGAINST SHIPS AND VESSELS. No. 637. Form of notice of sale by sheriff, to be published in the same paper in which the notice of seizure was published. [Title.] Notice is hereby given that the ship her tackle, apparel and furniture, will be sold by the sheriff of county and State of New York, on the day of i 18 . . , on board of said vessel, at pier No. . . . , river, in the city of , by virtue of a warrant of attachment, issued and directed to me, on the day of , 18 . . , by the Honorable , one of the justices of the Supreme Court, pursuant to the provisions of an act entitled "An act to provide for the collection of demands against ships and vessels," passed April 24, 1862, and aU persons who have any liens upon said vessel, by virtue of the provisions of the act aforesaid, and the master, owner, agent or consignee thereof, and all other persons interested in such vessel, are required to appear before , a referee ' appointed to make distribution of the proceeds of such sale, at his office. No. . . ., street, in the city of , on the day of , 18 . . . Signed, , Sheriff of County, N. Y. , Attorney for Applicant. No. 638. Petition against proceeds when tliey stand in the place of the vessel. This petition is the same as that used when the proceedings are to obtain a warrant against the vessel, except the statement of th^ following, in addition thereto : ' The officer may require the appearance to be before him, or, in his dis- cretion, before a referee. § 18. BOOK OF FORMS. 505 IK PROCEEDINGS AGAINST SHIPS AND VESSELS. And your applicant further shows that said ship was seized by the sheriff of county, of the State of New York, under a warrant of attachment, issued by the Honorable , one of the justices of the Supreme Court, on the day of , 18. ., on the application of A. B., and that said vessel was sold by the said sheriff, according to the requirements of an order duly issued by the said , justice as aforesaid, in said proceeding against said ship , by the said A. B., and that the proceeds of said sale amount to the sum of dollars, which now stand in the place of said vessel and are still undistributed. "Wherefore your applicant hereby prays, etc. [as in form No. 623.] Signed, ■ . (Add verification of petition.) No. 6S9. Form of answer to the foregoing. [TiTlE.] ■ T. S., the owner [as the case may be] contests the claim of ... . [the petitioner against the proceeds'], the applicant herein, and States the following points as the grounds upon which he con- tests the said claim : 1st. He controverts the allegation [specify any particular allega- tion in the petition you intend to controvert], Tnaking a distinct point for every distinct allegation controverted. And by way of defense he, alleges : 1st, &c. [state any special defense intended to he made, as in any answer to a complaint]. 64 506 BOOK OF FORMS. IN PROCKEDINGS AGAINST SHIPS AND VESSELS. No. 640. Application to discharge lien where no warrant has been issiied. [Title.] To the Honorable ,• Justice of the Supreme Court of ilie State of New York: The application of T. S., owner [as the case may he\ of the ship , respectfully shows to your Honor that on the day of ) 18 • • ) specifications of an allegation of A. B., upon the ship , were filed in the o£5ce of the clerk of the county of , in the State of New York : That the amount of the said lien claimed to be subsisting on the said ship is the sum of dollars, and interest from the .... day of . . . , 18 . . , and that the grounds of defense to said alleged claim against said ship are as follows, to wit : 1st. That, &c. \here state specifically every ground of defense\. Your applicant further states, that no warrant has been issued to enforce said allegations ; and that the applicant is the owner \as the case may be\ of said ship ; that he proposes as sureties for the payment of such lien as may be established against said ship, in said proceeding, , who resides at , in street. No , and whose place of business is at No , in street, in said city, and also who resides at, &c. \_as ahove\. Wherefore the applicant prays that leave may be given to dis- charge said lien, upon giving a bond therefor, with the sureties hereinbefore proposed. Dated. Signed, (Add affidavit verifying the above.) BOOK OF FORMS. 50' IN PROCEEDINGS AGAIK3T SHIPS AND VESSELS. No. 641. Order granting leave to bond. [Title.] Before the Honorable ^. . . . , one of the Justices of the Supreme Court. It appearing by the application of , the owner [as the case may be'] of the ship , that specifications of the lien of A. B. against the said ship , were duly filed on the day of lis.., in the ofiice of the clerk of county, in the State of New York, and that no warrant has been issued to enforce the same, and due proof being presented that a copy of said application was served on the said A. B., on the day of ) 18 . . , with notice of the time and place of making this present application, and no just cause being shown in opposition thereto, it is ordered, on motion of , attor- ney for said , that said , . ., owner, as aforesaid, of said ship , have leave to bond said claim, and that said bond be given in the penal sum of dollars, and that the sureties justify before me on days' notice thereof being given to A. B., the person having said lien. Dated, &c. ■') No. 642. Order discharging such Jien. [TiTLB.] Before, &c. [as above]. Leave having been given by my order made herein on the day of , 18, to the applicant therefor, , owner of the ship ....... to bond said ship, and such bond having 508 BOOK OF FORMS. IN PKOOEEDINGS AGAINST SHIPS AND VESSELS. been executed and delivered to A. B., tlie person having such lien upon said ship, and the same having been approved by me, I hereby direct that the said lien of the said A. B., upon the said ship , of which specifications were filed in the office of the clerk of the county of , in this state, on the day of , 18. ., amounting to the sum of dollars, be made by said clerk of said county of , as discharged, and that the same cease to be a lien upon said ship. Dated, &c. No. 643. Application for proceeds when a surplus remains. [Title.] To the Hon., &c., {as in No. 640.] The application of , owner of the ship , shows to your honor, that an order of distribution of the proceeds of the sale of the ship , under the act entitled " An act for the collection of demands against ships and vessels," passed April 24, 1862, was made on the day of , 18 . . , of which order a copy is hereto annexed. That there now remains in the hands of the sheriff of the county of , in this state, who sold said ship under said order, a surplus of dollars ; that all claims which have been exhibited and found to be pay- able out of the said proceeds, have been paid ; that the applicant was the owner of said ship , at the time she was seized up to the time of the said sale, and is now entitled to the surplus ; that the notice of this application, required by section thirty of said act, has been duly published, as will appear by the affidavits of publication hereto attached. Therefore this applicant prays that the said sheriff may be directed to pay the said surplus to him as the person entitled to the same. Signed, . Annex notice published and affidavits of publication. BOOK OF FORMS. 509 IN PROCEEDINGS AGAINST SHIPS AND VESSELS. No. 644. Form of notice in such case. [Title.] Notice is hereby given, pursuant to section 30th of an act entitled " An act to provide for the collection of demands against "ships and vessels," passed April 24, 1862, the ship , was sold under and by virtue of a warrant of attachment, issued in the above entitled proceedings, on the day of , 18 . . ; that the proceeds of such sale amounted to dollars ; that there remains a surplus of dollars, after payment of all exhibited claims ; that -. , late owner of said ship will apply to the Honorable , one of the justices of the Supreme Court, at the [here state the place of nialdng this applica- tion'], on the day of , 18 . . , at o'clock A. M., to have said surplus proceeds distributed and paid over to him, as the person entitled thereto. Signed, . 510 BOOK OF FORMS. PROCEEDINGS IN MANDAMUS. PROCEEDINGS IN MANDAMUS. No. 645. Verified application for mandarrms. State of New Yobk, County, ss: The applicant, A. B., of the town of , in said county, being first duly sworn, on his said oath says : That, &c. [Here state such facts as show the relator to he entitled to the writ and relief, applied for.] No. 646. Form of notice of said application for a writ of mandamus. To S. T. : Sib — You will take notice that I shall move the Supreme Court, at the next special term thereof, to be holden at the court house in , on the day of , 18 . . , at the opening of said court, on that day, or as soon thereafter as coun- sel can be heard in the premises, for an order* that a writ of mandamus issue out of the said court, directed to you and com- manding you, &c. [state the object of the writ], or for such other and further relief in the premises as the court may be pleased to grant. Which said motion will be founded upon affidavits, etc., • copies of which are herewith served upon you. Signed, , Attorney for A. B. Dated, BOOK OF FORMS. 511 PROCEEDINGS m MANDAMUS. No. 647. Form of order for the issuing of a mandamus. At a special term of the Supreme Court, held at the court house in , in and for the county of , on the day of , 18 . . . Present, Hon , Justice. SUPREME COURT : The People, ex rel. A. B., | ST. j On reading and filing the affidavits of A. B., the relator above named, and of , dated the .... day of > 18 . . , and on motion of , Esq., counsel for the relator,* and after hearing , Esq., in opposition thereto, it is ordered that a mandamus issue out of, and under the seal of this court, directed to the said S. T., commanding him forthwith to, &c. {_state what is required to he done\, or that the said S. T. show cause to the contrary before. this court, at the next special term thereof, to be held at the court house in , on the day of ,18.. . No. 648. An order, in Hie first instance, to show cause why a mandamus should not issue. [^Same as (he above to the *, continue,'] it is ordered tliat the above named S. T. show cause at the next special term of tliis court, to be held [or it may be at the special term then sitting, according to the urgency of the case] at the court house in on the day of , 18. ., why the said S. T. should not be com- pelled forthwith, &c. [state the matter required to be done], or why 512 BOOK OF FORMS. PROCEEDINGS Iir MANDAMUS. an alternative mandamus should not issue, directed to the said S. T., in the usual form, and requiring him to do the acts above mentioned, or to show cause, etc. And it is further ordered, that a copy of this order, together with a copy of the affidavits on which the same is founded, be served upon the said S. T., days before the time above mentioned. No. 649. Alternative mandamus. The People of the State of New York to S. T., GREETING: Whereas [here 'malce a brief recital of the facts which precede the gravamen or injury complained of] ; nevertheless, you, the said S. T. have unjustly [liere state briefly the acts complained of], as we are informed by the complaint of the said A. B. ; now, therefore, we being willing that full and speedy justice be done in this behalf to him the said A. B., do command you that, immediately after the receipt of this writ, you, &c. \liere insert the mattei- required to be done, dec], or that you show cause to the contrary thereof, before our Supreme Court, at the next special term thereof, to be holden at the court house in , on the day of lis.., lest complaint shall again come to us by your default ; and in what manner you shall have executed this writ, make known to our Supreme Court at the next special term thereof, to be holden at the time and place last aforesaid. Witness, , justice of the Supreme Court, at , the day of 18 . . . Attorney. Clerh {Indorsed.) " By the Court." Ckrk BOOK OF FORMS. 513 PROCEEDINGS IN MANDAMUS. No. 650. Peremptory mandamus. The People of the State of New York, to , GEEETING : Wbereas [here recite the facts as in an alternative mandamus, see the preceding form] ; nevertheless, you, the aforesaid have unjustly [here state the matter or proceeding complained of ], as we are informed by the complaint of the said A. B., and which com- plaint we have adjudged to be true as appears to us of record; now, therefore, we being willing that fall and speedy justice be done in this behalf to him the said A. B., as it is jast, command you, firmly enjoining, that immediately after the receipt of this writ, you, etc. [insert the thing required to be done or matter to be omitted, according to the order of the court], lest complaint shall again come to us by your defaults-; and make appear to our said Supreme Court, on the day of > 18. ., at the court house iti , the manner in which you executed this command of our said court; and have you then and there this writ. Witness, , justice of said Supreme Court, at , the day of , 18 . . Cleric. , Attorney, {Indorsed.) " By the Court." Clerk 65 514 BOOK OF FORMS. PEOOEEDINGS IN MANDAMUS. No. 651. Return or answer to an alternative writ of mandamus {in the nature of a plea or answer). The return and answer of , to the altei-native writ of mandamus, issued on the application of A. B., as within mentioned. The within named , to whom the within writ of mandamus is directed, returns the same to the said Supreme Court, and answers the allegations of said writ as follows : that [the return and answer must deny the facts alleged in the writ, or set forth other facts in avoidance of the claim of the relator']. Signed, . No. 652. Notice reguiring relator to demur or plead, when the return sets up new matter in avoidance, etc. [Title of case.] To AttoriKy for the relator, A. B., or to A. B., the above named relator : SiE — ^Please take notice that the defendant's return to the writ of mandamus in this cause, has been duly filed with the clerk of county ; and that you are required to demur or plead to the said return within days of the service of this notice. Yours, &c., Attorney for Defendants. Dated, &c. BOOK OF FORMS. 515 PROOKEDINGS IN MANDAM0S. No. 653. Proceedings in prohibition. The applicatioa for a writ of prohibition will be in a form similar to the application for a writ of mandamus. [_See ante, No. 645.] No. 654. Notice of motion for writ of prohibition. To ..• : Sir — You will take notice that I shall move the Supreme Court, at the next special term thereof, to be holden at the court house in , on the day of 18 . . , at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order that a writ of prohibition issue, directed to the court of the county of , and to \the person prosecuting the suit, etc.'], commanding them to desist and refrain from any farther proceedings in, &c. {state the suit, etc., sought to be prohibited'] ; or for such other and further relief as the court may be pleased to grant ; which motion will be founded upon af&davits, copies of which are herewith served. Attorney for A. B. Dated, &c. . No. 655. (h'der for a writ of prohibition. [In form similar to an order for mandamus, see ante. No. 647, to *, then proceed:] After hearing , Esq., in opposition thereto, it is ordered, that a writ of prohibition issue out of and 516 BOOK OF FORMS. PROCEEDINGS IN MANDAMUS. under the seal of this court, directed to the court of the county of , and to , commanding them to desist and refrain from any further proceedings in [state the suit or matter sought to be prohibited], until the next term of this court, to be holden at the court house in , on the day of , 18 . . , and until the further order of the court thereon, and that they show cause, at the time and place last aforesaid, why they should not be absolutely restrained from any further proceedings in such suit or matter. [The writ and return thereto, itdll be, in form, similar to the like in mandamus. See ante. No. 651.] [The same as to notice requiring relator to plead or demur. See ante, No. 652.] No. 656. Writ of prohibition absolute. [In form similar to peremptory mandamus; See ante. No ] No. 657. Wi-it of consultation. The People of the State of New York, to Court of the county of , and to , GREETING : Whereas, A. B., of , in the county of , lately prosecuted and caused to be directed to you, our certain writ of prohibition, out of our Supreme Court, at a special term thereof, held at the court house in , on the day of , 18 . ., that you should not, &c. [set forth what the writ of prohibition commandedl, by pretense of which prohibition you have thereon hitherto delayed, and yet do delay, further to proceed in [stats what cause], as we have understood. And our BOOK OF FORMS. 517 PROCEEDINGS IN MANDAMUS. Supreme Court having determined that said A. B. was not entitled to said writ of prohibition, and that the said , having prayed our aid and assistance in this behalf, and we, being willing that there should be no further delay in [state the proceeding]. Because, in our said Supreme Court, at, &c., it is in such manner provided that it is considered by the said court that a writ of consultation may issue, our said writ of prohibition to the contrary thereof notwithstanding. We, therefore, being unwilling that the said , should in any wise be injured in this behalf, do hereby authorize you to proceed in the said cause or matter, and further to do what you shall know to belong thereto, our said writ of prohibition to the contrary thereof, in any wise, notwithstanding. Witness, &c. [see No. 650.] 518 BOOK OF FORMS. IN ARBITRATIONS. FOEMS IN AEBITEATIONS. No. 658. Form of a general submission to arbitration. Whereas, divers disputes and controversies have arisen and still exist between A. B., of the town of , in the county of , and State of New York, and C. D, of the same place, now, therefore, for the purpose of finally adjusting all such disputes and controversies, we, the undersigned, A. B. and C. D. aforesaid, do hereby mutually covenant and agree, each with the other, that E. R, Gr. H. and K. L., of , or any two of them, shall arbitrate, determine and award, of and concerning all, and all manner of actions, causes of actions, suits, bills, bonds, judgments, quarrels, controversies, disputes, claims and demands whatsoever, now pending, existing or held by and between us, the said parties hereto. And we also mutually covenant and agree, each with the other, that the award to be made by the said arbitrators, or any two of them, shall, in all things, by us, and each of us, be well and faithfully kept and observed; provided that the said award be made in writing and signed by the said E. F., G. H. and K L., or any two of them, and be ready to be delivered to the said parties hereto, or such of them as shall desire the same, on or before the .... day of ,18.. .* Witness our hands this day of 18. ., in pre- sence of M. N. Signed, A. B. CD. BOOK OF FORMS. 519 IK ARBITBATIONS. [If designed to make the submission a rule of court, under the statute, add the following after the * ;] And it is further covenanted and agreed by and between the parties aforesaid, that judgment in court of the State of New York, in and for the county of , shall be rendered upon the award to be made pur- suant to this submission. Witness, &c. The submission may be in the form of a penal bond, condi- tioned thus [after the usual form of a penal bond, add:'\ . The condition of this obligation is such that if the above bounden A. B. shall well and truly submit to the decision and award of E. F., Gr. H. and K. L., arbitrators, named, selected and chosen, as well by and on the part and behalf of the said A. B., as of the said C. D., to arbitrate, determine and award of and concern- ing all and all manner of actions, causes of actions, suits, claims and damages whatsoever, now pending or existing between the said A. B. and the said C. D., so as the said awards be made in writing, and signed by the said E. ¥., Gr. H. and K. L., or any two of them, and ready to be delivered to the said parties on or before the . . . day of , 18 . . ,* then this obligation to be void, else to remain in full force. And the above bounden A. B. hereby agrees that judgment in the Supreme Court of the State of New York [or any other court, of remedy, naming it'] shall be rendered upon said award, to be made pursuant to this submission. A. B. [L. s.] Signed and sealed in the ) presence of J M. N. NoTB. — 0. D. must execute to A. B. the like bond, &c, 520 BOOK OF FORMS. IN AHBITBATIONS. No. 659. The same where provision is made for an award hy an umpire. [Proceed as in the preceding form, to the *, then add:"] But if the said arbitrators do aot make such their award of and conceraing the premises, by the time aforesaid, then, if the said A. B. shall, in all things, well and truly stand to and obey, perform, and keep the award, arbitrament and umpirage and final determina- tion of such person as the said arbitrators shall appoint as umpire between the said parties, of and concerning the premises afore- said, so as the said umpire do make his award or umpirage of and concerning the said premises, in writing, signed by the said umpire, and ready to be delivered to the said parties on or before the day of 18 . . , then the above obligation to be void, otherwise to be in full force. [If to be made a rule of court, add as in the preceding form.'] No. 660. Oath of arbitrators. You and each of you, in the presence of Almighty God, do solemnly swear that you will well and faithfully hear and examine the matters in controversy, submitted to you as arbitrators, by and between A. B. of the one part and 0. D. of the other part, and a just award make thereon according to the best of your understanding. BOOK OF FORMS. 521 IN ARBITRATIONS. No. 661. I . . . Notice of the time of hearing before the arbitrators. Ill the mutter of an arbitration of and con- cerning tlie matters in difference be- tween A. B. of the one part, and C. D. of the otlier part. Before E. F. Gr. H. and K. L., arbitrators. Sir — Take notice, that the above matter will be brought to a hearing before the said arbitrators appointed therein, at the office of , in the of , on the day of , 18 . . , at .... o'clock in the of that day. A. B. To C. D. No. 662. Application for subpoena : form of oath therein. You do solemnly swear that you will true answers make to such questions as shall be put to you touching the necessity and propriety of my issuing a subpoena upon your present applica- tion for the same. No. 663. Form of subpoena. The People of the State of New York, to : You and each of you are commanded personally to appear and attend, at the office of , in the of , in the county of , on the day of i 18 . . , at o'clock ... of that day, before E. F., Q. H. and K. L., arbitrators chosen to determine a controversy between A. B. on one part and C. D. on the other part, and then and there to tes- tify as a witness in relation thereto, before the said arbitrators, on the part of the said A. B. Hereof fail not at your peril. Given under my hand and seal this .... day of ,18. . Justice of the Peace. 66 522 BOOK OF FORMS. IN AEBITEATIONS. No. 664. Oath administered to the witness. You do swear that the evidence you shall give to these arbi- trators, touching or concerning the matters in difference, sub" mitted for their determination and award, by and between A. B. of the one part, and C. D. of the other part, shall be the truth, the whole truth and nothing but the truth. [If the vntness affirms, substitute for the word " swear, ^^ the words " solemnly, sincerely and truly affirm and declare," dec. Before the award by the arbitrators, the parties may revoke their authority. No. 665. Form of revocation. To E. F., G. H. and K. L., arbitrators, Sc: Gents — Take notice that I do hereby revoke your powers as arbitrators, under the submission made to you by C. D. and myself, by our mutual agreement in writing, dated, &c. [or by our mutual bonds, as the case may be}. - A. B. Date. No. GQ6. Notice of revocation to 0. D. To C. D. : Take notice, that I have this day revoked the powers of E. F., G. H. and K. L., arbitrators chosen to settle the matters in con- troversy between us, by an instrument of revocation, a copy of which is herewith served. Dated ,..,,,.... day of .. ., , :, . . . , , 1.8 . . . ; " Yours, A. B. ' {Insert copy of revocation^ BOOK OF FORMS. 523 IN ARBITRATIONS. No. 667. Form of an award. To all to whom these presents shall come or whom Hiey may concern, E. F., G. H. and K. L., send greeting : Whereas, clivers suits, disputes, controversies and differences have happened and arisen, and are now depending between A. B.y of , and CD., of , and for the purpose of pacifying, settling and ending the same, the said A. B. and C. D. have entered into a written agreement, dated the day of , 18 . . , to submit the said matters to the award and final determination of the said E. F., G. H. and K. L., arbitrators selected by the said parties, as by reference to said agreement it will more fully and at large appear. [Or, if the submission he hy bond, etc., describe the same in like manner, and refer to the same.'} Now, therefore, be it known, that the said E. F., G. H. and K. L., having taken upon themselves the charge and burden of the said arbitrament and determination, and having deliberately and fully heard the allegations and proofs of the said parties, do, by these presents arbitrate, award and determine of and concerning the premises aforesaid in manner and form following, that is to say : First: "We do award and determine, &a [proceed thus with each specific determination, etc.], la witness whereof the said arbitrators have hereunto set their hands and seals, this .... day of , 18 . . . E. F. [L. S.J G. H. [L. s.] K. L. [L. S.J Signed and sealed in the ] presence of f S. T. 524 BOOK OF FORMS. IN ARBITBATIONS. No. 668. Affidavit proving the alaard. County of , ss: S. T., of , in said county, being duly sworn, deposes and says that he was present and saw E. R, G. H. and K. L. sign, publish and declare their final award and determination, in writing, between A. B., of , and C. D,, of bearing date the . . . . day of , 18. ., and hereunto annexed ; that the names of E. F., G. H, and K. L., subscribed to the said award, are the proper and genuine signa- tures of the said E. F., G. H. and K L., respectively, and that they severally acknowledged the execution thereof, and that the said deponent set his name as a subscribing witness to the said award, at the time of its execution and publication aforesaid, and further he says not S. T. Sworn to, &c. No. 669. Notice of motion to ayrtfirm the award. SUPEBME COURT {or other court]: In the matter of arbitration of and con- 1 ceming matters in difference between C A. B., of the one part, and C. D., of ( the other part. j Sib— iPlease take notice that I shall move the Supreme Court, at the next special term thereof, to be held at the court house in .,...,.., in and for the county of , on the day of , 18 . . , at the opening of the court on that day, or as soon thereafter as counsel can be heard,. for an order* that the award made by the arbitrators in the above matter be confirmed, and that judgment be rendered thereon in favor of the said A, B., and for such other and further order as the court may think BOOK OF FORMS. 525 IN ABBIISATIONS. proper to make in the premises, wliicli motion will be founded upon the agreement of submission lor bond of arbitration, as the case may be], and proof thereof, and the award of the said arbi- trators and the proof thereof. Dated this day of , 18 . . . To, a D. Attorney for A. B. No. 670. Notice of motion to vacate the award. [Same as the preceding to the *, then as follows,'] that the award made by the arbitrators in the above matter be set aside and vacated, with costs ; and for such further or other order as the court may think proper to grant, which motion will be founded upon affidavits, copies of which are herewith served upon you ; and also upon the agreement [or bond] of submission, and the award of the arbitrators. The following are the grounds upon which it is sought to vacate said award : [Here set forth the irregularities complained of] Dated this .... day of , 18 . . . To Hie above named A. B. Attorney for said 0. D. 526 BOOK OF FORMS. FOKMS IN ARBITRATIONS. No. 671. Notice of motion to modify award. [Same as above to *,] that the award made by the arbitrators in the above matter be modified and corrected in the following particulars: [Here state the modifications desired,] and for such further and other order as the court may think proper to grant, which motion will be made upon the said award, and the agree- ment [or bond] of submission between said parties, and also upon an affidavit, a copy of which is herewith served upon you. Dated the .... diay of ,18 Yours, To above mentioned Attorney for No. 672. Order confirming the award. [Title.] At a special term of the court, held at the court house within and for the county of ,on the day of ,18.. . Present, Justice. On reading and filing the award, etc. [recite Hie papers on which the motion is founded], and on motion of of counsel for A. B., one of the parties to said arbitration, no one appearing to oppose [or, and on hearing , of counsel for C, D., tJie other party to said arbitration, in opposition thereto], it is ordered that the award of the arbitrators in this matter be and the same is hereby confirmed. It is further ordered and adjudged, that the said A. B. recover against the said C. D. the sum of dollars, BOOK OF FORMS. 527 IN ARBITRATIONS. awarded to the said A. B. in the said award, and also the sum of ... . dollars for his costs and charges, by the court now here adjudged to the said A. B., which said sum, so awarded as afore- said, and the costs and charges, in the whole, amount to dollars. And it is further ordered, that the said C. D. execute and deliver to the said A. B. a good and sufficient conveyance, &c. [according to the nature of the award to be performed.'} No. 673. Order vacating an award. [Title.] On reading and filing affidavits and notice of motion, and the award and the agreement [or bond] of submission in the above matter, and on motion of , Esq., of counsel for 0. D., one of the parties to said arbitration, no one appearing to oppose, it is ordered that the award of the arbitrators in this matter be, and the same hereby is, vacated, with dollars to be paid by the said A. B. to the said 0. D. 528 BOOK 0? FORMS. FOHECLOSUEE OF MOETGAGE BY ADVERTISEIT-ENT. FOEECLOSDBE OF MOETGAGE BY ADVERTISEMENT. No. 674. Notice of sale. Mortgage sale. Whereas, default has been made in the payment of the money secured by mortgage, dated the day of 18 . . , executed by , and his wife, of the town of in the county of , New York, to , of , and which said mortgage was recorded in the clerk's office of said county, in' book No. of mortgages, on page , on the day of , 18 . . , at .... o'clock . . . [If foreclosed by assignee, add:] Andwhereas the said mortgage has been duly assigned to .■.■.'.■.'.■.'., of , and the same is now owned by him, the said ....... and whereas the aftiount claimed to be due upon said mortgage at the time of the first publication of this^ notice, is the sum of dollars and cents, to wit, dollars of principal, and dollars of interest, and which is the whole amount claimed to be unpaid on said mortgage. Now, therefore, notice is hereby giyen, that by virtue of the power of sale contained in said mortgage and duly recorded as aforesaid, and in pursuance of the statute in such cases made and provided, the said mortgage will be fore- closed by a sale of the premises therein described, at public auc- tion, at the front door of the court house in , in the county of , on the day of , 18 . . , at ten o'clock in the forenoon of that day. The said premises are de- scribed in said mortgage substantially as follows : [Here describe as in tke mortgage,] Dated the day of , 18. . . A. B., Mortgagee (or assignee). {Date of first publication of notice.) BOOK OF FORMS. 529 FORECLOSURE OF MORTGAGE BT ADVERTISEMENT. No. 675. Form of affidavit of pviblication of notice of sale. STATE OF NEW YORK, | County, ) *^" {Here attach printed notice of sale.) E. P., of in said county, being duly sworn, says, that he is, and during the whole time hereinafter mentioned, has been the printer \or foreman, or principal clerk of the printei'], of the , a newspaper printed in said county of , and that the annexed printed notice of sale was published in the said newspaper twelve weeks successively, at least once in each week, immediately preceding the specified time for such sale; which publication commenced on the .... day of , 18 . . . E. F. Sworn to before me, this .... 1 day of , 18. Justice of the Peace. I No. 676. Affidavit of affixing notice on court house door. STATE OF NEW YORK, ) County. j **' {Attach here a pnnted notice of sale.) Gr. H., of , in said county, being duly sworn, says. that on the day of , 18 . . , he affixed a true copy of the annexed printed notice in a conspicuous place, and in a proper and substantial manner, on the outward door of the build- ing where the county court was directed to be held, in the county 67 530 BOOK OF FORMS. FOREOLOSDRE OF MORTGAGE BY ADVERTISEMENT. of , to wit, at the court house {as the fact may 6e], in the city [or town\ of , in said county [if there are two such buildings in such county, add :] that being the building where the courts are directed to be held, nearest to the premises described in said notice. G. H. Sworn to before me, this . . . . ) day of ,18.. . j Justice of the Peace. No. 677. Affidavit of affixing notice in chrVs office. STATE OF NEW YOEK, ) . County. j " [Here attach a printed notice of sale.] G. H., of .;....... , in said county, being duly sworn, says he is the clerk of said county ; that on the .... day of , 18 . . , he affixed a true copy of the annexed printed notice of sale in the book prepared and kept by him, as such clerk, for that purpose, at the clerk's office in , in said county. [The affidavit of affixing notice in the clerk's office may be by one who saiv the notice affixed.] In such case his statement is : " That he saw a true copy of the annexed printed notice affixed in the book prepared and kept for that purpose by the clerk of said county of at his office in in said county, during the time required, to wit, on the day of , 18 . . ." [Time stated must be twelve weeks before the time of sale.] BOOK OF FORMS. 531 rOEECLOSTTRE OF MORTGAGE BY ADVERTISEMENT. No. 678. Affidavit of servke of notice ofsak. Personal service. STATE OF NEW YORK, \ County. f **" {Attach here a printed notice ofsah^ S. T., of iu said county, attorney at law, being duly sworn, says that on tlie .... day of , 18 . . , lie served upon A. B., C. D. and E. F., andeacliand every of them, a copy of the annexed printed notice of sale, by delivering to the said persons, and each of them, personally, a true copy of the said notice. Sworn to before me this ) S. T. day of ,18.., j Justice of the Peace. No. 679. The like when served by leaving a copy at the dwelling house, etc. [Attach printed notice of safe.] That on the day of , 18. ., he served upon A. B. a copy of the annexed printed notice of sale by leaving a true copy thereof at his dwelling house in charge of the wife [or daughter], aged .... years, or thereabouts, of the said A. B. No. 680. The like when served hy depositing in the post-office. ■[Attach a printed copy of sale.'] That on the day of , 18. ., he served upon A. B. a copy of the annexed printed notice of sale, by depositing a true copy thereof in the post-office in , properly folded and directed to the said A. B., at his place of residence, to wit, at , paying the postage on the same. 532 BOOK OF FORMS. FOEEOLOSDRE OF MORTGAGE BY ADVERTISEMENT. No. 681. Affidavit of sale. STATE OF NEW YOEK, 1 County. j ** " \^Attach here a printed copy of notice of sale.'] E. P., of , in said county, being duly sworn, says that lie officiated as auctioneer at the sale of the premises herein- after mentioned, and as such auctioneer he sold the premises described in the annexed printed copy of notice of sale, at public auction, at the time and place of sale therein mentioned, to wit, on the day of 18 . . , at .... o'clock . . M. of that day, at the front door of the court house [as the case may be], in the of , in the county of , aforesaid, and that J. K., of , then and there purchased the said premises for the price of .... dollars, he being the highest bidder, and that being the highest sum bidden for the same. And the deponent further says that said sale was in all respects honestly and fairly conducted, as deponent verily believes; and that the said J. E. purchased the said premises fairly and in good faith, as deponent verily believes. Sworn to, &c. E. P. No. 682. Deed of foreclosure by advertisement. This indenture, made this day of , in the year of our Lord one thousand eight hundred and , between of the first part, and of the second part. "Whereas ..,.,..,...,, by a certain indenture of mortgage, bearing date the day of , in the year of our Lord one thousand eight hundred and .,....,., for securing the pay- BOOK OF FORMS. 533 FOREOLOSUBE OF MORTGAGE BY ADVERTISEMENT. ment of the sum of dollars, according to the condition of a certain bond, bearing date on the said day of , in the year one thousand eight hundred and , mortgaged to all certain , hereinafter particu- larly described, with the tenements, hereditaments and appurte- nances thereunto belonging; which said mortgage was duly recorded in the office of the of the county of , in liber of mortgages, page on the day of , in the year one thousand eight hundred and , at And whereas the said party so executing the said mortgage was, at the time of the execution thereof, over the age of twenty- one years : And whereas the said mortgage contained a power of sale therein,, in substance in the words following, that is to say : " And if default shall be made in the payment of the said sum of money above mentioned, or the interest that may grow due thereon, or of, any. part thereof, that then and from thenceforth it shall be lawful for the said party of the second part, and his assigns, to enter into and upon all and singular the premises hereby granted, or intended so to be, and to sell and dispose of the same, and all benefit and equity of redemption of the said party of the first part, his heirs, executors, administrators or assigns, therein, at public auction, according to the act in such case made and pro- vided ; and as the attorney of the said party of the first part, for that purpose by these presents duly authorized, constituted and appointed to make and deliver to the purchaser or purchasers thereof, a good and sufiicient deed or deeds of conveyance in the law for the same, in fee simple, and out of the money arising from such sale, to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the same premises, render ing the overplus of the purchase-money (if any there shall be), unto the saidv of the first part, his executors, adminis- trators or assigns ; which sale so to be made shall forever be a perpetual bar, both in law and equity, against the said party of 534 BOOK OF FORMS. rOEEOLOSUEE OF MORTGAGE BY ADTEETISEMENT. the first part, his executors, administrators and assigns, and against all other persons claiming or to claim the premises, or any part thereof, by, from or under him or them, or either of them." And whereas default was made in the payment of said sum of dollars, secured to be paid by the said indenture of mortgage, and there was due thereon, on the .... day of last, being the time of the first publication of the notice herein- after mentioned, the sum of dollars. And whereas, in pursuance of the power of sale contained in the said mortgage, and herein above recited, and by virtue of the statute in such case made and provided, a notice containing the specifications required by law, and stating that the said mort- gaged premises would be sold at public auction to the highest bidder, at the [state the exact place of sale}, on the day of last, at twelve o'clock at noon, has been published for twelve weeks successively, at least once in each week, in the , a newspaper printed in the county of , and a copy of the said notice has been affixed at least twelve weeks prior to the said day of last, on the out- ward door of the in the , county of , being the building .where the county courts for the said ....... county of , are directed to be held, and such other notice of the said sale has been given as required by law. And whereas, in pursuance of such notice, the premises herein- after described, being the premises described in the said indenture of mortgage, were sold at public auction, at the , on the day of last, at twelve o'clock at noon, by the party of the first part, to the party of the second part hereto, for the sum of dollars, being the highest bidder and that being the highest sum bidden for the same : Now therefore, this indenture witnesseth, that the said party of the first part, by virtue of the power of sale contained in the said mortgage, and in pursuance of the statute in such case made and provided, in consideration of the said premises and of the said sum of dollars, so bid as aforesaid, to him in hand BOOK OF FORMS. 535 FORECLOSUBB OP MOKTGAGE BY ADVERTISEMENT. paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, released, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, release, convey and confirm, unto the said party of the second part, his heirs and assigns, forever, all [description of the premises], together with all and singular, the tenements, hereditaments and appurtenances, thereunto belong- ing, or in anywise appertaining ; and the reversion and rever- sions, remainder and remainders, rents, issues and profits thereof; and also all the benefit and equity of redemption of the said and assigns therein : And also all the estate, right, title and interest, of the said party of the first part, of, in and to the said premises, and every part and parcel thereof, with the appurtenances. To have and to hold the above granted and described premises, with the appurtenances, unto the said party of the second part, and assigns, to own proper use, benefit and behoof, forever. In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written. S6aled and delivered in presence of } 536 BOOK OF FORMS. IN PROCEEDINGS UNDEB LIEN LAWS. FOEMS IN PEOCEEDINGS UNDEE THE LIEN LAWS IN FAVOE OF MECHANICS AND OTHEES. No. 683. Contractor's notice of lien. To , Town Clerk of the town of ,inthe county of •• Take notice, that I, , a resident of the village of , in said county, have a claim against , of said village, amounting to the sum of ... . dollars, for three months' labor performed for the said , as a carpenter and joiner [or, fm- large quantities of lumber fitmished to and used by the said ], in pursuance of an agreement with him. That the said labor was performed {or, the said materials were furnished and used] in erecting the building, No , and appurtenances, situ- ated on street, in said village ; and thirty days have not elapsed since the performance and completion of such labor [or since the said materials were furnished]. That the said is the owner* of the said building and appurtenances, and the lot and premises upon which the same stand, which said lot and premises are situated in the town of , afore- said, and are known and described as follows: [describe premises]. Also take notice that I have and claim a lien upon said build- ing and appurtenances, and the lot upon which the same stand, as security for the amount due me, as aforesaid, in pursuance of the statute in such case made and provided. IClaimanfs signature.] BOOK OF FOEMS. 537 IN PROCEEDINGS UNDER LIEN LAWS. No. 684. Notice of lien by other person than contractor. To ., Town Clark of the town of , in the county of : , . Take notice, that I, , a resident of the village of , in said county, have a claim against , who was the contractor with , of said village, for the erection of the building and appurtenances, hereinafter mentioned, amount- ing to the. sum of . , . . dollars, for three months' labor performed for the said. , as a carpenter and joiner [or, for large quantities of lumber furnished to and used by the said ], in pursuance of an agreement with him. That the said labor was performed [or, the said materials were furnished and used] in erecting the building No , and appurtenances, situated on street, in said village ; and thirty days have not elapsed since the performance of such labor [or, since said materials were _furnished]. That the said is the owner, &o. [co7iclude as in the last form from the asterisJc], No. 685. Contractor's notice to enforce liim. IN SUPREME COURT {or in the County Court, county) : . ., claimant, against . . . , owner. To above named, owner of the building and premises herein- after mentioned: Take notice, that I, , above named, residing within the county of have a claim against you, amounting to the sum of dollars, with interest thereon from the .... day of last, for three months' labor performed 68 538 BOOK OF FORMS. IN PROCEEDINGS UNDER LIEN LAWS. for you, as carpenter and joiner [or, for large quantities of lumber furnished to you and used by yoii], in pursuance of an agreement with you, the same being fully set forth in the bill of particulars hereto annexed and which labor was performed [or, luhich mate- rials were furnished arid used] in erecting the building No , and appurtenances, owned by you, situated on street,* in the village of , in the town of , in said county, the lot upon which the same stand being bounded and described as follows : [describe premises.] Also take notice, that within thirty days after the performance and completion of such labor [or, ilie final furnishing of such material's], to wit, on the day of , 18 . . , I duly filed with the town clerk of the said town of , the notice required by law to effect a lien on the building and premises above mentioned, owned by you as aforesaid, for the amount of the claim above stated, to wit, for the sum of dollars, and interest as aforesaid. You will therefore also take notice, that you are required to appear in person or by attorney, within thirty days after the ser- vice of this notice, and answer the same, and to serve upon me or my attorney, a copy of your answer, together with a notice of any set-off that you may have ; or in default thereof I will take judgment against you for the amount claimed as aforesaid, to wit, the sum of dollars, and interest thereon from the day of ) 18 . . , together with the costs of this action. [Annex bill of particulars. See form in Ko. 687, post] Claimant. Attorney for Claimant. Dated, &a BOOK OF FORMS. 539 IN PROCEEDINGS UNDER LIEN LAWS. No. 686. Notice to enforce lien iy other person than contractor. IN SUPEEME COURT {or other court, as in last form): . . ., claimant, | against owner, I To , above named, owner of the huilding and premises here- inafter mentioned: Take notice, that I, , above named, residing within the county of , have a claim against , of the village of , in said county, who was the contractor with you for the erection of the building and appurtenances herein- after mentioned, amounting to the sum of dollars, with interest thereon from the day of last, for three months' labor performed for the said , as a carpenter and joiner [or for large quantities of lumber furnished to and used by the said ], in pursuance of an agreement with him, the same being fully set out in the bill of particulars hereto annexed ; and which labor was performed [or which materials were furnished and used] in erecting the building No , and appurtenances, owned by you, situated on street, &c. [conclude as in the last form from the *]. [Annex bill of particulars. See No. 156.] Signed, , Claimant. , Attorney for Claimant 540 BOOK OF FOEMS, IN PROCEEDINGS 0NDER LIEN LAWS. No. 687. Glaimanis lill of particulars. Bill of particulars referred to in the annexed notice, being a bill of particulars of the amount claimed to be due from , the owner mentioned in said notice [or, , the contractor mentioned in said notice], for the work performed [or the materiak furnished] as therein mentioned, to wit : , owner [or , contractor]. To . . . , , contractor [or, . . .., laborer, or, as the case may he,] Dr. 18.. Dec. 1. To, (fee. [set out the length of time the claimant was in the employment of the owner, or contractor, the time xvlien the labor was performed, and the price or value of the same ; and if Hie claim is for materials furnished, set out the items in full, and the price of the same, &c.] County of ., ss: [or, ], the above named claimant, being duly sworn, says, that the bill of particu- lars above mentioned is in all respects true. No. 688. Affidavit of service of notice and hill of particulars. [Title.] County of , ss: , of , in said county, .being duly sworn, says: That on the day of , 18. ., he personally served a copy of the annexed notice and bill of particulars upon , the owner mentioned therein, by delivering the same to and leaving the same with the said , at his residence in the village of , in said county. And deponent further says, that he knew the person so served to be the person mentioned and described in said notice as owner and defendant therein. Sworn, &c. BOOK OF FORMS. 541 IN PROCEEDINGS UNDER LIEN LAWS. No. 689. Affidavit of facts justifying service by publication. [Title.] County of , ss: , of , in said county, being duly sworn, says : That he is acquainted with the owner mentioned in the annexed notice; that the said is now absent from this state, and has been so absent for days, or more, last past. [Or, J that deponent has made diligent inquiry to find the said for the purpose of serving him with a copy of the notice and bill of particulars annexed, and has been several times to his house with a view of making such service, and has looked and inquired in other places for said ; that said was well aware that deponent was looking for him to make such service, and kept out of the way purposely, as deponent believes, to avoid said service. And deponent further says, that on the day of , 18. ., he left a copy of said notice and bill of particulars annexed, at the last place of residence of the said , in the village of , with the wife of said [or other person if there']. Sworn, &c. No. 690. Affidavit of publication of notice. [Title.] [Attach here a printed copy of notice."] County of , ss: ....... of , in said county, being duly sworn, snys, he is the publi.sher [or printer, or fore- man] of the , a newspaper printed in said county of , and that the annexed printed notice was published in 542 BOOK OF FOEMS. IN PKOCEEDINGS UNDER LIEN LAWS. the said newspaper three weeks successively, at least once in each week ; which publication commenced on the day of , 18. ,, and terminated on the .... day of , 18. , Signed, Sworn, &c. No. 691. Affidavit of owner's default. [Title.] County of , ss: , being duly sworn, says, he is the attorney for , the plaintiff in the above action ; that this action was commenced to enforce a lien against real property owned by the defendant above named, and the notice and bill of particulars herein were served on the defendant on the day of , as appears by the affidavit of , hereto annexed. And deponent further says, that no answer or copy of answer has been received herein by deponent, nor has the defendant appeared in this action. SWorn, &c. No. 692. Judgment on failure of owner to appear. [Title as in No. 686.] Judgment August 20, 1858. The notice and bill of particulars, in the above action, having been personally served on , the owner and defendant above named, more than thirty days previous to this date, and no copy of an answer to the same having been served upon the plaintiff's attorney as required by said notice ; and due proof of the service BOOK OF FORMS. 543 IN PROCEEDINGS UNDER LIEN LAWS. of such notice and bill of particulars, and of the defendant's failure to appear as aforesaid, having been made and filed ; and the plaintiff having also given evidence showing that he has acquired a valid lien upon the building and premises of the de- fendant, situated in the village of , ia the county of , and which premises are particularly described in said notice ; and also evidence to establish the value of the labor per- formed [or materials furnished'] by the plaintiff, as stated in said notice, and that the same was performed for [or used by] the said defendant [or , the original contractor with said defendant, as stated in said notice], in the erection of the building above men- tioned and the appurtenances thereto; and the plaintiff's claim having been assessed by the court [or by tlie clerk of said county] at the sum of dollars ; Now, therefore, on motion of , attorney for the plaintiff, it is ordered and adjudged, that the plaintiff recover of , the owner and defendant above named, the sum of dollars and cents, with dollars and cents costs and disbursements, amounting in the whole to dollars and cents. No. 693. Answer of owner. [Title as in Ko. 686.] The defendant , above named, in answer to the notice of the above named , says : [Set forth the defenses which the defendant has to the plaintiff ^s claim, as in an answer in an ordi- nary action.] The said defendant in further answering said notice says : That the said plaintiff , is indebted to him in the sum of dollars, for moneys loaned and advanced to the plain- tiff, from time to time, and which moneys are fully set out in the bill of particulars hereto annexed. 544 BOOK OF FORMS. IN PKOCEEDINGS UNDUE LIEN LAWS. [The defendant also says, in further answering said notice, that , the contractor mentioned therein, is also indebted to him in the sum of dollars, for moneys loaned and advanced to the said , during the time the building mentioned in said notice was in the progress of erection, the items of which are set forth in said bill of particulars annexed.] And the defendant claims to set off the demands above men- tioned, and set out, in said bill of particulars, against the claim of said plaintiff, as stated in said notice. Owner. , Attorney for owner. County of , ss: , the owner above named, being duly sworn, says: That the foregoing answer is true to his own knowledge, except as to the matters therein stated on inform- ation and belief, and as to those matters he believes to be true. Sworn, &c. Bill of particulars. Bill of particulars of set-off claimed by , owner in the action commenced by to enforce a lien under tlie statute, and mentioned in the answer of ,., hereto an- nexed, viz. : Moneys loaned by the said to , at the times and to the amounts following: 18.. , June 1. To cash lent this day, " 6. To, &e. [set out items'], Moneys advanced by , above named, to , the contractor mentioned in the notice to enforce said lien, at the times and to the amounts following: 18.. . Aug. 1. To, &c. [set out the items and amounts], Owner. BOOK OF FORMS. 545 IN PROCEEDINGS UNDER LIEN LAWS. No. 694. Judgment on issue and trial. [Title as in No. 68S.] Judgment, ..'.., 18., . This action being at issue upon the claimant's notice and bill of particulars to enforce his lien, and the owner's answer and bill of particulars of set-off annexed thereto ; and the issue being an issue of fact and triable by the court ; and such issue being tried by the court, on the day of , 18. ., the Hon , justice [or county j^jdge], presiding, whose decision, in writing, has been filed with the clerk of this court, whereby judgment is ordered against the said , owner, in favor of the above Jiamed claimant, for dollars, with costs and disbursements against said owner, to be taxed. Now, on motion of attorney for , the above plaintiff, it is ordered and adjudged that the said plaintiff recover of , owner, above named, the aforesaid sum of dollars, together with the sum of dollars, costs and dis- bursements, amounting in the whole to the sum of .... dollars. No. 695. Execution against the property covered hy lien. The People of the State of Neio York, to the Sheriff of the county of , , Greeting : Whereas, judgment was rendered on the .... day of , one thousand eight hundred and , for the sum of .... dollars, in favor of ..... ., plaintiff, against , defendant, in an action in the Supreme Court \or^ county court of the county of ........], commenced against the said , as owner, to enforce a lien, under the statute existing, in favor of the said , as claimant, against the building No , on street, in the village of in said county, and the lot of 69 546 BOOK OF FORMS. IN PROCEEDINGS UNDER LIEN LAWS. land and premises upon which the same stands, and which lot and premises is bounded and described as follows: [describe premises.^ And whereas, the said was the owner of said build- ing and premises at the time said lien was created, to wit, on the .... day of , 18 . . , And whereas, the said lien was created to secure a claim for three months' labor performed by the said for the said , as a carpenter and joiner [or, for large quantities of lumber which the said furnished to, and which were used by .the said .],.ia erecting the building aforesaid, and the appurtenances thereto ; which matters, above recited, will more fully appear by the judgment roll filed in the office of the clerk of the county of , reference being thereunto had. And whereas, the said judgment was docketed in your county on the day of 1 18 . . , and the sum of dollars, with interest thereon from the ...... day of , 18 , . , is now actually due upon said judgment.* Therefore, we command you, that you sell the right, title and interest which the said , owner, as aforesaid, had in the building, and premises above mentioned, at the time the notice creating said lien was filed, to wit, on the day of , 18 . . , and out of the avails of said sale that you satisfy the amount of said judgment, and return this execution, within sixty days after its receipt by you, to the clerk of the county of . Witness, , Esq., Justice of the Supreme Court [or, county judge of said county"], the .... day of , 18 . . . Attorney for Plaintiff. . . . . [To he indorsed.:'] . To the Sheriff of the County of ; Levy, as within directed, the sum of dollars, with interest thereon from the .... day of , 18 . . , besides your fees, Plaintiff's Attorney. BOOK OF FORMS. 547 IN PROCEEDINGS 0NDEE LIEN LAWS. No. 696. Execution against real estate generally. As in the last form to the *, then continue .•] Therefore, "we com- mand you, that you satisfy the said judgment out of the real property in your county belonging to said defendant on the day when the said judgment was so docketed in your county, or at any time thereafter, and return this execution, within sixty days after its receipt by you, to the clerk of the county of Witness, &c. [as in last form]. No. 697. Contractor to enforce lien injustix^s court. IN JUSTICE'S COTJET:— Before , Justice. . . ., Claimant, against ... ., owner. To , above named, owner of the building and premises here- inafter mentioned: Take notice, that I, , above named, residing within the county of , have a claim against you, amounting to the sum of dollars, with interest thereon from the day of last, for three months' labor performed for you as a carpenter and joiner [or, for large quantities of lumber fur- nished to you and used by you], in pursuance of an agreement with you, the same being fully set forth in the bill of particulars hereto annexed ; and which labor was performed [or, which materials were furnished and used] in erecting the building "No. , . . . , and appur- tenances, owned by you, situated on street,* in the village 548 BOOK OF FORMS. IK PROCEEDINGS UNDER HEN LAWS. of , in the town of , in said county ; the lot npon which the same stands being bounded and described as fol- lows: [descnbe premises.] Also take notice, that within thirty days after the performance and completion of such labor [or, the final furnishing of such mate- rials'], to wit, on the .... day of , 18 . . , I duly filed with the town clerk of said town of the notice required by law to effect a lien on the building and premises above men- tioned, owned by you, as aforesaid, for the amount of the claim above stated, to wit, for the sum of .... dollars, and interest as aforesaid. You will, therefore, also take notice, that you are required to appear, in person or by attorney, before , Esq., a justice of the peace in and for said town, at his office in said town, on the day of next,' at o'clock, . . m., and answer this notice, or in default thereof, I, the said claimant, will take judgment against you for the amount claimed, as aforesaid, to wit, the sum of dollars, and interest thereon from the day of |18 . ., with costs. [Annex bill of particulars. See form in No , ante.] Daied, &c. Claimant. Attorney for Claimant. ' The time must be not less than thirty days after the service of the notice. BOOK OF FORMS. 549 IK PROCEEDINGS UNDER LIEN LAWS. No. 698. Like notice injustice's court by other person than contractor. IN JUSTICE'S COUET :— Before , Justice. . , ., claimant, against , owner. 3 To , above named, owner of the building and premises here- inajter mentioned: Take notiee, that I, . . .... ., above iaa,med, residing within the county of , have a claim against , of the village of , in said county, who was the contractor with you for the erection of the building and appurtenances hereinafter mentioned, amounting to the sum of . dollars, with interest thereon from day of ... . . . . last, for three months' labor performed for the said ,........, as a carpenter and joiner [or, for large quantities of lumber furnished to and used by the said . . . ], in pursuance of an agreement with him, the same being fully set out in the bill of particulars, hereto annexed, and which labor was performed [or, which materials were furnished and ^ed] in erecting the building No , and appurtenances, owned by you, situated on street, &c. [conclude as in the last form from the *]. [Annex bill of particulars, as in No , ante.'] Signed, , Claimant. , Atiorney for Claimant. No. 699. Claimants bill of particulars. [Skme as in No. 693, ante.'} 550 BOOK OF FORMS. IN PROCEEDINGS UNDER LIEN lAWS. No. 700. Affidavits of service of notice, &c., on failure to appear. \For forms of affidavits of service of notice, personal and by publi- cation, and of affidavit of facts justifying service by publication, see Nos , ante."] No. 701. Affidavit of owner's default injustices court. [Title.] County of ,ss: , above named \or, , attorney for , above named], being duly sworn, says : He is the plaintiff [or, attorney for the plaintiff] in the above action. That this action was commenced to enforce a lien against real property owned by the defendant above named ; and the notice commencing the same is returnable before , Esq., justice of the peace, at his office in the town of , on the day of at ... . o'clock, . . M., as will more fully appear by said notice hereto annexed. And deponent further says : That the said has not appeared before the said justice, as required by said notice, and that one hour and over has elapsed since the time fixed in said notice for the appearance of said defendant. [Signature of deponent] Sworn, &c. No. 702. Owner's answer before justice. [Title as in suit before a justice; and then proceed the same as in No. 693, ante, including the verification and bill of particulars there given^ BOOK OF FORMS. 551 IN PROCEEDINGS UNDER LIEN LAWS. No. 703. Notice requiring claims to he presented. To all persons having claims under any of the provisions of the act entitled " An act for the better security of mechanics and others erecting buildings in the counties of Westchester, Oneida, Cortlandt, Broome, Putnam, Rockland, Orleans, Niagara, Living- ston, Otsego, Lewis, Orange and Dutchess," passed April 17, 1854 \and the act to extend tlie provisions of the above recited act, to all the counties of this state, except the city and county of New York and the county of Erie, passed April 14, 1858], against the building No. . . . , and appurtenances, owned by the undersigned, and the land upon which the same stand, and which is situated in the town of , in the county of , and is described as follows : [insert brief description of premises'], at the time of the first publi- cation of this notice (to wit, the day of , 18 . . ). Take notice, that you are required to present the said claims, with vouchers in support thereof, to Esq., a justice of the peace of said town, at his office in said town, on or before the day of next [or, on or before o'clock . . ii of the day of next']. Dated, &c. Owner. No. 704. Notice requiring claimant to commence an action to enforce his lien. To , Claimant: You will take notice, that you are required, within twenty days after the service of this notice, to commence an action to enforce a lien created by you on the day of , 18 . . , against the building No , and appurtenances, and the lot 552 BOOK OF FORMS. IN PROOBEDINGS UNDER LIEN LAWS. upon which the same stands, owned by , to secure an alleged claim for dollars, alleged to exist against the said , as owner [or, against , as conti'acfor}. The building and premise^s above mentioned are described in the notice creating said lien, as follows : [Insert description.] "., Owner [or, , Attorney for , the owner above named; or, , contractor ; or, , siiii- contractor']. Dated, &c. No. 705. Affidavits of service of No. 704, and that action is 7iot commenced^ County of ss: . , of , in said county, being duly sworn, says that on the .... day of , 18. ., he personally served a notice, oif which the above is a copy, upon [or, ], the claimant mentioned therein, by delivering the same to, and leaving the same with, the said [or, ], at his residence in the village of . . . . , in said county. And deponent further says that he knew the person so served to be the person mentioned and described in said notice as claimant therein. Sworn, &c. County of , ss: , being duly sworn, says that more than twenty days have elapsed since the service of the notice mentioned in the afi&davit of , hereto annexed ; and that no action has been commenced against him to enforce the lien mentioned in said notice. Sworn, &o. BOOK OF FORMS. 553 IN HABEAS CORPUS. FOEMS IN HABEAS COBPUS. No. 706. Application for lorit of habeas corpus hy the party confined. To the Honorable , Justice of the Supreme Court \or to the court, as the case may be] : The petition of A, B. respectfully shows to your Honors that he is now a prisoner, confined in the custody of , sheriff" of the county of , in the county jail, in the ...... of , in said county, for a supposed criminal offense, to wit : [Hereinsert the alleged offense.] Your petitioner also shows that such confine- ment is by virtue of warrant, a copy of which' is hereto annexed Iff a copy can be obtained; if one cannot be obtained, state the reason why, and the effort made to obtain such copy], and your petitioner avers that, to the best of his knowledge and belief, he is not com mitted or detained by virtue of any process issued by any court of the United States^ or any judge thereof, in a case where such courts or judges have exclusive jurisdiction, under the laws of the United States, or have acquired such jurisdiction by the com- mencement of any suit in such courts ; or by virtue of any final judgment or decree of any competent tribunal of civil or crimi- nal jurisdiction, or by virtue of any execution issued upon such judgment or decree. And your petitioner further states that he is advised by counsel, , Esq., residing at , and so believes, that his said imprisonment is illegal, and that said illegality consists in this, to wit: [State the alleged illegality^ Wherefore, your petitioner prays a writ of habeas corpus, to the end that he may be discharged from custody \or, to the end that he maybe bailed, etc.] , his Attorney. Dated, &g. (Add verification.) 70 554 BOOK OP FORMS. m HABEAS CORPUS. No. 707. Application hy a third party. To the Hon , dec. (as in the preceding form) : The petition of respectfully sbow3 that A. B. is im- prisoned and restrained of his liberty by, &c. [state by whom and how, etc.], and that the said A. B. is so confined and restrained at And that, according to the best of your petitioner's knowledge and belief, the cause or pretense of the aforesaid con- finement or restraint of the said A. B. is as follows, etc. {state the same]. And your petitioner further states, &c. [as in the preceding form]. (Add verification.) No. 708. Form of writ. The People of the State of New York to .• "We command you that you have the body of A. B., .by you imprisoned and detained, as it is said, together with the time and cause of said imprisonment and detention, by whatsoever name the said A. B. shall be called, or charged, before our justices of our Supreme Court [as tlve case may he], at , on the . . . day of 18 . . , at . . . o'clock . . m. of that day [or forthwith], to do and receive what shall then and there be determined con- cerning the said A. B., and have you then and there this writ. Witness, &c., one of the justices, &c. Signed, , Ckrk. , Attorney. [Indorsement thereon i] Allowed the day of 18 . . , on the application of Justice of the Supreme Court, BOOK OF FORMS. 555 IN HABEAS CORPUS. [If the charges for bringing up the prisoner are required to be paid, add to the last above :'] "And the charges for bringing up such prisoner, amounting to dollars, are hereby required to be paid by the petitioner, on whose application this writ is issued." No. 709. Writ of certiorari where the person cannot be brought up. The People of the State of New York to .• We command you that you certify fully and at large to our justices of our Supreme Court [as the case may 6e], at , on the day of , 18 . . [or forth- with], the day and cause of the imprisonment of A. B., by you detained, as it is said, by whatsoever name the said A. B. shall be called or charged ; and have you then and there this writ. Witness, &c. [as before']. No. 710. Petition where there is danger the party may be carried out of tJic state, or that some injury may accrue before the writ can issue. To the Supreme Court, &c. [same as in No. 70Q,.then_add:] And your petitioner further states; that the said , in whose custody the said A. B. is, threatens to carry the said A. B. out of the state, and has told several persons publicly that such was his intention. That your petitioner had a conversation with the said , this morning, in which the said then stated to your petitioner that he should leave immediately with the said A. B. for the State of , and that your petitioner, or any other person, had no power to prevent him from doing so. [Set forth the facts showing the illegal confinement of A. B., and that he will be carried out of the state, or irreparably injured, before he can be relieved by habeas corpus or certiorari] (Add verification.) 556 BOOK OF FORMS. IN HABEAS OORFCS. No. 711. Warrant under the preceding. To , Sheriff of the county of [or to any consta- ble of Hie county of ] : Whereas, has applied to me for a warrant to take A. B., alleged to be illegally confined by \or in the custody o/"] .... . . . . : and whereas, it appears from the proofs before me on such application {recite the facts upon which the warrant is issued] ; from which facts it satisfactorily appears to me that the said A. B. is held in illegal, confinement \or custody'] by. the said . . . . , and that there is good reason to believe that he will be carried out of the state [or will suffer irreparable injury] before he can be relieved by issuing of a habeas corpus or certiorari. These are, therefore, to command you, in the name of the People of the State of New York, that you forthwith take the said A. B. and bring him before, me, to be dealt with accord- ing to law. Given under my hand and seal, at , in said county, this < ;day of ,18... . |;i,.s.j , Attorney.- No. 712. Bond on serving the writ. Know all men by these presents, that I, G-. H., of the of , in the county of ... . , am held and firmly bound unto . , , sheriff of said county, in the penal sum of ........ dollars [doubh (he amount for which the prisoner is detained. If detained for no amount, then one thousand dollars], to be paid to the said ......... or to his certain attorney, execu- BOOK OF FORMS, 557 IH HABEAS COBPtTS. tors, administrators or. assigns, for the payment of which, -well and truly to be made, I bind myself,, my heirs, executors and administrators, firmly by these presents. Sealed with my seal, this day of , 18 . . . The condition of this bond is such, that whereas the said A. B. is now confined as a prisoner in the custody of the said . . . . , sheriff aforesaid, and a writ of habeas corpus has been issued by the Supreme Court [as the case may Je] to inquire into the cause of his detention, directed to the said sheriff; now, therefore, the condition of this obligation is such, that if the said Gr. H. shall pay to the said sheriff the charges of carrying back the said A. B., if he shall be remanded on the said habeas corpus, and if the said A. B. shall not escape by the way, either in going to, or returning from the court house in then this obligation to be void ; otherwise, to remain in full force. G. H. [Seal.] Sealed in the presence of No. 713. Disobedience of writ. Attachment for same. To the Sheriff of county : It appearing satisfactorily to me, on the oath of , that , to whom a writ of habeas corpus was delivered, com- manding him to bring before me A. B. in the said writ named, lias neglected to obey the said writ according to the command thereof, by not producing the said A B. before ine, and also by not making a return to such writ within the time limited by law ; and no sufficient excuse having been shown for such neglect, these are thereof to command you, in the name of the People of the State of New York, forthwith to arrest the said . . . ., and bring him immediately before me, at my ofBce in the of , in said county. 558 BOOK OF FORMS, IN HABEAS CORPUS. Given under my hand and seal, at aforesaid, on the day of , 18 . . . . [Seal.] , Attorney. No. 714. Commitment for the same. To the Sheriff of the county of : Whereas, has been brought before me, on a warrant issued by me, stating that he, the said \liere recite the loarrani] ; and whereas the said still refuses to obey the said writ of habeas corpus, by producing the body of the said , according to the command of the said writ, and by not making a full and explicit return to said writ of habeas corpus. These are, therefore, to command you, in the name of tlie People of the State of New York, forthwith to convey the said to the jail of said county, and there commit him to close custody in such jail, without being allowed the liberties thereof, there to remain until he shall make return to the writ in such warrant mentioned, and also comply with my order this day made, Avherein the said was ordered, &c. [ Here state any further order made in the premises respecting the relief sought, etc.] No. 715. Precept to bring up the party illegally restrained, c&c. Ih the Sheriff of the county of : Whereas, a writ of habeas corpus has heretofore been issued by me, directed to , in which he, the said , was commanded to have the body of , by him im- prisoiied and detained, as it was said, together with the time and BOOK OF FORMS. 559 IN HABEAS CORPUS. of such imprisonment, and which writ has been duly served upon the said ; and whereas the said has neglected to produce the body of the said , according to the command of said writ ; and for which neglect an attach- ment has been issued against the said These are, therefore, to command you, in the name of the People of the State of New York, forthwith to bring before me the said , at my office in , , in said county. ' . [Seal.] , Attorney. No. 716. Forvi of return to habeas corpus. The return of sheriff of the county of , to the writ of habeas corpus hereto annexed : In obedience to the writ of habeas corpus hereto annexed, I do hereby certify and return to the court {or jud/je, Sc, as the case may 6e],* that before the coming of said writ to me, to wit, on the day of , 18 . . , at , the said , mentioned in said writ, was placed in my custody by virtue of an execution [or commitment as the case may be] issued, &c. [state cause of imprisonment], a copy of which execution is hereto annexed; and that the said is now in my ciistody under the said execution ; all which I certify, and I have here his body before the said court, as by the said writ I am commanded.' Sheriff. Dated, &c. ' If the person making the return is not a sworn public officer, and acting as such in making such return, he should verify it in the usual form. 560 BOOK OF FORMS. IN HABEAS CORPUS. No. 717. When the officer, &c., has not the custody of the party. After the * above, add-] That neither at the time of the allow- ance of the said writ, nor at any time since, was the said in my custody, or restrained by me of his liberty ; wherefore I cannot have his body before the said court, as by the said writ I am commanded. 'Sheriff. No. 718. The return of the offuxr, die,, may he traversed. Form of traverse. Before the Hon , &c. [Title.] The said in answer, to the return of the said ....... sheriff, &c., of the county of , to the writ of habeas corpus directed to him in the above matter, denies that, &c. [Here set forth the allegations in the return which the party wishes to traverse,] And the said , in further answering said return shows that, &c. [Here allege any matter showing the party to be illegally imprisoned, or erditled to his discharge.] Signed, , (This answer should be verified.) BOOK OF FOEMS. 561 IN HABEAS CORPUS. No. 719. Notice to party interested of the time and place the writ is returnable. To ; You will please take notice that a writ of habeas corpus has been issued by the Supreme Court, to inquire into the cause of the imprisonment of , now confined in the jail of .... county, under a process in which you have or claim some interest ; and that said writ is made returnable before the said court, at the court house in , on the .... day of , 18. ., at . . . . o'clock . . M. of that day. Dated, &c Attorney for No. 720. To the district attorney. [Similar notice to the district attorney, when the defendant is im- prisoned on a criminal charge.] No. 721. Application for a writ of habeas corpus to bring up a person to testify. Affidavit and application. [Title op the actioit ob pnooEBDiira.] STATE OF NEW YORK, County, f **' , plaintiff, above named, being duly sworn, says : That this action is brought upon, &c. [describe cause of action]. That the defense to said action is as follows : [set up the defense.] And deponent says that , who is now a prisoner in the custody of the sheriff of the county of , under an execution upon a final judgment, &c. [set forili for what he is in 71 562 BOOK OF FORMS. m HABEAS COSFCS. custody], is and will be a material witness for this deponent on the trial of said action, as he is advised by , Esq., his counsel in this action, residing at , in said county, and verily believes to be true , and that he cannot safely proceed to the trial of said cause, without the testimony of the said ; , as he is also advised by his said counsel, and believes. And this deponent further states that said action is noticed for trial at a circuit court, to be held at the court house in , in the county of , on the .... day of , 18 . . . Sworn, &c. No. 722. Habeas corpus ad testificandum. The People of the State of New York to the Sheriff of the county of , GrHEETING : - We command you that you have the body of one detained in our prison, under your custody, as it is said, under safe and secjire conduct before our [l. s.] said Supreme Court, at a Circuit Court to be held at the court house in , in said county of , on the .... day of , 18 . . , by o'clock . . M. of that day, then and there to testify the truth, according to his knowledge, in a certain action pending in said court, then and there to be tried between plaintiff, and , defendant, on the part of the said plaintiff. And immediately after the said shall have given his testimony in the said action, that you return him, the said , to our said prison, under safe and secure conduct. And have you then and there this writ. Witness, , one of the justices of our said court, the .... day of , 18 . . . -, Attorney. Clerk [Indorsed ;] Allowed this day of 18 . . Justice of Supreme Court. BOOK OF FORMS. 563 MISCELLANEOUS. MISCELLANEOUS FORMS. No. 723. Notice of retainer. [TrrLB.] Please take notice that have been retained by, and hereby appear for, the defendant, , in the -above entitled action, and that all papers therein inay be served on , at office, No. .... street, in the , K". Y. yours, &c., Dated. Defendanfs Attorney. To , Plaintiff ^s Attorney. Due and personal service of a notice of trial, of which the above is a copy, is hereby admitted this .... day of , 18 . . . Attorney for No. 724. Notice of appearance and demand of copy of complaint. [Title.] Please take notice, that have been retained by and hereby appear for the defendant, , in the above entitled action, and that demand a copy of the plaintiff's com' 564 BOOK OP FORMS. MISCELLAKEOnS. plaint therein, whicli may be served on , at my office, No street, in the , N, Y. Dated, &c. Defendants Attorney. To , Plaintiff ^s Attorney. Due and personal service of a notice, of which the above is a copy, is hereby admitted this .... day of , 18 . . . Attorney for No, 725. Notice of trial, for plaintiff. [Title.] Please take notice that the above entitled action will be brought to trial and an inquest taken therein, at the next circuit court, .appointed to be held in and for the county of , at the , in the , on the .... day of 18. ., at the opening of the court on that day, or as soon there- after as counsel can be heard. Yours, &C., Dated, &e. Attorney for . To Esq., Attorney for Due and personal service of a notice of trial, of which the above is a copy, is hereby admitted this .... day of , 18 . . Attorney for (Where the case is not triable by jury, the words " and an inquest taken therein," should be omitted.) BOOK OF FORMS. 565 MISCELIiAKEOUS. No. 726. Notice of trial before referee. [Title.] Please take notice that this action will be brought to a hear- ing before , the referee appointed therein by the court, at , on the .... day of , 18 . . , at o'clock in the .... noon of that day. Dated, &c. Yours, &c., , Attorn£yfor To , Attorney for Due and personal service of a notice of which above is a copy, is admitted this .... day of , 18 . . . ^> Attofrney. No. 727. Notice of trial fot defendant. [Title.] Please take notice, the above entitled action will be brought to trial at the next circuit court appointed to be held in and for the county of ... . , at the court house, in the , on the day of , 18 . . , at ten o'clock in the forenoon of that day. And shall then and there move the court for a dismissal of the complaint with costs. Dated, &c. Yours, &c., , Defendants Attorney. To , Esq., Plaintiff ^s Attorney. Due and personal service of a notice of trial of which the above is a copy, is hereby, admitted this day of , 18.. . > Attorney for Plaintiff. 566 BOOK OF FOKMS, HI30ELLAIIEOX7S. No. 728. Notice of argument of appeal in court of appeals. [Title.] Take notice, that the appeal in the above entitled action -will be brought on for argument at the next term of this court, to be held at the Capitol in the city of Albany, on the first Tuesday of January, 18 . . , at the opening of the court on that day. Yours, &c., > Attorney for To , Esq., Attorney for , and the Clerk of ffie Court of Appeals. Due service of a copy of the above notice is hereby admitted, this day of , 18. . . » Attorney for . . . No. 729. Notice of argument at general term. [Title.] Please to take notice, that above cause will be brought on for argument before this court at the next general term thereof, to be held at the , in the , on the .... day of ,18.. . Dated, &c. Yours, &c., , Attameyfcyr To , Esq., Attorney for Due and personal service of a notice, of which the above is a copy, is admitted this .... day of , 18 . . . Attorney for BOOK OF FORMS. 567 MISCELLANEOUS. No. 730. Notice of decision of justice. [TiTLK.] To , Esq., Attorney for ; Sib — Please take notice, that the within is a copy of the decision in this cause, and that the same was filed ia the oflSce of the clerk of the county of , on the .... day of , 18 . . . Dated, &c. Yours, &C., Attorney for I No. 731. Notice of decision of referee. [Title.] To , Esq., Attormy for : Sir — Please take notice, that the within is a copy of the report of the referee in this cause, and that the same was filed in the office of the clerk of the county of Albany, on the day of ,18... Yours, &o., Attorney for 568 BOOK OF FORMS. MISCELLANEOUS. No. 732. Notice of application for judgment on frivolous demurrer, or answer or reply. [TlTLB.] Please take notice, that upon the pleadings in this cause, I shall apply to , a justice of this court, at his.cham- bers at, &c. [or, at the next special term of this court, to be held at the in the ,onthe .... day of , 18. ., at .... o'clock, in the .... noon of that day"], for a judgment on the demurrer \or, answer or reply'] in this action, on account of the frivolousness thereof. Dated, &o. Yours, &c., , Attorney for To , Esq., Attorney for No. 733. Notice of motion for reference. [TrTLE.] Please take notice, that upon affidavits and papers, with copies of which you are herewith served, and upon the pleadings in this action or copies thereof, a motion will be made at the next special term of this court, to be held at the in the .... of , on the day of , 18. ., at o'clock, in the noon of that day, for an order referring this action to , Esq., or to some other suitable person, to hear and determine the same, according to the rules and practice of this court Dated, &c. Yours, &c., , Attorney for To , Esq., Attorney for BOOK OF FORMS. 569 MISCELLANEOUS. No. 734 Notice of settlement of case and exceptions. [Title.] Please take notice, that the case and exceptions made in this action, with the amendments proposed thereto, will be presented to the Hon. the justice before whom this action was tried, for settlement at his chambers in the ......... on the .... day of , 18 . . , at . . . . o'clock in the .... noon of that day. Dated, &c. Yours, &c., » Attorney for To , Attorney for No. 735. Notice of the entry of judgment. [Tttlb.] Please take notice, that judgment in the above entitled action, was entered in favor of the above named , and against the above named for dollars and cents damages, and dollars and cents i in the office of the clerk of the county of , on the , day of , 18 . . . Dated, &c. Yours, &c., Attorney fir To ) Esq., Attorney for 72 570 BOOK OF FORMS. MISCELLANEOUS. No. 736. Notice of motion to set aside inquest for irregularity. [Title.] Please take notice, that upon papers and affidavits, with copies of which you are herewith served, a motion will be made at the next special term of this court to be held at the . . , in the , on the .... day of ., 18. ., on the open- ing of the court on that day,* for a role or order, that the inquest taken in the above entitled action, and all the subsequent pro- ceedings had thereon, be set aside with costs, for the following irregularities, to wit : [Sere state the irregularities complained of] Dated, &c. Yours, &c.. Defendants Attmney. To Esq., Plaintiff ^s Attorney. No. 737. Notice of motion to set aside regular inquests ISame as in last form to the *, and then as follows ;] for a rule or order that the inquest taken in the above entitled action, and all the subsequent proceedings had thereon be set aside upon such terms and conditions as to the court shall seem just and proper. Dated, &c. Yours, &c., Defendants Attorney. To , Esq., Plaintiff's Attorney. BOOK OF FORMS. 571 MISCELLANEOUS. No. 738. Notice of claim for surplus money. [Title.] To , clerk of the county of .• SlE — Take notice, that I, the subscriber, have a claim on the surplus proceeds of the sale herein ; and that such claim amounts to $ , and interest thereon from the .... day of , 18. ., by virtue of a lien under a judgment against C. D., the above defendant [or, mortgage executed by 0. D., the above defend- ant, while the said 0. D. was the owner of the equity of redemption of the mortgaged premises, and before the commencement of this action.] Dated, &c. A. B. No. 739. Affidavit of personal service of summons and complaint. [Title.] .^ County, State op New Yoek: , of lawful age, being duly sworn, says, that on the day of , 18 . . , at , in said county, he personally served upon the said the within summons, by then and there personally delivering to, and leaving with the said ......... defendant, a true copy of the same ; and this depo- nent further states that he knows the said to be the person mentioned and described in the summons as defendant therein. Signed, . Sworn to, &c. (Jurat.) 572 BOOK OF FORMS. MISCELLANEOUS. No. 740. Affidavit of mail service. City and County of , ss: J. D. being duly sworn, says, that on the .... day of , 18. ., he served a copy of the annexed paper on E. F., by depositing the same in the post office at , the place of residence of the [plaintiff's] attorney, inclosed in an envelope addressed to D. E., the [de/endanfs'j attorney, at ., K Y:, his place of Tesidence; that at the time of mailing said papers he paid the full legal postage thereon, and that there is a regular mail communication between said and Sworn, &c. No. 741. Affidavit to obtain order to file pleadings. [Titlr] STATE OF KEW YOEK, ) . County. j *^ ' J. T., being duly sworn, says that he is the attorney for the defendant ; that the summons and complaint were served in this action upon the defendant, more than ten days since, to wit, on the .... day of > 18 . . ; that this deponent made inquiry at the office of the clerk of county, the county in which the trial of this action is laid, after said ten days had elapsed, and said summons and complaint had not been filed in said office. , J. T. Sworn, &c. BOOK OF FORMS. 573 MISCELLANEOUS. No. 742. Affidavit to obtain order for service when defendant evades the service of summons (under statute of 1853). [Title.] STATE OF NEW TOEK, ) County, ) **" J. T., being duly sworn, says that he is one of the deputy sheriffs of county aforesaid ; that a summons, a copy of which is hereto anne:sed, was delivered to him to be served upon the above named defendant, ; that the said , defendant resides in this state, to wit, in the town of , in said county ; that this deponent has made diligent and proper efforts to serve the summons upon the said , by repeat- edly going to the place of residence of the said ; but has hitherto been wholly unable to do so ; that the said , by keeping watch for the. approach of this deponent, and by stealthily fleeing away on such approach, renders service of said summons impossible and thus evades the service thereof ; that after repeated efforts this deponent is well satisfied that he cannot make personal service of said summons. J. T. Sworn, &c. [Note. — If defendant cannot be found, state that fact, and state the effort made to find him and to serve the process upon him.] No. 743. Affidavit to obtain an order for publication. [Title.] STATE OF NEW YOEK, ) County. | ' A. B., being duly sworn, on his said oath says that he is the attorney for the plaintiff in the above entitled action ; and that 574 BOOK OF FORMS. MISOELLANEODS. a summons has been duly issued herein against the said defend- ant ; that said defendant is a foreign corporation created under the laws of the state of , and doing business in the city of , in the state of ; and that after diligent inquiry deponent has been unable to find, within this state, the president, secretary, cashier, treasurer, directors or managing agent of said corporation, or any or either of them, or any officer or agent of the said defendant, upon whom service of summons can, by law, be made, to wit, this deponent has [here state the effort and inquiry made'] ; that he is informed, and verily believes such information to be correct, that all such officers of said corporation reside in the said state of , , and that none of them are, at this time, within the limits of this state ; that this action is brought, &c. [here state the cause of action for which suit is brought] ; and that the said defendant has pro- perty within this state, to wit : [describe the same and its location.] That the \the officer proposed to be served hy mail] resides at , in said state of That the above cause of action arose in this state, as appears by the annexed complaint. A. B. Sworn, &c. 'No. 744. The like against an absconding defendant [Title.] STATE OF NEW YOEK, ) County, [**■ A. B., being duly sworn, on his said oath says : That he is the attorney for the plaintiff in the above entitled action ; that a summons has been issued in this action against the said defend- ant, who is a resident of this state, and, until the day of , 18 . . , resided at That upon the day of ) 18 . . , this deponent called at the house hereto- fore occupied by the said defendant, with intent then and there BOOK OF FORMS. 575 MISOELLANEODS. to serve a summons, in the above entitled action, upon him ; that the said defendant was not then to be found at his said house ; and this deponent, on diligent inquiry for the said de- fendant, was then and there informed by that the said defendant, &c. \^Here state the information obtai^ied; state also luhat further effort was made, at different times, to serve said summons upon the defendant, and the result of the same.] That this action is brought to, &c. [state the object thereof] • and this deponent says that the said defendant has departed from this state, with intent to avoid the service of a summons, and also with an intent to defraud his creditors. [Here detail the facts and circumstances which lead to the conclusion as above,] A. B. Sworn, &c. No. 745. Verification of a pleading by art agent or attorney. [Title.] STATE OP NEW YORK, ) , County, j *''■" A. B., being duly sworn, says : That he is the attorney for the plaintiff in this action ; that the deponent has read the forego- ing complaint, and that the same is true of his own knowledge, exQept as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Deponent further says, that the reason why this verification is not made by the plaintiff is, that said plaintiff is absent from the county, and this action is founded upon a written instrument for the payment of money only, and said instrument is in deponent's possession, and that deponent's knowledge of the case in this action is derived from said instrument, and from information received > from the said plaintiff, and from statements made by the defendant in this action to deponent respecting said instru- ment A. B. Sworn, &c. 576 BOOK OF FORMS. MISCELLANEOUS. No. 746. Affidavit to extend time to plead, [Title.] STATE OP NEW YOEK, ) County, j **■ J. T., being duly sworn, says, that he is attorney for the de- fendant in the above entitled action, and retained by him to defend the same ; that from the statement of the case in this action by the said defendant, he verily believes that the defend- ant has a good and substantial defense, upon the merits, to the cause of action set forth in the complaint herein, or to some part thereof; that since the service of the complaint aforesaid upon this deponent by the said plaintiff, this deponent has been unable to prepare the answer thereto, owing to circumstances which he could not control {here state these circumstances'} ; and that the time for answering said complaint, as established by law and the rules of this court, expires on the day of , 18 . . , within which time this deponent cannot properly prepare the said answer of the defendant. J. T. Sworn, &c. No. 747. Affidavit to procure testimony of a witness to be used on trial (or de bene esse). [Title.] County, ss: S. T., being duly sworn, says, that this is an action pending in the court of this state, and the natare of the action is as follows [state the same briefly]. That the said S. T. has fully and fairly stated the case to his counsel in this cause, who resides at ; and BOOK OF FORMS. 577 MISCELLANEOUS. that he has also stated to his said counsel the facts which he expects to prove by , who resides at , , as a witness in this cause for this deponent ; and that the testimony of the said is material and necessary for this deponent on the trial of this cause, and that, without the benefit thereof, this deponent cannot safely proceed to the trial of said cause, as he is advised by his said counsel, after said statements were duly made to him, and verily believes ; and that the said is about to depart from this state [m; that he is so sick or infirm as to afford reasonable grounds for apprehension that he will not he able to attend the trial of said suit.^ Signed, T. S. Sworn, &c. (Jurat.) No. 748. Affidavit on application to perpetuate testimony. [Title.] STATE OP NEW YOEK, ) CotTNTY, [**•■ J. T., being duly sworn, says, that the above entitled action is now pending in the court, and that the deponent is a party plaintiff therein ; the summons in said cause was served upon him, the said , on the day of , 18. . ; that the said action is brought to recover [state briefly the cause of actidn] ; that this deponent has fully and fairly stated the case in this action to , Esq., his counsel therein, who resides at , in, &c., and has fully and fairly disclosed to him the facts deponent expects to prove by the witness hereafter named ; that deponent is advised by his said counsel, and verily believes, that the testimony of is material and neces- sary for him, upon the trial of this action, and that, without his testimony, deponent cannot safely go to trial ; that the said .... .... is now at , in this state, and is of the age of .... ^8 578 BOOK OF FORMS. MISCELUlNEOUS. , and upwards, and is feeble and infirm, and has not been able, for months last past, to leave his room, by reason thereof, and is not now able, nor is there reason to suppose he will be able to attend the trial of this cause [or state any other reason, efc.]. Sworn, &c. No. 749. Affidavit to obtain discovery of papers, Jtc. [Title.] STATE OF NEW YORK, ) County, j ^*' J. T., defendant in this action, being duly sworn, says, That this action is brought to, &c. [Here state the nature and cause of action. State also the condition of the catise.'] That to enable the defendant to answer the complaint herein, he is advised by , Esq., his counsel in this cause, who resides at , in said county, that it is necessary that he should have the dis- covery of a certain memorandum of an agreement, to wit \here describe such memorandum, and state the reason why it is necessary, &c., to enable the defendant to answer'] ; that this defendant has no means of setting forth correctly the parts of said memorandum of agreement essential to his answer herein, except by an inspection of the same, and that said memorandum is not in the possession or under the control of this deponent; but is in the possession and under the control of the said plaintiff; depo- nent farther says, that he has demanded an inspection of said agreement of the plaintiff herein, and said defendant refused him an inspection of said agreement. % J.T. Sworn, &o. BOOK OF FORMS. 579 MISCELLANEOUS. No. 750. Affidavit of merits. [Title.] County of , s«; , being duly sworn, says that he is the defendant in the above entitled action ; that he has fully and fairly stated the case in said action to , his counsel in this action, who resides at , in the said , and that he has a good and substantial defense upon the merits thereof, as he is advised by his said counsel, after such statement made as aforesaid, and verily believes. Sworn, &c. No. 751. Affidavit to obtain a further bill of items. [Title.] STATE OF NEW YOEK, , „ ss County, j K. L., being duly sworn, says that he is attorney for the defendant in the above action ; that on the .... day of , 18. ., he caused a demand for a bill of the items of plaintiff's demand to be served upon the said plaintiff 's attorney, and that in compliance with such demand, a bill of said items has been furnished, of which the annexed is a copy ; and this deponent further says, that said bill of items is defective and not sufi&cient in this, to wit: \Here point out the defects in the bill furnished], and that by reason of said defective account a further account is necessary to enable the defendant properly to prepare his defense to this action. K. L, Sworn, &c. 580 BOOK OF FOEMS. MISCELLANEOUS. No. 752. Affidavit to obtain security for costs. [Title.] STATE OP NEW YOEK, ) County, j **' ;......., being sworn, according to law, says, that this action was commenced by the personal service of the summons on this defendant; that the plaintiff herein is a non-resident of this state ; that said plaintiff resides in the state of , and not within the jurisdiction of this court [or where the plaintiff, after the commencement of the action, has removed out of the state, state it thiis'] ; that since the commencement of the action afore- said, the said plaintiff has repioved from this state to the state of , and hereafter intends residing there, and is no longer a citizen of this state, and is not within the jurisdiction of this court. Sworn, &c. , Note. — This form may be varied to meet the several cases under the statute. No. 753. Affidavit to move to disniiss complaint for not proceeding to trial. [Title.] STATE OF NEW YOEK, ) County, ) **" J, T., being duly sworn, on his said oath says, that he is attor- ney for the defendant in the above entitled action, and that the place of the trial of the same is in county, and that issue of fact herein was joined on the day of BOOK OF FORMS. 581 MISOELLANEOOS. last past, and that notice of the trial of this action was served on this deponent for the circuit court to be held at the of , in said county, on the first Monday of inst. That said circuit was holden at the time and place in the said notice mentioned, and this deponent attended said court with the defendant and his witnesses, but that said plaintiff did not pro- ceed to bring on this action according to the practice of the court, nor countermand said notice of trial 5 and that younger issues of fact were tried at the said circuit, in their regular order on the calendar, to wit, issues joined on the .... day of , 18.. . J. T. Sworn, &c. No. 754. Affidavit for an order of reference. [Title.] STATE OF NEW YOEK, ) . County, j ' J. T., being duly sworn, says, that he is plaintiff in the above entitled action ; that said action is brought to recover a demand claimed to be due upon a contract for work, labor and service ; that the complaint herein sets forth a large number of items, and the trial of the issues of fact between the parties will require the examination of a long account on the side of the said plaintiff; but said investigation will not require the decision of any diffi- cult question of law. J. T. Sworn, &c. 582 BOOK OF FORMS. MISCELLANEOUS. No. 755. Affidavit opposing such motion of reference. [Title.] STATE OP NEW YOEK, ) . County, j" ' C. D., being duly sworn, says, that lie is defendant in the above entitled action; that important and difficult questions of law "will arise, on the trial of this action, as he is advised by his counsel herein, and verily believes ; that is to say, the complaint herein sets forth the following, to wit [state if], to which the defendant, in his answer thereto, pleads as follows, to wit \state whati, and that the following legal position will be taken and insisted upon by this deponent, to wit \staie it] ; and this deponent is informed and believes, that the plaintiff's counsel urge as follows : \state the anticipated legal points'] ; and this deponent is advised by his counsel herein, and verily believes, that such points are material and involve difficult questions of law ; and, therefore, this depo- nent further states, that the investigation of the issues between the parties hereto, will require the decision of difficult questions of law ; [when facts will warrant, the following may be added:] and deponent further says, that many of the items of account set forth in the complaint and answer are admitted by the pleadings, and the decision of the facts herein wUl not require much time, nor the examination of a long account, the only facts in issue being the following, to wit [state Ikem]. C. D. (Jurat.) BOOK OF FORMS. 583 MISOELLANEOUS. No. 756. Affidavit to move for a commission, by plaintiff. [Title.] STATE OF NEW YOEK, ) County, j **' , being duly sworn, on his said oath, says that he is the plaintiff in this action; that an issue of fact was joined herein on the .... day of , 18 . . ; and that he has fully and fairly stated the case in this action to , Esq., his counsel herein, who resides at , in the county afore- said ; and that he has also fully and fairly stated to his said counsel the facts which he expects to prove by , a witness for said plaintiff ; and said deponent says that the said is a material witness for the plaintiff in this action, as he is advised by his said counsel after such statement of said case ; and verily believes, that without the benefit of the testi- mony of the said , this plaintiff cannot safely proceed to the trial of this action, as he is advised by his said counsel, and verily believes; and deponent further says that the said does not reside within this state, but he resides at , in the state of Signed, . Sworn, &c. (Jurat.) 584 BOOK OF FOKMS. MISCELLANEOUS. No. 757. Same by defendant [Title.] STATE OP NEW YOEK, ) County, ) **' J. T., being duly sworn, says, that he is the defendant in this action ; that an issue of fact was joined herein on the day of j 18. ., by the service of defendant's answer herein; that deponent has fully and fairly stated the case in this cause to , Esq., his counsel herein, who resides at , in said county ; and that he has fully disclosed to the said , his counsel, the facts which he expects to prove by the witness hereafter named ; that deponent is advised by his said counsel, after such statement, and verily believes, that he has a good and substantial defense to this action, on the merits thereof; and that is a material witness for deponent on the trial of this action; and that the said does not reside within this state, but does reside at in the state of J. T. Sworn, &c. No. 758. Affidavit for motion to consolidate actions. [Title.] STATE OF NEW YOEK, ) County, \^^' A. B., being duly sworn, says, he is the defendant in each of the above entitled actions ; that said actions were commenced [here insert the time and manner] ; that each of said actions arise out of contracts [state causes of action filly, or state facts showing that the several cati^es of action may he united in the same complaint under § 167 of Code} ; deponent further says that he does not -^ ^/ (7 A "^^K^\.A^ i/i-^^^J £^^jC ^Airir CUt,,.^ /M BOOK OF FOKMS. 585 MISCELLANEOUS. desire to defend either of said actions, but wishes to have them all consolidated in one action, to save costs {or, that the ques" tion^ to be litigated are substantially the same in each of said actions, and that deponent has a good and substantial defense on the merits to each of said actions, which is as follows) : \liere set forth the defense fully, which must he the same to each action.] A. B. Sworn, &c. No. 759. Affidavit of disbursements to he attached to hill. County of , ss: A. B., being duly sworn says, that he is the plaintiff's attorney in the above entitled action, and that the disbursements mentioned in the foregoing bill have been or will be necessarily incurred, according to deponent's best knowledge or belief. Sworn, &c. A. B. No. 760. Affidavit of attendance of witnesses. [TiTLB.] COTJNTY OF , ss.- A. B., being duly sworn says, that he is plaintiff in this action ; that the several persons hereinafter named necessarily attended the circuit, held at , com- mencing the .... day of , as witnesses in this cause, on the part of the plaintiff, days ; that they reside at the places, and necessarily traveled the number of miles set opposite their respective names, and that each and every of said witnesses was material and necessary for deponent in said cause, as he verily believes. A. B., resides at , traveled .... miles, attended .... days. Sworn, &c. A. B. Note. — If any of the witnesses have traveled from without the state, it should appear how far they have necessarily traveled within the state. 586 BOOK OF FORMS. MISCELLANEOUS. No. 761. Affidavit of the publication of summons [or notice.] I STATE OF NEW YOEK, County of , ^*' A. B., of , being duly sworn on his oath, says, that he is the foreman [or printer, or principal clerk, as the case may he] in the office of , a newspaper published weekly [or daily, as the case may he] in the of , in said county, and that the summons \or notice] annexed to this affidavit was published in said newspaper, once \or oftener] in each week, thirteen weeks successively, and that the said summons [or notice] was first so published on the .... day of 18. ., and was last so published on the .... day of . . . ., 18. . . Signed, Sworn, &c. (Jurat.) No. 762. Affidavit for stay of proceedings after judgment. [Title.] STATE OF NEW YOEK, ) County, j**-' S. T. being duly sworn, on his said oath says, that he is plain- tiff in this action; that the said action was tried at the last circuit, on the .... day of , 18 . . , before the Hon , one of the justices of the Supreme Court; and a jury was duly impanneled to try said action, and a verdict was then and there rendered for the defendant for the sum of dollars; and this deponent, on his said oath, further states that he is advised by his counsel in said action, and he verily believes the same to be true, that the said verdict was and BOOK OF FOEMS. 587 MISCELLANEOUS. is against the right of evidence offered on the trial of this action, and is erroneous ; and that the same ought to be set aside ; and it is the intention of this deponent to move this court that the said verdict be set aside. And this deponent further states that for the purposes of justice and of making this motion, it is necessary that the said defendant's proceeding on said verdict be stayed, until the further order of this court. Signed, S. T. Sworn, &c. (Jurat.) No. 763. Affidavit on which to move to set aside inquest. [Title.] STATE OF NEW YOEK, ) . County, j ' C. D. being duly sworn, says, that he is attorney for the defendant in this action ; that issue was joined in the same, on the day of i 18 . . , and the action was noticed for trial by the said plaintiff at a circuit court, to be held at the court house in the city of , on the day of , 18. . . That on the day of , 18. ., an af&davit of merits, of which the annexed is a true copy, was made by the said defendant, and the same was duly filed in the office of the clerk of county, to wit, on the .... day of , 18 . . ; and that a copy of said affidavit was, on the said day of , served on the attorney for the said plaintiff in this action, as appears by the affidavit of such service hereto annexed ; that notwithstanding the said filing and service of the said affidavit of merits, the attorney for the said plaintiff took an inquest in the said action, out of its regular order on the calendar, on the day of , 18.., and entered a judgment thereon for dollars. C. D. Sworn, &o. 588 BOOK OF FORMS. MISCELLANEOUS. No. 764. Affidavit on which to move to set aside a judgment entered on default. [Title.] STATE OF NEW YOEK, ) County, ) **" D. K, being duly sworn, says, that he is the attorney for the defendant in this action ; that the summons and complaint in this action were served on said defendant, on the .... day of , 18 . . , as deponent is informed by said defendant, and verily believes true. Deponent further says, that on the day of , 18. ., he served upon , attorney for the plaintiff, a copy of the defendant's answer in this action, copies of which are hereto annexed, by depositing the same in the post-office at , which is deponent's place of residence, inclosed in an envelope, addressed to the said plain- tiff's attorney, at , his place of residence, and paying the full legal postage thereon. Deponent further says, that at the time of mailing said papers, there was a regular mail com- munication between and Deponent further says, that notwithstanding the service of said answer as aforesaid, the plaintiff entered judgment in this action against the defendant, on the .... day of , 18. .. D. K. Sworn, &c. (Attach affidavit of merits, and copies of papers served.) BOOK OF FORMS. 589 MISCELLANEOUS. No. 765. Affidavit moving for a new trial, on the ground of newly discovered evidence. [Title.] STATE OF NEW YOEK, County, ^ **• 0. D., being duly sworn, says, that lie is the above named defendant ; that the above entitled action is founded upon, &c. [state the caitse of action'], and the defense set up thereto by this deponent was, &c. [state the defense'] ; that this action was tried at a circuit court, holden at , in the city of , on ihe .... day of , 18 . . , and a verdict was rendered therein for the plaintiff, for dollars ; that , of the town of , in said county, will testify to the fol- lowing facts : [here state what witness will swear to] ; and this depo- nent further states, that such evidence of the said has been discovered since the said trial of said cause, to wit, on the . . . day of , 18 . . , and was not previously known to this deponent to exist, and could not have been ascertained by this de- fendant prior to said last mentioned time ; that he has fully and fairly stated the case in this action to , Esq., his counsel herein, who resides at , in the said county, and has also disclosed to him the facts to which the said will testify ; and this deponent states further, that the said testimony of the said is material for this defendant, as he is advised by his said counsel, after the statement of said case to him as afore- said, and verily believes. C. D. Sworn, &c. Note. — The affidavit is aooompanied by a case. 590 BOOK OF FORMS. MISCELLANEOUS. No. 766. Order for an examination to perpetuate testimony, to he indorsed upon the application [2 E. S., 398]. On the within application and affidavit of , ordered, that such examination take place, and I hereby appoint the .... day of , 18 . . , at . . . , o'clock, . . m., of that day, at my office in the city of , it being ISTo , .... street, in said city, as the time and place for the examination of the within named , upon the within application. Dated, &c. Signed, ■*) Justice of the /Supreme Court. No. 767. Ordei- to examine witness de bene esse to he indorsed on the application. [Title.] It appearing to me that the examination of the above men- tioned as a witness is reasonable, in order to obtain justice between the parties herein, let the said be examined [de heiie esse] as a witness in this action, before me, at my office in the city of , on the .... day of , 18, ,, at o'clock, . . M., of that day, and let the defendant herein be duly notified to appear at said time and place to cross- examine said witness, if he thinks proper so to do. Dated, &c. Signed, , Justice of the Supreme Court. BOOK OF FORMS. 591 MISCELLANEOUS. No. 768. Affidavit to obtain postponement of trial on account of plaintiff^ s conduct in the premises. [Title.] STATE OF NEW YOEK, ) COITNTT, P*' A. B., being duly sworn, says, that he is defendant in the above entitled action, and that he has fully and fairly stated the case in this action to his counsel, , Esq., who resides at , in said county, and that he has a good and sub- stantial defense upon the merits thereof, as he is advised by his said counsel, after such statement of the case to him, and verily believes to be true. That issue of fact has been joined in this action, and the plaintiff has noticed the same for trial at the term of this court, to be held in the county of This deponent further says, that since the said plaintiff noticed this action for trial, and while this deponent was preparing for the trial of the same, the said plaintiff in this action being also plaintiff in another action, in which the place of trial is in county, has subpoenaed this deponent, and paid him his fees to attend the same ; that said second suit is noticed for the same time as said first suit ; and that owing to the sickness of deponent's counsel in the first mentioned action, it is abso- lutely necessary that this deponent should be present at the trial thereof; but that he will be unable to be present at the court to be held in the county of , and also obey the said sum- mons requiring his presence in county. Signed, Sworn, &c. A. B. 592 BOOK OF FORMS. MISCELLAKEOnS. No. 769. Affidavit to obtain a ne exeat. STATE OF NEW YOEK, , ^^ [Title.] County, j A. B., being duly sworn on his said oath, says, that he is plaintiff in the above entitled action; and that the same was commenced by this plaintiff to recover the sum of dollars, which is now justly due to this plaintiff from the said defendant, for, &c., [state the cause of action.] That the said defendant has hitherto failed to serve any answer, or to demur to said complaint filed in this action, as this deponent is informed by his attorney herein, nor has the said defendant given any notice of appearance in said action; and the said defendant, being indebted to this deponent as aforesaid, has lately threat- ened and given out, that he will speedily leave this state and go into the , and beyond the jurisdiction of the court And this deponent verily believes if this defendant should be permitted to leave this state, this deponent will either lose his said debt, or the same will be very much endangered, and it will difficult, if not impossible, for this deponent to recover the same. A. B. Sworn, &c. No. 770. Affidavit to discharge a ne exeat for neglect to prosecute action. [Title.] STATE OF NEW YOEK, ) County, j **•• J. T., being duly sworn, says, that he is attorney for the said defendant ; that this action was commenced by the personal ser- vice of a sumraoils upon the said defendant in this action, on the BOOK OF FOEMS. 593 MISCELLANEOUS. day of , 18 . . ; that on the .... day of , 18. ., this deponent served upon the plaintiff's attorney herein, a notice of retainer for the defendant in this action, and a demand of the copy of complaint herein ; and this deponent further says, that no copy of the complaint herein has been served upon this deponent, although more than twenty [or forty] days have elapsed since the service of said demand of copy com- plaint. J. T. Sworn, &c. No. 771. Order for have to isstie execution, &c. At a special term, &o. [Title.] On reading and filing affidavits and notice of motion, with proof of due service thereof on the defendant, personally, and on motion of , Esq., attorney for the said plaintiff, it is ordered that the plaintiff have leave to issue execution in this action, notwithstanding the lapse of five years from the judg- ment herein. No. 772. Orde.r for have to bring action on judgment. At a special term, &o. [Title.] . On reading and filing affidavit and notices of motion, and proof of due service thereof on the defendant, and on motion of , Esq., attorney for the plaintiff, no one appearing to oppose; it is ordered that the above named plaintiff have leave 15 594 BOOK OF FORMS. MISCELLANEOUS. to bring an action upon a judgment obtained against the above named defendants in the above entitled action, in favor of the said plaintiff, and against the said defendant, in an action of the day of , 18 . . , for dollars damages and dollars costs and disbursements. No. 773. Order directing one action to abide the event of another. [Title op the several causes, etc.] ^ On reading and filing the affidavits of the defendant in these actions, and his stipulations not to answer, and on hearing , for defendants, and , for plaintiffs, it is Ordered, that all the causes abide the event and final deter- mination of one of them, which the plaintiff may select and notice for trial ; and that proceedings in all the remaining actions be stayed until the trial of such selected action ; and that what- ever judgment may be finally rendered in the cause noticed for trial, shall be entered in all the other causes. No. 774. Order for consolidation of actions. [Title of the several causes of actioh.] On reading and filing defendant's affidavits in these actions, and, on hearing , for defendants, and , for plaintiff. Ordered, that the several causes above entitled be, and the same are, consolidated into one action in this court, and that the several statements of the causes of actions in the respective actions stand as the complaint in said consolidated action ; and that the plaintiff pay the- costs of the first action up to the date of this order, and . . , dollars, costs of this motion. BOOK OF FORMS. 595 HISCELLAKEOUS. No. 775. Order for publication where the defendant is a foreign corporation. [Thle.] It appearing to my satisfaction, by the affidavits of A. B. and C. D., that the above named defendant is a foreign corporation, and has property within this state ; that after due diligence used, neither the president or other head of such corporation, secretary, cashier, treasurer, or any director, or managing agent thereof, can be found within this state, upon whom to serve a summons in the above entitled action, and that a cause of action exists in favor of the above named plaintiff and against said corporation. It is therefore ordered that the summons in the above entitled action be served upon the above named defendant, , by publication in the and in the , two newspapers published in this state, once a week for six weeks, in each paper ; and that a copy of the summons and complaint in this action be forthwith deposited in the post-office, directed to the said , defendant, at , in the state of , it being the place where the said corporation is loca- ted and is doing business. Dated, &c. Signed, . No. 776. Order for pvblication of summons — non-resident. [Title,] It appearing to my satisfaction, by the affidavit of , that the defendant in the above entitled action, the per- son on whom the service of the summons is to be made, cannot, after due diligence used, be found within this state ; that the 596 BOOK OF FOEMS. MISCELLANEOUS. plaintiff has a cause of action against the said defendant, which arose on contract; and that the said defendant is not a resident of this state, but has property within the same ; and that this court has jurisdiction of the subject matter of the action afore- said ; it is therefore ordered, that the summons in the above entitled action be served on the said , defendant, by publication in the and in the , two newspa- pers published in this state, once a week for six weeks, and that a copy of the summons and complaint in this action be forthwith deposited in the post-office, directed to the said , at , his place of residence [or, his place of residence, as soon as the same can be ascertained.'] Or, instead of publication and mailing as aforesaid, the sum- mons and complaint herein be personally served on said , wherever he may be found. Dated, &c. Judge of said court. No. 777. Alternative order for bill of items. [Title.] On the pleadings, notice of motion, and the affidavits herein, it is ordered, that the plaintiff's attorney deliver to the defend- ant's attorney, in writing, a bill of the items of the plaintiff's demand in this action, by the day of , 18. ., at o'clock, ... M., of that day ; or that he show sause before me, at that time, at my office in the city of , why the same should not be so delivered ; and that, in the meantime, all further proceedings on the part of the plaintiff herein be stayed. Dated, &c. Signed, BOOK OF FORMS. 597 MISCELLANEOUS. No. 778. Peremptory order for same. [Title.] On the pleadings herein, and the annexed affidavit, it is hereby- ordered, that plaintiff's attorney deliver to defendant's attorney a bill of the particulars of plaintiff^s demand in this action, on or before the .... day of , 18. . ; and on failure to do so, that he be precluded from giving any evidence touching the same ; and, in the meantime, that all farther proceedings, on the part of the plaintiff, be stayed. No. 779. Order for judgment on frivolous demurrer. [Title.] On application of , Esq., plaintiff's attorney, and on notice of this application, and proof of service thereof on defend- ant's attorney five days previous to this application, no one appearing to oppose said motion, ordered judgment ^.gainst said defendant upon his said demurrer, for the frivolousness thereof and further ordered judgment in this action in favor of the said plaintiff, against the said defendant, for his damages, with costs of this action, and ten dollars costs of this application. Justice. 598 BOOK OF FOKMS. MISCELLANEOUS. No. 780. Judgment on the above order. % [Title.] Au order having been entered in this action that judgment be entered herein, in favor of the plaintiff, and against the said de- fendant, upon the frivolousness of the demurrer of the said defendant, for the sum of dollars damages, and for costs and disbursements herein for the sum of dollars, upon motion of , Esq., attorney for the plaintiff, it is adjudged that the plaintiff recover of the said defendant the sum of dollars damages, and dollars for his costs and disbursements. Note. — If the complaint is not sworn to, the defendant is entitled to notice of assessment of damages, but if sworn to, it is otherwise. (See 5 Duer, 646.) No. 781. Order to deposit books for inspection. [Title.] On reading and filing the affidavit of , also on the pleadings herein, and the motion of , attorney for the defendant, and on proof of the due service of notice of this motion, it is ordered that the plaintiff herein deliver to the defendant, or produce and deposit in the office of the clerk of the county of , within days from the service of a copy of this order [here specify the books to be deposited], to enable the defendant to examine and take copies of the entries therein, pertaining to the action now pending, and that notice be served by the attorney of the plaintiff upon the attorney of the defendant, of such deposit, when the same shall have been BOOK OF FORMS. 599 MISCELLANEOUS. made, and that said book remain in the ofBce of the said clerk during days from the service of such notice.' No. 782. Order to contintie an action against personal representatives. At a special term, &c. [Title.] On reading and filing the affidavits of , showing that the cause of action herein survives, and on motion of , Esq., of counsel for the above named plaintiff, it is ordered that this action be, and the same is, hereby continued against , administrator of the goods, chattels and credits of the said , deceased. [Or, against the heir-at-law^ when it would read thus .•] It is ordered that this action be, and the same is, hereby continued against , who is the sole and only heir-at-law of the said , deceased. No. 783. Proceedings to obtain execution against an executor. Petition hy a judgment creditor, plaintiff, for an order that the execu- tor, defendant, show cause why an execution should not issue. COUNTY, } Surrogate's Court, j To , Esq., Surrogate of said county. The application of , of the , of , in said county, shows, that on the day of > 18. ., at a term of court, held at , in ' This form may be applied to orders made that the defendant deliver or deposit books, or to orders that either party deliver sworn copies of docu- ments, accounts, &c. 600 BOOK OF FORMS. MISCELLANEOUS. said county, your petitioner, after a trial at law upon the merits, against , executor of the last will and testament of , late of , in said county, deceased, recovered a judgment against the said as executor aforesaid, for the sum of dollars, on a \state the cause of action as it existed against the testator], as now by the record and proceedings on file in the office of the clerk of said court, in afore- said, reference being thereunto had, will fully appear. That said judgment remains in full force, and has not in any way been paid or satisfied. Wherefore, to the end that an execution may be issued on said judgment against the said as executor, for the amount thereof, or for the amount of assets of the estate of the said , in the hands of the said exe- cutor, , applicable, in whole or in part, to the payment of said judgment, your applicant prays the surrogate for an order against the said , as executor aforesaid, to show cause why an execution should not be issued upon said judg- ment. He also prays that a citation may be issued out of and under the seal of this court, directed to said executor, requiring him, at a certain time and place therein to be named, to appear and account before the said surrogate, and to show cause why such execution should not issue against him as such executor. Signed, Sworn, &c. A. B. (Jurat.) No. 784. Order to show cause on the ahove petition. In the matter of the application of for an order that execution issue upon a judgment obtained by him against , executor of the last will and testament of deceased. On reading and filing the petition of , of the city of , setting, forth that on the day of , 18. ., he obtained a judgment in the court, after a trial at BOOK OF FORMS. 601 MISCELLANEOUS. law upon the merits, against , the executor of the last will and testament of , late of deceased, for dollars, damages and costs, and that the said judg- ment remain in full force and wholly unsatisfied. It is there- fore ordered, pursuant to the prayer of the said petition, that the said , executor as aforesaid, personally appear before the surrogate of the county of , at his office, in, &c., on the day of , 18.., at o'clock, , . M. of that day, and show cause why the execution in said •judgment should not be issued. And it is further ordered that a citation issue to the said executor, as aforesaid, requiring him to appear in this court at the time last aforesaid, and account as such executor. Signed, — ■. , /Surrogate of said county. No. 785. Form of citation. The I%ph of the State of New York, to ,the executor of the last will and testament of , deceased, send Greeting : You are hereby cited and required personally to be and appear before our surrogate of , at his office, in the , on the .... day of j 18 . . , at .... o'clock, . . m., of that day, then and there to account as such executor. [L. s.] , Surrogate, 76 602 BOOK OF FORMS, MISCELLANEOUS. No. 786. Order that execution issrie, &c. [Title as in No. 784.] It appearing that , of the of on the day of .... ,18. ., obtained a judgment in court, against , the executor of the last will and testa- ment of , late of , deceased, after a trial at law, upon the merits, for dollars daihages and costs, and on the application of the said , an order having been made and served upon him, the said executor, to show cause why an execution on the said judgment should not be issued ; and a citation also having been issued and served upon the said , as executor aforesaid, requiring him to appear in this court on the day of , 18 . . , and account as such executor, and the said parties having duly appeared and the said , executor, having filed his accounts as such exe- cutor, and the said matters having been fully heard, and it appearing from the said accounts that there are in the hadds of the said , as executor, as aforesaid, assets of the estate of the said , deceased, to the amount of dol- lars, and that the debts and outstanding liabilities of the deceased do not exceed the amount of . .... dollars, and that there are assets, in the hands of the executor, properly applicable to the payment in full of said judgment, and no cause to the contrary being shown, it is ordered by the surrogate that execution be issued in due form of law against the said , as executor aforesaid, for the whole amount of said judgment and interest. And it is further ordered, that the fees and expenses of this proceeding be paid out of the estate of the said deceased. BOOK OF FORMS. 603 MISCELLANEOUS. No. 787. Judgment for an accounting {interlocutory). [Title.] Date, This action having been brought on to be heard, and the court having duly considered the pleadings, proofs and arguments herein, it is ordered and adjudged that it be referred to , Esq., of , as referee, to take a mutual account of all dealings and transactions between the plaintiff and defend- ant in this action, for the better elucidation of said accounts ; the said parties are required to produce before said referee, upon oath, all deeds, books, papers and writings, in their custody or power, relating thereto ; and the said parties are to be examined, as the said referee shall direct, in all matters touching said deeds, papers, books and accounts ; and the said referee, in taking such accounts, shall make unto the parties all just allowances, and what, upon the balance of the said account, shall appear to be due from either party to the other, is to be paid as the said referee shall direct. And this court reserves the consideration of the costs of thifs action, and of all further directions, until after the said referee shall have made his report ; when either party is to be at liberty to apply to the court as occasion shall require. No. 788. Order to answer the petition of appeal. [Title.] On reading and filing due proof that the petition of appeal, together with the transcript of the proceedings before the surro- gate, have been duly filed in the office of the clerk of this court, and on motion of , Esq., attorney for the appellant, it is ordered, that the respondent answer the said petition within twenty days after the service of a copy of said petition and notice of this order, or that, in default thereof, the appellant be heard ex parte. .604 BOOK OP FORMS, MISOELLAKEOirS. No. 789. Order to compel r^ort of referee. On reading and jBling affidavits in this action, and on motion of , Esq., attorney for the plaintiff, it is ordered, that the referees appointed in this action do report therein, in ten days after service of a copy of this order, or show cause, at the next special term of this court, to be held at , on the .... day of , 18 . . , why an attachment should not issue against them. No. 790. Jvdgment for divorce declaring nuUity of marriage. [Title.] The issues in this action having been brought on for trial before Mr. Justice and a jury, at a circuit court held on the .... day of , 18. ., and the issues having been tried, and a verdict for the plaintiff having been duly rendered on the .... day of , 18 . . , and it appearing to the court that both of the said parties to the marriage mentioned in the complaint are now living ; therefore, it is adjudged, that the marriage mentioned in the complaint herein, entered into be- tween the plaintiff and the defendant , is wholly null and void from the date of this judgment, upon the following grounds, to wit : \here state the grounds of the divorce that it appear to he one of the causes mentioned in the statute autiwriz- ing the samel\ And it is further adjudged, that the custody of , child of their said marriage, is hereby awarded to the said ; and that the said pay the said the annual sum of dollars, in equal semi- annual payments, for the education of said , so long BOOK OF FORMS, 605 MISCELLANEOUa. as the said shall live, and until the said shall attain the age of twenty-one years; and that the said give security therefor to be approved by a justice of this court, with leave to either party to apply for a modification of said allowance or security, in case of any event materially changing the circumstances of the parties hereto. And it is fur- ther ordered and adjudged that, from time to time, as any sum or sums shall become payable by the terms of this order and judgment, the said , plaintiff herein, upon the allow- ance of any justice of this court, to be made on exhibiting to him and filing an affidavit that such sum or sums have not been paid, may have an order entered, as of course, on the foot of this order, decree and judgment, that execution issue, in such form as said justice may direct, against the said defendant , for the sum or sums so unpaid, with interest thereon from the time or times when the same shall have become pay- able by the terms of this order and judgment. And it is further adjudged, that the plaintiff recover of the said defendant the sum of dollars, costs of this action. No. 791. Judgment of divorce for adultery. [Title.] The issues in this action having been brought on for trial before Mr. Justice and a jury, at a circuit court held on the day of , 18'. . ; and the issues having been tried, and a verdict for the plaintiff having been duly rendered on the day of > 18 . . ; and it appearing to the court that both the parties to the said marriage, mentioned in the said complaint, are now living ; therefore, on motion of , Esq., counsel for the said , plaintiff, it is adjudged, that the marriage contract, mentioned in the complaint herein, entered into between the said , plaintiff, and the 606 BOOK OF FORMS. MISCELLANEOUS. said . . i , defendant, be dissolved, and the same is hereby dissolved accordingly, and said parties are, and each of them is, free from the obligations thereof. And it is further adjudged, that it shall be lawful for the said , plaintiff, to marry again, in the same manner as if the said , defendant, were actually dead ; but it shall not be lawful for the said .... , defendant, to marry again until the said , plaintiff, shall be actually dead. And it is ordered and adjudged, that the said , defendant, pay to the said , plaintiff, the sum of dollars a year from the .... day of , 18 . . , during [her] natural life, as a suitable allowance to the said , the plaintiff, for her support, and that such allowance be paid in manner following, that is to say : That the sum of dollars be paid into the hand or upon the order of the said plaintiff, or to her attorneys of record in this action, on the day of , 18 . . ; and that the sum of .... dollars be paid as aforesaid to the said plaintiff, quarterly, thereafter ; that is to say, on the day of each month of [specify the months] thereafter, during the natural life of the said , the plaintiff. And it is further ordered, that the said J the defendant, within days from the date of the entry of this order and judgment, give unto the said , the plaintiff, such reasonable security for the payment of such allowance, by lien upon his real estate in this state, or otherwise, as may be directed and approved by this court, upon the report of the clerk of this court, to whom the examination is hereby referred. {Costs and execution as in the preceding form.') BOOK OF FORMS. 607 MISCELLANEOUS. No. 792. Same. Beference to the question of alimony. [Title.] The issues in this action having been brought on for trial before Mr. Justice , and a jury, at a circuit court, held on the day of > 18 • • i and the issues having l»een tried, and a verdict for the plaintiff having been duly rendered on the day of , 18. . . Now, on motion of Esq., attorney for the plaintiff, it is adjudged that the marriage contract between the said plaintiff and the said defend- ant be dissolved, and the same is hereby dissolved accordingly, and the said parties herein are freed from the obli- gations thereof. It is further adjudged that it shall be lawful for the said plaintiff to marry again, the same as if the said defendant were actually dead ; but it shall not be lawful for the said defendant to marry again until the said plaintiff be actually dead. [Provide for the custody of the children.] It is further ordered and adjudged, that it be referred to , Esq., counselor-at-law, as referee, to take proofs and ascertain and report to this court what would be a suitable allowance to the plaintiff for her support, having regard to the circumstances of the parties respectively, and from what date the same should be allowed, and at what time or times, and in what manner the same should be paid, and whether any and what moneys heretofore paid or allowed by the defendant to the plaintiff since the commencement of this action ought to be deducted from the payments hereafter to be made. And the said referee having regard to the expenses of the plaintiff for counsel fees and otherwise va. prosecuting this action, not taxable as costs merely ; and that the said referee also report, what secu- rity for the payment of such allowance by the said defendant upon any estate of the said defendant or otherwise, would be 608 BOOK OF FORMS. MISCELLANEOUS. reasonable and proper, and that he report the facts found by him with his opinion on the matter aforesaid, and all proofs taken before him, and any rejection by him of proofs offered. It is further ordered and adjudged, that on the coming in and filing of said report, this action be brought to a further hearing thereon ; and, unless on such hearing the court shall otherwise direct, it shall, as the final judgment of the court in this behalf. Be then ordered, decreed and adjudged, that the said defendant . . J pay to the said plaintiff for her support such sum and sums of money at such times and in such manner as shall be specified in said report of said referee ; and that the said defendant within thirty days from the entry of such judgment give to the said plaintiff , such reason- able security for the payments from time to time of such allow- ance as shall be specified in said report. No. 793. Jvdgment for a limited divorce. [Becitals as in preceding.] It is therefore adjudged that the said plaintiff and defendant be separated from bed and board, provided the said parties may at any time hereafter, by their joint petition, apply to this court to have this judgment modi- fied or discharged. It is further ordered and adjudged, that neither of said parties is at liberty to marry any other person during the life of the other party, [Provision as to custody of children.] BOOK OF FORMS. 609 BILLS OF COSTS. BILLS OP COSTS. No. 794. To the plaintiff; where judgment can be taken without application to the court. [Title.] For all proceedings before notice of trial, $10 00 For 10 necessary additional defendants served with process, 20 00 For 5 necessary additional defendants served with pro- cess, 5 00 Disbursements. Stamp on summons, 50 Serving summons, Affidavit of service of summons, 12 Clerk's fee, entering judgment, 50 Transcript, 6 Sheriff's fee receiving and returning execution, . . 69 Affidavit to complaint, 12 Affidavit of no answer or demurrer, 12 Affidavit of disbursement, 12 Necessary postage, Paid for filing transcript, No. 795. To the plaintiff, where judgment can only be taken on application to the court. [Title.] In all proceedings before trial $25 00 [The same items for additional defendants as in last bill.] 11 610 BOOK OF FORMS. BILLS OF COSTS. Disbursements. [Same as in last bill; and where witnesses are necessarily required to attend court, their fees. Where the assessment is by a sheriff's jury add :] Sheriff's fees for summoning jury and attending assessment, Jurors' fees, Witness' fees, No. 796. Costs when judgment is hy confession. [Title,] Costs by statute, $5 00 Disbursements. Affidavit to confessions, ' 12 Clerk entering judgment, 50 Transcripts and filing,6 cents each, Sheriff receiving and returning execution, 69 Affidavit of disbursements 12 No. 797. Plaintiff^s hill where, on failure to answer, application to the court would not have been necessary, and when an issue of fact has been tried. [Title.] For proceedings before trial, |10 00 For 10 necessary additional defendants served, 20 00 For 5 necessary additional defendants served, 5 00 For term fees not exceeding five, $10 each, 50 00 BOOK OF FORMS, 611 BILLS OF COSTS. For trial, , $30 00 For additional trial fee ; trial occupying over 2 days, . . 10 00 For attending upon and taking deposition conditionally [or to perpetuate his testimony], 10 00 For drawing interrogations to annex to a commission, 10 00 For attending the examination of a party before trial, . . 10 00 Disbursements. Stamp on summons, 50 Serving summons, $3 00 Affidavit of service of summons, 12 Affidavit to -complaint, 12 Affidavit to reply, 12 Clerk's trial fee, 1 00 Clerk's entering judgment, 50 Transcripts, 6 Filing transcripts, 6 Sheriif summoning jurors, two circuits, 1 00 Jurors' fees, 8 00 Witness' fees, 10 00 Affidavit of attendance of witness, 12 Affidavit of disbursements, 12 Sheriff receiving and returning execution, .... 69 Paid for exemplification of papers, Necessary as evidence, 5 00 [Where, on failure to answer, an application to the court would have been necessary, the costs are the same as above, except the first item should be $25.] 612 BOOK OF FOEMS. BILLS OF COSTS. No. 798. Costs to defendant. [Title.] For all proceedings before notice of trial, $10 00 For all proceedings after notice of and before trial, 15 00 For term fees, not exceeding five, .$10 each, 50 00 For trial fee, 30 00 Additional trial fee, cause taking over two days, 10 00 Attending upon and taking deposition conditionally \or, to perpetuate testimony], , . . . 10 00 For drawing interrogatories to annex to a commission, 10 00 For attending the examination of a party before trial, . Disbursements. Afi&davit to answer, 12 Clerk entering judgment, 50 Transcript, 6 Filing transcript, 6 Witness' fees, ...: 5 00 Affidavit of attendance of witnesses, 12 Affidavit of disbursements, 12 Sheriff receiving and returning execution, . ... 69 No. 799. Costs on appeal to general term on part of appellant. Proceedings before notice of argument, $20 00 Argument, 40 00 5 term fees, 50 00 In making case containing exceptions, 20 00 I over 50 folios, 10 00 BOOK OF FOEMS. 613 BILLS OP COSTS. Disbursements. Clerk's fees for return on appeal, $5 00 Clerk's trial fee, 1 00 Clerk entering judgment,, 50 Transcript 6, filing 6, ....... , 12 Printing case, , 10 00 Printing points, , 5 00 Sheriff receiving and returning execution, ... 69 Affidavit of disbursements, 12 Postages, No. 800. Costs to respondents on appeal to general term. [Title.] Before argument, $20 00 Argument, 40 00 Five term fees, 50 00 Amendments to case, 10 00 Disbursements. Clerk entering judgment, 50 Transcript 6, filing 6, 12 Printing points, •. $5 00 Sheriff receiving and returning execution, ... 69 Affidavit of disbursements, . .,....■.. 12 Postages No. 801. Costs of appellant to Court of Appeals. [Title.] Before argument $30 00 Argument, 60 00 10 term fees, 100 00 Making case, 20 GO 614 BOOK OF FORMS. BILLS OF COSTS. Disbursements. Clerk's fee for return on appeal $5 00 Clerk entering judgment, 50 Transcript 6, filing 6, 12 Printing case, 10 00 Printing points, 5 00 Paid for remittitur, 5 00 Sheriff receiving and returning execution, ... 69 AfiBdaArit of disbursements, 12 Postages, No. 802. Respondents costs in Court of Appeals. [Title.] Proceedings before notice of argument $30 00 Argument, 60 00 10 term fees, 100 00 Dislursements. Paid for remittitur, 5 00 Clerk entering judgment, 50 Transcript 6, filing 6, 12 Printing points, 5 00 Sheriff receiving and returning execution, .... 69 -» AflSdavit of disbursements, 12 Postages, IISJ-DEX. No. Page. Abatement or NtriSANOE: complaint for, 150 108 AocoKD AND satisfaction: defense of, 204 141 Actions : for debt, 20 damages, 61 land, 94 chattels, 96 special relief, 98 partition 366 253 divorce, 790 604 divorce, 161 117 Administrators : complaint by, 7 8 against, 9 9 See Executors and Administrators. \ Admissions : orders upon, 175 Affidavits: on application for order to interplead, 158 114 order of arrest, 237 159 warrant of attachment, 251 169 on requisition for chattels, 242 164 in proceedings supplementary to execution, 327 228 in proceedings supplementary to execution, 331 231 on submission of controversy, 345 243 on issuing summons against joint debtors, &c., 348 244 616 INDEX. No. Page. Affidavits — {Continued). on confession of judgment, 362 251 for motion by plaintiff to appoint guardian for non-resident infant defendant, 380 264 for order of publication of summons in partition, 383 267 when the defendant's last known place of residence was in this state ; present place unknown, 384 267 in case of unknown owners, 385 268 of personal service of summons, in partition, 388 270 on infants under fourteen, 389 271 on corporations, 390 272 of publication, 391 272 of mailing summons and complaint, 392 273 of filing lis pendens, etc., 394 274 for order of reference on defaultj all of full ages, 397 278 part infants, 398 279 that parties desire their shares set off separately, 399 279 of service of notice of hearing referee's report^ 407 285 of reference when sale is necessary, 408 286 for motion to compel purchaser to complete sale, 420 309 by purchaser, for motion to be relieved from purchase, 433 315 for sale of infants' real estate : of disinterested person annexed to petition for leave to sell, &c., 482 370 in cases of lunatics, drunkards, &c. : of physician, to accompany a petition against a lunatic, . . 524 412 of same, in case of drunkenness, 524 412 of physician, annexed to a petition for leave to traverse an inquisition, 547 432 to a petition for leave to traverse an inquisition by a lunatic, 545 432 annexed to petition to supersede an inquisition, 564 444 ■ in cases of contempts : of service of motion for an attachment, ■ .• 601 472 of the service of an order to pay money on a demand of payment, 602 473 to obtain an attachment against a party for violating an injunction, 606 476 of the party showing violations of an injunction, 607 477 of a witness as to the facts of violating an injunction, .... 608 477 misceUaneous forms: of personal service of summons and complaint, 739 571 INDEX. 61T Affidavits, misceUaneovs forms — ( Continiied). of service by mail, 740 572 to obtain order to file pleading, 741 572 to obtain order for service where service is evaded, &c.,. 742 573 to obtain order for publication,, .- 743 573 against absconding defendarit, . , 744 574 of pleading by agent or attorney, 745 575 to extend time to plead, 746 576 to procure testimony of witness (de hem esse), 747 576 application to perpetuate testimony, . . .- 748 577 to obtain discovery of papers, ., 749 578 of merits, 750 579 to obtain further bill of particulars, 751 579 to obtain security for costs, 752 580 to move to dismiss complaint, 753 580 for an order of reference, 754 581 opposing such reference, 755 582 to move for a commission, 756 583 same by defendant, 755 584 for motion to consolidate, .! 758 584 of disbursements to be attached to bill thereof, 759 585 of attendance of witnesses, 760 585 of service by publication of summonSj 761 586 ^or stay of proceedings after judgment, 762 586 for setting aside inquest, 763 587 to set aside judgment entered on default, 764 588 moving for new trial, newly discovered evidence, 765 589 to obtain postponement of trial, &c., 768 591 to obtain ne exeat, , 769 592 to discharge same, &c., , 770 592 Ageeemekt : See Apprentice, Land, Indemnity. Answer: general form of answer, 169 127 general denial : positive, 170 128 of knowledge or information, 171 128 speciflc denial : by articles, 172 129 of loan, 173 129 of receipt of money , 174 129 78 618 INDEX. ~ No. Page. Answer, specific denial — (^Continued). of demand, 175 130 of request, 176 130 of note, 177 130 of indorsement, 178 130 of notice of dishonor, 179 131 of acceptance of bill, 180 131 of presentment, 181 131 avoidance, not to the merits : want of jurisdiction, 182 132 infancy of plaintiff, 183 132 marriage of plaintiff, 184 133 marriage of defendant after contract, 185 133 non-joinder of necessary plaintiff, 186 134 non-joinder of necessary defendant, 187 134 no such corporation, 188 134 pendency of another action, 189 135 toffie merits, showing the contract to he void: infancy of defendant, 190 135 marriage of defendant, 191 135 ■want of consideration, 192 136 mistake, 193 136 fraud, 194 136 duress, 195 137 statute of frauds, 196 137 usury, 197 138 goods not necessary, 198 138 award invalid, 199 139 judgment void, 200 139 to the merits, showing that no cause of action has accrued : credit unexpired, 201 140 to the merits, in discharge of the contract: payment, , 202 140 tender, 203 140 accord and satisfaction, 204 141 release, 205 141 insolvent discharge, 206 142 novation, 207 142 arbitration and award, 208 143 former judgment, 209 143 . statute of limitations, 210 143 alteration of contract (by surety) 211 144 INDEX. 619 No. Page. Aksweb, to the merits, in discharge of the contract — ( Continved). reducing value and pleading payment, 212 145 reducing amount promised, and pleading payment, 213 144 explaining contract, and showing breach as to delivery, . 214 145 the same as to quality, 215 145 breach of warranty of chattels, 216 146 breach of vrarranty of land, 217 146 surrender, 218 146 eviction 219 147 justification in actions for wrongs: "'^ truth of publication,. 220 147 privileged publication, 221 148 privileged communication, 222 148 privileged communication, 223 149 self-defense, 224 149 leave and license, .....' 225 150 property distrained doing damage, 226 150 lien upon goods detained, 227 150 several defenses: legal and equitable defenses to action for land, 228 151 defense and mitigation of libel 229 152 counterclaim : 230 153 and defense, 231 153 and several defenses, 232 154 Appeals: notice of appecd: to the court of appeals, 334 233 to the general term, from a judgment, .,. 335 234 to the general term, from an order, .^ 336 234 from a justice, 337 234 undertaking on appeal: to the court of appeals, for costs, 338 235 to stay proceedings on judgment for money, 339 236 to stay proceedings on judgment for chattels, 340 236 to stay proceedings on judgment for land, 341 237 to a county court, 342 238 order slaying proceedings : pending appeal, 343 239 judgments on appeal :. .' 316 219 cyopeal look : 365 252 620 - INDEX. No. Vkb, Appkentioe's agreement: oomplamt on, by the master, 96 66 by the apprentice, ■. 97 67 Arbitration and award : defense Of, 208 143 general subiiiission, , 658 518 saipe, award to be made by "umpire, 659 520 oath of arbitrators, 660 520 notice of time of hearing, 661 521 application for subpoena, 662 521 form of subpoena, .■; 663 521 oath of witness, 664 521 form of revocation, 665 522 notice thereof, 666 522 form of award 667 523 affidavit proving it, . . 668 524 notice of motion to coniSrm award, 669 524 to vacate, &c., 670 525 to modify award, 671 526 order confirming the award, 672 526 vacating award, 673 527 Argument : papers on, 364 252 Arrest : affidavit on application for, 237 159 undertaking on, 238 160 order of, 239 161 undertaliing of bail, common form, 240 162 in action for chattels, 241 162 Assault and battery : complaints for, 121 85 complaints for, 122 86 defense to action for, 224 149 complaint for vacating an, 147 105 Assignee : complaint by, 24 18 for benefit of creditors; complaint by, 25 19 AssQoiATioH : complaint by an, 18 14 INDEX. 621 No. Page, Attachment : af&davit on application for, 251 169 undertaking (n application for, 252 169 undertaking on discharge of, 254 170 warrant of, 253 170 in cases of contempt : issued on an order for, 605 475 writ of, 612 480 Avoidance : answers in, 132 Award : complaint on an, 52 36 defense to action on, 199 139 defense of, 208 143 Bailee : complaint against a, 109 76 Bail: undertaking of, in ordinary cases, 240 162 in action for chattels, 241 162 complaint on undertaking of, 99 69 BSOLS OF EXCHANGE : inland : drawer against acceptor, 64 43 payee against acceptor, 65 43 first indorsee against acceptor, 66 44 subse. . . . i 265 179 ■with exceptions 266, 180 Causes op action : complaint for several, 88 59 Charter party: complaint on, . , 105 73 Chattels : complaint for possession of chattels wrongfully taken, 137 96 wrongfully detained 138 96 against taker and transferrer, 139 97 for breach of warranty of, 102 71 for trespass upon, 107 75 for conversion of, 108 75 for breach of contract to sell 91 63 for restoration of, and injunction, 152 109 Claims to land : complaint for determination of, 146 104 Collateral securities: complaint to reach, 165 123 Committee oi' a lunatic : complaint by, 10 10 against, 11 11 Qea I/iMolics and Drunkards. Commission : in cases of limatics, &c. : commission of inquiry, 527 415 commission to committee, 543 429 INDEX, 623 No. Page. CoMMissiomss : for partition, 446 330 their oath, 447 332 report of, 448 333 notice, of hearing or report of, 449 334 COMPANT : complaint by joint stocic 17 14 Complaints: general form of, 5 6 hy or agamsi partiatdar persons : by an executor, 6 7 administrator, 7 8 against an executor, 8 9 administrator, 9 9 by committee of lunatic, &c., 10 10 against same, 11 11 by a public officer, 12 11 receiver pending suit, 13 12 in supplementary proceedings, 14 12 of a bank, 15 13 against a receiver, 16 13 by a joint-stock Company, 17 14 an association, IS 14 a foreign corporation, 19 15 an infant, 20 15 against a married woman, 21 16 husband and wife for ante-nuptial debt, 22 17 same, 23 18 by assignee of a claim 24 18 for benefit of creditors, 25 19 for debt : for money lent, 26 20 money received, generally, 27 21 for goods sold by factor, 28 22 through mistake, 29 23 money paid to a third party, 30 23 by surety, 31 24 goods sold and delivered at a fixed price, 32 25 reasonable price, 33 26 to a third party, 34 26 to defendant's family, 35 27 624 INDEX. No, Page, Complaints for debt — {Continued). goods sold but not delivered, at a fixed price, 36 27 reasonable price, 37 28 not accepted, 38 28 deficiency on resale, 39 29 price of real property conveyed, 40 30 sold but not conveyed, 41 30 services, at a fixed price, 42 31 reasonable price, 43 32 and materials, at a fixed price, 44 32 reasonable price \ 45 33 rent reserved in a lease, 46 33 use and occupation, at a fixed rent, 47 34 reasonable rent, 48 34 board and lodging, 49 35 freight, .....; 50 35 passage-money, 51 36 on an award, 52 36 a foreign judgment 53 37 an instrument for the payment of money only, 54 38 a bond for the payment of money only, 55 38 promissory notes : payee against maker, 56 39 first indorsee against maker, 58 40 subsequent indorsee against maker, 58 40 first indorsee against indorser, 59 40 , subsequent indorsee against first indorser, 60 41 last indorser, 61 41 intermediate indorser, 62 42 all prior parties, 63 42 inland bills of exchange : drawer against acceptor, 64 43 payee against acceptor, 65 43 first indorsee against acceptor 66 44 subsequent indorser against acceptor, 67 44 payee against drawer,.. 68 45 first indorsee against indorser, 69 45 subsequent indorsee against first indorser, 70 46 last indorser, 71 46 intermediate indorser, 72 47 all prior parties, 73 47 foreign bills of exchange : payee against' drawer, ^ 74 48 INDEX. 625 No. Paee. Complaints /or debt for foreign bills of exchange — {Continued). payee against acceptor, 75 48 insurance policies : on vessel, 76 49 cargo 76 50 freight, 78 51 general average, 79 51 particular average, 80 52 fire policy, 81 53 correcting alleged mistake, 82 54 life policy, 83 55 guaranty, 84 56 debts created by statute : for an escape, 85 57 penalty under license lavr, 86 68 metropolitan police law, 87 59 several causes of action, 88 59 for damages on breach of contract : on breach of agreement to convey land, 89 61 purchase land, 90 62 for not delivering goods sold, 91 63 for discharging from employment, 92 64 not employing, 93 65 not serving, 94 65 defective workmanship, 95 66 on apprenticeship agreements ; master against father, ... 96 66 apprentice against master, 97 67 on bond for fidelity of a clerk, 98 68 undertaking of bail, 99 69 covenants of title ; grantee against grantor, 100 70 tenant against landlord, 101 70 warranty of chattels, 102 71 real estate, 103 72 agreement of indemnity, 104 72 charter party, 105 73 for damages upon wrongs : for trespass on land, 106 74 chattels, 107 75 conversion of personal property, 108 75 against warehouseman, 109 76 sheriff, for not executing process, 110 76 false return, Ill 77 for nroouring propertj' by fraud, 112 78 79 626 INDEX. No. Page. Complaints for damages upon wrongs — {Continued). inducing plaintiflf to speculate, by fraud, 113 79 procuring credit for a third party, by fraud, 114 80 insurance by fraud, 115 80 erecting a nuisance, 116 82 continuing a nuisance, 117 83 obstructing a way 118 83 diverting a water course, 119 84 waste, 120 85 assault and battery, 121 85 with special damage, 122 86 false imprisonment, 123 86 injuries caused by negligence, 124 87 the same, against a railroad, 125 88 the same, by an executor, &o., 126 89 libel ; libelous on its face, 127 90 not libelous on its face, 128 90 slander ; actionable words, 129 91 slander ; words specially actionable, 130 91 malicious prosecution 131 92 slander of title, 132 93 for specific property : for land ; by owner , 133 94 title and possession of land, 134 94 land ; by tenant, 135 95 general form, 136 95 chattels wrongfully taken, 137 96 detained 138 96 against fraudulent purchaser and transferee, 139 97 for fecial relief: for specific performance, 140 98 rescission of contract, 141 99 foreclosure of mortgage, 142 100 redemption, 143 101 partition, common form, 144 102 on account of waste 145 103 determination of claims to land, 146 104 vacating assessment, , 147 105 forfeiture and eviction, on account of waste, 148 107 injunction against waste, 149 108 abatement of a nuisance, 150 108 injunction against diversion of water 151 109 for restoration of chattels, and injunction, 152 109 INDEX. 627 _ No, V&RQ. Complaints /or special relief — (^Continued). creditor's action on judgment of a court, 153 110 of a justice, 154 112 against trustees, 155 112 for interpleader, 156 113 dissolution of partnership, 160 117 divorce from bonds of matrimony, 160 117 bed and board 162 119 for an elective oflSce, 163 120 a non-elective office 164 121 far ordinary and special relief united : for ordinary judgment on a note, and to reach collateral securities, 165 123 damages on, and injunction against a nuisance, 166 124 Complaint : in partition suit, 395 275 in case of unknown owners, 396 277 Confession of jtmGMENT/or debts due: on goods sold 349 245 money lent, 350 246 price of land, 351 246 on account, 352 247 a promissory note, 353 248 an indorsement, '. 354 248 an indorsement, 355 249 in other cases, 356 24D for debts to become due : on goods sold, 357 249 in other cases, 250 for a liability incurred by plaintiff, 361 251 affidavit annexed to, 362 251 indorsement on, 363 251 Consent : in cases of lunatics, &c. consent of next of kin to propose a committee, 537 423 of wife, that her share be paid to her husband, 419 304 of wife, that her share be paid to her husband 440 321 of widow to accept sum in gross in lieu of dower, 420 305 of widow to accept sum in gross in lieu of dower, 441 322 consent of next friend to be appointed, 371 258 CoNSIBEKATION, WANT OF : defense of, 192 136 628 INDEX. No. Page. Contempts : notice of motion for an attachment for contempts, 600 472 affidavit of service of notice of motion for, 601 472 affidavit of the service of an order to pay money on a demand of payment, 602 473 power of attorney to demand payment of money, 603 474 order for an attachment, 604 474 attachment issued on such order, 605 475 affidavit to obtain an attachment against a party for violating an injunction, 606 476 affidavit of the party showing violation of an injunction, .... 607 477 affidavit of a witness as to the facts of violation, 608 477 order te show cause why attachments shall not issue, 609 478 notice ordered to be served, 610 478 order for an attachment, 611 479 writ of attachment, 612 480 order on appearance of defendant, directing interrogatories to be filed, 613 481 interrogatories, form of introducing, 614 482 answer to interrogatories, 615 482 order discharging the attachment, 616 483 order convicting defendant of contempt, 617 483 warrant of commitment, 618 485 bond for appearance on return of the attachment, 619 486 order for an ahas attachment, 620 487 order directing the prosecution of the bond given to sheriff, . . 621 487 Conversion of chattels : complaint for 108 75 COEPOEATION : complaint by foreign, 19 15 against trustees of dissolved, 155 112 defense of " no such corporation," 188 134 Costs, hiUs of: to the plaintiff where judgment can be had without applica- tion to the court, 794 609 to the plaintiff where application to the court is necessary, . . 795 609 costs when judgment is by confession, 796 610 plaintiff's bill where an application to the court would not have been necessary, and an issue of fact has been tried, . . 797 610 costs to defendant, 798 612 appellant's costs on appeal to general term, 799 612 INDEX. 629 No. Page. Costs, JiKs of — (^Continued). respondent's costs on appeal to general term 800 613 appellant's costs in court of appeals, 801 613 respondent's costs in court of appeals, 802 614 Counterclaim : alone, 230 153 and defense, 231 153 and several defenses, 232 154 Covenant fob title : complaint for breach of grantee against grantor, 100 70 tenant against landlord, 101 70 Credit unexpired : defenseof, 201 140 Ckbditob's action : on judgment of a court of record, 153 110 justice, 154 112 Damage doing : defense of, 226 150 Damages on breach of contract: complaints for, 61 Damages on wrongs : complaints for 106 74 Debt: complaints for, 20 Deceit : complaint for procuring, property by fraud 112 78 for inducing plaintiff to enter into a speculation by fraud, 113 79 for procuring credit for a third person by fraud, 114 80 against directors of a corporation for fraudulent statements, 115 80 for the recovery of goods obtained by fraud, 139 96 see Sheriff. Decision : of a judge, 268 181 with findings of a jury on special issue, 269 182 Deed: of referee on sale in partition, 437 317 by special guardian, 492 382 630 INDEX. No. Page. Deed — ( Continued). in cases of lunatics : deed by committee of lunatic, 579 457 release and conveyance by committee in partition, 586 464 Defamation : complaints for, 90 Defenses: several: answers containing, 151 Demubrer : to the whole complaint, 167 125 part of the complaint, 168 126 to the answer, , 233 155 to the reply, 236 157 Denial: answers o^ 128 Discharge in insolvency : defenaeof, 206 142 Dissolution of paktneeship : complaint for, 160 170 defense of goods taken on, 226 150 DiVOKOE FROM THE BONDS OF MATHIMONT : complaint for, 161 117 bed and board, complaint for, 162 119 judgment declaring nullity of marriage, 790 604 judgment of divorce for adultery, _ 791 605 reference on question of alimony, 792 607 judgment for limited divorce, 793 608 Duress : defenseof, 195 137 Emplotment : complaints for breach of contract of, 92 64 complaints for breach of contract of, 93 65 Escape: complaint against a sheriff for, 85 57 Eviction : defense o^ 219 147 INDEX. 631 No. Page. Exceptions : on trial by jury, 267 180 by the court, 271 187 by referee, 191 notice of, 270 187 to report of referee in partition, 414 293 notice of arguing the same, 415 294 to report of referee requiring guardian of infant to account, . . 471 359 EXECUTOE : complaint by an, 6 7 against, 8 9 by executor against railroad, 126 89 execution against, 320 223 ExECniOE AND ADMINISTBATOR : proceedings to obtain execution against, 783 599 petition by judgment creditor for an order that executor show cause, &c., 783 599 order to show cause, 784 600 form of citation, 785 601 order that execution issue, &c., 786 602 judgment for an accounting, 787 603 order to answer the petition of appeal, 788 603 Execution for money: against the property of all the judgment debtors, 318 221 joint property of all, and individual property of some of the debtors, 319 222 property in the hands of a trustee, 320 223 indorsements on, 223 against the person, 324 224 for chattels, 325 225 for land, 326 226 proceedings supplementary to. See Swpphmm,1ary Proceedings. Factor : complaint against, 28 22 False return: complaint against a sheriff for, Ill 77 False imprisonment : complaint for, 123 86 FOBEOLOSUEB OP MOKTOAGE : complaint for, 142 100 632 INDEX. No. Page, Forfeiture of estate toe waste: complaint for, 148 107 Teaud : defense of, 194 136 Freight : complaint for, 50 35 Goods sold and delivereI): complaint for, at a fixed price, 32 25 at a reasonable price, 33 26 to a third party at defendant's request, 34 26 to defendant's family, 35 27 Goods sold but not delivered : complaint for, at a fixed price, 36 27 reasonable price, 37 28 Goods sold but not accepted: complaint for the price of, 38 28 deficiency on resale of, 39 29 Goods sold : complaint for not delivering, 91 63 Goods, notes and services: complaint for, 88 49 Guaranty: / complaint on, 84 56 Guardian : petition for leave to commence partition suit and for appoint- ment of guardian ai litem, 366 253 consent of, &c., indorsed on application for appointment of next friend 371 258 security of guardian or next friend, 374 260 security of guardian or next Mend, 379 264 Habeas ookpus: application for writ of, by party confined, 706 553 application by third party, 707 554 writ of, 708 writ of certiorari when person cannot be brought up 709 555 petition when there is danger the party may be carried out of the state before writ can issue, 710 555 warrant under this proceeding, 711 556 bond on serving the writ, 712 556 INDEX. 633 No. Page. Habeas corpus — {Coniinued). attachment for disobedience of the writ, 713 557 commitment for disobedience of writ, 714 558 precept to bring up party illegally restrained, 715 558 return to habeas corpus, 716 559 return when the ofilcer, &c., has not the custody of the party, 7 17 560 traverse of return, 718 560 notice to party interested of the time and place of the return of the writ, 719 561 notice to the district attorney, 720 561 apphcation for a writ to bring up a person to testify, 721 561 the writ of habeas corpas ad testificandum • 722 562 HUSBAKD AND WIPE : complaints against, 22 17 complaints against, 23 18 Imprisonment : complaint for false, 123 86 Indemnity : complaint on agreement of, 104 72 See Bond, Guaranty. Infant : complaint by, 20 18 petition of infant plaintiff over fourteen, for the appointment of next friend, to commence suit in partition, 370 255 consent of guardian or next friend indorsed thereon, 371 258 aflldavit of infant's signature, &c 372 259 proceedings in case of infants : petition by an infant over fourteen, for appointment of general guardian, 459 345 affidavit annexed thereto, 346 petition in behalf of infant under fourteen, for appoint- ment of general guardian, 460 347 order of reference thereon, 461 348 report of referee thereon, 462 349 order appointing general guardian, 463 350 order where infant is under fourteen, 464 351 bond of guardian, &c., 465 352 inventory of guardian, &c., 466 354 petition calling general guardian to an account, 467 356 order of reference directing guardian to account, 469 358 report of referee thereon, 470 358 634 INDEX. No. Page. Infant, proceedings in case of — {Continued). exceptions to report, 471 359 notice of hearing, &c., .• 472 360 order confirming report, &c., 473 361 clause directing removal of guardian, &c., referee to appoint another, 474 361 petition of guardian to be discharged from his trust, .... 475 362 petition by next friend to remove guardian for misconduct, 476 363 notice to guardian therepf, 477 364 order of reference thereon 478 364 report of referee thereon, 479 365 order thereon, removing guardian, &c., 480 366 In proceedings foe sale or infant's real estate : petition by infant and next friend, to sell real estate, &o., 481 368 aflSdavit of disinterested person 482 370 order appointing guardian, &c., and reference, 483 371 bond of special guardian, &o., 484 372 referee's report, 486 375 order authorizing guardian to contract for sale, 487 377 report by guardian of agreement to sell, 488 378 order confirming report of guardian, &c., 489 379 order confirming to bring proceeds into court, 490 381 order confirming special directions as to investments, 491 381 deed by special guardian, 492 382 release of widow's dower indorsed, 493 384 final report of guardian, 494 385 order confirming same, 495 386 proceedings hy general guardians : petition of general guardian for authority to partition and sell, &c. 496 387 order of reference, 497 389 report of referee, 498 390^ guardian's report of agreement to sell 501 393 order thereon, directing partition, &c., 502 393 the same authorizing sale, &c., 503 393 proceedings to obtain specific performance Try infant of contract of ancestor : petition by executors for specific performance by infant heir, &c., 505 395 proceedings to compel specific performance on the pari of infamt heir, of contract of his ancestor : consent by party in interest to perform contract, 506 397 INDEX. 635 No. Page. In peooeedinos foe sale of infants real estate — (Oontinuecl/). petition by surviving party to control, &c., to compel infant heir to convey, * 507 398 notice of the presentation of petition, 508 399 order of reference thereon, 509 400 report of referee, 510 401 order directing specific performance by infant, &c., . 511 402 final report by guardian, 513 404 petition by adverse party with prayer for appointment of guardian ad litem, 516 406 notice of motion to compel infant trustee to convey, .... 517 407 order of reference thereon, 518 407 report of referee thereon, 519 408 Infancy: of plaintiff, defense of, 183 132 of defendant, defense of, 190 135 Injunction: by a judge, 248 167 with order to show cause, 249 168 by the court, 250 168 undertaking on application for, 247 167 against waste ; complaint for, 149 108 against diversion of water; complaint for, .'.*. 151 109 against a nuisance ; complaint for, 166 124 against injury to chattels ; complaint for, 152 109 Injuries to the person: complaints on willful, 85 neghgent, , 87 Inquisition : in case of lunatics 534 420 Insolvency : defense of, 206 142 Instrument : for payment of money only ; complaint on, 54 38 Insurance (marine) policy: complaint on ; vessel lost, 76 49 cargo lost, 77 50 freight Jost, 78 51 general average, 79 51 particular average, 80 52 636 INDEX. No, fage- Insdrance (fibe) policy : complaint on, 81 53 correcting alleged mistake in the policy, 82 54 Insurance (life) poliot: complaint on, 83 55 Interpleader : complaint for, 156 113 notice of motion for, 157 114 affidavit on motion for, 158 114 order of, , 159 115 Interrogatories : in cases of contempt : interrogatories, form of introducing, 614 482 interrogatories, answer to, 614 482 Inventory : to be filed by guardian, and account current, 466 354 in cases of lunatics, &c. : inventory on account of committee, 560 440 Joint stock company: complaint by, 17 13 Judgment : complaint on a foreign, 53 37 defense to action on, 200 139 defense of former, 209 143 Judgments for the plaintiffs in actions fob money: on failure to ansv^er, in actions upon contract, after personal service 279 194 in actions upon contract, after service by publication 280 195 in other actions, after personal service, 281 195 in other actions, after service by publication, 282 196 on partial failure to answer, 283 197 on trial, upon demurrer, 284 198 a verdict, 285 198 by the court, 286 199 by referee, ." 287 199 Judgments for the plaintiff in actions for chattels: on failure to answer, after personal service, 288 200 , alter service by publication 289 201 on trial, upon demurrer, 290 201 rSTDEX. 637 No. Page. Judgments for the plaintifi" in actions foe chattels — {Continued). on trial, a verdict, 291 202 by the court, 292 203 by referee, 293 203 Judgments for the plaintiff in actions foe land: on failure to answer, after personal service, 294 204 after service by publication, 295 204 when damages are recovered, 296 205 on trial, upon demurrer, 297 206 a verdict, 298 206 by the court, 299 207 by a referee, 300 207 Judgments foe the plaintiff in actions foe special relief : on failure to answer, after personal service, 301 208 after service by publication, ■ 302 209 on trial, upon demurrer, 303 210 a verdict, 304 210 by the court, 305 211 by the court, another form, 306 211 by referee, 307 213 Judgments for the defendant: without trial, dismissing complaint, 308 214 upon trial, dismissing complaint on demurrer, 309 215 after verdict, 310 215 on trial by the court, 311 216 by referee, 312 216 Judgment for some of the parties on each side: some of the plaintiffs against all the defendants, 313 217 all the plaintiffs against some of the defendants, 314 217 some of the plaintiffs against some of the defendants, 315 218 Judgment on appeal. affirmance at the general term, 316 219 under remittitur from court of appeals, 317 219 on submission of controversy without action, 346 243 by confession. See Confession of Judgment. directing sale of premises in partition, and directing distribu- tion of proceeds, 418 296 final, directing actual partition, , 450 335 directing compensation for equality of partition, 451 336 on frivolous demurrer, etc., 780 598 638 INDEX. No. Page. JtTDGMENT ON APPEAL — (^Continued). final, for decree declaring nullity of marriage contract, 790 604 for adultery, 791 605 for limited divorce, .7 793 608 Jurisdiction : defense of want of, 182 132 Land : complaint for the price of land conveyed, 40 30 sold but not conveyed, 41 30 on breach of agreement to convey, 89 61 to purchase, 90 62 for the possession, by the owner, 133 94 by a tenant, 135 95 general form, 136 95 for title and possession, by the owner 134 94 special relief in relation to, 98 foreclosure of mortgage on, 142 100 redemption of, 143 101 partition of, 144 102 partition of, 145 103 determination of claims to, 146 104 vacating an assessment on, 147 105 Leave and license : defense of, 225 150 Libel : complaint for words libelous in themselves, 127 90 words not libelous in themselves, 128 90 defenses to action for, 147 defense and mitigation of, ' 229 152 Lien : defense of, 225 150 Lien law, toems under: contractor's notice of lien, 683 536 notice of lien by other party, 684 537 contractor's notice to enforce lien, 685 537 notice to enforce lien by other party 686 539 bill of particulars, 687 540 affidavit of service of notice and bill of particulars, 688 540 facts justifying service by publication, 689 541 publication of notice, 690 541 INDEX. 639 No. Page. Lien law, forms under — (GonUmted). affidavit of owner's default, 691 542 judgment on failure of owner to appear, 642 542 answer of owner, 693 543 owner's bill of particulars, 544 judgment on issue on a trial, 694 545 execution against property covered by lien, 695 545 contractor's notice to enforce lien in justice's court, r 697 547 notice to enforce lien in justice's court by other party, 698 549 claimant's bill of particulars, ... 699 549 affidavit of owner's default in justice's court 701 550 owner's answer before justice, 702 550 notice requiring claims to be presented, 703 551 claimant to commence an action to enforce his lien, 704 551 affidavit of service of notice on a, that an action is not com- menced, 705 552 Limitations : » defense under statute of, 210 143 Lis pendens: notice of, 393 273 affidavit of filing same 394 274 LuNATio : complaint by, 10 10 against, 11 11 LuNATlbS AND DRUNKARDS: petition for a commission against a lunatic, 521 410 in case of unsound mind, 522 411 in case of drunkenness, 523 411 affidavit of physician to accompany petition against a lunatic, 524 412 in case of drunkard, 525 413 order for commission, 526 414 commission, 527 415 precept to sheriff to summon jury, 528 416 return Of the sheriff indorsed on precept, 417 notice to lunatic of executing commission, 529 417 warrant to produce lunatic, 530 418 subpoena for witnesses herein, 531 418 oath to jurors herein, 532 419 oath to witnesses herein, 533 419 inquisition herein, 534 420 notice of fiUng and of motion to confirm inquisition, and for appointment of committee, 535 421 640 INDEX. No. Faee. Ldnatios and drunkards — (^Continued). petition to appoint committee, 536 422 consent of next of kin to proposed committee, 537 423 order confirming finding of jury and appointing committee •without reference, 538 424 order of references to committee, 539 425 report of referee therein, 540 425 order confirming report and appointing committee, 541 427 bond of committee, 542 427 justification of sureties and approval of bond, 428 commission to committee, 543 429 petition for leave to traverse inquisition, 544 430 verification to petition by lunatic, 545 432 afildavit of physician annexed to petition, 546 432 notice of motion for leave to traverse inquisition, 547 432 V order directing issue of fact, 548 433 order of reference to settle issues, 549 434 report of referee settling issues 550 434 notice of motion on verdict of jury, 551 435 order suspending commission and directing an accounting, . . . 552 435 petition of creditor for payment of debt of lunatic or leave to sue, 553 436 notice to committee of motion that prayer of petition be granted, 554 437 order of payment thereof, 555 438 order granting leave to sue, f 556 438 order of reference to examine claims, 557 439 report of referee thereon, 558 439 order thereon confirming report and directing payment, 559 440 inventory and account of committee, 560 440 petition to set aside commission for irregularity, 561 441 petition to suspend inquisition to enable party to make a will, . . 562 442 petition to supersede inquisition, &o., 563 443 aifidavits to be annexed to petition, 564 444 order setting aside commission for irregularity, 565 445 order suspending commission to enable lunatic to make a will, 566 445 order superseding commission, 567 446 order of reference on petition to supersede commission, 568 447 referee's report thereon, '..... 569 447 order thereon suspending commission, &c., 570 448 petition for sale of lunatic's real estate to pay debts 571 449 petition for sale of lunatic's real estate for his maintenance, . . 572 451 order of reference thereon, 573 452 INDEX. 641 No. Page. Lunatics and deunkaeds — (Continued). notice of hearing before referee, 574 452 report of referee as to necessity of sale, 575 453 order confirming report and directing sale, 576 454 report of sale, 577 455 order confirming report directing conveyance, 578 456 deed by committee of lunatic, 579 457 final report by committee, 580 458 order confirming same, 581 459 petition for leave to partition lunatic's estate, 582 460 order of reference thereon, 583 461 report of referee therein, 584 461 order directing committee to agree to partition and convey, . . 585 462 release and conveyance by committee, 586 463 final report by committee of partition, 587 464 order confirming report of partition, 588 465 petition by committee of lunatic trustee or mortgagee to con- vey, , 589 466 notice of motion to compel lunatic trustee to convey, 590 466 order of reference therein, 591 467 report of referee, . . , 592 467 ^ order directing conveyance on behalf of lunatic trustees, 593 467 petition on behalf of lunatic for specific performance of contract, 594 468 order of reference in the matter of specific performance by lunatic, 595 469 report of referee thereon, 596 469 order of confirmation and directing specific performance, 597 470 final report of committee, 598 471 order confirming report, 599 471 Mandamus, peooeedings in : verified application for vi^rit of, 645 510 form of notice of said application 646 510 form of order for^issuing said writ, 647 511 order to show cause, etc., 648 511 alternative mandamus, 649 512 peremptory mandamus, 650 513 return or answer to alternative writ, 651 514 notice to relator to plead, &c., 652 514 Malicious prosecution : complaint for, 131 92 Maeeiage : of plaintiff; defense of, 184 133 81 642 INDEX. No. Page. Makeiage — ( Continued). of defendant; defense of, 185 133 of defendant ; defense of, 191 135 Married woman : complaint against, 21 16 See Husband and Wife : Master and sertant : See Apprenticeship, Services : Mistake : complaint for money received through, 29 23 defense of, '. 193 136 Monet lent : complaint for, , 26 20 Monet paid : complaint for, to a third party at defendant's request, 30 23 by a surety 31 24 Monet received : complaint for, common form, 27 21 price of goods sold by a factor, 28 22 - through mistake, 29 23 Mortgage : complaint for foreclosure of, 142 100 for redemption from, 143 101 Mortgage, foreclosure of bt advertisement : notice of sale of premises 674 528 afidavit of publication of notice of sale, 675 529 affixing notice on court house door 676 529 affixing notice in clerks' office 677 530 personal service of notice of sale, 678 532 service by leaving copy at dwelling house, 679 531 service of notice of sale by mail, 680 531 sale, 681 532 deed of foreclosure by advertisement, 682 532 Necessaries furnished defendant's familt : complaint for, 35 37 defense to action for 198 738 Negligence : complaints on injuries caused by, 87 INDEX. 643 No. Page. Next fbiend : See Partition ; Chmrdian ad litem. NON-JOINDEE OF A NEOESSAKY PARTY : defense of, 186 134 defense of, 187 134 Notes : See Promissory Notes. Notice : of motion for order to interplead, ' 157 114 of exceptions, 270 187 in partition : to minor or general guardian ; of motion to appoint guar- dian, 377 263 of motion for relief demanded and for order of reference, 400 280 of filing report of referee under 32d rule, 405 284 of hearing on coming in of report, 406 285 of hearing before referee, 410 287 by referee to creditors having lien, 411 288 of filing report, and hearing, 413 292 of argument of exceptions to report, 415 394 of bringing cause to hearing on report of referee, and exceptions thereto, in partition 416 295 of bringing cause on exceptions taken by plaintiff, 417 295 of sale by referee, in partition, 421 305 of motion to compel purchaser to complete sale, 427 310 of hearing on report of commissioner, 449 334 in proceedings in cases of infants : of hearing on exceptions to report of referee requiring guardian to account, 472 360 to guardian, of application to remove him, &c., 478 364 to compel specific performance of contract of ancester: to infant, &c., of presentation of petition, 508 399 Notice : in cases of lunatics, &c. : notice to lunatic of executing commission, 522 417 of filing on a motion to confirm inquisition and for appointment of committee, 536 423 of motion for leave to traverse an inquisition, 547 432 of motion to confirm verdict of jury 551 435 to committee of motion for payment of lunatic's debt or leave to sue, 554 437 of hearing before referee in the matter of sale of lunatic's real estate, 574 452 644 INDEX. V No. Page. Notice in case of lunatics, &c. — {Continued). notice of motion to compel lunatic trustee to convey, . . . 590 466 in cases of contempts : notice for motion for an attachment for contempt, 600 472 ordered to be served for an order for an attachment, 610 478 Notices : of retainer, 723 563 of appearance and demand of copy complaint, 724 564 of trial for plaintiff, 725 564 before referee, 726 565 for defendant, 727 565, of judgment, court of appeals, 728 566 of argument at general term, 729 566 of decision of justice, 730 567 of referee, 731 567 of application for judgment on frivolous demurrer, &c., 732 568 of notice for reference, 733 568 of settlement of case and exceptions, 734 569 of entry of judgment, '. 735 569 of motion to set aside inquest for irregularity, 736 570 of motion to set aside regular inquest, 737 570 of claim for surplus money, 738 571 Novation : defense of, 207 142 Nuisance : complaint for damages caused by erection o^ 116 82 continuance of, 117 83 for abatement of, 150 108 for damages and injunction against, 166 124 See Water course, Way. m cases of lunatics, dec. : , oath to jurors herein, 533 419 oath to witnesses herein, 533 419 OrFicE : complaint for an elective, 163 120 a non-elective, 164 121 OmoER : complaint by public, 12 11 Obdes : of interpleader, 159 115 INDEX. 645 _ ._ . ^ No. Page. Order — ( Conhnued). of arrest 239 161 for reference to appoint a receiver, , 255 172 to report a receiver, 256 173 confirming referee's report, 257 173 to deliver property, 258 175 to satisfy part of plaintiff's claim, 259 175 of reference, 188 staying proceedings on appeal, 343 239 to judgment debtor to attend examination, 328 229 to surrender property, 239 229 to third person to attend examination, 332 312 to pay debt, &c., 333 232 appointing a receiver in supplementary proceedings, 330 230 of reference on petition by general guardian for leave to bring partition suit, 367 255 confirming report of referee thereon, 369 257 appointing special guardian or next friend of infant, &c., .... 373 259 appointing special guardian or next friend of infant, &c., 378 263 appointing guardian for non-resident infant defendant 381 263 of publication of summons in partition, 386 269 of publication in case of unknown owners, 387 270 of reference on default, no infants, &c., 401 281 of reference when there are infants, &o., 402 282 when two parties desire their shares in common, 403 283 of reference, under 79th rule, 409 286 confirming report of sale, 425 309 order requiring purchaser to complete purchase, 428 311 attp,ohment against purchaser for reftising to complete sale, . . 430 312 for resale, &c., purchaser to make good deficit, 431 313 for resale, &c., purchaser discharged, 432 314 relieving purchaser from completing purchase, 434 316 relieving purchaser from completing purchase 435 316 final order of confirmation, 443 324 for actual partition, appointing commissioners, 445 326 order directing issues to be tried by jury, in partition, 454 340 of reference to ascertain facts stated in the petition, 445 341 directing payment, generally, 457 343 directing payment where money is deposited in bank, 458 344 in proceedings in case of infants : of reference of petition of infant under fourteen years, for appointment of general guardian, 461 348 appointing general guardian, 468 350 646 INDEX. No. Page. Order in proceedings in case of infants — {Continued). appointing general guardian for an infant under fourteen years, 464 351 of reference directing guardian to account, 469 358 of reference on application to remove guardian for mis- conduct, 470 364 order removing guardian, 480 366 in proceedings for sale of infants real estate: order approving guardian and directing a referee, 483 371 confirming report of guardian, &c., 489 379 final order as above, 494 385 hy general guardian, &c. : of reference on petition of general guardian, 497 389 directing guardian to agree to a partition, .- 499 391 on report of referee, to agree to sale, and give further security, 500 392 on report of guardian of agreement to sell, 502 392 on report of guardian authorizing sale and disposition of proceeds, 503 392 proceedings to obtain speaific performance hy infant heir, of con- tract of ancestor : of reference on petition for specific performance, of mas- ter's contract by infant heir, appointing a guardian ad litem conditionally, &c., 509 401 directing specific performance, &c., 511 402 on report of referee, 512 403 directing infant trustee to convey, 520 409 in cases of contempt : for an attachment, 604 474 to show cause why an attachment should not issue 609 478 for an attachment, 611 479 on appearance of defendant directing interrogatories to be filed, 613 481 discharging attachment, 616 483 convicting defendant of contempt, 617 483 for an alias attachment, 620 487 directing the prosecution of the bond given to sheriff, . . . 621 487 for an examination to perpetuate testimony, 766 590 to examine witnesses de bene esse, 767 590 for leave to issue execution, 771 593 for leave to bring action on judgment, 772 593 INDEX. 647 No. Page. Ohdee in cases of contempt — {Conimued). directing one action to abide the event of another, 773 594 for consolidation, 774 594 for publication, defendant a foreign corporation, 775 595 for pubHcation of summons, 776 595 alternative order for bill of items, 777 596 peremptory order for same, 778 597 for judgment on frivolous demurrer, &c., 779 597 to deposit books for inspection, '. . . . 781 598 to continue action against personal representatives, 782 599 to show cause why execution should not issue, 784 600 that execution issue, 786 602 to answer petition of appeal, 788 603 to compel referee to report, 789 604 in cases of lunatics, &c. : for commission, 527 415 confirming finding of jury and appointing committee without reference, 538 423 of reference as to committee 539 425 confirming report and appointing committee, 541 427 directing issues of fact on traverse, 548 433 of reference to settle issues, 549 434 suspending commission and directing an accounting, .' . . . 552 435 for payment of debt of lunatic 555 438 granting leave to sue a lunatic, 556 438 of reference to examine claim against lunatic, 557 439 confirming report of referee and directing payment of claim, 559 440 setting aside commission for irregularity, 565 445 suspending commission to enable lunatic to make a will, 566 445 superseding commission, 567 446 of reference on superseding commission, 568 447 (on referee's report) suspending commission and direct- ing a referee to take an account, 570 448 of reference on petition to sell lunatic's real estate for maintenance, 573 452 confirming referee's report and directing sale, 576 454 confirming report of sale and directing a conveyance, . . . 578 456 confirming final report of committee on sale, 581 459 of reference on petition, for leave to partition lunatic's real estate, 583 461 directing committee to agree to partition and convey, . . . 585 462 confirming report of partition, 588 465 648 INDEX. NO. Page. Oedek in cases of lunatics, &c. — ( GoniimiRS). of reference, on motion, to compel lunatic trustee, &c., to convey, 591 4G7 directing a conveyance on behalf of lunatic trustee, 593 467 of reference in the matter of specific performance by lunatic 595 469 confirming referee's report on a, directing specific per- formance, 597 470 co^ifirming final report of committee 599 471 Partition op beal peopeett: complaint for, 144 102 on account of vs^aste, 145 103 petition by general guardian, &c., of an infant under fourteen years, for leave to commence partition suit, 366 253 for appointment of next friend or special guardian, 366 253 order of reference thereon, 367 255 report of referee thereon, 368 256 by infant plaintiff over fourteen years, for appointment of next friend to commence partition suit, 370 258 consent of guardian annexed, &c., 371 258 affidavit of signatures, 372 259 order appointing guardian, 373 259 security of guardian, 374 260 by relation of infant defendant for appointment of guardian, ad litem 375 261 of plaintiff to appoint guardian for infant defendant, 376 262 notice to mihor, or general guardian, of motion to appoint guardian, 377 263 order appointing guardian, 378 263 security of guardian, 379 264 affidavit of motion by plaintiff to appoint guardian for non- resident infant defendant, 380 264 order appointing guardian therein, 381 265 summons with notice of object of acting, 382 266 affidavit for order of publication where defendant is non- resident, 383 267 same when his last place was vrithin this state, etc. 384 268 same in case of unknown owners, 385 268 order of publication, 386 269 same as to unknown owners, 387 270 affidavit of personal service, 388 270 the like on infant under fourteen, 389 271 INDEX. 649 No. Page. Partition of real property — {Continued). same on corporation, 390 272 Partition : affidavit of publieation, 391 272 affidavit of mailing summons and complaint, 392 273 notice oi'lis pendens, 393 273 affidavit of filing notice of lis pendens, 394 274 complaint in partition j 395 275 in case of unknown owners, 396 278 affidavit for order of reference on default, 397 278 when defendants are of full age, 398 278 same where some of the defendants are infants or absentees, . 398 279 that two or more parties desire their shares together, 399 279 notice of motion for reUef demanded, 400 281 order of reference on default, no infant defendants or absentees, 401 282 order of reference when two or more parties desire their shares to be set off in common, 403 283 report of referee, 404 283 notice of filing report, under 32d rule, 405 284 notice of hearing or coming in of report 406 285 affidavit of service of same, 407 286 for reference when sale necessary, 408 286 order of reference thereon, 409 286 notice of hearing before referee, 410 287 notice by referee to creditors having general hens or in- cumbrances, 411 288 report by referee that sale is necessary, 412 289 notice of filing report and hearing, 413 292 exceptions to report, ^ . . 414 293 notice of argument of exceptions by party excepting, 415 294 notice by plaintiff of bringing cause to hearing on report of referee, etc., 416 295 when exceptions have been taken by plaintiff, 417 296 judgment directing sale of premises and distribution of pro- ceeds, 418 296 assent by wife to have her share paid to her husband, 419 304 consent by widow to accept sum in gross, in lieu of dower, . . 420 305 notice of sale, 421 305 conditions of sale, 422 306 memorandum of sale, 423 307 report of referee, &c., of sale, 424 307 order confirming report of sale, 425 309 82 650 • INDEX No. Page. Partition — ( Continued). affidavit of motioa to compel purchaser to complete purchase, 426 309 notice of such motion, 427 310 order thereon, 428 311 certificate of referee that purchaser still refuses, 429 312 order of attachment thereon, 430 312 order of resale and first purchaser to make good deficit, 431 313 first purchaser discharged, 432 314 . affidavit by purchaser for motion to be reheved from purchase on ground of defect of title, 433 315 order granting motion, , 434 316 order granting motion unless plaintiff amend, &c., 435 316 report of referee of resale, 436 317 referee's deed, 437 317 final report by referee, of sale, &c., 438 319 receipt for distributive share, annexed to report, 439 321 assent of wife that her share be paid her husband 440 321 consent and receipt by widow entitled to dower, 441 322 annuity table, 442 323 final order of confirmation, 443 324 report of referee that partition can be made, 444 325 order for actual partition, appointing commissioners, 445 326 commissioners for partition, 446 330 oath of commissioners, 447 332 report of same, 448 333 notice of hearing, on report of referee, 449 334 final judgment, 450 335 the hke directing compensation for equality of partition, &c., . 451 336 petition by incumbrance for moneys arising, fi-om sale, which have been brought into court, 452 337 petition for same by remainderman, &c., 453 388 order directing issues of fact to be tried by jury, 454 340 order of reference to ascertain facts stated in petition, 455 341 referee, report thereon, 456 342 order of court directing payment, 457 343 like, where money is deposited in bank, 458 344 Partnership : complaint for dissolution of, 160 117 Passage money : complaint for, 51 36 INDEX. 651 No. Page. Payment : defense of 302 140 answer disputing amount and pleading, 212 144 answer disputing amount and pleading 213 144 Penalties : Under license law, complaint for 86 58 under metropolitan police law, complaint for, 87 59 Pendency or another action : defense of, 189 135 Petition (in partition). by general guardian of infant for leave to sue for partition, etc., 366 253 by infant plaintiff over fourteen, for appointment of next friend or special guardian, for same purpose, 370 258 by relative of infant defendant for appointment of guardian ad litem, 375 261 of plaintiff, &c., to appoint guardian for infant defendant, &o., 376 262 by incumbrances for moneys arising from sale, which have been brought into court, 452 337 by remainderman, after termination of life interest, .... 453 339 Try infants : by an infant over fourteen years, for appointment of general guardian, 459 345 on behalf of infant under the age of fourteen, 460 347 calling general guardian to an account, 467 356 of guardian to be discharged from his trust, 475 362 by next friend, to remove guardian for misconduct, 476 363 io sell infant's real estate : by infant and next friend, to sell, &c., 481 368 by general guardian, &c., 496 387 by executor, to obtain specific performance of contract of ancestor, 505 395 by surviving party, to contract of deceased vendor, to compel infant heir to convey, 507 398 by guardian of infant trustee, 515 405 by adverse party, with prayer for appointment of guardian, ad litem, 516 406 in cases of limatics, &c. : fora commission against a lunatic, 521 410 in case of a person of unsound mind, 522 411 652 INDEX. No. Page. Petition, m cases of lunatics, &c. — {Continued). for a commission in case of drunkenness, 523 411 to appoint committee of lunatic, &c., , 536 422 for leave to traverse an inquisition, 544 430 of a creditor for payment of a debt of lunatic or leave to sue, 553 436 to set aside commission for irregularity, 561 441 to suspend inquisition to enable lunatic to make a will, . . 562 442 to supersede inquisition, &c., 563 443 for sale of lunatic's real estate to pay debts, 571 449 lunatic's real estate for maintenance, 572 451 for leave to partition lunatic's real estate, 582 460 by committee of lunatic, trustee or mortgagee, for leave to convey, 589 466 on behalf of lunatic for specific performance of contract, 594 468 Pleadings. complaints 5 demurrers to complaints, 125 answers, _ 127 demurrer to answer, 155 replies, 156 demurrer to reply, 157 Policy. See Insurance. power of attorney to dema/nd payment : of costs 603 474 Precept : in cases of lunatics, Sc. : to sheriff to summon jury, 528 416 sheriff's return on, 417 Privileged publication: defense of, 221 148 communication, defense of, 222 148 communication, defense of, 223 148 Proceedings sdpplembntart to exeohtion : See Supplementary Proceedings. Prohibition, proceedings in: notice of motion for writ, 654 515 order for writ of, 655 515 writ of prohibition absolute, 656 516 of consultation 657 516 INDEX. 653 No. Page. Phomissokt notes, complaints on: payee against maker, 56 39 first indorsee against maker , 57 39 first indorser, 59 40 subsequent indorsee against maker, 58 40 first indorser, 60 41 last indorser, 61 41 intermediate indorser, 62 42 maker, first and second indorsers, 63 42 PUROHASEK : affidavit to compel, &c., to complete sale, 426 309 notice of such motion, 427 310 order thereon, 428 311 certificate by referee that purchaser still refuses, 429 311 order of attachment against, 430 312 order for resale, and purchaser to make up deficit, 431 313 Railroad company : complaints against, for negligence, 88 Eeal propeett : See Land. complaints for special relief in relation to, 98 foreclosure of mortgage on, 142 100 redemption of, 143 101 partition of, 144 102 partition of, 145 103 determination of claims to, 146 104 Receiver : pending suit, appointment of, 172 complaint by, 13 12 in supplementary proceedings, appointment of, 330 230 complaint by, 14 12 of a bank, complaint by, 15 13 complaint against, 16 13 Receipt : of distributive share annexed to report of referee, 439 321 Redemption of real property : complaint for, 143 101 Referee : in partition : report on order of reference of petition by guardian, . , , 368 25G of sale in partition is necessary, .,,..,,.,,. 412 289 654 INDEX. No. Page. Referee in partition — {Gontinued). certificate that purchaser refuses to complete his purchase, 429 311 of sale by 424 307 on resale, 436 317 final report of sale, etc., 438 319 his deed, 437 317 report of, that partition can be made, 444 325 on reference to ascertain facts stated in petition for partition, 456 342 proceedings to sell infant's real estate : report on petition, &o., 486 375 Reference : order of, by consent, 272 188 compulsorily, in cases of account, 273 188 for taking account before judgment, 274 189 for taking account after judgment, 275 189 on a question of fact aside from the pleadings, 276 190 report of referee on all the issues, 277 190 on part of the issues, or on an account, 278 191 Rent: complaint for rent reserved in a lease, 46 33 use and occupation at a fixed rent, 47 34 at a reasonable rent, 48 34 board and lodging, 49 35 Reply : to counterclaim, 234 156 to defense in avoidance, 235 156 Report : in partition : of referee, on order of reference of petition by guardian, for leave to bring partition suit, &c., 368 256 of referee that sale in partition is necessary, 412 289 exceptions to report of referee, 414 293 of sale by referee, 424 307 of referee on resale, 436 317 final report of referee of sale, etc., 438 319 report of commissioners of partition, 448 333 that partition can be made, 444 325 of referee in reference to ascertain facts stated in petition for partition, 456 342 INDEX. 655 „ ,„ . ^ No. Page. Report — ( Continued). in proceedings in case of infants : of referee, on order directing guardian to account, 470 358 of guardian of agreement to sell, 501 393 in cases of Iv.natids : of referee as to suitable committee, ' 540 425 of referee settling issues, 550 435 of referee on creditor's claim, 558 439 of referee on superseding inquisition, 569 447 of referee as to necessity of sale of lunatic's real estate, . 575 453 of sale of lunatic's real estate, 577 455 of referee on partition of lunatic's real estate, 584 461 of referee in the matter to compel lunatic trustee to convey, 592 467 of referee in the matter of specific performance by lunatic, 596 469 final, of committee, 598 471 final, of committee on sale of lunatic's real estate, ....... 580 458 Requisition or personal property : affidavit on 242 164 requisition on the sheriff, 243 165 undertaking by plaintiff, 244 165 by defendant, > • 245 165 against claim of tliird person, 246 166 Rescission of contract : complaint for ' 141 99 Sale: complaints on breach of agreements of, 63 notice of sale by referee in partition, 421 305 condition of sale, etc., 422 306 memorandum of sale, , 423 307 report of sale by referee, 424 307 Self defense : defense of, 224 149 Services : complaint for services at a fixed price, 42 31 at a reasonable price, 43 32 and materials, at a fixed price, 44 32 at a reasonable price, 45 33 for breach of contract to employ, 92 64 for breach of contract to employ, 93 65 to serve, 94 65 656 ITSTDEX. No. Page. Services — ( Continued). against a builder for bad workmanship, 95 66 See Apprentice's agreement. Sheriff : complaint against, for escape, ; 85 57 for false return, Ill 77 for not executing process, 110 76 Ships and vessels : specification of lien, 622 488 application for warrant of attachment, 623 489 where the demand is piloting, &c., 624 491 where vessel was absent at the expiration of six months, 625 492 where the ship has been run down, 626 492 form of undertaking, etc., 627 493 of warrant, 628 494 of notice to be published, 629 495 of bond of discharge, 630 496 order discharging warrant, 631 497 complaint in suit on bond, 632 498 complaint where vessel has left port, 633 500 affidavit to obtain order of sale, 634 501 form of order of sale, 635 502 sheriff's return, 636 503 notice of sale by sheriff, 635 504 petition against proceeds, &c., 638 504 form of answer thereto, 639 505 application to discharge lien, 640 506 order granting leave to bond, 641 507 appUcation for proceeds where surplus remains, 643 508 notice in such case, 644 509 Slander : complaint for, words actionable in themselves, > 129 91 words not actionable in themselves, 130 91 Slander of title: complaint for, 132 93 Special relief : complaints for, 98 SUBPCENA : in cases of lunacy, &c. : subpoena for witnesses herein, 531 418 Speoifio performance: complaint for, 140 98 INDEX. 657 _, No. Page. Statute : complaints upon debts created by, 57 Statute op frauds : defense of, 196 137 Statute of limitations: defense of, 210 143 Summons : in actions on contract for money only, complaint served, .... 1 1 in other actions, complaint served, 2 2 in actions on contract for money only, complaint not served, . 3 2 in other actions, complaint not served, 4 3 against joint-debtors and others, 347 244 complaint not served, with notice of the object of the action, 382 266 service by publication in partition, 383-392 267-272 Supplementary proceedings after execution : against the judgment debtor ; afldavit, 327 228 order to attend 328 229 order to surrender property, 329 229 order for receiver, 330 230 against third persons, affidavit, 331 231 order to attend, 332 231 order to pay debt, &c., 333 232 SURETT : complaint for money paid by, 31 24 against, 84 56 defense to action against, 211 144 Surrender : defense of, 218 146 Tender : defense of, 203 140 Title : complaints on covenants of, .' 70 Trespass : upon land, complaint for, ' 106 74 upon chattels, 107 75 TbIAL and its INOIDENTS, 177 Trial by jury, 177 83 658 INDEX. ft No. Page. Trial bt the conRT, .^. . . 181 Trial bt referee, 188 Trustees of a dissolved corporation: complaint against, 155 112 Truth of publication: defense of, 220 147 Undertaking : on order of arrest, 238 160 of bail, common form, 240 162 in action for chattels, 241 162 on requisition for chattels, by plaintiff, 244 165 by defendant, 245 165 against claim 246 166 on injunction, 247 167 on attachment, 252 169 on appeal to the court of appeals, for costs, 338 235 to stay proceedings, 339 236 to a county court, 342 238 of bail, complaint on, 99 69 TTsE AND occupation ; complaint for, at a fixed rent, 47 34 at a reasonable rent, 48 34 Usury: defenseof, 197 138 Verdict : in an action for money only, 260 177 forchattels, , 261 178 for land, 262 178 subject to the opinion of the court, , 263 179 special, 264 179 Warehouseman : complaint against, for refusal to deliver goods, 109 76 "Warrant : in cases of Iwnaiics, die. : to produce lunatic, 530 418 to enforce lien against ships and vessels, 628 494 Warranty : INDEX. 659 No. Page. Waekantt : complaint for breach in relation to chattels, 102 71 land 103 72 defense of, breach of, -. 216 146 defense of, breach of, 217 146 Waste : complaint for treble damages on, 120 85 for partition or damages on, 145 103 for forfeiture and eviction for, 148 107 for injunction against 149 108 "Water course : complaint for damages, on diversion of, 119 84 for injunction against diversion of, 151 109 "Wat: , complaint for damages, on obstruction of, 118 83 "Wife: her assent to have her share paid her husband, 419 304 her assent to have her share paid her husband, 440 321 "Widow: consent to accept sum in gross, in lieu of dower, 420 306 consent to accept sum in gross, in lieu of dower, 441 322 release of her dower, indorsed, &e., 483 384 JP ^HMRpii^^